vol. 38, no. 5
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Volume XXXVIII
Rep. Stark sues to end
bombing in Cambodia
War in Indochina has been challenged
repeatedly in the Courts by the ACLU and
other groups, always with the same result.
The Judiciary has dodged the core
constitutional question of whether the
executive branch may commit long-term
military force without a declaration of war
by the Congress each time.
In the past, the courts interpreted
certain congressional actions to imply
-consent of the continued war in Indochina. |
The Gulf of Tonkin Resolution, renewal
of the Selective Service Act and passage of
defense appropriations bills have all been
considered as justification for the war.
ACLU-NC filed a suit last month on
behalf of Representative Fortney H. (Pete)
Stark (D-Oakland) against the Secretaries
of Defense, the Air Force and the Navy,
which charges that there is now no
implied Congressional support for the
bombing in Cambodia, but that the
reverse is true.
CONGRESS OPPOSES BOMBING
In his brief, Legal Director Charles
Marson asks the Court to declare the
bombing of Cambodia unconstitutional on
the grounds that it directly contradicts law
that has been passed by the Congress and
signed by the President. He points out that
the Gulf of Tonkin Resolution has been
repealed and that Congress has explicitly
San Francisco, June 1973
prohibited the President from engaging in
combat operations in Cambodia.
Not only has Congress failed to
authorize combat operations in Cambodia,
but it has stipulated that no military
activity should continue in Indochina once
all ground troops and POW's have
returned home. . The Mansfield
Amendment, which was passed in 1970,
says just that.
INHERENT'? AUTHORITY
In addition, every military
appropriations bill since the Cambodian
incursion of 1970 has contained a
paragraph known as the Fullbright Proviso
which states that ``... nothing herein
shall be construed as authorizing the use
of any such funds to support Vietnamese
or other free world forces in actions
designed to provide military support and
assistance to the governments of
Cambodia or Laos."'
Finally, when Congress approved
foreign aid to Cambodia, it included a
specific limitation in the law which said
`* . it shall not be construed as a
commitment by the United States to
Cambodia for its defense.''
Already the Administration has
recognized that it can no longer justify the
bombing of Cambodia on Congressional
actions and has developed an alternative
mey !
Charles Marson announce suit
theory. Last month, when Secretary of
Defense Elliot Richardson was testifying
before the Senate Foreign Relations
Committee, he introduced the novel
thought that the President has
`inherent?' authority to conduct the
bombing which derives from his power to
seek a negotiated settlement. In other
words, the Administration is saying that
Congress is powerless to stop military
operations ordered by the President
because the military might of this country
1s only a foreign policy tool for his use.
Richardson did not say where the
Constitution explained this.
`COURT MUST DECIDE'
Marson charged that this "represents a
severe threat to our Constitutional system
of checks and balances and it is the judicial
, Executive Director Jay
to halt bombing at press conference.
No. 5
Miller and Legal Director
branch of the government which must
resolve the conflict between Congress and
the Executive. Thus, it is incumbent on
the courts to declare continuation of the
`bombing unconstitutional.''
Congressman Stark stated that he was
bringing the suit `because I think it is
imperative that we do everything legally
and humanly possible to stop the killing in
Indochina. Through this action, we are
trying to stop people from being killed,
wounded and captured in an
_unconstitutional war.''
A companion case was filed on behalf of
Congressman Ronald V. Dellums (D-
Alameda) by USF Law Professor Peter
Donnici. Both cases will be combined for
argument before U.S. District Court Judge
Alfonso Zirpoli in the near future.
Eighty attend second chapter conference in Carmel
More than eighty Affiliate and Chapter Board members
attended the second annual weekend Chapter Conference
at Carmel Valley last month. From Friday night until
Sunday afternoon, participants and staff worked non-stop
through meetings, workshops and speeches.
The Conference began with a general session in which
Executive Director Jay Miller reported on the Affiliate's
successes and shortcomings in the past year. He pointed
out that the decision to merge financially with National
ACLU had resulted in a 54 percent increase in
membership which has resulted in the strengthening of
the ACLU program in Northern California.
Miller commented that the already strong legal:
program continues to benefit greatly from a dependable
and extremely competent volunteer complaint section.
Also, he added, two legal committees have been orgaized
to formalize legal input from the Chapters and to
capitalize on the talents of good attorneys who are outside
the ACLU Board. Utilization of an increased number of
volunteer attorneys has also contributed to legal activity,
Miller pointed out.
Other programs that were instituted in the past year
were the public education and speakers' programs which,
INSIDE ACLU NEWS
Repeal the draft eccececcccecccee 2
New Foundation Projects .ccccee 3
Women and the Law psececoccccced
Crime and Civil Liberties cvcccecesd
Street Musicians Album ceccsoce 6
according to Miller, were still developing and would
become better in the coming year. The Legislative
program which currently is staffed only half-time by
Joseph Remcho is expected to receive a full-time attorney
by 1974, releasing Remcho to do full-time legal work in
the Affiliate.
Miller then reviewed the Affiliate's progress in the four
priority areas established at the Chapter Conference in
1972. In the Women's Rights field, he explained that
much litigation already existed before the priority was
agreed upon but that even more has been carried by the
ACLU in the past year. In addition, a Women's Rights
Committee is currently in the process of developing a
proposal for a project to be funded by foundation grants in
the near future.
Decriminalization of victimless crimes was another
priority that came out of last year's Chapter Conference
-and Miller reported that sufficient funding was finally
acquired last March to hire staff and begin a project.
Catherine Smeland has been hired as director of the
and she begins work in June.
SUCCESSES IN PRISONS AND PRIVACY
Prisoners' Rights litigation has long been a major
endeavor of the ACLU legal program: and it too was a
priority item last year. Now, however, even more prison
cases will be possible since the San Francisco Foundation
has just provided a grant to the ACLU to have Peter
Sheehan work full-time in this area.
Except for the recent moves toward an affirmative
action policy, Miller commented that he didn't think last
year's priority for equality of rights had gone very well.
There was some scattered litigation but he pointed out
that much still needed to be done. A significant area
which the ACLU needs to become even more active, he
said, were the immigration problems of Chinese, Chicano
and Filipino people in the Bay Area.
Another area of activity which did not come out of last
year's conference but which emerged as a priority anyway
was privacy, and Miller commented that the passage of
the privacy initiative last November and the at least
partial success so far in the bank secrecy case and a major
computer privacy case represent significant achievements
for the ACLU.
WORKSHOPS DISCUSS CHAPTER PROBLEMS
Following the report on the Affiliate's activities,
representatives from each of the Chapters told of their
activities and achievements during the past year and
discussed some of their collective and unique problems.
On Saturday morning, at first a general session with
Associate Director Laura Monroe and then in four
organizational workshops, chapter problems and
solutions were discussed further. Monroe offered
techniques and ideas for fund raising and involving more
members of ACLU at the Chapter level since most of the
Chapter representatives felt these to be their chief
problems. The workshops focused in detail on legal,
public education and organizational aspects of Chapter
programs.
Saturday afternoon was devoted to discussion of
substantive areas of ACLU work. Legal Director Charles
Marson began with an explanation of some of the new
ACLU policies dealing with libel and airport searches.
Then the group broke up into workshops on prisons,
victimless crimes, criminal justice, affirmative action and
women's rights.
In the evening session, Arlie Schardt, Associate
Director of the National ACLU office in Washington,
D.C., addressed the group on the outlook for civil liberties
in the wake of the Watergate scandal. He stressed that the
Nixon Administration's thrust for ``law and order'' has
Cont. on p.8
LEGAL
ACLU sues Navy to secure sailors' rights
One right that is unmistakably guaranteed to persons in
the military is the right to petition Congress. Last month,
enlisted man Michael Ferner, serving aboard the aircraft
carrier U.S.S. Hancock, attempted to exercise that right.
When the Hancock was ordered to prepare for a tour of
duty off Indochina, Ferner composed a letter to
Representative Fortney H. ``Pete'' Stark, whose district
encompasses Alameda Naval Air Station where the
Hancock is stationed. The letter requested the
Congressman to initiate an investigation of whether the
Hancock should make another Western Pacific cruise
since the U.S. is supposedly no longer at war there and
because the carrier was commissioned nearly 30 years
ago.
Discipline and Discharge
Ferner requested permission to circulate his letter
among the other men of the Hancock before sending it to
Congressman Stark. While Captain A.J. Monger, the
commanding officer of the carrier, delayed a response,
Ferner asked some of his friends aboard the ship if they
would be interested in signing the petition. He also
submitted a second request for authorization to circulate (c)
it. Shortly thereafter, Captain Monger denied the request.
