CONTINGENCY PLANNING FOR THE
ADMINISTRATION OF JUSTICE DURING
CIVIL DISORDER AND MASS ARREST
Harvey George Friedman*
The civil disorders which have plagued the United States for the last
few years have caused a breakdown of the criminal justice system' in
nearly every community affected. These breakdowns have been well
documented.' The National Advisory Commission on Civil Disorders
has observed that: "The quality of justice which the courts dispense in
times of civil crisis is one of the indices of the capacity of a democratic
system to survive."3 In this light, the demonstrated failure of the.
criminal justice system to dispense justice during disorder' is cause for
grave concern.
Thus far little has been done in the nation to reverse this trend. What is
required is immediate action to remedy a situation in which the great
majority of snipers, murderers and looters go unpunished5 and
constitutional liberties are abridged.'
Individuals arrested in riot-
connected offenses have no less a right to the protection guaranteed by
* Member of the Florida Bar. Staff Attorney, Lawyers' Committee for Civil Rights Under
Law. Consultant, National Com'n on the Causes and Prevention of Violence: Task Force on Law
and Law Enforcement.
1. A criminal justice system includes all those agencies whose operations are specifically
triggered by the arrest of an individual.
2. REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS, Ch. 13 (1968) is
entirely devoted to a discussion of the breakdown in criminal justice during disorder; its causes and
remedies. Reports on the criminal justice system during disorder have been issued by a number of
cities, including Chicago, Washington, D. C., and Baltimore.
3. Id. at 183.
4. See generally, Id., ch. 13. See also sources cited in footnote 8, infra.
5. Despite the large number of arrests, there were few successful prosecutions for serious crimes
committed during the riot period: "In Detroit, 26 persons were charged with assault with intent to
commit murder (those alleged to be snipers). Twenty-three of those charges were subsequently
dismissed. As of September 30, 1967 one of seven homicide arrests had resulted in convictions; two
were still pending. Of 253 assault arrests, only I I convictions were produced; 58 were still pending.
Twenty-one out of 34 arson arrests, and 22 out of 28 inciting to riot arrests had been dropped by the
prosecution." Id. at 484.
6. Innocent spectators were arrested in dragnet operations: "First the technique of making mass
arrests for serious offenses was sometimes used to clear the streets. Those arrested often included
innocent spectators and minor violators with major offenders."
KERNER COMMISSION REPORT
184.
".. . the arrestees were held in underground police garages for several days, many without
adequate food or water. Others were held over 24 hours inside city buses. Adults of both sexes were
sometimes locked up together." Id. at 185.
THE AMERICAN UNIVERSITY LA W RE IIEW
[Vol. 18
the Constitution than persons accused of committing crime on any
normal day.
The failure of a criminal justice system to operate properly during a
civil disorder has been ascribed by the Kerner Commission7 and other
independent groups' to serious deficiencies in the system during normal
times.9 Certainly the quality of the normal criminal justice system in the
context of today's America is nothing less than a national scandal. Few
communities have bothered to adopt even the most rudimentary reforms.
Many of our criminal justice systems are mockeries of the justice which
they pretend to hand down. There is no need to survey the criminal
justice system in times of grave crisis and civil disorder to witness these
shortcomings. One commentator has observed: "I think it is no
exaggeration to say that criminal justice is administered under
emergency conditions every day and has been for years."'" In the course
of many civil disorders the sheer number of individuals to be processed
through the system is sufficient to compound these faults and to cause
the system to falter and finally break down.
It is inaccurate, however, to attribute the breakdown of the criminal
justice system in the face of a mass arrest situation solely to the
inadequacies of the system in its day-to-day operations. Criminal justice
problems presented by civil disorder are not only quantitatively different
but are also qualitatively different." Reform of the normal system for
the administration of criminal justice as has been suggested by the
7. This is the shortened name of the National Advisory Connission on Civil Disorders,
hereinafter referred to as the KERNER COMMISSION. Governor Otto Kerner of Illinois was appointed
by President Johnson as Chairman of the Commission.
8. Chicago Riot Study Committee (1968); District of Columbia Committee on the
Administration of Justice Under Emergency Conditions (1968); and the Baltimore Committee on
the Administration of Justice Under Emergency Conditions (1968); the American Bar Association,
Section of Criminal Law publication entitled Bar Leadership and Civil Disorders (1968).
9. The President's Commission on Law Enforcement and Administration of Justice ". . . found
overwhelming evidence of institutional shortcomings in almost every part of the United States. A
survey of the lower court operations of a number of large American cities found cramped and noisy
courtrooms, undignified and perfunctory procedures, badly trained personnel overworked by
enormous case loads. In short, the Commission found assembly line justice." THE CHALLENGE OF
CRIME IN A FREE SYSTEM
at Vill (1967), a report by the President's Commission on Law
Enforcement and Administration of Justice.
.10. Remarks of Harry Subin, Associate Director, Vera Institute of Justice, before the Lawyer's
Committee for Civil Rights under Law-American Bar Association, May 20, 1968, Washington,
D.C.
II. In normal times a centralized arrest record system may not be considered essential but during
a large scale disorder it is vital to prevent persons from getting lost in the system; to inform families
of their whereabouts and to assure that assigned counsel will be able to locate his client. See also
KERNER COMMISSION supra note 2, at 184.
1968]
CONTINGENC Y PLA.VNIN'G
Kerner Commission, while certainly vital, is nevertheless insufficient to
meet the demands presented by a civil disorder situation. 2 Together with
reform, new techniques must be devised to cope with the problems
caused by civil disorder and mass arrest. 3 Evaluation in the aftermath of
the Kerner Commission report strongly indicates that even a model
criminal justice system, adequately designed for operation under normal
conditions, may well falter and break down during a civil disorder.
