ar
~
-
(Editor’s Note: This is the
in the world’s academic com-
munity. the writer of this essay
died recently and this is be-
lieved to be one of his last
writings before death. He was
Jackson Eli Reynolds professor
of law at Stanford University.
Herein he discusses the survival
of law in a mass society.)
; by Herbert Packer
Today, the Rule of Law is
under attack. Public regard for
the law is said to be at a low ebb.
In my view, this alleged dis-
regard stems from two related
factors: (1) People expect too
much from the law and (2) as a
Coif we are in a good deal of
conflict about just what we want
from the law.
1 shall try to illuminate both
of these themes, after a pre-
Rule of Law means, and try to
what the law can do and thereby
to achieve a true regard for the
Rule of Law.
The distinguished philosopher
John Rawls calls the Rule of
Law “‘justice as regularity.” It
The legal system must not re-
quire pecple to do or to avoid
conduct that they cannot rea-
sonably be required to do or to
avoid: there can be no offense
against the law without an
existing law; the judicial pro-
cess ‘must operate fairly and
evenhandedly; any legil
syd hi must requird some forth
of due’process.
The criminal sanction, the
irogh of the law that defines
for®dden conduct through
issuing commands and pre-
scribes what shall be done with
those people who are found
guilty, through the processes
established by law, most read-
ily illustrates how the ideal of
the Rule of Law is viewed bv
most people. The criminal
sanction involves both sub-
stance—what kind of conduct is
forbidden—and procedurehow
the courts and other agencies of
government proceed against a
person accused of crime.
There is a good deal of cur-
rent dispute, both in public and
in the Supreme Court of the
(rg States, about just how
cemgrin basic procedural re-
quirements, like those embod-
ied in the Bill of Rights, should
be interpreted.
There are two basic attitudes,
reflected in what I call two dif-
ferent’ models of the criminal
process, that animate the ten-
sion that exists:
The Due Process model em-
phasizes the individual rights of
persons who are accused of
having committed crimes, and
the Crime Control model em-
phasizes efficiency in repress-
ing and preventing criminal
conduct. The debate has oc-
cupied both political parties
since the Miranda decision in
1966, which was said to have
made it more difficult for the
police to obtain and use confes-
sions.
I believe that, notwithstand-
ing the great differences over
how the courts should interpret
the Bill of Rights (including the
great contemporary debates
over confessions, searches and
seizures and the death penalty)
the main issues that affect how
we look at the Rule of Law are
That is, they affect the behavior
content of the criminal law.
Substantive issues, what kind of
conduct the law should make
criminal, are both logically and
practically anterior to the im-
portant procedural issues.
There: are certain functions
that almost everyone agrees
the criminal law must main-
tain. The criminal law tells us
not to intentionally, recklessly,
or negligently kill another
human being (with certain well-
defined exceptions like self-de-
fense); not to take another’s
property against his will; not to
commit burglary, robbery; rape
or arson. There is virtually un-
animous agreement in our so-
ciety that these commands are
a good thing.
To that extent, almost every-
one believes in the Rule of Law;
no one wants the law of the
jungle to take over. That being
so, one should distinguish be-
tween mandatory and optional
uses of criminal sanction. By
“mandatory” I refer to crimes
like those listed in the above
paragraph; by ‘‘optional’’ I
refer to all other forms of con-
duct that we choose to treat as
criminal. ;
The great 19th Century philo-
“The only purpose for which
power can be rightfully exer-
cised over any member of a
civilized community, against
his will, is to prevent harm to
others.” Fi
Now, that statement does not
by itself solve any problems.
But it is a very useful starting
point for distinguishing between
“mandatory’” and ‘‘optional”
uses of the criminal sanction.
Now, turning to my principal
theme, how can it be shown that
Americans expect too much
from the criminal law? We are
as a people impatient, demand-
ing of results and terribly
moralistic. The ‘‘noble experi-
ment’ of prohibition illustrates
every element of my descrip-
tion.
If we don’t like something, we
tend to pass a law against it
(thereby demonstrating our
orientation toward quick and
easy solutions to complicated
social problems).
Qur Puritan ethos, combined
with our readiness to embrace
the criminal law as an avenue to
solving ‘social problems, was
very characteristic of Ameri-
cans, both in the early 1920s and
today. Yet prohibition convine-
ed many of us that it is very dif-
ficult to solve a serious social
problem by passing a law.
