THE OPEN MIND
Host: Richard D. Heffner
Guest: Willard Gaylin
Re: Crime & Punishment
I’m Richard Heffner, your host on THE OPEN MIND. As a college teacher, I seldom let a student escape my, hopefully, quite benign clutches without having read that extraordinary selection from Dosteovsky entitled “The Grand Inquisitor.” Well now I’ll always add Chapter 9, “Where is Justice?” from Willard Gaylin’s new book, “The Killing of Bonnie Garland,” for it thrusts so profoundly, so deeply, and I think, so wisely into the most basic questions that reasonable, responsible, civilized persons identify with the disturbing issue of crime and punishment in contemporary life. No, on its surface, “The Killing of Bonnie Garland” is a story of a horrible murder. Beyond that, however, it becomes a brilliant analysis of the sheer horror of our own growing inability to deal wisely enough with what Willard Gaylin calls the limits of individualism. Those in respect to the responsibility, and thus the punishments, that must be imposed upon those who commit criminal acts. As Dr. Gaylin writes, “we must not attempt to purchase an elegant and individual justice for each person at the expense of the concept called ‘social’ justice.” Concerning the matter of holding individuals responsible for doing violence to the law, despite psychological explanations, he writes about the necessity of preserving our social structure through punishment that fits the crime. He writes this way: “we must not wait until we reach a scarcity level in our trust and confidence in the essential fairness and decency of the state. We must conserve the sense of the rightness of our social order, even to the point of sacrificing some of that very respect for the individual which makes our order one that is worth preserving.” Clinical Professor of Psychiatry at Columbia University’s Collect of Physicians and Surgeons, and a distinguished practitioner of psychiatry and psychoanalysis, Willard Gaylin is President of the Hastings Center, a pioneer in the study of society, ethics, and the life sciences.
Dr. Gaylin, that you for joining me here on The Open Mind. I don’t know whether it’s coming from out of left field or not, or whether you will think that it is, but let me ask the question: do you believe in capital punishment?
Gaylin: In practice I don’t particularly believe in it. I don’t see it as serving any purpose. In theory, I don’t see any opposition to it. We’re constantly asking innocent people to die for the social justice of the state. We do it all the time. We made a decision, for instance, that we needed to conserve energy, so we designed small cars. We knew when we designed the small cars that more people would be killed. We send young men off to war. Innocent young men. So, in theory, I’m not terribly opposed to it. I think the state has a right to ask for one’s life. In practice, on the other hand, I think there are so many political issues that make it probably not essential.
Heffner: But why in theory? Isn’t that theory related to a very, very practical concern here in where is justice?
Gaylin: Well, it is. One of the points that I try to make is that the state has a right to punish an individual, independent whether it does any good or not. That was not a very fashionable idea. Punishment has not been fashionable. We say, all the time, “what good will it do to send Richard Herrin to jail? Bonnie is already dead. What good will it do? By really asking that question people have forgotten that that’s not what a jail is about. The fail is not to serve the purposes of the criminal; it’s to serve the purposes of the state. We hope that while we’re doing that we don’t have to be cruel or more unusually punishing than is necessary. But the punishment is more than just to deter other people from doing it. That’s been the defense if it in the past. The punishment is to say “this we abhor. This we, as a state, cannot tolerate.”
Heffner: You say, just a moment ago, “the state has the right.” In the book, it seems to me, you were saying that the state has the responsibility for letting the punishment fit the crime.
Gaylin: I think that’s a better word. I think it does have the… yes, in my sense, they have the right. But you’re absolutely right. They have more than the right. They have the responsibility. The good state has laws to preserve itself, but it also preserves its values. And it must announce those values. It must say to the Garlands or other parents, “we take the death of your child seriously. And we indicate how seriously that is by punishing the person who took this innocent girl’s life. Now, that does not mean that I’m no sympathetic to Richard, or to all the Richards of the world. I think there is something probably quite disturbed about a person who could take a hammer – a hammer – to a sleeping girl, and hammer in her skull. So I think there must be something disturbed, bizarre, about that kind of person. And I have compassion for him. But the purpose the law – to use your word, the “responsibility” of the law – is to say, that we take this crime dreadfully seriously. And the punishment, whatever we decide is a serious punishment, must be appropriate to the seriousness with which we take that lost life.