Study of this phenomenon has demonstrated the need for special
procedures in the administration of justice to cope with the peculiar
pr6blems which arise out of such emergency conditions. These
procedures should be part of a specialized system of criminal justice
developed by the community and designed for operation during any civil
disorder. By contingency planning for the administration of justice
during civil disorder and mass arrest a community can develop a
specialized system which will meet its particular needs during a disorder.
Such a system contemplates the development of specialized techniques to
insure the successful prosecution of persons guilty of lawless conduct. At
the same time, such pre-planning would provide a mechanism to
compensate for the inadequate legal remedy which exists during civil
disorder to insure the protection of individual rights.' The Kerner
Commission has stated that such planning must be undertaken
immediately. 5
12. Supra, note 2 at 183, noting the range of necessary reforms.
13. E.g., short arrest form; Polaroid pictures for i.d. purposes; summons in lieu or after arrest;
etc. A prime example of one of the requirements of a civil disorder is the necessity to return the
police officer to the riot-affected area as soon as possible. The New York Committee has enacted ch.
1077 of the Laws of 1968 to help insure this result:
This act adds § 150-b to the Code of Criminal Procedure to permit a police officer, during a
state of emergency, in cases in which he is the complainant, to affirm in an affidvait under
penalty of perjury the relevant facts and charges upon which an arrest is based. Such an
affidavit will be in lieu of the appearance of the arresting officer at the arraignment of the
defendant. This will enable the police officer to return to the scene of the disturbance with a
minimum of delay." Report of the Mayor's Committee on the Administration of Justice
Under Emergency Conditions, New York City, August 2, 1968.
14. On a normal day the pace of the criminal justice system is such that there is generally time to
protect or to restore individual Constitutional liberties which may otherwise be lost. During
disorder, post riot devices might be considered, e.g., the enactment of legislation'as has been
suggested by the Baltimore Committee report, infra note 43, at 61, expunging the record of a simple
curfew violator after a two-year period. This takes cognizance of the fact that mass arrests of
innocent spectators are not uncommon in disorder. See note 6. Stich persons; not having adequate
legal remedy available during disorder, should have some remedy afterwards, at least insofar as
their arrest records are concerned.
15. Supra note2at 187, 194.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
An analysis of planning which has either taken place, is in progress, or
is anticipated, discloses that a number of elements are involved. A
contingency plan may be defined as (1) a plan, (2) which is coordinated,
(3) comprehensive in scope, (4) developed in advance of the contingency,
and (5) implemented. Many communities have as yet either failed or
have refused to recognize the essential elements of a contingency plan, as
well as the particular problems that can arise, and they have thereby been
stymied in their efforts to develop any plan. A notable exception is the
City of New York, which presents a model" contingency plan to which
other communities should look for guidance. Throughout the following
discussion of the essential elements of contingency planning, specific
reference will be made to the New York Plan,' 7 particularly as it
comparies with efforts in other communities."
There Must Be A Plan
It is essential that a plan be clearly differentiated from a study. Both
are usually presented as reports, but a study merely explains phenomena
without providing a program for action, while a plan constitutes a
detailed course of action. For example, in Chicago, Baltimore and the
District of Columbia, 9 detailed examinations of the systems for the
16. The New York city plan is mentioned only as "a possible exception" since the degree of
deployment and hence the degree of implementation of the plan is still an unknown factor. See
section on implementation, infra.
17. In March, 1968, Maybr John V. Lindsay appointed an ad hoc committee on the
Administration of Justice Under Emergency Conditions, in an effort to devise a plan of action for
the system of criminal justice should mass arrests take place in New York City. Similarly, the
judiciary formed themselves into a special judicial committee on civil disorders. The second
committee made up entirely of judges and not bound by outside administrative decisions, was an
effort to preserve the traditional independence of the judiciary. In practice, both committees
complemented each other though each submitted separate reports. (There is some disparity to be
noted between the two reports, particularly with regard to the number of persons who could be
processed-by the court and with regard to bail policy.) A written report containing the report of the
ad hoc committee as well as that of the judicial committee was delivered to the Mayor on August 2.
REPORT OF THE MAYOR'S COMMITTEE ON THE ADMINISTRATION OF JUSTICE UNDER EMERGENCY
CONDITIONS (Aug. 2, 1968).
18. This study will primarily draw upon work done in New York, Baltimore, Washington, D.C.,
and Chicago.
19. In Washington, the Attorney General, the Mayor-Commissioner, the Chief Judge of the
Court of General Sessions, and the Chief Judge of the Federal District Court, appointed a
committee chaired by Lloyd N. Cutler (chairman of the American Bar Association Section on
Individual Rights and Responsibilities, and Director of the President's Commission on Violence), to
conduct such a study. In Baltimore, the City Solicitor George L. Russell was appointed to chair a
committee. In Chicago the Mayor appointed Honorable Richard B. Austin, Judge of the United
States District Court of the Nothern District of Illinois, to chair a similar committee to examine
the same phenomena in that city.
1968]
CONTINGENCY PLANNING
administration of criminal justice under emergency conditions were
conducted following the chaos that erupted after the assassination of Dr.
Martin Luther King. 20 The various committees in these cities have
published reports which deal forthrightly with many of the important
issues, 2' but it is unlikely that any substantial portion of the suggestions
made in the reports has been incorporated into a coordinated plan of
action for future disorders. In fact, indications are that none of these
22
cities has developed a plan as described here.
