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= . When. ‘the police ffikist ‘thon an” pportunity to question: arrested rsong in order to davelep “prob- ble cause,” they are really askin or the right to arrest upon sus icion. They are asking for right to arrest at large and inter rogate at leisure. This is a prac- -tice which has been universally adopted by totalitarian states. If the police want the right to make dragnet arrests they should ask for a constitutional amend- ment. As long as Rule 4 and the Fourth Amendment remain on the books, however, we should demand jthat our law enforcement officers obey them. Bills Before Congress Two bills are now pending be- fore Congress to repeal the Mallory rule. H. R. 8600, which was introduced by Representative: ~ Keating of New York and which has been approved almost in tts original form by the House Ju- diciary Committee, provides that no confession shall be inadmissible solely because of a delay in taking the defendant before a commis- stoner. This bill is a license for lawless law enforcement, It leaves un- changed the plain commandment of Rule 5, but {t Invites the police to ignore this commandment whenever they need a confession te validate an invalid arrest. Thirty years ago, Mr. Justice Brandeis penned the classic in- dictment of any system in whic the police are above law. H wrote: "Crime is contagious. [f the gavern- ment becomes a iaw-breaker, it breeds contempt tor low; it invites every man to become ao law unto himself; it _ invites anarchy. To declare that in the administration of the criminal _ conviction of « private crhning “Bring terrible retribution.” -- genator Butler of Ban eenater, Butler of Mesriand 1 ‘ma dangerous as the Keating bill, 8. 2432 provides that the police . oxpaust take the accused before a | Somamaissioner within 12 -hours of | his arrest, but if a commissioner -eannot be found within that pe-. ried the police may continue toe bold the accused unti] arreign- ment is possible, — This bill invites the potloe to \Swait literally until the eleventh hour before making any effort to take the accused before a come missioner. It puts a premium, moreover, upon intensive interro- gation to extract & confession | before the déadline. ’ Under this bill the police could hold any suspect incommunicado ee =. tioning before anyone advised. him of his right to counsel, bis privilege against self-incrimina- tion, his right to bail. It has been suggested that these bills would protect*innocent peo« ple from arrest records, because the police would release anyone who eppeared innocent after in« terrogation. The fact is that a record must be kept of all arrests. Once a man is arrested and taken to police headquarters he has an arrest recerd. His reputation cannot be further damaged by taking him before a commissioner who will advise him of his righ and, in most cases, admit him to bail. ‘ Would Discriminate | These bills will, however, dis- _——s, ae criminate against the youthful and uneducated suspect. The hardened criminal does not need a Commissioner to advise him of his rights—he knows them. It is no accident thet the Mallory rule was formulated in a case involving a 19-year-old boy of limited intelligence. Our Court of Appeals has re- versed only three convictiona on the basis of this rule, It is like- wise no accident that one of these cases involved ancther 19-year= old defendant of questionable mental capacity and another in- volved an 18-year-old defendant with an I. Q. of 74. These are the people whom Rule § was promulgated to pro- tect. They do not understand about the privilege against selfe crimination, They do not know lat the court, will appoint wyer ‘to. "defend them if the @ witholtt funds. They do no ‘now about bail and prelimmina examinations, for 12 hours of continuous ques- | years we have lived ‘McNabb rule, however, and it has ‘released few, any, dangerous criminals to prey on society. The latest statistics from the Depart- ment of Justice show ‘that 90 per cent af the criminal prose- cutionas initlated by the United States during 1956 and 1957 ended in convictions. It 1a a safe pre- diction that the Mallory rule will ‘have no discernible effagt upon ese statistics. mall Price ‘The occasional release of ilty Man, Moreover, is & price to pay for a society where the police are under the law. The _ business of ferreting out crime ts often competitive, and the police are tempted to forget than ean un- ‘solved crime is not the worst of ‘gl! possible evils. / 4 free society can survive the | occasional acquittal of the guilty, ‘but it cannot survive the convic- tion of the innocent. Nor can it survive dragnet arrestp upon suse Picion and subsequent detengan for investigation. - Historically the real threats to civil liberties have not come whys C) men of bad faith. We have alw been alert to their designs. great danger has lurked in insidl- ‘ous encroachments by well-mean- ing men of zeal, who have orgotten that a good end does ot justify an ilicit means. Th allory decision is a great decisio ause it reasserts this eleme! principle, , ra Ia