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Crime isn't as perilous as assuming criminality

The talk in Room 207 of Tampa's Federal Courthouse was about probable cause and a few of those other vague-sounding terms lawyers toss between each other.

It was dull talk.

But it also was important talk.

Still, except for the people who had to be there _ the lawyers and plaintiffs and such _ only three people were there to hear it.

The case didn't offer the potential for morbid titillation that a severed penis did. It was not about a perverted maniac who kept his refrigerator stocked with body parts to munch on. It was not about rich people killing other rich people to get richer.

It was about the Constitution and four people who charge that, for a while in 1989, it was suspended for them.

The plaintiffs are two men and two women who were arrested at the College Hill housing complex in Tampa following the death _ in custody _ of a man police suspected of dealing drugs. The quartet, each of them known throughout Tampa Bay for vocal opposition to police tactics in predominantly black communities, was charged with inciting to riot and unlawful assembly.

Those charges were dropped by prosecutors who determined there was not enough evidence to proceed.

But between the arrest and the charges being dropped, Chief Judge F. Dennis Alvarez decided to raise their bail from $1,050 to $100,050 after a conversation with Mayor Sandy Freedman.

The move was an attempt to keep the four activists from returning to College Hill and inflaming more anger and violence. The mayor and judge said as much to reporters at the time.

The four also were ordered not to set foot in College Hill.

This week, the complainants sat in the small courtroom convinced that they had been targeted because of their activism and that their treatment was a result of a conspiracy between the mayor and the judge.

Late Friday, the quiet talk in court hadn't played itself out to a verdict, but the case gives birth to disquieting thoughts.

Immediately when it became known that Alvarez had raised the bail after a conversation with Freedman, legal scholars criticized the collaboration between the judiciary and the city's government, especially since the city was involved in the case against the four.

But the scary thoughts are not so esoteric, not expressed in words whose meanings are subject to the last legal interpretation.

It doesn't take much looking at this case before it hits you in the face: The Constitution is in danger of being nullified by discretion _ of judges, of police officers and their bosses the mayors.

This is really nothing new, this idea that few consequences are inscribed in stone along the path from arrest to sentencing. Someone is making choices all the way through the process.

Arrest often is just one option available to a police officer, not the sole action he must take. Judges then have wide latitude in setting bail and sentencing.

That's in cases where a crime has been committed and a suspect charged.

But there's another aspect of the criminal justice system, exemplified in this case, that seems inherently dangerous. Sometimes the discretion is aimed at preventing crimes.

And that's a job that's slightly beyond them. Crime prevention is more the work of parents and schools and churches and all those other institutions that raise children.

Of course, law enforcement and the judiciary can contribute to the effort, but not primarily.

They are more suited to dealing with the citizen after he has committed the crime rather than before. Sometimes, they seem to forget that one citizen is just like another up to and including the nanosecond before he commits a crime.

In the Tampa case, a mayor and a judge decided that four people probably would commit a crime if they were let out of jail.

Maybe their guess was right, but there is a canon in American justice that says it's better to let 100 guilty men go free than to deprive one innocent man of his freedom.

With the hysterical fear of crime today, that may soon no longer apply.

Unfortunately then, neither will the Constitution.

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