B' contrast, the New York report is not merely a study of a
phenomenon 23 but is instead a plan of action already developed by the
officials responsible for administering criminal justice in New York
City. The planning committee developed certain procedures as the
planning progressed over a five-month period. For instance, the
committee was able to bring about changes in a number of laws so as to
insure the intermeshing of the whole plan, thereby causing the final
product to be a plan and not merely a study. The Committee report
describes in detail the manner in which the emergency system will
operate, barring unforseeable obstacles, as opposed to how it should
operate. 24 Reports emanating from Chicago, Baltimore and
Washington, however, present only a set of recommendations to their
20. In all three cities prior to the disorders of April, 1968 almost nothing had been done. For
instance, in the Nation's Capital, one post-riot study reveals: "Advance planning had been confined
to discussion, making plans that were not operational by the time of the riot, or the drawing of
isolated plans that did not really resolve the central problems of mass arrest and detention." R.
GOLDFARB, THE ADMINISTRATION OF JUSTICE IN WASHINGTON,
D.C.
DURING THE DISORDER OF
1968 (1968).
21. The District of Columbia appears to have sidestepped several issues. However, every
indication is that these questions will be answered in a final report to be issued by the committee
following the in-depth considerations of the Emergency Justice Project, a project specifically
designed to yield answers to some of the more perplexing problems involved in the administration of
justice during civil disorder. That project is concerned with five crucial pivot points in the criminal
justice system: arrest, detention, charging, bail, and adjudication and sentencing.
22. It is important to note that both Baltimore and Chicago have published final reports while
the District of Columbia report is merely considered interim. A further indepth study of the
application of discretion within the system for the administration of justice during the disorder in
the District of Columbia is now underway, and the committee which has produced the interim
report has been held intact, supra note 21. A supplementary study of emergency powers has also
recently been issued. It is hoped that the final report will constitute a plan as that term is defined
herein. Implementation of the D.C. and Baltimore reports as plans is discussed, infra.
23. As a matter of fact, New York had, at the time of the writing of the report, never experienced
a major mass arrest situation and there was, for this reason, no phenomena to study.
24. This is not to say that the New York City plan is Fully implemented. See section on
Implementation, infra.
APRIL,
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
respective appointing authorities,25 and as such these reports are not
plans.
The Plan Must Be Coordinated
An emergency justice plan requires a high degree of coordination in
order to operate effectively. Without adequate coordination the various
parts of the plan are unlikely to mesh during the emergency. Individual
parts of a system may operate properly, but these parts, being
interdependent, must be integrated for the total system to operate
effectively. Criminal justice systems, which are for the sake of
convenience compartmentalized, must be viewed as total entities, and
planning with regard to the system, particularly for its operation during
an emergency, must also be all encompassing.
The District of Columbia Interim Report specifically notes that there
was "inadequate coordination among the government agencies and
private groups which serve the District of Columbia's system of
justice. 2 6 The report futher states that, "[C]oordinated planning for any
future emergency is not actively proceeding. ' 27 Unfortunately, however,
coordinated planning does not seem to be proceeding, as the
recommendations 2 concerning coordination made in the report have
been specifically overruled, either by the agencies involved or by the
appointing authorities.29 Moreover, no new recommendations for overall
coordination during a future disorder appear to have been developed to
take the place of the recommendations that were rejected. Until such
recommendations are adopted, the District tf Columbia Interim Report
cannot be converted into a coordinated plan of action. The Chicago Riot
Study Committee also concluded that coordination is essential to a riot
plan,3" but Chicago has not developed such a plan.
25. No fault is charged here. The results stem from the mandate issued by the appointing
authorities. The mandate in Chicago, The District of Columbia and Baltimore was not for the
production of a plan, but for the production of a study. Responsibility now lies with the respective
appointing authorities to turn the study into a plan and then to see to its implementation.
26. INTERIM REPORT, DISTRICT OF COLUMBIA COMMITTEE ON THE ADMINISTRATION OF JUSTICE
UNDER EMERGENCY CONDITIONS at 101 (1968).
27. Id. at 102.
28. Id. Recommendations 72, 73 and 74 at 102-03.
29. DRAFT PROGRESS REPORT DEALING WITH IMPLEMENTATION OF THE INTERIM REPORT (1968)
prepared by the Corporation Counsel of the District of Columbia (unpublished).
30. "The Committee recommends that here as well as in the other categories under discussion a
plan be devised which details public defender participation under riot conditions. This plan should
be incorporated into a general plan covering all areas and distributed to all personnel who may
participate in riot control . . . lines of communication should be open between public defender's
1968]
CONTINGENCY PLA.V.ING
The New York City plan is a model in terms of coordination. The
plan specifically designates a "coordinating group" to "help insure the
effective participation of the many agencies that will be called upon to
function in the event of a civil disorder."' 3' The Committee has set out the
primary functions of the coordinating group as follows:
(1) to insure the necessary flow of information among the various agencies
involved, (2) to identify and remedy bottlenecks and other defects in the
administration of criminal justice from arrest to remand or release, (3) to
32
continuously check and oversee the execution of the entire operation .
In addition, the courts have established their own coordinating group, in
concert with the Mayor's Committee.33
The Plan Must be Comprehensive in Scope
A comprehensive plan is one which deals with all the aspects of the
criminal justice system that come into play during disorder. The
Chicago Riot Study Committee speaks of a ". . . total plan which
3' 4
includes all people who might participate in riot case administration.
Many of these aspects are markedly different from those which prevail in
normal times, and many areas which are of vital concern during a
disorder are not so important during normal times. For example, under
normal conditions it might not be necessary to plan for emergency social
services or a public information agency to advise as to the whereabouts
of arrested persons, but during a disorder such services are considered an
integral part of the emergency criminal justice plan.
