GUESTS: Florence Kelley, Herbert Wechsler
ANNOUNCER: THE OPEN MIND, free to examine, to question, to disagree. Our subject today, Crime and Punishment. your host on The Open Mind is Richard D. Heffner, author and historian.
MR. HEFFNER: I think that if it had been a week ago when I asked myself the question that I want to begin with today, I would have perhaps considered myself to be irrational and anti-social. But today, I wonder whether the opening question on our program about crime and punishment shouldn’t be: Why punish crime, why punish criminals? So many of the areas that we want to touch on today will be illuminated in part by the answer to that question, and I have two guests that are eminently qualified to discuss crime and punishment so I’ll put the question to them. My guests are, first, Miss Florence Kelley, who is the chief of the Criminal Division of the Legal Aid Society. My other guest is Professor Herbert Wechsler, Professor of Law, Columbia University, and now Visiting Professor of Law at Harvard. Professor Wechsler, suppose I address that question as to why should we punish crime and why should we punish criminals, to you?
PROF. WECHSLER: Well, I think if you start to think about that, Mr. HePfner, the first thing you have to say is, let’s put the question of punishment, as such aside. And would you agree to change the question just a bit?
MR. HEFFNER: Okay.
PROF. WECHSLER: Why should we do anything about crime or about people who are found to have committed crimes, that is, criminals? I don’t think that’s a question that has any single, easy answer. I think there are lots of reasons why we have to do something, but I’ll state what I think is a central reason, and that is, to put down crime, to stop it, to reduce the frequency, at least, of criminal conduct as much as we can.
MR. HEFFNER: Miss Kelley, do you go along?
MISS KELLEY: And you see prosecution actually as a crime deterrent?
PROF. WECHSLER: Indeed I do. I see it as a crime preventative and one of the ways in which it accomplishes preven¬tion, it seems to me, is by making crime unpopular by indicating that people who commit crimes court the formal condemnation and disapproval of the organs of society represented by the courts and everything that goes with the penal law. But I don’t see it only as a deterrent, Miss Kelley, because — and that’s why I said, let’s put punishment aside I think it of the essence of the criminal procedure that this is a condemnation, you are condemning the act when you convict a person of a crime. Then the convicted crimi¬nal stands before the court for sentence, and now I think other things are involved besides just the question of deterring crime. We are concerned about him, what kind of person he is, what his future can be, and of course the possibilities of correction-and
rehabilitation must come into the picture as well as the need for protecting society against his actions so long as there’s real danger that he will do the thing again. Would you disagree with that?
MISS KELLEY: No, I see the whole process of criminal prosecution as a formal condemnation. It is what society is saying to people, that you cannot do certain things and if you do them, we are going to say that you have violated the law that all of us are supposed to live by and which we have established in order that we all can live together in some reasonable form of safety.
MR. HEFFNER: So then you’ll accept this, the change in the title of our program, first to Crime and Prosecution and then to Crime and Punishment. And on the level of crime and prosecution, do you think that prosecution per se can achieve the objectives th at Professor Wechsler states?
MISS KELLEY: I think that it may be our best method as of now. I think where I feel more strongly is when we come to the actual punishment part of It I think that we have to think more clearly in terms of the individual. I wonder how much of the process of prosecution we think of as important in terms of society.
In other words, society has condemned this activity and do we have prosecution in order to make society feel safe, or satisfy any punitive feelings people may have? And how much we think of it in terms of the individual who, for reasons that we may or may not understand, has found himself violating a law.
MR. HEFFNER: But should we think about the indi¬vidual when we’re talking about prosecution?
MISS KELLEY: I wish we thought more about the indi¬vidual violator than we do of what we theoretically describe as society’s stake in this thing. I keep thinking over and over again that every year more and more persons who have been convicted of crime go back into society, whether they have served a jail term or whether they’ve merely been found guilty and been given proba¬tion or suspended sentence or any other thing. This population of persons who have been convicted as criminals is growing all the time. And my concern, I think, is more and more with them because they are becoming a larger and larger fraction of the population of society itself.
MR. HEFFNER: Well, can I just talk back a minute and direct this question to you again, Miss Kelley? Would you agree with what I gather is Professor Wechsler’s statement, that the purpose of prosecuting crime is to protect society?
MISS KELLEY: I think properly it should have more focus than merely that. I think it should be a consideration of the convicted criminal as well as merely to protect society.
MR. HEFFNER: Why? Why should we consider him?
MISS KELLEY: Because he is in a minor part a part of society, and, as I say, because he’s part of a group that is becom¬ing a larger and larger fraction of society. And I think the proper handling of him in terms of him as an individual is just as important as the consideration of society as a whole.
PROF. WECHSLER: For his own sake? Or for society’s sake?
MISS KELLEY: For his own sake, which eventually is for the sake of society.