Two days later, Ferner was called before a disciplinary
hearing presided over by Captain Monger. Ferner was -
held guilty of failure to obey a lawful order because he had
continued to ask fellow sailors if they wanted to sign the
petition. Although Ferner protested that he wanted his
lawyer present, Monger reduced him in rank, fined him
$150, and restricted him to ship for 20 days.
After giving notice that he would appeal the
disciplinary action, Ferner was discharged from the Navy
the very next day on a ``conscientious objection''
discharge request he had submitted months before which
the Navy had never acted upon. In addition, he was
ordered under pain of 6 months' imprisonment and a
$500 fine never to enter Alameda Naval Air Station
again.
OTHERS ON SHIP INTIMIDATED
Last month, ACLU-NC volunteer attorney David M.
Cobin filed suit in U.S. District Court to prevent any
punitive action which may be taken against sailors who
wish to petition Congress in the future. The suit also asks
that Defense Department regulations that restrict the
right to petition Congress be declared unconstitutional.
Five enlisted men who wanted to sign and circulate
Ferner's petition and all other personnel aboard the
Hancock who may desire to petition Congress are named
Draft to continue unless
repealed by Congress
Mass. Sheriff
ufges prison,
as plaintiffs.
The ACLU argues that the outcome of Ferner's
attempt to petition Congressman Stark has led others on
the ship to fear similar punitive action should they
attempt. to communicate with their Congressmen or
women.
CAPTAIN `CAPRICIOUS AND ARBITARY'
Cobin explained that Captain Monger's action in ,
Ferner's case ``violated the First and Fifth Amendments
as well as a Federal statute that specifically guarantees
that any member of the Armed Services has. a right to
communicate with members of Congress.''
He added that "`the capricious and arbitrary attitude of
Captain Monger represents clear intimidation of the
others still aboard the Hancock and has a `chilling effect'
on their First Amendment right.'' Cobin asks the court
to order the Navy to remove all restrictions on free
communication with Congress and to declare those
regulations used against Michael Ferner unconstitutional.
The right to petition Congress may be unmistakeable,
but the exercise of that right apparently still carries some
penalties in the military.
When Representative James W.
| Wadsworth introduced the Selective
colleagues that ``This is an emergency
measure ... It is not an attempt to
establish a permanent policy of the United
States.' Now, 33 years later, that Act
still remains in force and it does not expire
on-June 30 as many people, even most
| Congresspeople, believe.
The Administration is actively
spreading the impression that the draft
does end next month but in fact, the only
Selective Service function scheduled to
expire is that portion of the law enabling:
[the President to induct 19-year-olds.
| Everything else - lotteries, registration,
classification, physical exams, and the
power to prosecute for failure to comply -
Tremains intact. In addition, some 15
| million men who have received
deferments and are still under age 35 may
be inducted even after July 1.
bound to register, keep their local boards
informed of their whereabouts, or even
that they may still be drafted. The result
has been an increase in arbitrary
prosecutions for draft violations that
smack of discrimination and _ serious
affronts to civil liberties. Thousands of
men could be indicted at any time and they
don't even know.
TWO REPEAL BILLS"
Obviously, the peacetime draft is one of
Constitution extant today. Its existence
has been the most important device
enabling Presidents Johnson and Nixon to
wage war in Indochina. As long as any
President has a vast pool of manpower at
This beckoning, Congress' constitutional
power to raise armies and declare war is
moot.
Two bills now in Congress call for total
abolition of the Selective Service System.
In the House, the bill to support is H.J.
Res. 382, sponsored by Rep. Spark
{Matsunaga of Hawaii. The Senate bill is
- S.J. Res. 54, sponsored by Oregon's Mark
{Hatfield.
These bills only have a chance if the
House and Senate Armed Services
Committees hold hearings and pass them
out to the floor of either chamber.
Individuals should write their own
Service Act of 1940, he assured his |
Most men do not know they are still "
the most conspicuous abuses of the -
Armed Services Committee
Congresspeople and urge them to ask the
Committees to schedule hearings and also
request that they join the repeal bills as co-
sponsors. Letters should also be written to
members of the Committees. s
Hearings are already set in both
Appropriations Committees to consider
the Selective Service budget. Drastic
budget cuts could eliminate the Selective
Service System just as such cuts
eventually eliminated the Subversive
Activities Control Board. The
Appropriations Subcommittees (entitled
HUD, Space, Science, and Veterans
Administration) will hold their hearings
in early June and there is an excellent
chance that at least the Senate Committee,
chaired by William Proxmire, an advocate
of draft repeal, will recommend a zero
budget for the SSS. Again, letters should
be sent to members of these committees
urging them to oppose the draft budget.
VOLUNTEER ARMY
Chances have never been better than
they are now to abolish the Selective
Service. Congress is showing signs of
reasserting its independence and the
Administration is committed to an all
volunteer army, at least on the record. If
Congresspeople can be convinced that
large numbers of people are aware that the
draft does not expire and that the people
are concerned about this, we may end the
dratt im 1973.
Pamphlets, films and _ further
information on draft repeal can be
obtained from the Northern California
Draft Repeal Coalition - 2160 Lake
Street, San Francisco 94121; phone:
752-7766. Write your representatives and
senators now - there isn't much time and
it may do a world of good.
Chairmen of key committees and
subcommittees dealing with draft
_tepeal:
Edward Boland (D-Mass) - House
_ Subcommittee on HUD, Space, Science
and Veterans
William Proxmire (D-Wis) - Senate -
Subcommittee on HUD, Space, Science
and Veterans
F. Edward Hebert (D-La)
Armed Services Committee
John C. Stennis (D-Miss) - Senate
- `House
heroin reform
Sheriff John Buckley addressed ACLU-
NC Board members, ~ chapter
representatives and staff last month at a
seminar held at the Sheraton-Palace Hotel
in San Francisco. As he said himself, it is a
rare occasion when a Republican sheriff
lectures members of the ACLU about
jails, crime and the criminal justice
system but Sheriff Buckley is not an
average sheriff.
Elected as the chief law enforcement
officer of Middlesex County, Mass.,
Buckley has earned a national reputation
for his efforts in prison reform and the
decriminalization of victimless crimes. He
has been to Great Britain to study the
heroin maintenance system there and has
come away as a leading critic of the
handling of drug problems in this country.
He believes that heroin abuse must be
treated as a mental and social problem and.
not a criminal matter before any solutions
can be found. ``Unless the profits are
taken out of the heroin trade, we can be
assured no amount of law enforcement
will stem the flow,'' he warned.
Buckley is also credited with a great deal
of innovation in the field of prison reform.
He has instituted nearly every plausible
reform in his own jail but still concludes
that reform just does not work. ``The only
way to change prisons is to get people out
of them. Centuries of reform have done
nothing to increase the rehabilitation
success of prisons.'' But he adds, ``as long
as people are in jail, we have to at least
have humanism in the institution or the
assured result is that prisons will create
more crituinals.'' Buckley has pioneered a.
variety of alternatives to jail including
work furloughs, education furloughs, and
various forms of probationary freedom
outside the prison. He says these are the
only meaningful reforms.
He emphasized, however, that two of
the most effective reforms of the criminal
justice system which should be instituted
everywhere are liberalized, state-
subsidized bail procedures and the
recognition that people should not be
arrested for "`victimless crimes.'' The
whole idea is to keep people out of jail,
and Sheriff Buckley is demonstrating to a
lot of people that it can be done. He just
hopes public opinion will follow.
RENEW
Howard Jewel, Chairman of the Board
aclu NEWS
9 issues a year, monthly except bi-monthly in March - April, July - August,
and November-December :
Published by the American Civil Liberties Union of Northern California
Second Class Mail privileges authorized at San Francisco, California
Jay Miller, Executive Director
Mike Callahan , Edstor and Public Information Director
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Membership $15 and up of which $2.50 is the annual subscription fee for aclu News.
PROJECTS
`Victimless' Crime Project to"
get underway this month
Thanks to grants provided by the Van Loben Sels
Foundation, the Luke B. Hancock Foundation, and the
Playboy Foundation, the Victimless Crimes Project will
under `way this month which will attempt to develop an
alternative to law and order measures in the effort to
control crime.
Director of the Project will be Catherine Smeland. She
has an M.A. in Political Science and Sociology from
California State University, San Francisco. Prior to
joining the ACLU, she was a field coordinator for the
Democratic State Central Committee and before that for _
the McGovern for President Campaign. In 1968, she was
a community organizer with the NAACP helping Father -
James Groppi achieve open housing in Milwaukee.
Her job and the purpose of the Project will be to
convince people that the decriminalization of "`victimless
crimes'' will help control ``real'' crimes while extending
and preserving the civil liberties of all citizens. .
For years, people across this country have been
wringing their hands and supporting desperate efforts to
stem the rising crime rate. But no matter. what they do,
they cannot stop crime. In the attempt to do so however,
a good many civil liberties have suffered.