The comprehensiveness of a particular plan depends upon the
comprehensiveness of the group charged with its development. The New
York Committee was able to formulate a totally comprehensive plan
because of the broad composition of its membership. Included on the
Mayor's Committee were representatives of the New York City Bar
Association, the Five County Bar Associations, the Harlem Lawyers
Association, the Bedford-Stuyvesant Lawyers, and the Puerto Rican Bar
Associations. The District Attorneys of each of the five counties in New
offices and other branches of the judicial system (magistrates, judges, state's attorneys, police,
detention center people as well as volunteer lawyers) in order to develop better overall coordination
in riot and non-riot situations." REPORT OF THE
HONORABLE RICHARD J. DALEY 100-01 (1968).
31. REPORT OF THE MAYOR'S COMMITTEE ON
EMERGENCY CONDITIONS, NEW YORK CITY
CHICAGO RIOT STUDY COMMITTEE TO THE
THE ADMINISTRATION OF JUSTICE UNDER
at 16 (1968).
32. Id. at 16.
33. Id.at 17-18.
34.
CHICAGO RIOT STUDY COMMITTEE REPORT, supra note
30, at 103.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
York City were also included, as well as representatives of the Vera
Institute of Justice, the Legal Aid Society, and the Community Action
for Legal Services. Finally, the Committee included the Commissioners
of Police, Corrections and Social Services, and the Director of the Office
of Probation." In contrast to the New York approach, many municipal
efforts, such as Chicago's court plan, 6 have operated in a kind of
vacuum, as if the related compartments of the criminal justice system
did not exist. The other cities have either failed to sense the need for a
comprehensive approach or else they have been frustrated in their
attempts to bring together all the groups in the community concerned
with the criminal justice system. For example, the local bar associations
may develop a very adroit plan for volunteer defense counsel. They may
find, however, that their independent action, no matter how wellintentioned, will be useless when the local police prohibit these lawyers
from entering the detention facilities or the court refuses to assign them
to represent defendants."
The Plan Must be Developed in Advance of the Contingency
Since planning of the sort required to develop specialized procedures
to cope with civil disorders is necessarily complex, it must be done in
advance of the disorder. 8 Instant planning during the emergency clearly
will not produce an orderly system. In addition, advanced planning is
necessary to combat the psychological problem that plagues an
emergency justice plan bred in the tumult of disorder. The psychology of
fear has in the past led to a failure to afford individuals the protections
guaranteed by the Constitution. Planning in an atmosphere of relative
calm makes it more likely that such protections will not be impaired in
the future. One of the persistent obstacles to advance planning is the
fear shared by many communities that advance planning may actually
foster riots. Thus particularly in communities which have not
experienced disorder, there is a great reluctance to plan in advance of
such a catastrophe.
The Kerner Commission has stressed the need not only for planning in
35.
MAYOR'S COMMITTEE ON ADMINISTRATION OF JUSTICE UNDER EMERGENCY CONDITIONS,
NEW YORK CITY, supra note 3 1, at 3.
36. General Order No. 18 in the Circuit Court of Cook County, Illinois, concerning proceedings
in mass arrests.
37. This has occurred in Dade County, Florida, during the Republican Convention held at
-Miami Beach.
38. Supra note 26 at 2.
1968]
CONTINGENCY PLANNING
advance but also for publicizing the plan beforehand.3 9 New York City
has developed its plan in advance4 ' and has given it wide publicity. While
the degree to which that plan is presently operative is unknown, 4' the
experience with the Columbia University disorders has indicated that at
least part of the plan was operational before the publication of the
42
report. This advance planning paid off.
Implementation is Essential
Implementation is a two-step process: (1) the development of a
written, detailed program of proposed action-a paper plan-followed
by (2) the effective mobilization of the physical machinery essential to
carry out that program-the deployment of the plan.
Implementation is, in a sense, a political process, requiring a mandate
from the political power structure to develop a plan, rather than a study.
Implementation demands that the power structure maintain a
continuing vigil to ensure deployment of the necessary manpower and
physical resources in accordance with the terms of the plan. The mere
delivery to the appointing authority of a set of suggestions, no matter
how well conceived, is insufficient to insure implementation. 43 As
noted," New York City has been recognized as the only community to
have taken the first step in developing a fully coordinated and
39. Supranote 2, at 189.
40. New York had not experienced a major disorder at the time the plan was developed.
41. See section on Implementation, infra.
42. In July after the plan was operational, but still not published-the student disorders at
Columbia University took place. Approximately 700 persons were arrested in one day and
processed under the plan. A number of insignificant problems did arise, yet overall, the arrestees
were processed in a matter of a few hours by utilizing a newly developed central-booking procedure.
The normal court docket-continued without disruption. Reliable evaluations indicate that without
such advance planning significant disruptions of the court calendar would have occurred. The
typical arrestee in the Columbia uprising was admittedly quite different from the arrestee in the
usual disorder. It may well develop, however, that the Columbia-type arrestee will be the prevalent
type in the future. In any event, all future contingency planning must take the Columbia experience
into consideration.
43. The last page of the Baltimore report is devoted to implementation and states as follows:
Many of the recommendations of this report requires immediate action. Other
recommendations urge planning and study of a particular subject, including drafting of
legislation. Many issues raised by this report require the study, investigation and elaboration
which time limits place upon preparation of this report did not allow. The committee therefore
urges that the Mayor appoint an individual who would be responsible for implementing the
report and carrying forward the planning and investigation pursuant to the recommendations
of the committee.
REPORT OF THE BALTIMORE COMMITTEE ON THE ADMINISTRATION OF JUSTICE UNDER EMERGENCY
87 (1968).
44. Supra note 16.
CONDITIONS
THE AMERICAN UNIVERSITY LA W REVIEW
comprehensive plan.
can be said to have
resources called for
currently the subject
Justice.
[
[Vol.
