Judging the law: fear and the judiciary

By , Hiller B. Zobel is an associate justice of the Massachusetts Superior Court.

On the morning of Halloween, a Boston newspaper ran a full-page detailed set of warnings for the benefit of trick-or-treat-bound youngsters - and their parents. Both general (''Do not accept candy from anyone you do not know'') and specific (''Discard unwrapped candy immediately''), the advice chilled both the occasion and the reader.

Everything in the ad made good sense; no one could quarrel with the presentation or its appropriateness. Yet the content, for this very reason, emphasized the terror we are all beginning to carry closer to our hearts; that ordinary life is becoming a high-risk occupation.

Concern with crime is, of course, nothing new. Half a century back, as poll results abundantly showed in Thurman Arnold's iconoclastic ''The Folklore of Capitalism,'' Americans viewed law and order as a top national concern.

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Somehow, though, those people were not talking about the fright that confronts all of us today, even at the highest levels of rationality and leadership. Listen to the booming periods of one governor's executive order establishing an Anti-Crime Council:

''WHEREAS, the incidence of serious crime within the Commonwealth of Massachusetts continues at an unacceptable rate, causing widespread and devastating human injury, and creating a distressing climate of fear;

''WHEREAS, a coordinated effort by all segments of the Commonwealth's criminal justice system is essential to attack the causes for the intolerable levels of criminal behavior which exist in the Commonwealth; . . .''

Once again, the point is well put. No one can cavil at the governor's accurate perception of the problem, his assessment of its extent, or the vigorous language he employed to express his premises.

Taken together, the Halloween horror list and the executive order plainly demonstrate our present mood: We are scared; but more important we are angry, and we are going to Do Something.

''Anarchy,'' the British historian J. F. C. Fuller has written, ''is the one condition a people will not tolerate for long.'' And, he might have added, perpetual anxiety about personal safety is tantamount to anarchy.

It is at this point that judges, particularly trial judges (as opposed to appellate courts), begin to occupy center stage. Courts, after all, exist - at least in part - for the purpose of identifying criminals and punishing them.

Moreover, courts are part of a system which is already in place, experienced, fully-staffed, and capable of acting. If crime is more prevalent today, the theory readily starts, it must be because fewer criminals are being punished; or it must be because the punishments that judges are in fact imposing neither reform the particular offenders nor deter others from emulating them. Therefore, the syllogism concludes, we certainly must make it easier to convict the criminal.

Implicit in the desire to facilitate conviction is the suggestion that the present system affords an accused person more of an opportunity to escape than society can permit. Or, viewing the problem slightly differently, a change that eases the government's task represents a decision, conscious or otherwise, to change the rules under which we determine whether a person merely accused of a crime has in fact committed it.

Now it is perfectly appropriate for a society to trade protection of the accused for certainty of conviction. The present system, however, rests upon a long and blood-earned history, epitomized by the 400-year-old principle: Better let 10 guilty escape than convict one innocent.

Thus all the rules that sometimes appear to be ''technicalities'' or ''loopholes'' come from a basic commitment to certain fundamental values. We exclude evidence obtained without a search warrant, because we instinctively fear the long-term, unpleasant consequences of official intrusions into our homes. And we restrict the use of police-obtained confessions because we viscerally doubt the fairness of the methods that produce them.

If, however, I have accurately gauged the present fear and the force of the desire to avoid it, society is preparing to reduce some of the existing constitutional limitations so as to ensure greater physical safety.

But before we ask the trial courts to broker this particular exchange, perhaps we ought to discuss it explicitly.

Are we merely adjusting our heritage to meet urgent present necessity? Or are we, instead, bargaining away too much? The world's safest urban streets, after all, run through Moscow, the city that houses the Lubyanka Prion.

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