BLOOD AND BLUE: Police brutality, such as that inflicted on protestors at the 1968 National Democratic Convention in Chicago, now pales next to the torture of terrorism suspects by today’s intelligence officials.
The more things change, the more they stay the same. Forty years prove this adage as true as it is trite. When I began practicing law and writing legal and civil-liberties columns for the Boston Phoenix (actually, for the Real Paper, which was soon acquired by the Phoenix) in the late 1960s and early ’70s, a confident sense of optimism suffused my work. I believed in progress born of that decade’s massive cultural, political, and legal upheavals: history was arcing toward a freer, more just society. Yet as 2006 and the paper’s 40th year make their way into the history books, I note that many of the same problems I litigated and wrote about at the start still persist. Without being jaded, I have a more cyclical (but, I hasten to add, not cynical) view of history. Uncomfortable as they can be, cycles save us; they limit the extent to which we go massively and permanently wrong.
Consider police misconduct: the late 1960s and ’70s saw courts become more sensitive to abuse by cops, due to the highly visible brutality visited on civil-rights and anti-war protesters. But in recent years, expanded legal immunities for government officials and procedural barriers have made it more difficult to sue the state for poor treatment at the hands of police. Legal impediments thus have partially offset greater public awareness of the issue, but we’re still in better shape than when I began. These days, however, police misconduct as we’ve known it pales in comparison with torture committed by American intelligence agencies in the name of “security” — a different type of abuse, but one that coarsens our entire society.
Constitutional guarantees of privacy have waxed and waned. For a while in the ’60s and ’70s, Americans enjoyed increased rights of privacy. The courts and Congress, and even state legislatures, expanded freedom from unlawful searches and seizures — a trend that has been largely, although not entirely, reversed since the ’80s. Wiretap legislation gave us more privacy in our communications, especially after the infamous eavesdropping uncovered during the Nixon administration. But legal protections for privacy, which began to erode in the ’90s, were utterly eviscerated after the national-security panic set off by the terrorist attacks of 9/11.
Three and four decades ago, the law became more sensitive to the conviction and incarceration of defendants whose rights were violated, even if they may have been guilty. Federal courts started reviewing the constitutionality of both federal and state convictions gained through such legal violations. A clash resulted between Massachusetts courts, which fostered less sensitivity to citizens’ rights in the search-and-seizure and coerced-confessions arenas, and the federal courts, which almost routinely threw out state convictions based on unlawfully obtained evidence. But a role reversal set in during the ’80s. Federal courts worried much less about such legal niceties as needing a warrant before searching a suspect or his vehicle, for example, or giving adequate warnings before extracting a confession, while Massachusetts state courts headed in the other direction. Somehow, the division of authority between state and federal power seemed to be working more or less as the founders intended.