Preventive detention, ``no-kneck'' house searches,
increased wiretapping and reversal of recent Supreme
Court decisions guaranteeing minimum rights to suspects
- in short, the increase of police powers has been the
government's response to the despair over crime.
These police tactics do nothing to stem the rise of real
crimes. They have virtually no effect on violent crimes
nor on the causes of the crime rate. The typical payoff of a
wiretap is the apprehension of a few smalltime
-bookmakers. The intent of a "`no-knock'' search is to
`avoid giving the people inside time to flush their
marijuana down the toilet. In other words, the sacrifices
of civil liberties to the god of ``law and order'' have been
aimed at substantially "`victimless'' crimes rather than
``real'' crimes which the people worry about.
Over half the arrests and work of the average large-city
police force involve crimes without victims such as
homosexuality, prostitution, vagrancy, loitering, use of |
drugs, gambling, drunkenness, and various forms of
disorderly conduct. These are hardly the crimes which
cause people to be afraid if they have to venture out on
city streets at night.
Not only does enforcement of laws against these acts
waste police resources, but it can also be argued that the
`prosecution of vicimless crimes creates more real crime.
Courts are so jammed they cannot enforce laws against
real crimes and non-criminals are sent to prisons where
they are rapidly trained to be criminals.
Perhaps the most serious consequence of the
criminalization of victimless crimes is apparent in the
handling of the "`hard'' drug problem. By making these
drugs illegal, the government has managed to cause the
price of the drugs to skyrocket, thereby subsidizing
underworld pushers and guaranteeing that the user must
commit real crime to acquire the drugs.
The Project will document and publicize the ill effects
of the government's attempt to legislate morals and the
resultant increase, mot decrease, of real crime.
Eventually, also, the project will initiate litigation that
challenges the constitutionality of laws relating to
selected victimless crimes.
Years of ``law and order'' measures have brought us
nothing of the kind. Perhaps an alternative theory has a
chance today.
Prison Project
Last September, the ACLU-NC Board of Directors
voted to give priority status to the area of prisoners' rights
and last month's chapter. conference reaffirmed the
concern.
Constitutional litigation on behalf of prisoners has long
been a major area of emphasis in the ACLU-NC docket.
As of June 1, the number of prison cases should
become even greater, as the San Francisco Foundation
has just awarded a grant to ACLU for the establishment of
a Northern California Prison Project to be directed by
Associate Staff Counsel Peter Sheehan. i
A graduate of Boalt Hall Law School in 1971, Sheehan
came to the ACLU as a CORO Foundation intern in
1972. At the ACLU, his activities have included a heavy
load of general and prison litigation. He has represented
the ACLU at all levels of the state judicial system as well
as in Federal District Court and the Ninth Circuit Court
of Appeals.
__ As director of the project, Sheehan will concentrate on
developing constitutional test litigation, including class
actions, in an effort to achieve widespread reforms in
California's prisons. In addition, he will coordinate the
efforts of law students and volunteer attorneys who are
interested in engaging in prison litigation.
Besides litigation, the Project will serve as a clearing-
house for information on prisoner rights and will prepare
model pleadings, briefs and memoranda for use by other
groups working in this area. :
Past ACLU cases have already achieved significant
results in recent years. Several cases have helped establish
the right of prisoners to receive literature as well as
engage in confidential communications with their
attorneys. Restrictions of their First Amendment rights
while on probation or parole have been struck down as
unconstitutional in ACLU cases.
Criminologists are virtually unanimous in their view
that as long as we treat those in prison without dignity or
respect, almost totally isolated from contact with the
outside community, the crime cycle will not be broken.
Rather, prisons will continue to serve as expensive,
publicly supported schools for crime.
Sheehan to direct
Past accomplishments have barely affected the
mismanagement of prison and parole systems however.
The more than 18,000 prisoners in California's penal
institutions, like all members of society, are at least-
entitled to minimal due process guarantees: advance
notice of charges, hearings before impartial tribunals, the
`tight to representation by counsel, the right to examine
witnesses and the right of appeal.
Securing basic constitutional rights will also be
a major pursuit of the Project. Prisoners still do not have
the right to read what they wish or to correspond by
uncensored mail with family or friends. Their medical and
psychiatric needs are ignored and many are not free to
exercise their religion. Most importantly, many inmates
are the daily victims of cruel or unusual punishment.
Sheehan is already handling an-impressive list of
prisoner rights cases that, if successful, could make
significant inroads for prison reform. Two cases challenge
California Department of Corrections regulations which
ban the press. from interviewing individual inmates
without being watched by prison officials, If the press
wins access to the prisons, perhaps the public will begin
to understand the correlation between high crime rates
and the prison experience.
PROJECT DIRECTOR PETER SHEEHAN
SO ET DIE us A TREE SITE AND
Franklin wins
first round in
Stanford suit
Judge Joseph P. Kelly of the Santa Clara County
`Superior Court handed down a significant victory last
month in the ACLU's suit to have fired Stanford English
Professor H. Bruce Franklin reinstated. Stanford had filed
a series of motions designed to dispose of the suit but
Judge Kelly denied every one of them, declaring that
Franklin had a right to a trial.
Stanford had argued that it was a private institution and
that its firing of Franklin could not be considered *`state
action.'' If that were the case, Stanford would not be
bound to honor Franklin's First Amendment rights
because only a government agency is required to follow
the Constitution. Even if that were true, the ACLU suit
still argued that as a private employer, Stanford had
violated the state Labor Code which prohibits political
firings.
Franklin was dismissed from his position at Stanford
after a Faculty Advisory Board decided that he had
`"incited to riot'' through speeches he had made at
Stanford. The University had also argued that Franklin
had exhausted all proper remedies in the Board hearings.
Judge Kelly rejected Stanford's contentions that
Franklin's dismissal was not state action and that he was-
not entitled to a hearing by the court. This means that
Franklin will have the opportunity to prove in court that "
Stanford is so subsidized by federal monies, mainly from
the Pentagon, that it cannot be considered a wholly
private instituion. In the 15-page opinion, Judge Kelly
stated that it is the duty of the court to provide Franklin
with a ``plenary trial of the facts. The Board's decision
cannot be consulted as a source of facts because it is
hearsay."'
He also ruled that Stanford ``had the burden of
~ presenting competent affidavits revealing that Stanford's
contacts with government are minimal. This they failed
to do."'
Legal Director Charles Marson, who is representing
Franklin, expressed pleasure and gratitude at the ruling,
calling it ``courageous and clearly right. Stanford has
already tried Franklin in Stanford's court; now its |
Franklin's turn to try Stanford in the courts of the people
of the State of California."'
We still need you
to make Big Gamble'
pay off.
Get two new members
foday.
ce
-WOMEN`S PLACE UNDER CALIFORNIA LAW
by Harriet Katz Berman
""But you can't legislate change in
people's attitudes'' is not an uncommon
reply to supporters of women's rights
legislation. This attitude holds that the
second-class status of women in our
society is a cultural rather than a legal
concern. In fact, however, California law |
is riddled with statutes authorizing
different treatment for women than men.
Many of these statutes have undoubtedly (c)
reflected social reality and not just
`stereotyped prejudices, but at the same
time, by their continued existence and
enforcement, these laws have supported
and perpetuated sex- discrimination.
Further, there are many areas of abuse
where the state legislature could
legitimately step in but instead has given
tacit approval to discriminatory practices
by remaining silent.
The stereotyped American family -
husband at work, wife at home with the
kids - is virtually spelled out in California
statutes.` "Every man shall support his wife
and his child'' (Civil Code Section 242),
while the woman's duty is to ``support
her child''; she is only expected to
(5
support her husband when he is ``in
need'' (Civil Code Section 243). A father
who fails to.support either a legitimate or
illegitimate child can be found guilty of a
misdemeanor (Penal Code Section 270). A -
husband's abandonment or non-support of
his wife is also a misdemeanor (Penal Code
Section 270a). Until recently, mothers
were given preference over fathers in child
custody cases; now, each parent is
entitled to equal consideration by the
court. (Civil Code Section 4600a as
amended, 1972).
The law establishes the man in the
house as the family financier. Each partner
has an equal interest in the family''s
possessions, property, etc., but almost all .
of the couple's community property is
`"under the management and control of
~-the husband'' (Civil Code Section 5105).
The wife has control of her earnings until
they are comingled in the community
property (Civil Code Section 5124).
Community Property Law
Community property law was formerly
viewed as a protection for the wife, giving
her a stake in the family's assets even if
they all stemmed from the husband's
earnings. A wife's traditional ``woman's
work'' - household duties and child care
- receives no earnings.