The stubborn fact that people
are unwilling to-give up alcohol
made prohibition unenforce-
able.
Worse yet, attempts to en-
force it brought about use of
such procedural devices as un-
constitutional searches and sei-
zures and consequently the ero-
sion of human liberty through
government snooping that still
plagues us. This is an historic
example of what happens to
ideals of human autonomy
through overextension of the
criminal law.
We should be very reserved
about what uses we make of the
criminal law aside from the
“mandatory” crimes.
The moralistic. spirit that
moves Americans to make cri-
minal so many ‘‘optional’’
forms of conduct has brought
about many abuses that plague
the Rule of Law.
The use of criminal sanction,
to be justified, must meet some
minimal = standards that are
generated by the Rule of Law.
Certain measures of ‘‘cost-
benefit’ ratio must be met by
‘optional’ uses of the criminal
sanction. They include:
(1.) The conduct is prominent
in most people’s view of socially
threatening behavior, and is not
condoned by any significant
segment of society.
(2.) Subjecting it to the cri-
minal sanction is not incon-
sistent with the goals of punish-
ment.
(3.) Suppressing it will not in-
hibit socially desirable conduct.
(4.) It may be dealt with
through evenhanded and non-
discriminatory = enforcement.
(5.) Controlling it through the
criminal process will not expose
that process to severe qualita-
tive or quantitative strains.
(6.) There are no reasinable
alternatives” to the criminal
sanction for dealing with it.
Let us illustrate the applica-
tion of these criteria (referring
to the numbers used above) by
discussing the contemporary
Taking the least controver-
sial aspect of that problem—
marijuana—(1) I doubt very
much whether selling, possess-
ing and using marijuana is pro-
minent in most people’s view of
socially threatening behavior,
and a recent Presidential
commission has shown many
people are convinced that the
criminal law should not occupy
this area. (2) If the goals of pun-
ishment are not primarily to
exact vengeance but rather to
prevent socially undesirable
conduct, have these goals really
been advanced by the use of the
criminal sanction against mari-
juana?
(3) However, most of us are
still a long way from thinking.
that this application of the cri-
minal sanction inhibits socially
useful conduct. We are hardly
in a position to congratulate
ourselves on complying with
this criterion.
(4) So many people currently
use marijuana that it is quite
impossible for the police and
prosecutors to be evenhanded
and nondiscriminatory. If you
are either black or young the
chances of your being arrested
much greater than they are for,
‘ say, middle-class, middle-aged
users.
(5) Qualitative strains on the
criminal process (like the indis-
criminate use of illegal sear-
ches and seizures, preventive
detention, electronic devices or
police decoys, pay-offs to the
police by sellers of drugs) have
been and are so much a part of
the war on drugs, so much a
part of the diminution of free-
dom for our civil liberties.
Quantitative strains (look at the
overloaded calendars of our
courts) are so much a part of
what we have done ourselves
through these ‘‘optional’”’ uses
of the criminal sanction that
one is simply aghast.
Finally, there is the last cri-
terion. (6) Is there any reason-
able alternative to using the cri-
minal sanction against mari-
Juana? Yes, we can simply take
the criminal law out of this
area, and decriminalize mari-
juana.
Decriminalization (a word
that everyone needs to think
about) involves leaving our
morals to other institutions of
our society—families, chur-
ches, schools, rather than to the
criminal sanction.
There are many other ‘“‘op-
tional” uses of the criminal
sanction: abortion, sexual de-
viation, prostitution, porno-
graphy, gambling, narcotics
addiction—the list could be ex-
tended further. The use of the
criminal sanction to repress
everything that we most dislike
about our environment con-
demns us to endure the nasti-
.cient”’ police and prosecutorial
work. Also, it overburdens all
the institutions of the criminal
law (overcrowded courts, over-
loaded prisons).
Through our overuse of the
criminal sanction we have
‘placed ourselves in a situation
that resembles some aspects of
our foreign policy, in which our
commitments outstrip our
may well be that we risk the col-
lapse of the Rule of Law.
Kingston Township
Warns-No Parking
Kingston Township police
chief Paul Sabol cautions
residents that no more war-
nings will be given about
overnight parking on all
township roads. From now on,
Chief Sabol warned, all cars
parked overnight on the roads
will be ticketed and owners will
be fined. These cars hamper
snow ploughs during snow
removal operations, he stated.
in the face of law.
of
© (Culver Pix photo).