IS
It appears, however, that not even New York City
successfully deployed the manpower and physical
under the terms of its plan. Such deployment is
of a study being conducted by the Vera Institute of
In the District of Columbia and Baltimore, while coordinated and
comprehensive plans have not yet been developed, a number of useful
recommendations have been made in the reports submitted to the
respective appointing authorities. In both cities, studies similar to the
one being undertaken by the Vera Institute of Justice in New York are
required to determine the degree to which the various agencies concerned
with the administration of criminal justice under emergency conditions
have implemented those recommendations.45
The ultimate conclusion on this point is that no community in the
nation can unequivocally be said to have as yet implemented a
contingency plan for the administration of criminal justice under
emergency conditions.
How Should a Local Community Develop A Contingency Plan?
The mechanical process of developing the technical plan is fairly well
defined. The initial step is the appointment of a committee by the local
chief executive, 7 usually the mayor.4s Thus far, few mayors have moved
45. In Baltimore, on delivery of the report, the Mayor requested that a task force be formed to
implement the recommendations contained therein. The City Solicitor served as the chairman. The
reporting committee felt bound by the rather peculiar situation which existed in Maryland, wherein
the state has retained plenary responsibility for law enforcement and is in control of the Baltimore
city police. The City Solicitor reported to the Mayor, "it becomes manifest that the State being in
control of the administration of justice is likewise in control of implementation. It is a reality,
therefore, that the State should coordinate the effort" (Correspondence between George L. Ruseell,
Jr., City Solicitor and the HonorableThomas J. D'Alesandro, 1Il, July 26, 1968). Governor Agnew
agreed to accept the responsibility and directed the Maryland Commission on Law Enforcement
and Administration of Justice to establish a task force for the purpose of implementing the report.
46. Letters requesting information on emergency criminal justice planning have been sent to the
mayors of 65 cities which suffered major or serious civil disorders during the year 1967 as those
terms have been defined by the KERNER COMMISSION. Of that number some 30 have thus far
responded. Not one of the responding cities has clearly evidenced the implementation of an
emergency justice plan as defined here.
47. In Dade County, Florida, where there is some confusion as to who has the authority to do
what because of the "Metro" experiment, the mayors of the three major population areas acted in
concert as the appointing authorities. Note that in Dade County there are some 26 municipalities
each having a mayor.
48. It is certainly not an absolute rule that the mayor must appoint the committee. In Los
Angeles, for instance, extremely responsible action has been taken on the part of District Attorney
Evelle J. Younger in organizing a Planning Committee. While no reports are available at this time,
19681
CONTINGENCY PLA .,VING
with any spontaneity, either because they lack foresight or for fear of
political repercussions. 9 . Moreover, in many communities, the
established bar has not acted. In many instances where the mayor has
taken action, it has been the organized bar that has successfully spurred
him into action." Indeed, the Kerner Commission has emphasized the
special responsibility of lawyers for seeing that contingency planning
gets underway.5 '
The second phase of technical planning concerns the membership of
the planning committee, 2 and membership is, of course, critical. The
committee's task will be both to devise a plan based on the political and
legal realities of the local community53 and to assure its coordination,
comprehensiveness and implementation. Most bar associations wisely
present the chief executive with both the idea of planning and the
proposed committee membership. However, the committee must
maintain the semblance of being the mayor's committee, so as to insure
the utmost participation of the local agencies required to devise and
effectuate an emergency criminal justice plan.
The mandate of the committee must be clearly announced by the
appointing authority and must be limited to the production of a
the makeup of the committee and the method with which it is pursuing its work makes it highly
probable that the end result will be the production of a successful plan.
49. E.g. Chicago; though it is hard to pinpoint the reason.
50. This is not to say that where there is no plan the bar has not moved. Some local executives are
immovable, e.g., Chicago. Nor is this to say that where there is a plan the mayor would not have
moved without the bar, e.g., New York City.
51. The organized bars of our cities and states have a special responsibility in planning for the
administration of justice during a riot. Their responsibility does not stop with providing defense
counsel for rioters; they must assist the overloaded prosecutors as well. Their participation
cannot be confined to a small segment-the defense bar or legal aid lawyers; it must also include
the large law firms, the corporate counselors and those who are leaders in the local bar. Lawyers
must take the lead in showing the community that orderly justice is a priority item in any plan
for riot prevention and control. KERNER COMMISSION supra note 2, at 189.
52. Reality dictates that the black community must participate to the fullest extent possible in the
membership of the committee. Yet at the same time the committee cannot be permitted to turn into
another human relations counsel. Where this has occurred the goal of devising a plan has been
thwarted.
53. An example of a legal reality: In many communities, the use of an emergency judge in time of
civil disorder may require an amendment to the Municipal Charter or Code at the lower court level,
or even a State Constitutional Amendment at that or higher court levels.
An example of a political reality: Even where judges of a higher level court offer their services to
the community's lower court during a crisis, and have the legal right to do so, the lower court judges
may jealously guard against such an offer considering this infringement upon their jurisdiction. This
happened during the Detroit riot in 1967 where the judges of a higher court stood idly by after
offering their services to a lower court which was completely inundated and unable to handle the
caseload.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
technical plan of action together with the necessary underlying policies.
The mandate must exclude matters outside the committee's purview.
Such topics as police brutality or the underlying cause of riots,54 while
certainly worthy of study, are better left to other community groups.
The mandate should also set a time limit on the production of the report. In the District of Columbia, the time limit was thirty days for the
production of an interim report, and in Baltimore it was thirty days for
a final report. The New York City mandate was to issue its report "in
the shortest time." The New York report was also, of course, a plan,
whereas the other two were studies. It does not seem unreasonable to set
a three-month time limit on the production of a plan.