But she does not really have a fair share
at all. While neither spouse can dispose of
community real property, e.g. their
house, without the other's consent, the
husband can mostly do as he pleases with
community money and possessions. He
cannot give away community property on
his own, but, with one exception, he can
sell it. As befitting the traditional
``woman's role'', one particular area of
personal property is presumed to be the
wife's important domain: the husband
cannot ``sell, convey, or encumber the
furniture, furnishings, or fittings of the
home, or the clothing or wearing apparel
of the wife or minor children that is
community without the written consent of
the wife.''? (Civil Code Section 5125). A
husband may sell the family's car without
his wife's consent, but not the pots and
pans.
While the community property is under
the husband's management and control,
he is generally liable for his contracts and
debts. He is not liable for contracts made
by the wife after marriage ``unless such
contracts are secured by the husband's
pledge or mortgage of the community
property.'' (Civil Code Section 5116).
The pros and cons of community
property laws are perhaps felt most keenly
in divorce cases, but they also have an
economic crutch for women who remain
married. The widespread business practice
of issuing credit to a married woman only
with her husband's consent is derived
from community property laws. Since
credit when it is then issued is usually put
in her husband's name, a woman who
becomes divorced is frequently denied
credit because her credit history is all
attributed to her former husband.
Legislation has now been introduced,
Assembly Bill 312 (Waxman), to prohibit
discriminatory denial of credit to women.
Also aimed against discriminatory
treatment of women in financial affairs is
A.B. 282 (Cline) which would prevent
securities brokers from requiring the
husband's consent ``as a condition to
transacting business with a married
woman.' A.B. 2000x00B0 (Deddeh) would
prohibit differences in various insurance
rates on the basis of sex, race, religion,
etc.
The implicit assumption that the man is
the breadwinner in the -family runs
throughout California's Codes. In order to
establish her own business, a married
woman must go through ``sole trader''
court proceedings (Code of Civil
Procedure Sections 1811-1817, 1819-
1821); there are no such obstacles for a
married man.
Retirement
Under California's public employees
retirement system, a male member's wife
receives ``automatic continuance'' of
benefits upon his death (Government
Code Section 21250). A surviving
husband is eligible if he received at least
half of his support from his wife
(Government Code Section 20041).
Similarly, survivor benefits under
workmen's compensation law are
`"conclusively presumed'' to go toa wife;
a surviving husband must first
demonstrate his dependency upon his wife
- (Labor Code Sections 3501 and 3502).
Though a woman public employee's
mandatory contributions to the retirement
system will in many cases be of no benefit
under present law to her husband if he.
sutvives her, more than 40 percent of
California's state employees are women.
As with many laws that appear to
`""favor'' women, extending automatic
survivor benefits to a husband would be of
more immediate help to men. In the long
run, such extensions would help upgrade
the status of women so that they would be
considered as equally likely to be a primary
source of family: income.
Maternity Leave
The assumption that it is the woman's
role to take care of the children appears in
various laws concerning maternity leave.
(Paternity leave is not even mentioned).
School districts (Education Code Sections
13496,7 13593, 1361513) and state
agencies (Government Code Section
19384) are authorized to establish
maternity leave policies for female
employees.
If a husband and wife are both public
employees and they decide that one of
them will continue working and the other
will take care of the baby, they will
undoubtedly be influenced by the fact that
the wife can take a leave of absence for a
while, but the husband cannot.
There is no uniform state policy on
maternity leave. The time allowed for
EDUCATION
leave varies with each agency from a few
weeks to several months; in some school
districts maternity leave is mandatory
after the fifth or sixth month of
pregnancy, and the teacher is not allowed
back to work until some months after
giving birth.
The question of parental leave is closely
related to the even more pressing issue of
child care centers, sorely needed by so
many working couples, working mothers,
and parents now on welfare.
Labor Laws
The standard-model American family is
obviously becoming a myth. According to
the 1970 census, 42.2 percent of all
women in California work. The number of
women in the labor force in this state -
figured as all women 16 years or older who
are employed or seeking employment - is
more .than 3 million. Women workers
form 37.9 percent of the (nonmilitary)
labor force in California.
State labor law influences several -
statutes and a host of administrative
regulations authorized by statute,
concerned solely with working women.
They embody the stereotype of woman as
"`the weaker sex.'' Classic examples of
protective legislation, they were designed
as a buffer for women against exploitative
labor practices, but their net effect has
often been to make it more desirable, from
the employer's point of view, to hire men.
Extending protective labor laws to men
could bring benefits to male workers and
-at the same time further employment
opportunities of women. :
ae
Protective labor laws deal with wages,
hours, and working conditions. The state
minimum wage, established by the
Industrial Welfare Commission, is
currently $1.65 an hour, and applies to all
women workers except government
employees, household domestics, and
agricultural workers whose employers had
less than five women working for them at
any one time. Legislation enacted in 1972
has enabled the IWC to set a minimum
wage for men to be promulgated in 1974.
(The federal minimum wage has from the
- outset applied equally to men and women.)
California statutes fixing maximum
hours women can work - 8 hours a day,
~48 hours a week for some occupations
(Labor Code Section 1350); 10 hours a
day, 58 hours a week with overtime for
certain other occupations (Labor Code
Section 1350.5) - have been struck down -
by a U.S. 9th Circuit Court of Appeal
decision in 1971 holding that such
limitations discriminate against women by
barring them from particular jobs and
promotions that demand longer hours.
In the same case, Rosenfeld v. Southern
Pacific Co., the court threw out
restrictions against women lifting more
than 50 Ibs. (Labor Code Section 1251)
because of their similar discriminatory
effect. The "`protective'' law reflected a
classification of all women as ``weak,''
regardless of the strength and capacity of
the individual person.
Most other protections on working
conditions for women have been
established by Industrial Welfare
Commission regulations, under legislative
authority (Labor Code Sections 1172 ff).
`They delineate minimal standards of,
decency and personal comfort for women
on the job, such as drinking fountains,
lighting, ventilation, clean toilets, and a
rest break of 10 minutes for every 4 hours
worked. A bill to apply these standards to
cover male as well as female workers was
passed last year by both houses of the state
legislature but was vetoed by Governor
Reagan. A similar measure has been
introduced this year, as Assembly Bill
478 (Brown).
Job Discrimination
California's Civil Service Act bans job
discrimination in public employment, but
authorizes the State Personnel Board and
agency heads to decide that some jobs
should be reserved for one sex
(Government Code Section 19702). There
are no women on the force of the.
California Highway Patrol.
For private employment, California law
mandates equal pay for equal work (Labor
Code 1197.5a) and prohibits job
discrimination on the basis of sex, race,
religion, etc. (Labor Code Section 1412).
Enforcement of this provision rests with
the Fair Employment - Practices
Commission (analagous to the federal
Equal Employment Opportunities
Commission), but legislation to enable the
FEPC to initiate investigations and
complaints, instead of waiting for persons
to come forward and file complaints has .
been vetoed by the Governor two years in
a row.
California also has a_ constitutional
provision (Article XX, Section 18) that:
"*a person may not be disqualified because
of sex, from entering or pursuing a lawful
business, vocation or profession.'' Under
this provision, as well as state and federal
equal protection clauses, the California
Supreme Court in Sail'er Inn, Inc. v.
Kirby, (1971), unanimously struck down
a Business and Professions Code statute
prohibiting females from tending bar.
`*The pedestal upon which women have
been placed,'' wrote Justice Peters, ``has
all too often, upon closer inspection, been
revealed as a cage."'
While an exhaustive compilation of
state laws affecting women could fill an
entire code book, the family law and
employment statutes discussed here stand
out as primary targets of concern because
of their vast economic implications.
When the federal Equal Rights
Amendment receives national ratification,
most of California's laws differentiating
between men and women will be clearly
out of line. But we need not wait that long.
We can work now towards changing these
laws, and supporting the host of
iffirmative measures for women being
ntroduced in the state legislature.
EDUCATION
Crime as a civil liberties issue
By Aryeh Neier,
National Executive Director
Aryeh Neier is the Executive Director of National
ACLU. The article below is adapted from a piece he wrote
for the Village Voice. A previous article in the Voice had
criticized the ACLU for not recognizing the right to be
safe from crime and instead championing the rights of the
criminal in disregard of the law-abiding citizen's rights.
This is not a new charge levied against the ACLU; but
recently, as the crime rate continues to rise and
politicians revel in being labelled ``law and order
candidates,'' more and more people view their rights in
conflict with the rights of the accused.
Mr. Neier argues that it is a mistake to view support of
civil liberties as an anti-police commitment and that, in
fact, crime prevention and civil liberties complement each
other in many instances. His article is reprinted here
because it expresses many of the assumptions behind the
Prisoner's Rights Project and the Victimless Crimes
Project which begin operation at ACLU-NC this month.