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cece ma
Page A5
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Dallas Borough
Dallas Borough experienced
one accident during the past
week, in addition to the one in
which three new L.L.
Richardson trucks and a U.S.
mail truck were hit. The story
of that accident appears
elsewhere in the Post.
A central Dallas fender-
bender occurred at 12:30 a.m.,
Dec. 12. Officer Sev Newberry
determined that a car driven by
Michael Roland Shaw, 131
White Birch Lane, Elmcrest,
Dallas, struck another car as it
waited for the traffic light at
Route 415 and Main Street.
Ernest C. Besancon, RD 1,
Hunlock Creek, was struck
from behind, as he faced north
on Route 415 awaiting a green
light.
The Besancon auto received
an estimated $50 damage, and
was driven from the scene by
the owner. Shaw’s auto, owned
by the Bridon American
Company of Stevens Lane,
Exeter, was driven away by
Shaw. It had received an
estimated $350 worth of
damages. ‘
Officer Newberry noted that
he was somewhat confused by
Mr. Shaw’s English driver’s
license and his lack of United
States identification.
DALLAS TOWNSHIP /
Only one accident was
reported in Dallas Township
last ‘week. Clara Kashubaski,
Box 56, Harveys Lake, was
traveling on the Kunkle
Alderson Road Dec. 11 at 7:17
a.m. and as she attempted to
make a curve near the power
plant, a car was stalled in the
roadway. Thelma Dietz, RD 2,
Harveys Lake, was backing out
of her driveway when her car
stalled. She couldn’t get it
started again when Mrs.
Kashubaski collided with her
car.
Patrolman James Gruver
investigated the accident and
reported $300 damage to each
vehicle.
KINGSTON TOWNSHIP
There were two accidents
reported last week by the
Kingston Township police. The
first happened Dec. 13 at 1:30
p.m. on the Orange-Wyoming
Road.
Gloria Knepp, RD 3,
Wyoming, was travelling south
and lost control of her 1965 car
on a curve, hit the guard rails,
and landed in a ditch. She was
removed to the Nesbitt Hospital
in the Kingston Township
ambulance.
Patrolman John Appel
estimated damages at $300. Her
car was towed from the scene.
Gary Doescher, 130 Hillcrest
Ave., Shavertown, was
travelling north on Route 309,
Dec. 15 at 5:30 p.m., and at-
tempted to make a right hand
turn into Purcell’s Service
Station. Clifford Engler, 20
South Main St., Trucksville,
was in the service station and
attempted to make a left hand
turn to travel south on the high-
way. Mr. Engler did not see the
Doescher car entering and a
collision resulted.
Patrolman Luther Rozelle
investigated and estimated
damages at $300 to the Doescher
vehicle and $500 to the Engler
car.
Chief Paul Sabol reported
that a 10-foot blue spruce tree
had been cut down in front of the
home of Joe Dreier, Manor
Road, Midway Manor,
Shavertown, Dec. 16. There
were no clues and Patrolman
Luther Rozelle is still in-
vestigating.
Henry Owens, Carverton
‘Road, Trucksville, also
reported that two snow tires and
wheels had been taken from his
car which was parked in his
driveway. This also occurred
Dec. 16, and Patrolman Rozelle
is investigating.
Chief Sabol cautions residents
of the area to keep a close check
and report any unfamiliar
activity to the Kingston
Township police.
Wilkes-Barre City
Carey Ave. burglary
BooBoo’s Restuarant-
Delicatessen was robbed for the
second time in two weeks, Dec.
12. A Wilkes-Barre patrol car
discovered the break-in at 5:45
a.m. Entrance was gained when
the thief removed two panes of
glass from the south side of the
building, where entrance was
made in the recent theft.
The thief took one tuna fish
salad sandwich, six bottles of
liquor and $750 in cash.
The owner of the BooBoo’s is
Otto Bender.
Jewelry taken
Joy Davis, 188 West River St.,
told police that on Dec. 10
various jewelry was stolen from
a jewel case in her home.
Mrs. Davis and her husband
are in the process of moving,
and have been leaving their
home open to allow different
workmen to enter.
Taken were a diamond ring
valued at $3000, a gold watch
valued at $350 and a gold
wedding band.
Fixtures stolen
The Mack Supply Company,
housed in the old Dolly Madison
Ice Cream Parlour, East North
Street, was broken into on the
night of Dec. 11. .