The task of the committee is momentous in view of the intricacy of the
criminal justice system. Since the plan will be comprehensive, each
element of the system requires review. The panel appointed by the mayor
is essentially a policy committee and will require the aid of a working
staff. In several cities attempts have been made to recruit staff workers
and with great success. In Baltimore, for instance, a telegram went out
from the mayor's office to a number of the major law firms in the city
requesting the presence of a senior partner at an emergency meeting to be
held at city hall one day later. Nearly every law firm contacted was
represented by either the senior partner or an appropriate substitute. At
this meeting the mayor emphasized the need for a volunteer staff and
asked the law firms to contribute "associate time" to the endeavor.
Recruits were also sought from local government offices. Over fifty
volunteer lawyers were recruited, without fee or publicity, to work parttime for a period of thirty days. The District of Columbia was able to
recruit staff volunteers without the aid of the mayor's office."
It appears that staff recruiting is most successful when the
contributing law firms are assured that their associates will not be
drafted for work beyond a thirty day mandate period. When a ninety day
period is contemplated for the production of a plan, it is advisable to
assure the firms that their associates will not have to serve beyond a
thirty day period.
54. In Dade County, the committee has voted to exceed the original mandate and to examine the
underlying causes of riots. There is now serious doubt that the committee will produce a technical
plan of action.
55. In Dade County, Florida, the law firms approached failed to provide manpower. It should
also be noted though that Dade County had not experienced a disorder at the time of the recruiting
while Washington and Baltimore had. The feeling of urgency in Washington and Baltimore was
certainly a factor.
1968]
CONTINGENCY PLANNING
In Baltimore, the City Solicitor was chairman of the policy
committee, and his office contributed the full-time services of an
attorney to serve as staff director. The Rouse Corporation contributed
the full-time services of one of its attorneys to act as deputy director. In
the District of Columbia, a part-time staff director was contributed by a
leading firm, and a full-time deputy director was contributed by the
chairman's firm. The staff director and his deputy coordinated the work
of the staff committee, thereby minimizing overlapping and maximizing
the comprehensiveness of the staff work.
New York City also utilized a policy committee approach, with staff
aides recruited directly from the agencies represented on the committee.
All work done by the policy committee was done by subcommittee
assignments. That is, the policy committee was broken down into
subcommittees to which both members of the policy committee and
members of the staff were assigned. In both Washington and Baltimore
the policy committee was not broken down but sat as a body to review
the reports of the staff subcommittees. In New York the policy committee met together as a whole only twice-once to set the goals of the
project and again to approve the final report and to make sure that all
parts of the plan meshed. Both the Washington-Baltimore and New
York techniques appear to be equally workable.
Three techniques should be noted for examining the criminal justice
system as it will operate in a mass arrest situation. First, the use of
hearings, either public or closed, is discouraged. This technique attracts
undue publicity, which can cause unnecessary dissension in the
community. The other techniques are encouraged and should be used in
combination. One technique is for the staff to actively seek out
information. The mayor's office will instruct the various agencies of city
government to cooperate with the committee in this effort to the fullest
extent. The second technique is for the policy committee to request
through the mayor's office that each agency involved in an integrated
criminal justice plan for committee consideration submit reports on their
experiences or preparation (or lack of preparation) in regard to a mass
arrest situation. 6 The latter two techniques utilized together should
enable the staff to get a clear understanding of the past operations, the
present preparedness and the future problems which a particular
criminal justice system may encounter during a civil disorder. A plan of
action will then be developed by the policy committee based on the
information gathered and examined.
56. In Atlanta only the latter technique has been employed. Thus far the reports submitted
appear haphazard.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
What Should be Included in a Contingency Plan?
The content of an emergency justice plan can be conveniently divided
into two aspects: one technical and the other policy. The development of
the technical content of an emergency justice plan presents a myriad of
possibilities," many more than are available for a normal plan." In a
speech59 before the American Bar Association and in his final report
concerning the Detroit riots, 0 Cyrus R. Vance6 identified a number of
areas in which contingency planning is essential:
I. Arrest and booking procedures
2. Adequate detention facilities
3. Prompt arraignment
4. Providing additional prosecutors, defense counsel, and judges
5. Setting reasonable bail policy
6. Development of a method whereby those in supervisory positions may
keep themselves informed and in a position to minimize unwise law
enforcement practices
Experience has demonstrated, however, that the subject matter of a
plan should be even broader and should include certain areas beyond
those suggested by either Mr. Vance or the New York committee. 2
57. The products of experimentation and the development of innovative techniques should, in
many instances, accrue back to the benefit of the normal criminal justice system. As an example, the
community which is prepared to employ the use of a summons as suggested by the KERNER
COMMISSION may find that such a technique can be utilized in its everyday procedures and thereby
provide a needed reform. (KERNER COMMISSION, supra, note 6 at 189).
58. As noted, a variety of new techniques will have to be developed. E.g., emergency and social
services not required in normal times will have to be keyed into the plan.
59. Remarks of Honorable Cyrus R. Vance before the National Conference of Bar Presidents,
Palmer House, Chicago, Feb. 17, 1968.
60. Final Report of Cyrus R. Vance, Special Assistant to the Secretary of Defense, concerning
the Detroit riots of July 23 through August 2, 1967.
61. Former Deputy Secretary of Defense and currently this nation's Deputy Peace Negotiator in
Paris, Mr. Vance was a special emissary for President Johnson to Detroit during the disorders there
in 1967. He served in a similar capacity to Mayor-Commissioner Walter Washington during the
disorders in the District of Columbia following the death of Martin Luther King, Jr.