While the ACLU does not define crime as a civil
liberties issue, we devote a lot of attention to crime. That
is because our chances of protecting civil liberties depend
a great deal on whether people see civil liberties in conflict
with the prevention of crime.
To a very limited extent they may be in conflict. The
positions taken by the ACLU sometimes make the work
of law enforcement officers more difficult. Their task
might be simplified if we didn't insist on the right to
counsel, the right to trial by jury, the right against self
incrimination and the right not to be illegally searched.
These rights exist to protect the innocent. Occasionally,
they also protect the guilty.
For the most part, however, I am convinced that civil
liberties approaches hold out the best hope for solving, or
at least reducing, the crime problem.
The principal law enforcement response to crime in the
U.S. is to isolate the criminal. This is done first by
confining the person in a jail or a prison and subsequently
by disseminating the record of the person's arrest or
conviction as widely as possible so as to enable public and
private institutions to keep people with "`records'' from
becoming their employees, neighbors, students, licensees
or debto:s:
Prisons became popular in the early part of the
nineteenth century. If a man could be completely
removed from the corrupting influence of his
environment' and put into a new sanitized environment,
so the theory went, he could be rehabilitated. The idea
caught on and spread from here to other countries.
Prisons were located from cities and communication with
family and friends outside was made extremely difficult,
all in the interests of making a complete break between
the prisoner and the environment which was thought to
have corrupted him. (The story of the development of
prisons and other closed institutions is told in David
Rothman's important book, "`The Discovery of the
Asylum.'') -
Today, after 150 years of experience, we know that
prisons can't rehabilitate. Instead, they disrupt whatever
ties to stabilizing influences - such as family, job and
community - a person had before going to prison. People
get out of prison even readier to commit crimes than
when they went in.
The ex-prisoner's chances of integrating himself into
society after emerging from prison are made even more
difficult, if not impossible, by the dissemination of his
record. The records tell us who the ``troublemakers'' are
and enable us to shield ourselves from them. But those_
troublemakers don't simply disappear from the face of the.
earth. They live among us, many of them in our black
ghettos. Having insulated ourselves from them by
keeping them out of our places of employment, we still
have to live with them. Are they less likely to commit
crimes against us if we have kept them from getting jobs?
And when they commit crimes against us, our fears
increase, so we find new ways to insulate them from part
of our lives, only to encounter them again in other parts
of our lives.
The situation of the person who has been arrested, and
million do not end
not convicted of crime, is almost as serious. Law
enforcement agencies generally make no distinction
between arrest records and conviction records in their
dissemination of data. Of some 7!% million non-traffic
arrests in the U.S. during the course of the year about 312
in convictions. Nevertheless,
principally through the FBI but also through state and
local agencies, those records are made available to
potential employers, licensers, creditors, renters and
others in a position to confer or deny benefits. We have
created a pariah class in the U.S. of millions of persons.
That pariah class is the crime problem.
According to the FBI, Albuquerque, New Mexico,
had the highest crime rate of any city in the country (and,
incidentally, one of the smallest black populations)
followed by Miami, San Francisco, Los Angeles and New
York, in that order. The common characteristics of these
cities is that they are places to which people move from
other places. Crime is very much a problem of
rootlessness and our prison and arrest record
dissemination policies help to create rootlessness.
Here in New York, and to an increasing extent in other
cities, crime is also a problem of narcotics. The prevailing
estimate is that narcotics addicts are responsible for about
50 percent of the property crime in New York. Every new
get-tough law enforcement approach to narcotics only has
the effect of driving the price of heroin higher and forcing
addicts to commit additional crimes to satisfy their habits.
Narcotics addiction was not always a crime problem. In
the latter part of the nineteenth century and in the early
part of this century there were more narcotics addicts in
the U.S. than there are today. But narcotics were cheaply
- and legally available and, therefore, not a crime problem.
In part of the U.S., doctors were treating elderly addicts
with narcotics until fairly recently. Those elderly addicts
did not have to commit crimes in order to get the money
to purchase narcotics. Narcotics, including heroin, are
legally available to addicts in England and, as a
consequence, not a significant crime problem.
Heroin has become a crime problem in direct
proportion to the efforts to deal with it as a crime
problem.
The mythology about narcotics is so deeply ingrained
that I despair of being able to deal with it in the space of
National ACLU filed a lawsuit last week against White
House aides, the Corporation for Public Broadcasting,
and the Public Broadcasting Service to prevent their
alleged censorship and interference with public television
programming and attempted removal from the air of
controversial public affairs, particularly programs critical
of the Nixon Administration.
Systematic White House interference and pressure on
directors of the Corporation for Public Broadcasting to
influence their voting was described as ``a part of the
Nixon Administration's pattern of intimidation of the
press."
The suit was also directed against recent efforts of the
Corporation for Public Broadcasting and the Public
Broadcasting Service to reach an agreement ``dividing
up'' control of public television programming and the
interconnection over which programs are delivered to the
local stations. ``Under the Public Broadcasting Act of
1967, neither CPB nor PBS can legally control program
content,'' according to Jay Miller, Executive Director of
ACLU-NC.
Melvin Wulf, Legal Director of the National ACLU
Foundation, said that the lawsuit is intended to prohibit
censorship of content and control of programming and
program distribution in violation of the First
Amendment.
Plaintiffs in the suit include viewers and supporters of
public television from ; St. Louis, Miami, Los Angeles,
San Francisco, Chicago and New York, and television
writer Paul Jacobs, director Saul Landau and producer
John Kuney, all of whom allegedly have had productions
censored on public television. The ACLU and the
National ACLU sues PBS, CPB
for censorship on public T.V.
this ticle. For anyone seriously interested in the subject,
I recommend the Consumer's Union's new book, ``Licit
and Illicit Drugs.'' The book advocates an approach to
narcotics which combines respect for civil liberties with
the best thinking on how to break the nexus between
addiction and crime. Contrary to some of the misleading
reports which circulated here a few years ago, it describes
the British experience with drug maintenance as
""magnificent.'? The Consumer's Union recommends
that: es
The heroin black market must be abolished by the
only way it can be abolished: by eliminating the
demand for black market heroin.
On the central issue of narcotics addiction,
accordingly, Consumer Union recommends (1) that
United States drug policies and practices be promptly
revised to insure that no narcotics addict need get his
drug from the black market; (2) that methadone
maintenance be promptly made available under
medical auspices to every narcotics addict who applies
for it; (3) that other forms of narcotics maintenance,
including opium, morphine and heroin maintenance,
be made available along with methadone maintenance
under medical auspices on a carefully planned
experimental basis.
The prohibition approaches to marijuana, gambling,
prostitution, homosexuality and pornography are also
part of the crime problem in the U.S., and of that special
subdivision of the crime problem, police corruption. This
is beginning to be understood, though not a great deal is
being done about it.
Much of the energy of the ACLU is devoted to breaking
down the isolation character of prisons, limiting the
dissemination and use of arrest and conviction data,
encouraging a maintenance approach to narcotics
addiction `and repealing laws which create ``victimless''
crimes. We do these things because they are important for
civil liberties quite aside from the effect they would have
on the crime problem. At the same time, we are
`concerned with the impact they have on the crime
problem because that is likely to determine our chances of
prevailing.
Network Project, a public interest research group at
Columbia! University, are also plaintiffs in the suit.
Specifically named as defendants are Clay T.
Whitehead, Director of the White House Office of
Telecommunications Policy and Patrick J. Buchanan of
the Executive Office of the President. John Erlichman,
President Nixon's former Director of the White House
Council on Domestic Affairs, is cited for interference
with the Corporation but it is not named as a defendant
since he resigned from office.
The suit, filed in Federal District Court for the District
of Columbia, seeks to set aside the announced schedule of
programs for fiscal year 1974 (commencing July 1, 1973)
on grounds that it is, tainted with White House,
Corporation and Service interference.
Plaintiffs also seek removal of Irving Kristol from
participation on the Board of Directors of the Corporation
for Public Broadcasting because his appointment has
never been confirmed by the Senate. They allege further
that the composition of the entire Board fails to satisfy the
Act's requirement of diversity.
San Franciscans Jacobs, Landau and Kuney all charge
that a 12-minute segment they produced for the ``Great
American Dream Machine'"' series, dealing with agents-
provocateur and the FBI, was censored by PBS. KQED
(Channel 9) in San Francisco aired the segment but PBS
refused to distribute it throughout the network. ACLU-
NC Chairman Howard Jewel is also a plaintiff in the suit
and charges that he and fellow viewers of public television
have a right to receive uncensored and unrestricted -
programming.
Volunteers, musicians pool
efforts for benefit album
Two years ago, a few street musicians
were arrested in San Francisco for
soliciting without a license and
obstructing traffic. Paul Halvonik, then
Legal Director of ACLU-NC, paraphrased
the charges as ""committing Mozart in a
public place.'" The ACLU has since
engaged in a series of legal confrontations
on behalf of the street musicians.