Heffner: yet it would seem and certainly it seems in your book, that it is you profession that, in a very real sense, has taken us off the track, the track of social responsibility. Is that a fair statement?
Gaylin: Absolutely true. I think the problem with psychoanalysis is – there’s a couple problems – it’s very individual oriented. Psychoanalysis is also something to treat the ill with. Now, you know, in illness we don’t make judgments. I don’t blame you for your rash or for your boil. You don’t apologize for showing me the ugly wound on your finger, if you come to me. I’m a doctor. That means that you’re not culpable. That’s what “sick” means, non-culpable. So that to the doctor, to the analyst, no one is guilty of anything. But worse than that, psychoanalysis introduced a whole other concept into the law. Psychoanalysis belies in something called “determinism” or “psychic determinism” Now what do they mean by that? They mean that every piece of behavior doesn’t just come out of nowhere. It’s related to the past. If your mother treated you this way, if your father did that to you, if this happened, if that happened. A thousand complex explanations. By implication, it means that you really are less than completely responsible for what you do. Given all that, you had no choice. So that, an example would be, if someone tries to stick you up, stick me up, stick someone else up, one of us will run, one of us will do something damned foolish like attaching the mugger because our masculinity is involved or something, or one will passively – and probably intelligently – give him the money and let him go. Now, which one we do is determined by our past. So, in a sense, psychoanalysis makes no judgments, and it doesn’t deal with guilt and innocence. As I say, to an analyst, innocence is an age, and guilt is an emotion. That’s all. But the law can’t operate that way. Now you may say, “well, which is true?” Is the legal concept that we are responsible true? And I can say to you that both may be true. There are different ways of looking at a human being. Which is a truer picture of your grandfather; the x-rays of him, or a portrait that somebody painted? There are different views. And for the law’s purpose, it has to assume responsibility.
Heffner: Dr. Gaylin, would you then remove from the law, let’s say, at the moment that we are taping this program, the ongoing Hinckely trial, would you remove from the legal process concerns for medical, psychological, psychiatric matters?
Gaylin: No, I wouldn’t. One of the things that concerns me is that, in pressing for liberalization of the insanity defense, more liberal use of it, excusing more and more people, the average person is getting fed up. And we may do away with the insanity defense all together. And I don’t want that, because I think while we must demand responsibility at an extreme limit we can afford to be a compassionate society and recognize that there are some people who are truly not responsibility. Now, the interesting that in the way the law works now is the truly crazies are never, or really acquitted on an insanity defense. Their crimes are so horrible that jury doesn’t want to hear that they’re not responsible. Whether it’s Manson or Garcy who chopped up these 30 people, or I suspect, Hinckeley, who may be… the people simply don’t want to hear that. So that the truly crazy don’t get off anywhere. Now, I think the insanity defense has to be reserved for a very peculiar, and maybe no terrible scientific reason. I think jurors are decent people. They want to do right. At the same time, their heart sometimes tells them that there’s something wrong about convicting a person. Yet they want to be good jurors. The insanity defense gives them a rationalization for what they want to do. It allows them to lean with their heart. And I don’t think that that’s bad. But I want it very constricted and very tight. And not expanded so it opens the whole Pandora’s box of exculpability.
Heffner: It is the age of exculpability, isn’t it? I’m not just talking about this particular trial or any particular trial that’s going on at this moment. We’re talking about an age when the concern for taking responsibility for your actions has bee diminished quite considerably.
Gaylin: No question. And it goes into all of our institutions. One of the things that interest me most, Richard turned himself in covered with blood, some of the brain tissue of Bonnie on his body, to a priest, a Catholic priest who didn’t know him. After 25 minutes with him, the priest shed tears, real tears, for him and told Richard that his first job now was to forgive himself. Now, it’s interest. That is part of the Christian religion. It’s part of the nobility of it. The concept of forgiveness. But never once, that I could see, was the concept of penance ever emphasized. And penance is, after all, a very important part of original Catholicism. After all, this is the Church that brought terrors to their knees (and not just for prayers) at one time. But the Catholic Church, like other institutions, follows the socially acceptable. It follows the intellectual fashions of the time. And punishment simply isn’t fashionable. Richard was told by everybody, “the girl is dead. Now you must learn to forgive yourself.” And they leaped with a kind of almost obscene quickness, I thought, from the crime to forgiveness over the whole concept of penance. I don’t mean that they don’t believe in penance, but it sure got short shrift.