62. The New York Committee considered that a comprehensive plan should include:
I. Review of applicable statutes,
2. Legal and non-legal manpower mobilization,
3. Arrest, central booking and screening procedures,
4. Bail procedures and review,
5. Detention and transportation,
6. Community relations,
7. Public information and education,
8. Emergency and social services
REPORT OF THE MAYOR'S COMMITTEE ON THE ADMINISTRATION OF JUSTICE UNDER EMERGENCY
CONDITIONS,
supra, note 31 at 4.
1968]
CONTINGENCY PLANNING
Work completed thus far by local committees suggests that the task of
a planning committee be broken down as outlined below, including or
63
excluding material according to the needs of the particular system:
1. Existence and Exercise of Emergency Power."
Legislation clarifying emergency powers
Flexible and fair enforcement of curfew
Use of citations and summonses for curfew violations
Equalization of curfew collateral with that for disorderly conduct
2. Arrest and Booking Procedure.
Forms to be used
Prosecutors and defense counsel
Handling of personal property (for return or confiscation)
Access to telephones (or volunteers to make calls)
Handling of juveniles
Physical injuries requiring medical attention
Exercise of police discretion
Advising of rights
Information available to inquirers
Current inventory of prisoners
Capacity of detention facilities
Advisability of central booking
3. Women and Juveniles.
Arrangements by Welfare Department to care for affected children
Designation of alternative detention facilities for women
Advance warning for women's detention center of number arrested
Greater use of citations for women offenders
Detention hearings for juveniles in receiving homes if necessary
Designation of alternative facilities for temporary detention of
juveniles
Availability of volunteer lawyers for juvenile court
Expedited hearings and trials for juveniles
Placement of youth division officers in all or key precincts
Transportation of juveniles by police to their parents or guardians
63. This draws heavily on the reports issued in the District of Columbia and in Baltimore.
64. A supplemental report by the DISTRICT
OF COLUMBIA COMMITTEE ON THE ADMINISTRATION
has
recently been published. The development of emergency executive powers which permit the calling of
a state of emergency is vital in all communities. Well drawn laws promulgated and enacted in
advance of riot emergencies may well mean the difference between civil law and martial law. It is
OF JUSTICE UNDER EMERGENCY CONDITIONS: EXISTENCE AND EXERCISE OF EMERGENCY POWER
essential that sufficient legal tools be provided State and Municipal Executives to deal adequately
and fairly with riot behavior. Unless this is done, we run the risk that that civil legal process will be
insufficient to deal with the situation-The Result being that martial law is declared. There is a
dangerous no-man's land between civil law and martial law.
THE AMERICAN UNIVERSITY LA W REVIEW
4. Transportationand Interim Detention.
Inventory of transportation facilities
Inventory of detention facilities
Current inventory and location of prisoners (age, sex, health, race)
Access to telephone
5. The ChargingProcess.
Flow of police forms
Presence of officer
Place of prosecutor review of charges
Availability of criminal records
Development of facts for bail recommendations
Sources of additional prosecutors
Repeat offender procedures
6. Providing Counsel-LegalAid and Private.
Access to private counsel
Use of out-of-state attorneys
Use of law students
Role of legal aid, legal service, public defender, etc.
Alert system for private bar
Staggered shifts
Briefing inexperienced counsel
Availability of telephones
Interview facilities
Preparation of materials answering all common questions
7. Flow of Court Papers.
Description of movement
Coordination with movement of prisoners
Procedures to prevent loss of papers
Procedures to control information about post-court release
Priority in preliminary hearings for detained defendants
Bail review hearings
Multiple defendant problems
8. Bail-Investigation,Setting and Review.
Collateral and forfeiture
Release on personal recognizance
Feasibility of preventive detention
Auxiliary personnel
Standards for recommendation
Time of interviews
Criminal records
[Vol. 18
19681
CONTINGENCY PLANNING
9. Curfew Review.
Authority
Location of violation
Time of release (overnight detention?)
Conditions of release
Type of curfew
Applicable penalties
Use of summons
10. Community Relations.
Procedure employed
Improvement
11. Trial and Sentencing.
Emergency judges and other court personnel
Courtroom decorum
Uniformity of procedure and penalty
Hours of court
Advising of rights
Rotation of judges
Presence of prosecuting and defense witnesses
Deferred payment of fines
Guarantee of public trials
12. Post-sentenceProcedures.
Expunging of criminal records
Other appropriate procedures
13. Central Coordinationand Public Information.
Establishment of Emergency Operations Center
Liaison with Civil Defense Agency
Staffing of Emergency Operations Center
Liaison with the Attorney General
Appointment and duties of Chief Coordinator
Site for Emergency Operations Center
Public education
Publicizing curfew hours
Establishment of rumor center
Establishment of central data bank
Use of data processing equipment
14. Re-establishment of Normal Operations.
15. Emergency andSocial Services.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
Policy Considerations
The development of a mechanical emergency justice plan is an empty
endeavor if not coupled with the development of underlying policy
considerations that are clearly enunciated and highly credible.
Communities need to be assured that their legal establishment intends
the plan to be employed solely to insure the fulfillment of the mandates
of the Constitution. Community belief that an emergency plan has been
developed merely to make more arrests or to sentence people more
quickly without regard for due process is clearly a source of further
anger and frustration, particularly with respect to an already angry
minority group (generally the target of such planning). Policy decisions
made in advance of disorder can help close the gap between what the law
professes to do and what it actually does."5
With this in mind, the riot-justice plan should clearly enunciate in
advance the objectives of the plan. The Chicago Riot Study has
observed:
. . . such a plan should talk in terms of 'substance' as well as the
mechanical nature of riot administration. By 'substance' the committee
means such things as statements oriented toward the purposes of bond
hearings or the treatment of individual arrestees."1
In making technical recommendations, the District of Columbia
Committee noted that such recommendations were:
a vital prelude to the important questions of policy relating to
prosecutoral and judicial discretion which vitally affect
the handling of each
67
arrested person and the outcome of individual cases.
