Crime and Punishment, Part II

THE OPEN MIND
Host: Richard D. Heffner
Guest: Sol Wachtler
Title: “Crime and Punishment”, Part II
VTR: 1/16/1997

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND and this is the second of two programs with a man I count among the most decent and concerned of human beings, as well as a dear friend and dedicated public servant, Sol Wachtler, the former Chief Judge of the State of New York. Now Judge Wachtler’s new Random House volume, After the Madness: a Judge’s Own Prison Memoir, is the compelling and, in our times, too frequent story of tragically unrecognized, undiagnosed, and untreated mental illness compounded in this instance by naivite and massive doses of self-medication followed finally, and almost inexorably, by crime and then punishment; punishment that many of us thought, reflected others’ personal and political imperatives and ambitions, but was really blind and indifferent to human frailty, particularly to the pain of mental illness. Now, writer William Kennedy says “Sol Wachtler has written a very funny, chilling, sad and cautionary memoir about his precipitous fall from the glory of lofty judicial life, into the solitary confinement of a squalid prison cell at the bottom of the world. It took courage for the author to expose his soul and re-live his scandal. But we come away from his bizarre and eloquent story feeling that although jurisprudence lost a significant voice, that voice, at another moral level entirely, is still being heard, and very valuably so”. And now, I want us to listen further to that voice.

Judge Wachtler, let me go back to some of the things we were talking about last time. There’s a lot about life in prison that I do want to ask you about; a lot about punishment and our fix on punishment; a lot about the question of the reduction of crime, the statistics of crime; but I don’t want to have us do the second program without touching very significantly, too, upon what I think many people don’t deal with, and that is drugs. Not the kind of drugs we were talking about in our last program, the kinds of drugs that we make laws about and incarcerate people concerning, but the drugs that help us through the day or help us through the night; the brother-in-law that recommends you take this pill that helped him, the sister who says “take that pill, it helped me”, and the whole business of loading ourselves down with self-medication that got you into a hell of a fix.

WACHLTER: It did, it did. It actually helped me help destroy my own life. I became involved in an extramarital affair which I’m not proud of. It was a transgression after some 38 years which complicated my life. And in the later part of the 80s, 1990, I started going into a very deep depression, a depression…had been in my family – my maternal grandmother committed suicide in a violent way – and rather than go to a psychiatrist, which my wife urged me to do, I started to self-medicate. One doctor gave me a prescription for a drug called Tenuate, which was an amphetamine-like drug which elevated my energy and my ability to cope with my depression. It enabled me to get through the day very nicely. I am, Richard, bi-polar. That is, I am a manic-depressive. What I didn’t realize was that this would kick into a mania, which would lead me into doing very bizarre acts, my judgment being terribly skewed. People say “Well, how could you possibly function as Chief Judge when you’re bi-polar”? The fact is that Winston Churchill was bi-polar and Hemingway was bi-polar and Byron was bi-polar. Many great minds were bi-polar. The fact is that when you’re in a manic state, you have enormous energy, you become very creative, you are able to do things which exceed normal limitation. When you are in the opposite part of the disorder, in depression, you are in the bowels of despair. It’s beyond real description. Unless you’ve been there, you can’t possibly measure it. And what happened was, I was trying to treat my depression with these drugs, and this would bring me into a manic state, which meant I could not sleep. And so to sleep I went to another doctor and was able to get Halcion. During a two-month period I took over 1400 Tenuate and 280 Halcion and I started to spin out. I broke up the affair, and then in this bizarre state I felt that if I resumed the relationship I could somehow bring myself back to sanity. I tried to do that by writing letters, which were outrageous and raw. I never denied my guild, nor have I stopped apologizing for what I did. The mental disorder, untreated, is devastating. After I was arrested, I was put on the proper medication, Lithium, to control the bi-polar disorder, Prozac, and then other anti-depressants. Right now I’m very stable, on medication, and watching myself very carefully, and regretting that I was so foolish and abusive of myself and others in not recognizing all the danger signs.

HEFFNER: It is such an extraordinary thing that such an educated person such as yourself…you said that you avoided, that Joan wanted you to see a psychiatrist. Was that because…

WACHTLER: There was a stigma attached to it. I was a very politically ambitious person. First of all, the idea of a Chief Judge going to a psychiatrist seemed terribly wrong. How could people trust the judgment of someone who had to go to someone to treat himself mentally?