PROF. WECHSLER: Well, wouldn’t you be willing to see it as a balance of interests? The general public, let us say, feels a sense of insecurity when a major crime has been committed and of course is very properly concerned that official efforts be geared to the reduction in the number of such crimes, and that this individual, who has indicated anti-social propensities by what he did, should be dealt with in some way calculated to reduce the danger from him. I don’t say totally eliminated, but to reduce it. Now surely, that’s a valid interest and, on the other hand, I understand Miss Kelley to say that all of us ought to have an abiding concern with the individual before the court, simply be-cause he is a member of society as well. I would accept that, and I think most people would accept it, and that is what people would really mean when they would ask that sentences be just or that the treatment of the criminal have in it an element of justice. For example, if a very minor offense has been committed and a very severe sentence has been imposed, people generally tend to sympathize with the defendant and to feel that he has been shabbily treated.
MISS KELLEY: But Professor Wechsler, I would think in the case which you give as an example, society should feel even more insecure.
PROF. WECHSLER: I would accept that and I think it does. I think that is precisely what the sense of justice is, that a good society is not a society that executes people for minor offenses. That’s a tyranny and you immediately recognize it as such.
MR. HEFFNER: Well, let me bring up this question. Do you think, Miss Kelley, since you deal every day with people who are going to have to go before the bar of justice, do you think that we over-prosecute?
MISS KELLEY: Well, I …
MR. HEFFNER: Prosecute, not penalize there.
MISS KELLEY: I’m going to answer. I don’t know whether I’m answering you directly. I think this feeling on the part of society of insecurity when they read in the paper about some crime which makes them feel very strongly that somebody has done something dreadful .t.s allowed possibly too much stress, too much effect in the criminal prosecution. I think that the very way a defendant may be handled in a particular case, if there has been a great deal of publicity about his case, may to a certain extent distort or alter what I would consider a routine prosecu¬tion. I don’t know whether I’ve answered your question directly or whether I’ve avoided it somewhat.
MR. HEFFNER: I won’t say you’ve avoided it.
MISS KELLEY: I didn’t mean to.
MR. HEFFNER: I will just extend it a little further and ask whether you think we do prosecute overly much, whatever the reasons may be?
MISS KELLEY: I think we tend to in a publicized case.
MR. HEFFNER: Well, then, let me ask another question, following it up — ask it of both of you, if you agree. Do you, by the way, think that we tend generally to over-prosecute?
PROF. WECHSLER: It’s not easy for me to answer that just as the question is put. I think you need a little background for it. Don’t you think so, Miss Kelley?
MISS KELLEY: Well, Professor Wechsler, let me give you a very direct example which I had and which brought this clearly to my mind. At a time when there was a very distressing kidnapping case which all of us were reading about in the paper and all of us were sympathizing with the parents of this child, there was a person who was brought to my court charged with kidnapping. It was an entirely different kind of kidnapping. The child hadn’t been injured, not only not injured, but no harm had come to it at all. It had been well taken care of and well fed. However, technically, I suppose you’d call it a kidnapping. I felt strongly and the feeling of the judge and the court attendants, everybody in the court was that that case should be delayed until somehow the general atmosphere had been allowed to become tempered before the prosecution should go ahead. Now this seems to me an example of exactly the point I’m trying to make.
PROF. WECHSLER: I’m smiling because I can’t believe that you didn’t persuade them about that.
MISS KELLEY: Well, if you meant I got a delay, I got a delay.
PROF. WECHSLER: Miss Kelley is a very persuasive lawyer, you know, and one of the really potent influences for keeping down excessive prosecution in New York. But when I said I thought you needed some background on that, Miss Kelley, what I meant was this. Excessive prosecution can mean to me either one of two different things. First, that you have too many penal laws, that is, that there are too many things about which the legislature has taken the easy course of saying, “Oh, well, we want to stop that. Let’s make it a crime,” I think this is one of the really serious problems with our modern criminal law which has grown to such extravagant scope not in the area of common crime that we’re all familiar with, robbery, rape and kidnapping, but regulatory offenses of all kinds, that many of which, it seems to me, would be much better dealt with through processes other than criminal law. Now, you ask about excessive prosecution. I think I would say yes, I think there are areas where there’s excessive penal law and to the extent that it’s enforced, of course, you have excessive prosecution. And when you get to the area of common crime, which was really what Miss Kelley was talking about, and the delay in her kidnapping case, here it seems to me you have a very tough problem. Isn’t it the intention of the law that there be relatively equal prosecution? I mean that when reliable information as to the commission of a crime is brought to the prosecuting agencies and they have enough with which to proceed, isn’t it their duty to proceed?