As noted, 8 that Committee is currently studying crucial aspects of
policy and decision making as they apply to the criminal justice system
during civil disorder. Only with such an understanding will the technical
plans take on substance and meaning. The Kerner Commission has
stressed the need for policy decisions to be an integral part of any
contingency plan.69
65. Policy decisions made in advance of civil disorder can help close the gap between what the law
professes to do and what it actually does.
66. REPORT OF THE CHICAGO RIOT STUDY COMMITTEE TO THE HONORABLE RICHARD V. DALEY
at 105 (1968).
67. INTERIM REPORT, DISTRICT OF COLUMBIA COMMITTEE ON THE ADMINISTRATION OF
JUSTICE UNDER EMERGENCY CONDITIONS at
68. Supra note 21.
69. Supra note 2, at 188-93.
14 (1968).
19681
CONTINGENCY PLANNING
How Should The Contingency Plan Operate?
Smooth functioning of the criminal justice system during crises
requires that a particular person or agency be designated to initiate the
various emergency procedures established. This requirement goes to the
very heart of the plan's coordination. It assures, should the contingency
on which the plan is predicated ever occur, that the plan will actually go
into operation with all necessary backup resources.
Both the executive and judicial branches of government will be
individually concerned with initiating their particular portion of the
plan. The local chief executive, usually the mayor or his designee, is the
appropriate representative of the executive branch. In the judicial
branch, the chief judge of the court which will most likely assume the
brunt of a mass arrest situation, or his designee, is appropriate.
It is possible to create a self-executing plan, which would
automatically go into effect upon the institution of a state of emergency
by the local chief executive under special pre-enacted laws, thereby
eliminating the need for a separate executive or judicial order. However,
the creation of a self-executing plan would make it difficult to provide
for civil disorders or mass arrest situations which do not require the
calling of a state of emergency. The optimum solution is to create a nonself-executing plan which can be initiated in stages, depending upon the
degree of crisis, and which can operate without the chief executive first
having to invoke a state of emergency. For example, the New York
Report states that in New York City:
Three alternative plans have been developed depending upon the scope and
nature of the disorder. The primary goals of each of these plans are: (1) to
return a maximum number of police officers to duty in the shortest period
of time; (2) to properly identify and charge persons arrested; (3)to protect
the constitutional rights of all persons arrested. The police commissioner, in
consultation with the Mayor, will decide which plan to use."
Other plans have also provided for various stages of operation,
predicated upon the number of persons arrested.7' In New York City,
Plan #1 will be used when the number of arrests is below 500 and no
emergency is anticipated. Plan #2 will be employed when arrests are in
excess of 500 and a state of emergency is anticipated but not declared.
Plan #3 will be employed when a state of emergency has been declared by
70. Supra note 17, at 7.
71. CHICAGO COURT PLAN, supra note 22, contemplates different levels of operation depending
on the number of persons arrested.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
the Mayor.72 In New York the judiciary has developed a separate plan,
designating in advance one individual, the administrative judge of the
criminal courts, in complete charge of a "coordinating group."73
Those responsible for calling the plan into play will be charged with
determining the degree of resources needed for backup. Their decision
will, of course, be predicated upon the intensity of the emergency. A
building-block method has been devised.74 Each block consists as
follows: "One judge, one prosecutor in the courtroom, four or five
prosecutors in the complaint room to supervise the preparation of
complaints, four defense counsel, three court clerks, and seven typists.""
Employing this mathematical building-block method, the New York
Committee speculates that the number of building-blocks can be
multiplied in relation to the number of persons arrested so as to indicate
the needs of the system in terms of physical facilities and manpower."
Conclusion
This discussion has focused on the methodological aspects of
contingency planning. Communities must develop specialized
procedures for criminal justice to ensure that the system does not falter
and finally break down. This requires that communities develop
coordinated plans which are comprehensive in scope and which are
developed in advance of the contingency and implemented in time to be
effective should the contingency arise.
Once communities have developed such plans and have implemented
them they can turn to an aspect of contingency planning not dealt with in
this discussion, namely, the substantive criminal justice problems which
arise in mass arrest situations and their solution. This second aspect is a
vital one, but without taking the first step of recognizing the importance
of planning and what is required in such an undertaking, the community
72. Supra note 17, at 8-9.
73. Id. at 8.
74. This is an interesting mathematical concept. A building block method is:
A standard unit . . . of legal and non-legal personnel required to properly process and
arraign in a central booking and arraignment center approximately 250 persons before a single
judge during an eight hour period. NEW YORK REPORT, supra note 17 at 6.
75. Id.
76. The Courts Committee in its separately appended report was critical of this evaluation:
Ten emergency parts, for example, cannot possibly handle ten times as many arraignments
as a single regular arraignment part. As additional parts are opened within the same building,
efficiency decreases, papers may be misplaced and sent to the wrong part, individual police
officers and attorneys may be running from part to part, second calls may be frequent, the
backup services (by stenographers, prosecutors in the complaint room and defense attorneys)
may break down from time to time. Id.
1968]
CONTINGENCY PLANNING
97
can never successfully deal with the substantive problems. Too often this
second aspect is considered first, or alone, and the result is inaction or
ineffective planning.
Most communities have yet to take the most rudimentary steps in
developing plans which are necessary to deal with this problem. The need
for immediate action is clear, and through prompt and proper planning a
solution to the problem can be found and both the community as well as
the individual can be afforded the protections guaranteed by the
Constitution of the United States.