HEFFNER: You know better than that now…

WACHTLER: Oh, of course, of course. I was doing a terrible disservice to my judicial position by not seeing a psychiatrist. And then I was politically ambitious. I thought in terms of one day running for governor. And so, the idea of going to a psychiatrist would be terribly wrong. Look what it did to Eagleton back in the 70s and the rumors were floating around Dukakis in his election. The fact is when someone goes to a psychiatrist, that person isn’t fit to govern or to serve. That is, of course, the mental…the impression that I had, that other people had. I think it still persists, by the way, and it’s terribly, terribly wrong. Because mental illness is like any other illness and it should be recognized as such. It’s like a physical illness, like having a cancer or pneumonia. It’s something you treat. You don’t neglect it and you don’t try to treat it by taking bromides.

HEFFNER: Those were bromides, indeed, but they were dangerous ones.

WACHTLER: They were terribly dangerous ones and we had some six different psychiatrists who submitted affidavits to the effect of the bi-polar disorder and the effect that there was a mental impairment and that there was a diminished capacity. Unfortunately the prosecutor took the position that there was nothing wrong with me. When it came to the sentencing time, the judge said that she believed that there was something wrong with me but that she does not want to treat this as a matter of diminished capacity so she would not temper the sentence. The irony is that she sentenced me to a federal camp which was a low security facility, but the Bureau of Prisons, they saw the record and they subjected me to an examination and concluded that I was mentally ill. And so they put me in a mental health facility in a secure prison. So that having been ejudicated as having no diminished capacity because of the government’s position…the government then changed its position and said “you’re a sick fellow”, and put me in Butner, in North Carolina in the mental health facility, and then I was stabbed there, and then was transferred to another mental health facility, this time in Rochester, Minnesota in the middle of winter. So my bizarre, inappropriate, illegal behavior just escalated my punishment cycle.

HEFFNER: Sol, do you think that…nobody wants to be an abject lesson, but do you think that…in a very real sense I’ve read you…I’ve heard you and I’ve read you and you indicate that your experience has got to bring other people out of the shadows, has got to make them understand…

WACHTLER: I would hope so. I would hope that people, who recognize the fact that they’re not functioning well mentally, and God knows I recognized that…I was going and leaving my house and checking into hotels just so I could spend the day in bed without anyone knowing about it. Registered under false names, I was weeping all the time. I knew that there was something terribly wrong. Joan…in the book I quote her diary entry, says in her diary entry the fact that there is something very, very wrong with me. But again, despite her urgings and despite what should have been my better judgment, I would not go to a psychiatrist. So I’d try to treat…well, I’d say, “I’ll get through this day, I’ll be alright soon. I’ll get better”. The message I would hope this brings to people is see a psychiatrist. Seek help. And if you see this kind of deficiency or this kind of abnormal behavior in someone close to you, insist on that person’s getting help.

HEFFNER: Do you think that the growing emphasis on chemical…on a chemical, biological approach to mental illness will remove some of the stigma of the talking cure? You know, you go and you talk and you talk…

WACHTLER: Yeah, I think by the way that the two have to work side by side. But I think anyone who has suffered the pain of depression, who sees or has seen the miracle of these new drugs, which can control certain chemicals in the brain, serotonin and so forth, would recognize the fact that there’s help, there’s salvation. Something we never had before, something we never had before. It’s treatable. I now have not had a vestige, a sign of severe depression in 5 years, since this happened. I’ve suffered no manic attacks, because I’ve been religious in taking the medication that was prescribed to me. So there is salvation if it’s properly delivered, and it’s properly managed under medical care.

HEFFNER: Do…I know it wasn’t true in your case…does the prosecution in this country, do the prosecutorial forces…are they coming to any significant and important and human degree, coming to deal with what you just described?

WACHTLER: …a half a dozen years ago we talked about a quote that at that time made me famous, and I was regretting the fact that I would only be known for that. Now I would settle…

HEFFNER: (Laughter)

WACHTLER: …but at that time I said that any prosecutor who wanted to could indict a ham sandwich. There is a mindset amongst the prosecuting class which wants to punish and just thrives on high publicity cases. And those people will not recognize, are reluctant to recognize – and by the way, I hate to categorize all prosecutors this way, because there are some who would understand…in my case I would have hoped that the prosecutor, seeing my aberrational behavior, instead of nurturing that for over a month, would have arrested me sooner, or would have seen to it that I received help sooner. Instead, seeing that I was embarked on this absolutely crazy course, he actually, working with others, helped FEED the frenzy which brought me closer and closer to my own destruction.