MISS KELLEY: Well, I think it’s their duty to proceed …
PROF. WECHSLER: I don’t mean at that particular moment without reference …
MISS KELLEY: That’s what I was going to ask you. I think it is their duty to proceed but I think equally that a good prosecuting office has an equal duty not to press a case when, because of an outside influence, what we oall general justice could not be obtained.
MR. HEFFNER: But wouldn’t there be some people in your profession who would say by prosecuting immediately society was going to be protected even more?
MISS KELLEY: Yes, and get a quicker conviction. Be sure of a conviction. But that’s the very point I would disagree with – I would say certain people would say that. But I would disagree very strongly with them and I see the duty of the prose¬cutor as well as of the defense lawyer in using such methods as they can in waiting until a period when the defendant will not be unnecessarily penalized for what they’ve done.
PROF. WECHSLER: Well, now, you’re talking about the defendant and the punishment. Do you think possibly …
MISS KELLEY: Even prosecution I’m talking about.
PROF. WECHSLER: Well, let me ask this question. Could you be convinced that immediate prosecution in this case would have been a source of greater protection for society? And if so, would you have urged immediate prosecution?
MISS KELLEY: I don’t think so, because whatever this defendant had done is not altered by publicity in another case. However, the prosecution may be affected by it.
PROF. WECHSLER: But don’t you think you’re putting a very special case here really?
MISS KELLEY: I think that’s right.
PROF. WECHSLER: You look at criminal law administra¬tion as a whole. Wouldn’t you say that the answer to Mr. Heffner’s question is not that we have too much prosecution, but that taking the volume of crime as it is, we probably have too little. That is to say, we ought to be concerned with constantly improving the facilities available for detecting, identifying and apprehending criminals so that they may be prosecuted. I should suppose that that’s the fairer diagnosis of the general picture, putting aside questions of timing and the like that are relevant to a fair trial.
MISS KELLEY: Well, I think for the protection of society we’re all interested in more effective, better prosecution. I would have no reservation about that at all, but I would feel very much better about it if I thought the end result, and now we’re getting to sentencing, were better. And that’s the part where I disagree.
MR. HEFFNER: Let’s go on to punishment, then. What do you feel about punishment and crime today? – Not about an ideal situation.
MISS KELLEY: Well, I think that generally all over this country, there is a tendency to ask for increased sentences on crime. I notice it particularly with drugs. We’re all excited about the use of drugs in this country and I think it’s normal and proper for us to be concerned. It’s a thing we don’t seem to quite know how to get hold of and deal with and stop. However, this business of one state after another, and the Federal Govern¬ment, simply saying that the sentence should go up doesn’t seem to me the answer to the problem. And this also comes to my point of feeling that a jail sentence is not, in my mind, always a deterrent. I think the example of drugs is perfect in this area. Increased sentences, mandatory minimums, has not stopped the use or the sale of drugs. However, the reason for passing these laws has been that it would stop it.
MR. HEFFNER: I remember Congressman Boggs on this program – he’s one of the co-authors of the recent death penalty bill for pushers or second offender pushers …
MISS KELLEY: The Federal law.
MR. HEFFNER: The Federal law..
PROF. WECHSLER: It’s not even limited to second offenders.
MR. HEFFNER: Is it? First offenders at the dis¬cretion of the jury?
PROF.WECHSLER: Yes, provided that it’s given to a person under eighteen and that the defendant is over eighteen. At least that’s my recollection.
MISS KELLEY: That’s right.
MR. HEFFNER: And I think a recent arrest was the first one in which this may be put into effect. But he claimed that there hadn’t been stringent enough laws, so that he would say we haven’t seen what we can do with really stringent punishments written into the law.
MISS KELLEY: Well, what he was really talking about was that mandatory minimum. I think that very few people would have argued that the maximum punishment allowed by the law was not enough, but what they were really saying is that we don’t want any longer to allow the judge to use his discretion so that he will give less than the maximum, so that they’re very busily trying to put in mandatory minima which takes away from the judges the discretion of giving less than five years or less than ten years.
PROF. WECHSLER: I must say that I don’t agree with Miss Kelley about everything but I couldn’t agree with her more about this, M. Heffner; about mandatory minima generally. In the American Law Institute work that I’ve been doing we’ve been making a lot of studies in the operation of sentencing plans. And if there’s any single prediction that one could make with confidence it is that mandatory minima are likely to be nullified in practice to prove unworkable in experience and to create for judges and prosecutors the most torturing problems of conscience. They’re constantly being nullified because their injustices become evident in a particular case and then what happens is that a device is employed to prosecute for some other offense or for a lesser degree of offense which will avoid this mandatory minimum. If there’s any one prescription that I think one can make for legislatures in the light of experience, it is not to prescribe minimum sentences which are mandatory upon the courts. The courts are quite alert ih. Cases that call for severe sentences to impose them. And one would find it very hard, I think, to document the point that they are inadequate in their response to serious situations.