An undertermined amount of
plumbing supplies and fixtures
were removed.
The theft was discovered by a
neighbor.
Costly gears taken
$3000 worth of bronze gears
were taken from the In-
ternational Color Press Com-
pany, 221 Conyngham St. The
theft took place sometime over
the weekend.
Church windows broken
Sixteen colored panes of glass
were broken by rocks over the
weekend at the Calvary
Episcopal Church, 373 North
Main St.
Boys playing in a parking lot
to the side of the church have
been responsible for past
property destruction
Accident injures two
A Saturday night mishap
slightly injured two men and
resulted in damage to three
cars. Howard Lee Specht was
heading north on South
Franklin Street when he tried to
maneuver between two parked
cars, and struck an auto
operated by Gary Barber, 268
Collet St.
The Specht car then continued
on, striking a tree. At that point.
James Monseur, a passenger,
reached over in an attempt to
assist Mr. Specht. In so doing he
bumped the gear shift lever into
reverse, causing the auto to
Nicholas Cacio.
The Specht car was damaged
an estimated $1000. The Barber
car received an estimated $600
damage and the parked car had
about $400 damage done to it.
The mishap took place at
11:40 p.m.
Car vandalized
Stanley Bilksi, 338 East
Market St., reported to police
that at some time Thursday
night someone smashed the
windshield of his auto with a
rock.
Intersection mishap
Cars operated by Harry
Miller, 922 South Main St., and
Eugene Marselles, 30 Chestnut
St., figured in a collision at 10:40
p.m., Dec. 13, at the intersection
of West Market and Franklin
Streets.
Mr. Miller claimed that he
changed and was hit by Mar-
selles as he came through the
light. Mr. Marselles told police
that as the light changed to
time.
Total damage was $200.
Windshield smashed
Stella Unsworth, 79 Kidder
St., told police that someone
smashed the windshield of her
car the night of Dec. 12 or the
morning of Dec. 13.
Damage was about $125.
Car damaged
Ann Wrazen, 524 South
Franklin St., reported to police
that the hood of her car was
Dec. 11-12.
Other acts of vandalism have
recently been reported in the
area.
Dog bite
Micheal Reilly, 48 Mary St.,
Ashley, was bitten on the right
upper leg by a black German
Shepard, and was treated at
Mercy Hospital.
Wallet taken
Leota Nevil, 217 South
Franklin St., had a wallet
containing $2.35 taken from her
purse at the Rapid Wash
laundry center, 252 South Main
St., at 2 p.m., Dec. 11.
The empty wallet was later
discovered by another patron of
the establishment.
Battery removed
Katherine Regelski, Sheridan
Manor, reported that a battery
valued at $45 was stolen from
her car. It had been parked at
the corner of Metcalfe and
Empire Streets.
Two-car accident
Leonard Morgan, 267 South
Franklin St., traveling east on
Dec. 16, collided with an auto
operated by Michael Ward, 13
North Washington St.
Damage to the Morgan car
was about $1400. Damage to the
other car was about $600.
Forty Years Ago
1933
Civil service examinations for
managers of liquor stores
throughout the State, with the
end of prohibition, had 2,500
thirsty citizens panting to get
the jobs. Dallas was not in the
market. Luzerne would be the
nearest place to go for the
beverage.
Adam Kiefer, president of
Dallas Township School Board,
resigned. Chris Eipper was
elected to fill the office.
Warden Kunkle was re-elect-
ed president of Dallas firemen,
"and Charles Reigle, vice presi-
dent.
Shavertown Improvement
Society re-elected H. M. Hall
president.
First games in rural league
basketball saw Dallas beating
Shavertown and Laketon
downing Trucksville.
An editorial pointed out the
value of founding a public
library in Dallas. It was
suggested that the Dallas
Borough High School library
might form a nucleus for such a
venture. This was 12 years be-
fore the Back Mountain Memor-
ial Library was founded. The
Dallas Post continued to pro-
mote the idea of a library until it
was an accomplished fact.
The new Ford was on display,
a ritzy model with a V-8 en-
gine...AND you could get a two
door sedan for $535; a classy
coupe for $515, and the highest
price for a Victoria was $610
(FOB Detroit). _ Yi
W. J. Schall, 55, died in
Shavertown.
You could get chocolate
drops, mixed candy or Brazil
nuts for 15 cents a pound. Chuck
roasc was 10 cents a pound, and
two dozen of oranges sold for 29
cents.