Now, a long-playing stereo record
album of the music of the San Francisco
Street Musicians is the first ever printed
under the ``ACLU'' recording labely.
Now, the street musicians can commit
Mozart, or Dixieland, or blues or rock in
your own living room.
About six months ago, Executive
Director Jay Miller asked Rita Friedman,
who had been a volunteer in the ACLU
Public Information Department, if she
would be |
project. Rita had been successful in placing
public service announcements on Bay
Area stations and had proven herself
extremely capable of taking an idea and
making it work. Today, Rita knows more
about producing a record album than she
ever thought she would, and probably
more than she ever wanted to.
What is even more amazing, all of the
work, technical assistance, musical talent
and ``blood, sweat and tears,' was
volunteered to the effort and recruited by
Rita. `"You can't believe what all goes
into the making of a record and I can't
believe that it's done,'' was Rita's
- comment on the completion of the album,
and she isn't through yet. Now she and
other volunteers are in the process of
marketing the product of their toil.
Six groups are featured on the album
which range the spectrum of musical style.
The thirty minutes or so of music on the
final edition of the album was selected
from over 412 hours of music which was
meticulously recorded on the streets of
San Francisco. The listener to the album
has the advantage of having the other
street sounds of San Francisco - horns,
trucks and jackhammers - deleted. That
willing to coordinate the ~
was hardly an easy chore for Rita and her
crew, though.
Nevertheless, the job of narrowing
down the selections to only thirty minutes
was a monumental task. The result is fine
quality sound and genuine entertainment.
_ Many people deserve .a great deal of
credit and profuse thanks for their
contributions to the album. John Semion,
who answered an ad in the ACLU News,
handled the sound equipment which was
provided by Swanson Sound in Oakland.
Al Regan, a member of the Marin County
Chapter Board, designed the album cover
and technical assistance was provided by
Fantasy Records. through the auspices of
Al Bendich, a former staff counsel at the
ACLU.
Attorney Robert Gordon sorted out the
legal problems of acquiring recording
rights. Eric Cedarbaum and Steve Haken
at the ``Soundworks'' in San Francisco,
and Jim Stern and Larry Lane also deserve
special thanks.
And of course, none of it could have
been possible without the musicians.
Recorded at the Cannery and Union
Square, each of the groups is a brilliant
piece of the mosaic culture of San
Francisco. The San Francisco Street
Orchestra contribute a Haydn symphony
and the Bourbon Street Irregulars add
New Orleans jazz sounds. John Skerce
takes us to the Old English countryside
Computers supposedly make law
enforcement agencies more effective but
there is growing evidence that police
reliance on them leads to some serious
problems. There have been many
complaints recently that the computer
used by the San Francisco Police
Department has caused many false arrests,
invasions of privacy and wrongful
assessments of fines. One such complaint
resulted in an ACLU lawsuit last month.
Staff Counsel Joseph Remcho filed suit
against Police Chief Donald Scott and the
City and County of San Francisco for
illegal arrest and confinement on behalf of
poet Lawrence Ferlinghetti. He charged
that Ferlinghetti was arrested on a warrant .
outstanding from a 1969 _ obscenity
charge. That case had long since been
dismissed but no one ever told the police
computer.
*SAs a result, Ferlinghetti was falsely
arrested and imprisoned on non-existent
charges in violation of his constitutional
rights,'' according to Remcho.
Ferlinghetti had been stopped by police for
a traffic citation and the officers ran a
warrant check on him through their
computer. When they told him they had
discovered a warrant for his arrest, he
Ferlinghetti sues S.F. police for
`computer error' arrest
explained that the charges had been
dropped and that the warrant was no
longer valid. Rather than check out his
story, the officers booked him.
Remcho commented that `"`this is only
one example of many unconstitutional
abuses that arise from police who are
unwilling to recognize that they can make
mistakes.'' He added that false arrests,
break-ins and searches of the wrong
homes, and reliance on computers that
have not been updated ``have led to
injustices for which the police must be
held responsible.''
Computer checks are run on almost
every citizen with whom the police come
in contact, whether you are stopped for a
traffic violation, a passenger of a stopped
car, or even if you report a crime.
`Citizens are afraid to cooperate with
police knowing that warrant checks will be
run on them,'' according to Remcho.
``The police are losing their image as
protectors of the peace through their over-
zealous and often illegal activity,'' he
continued.
The suit asks the court to award
Ferlinghetti the legal costs incurred
during his arrest and $10,000 in
compensatory damages.
with his ballads while Salz and Dupree treat. Rights handbooks now available
us with country music sounds. Rock and
roll is included with the contribution of 25
lbs. of Change, which is a group - not the
result of a good night's playing on the
streets. Finally, Jamel Chisholm and One
Mind meld saxophone sounds into the
blues.
The street musicians have donated their
- talents to the benefit of the ACLU so that
other people's rights will be protected in
the future. As a result of their generosity,
and the hard work of Rita and her
volunteers, we can look forward to
continued spontaneity and variety on the
street of San Francisco. And who doesn't
benefit from that? -
Handbooks on the rights of servicemen,
teachers, prisoners and mental patients
are now available from the ACLU.
The two most recent ACLU
handbooks, The Rights of Prisoners, by
David Rudovsky, and The Rights of
Mental Patients, by Loren Seigal and
Bruce Ennis, tell inmates about their
rights to communicate with each other
and with persons outside the institutions
`and to advocate their opinions.
In question and answer format, they
explain rights to receive humane
treatment and privacy, to be free from .
arbitrary discipline and what inmates can
do if their rights have been abridged.
The handbooks for prisoners, teachers
and servicemen sell for 95c and the 336-
page book for mental patients is $1.25.
These may be obtained by sending a check.
for the amount to ACLU-NC, 593
Market Street, San Francisco, CA 94105.
Handbooks for women, students,
defendants and the very poor will be in
print sometime this summer.
Advance Sale Prices Now Available
: fo ACLU members and friends at great savings. . .
The SAN FRANCISCAN STREET
MUSICIANS ioe the ACLU relay
The street musicians and an army of volunteers have all devoted their talents
and hard work to produce this album for the enjoyment of listeners and the
benefit of the ACLU. A limited advance edition is now available at reduced prices
before release to retailers. Order yours now and save $2.00
Send $3.00 (plus 50c mailing and handling)
to:
ACLU-NC Record Sales
593 Market Street, Suite 227
San Francisco, Ca. 94105
amount of .............
Name
Address
State
Advance Sales Order Blank
Please send me ...... copies of the `Sounds of the San F i ,
se Senc rancisco Street
Musicians" at $3.50 each. Enclosed is a check or money order in the
_ Please allow 6 weeks for delivery.
LEGISLATIVE, LETTERS
7
Assembly Committee to consider death penalty
By JOSEPH REMCHO,
Legislative Representative
The tragic death of Robert Crown, Chairman of the
Assembly Criminal Justice Committee and a long time
opponent of the death penalty, was a blow to all those who
knew him. He was a staunch supporter of civil liberties
and his reasoned voice will be sorely missed in the
legislature. His death may result in further tragedies,
however, if legislation to re-instate the death penalty in
California is now able to pass the legislature.
On May 31, 1973 Robert Moretti, Speaker of the
Assembly, announced that Alan Sieroty (D-L.A.), one of
the most consistent and able supporters of civil liberties in
the legislature, would take Robert Crown's place as
Chairman of the Criminal Justice Committee. His
appointment, after many years of service as a member of
the committee, is to be applauded by those who believe in
a fair and humane system of criminal justice. Sieroty has
been a consistent opponent of the death penalty.
Moretti's appointment of a new committee member to
fill the position vacated by Crown's death and Sieroty's
elevation to chairman, however, raises serious questions
about the re-institution of the death penalty. The new
member of the seven-man committee is freshman
Assemblyman Julian Dixon (D-L.A.), of the 63rd
Assembly District in Watts. Dixon has stated that he is
generally opposed to the death penalty, but that he will
6
keep an ``open mind'' on the subject. There are strong
indications that he might be willing to vote for a limited
death penalty bill which would apply to the murder of
peace officers or prison guards. The committee now
stands at seven persons. Three proponents of the death
penalty, three opponents, and Assemblyman Dixon with
the swing vote. Four ``yes'' votes are required to get a
death penalty bill to the floor.
Hearings have now been set before the Assembly
Criminal Justice Committee on Wednesday, June 6,
1973. Because of Dixon's recent appointment and the
large number of witnesses who will undoubtedly ask to be
heard it is entirely possible that the hearings will be
continued to another date and that no vote will in fact
have been taken by the time you read this. It is vitally
important, therefore, that ACLU members send
telegrams if possible or at least letters to Assemblyman
Dixon urging him to hold firm and not to permit a death
penalty bill to get to the Assembly floor.