Heffner: This seems to be true, though, of a great many people. And you say that it is part of the given today. It is the, not just the liberal approach, but the approach of a great many others who wouldn’t necessarily characterize themselves as political liberals. This movement away from “you take responsibility for your acts, and that responsibility includes being punished for them.”
Gaylin: Psychiatry contributed to that. The whole determine of sociology contributed. “Look, you were poor, you did this.” And all of these are true. But the biggest culprit, I think, is the idea that somehow or other we see everything from the standpoint of the individual. Now, I’m proud of that. I’d rather live in this state than in Russia, certainly, where there’s total contempt for the individual. But the point that must be made is, you can so protect the individual that you allow the destruction of the public space. Without the public space, without the place to move, if you protect the individual so much and forget that there is a common wheel, a common goodness, a common community that we must share, and it must be safe for all prisoners. You have then destroyed true liberty of any sort.
Heffner: Well, that, I suspect, is why – no, I don’t suspect; I know – that’s why this chapter, “Where is Justice” seemed to me to loom so large and why I would put it with classical statements of these problems of responsibility. What chance is there that your concerns, rational, reasonable, will become the basis for a shift back in our own society?
Gaylin: I think a good chance. Not because of my book or because of my writings, but because of a peculiar think that’s happening.
Gaylin: No. Anger will, perhaps, mobilize it. I think the concept of scarcity. You know, we’ve always been a rich country, and an open-ended country. And you can afford, therefore to be very individualistic. Bu you notice it’s at times of war, when there’s scarcity, etcetera, when you begin to think of the collective good. The fact of the energy crisis, the fact that we’re running out of stuff, everything. We’re running out of space, we’re running out of commodities that we never thought we would run out of, particularly in this country. Other countries knew you had limited space. Here, there’s always, you go to the frontier. Where a tradition of moving on. There was always more. Well, three is no more. And scarcity is forcing us to think collectively. We begin to think collectively about chopping down trees. So that across the political spectrum, the radical, liberal, to conservative, there has become an increasing concern about community. There’s an awareness that we are all in one isolated, closed community. And we’ve got to have more respect and value for it. It doesn’t matter whether it’s in ecology or energy or in public justice.
Heffner: Where will Will Gaylin be at the point at which we make that shift around?
Gaylin: (Laughter). I don’t know. I worry, because I certainly would not want to trade absolute safety for some of the risks that we take. I don’t want that. The absolutely safe state is an ugly state. A concentration camp, I suppose, is an absolutely safe place to walk around, if you’re on e of the concentration camp… So I’m only talking about the limits of individualism. I do not want to swing completely in the other direction. And I think it’s partly because I sense an erosion in the concept of fairness in our justice system that I write this way.
Heffner: What do you mean, “erosion of the concept of fairness? How does this come in?
Gaylin: The most demoralizing thing is if people feel it’s not fair. They’re working hard, they’re slaving away; you can’t walk in the parks, you can’t do this. That things aren’t’ working. It’s a very demoralizing concept. Well, actually these murders don’t take place all that much. They’re hardly that important in the criminal justice system, a Bonnie Garland or an assassination attempt. But they have enormous leverage. They attract enormous attention. And if justice is not done, or even if the perception of justice isn’t done…
Heffner: You mean fairness, don’t you?
Gaylin: Yes, I do.
Heffner: Not to be equated with justice.
Gaylin: No. But if the sense that things aren’t’ working, it just not fair, occurs, you make people very vulnerable for the most rhetorical, the most dangerous kind of talk. And I want an adjustment, that’s all. An adjustment away from the kind of individualism that neglected the environment and the community, and to more communitarial approach. Because, in a sense, I think we’ll preserve our respect for the individual that way. If you ask me what are my worries, I don’t want to see the pendulum swing all the way. But I think a little give in all of these directions protects against that kind of swing.