The Lindberghs were flying
back from their trip around the
world. Their survey trip includ-
ed Baffin Bay, Greenland,
England, South America and
the Continent of Africa.
Thirty Years Ago
1943
The Faux lumber mill in
Orange burned to the ground as
Dallas fire companies fought to
save it,-and the family carried
water in buckets.
Back Mountain's flu epidemic
was not serious. The cases were
mild, though the disease was
wide spread.
Celeste Prutzman got a front
page position on her 89th birth-
day.
Willard Wentzel, Alderson,
sent the radio SOS from the
shattered Flying Fortress
which ditched in the English
Channel, bringing rescue to his
crew mates.
After seeing a film on the
taking of Guadalcanal, the edi-
tor of the Dallas Post dipped his
pen in venom and ripped the
hides off folks at home who
couldn’t find time to roll ban-
dages, and commiserated with
‘women who had trouble finding
a fourth for bridge, and folks
who couldn’t round up enough
gas to attend family funerals,
but who get to night spots with-
out any trouble. (Howard
Risley was sending Posts to the
kids in the service and he was
dying to get into the fray him-
self. He didn’t have too much
patience with people who be-
moaned their own hardships;
he’d had so many letters from
wounded kids thousands of
miles from home).
From the Outpost: Thelma
Gregory, Arlington, Va.; Frank
Billings, Australia; A. C. Ed-
wards, Georgia; John Kunkle,
Calif.; E. H. Evans, Alaska;
Edward Tutak Jr., Kansas;
James R. Bertram, Camp
Edwards; = Ethel Wright,
Florida; Earl Williams,
Georgia; Tommy Evans, North
and Dana Campbell, Texas.
Harveys Lake froze over
completely, but a high wind
broke up a little of the ice in the
middle. 7
Steak cost 34 cents and 8
points a pound; rib end pork
chops cost only 4 points-plus of
course 25 cents a pound. Most
could get two large loaves o
bread for 17 cents. 5
Twenty Years Ago
1953 3
Norti Berti headed the ambu-
lance association in Dallas.
A four-year old child was in-
board a moving truck. Pro-
nounced dead by Dr. H. A.
Brown was Richard Weaver,
son of Mr. and Mrs. Emerson
Weaver, Lehman. :
New Goss Manor was building
constructed.
Janet Smith was elected pre-
sident of the Book Club.
Died: Rose Cragle, Hunlock
Creek,on her 87th birthday;
Elizabeth Grail, Trucksville;
Vincent Shindel, Dallas.
Laing Coolbaugh headed the
Lehman-Jackson-Ross jointure
for the second time.
Ten Years Ago
1963
fire in his smokehouse which
destroyed 23 hams and $200
worth of temperature controls.
Dr. F. Budd Schooley’s new
book, “The Word’, was avail-
Library. :
Ted Wilson, Demunds lum-
berman, was offering a $100 re-
ward for information leading to
the vandal who shot holes in his
heavy equipment on the first
day of hunting season.
Arthur Smith was named vice
president of the Kingston Town-
ship Board of Supervisors
passed away.
A $6,300 Cadillac owner was
fined $3,200 for a car full of ille-
feit the car, too.
toppled 60 feet down a bank
where it landed upside down.
The driver jumped from the ca
and was safe. :
Lake-Lehman High School
brass choir performed on tele-
vision under the direction of
John Miliauskas.
Commonwealth Telephone
Company hosted Tavach
Meksowan, Thialand, who was
studying communications.
Rifle shot shattered window
of Ross Township school bus.
Dr. Henry M. Laing Fire
$6,613.54.
Born: Beth Ann, daughter of
Mr. and Mrs. Leo Malkemes,
Dallas; Donna Sue, daughter of
Mr. and Mrs. Donald Marcase,
Shavertown Clifford Paul, son
of Mr. and Mrs. Joseph
Dymond, and Brenda Lee, the
16th child of Mr. and Mrs.
Frank Stoss, Dallas.
Died: Amanda Boline, 74,
Pikes Creek;
Centermoreland;
Longmore, Dallas.
Food ads featured turkeys at
31 cents a pound; ham, 39 cents
Mark Brown,
Thomas
one-pound packages, 79 cents;
lobster tails, $1.69 a pound;
salami balogna, 59 cents a
pound, and boneless chuck, 59
cents a pound.
the following address:
Name
Address
City
State
Zip Code
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