If a death penalty bill does get to the floor it is clear that
it will pass and be signed by the governor. Dixon's vote is
critical and action by ACLU members to influence that
vote is equally critical. I urge you to contact him as early
as possible and urge him to vote ``No'' on any death
penalty legislation. All of the available information
indicates that the death penalty is mot a deterrent to -
crime. In fact, statistics show an increased level of violent
crime when executions take place. Society is far better
served by lifetime incarceration than by execution.
Even in terms of financial cost (surely a minimal
consideration when life is at stake) executions cost more
than life imprisonment because of the high cost of legal
procedures which must be exhausted before an execution :
can take place. Further, the death penalty has always
fallen disproportionately on minority groups, the poor
and the disadvantaged. If Assemblyman Dixon votes to
permit the death penalty in this State, his vote, like the
death penalty itself, will be irrevocable and irreparable.
Tell Mr. Dixon not to do it.
Be SSN IES UE
Just before this article went to press, Assemblyman
John Miller (D-Berkeley) announced his resignation from
the Assembly Criminal Justice Committee. Miller, a
staunch civil libertarian and defender of the rights of
minority groups, had been vice-chairman of the
committee for six years. He was adamently opposed to the
death penalty. He brought not. only insight and a
determined humanity to the committee but also a wealth
of experience in dealing with repeated attempts by so-
called conservatives to undercut civil liberties. No
successor has yet been named. It becomes all the more
important to reach Assemblyman Dixon and to ask his
`*No'' vote.
`Letters to the Editor:
`New Policies Applauded
--Dear Editor, : :
The April newsletter was great. The
article on your Affirmative Action policy
contained much constructive information.
I work for a major airline who is
attempting to carry out an _ effective
Affirmative Action program but there has
been much resistance from many
employees. It is good to have such sound
facts and arguments to counteract the
criticism.
Also I am glad to see you take such a
strong stand on the airport security
procedures. Typical of the personal
harassment carried to an extreme was my
experience at the Ontario International
Airport on March 31.1 was a passenger
on Western flight 328 going to San
Francisco. I am a well groomed mature
business woman who has traveled alot.
My purse and carryall were subjected to a
minute and thorough scrutiny by two
female security agents. My wallet was
opened and credit cars inspected. One was
just about to pull open two 4 ounce
commercially packed tea packages when I
protested. I was told all packages had to be
opened. I was visably upset and protested
again when the man in charge came over
and said only "*hard'' packages had to be
- opened. If someone less verbal or more
timid than I had been there the tea would
have been spilled all over the floor and
rendered useless for what purpose? A flat
soft cloth jewelry case was opened and
they even opened my tooth brush
container in my cosmetic bag. Both were
_ small enough and light weight enough
that the presence of a weapon inside would
have been impossible.
With the scare tactics the government
and the air lines use to assure continuation
of thee security checks I doubt whether
they will be eliminated but I do admire
your strong stand against them.
JEANETTE ANN PAGE
Corporal -
Punishment
Dear Editor:
Please forward this letter to whomever
might make best use of it. Having just read
the article on the class action suit to
prohibit corporal punishment in California
public schools, I am delighted that ACLU
has undertaken this project. When I first
moved to California in 1968, I was
alarmed to discover that such was the case
in California.
Both the inhumanity of corporal
punishment and its irrelevancy to
anything having to do with learning and
education make it a real block to the
growth of both our schools and teachers as
well as to our children. I think it is
especially unfortunate that those children
who most frequently experience the use of
corporal punishment by ``educators'' are
those who have already suffered setbacks
(social and otherwise) as members of
oppressed minority groups. I am with you
all the way.
If you have need of petitions to be
signed, etc., please contact me. I will be
delighted to help further the demise of
corporal punishment in our schools.
Thank you.
FRED KEIP
Airport Search Policy Opposed
Dear Editor:
I write in support of the position of Neil
F. Horton in his Letters to the Editor in
the April issue. I, frankly, feel that the
Board should reconsider its position with
respect to searches, and especially
magnetometer searches, of those boarding
aircraft. I must take issue with Mr.
Amsterdam's comment reported
elsewhere in that edition that simply
because society has not seen fit to ban
"Saturday night specials'' or cars that are
made to go 200 miles an hour justifies
failing to do at least some cursory search of
those entering aircraft. Perhaps the
nonsequitur contained in Mr.
Amsterdam's comments is apparent only
to me.
I further admit that it is entirely possible
that my feeling with respect to searches at
airports may be due to the paranoia on my
part (which results in my feeling relieved
when I am searched because I know that
everybody on the airplane with me has
been searched also). However, it occurs to |
me that the infringement on personal
privacy of an airport search is a small price
to pay to prevent a mentally unstable
individual from having the lives of
hundreds of other people in his hands. I
admit that, given the present proclivities
`of government, one grants the "`powers
that be'' perogatives in these areas only
most reluctantly. e
Apparently the Board perceives that
failure to oppose searches in this area will
open floodgates to the increasing use of the
search as a weapon of repression in this
country. However, if recollection serves,
some of the worse decisions the high
courts of this country have ever handed -
down have been based on this same
floodgate theory.
Perhaps I am merely subject to- the
``seneral hysteria'? discussed by Mr.
Marson (for whom I have the highest
personal and professional regard).
However, it appears to me that banning
magnetometer searchs simply presents an
unprecedented opportunity for the
authorities to conduct personal searches
either on those they deem to be dangerous
or purely for the joy of rousting someone
whose appearance they don't like.
The magnetometer would appear to
offer a solution which minimizes the
government's intrusion into the privacy of
the individual and reduces discretionary
searches, while at the same time offering
increased safety for those boarding the
nation's aircraft.
_ JOHN D. BARR
Soldiers freed
after `disloyalty' y
convictions
United States District Court in the
District of Columbia overturned `the
convictions of two California men last
month who had been convicted by Army
Courts Martial in 1969 for circulating
leaflets against the Vietnam war.
Daniel Amick and Kenneth Stolte, who
were both privates in the Army stationed
`at Fort Ord, authored the leaflet which
charged that ``peace can only be obtained -
through peaceful means'? and "`the
greatest contribution America can make
toward world peace is to become a peaceful
nation."' They continued, ``We are tired
of all the lies about war, the false ideals,
the empty reasoning. We see the reality of
war; it is a pointless, meaningless and
tragic battle between two differing factions
of human beings.''
After distributing their leaflet on the
base, Stolte and Amick were charged with
disloyalty and conspiracy in violation of
the Uniform Code of Military Justice. At
their courts martial, after motions to
dismiss. the charges on constitutional
grounds were denied, both men entered
pleas of not guilty. They were found guilty
-of all charges and sentenced to
dishonorable discharges, forfeit of all pay,
reduction in rank and three years of hard
labor. From May, 1968 until September,
1969, when they were paroled and while
- they appealed their convictions, tne two
were confined at Fort Leavenworth,
Kansas.
In the initial proceedings, Monterey
Chapter attorney Francis Heisler
`represented Stolte and Amick and
eventually both ACLU-NC Foundation
and the National Foundation joined the
case. All appeals through the military
courts failed to overturn the convictions.
Finally, a three-judge panel in the
District Court found that Stolte and -
Amick's First and Fifth Amendment
rights had been violated and that their
convictions were unconstitutional. Their
records have been cleared and they will
receive their back pay but nothing will
repay them for their time behind bars and
the destruction to their lives which they
have suffered.
so
=e
on
The Chapter will have an all-day picnic,
masquerading as the Mid-Year General
Membership Meeting, at the Lafayette
Reservoir July 7th. If you hate meetings,
this is your chance to meet the local
ACLU representatives painlessly. Picnic
space is reserved and will be available from
10 a.m. on. Organized activities begin at 2
p.m. and will continue until dusk with
games for children, races, random revelry
and dinner on the grounds. The election of
new board officers will figure as briefly as
possible in the proceedings.
Bring your own lunch with a little extra
tucked in - the idea is a casual potluck.
Pop, beer and wine will be available,
donations gleefully accepted.
Oakland
The Board of Directors of the Oakland
Chapter meet the third Wednesday of
every month in the community meeting
room of the Sumitoma Bank, at 8:00 p.m.
The Bank is located on the corner of
Franklin and 20th Streets in Downtown
Oakland. Drive into the Bank's parking
lot and enter on Franklin. The Board
meetings are open, and any interested
member is invited to attend.
The Oakland Chapter needs several
more volunteer lawyers, to back up other
Chapter Conference
Cont. from p.1
volunteers `who handle incoming phone
calls from citizens who may have
-experienced civil liberties violations.
Contact Charles Pezzotti at 433-2750.