Heffner: Yet the give isn’t very likely to come if you talk about fashions and you say that even in this particular instance of the particular murder that you’re concerned about, even the Catholic Church became fashionable. One can’t take any great institution and say that it became fashionable, but that there were those in the church, or those presumably in the Yale community in which this murder occurred who did not accept the notion of responsibility that you…
Gaylin: They were the pastoral members. These were not the theoreticians. These tend to be chaplains, who are like social workers. They have very oriented… and also, the fact is – and this is why we have to protect against it – when a horrible murder occurs, first there’s disgust, then there’s a kind of feeling of impotence and helplessness. And, if you’re a decent person, compassion. If the dead person is no longer there, there’s only one person to exercise your compassion on, and that’s the criminal himself. In the peculiar way, this is exactly what happed. You embrace the bloody body of the killer, because we wanted to do something to show our concern. Now, I think that speaks to the humanist in us. And you say, “well, do I see a change?” I think I do see a change. And I do think the energy crisis, and before that the ecology crisis. People are getting worried. At one time you couldn’t talk about law and order for good reasons. It was an ugly euphemism that ultraconservative people and right-wing racists used, meaning as an anti-black kind of statement. But the fact is that law and order is a respectable thing. And those of us out of a more liberal tradition ought to take back the right to talk about that totally respectable concept of the law and of public order and the need for it. I think we are turning that way. I think we’re becoming aware that we have to think collectively. And so I’m optimistic on this. Now, unfortunately (laughter). Some optimist. I’m an optimist in…
Heffner: I was just going to say, well, that you’re always an optimist.
Gaylin: And that may be. You know, a friend of mine used to say, “your sickness is your optimism” And then he said, later, he’s been saying it’s a malignant illness. But I really do feel here that there is a place for optimism. I think people are becoming aware. Interesting that the whole insanity defense became elaborated so. You remember the Durham law, which I discuss here. Anything, anything was exculpated which was a product of mental illness. And at that time I looked up some mental illness. So, gastritis, meaning acid indigestion, was a mental illness. Pruritis, meaning itchiness, was a mental illness. Now, it became ludicrous. What it really meant… now, by the way, none of them are. All the definitions of mental illnesses a few years ago we’ve not changed, because the definitions were poor. Psychiatry has never been able to define adequately mental illness. And the law has never been able to adequately define what’s a product. So we made a rule that no one was responsible for this acts, called the Durham law, which was the product of mental illness. Well, it became a joke. Now, even those people who are most optimistic about it, Judge David Braslin, one of the truly creative jurists of our time, originally had hopes that this really would be effective. He no longer feels that way. There’s a pulling away. There’s a sense that we should tighten the insanity defense. Unfortunately, what you see happening now is some good people are so fed up with how far we went, they want to do away with it all together. Liberals. Liberals want to do away with it all together. And I’m saying that because it’s been abused, but it still spoke to our decency, and we have to protect it.
Heffner: Dr. Gaylin, would you testify for prosecution or defense at a trial?
Gaylin: I would never testify.
Heffner: I am sorry. I testified once, and only because it was a very special case. It happened to involve my profession. It happened to be a psychoanalyst who took sexual advantage of a patient. And it so outraged me that I had to let it be known that that was the kind of case I would testify. I think the conditions are impossible under the adversarial system for a psychoanalyst to appear in a courtroom and speak with any intelligence. I would appear about as idiotic as the average psychiatrist does when he’s there. To say the kinds of things I want would be so complicated, it would not help, necessarily, a jury. Or they might. I respect the jury might understand what I was saying, and I would trust their hears and their minds and their balance between their intelligence and their compassion. I trust that. But I know how the adversary system works. There are only good guys and bad guys. And they would never call me, for one thing. They call me, they discuss it with me, and they shoot me down, because they want, not an expert witness. To me, witness is a statement. Witness has a religious connotation. It means I swear to something. An expert means I swear not according to my biases but according to my profession. But what they want is a second adversary in the courtroom. They want a psychiatrist who’s going to be a hired gun. Who’s going to come out shooting. And the shooting is either, “this guy is totally sick, “ or that, “he’s totally healthy.” Nobody’s totally sick – well, some people are totally sick – but nobody is totally health.
Heffner: How do you evaluate the members of your profession who are hired guns?