HEFFNER: Well, I won’t even LET you say anything nasty about all prosecutors since my son is one. But I gather there is that tendency…I don’t know how they could help, but the question really is this matter of the psychiatric component of what had become criminal actions. Does that become better recognized in your estimation?

WACHTLER: I don’t think so.

HEFFNER: Generally.

WACHTLER: I don’t think so. I don’t think so, because, again, we vest too much power in – by the way, this is something I’ve said for a long time – in our prosecutors. The sentencing guidelines, which we discussed during the last program, gives the prosecutor enormous power. Everyone has commented on it. Both liberals and conservatives alike can see the fact that the sentencing guidelines allows the prosecutor really, to determine the nature of the crime, to add it up on the grid, to determine what that person will be indicted for, because the prosecutor controls the Grand Jury, and we’ve discussed that before. Then determines not only the extent in how the crime will be treated in the process through indictment, but also the sentence. Because, again, the crime determines the amount of time the person serves. So that in my case, and I hate to take my case as an illustration, but I’m very familiar with it, in my case the prosecutor not only determined what I’d be indicted for – and he had everything from extortion to the Travel Act, which is designed to keep racketeers from crossing state lines with explosives – he had a list of charges that would have put me away for something like 18 years and fine me close to a million dollars. So he had this whole list, and then says to my attorney, “Look, if he pleads guilty to this and this, then he’ll only get this and that”. So that becomes his ability to bargain the whole thing. The judge isn’t even part of the process.

HEFFNER: But you know, it’s so interesting that you say that the judge isn’t even part of the process, because our mutual friend, Harold Rothwax has written what I consider a splendid book on the criminal justice system, and I don’t always agree with that I know. Harold says, as you know, because you read the book, he doesn’t believe that the judge needs to be a potted plant. He’s not part of that school. But I gather from what you’re saying that that’s not universally true, and that judges acquiesce to a very great extent.

WACHTLER: The judges are very upset with this, by the way. 4 out of 5 judges in a recent poll by the American Bar Association, 4 out of 5 judges feel that the sentencing guidelines not only deprive the judges of the sentencing discretion, but change the whole complexion of the criminal justice system to besting the prosecutor with the entire ability to run the system. And that’s wrong. It’s wrong. The prosecutor can determine what you’re going to be arrested for, when you’re going to be arrested, what you’re going to be charged with, what you’re going to be sentenced to. That’s wrong.

HEFFNER: I don’t know. Andy Heffner does not sound to me like a guy who does all that on his own. But I do understand what you’re saying. Look, there are some other things that you have addressed yourself to in this book, other things that I know you wanted to…to the public about crime and punishment. Let’s deal with some of the other things…

WACHTLER: Well, one of the things, one of the things, I think that there’s a belief that people…for example, people say “Yeah, there are a lot of people in prison, but the crime rate has gone down, and therefore there must be some correlation”. History will show you there is no correlation. Because, number one, yes, when you take a violent person off the streets, that violent person is not going to commit another crime and that…

HEFFNER: When you keep them off the street.

WACHTLER: When you keep them off the street. And to that extent, the critics are absolutely right. But we’ve always done that. What’s happened now though, because of the large amount of drug arrests, and the drug-related crime arrests, we pack the prison, again, as I said before, with a lot of people who don’t belong there, who belong in treatment centers. Or perhaps, for a short period of time – I’m not for the legalization of drugs – but they should not be put there for the 20, 30, 40 year sentences that they’re being put there for. I was in prison with some kingpins. And they said that – this was back in 1993 and the early part of ‘94 – they said that in the summer of 1996 the crime rate is going to go down dramatically. I said “Why?” And they said, “Well, you have 800,000 poppy growers who are in Afghanistan who, when the Afghanistan war broke out, went to Pakistan. Now that the Afghanistan war is over, they’re coming back to Afghanistan to do what they do best: grow poppies. So this will make heroin plentiful. Right now the street drug is crack, which is a drug of violence. As soon as people start using heroin, when it becomes plentiful, instead of crack, heroin puts the offender on the nod, whereas crack makes them go out and crack heads. Now, there’ll be the same amount of drug crimes, because dealing heroin is the same as dealing cocaine, but when people are taking the drug, they will be less prone to commit acts of violence and you’ll see, that in all the major cities…” – by the way, I have this in the book, in the diaries and the epilogue – point to the fact that sure enough, crime has dropped in all the cities in a major way. And if you look at the correlation between the crime and the diminished use, the cut-back use of crack, you’ll see. And it’s not because the drug fences have been so related to incarceration that the people aren’t dealing drugs anymore, it’s that they’re dealing different KINDS of drugs now. You’re not going to stop drugs from coming into this country. The bad part of their prediction is that the year after next, and I hope this is not prophetic, the crime rate will go up because heroin is going to be replaced by methamphetamine, which is manufactured in this country. So you don’t have to worry about the cartels anymore. And that when this starts coming in from the West Coast – this is a poor man’s crack it’s called, this methamphetamine, this is speed. And this will create crimes of violence. So that the answer to our problem, to our crime problem really is in drugs! It’s as simple as that. They have to be kept as a criminal offense, but we have to do more about treatment and rehabilitation in order to cure the addiction. We have to try to dry up the demand for drugs.

