Crime and Punishment in American History - Lawrence M. Friedman [236]
The Smith Act of 1940 made it a crime to preach or teach in favor of overthrowing the government by force. In 1948, the government pressed for indictments against leaders of the American Communist Party. A federal grand jury handed down twelve indictments. A bitter, heated trial in Foley Square (New York City) dragged on for nine months.55 The jury convicted all twelve defendants, and the judge, Harold Medina, added insult to injury by ordering the defense lawyers to prison for contempt of court. Whatever the merits of Medina’s action, it certainly did nothing to abate the atmosphere of political intimidation; the bar, after the judge’s contempt action, started disciplinary proceedings of its own against the lawyers. All of this sent out a clear message: in repressive times, a lawyer who represented “subversives” and other unpopular defendants would be tarred by the very same brush.56
The Smith Act defendants, naturally, appealed their convictions. They claimed (among other things) that the Smith Act was unconstitutional. In a split decision, Dennis v. United States, the Supreme Court ruled against them. “We reject,” said Chief Justice Vinson, “any principle of governmental helplessness in the face of preparation for revolution.”57
The Smith Act convictions, the vendetta against leftist lawyers, the McCarthyite purges, no doubt had a chilling effect on radical thought and action. Indeed, that was the point. How much of an effect is impossible to tell; but it was certainly risky to come out with ideas that were too far to the left, or which challenged the anticommunist orthodoxy. Indeed, it was unpopular to espouse radical ideas of any sort. The crusade against communism was a convenient weapon against other social movements—movements for racial equality, for example.
The Dennis case was not the only political trial of the period. But in retrospect, it was, legally speaking, something of a climax (or nadir). Prosecutions against left-wing groups had decidedly mixed results. The government lost quite a few of them. The red scare gradually lost its virulence. The Warren Court, not surprisingly, had no taste for Dennis-like cases. In Yates v. United States (1957),58 the Court reversed the Smith Act convictions of a flock of leaders of the Communist Party of California. The court did not overrule Dennis; it claimed Dennis was distinguishable. But subtle differences in doctrine hardly mattered; the tone and the politics did. In Brandenburg v. Ohio (1969),59 the Court overruled the Whitney case and got rid of the laws against criminal syndicalism. These laws punished “mere advocacy”—and were thus unconstitutional.
There were also a handful of actual prosecutions for espionage, or arising out of espionage-like charges. There was the headline-grabbing trial (really, trials) of Alger Hiss (1949-1950), who either was or was not a Soviet agent; and who stood accused of perjury.60 The most notorious of all was the trial of Julius and Ethel Rosenberg, arrested in 1950 and accused of conspiracy to commit espionage—specifically, that they passed nuclear secrets on to the Soviet Union. The trial took place in March of 1951; the jury found the Rosenbergs guilty, and on April 5, 1951, Judge Irving R. Kaufman sentenced them to death. The harsh sentence escalated what had already been a sensational case to the rank of worldwide controversy. Battle was joined on both sides, there were motions, writs, petitions, appeals, pleas for clemency—still, in a swirling storm of controversy, the Rosenbergs, husband and wife, died in the electric chair on June 19, 1953. The debate over their guilt or innocence goes on—perhaps it will never end—but the punishment, in retrospect, seems