Gaylin: Well, I don’t like it. This doesn’t mean that there aren’t some decent people who don’t testify in courtrooms. But if you were to see the names that appear most often in the courtrooms, they are not necessarily the distinguished members of the profession. Alan Stone was a former head of the American Psychiatric Association and is a scholar in psychiatry and called them a bunch of clowns.: I don’t know if I’d go that far. Maybe he’s just more honest than I am. And some of them are very decent guys. I’ve interviewed them. I’ve spent hundreds of hours. But some of them are hired guns. And some of them, I think, have perverted their sense of what it means to be a witness and what it means to be an expert, and I think betray their obligations to their professions and their obligations to a court of law. I honor those things.
Heffner: What about their obligations to their profession? Does your profession not establish criteria?
Gaylin: The profession is in a state of real disunity now. Everyone’s upset about it. They have a feeling that they went too far, they oversold themselves.
Heffner: The experts? Scientists in this area?
Gaylin: Now, there was a hope at one time that somehow or other psychoanalysis and psychiatry would bring intelligence and rationality and logically to it. And that’s what David Baslin hoped at one time. He had great faith that the psychiatric community… We simply oversold ourselves. We can’t. I don’t think we ever will be. Because I think there’s an essential contradiction. This is a hard thing for people to accept. I believe in parallel truths. I don’t have any difficulty with that. When I’m dealing with a patient, I can have compassion for things that in a bar I’d find ugly and despicable. It’s a different arrangement. And the two truths are different truths. And you must respect the setting of the truth. The law has to assume essential responsibility with few exceptions. Psychoanalysis cannot do that. We can’t operate that way. We approach you as a sick, not responsible, person. Now how can you combine those two things with any kind of logic? What happens, actually, is psychoanalysis is used so much that with this one patient, with Richard Herrin, they forgot to do what used to be the old-fashioned, simple, psychiatric diagnosis. And there were some very severe things that could have been brought out that weren’t. They were so busy talking about his mother and his father and his eczema when he was two years old, and all this sort of thing, they didn’t realize that this was a very literal, concrete kind of person. And there was some very good, old-fashioned testimony that could have come out. But they had to make a specific case. And I cannot be involved with it. Now, in many ways, you can say, “aren’t you being irresponsible?” And I’d have to say, “I’m torn about that.” But my copout is, they wouldn’t hire me anyway. (Laughter).
Heffner: You know, I was so fascinated by, in your prologue to this wonderful book, you say, “with them, the voice from the grave is present.” And you were talking about poets. You were talking about the missing person in the trial, and that was the victim, herself. You say that in poetry, or for poets, bringing back the voice from the grave is possible, but not in the trial that you witnessed.
Gaylin: It was not done. You see, what happens is, you have The State versus Richard Herrin. The state is a big, ugly, unidentifiable thing. Richard Herrin is a poor, Mexican-American boy. Went to Yale, was out of place there. Felt inept. And you see him now as a suffering person. It’s he who’s locked in a box, he who’s lock in fail. Bonnie Garland was never really presented in that courtroom. She died. She was forgotten. She was forgotten by the prosecutor. They never even showed a picture of this attractive girl. Now, I’m saying that even though their job is to represent the state, they must make the state visual to the jury by showing that what the state is is a collection of innocents, like Bonnie Garland. I would have had Bonnie’s picture three. I would talk about her beautiful red hair. She was a talented singer. I’d have made Bonnie come to life the way the poets make ghosts appear at banquets. And I’d make them see that when we talk about the state, we’re not talking about a building like the public library or post office; we’re talking about a collection of young girls and boys, and old ladies, etcetera. The common herd of innocent, law-abiding people. That the state. And so if I had been that prosecutor, I’d have given Bonnie the privilege of appearing at her trial, because it was her trial.
Heffner: In one review of your book, the reviewer talked about your not being cool about this. And though that was critical, I wouldn’t assume that it was critical, really. And I see the passion with which you approach this larger question. And I think, in that way, I want to thank you very much for joining me today, Dr. Willard Gaylin, and discussing this matter of crime and punishment.
Gaylin: Thank you for having me.
Heffner: And thanks, too, to you in the audience. I hope that you, too, will join us again here on The Open Mind. Meanwhile, as an old friend used to say, “Good night and good luck.”