MR. HEFFNER: Well, you agree on that. Let me go back to your answer to my first question about why punish crime? And we are in the area of punishment now and you say protect society.
PROF. WECHSLER: I didn’t say that. You said that. I said …
MR. HEFFNER: I’m at the mercy of a lawyer — two lawyers.
PROF. WECHSLER: I said, it would reduce the incidence of crime. I think my words were “put down crime”.
MR. HEFFNER: You wouldn’t equate those?
PROF. WECHSLER: Well, they aren’t the same words, and “protect society” has to me a larger meaning and introduces other values. I don’t think it can be the only purpose.
MR. HEFFNER: All right, let’s limit ourselves to reducing the incidence of crime. Do you think that punishment, as it exists today, the general picture of punishment in this country – are we over-punishing or under-punishing in terms of put¬ting down the incidence of crime?
PROF. WECHSLER: I think that’s probably a question that it’s almost impossible to have a firm opinion about. I think one can say things about it. I think so far as the legislatures are concerned and what you find in the statues, that you certainly will find the use of maximum sentences commonly that seem very excessive and anarchical in relation to other offenses. And you’ll frequently find this with mandatory minima, though the tendency has been against mandatory minima, wouldn’t you say.
MISS KELLEY: Until recently. It seems to be in a retrogressive phase where …
PROF. WECHSLER: Yes. I think a great deal could be done to rationalize this legislatively by having just a very few categories of maxima for sentence purposes. Not thirty or forty different types of sentences that may be imposed, each one set up at a different time and without reference to what the books say for the next thing, which is the typical patteran today legis¬latively. That could be greatly improved by legislation and that’s what we’re working on in the American Law Institute. Now when you turn to judicial sentencing within these maxima – or sometimes minima – then again you get such variant patterns from place to place, and offense to offense. And then the third thing is -there’s another figure you have to take into account. Not the sentence, but how long did the prisoner actually serve If he was sentenced to imprisonment? When was he released? Was he released on parole? It may surprise you if I say confidently that I don’t think that anybody has sufficient overall data at his command about this to give a general answer for the country.
MR. HEFFNER: All right, now let me make it more specific and say in terms of the Legal Aid Society’s work here in New York, how do you feel about this question?
MISS KELLEY: Well, may I speak as Florence Kelley and not for the Legal Aid Society because I don’t know whether they agree with me or not. I agree with Professor Wechsler that good prosecution, effective and efficient prosecution may well be our best shot at putting crime down. But I don’t think that the kind of sentences that are being imposed necessarily is a part of putting crime down. Don’t forget that when a defendant com¬mits a crime, he doesn’t ever expect to be found out. He just things he can get away with it. Now, efficient prosecution would catch him, wouldn’t it? I mean he would be found out and –
PROF. WECHSLER: Well, it could never be perfect.
MISS KELLEY: No. But then, efficient prosecution would mean driving at finding him out in more cases, the presenta¬tion of evidence better so that once you found him he’s properly convicted and doesn’t walk cut. Well, I think there is something that I feel so strongly that – at the risk of sounding unreal¬istic – I don’t think I’ve ever talked to a defendant that I have ever felt a jail term has really improved or improved his chances of being able to live in society without breaking the law again.
PROF. WECHSLER: Has it reduced the incidence of crime?
MISS KELLEY: I don’t thinkit has. I’m not talking about efficient prosecution, I m talking about jail sentences.
PROF. WECHSLER: Are you really suggesting, Miss Kelley, this – that you feel confident that if we took prison sentences — you mean prison as well as jail, don’t you?
MISS KELLEY: Yes. Yes.
PROF. WECHSLER: If we took prison sentences out of the book, if we changed the law so that whatever might be done with a defendant he couldn’t De deprived of his liberty, that this would have no effect on the incidence of crime? I can’t believe you’d say that.
MISS KELLEY: I think something has to be done with a defendant for his own sake, not for the sake of this general concept of society. Whether he has to be put in an institution where the process that he should go through means that he can’t be entirely free, I’m not prepared to say. But I think prisons, as they are now constituted, do not help the defendant either in terms of the realization of his own obligations, nor do they pre¬pare him better to cope with society when he is released. And I feel this very strongly, actually, from talking to these defendants.
PROF. WECHSLER: Well, actually you’d agree, wouldn’t you that the use of probation gives us an opportunity to save many cases?
MISS KELTRY: I do agree. I do agree.
PROF. WECHSLER: But surely not all cases are ripe for probation.
MISS KELLEY: I’m not sure I agree with that.
PROF. WECHSLER: Well, I think this is an issue.
MR. HEFFNER: This is an issue and well have to bring it up on another program at another time Thank you so much, Miss Florence Kelley and Professor Herbert Wechsler. We certainly haven’t solved all of our problems concerning crime and punishment or crime and prosecution. We’ll come back to this subject.