Freedom and its Risks
LONGAKER, RICHARD P.
Freedom and its Risks THE PRICE OF LIBERTY By Alan Barth Viking. 212 pp. $4.50. Reviewed by RICHARD P. LONGAKER Associate Professor of Political Science, University of California; author,...
...His exposition of complex Supreme Court cases is clear (and in many instances an improvement on the obscurity of the justices...
...yet it also may reveal the guilty...
...The Price of Liberty is equally sound in perspective...
...In both instances established notions of fairness and essential elements of the American tradition of liberty suffer...
...Punitive police action must give way to more enlightened measures for criminal correction...
...that this brings a rising crime rate...
...Barth does not, for example, equate police zealousness with police sadism...
...He recognizes, though, that much more is required...
...The deep sickness of the French constitutional system today, for example, is partly manifested in the disregard for fair procedure employed in Algeria and elsewhere...
...But this is hardly reason enough to forget, as Barth suggests they increasingly do, that procedural protection against arbitrary action by the government is the keystone of liberty...
...Professionals must replace the selftaught guardians of the law...
...He concludes that arbitrariness in executing the law breeds disrespect for the law...
...Yet it is increasingly accepted as a dubious means to an honorable end...
...For those who, like Alan Barth, have observed its course in this century, it is clear that liberty is based on risk...
...Above all, policemen and prosecutors should be taught to respect the procedures of the law they enforce— to avoid becoming the principal agents in its decline...
...Rather than abiding by law, he frequently abides official violence, seldom recognizing that it may eventually intrude upon his own quiet life...
...The price of liberty is the complete acceptance by citizen and government alike of the danger to stability and order which lies in liberty itself...
...author, "The Presidency and Individual Liberties" With the same rare and eloquent sense of crisis demonstrated in his earlier books (Government by Investigation and The Loyalty of Free Men), Alan Barth now asks us to face up to a less dramatic and less publicized aspect of the continuing battle for civil liberty: the protection of the individual against -the excesses and overzealousness of police agencies...
...To be kept alive, liberty requires adhering to the belief that the protection of the innocent is of greater value than convicting the guilty and the innocent...
...He believes that this is a new center of crisis, that paranoid anxiety over Communist subversion now moves in partnership with a similar anxiety over the defense of the community against crime...
...Far beyond attacking the police, Barth indicts a society which believes that the incarceration of the suspect, even though purchased with unfair procedure, will control crime...
...He is, too, notably restrained in describing human situations which might easily lend themselves to journalistic bathos...
...When the value of procedural guarantees is seriously questioned by practitioners and public alike, it is a sign of constitutional weakness and oncoming decay...
...Just as frustration with Communist power produced disregard for established doctrines of free speech, frustration over increasing crimes of violence now threatens to erode fair procedure in the name of public order...
...In many cases today, policemen find themselves violating the law in order to enforce the law...
...Although a drag-net search may yield nothing, it may also turn up evidence of a brutal crime...
...But the risks of liberty run against the impulse of police and prosecutor to maintain order and convict the guilty...
...It is easy to understand why the police, responding to public clamor and their own dayto-day encounters with lawlessness, are frequently impatient with the slow and burdensome "legalisms" of fair procedure...
...The moral and constitutional incongruity of invading privacy to detect a crime or to force a confession (even from the guilty) cannot be condoned by a free society...
...The law-abiding citizen is only superficially law-abiding when he looks the other way as the poor, disreputable suspect is manhandled by the police...
...A tapped wire, it is reasoned, may invade the privacy of innocent persons...
...Prolonged interrogation of suspects, invasions of privacy by means of electronic devices, and the psychological techniques of coerced confessions are all examined...
...and that the vicious circle closes with the call for even more severe arbitrariness...
...And no one alert to the underlying habits of dictatorship could have misread the destiny of the Castro regime the first day of its mock trials and executions...
...True, only the most radical developments in the United States could produce constitutional debility of this sort, but a low grade infection nonetheless exists...
...Barth believes that this can be dealt with by a Supreme Court that is increasingly vigilant in its protection of due process of law...
...Barth uses the public record of Supreme Court decisions to describe and dramatize the range of police violations of due process of law...
...While there probably are some sadists among policemen, there are more who are simply underpaid and insufficiently trained...
...Until such a millennium arrives it is up to legislatures, courts, and publicists like Alan Barth to remind the police that their zeal must contend with the barrier of constitutional right...
Vol. 45 • June 1962 • No. 13