HEFFNER: Now it’s interesting. Bill Buckley who had done this program not so many months ago…he has come to the conclusion that the so-called “war against drugs” has been lost. That it is inordinately expensive, more than we can afford, creates side effects that we can ill afford. Therefore he is for decriminalization and legalization. You strongly feel otherwise.

WACHTLER: No, I’m not for the legalization of drugs. I do agree with him partially, though, I think we’ve lost the “war against drugs” and I think that we’re not going to stop the importation of drugs. If we build a 15 foot wall around this country, the cartels will build a 16 foot ladder. They’re going to get drugs in because the profit margin is such, the secretion margin is such as to invite the smuggling in of drugs. But legalization won’t work. It hasn’t worked in other countries. It won’t work here for many reasons. First of all, the illicit market will cut the legal market. They will be able to fabricate crack in much less money than the government will be able to make it available. It can be bought on the street. In addition, you can’t legalize it for children. And children are one of our big problems with the use and abuse of drugs. So they’re going to still use illegal drugs and that illegal market will still flourish. In addition, how can you legalize a drug that has this effect on people, on fetuses, on society in general. I would be very much opposed to it. On the other hand, I think if you have a low-level dealer who probably uses more than he or she deals, that that person should not be going to prison for 15 years. That person should be put in a treatment protocol for a year or more, and when let out, should be continually monitored, and in that way dry up the demand.

HEFFNER: What, all and all…we have a few minutes left…what all and all is your “RX”? You had a God-awful experience, you’ve written about it here in After the Madness, you’ve written about it brilliantly…what’s the prescription that you would write?

WACHTLER: Well, it’s hard realistically to do that. I would hope, in the two aspects we’ve discussed, Richard…number one, there would be a recognition, on the part of those who are mentally ill that they should receive help, professional help, and that members of the family should do that as well; that society would understand mental illness far more than they do, so that they could be more compassionate, and recognize this as a disease that is manifest as a physical disease, for which we do have sympathy. The second thing I would hope for, is that in our rage to punish, which has grasped us so, that we start distinguishing between violent and non-violent crime. That we recognize the fact that violent criminals should be treated harshly, and repressed in any way possible, because they are a cancer and a sore in our society. But that non-violent criminals, and the vast majority of people in our prisons are non-violent criminals, should be thought of as sentenced to an alternative kind of punishment. Treatment, a system that re-orientates that person to go back into society; that they will come back, and let’s not breed monsters, because they are going to come back as monsters. All of these things, I would hope, would be a part of our realization, some of which I try to communicate in this book.

HEFFNER: Where, in the minute we have left, where would the leadership to bring about those changes likely come from?

WACHTLER: That’s the problem. That’s the problem. The constituency for the changes that I speak to is extraordinarily small. Let some politician stand up there and start saying the things that I say and he or she is not going to be elected to office. You’ve got to talk about sending them away longer! Don’t talk about sending them away for 10 years! Send them away for life without parole and throw away the key! And everyone is going to cheer. So the reform will come from someone, number one, who has the courage to speak out, and from a public that starts realizing that we can’t spend billions and billions and billions of dollars to throw thousands and thousands of people in prison when that is only going to be counter-productive.

HEFFNER: I guess, Sol Wachtler, that I feel one of the keys and clues is to send everyone out to read After the Madness. I really mean that. It’s a great book.

WACHTLER: Thank you very much.

HEFFNER: Thank you very much for joining me, Sol Wachtler.

WACHTLER: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you would like a transcript of today’s program, please send $4.00 in check or money order to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. Meanwhile, as another old friend used to say, “Good night and good luck”.

Continuing production of THE OPEN MIND has been made possible by grant from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Thomas and Theresa Mullarkey Foundation; The New York Times Company Foundation; and from the corporate community, Ruder-Finn.

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