Other activities of the Oakland Chapter
are a Prisoners' Rights Committee, Dave
Riemer Chairman, and an Affirmative
Action Committee, Mike Coppersmith
Chairman with Ron Chafles. Another
Committee observes the Citizens for Law
and Order (CLO) group.
Mid - Peninsula
The Chapter has been studing a variety
of discriminatory practices in schools and
industry and is prepred to challenge them.
They are especially interested in high
school requirements which force girls to
take home economics classes and boys to
take industrial arts courses. Also, they are
seeking to end practices which do not
allow high school girls to play on tennis
and golf teams.
Berkeley-Albany
The Chapter has organized a student
committee of the ACLU on the U.C.
Berkeley campus. Ron Sipherd, formerly
the chairman of the S.F. Chapter and now
a law student at U.C., is the chairman. All
students, faculty and staff are invited to
join and help plan a 1973-4 program.
Phone Michael Rappaport at 642-3634.
The Chapter is also looking for two
volunteers. One is needed to take minutes
at the Board meetings which convene at 8
p.m. on the third Monday of each month.
The other is needed to be the Chapter's
observer at the Berkeley City Council.
The Council meets every Tuesday evening
at 7:30. Interested persons should call
548-1322.
Monterey
_ The Chapter has voted to intervene in
the case. of Army Sergeant Conrad
Rondeau who is stationed at Fort Ord. He
was placed in `the stockade after he
expressed his opinion on a local television
program that amnesty should be granted
to draft resisters. When it appeared that he
might be exonerated by a general court
martial, the Army dropped all charges and
released him from the stockade. A
disciplinary reprimand was issued to him,
however, and the Chapter will help him in
his efforts to have it removed from his
files.
Sonoma
The annual Picnic sponsored by the
Sonoma County Chapter will be held at
noon Sunday, July 8, at the Jack Warnick
Apple Orchard at 10650 Green Valley
Rd., northwest of Sebastopol.
The event includes a barbecue - at
CHAPTERS
reasonable cost, according to chairman -
Mel Hildreth - and art auction, with
items donated by leading Bay Area artists.
It's the major fund-raising event for the
chapter each year.
Efforts are also being made to arrange
for a guest speaker and entertainment.
Bay Area ACLU members are urged to
join the Sonoma County group for a ``day
in the country.'' Kids are welcome, with
swimming for the youngsters and a
lifeguard on duty. . /
People coming from the Bay Area can
reach the picnic site by going north on
Hwy. 101 to the Russian River turnoff
near Cotati. That should put you on the |
Gravenstein Hwy., also known as Hwy.
12. Gravenstein Hwy. should be followed
through Sebastopol or phone the Warnick
residence at 823-4346.
For other information on the picnic, -
contact Hildreth at 528-2375 or Lee
Torliatt at 545-7507.
At its May board meeting, Sonoma
County Chapter agreed to an effort to set
up numerous working committees and
seek greater involvement of the general
membership in these programs. Chapter
members will be surveyed on their interest
in working on such committees as
prisoner rights, community awareness,
watchdog, women's rights, and
membership.
People with ACLU-related complaints
or seeking information about the Sonoma
County Chapter may call Lee Torliatt
545-7507, Jack Rudinow, 545-0748, or
Jack Warnick, 823-4346, during the
summer months.
S.F. Chapter Meeting discusses
dangers of data collection
been completely neutralized and that the ACLU need not
remain in a defensive posture.
**Significant success is within our grasp,'' he believes,
"if the ACLU and Congress take advantage of the void in
Administration policy and take the impetus.'' He said we
have a chance to repeal the draft and restore legal aid as
well as influence a great many people who have had their
attitudes shaken by the "`moral bankruptcy of the anti-
civil libertarian policies of the past five years.''
In the final day of the Conference, Legislative
Representative Joseph Remcho discussed the major areas
of civil liberties activity in Sacramento. He explained that
the most pressing issue is a series of death penalty bills
before the Assembly Criminal Justice Committee and the
importance of ACLU members writing the members of
that committee to express their opposition to
- reinstatement of capital punishment.
Following Remcho's remarks, the entire group heard
reports from the various workshops that met the previous
day and then discussed the recommendations and ideas
that came out of the workshops. One major area of
concern growing out of the discussion was that the ACLU
should focus as much of its attention as possible on the
rights of prisoners, and specifically, the overwhelming'
civil liberties problems occurring in County jails. Many
other issues and problems remained unresolved at the end
of the Conference, but the general feeling was that a start
had been made and everyone made a resolution to
continue trying for the coming year.
On May 20, the Chapter sponsored a forum on ``The
Effects of Data Collection on the Right to Privacy.'' The
discussion, moderated by Legal Director Charles Marson,
included panelists Robert Fabian, General Counsel for the
Bank of America, and president-elect of the San Francisco
Bar Association; Lance Hoffman, professor of electrical
engineering and computer science at UC Berkeley; and
Captain Ralph Schillinger, of the Berkeley Police
Department. The meeting was another in a series of
educational programs sponsored by the Chapter.
All of the participants agreed that the collection of data
is a fact of life in the fields of law enforcement and
commercial credit. They also agreed that the most serious
problem with data collection is protecting access to the
confidential information once it has been collected.
Marson pointed out that the main reason proposals for a
National Data Bank were defeated was that there would
be no means of protecting the privacy of individuals who
are filed in the computers.
Fabian emphasized that there are several legitimate
conflicts of interest posed by data collection, such as the
individual's right to privacy, the public's right to know
and the government's right to function. For both personal
and business reasons, he said, ``we want our private
affairs to remain that way; but, at the same time, the
government needs to know certain information about us
in order to function in the fields of tax collection and
criminal law enforcement.''
Next Fall, the U.S. Supreme Court will decide a case
brought by ACLU-NC which seeks veterans' benefits for
conscientious objectors who served in alternative duty.
Volunteer attorney Jack Petranker is handling the case
which could result in a landmark decision granting equal
benefits for CO's.
Henry Hernandez and Thomas Wolf were classified as
conscientious objectors by their local draft boards and
performed civilian work "`contributing to the national
health, safety and interest'' for two years. Hernandez
worked at Goodwill Industries and Notre Dame Hospital
while Wolf served as an orderly at Cowell Memorial
Hospital. Both men applied for veterans' educational
assistance after their two-year service and were denied by
the Veterans' Administration.
Supreme Court to consider CO benefits
Under the Veterans' Educational Assistance Act,
benefits may only be granted to those who have performed
two years of "`active duty'' in the armed services. The
ACLU charges that Hernandez and Wolf are being denied
the "`equal protection of the law'' guaranteed under the
due process clause of the Fifth Amendment, and that
since they were classified CO's on the basis of their
religious beliefs, refusal of benefits abridges their freedom
of religion as guaranteed by the First Amendment.
The Supreme Court announced that it would rule on
the case last month. Oral argument will probably be heard
next October. If the suit succeeds, veterans' benefits will
be available to all men who have completed alternative
service in lieu of military duty.
The Bank Secrecy Act was originally enacted as a
means of preventing tax avoidance and tracing funds into
Swiss banks, but bank records have been used by the
government for purposes other than originally intended.
In recent times, White House employees identified
Daniel Ellsberg's psychiatrist by looking up Ellsberg's
cancelled checks. Similarly, the names of members of the
Republican Party in Arkansas were obtained from bank
records, and the membership of the National Peace
Action Committee was ascertained by a Congressional
investigating committee.
Hoffman spoke of the vast growth of computer use in
the federal government. He pointed out that in 1950, th
federal government had only 2 computers, while in 1970
over 5,000 were in use. He too stressed that all data
collection need not be bad. For example, the Migrant
Student file of 300,000 farm workers' children,
maintained by the Department of Health, Education and
Welfare, was recently used to locate a child who was
diagnosed as having tuberculosis after he left the place of
his medical examination.
On the other hand, Hoffman explained that any data
file can become a personal dossier as indicated by the Civil |
Disturbance file in the Department of Justice which
contains personal information from other data sources on
some 13,000 people, many of whom have never
committed any crime.
Captain Schillinger said the police are concerned about
the privacy of individuals also but that in a mobile and
transient society, law enforcement agencies must share
their criminal information across jurisdictional
boundaries. He pointed out that the Berkeley Police
Department does have internal regulations against
unauthorized and improper disclosures.
He described the "``Miracode'' system which
microfilms, records and sorts fingerprints. The
Department has over 200,000 fingerprints on file but
only the prints of convicted persons are put into
Miracode. Juvenile prints are not fed into Miracode
either. Schillinger claimed these restrictions on Miracode
insure that innocent persons do not have their
fingerprints available to other law enforcement agencies.
In conclusion, Marson observed that data collection
will remain a threat to the privacy and civil liberties of all
citizens until foolproof methods are devised for protecting
improper disclosures of information about individuals.