THE OPEN MIND
Host: Richard D. Heffner
Guest: Ed Koch
Title: “On Politics”, Part II
I’m Richard Heffner, your host on THE OPEN MIND. And this may very well sound like a show within a show, for I’m going to begin our program the same way I did last week, which is to remind you that when Ed Koch, perhaps the most different, the mort offbeat mayor of New York since Fiorello LaGuardia, was my guest almost a year ago, I said that I wasn’t going to ask him the usual questions about today’s crises in our town. I promised that since he’s so outspoken, so thoughtful, so involved in the very zeitgeist of urban America, and contemporary America is so largely urban, I would instead ask him larger questions about the style and the quality of leadership that perhaps could best help Americans both to realize the promise of urban life and to diminish what Lincoln Stephans once called “the shame of the cities”. I’m going to do the same today too, so many months later, for His Honor Ed Koch, so close now to the time when he will run again for Mayor of New York, is here with me once again on THE OPEN MIND.
Mr. Mayor, welcome back. It’s been a few minutes since we did our last program.
HEFFNER: But, you know, on our last program we talked about many things. Not cabbages and kings, as I had promised we wouldn’t at the beginning. We didn’t talk about crime. And here we are taping this show in November 1980, which dates it, but I think that’s important to know. Riding out to Rutgers University today I had the car radio on and heard a news report indicating that once again the crime statistics in New York (and I’m sure this is true for every large urban area) have gone up, have gone up very substantially. And I wonder what they do to your won thinking about what actions citizens can and should take in terms of this major question: crime in our lives.
KOCH: Well, I don’t think you can ask the citizenry to deal with this problem. It’s a governmental problem. And obviously we’re all struggling to deal with it. And it’s gone on for many years. And New York City is not the crime capitol of the United States. We’re thirteenth down on the list. That doesn’t help you if you’re assaulted in New York City, for me to ell you you’re worse off in Tucson, Arizona or some other city. But let me tell you what I consider to be the fundamentals here. Each part of our criminal justice system blames the other parts for failing to do their jobs. If you talk to the police, they will say, “Well, you know, we walk into the courts, and the courts let the defendant out before we’re, the policemen, out the door ourselves”. And if you talk to the judges, the judges say, “Well, the DAs are not presenting their cases”. And if you talk to the DAs, they’ll blame it or lay it off on somebody else. All through the system. And so, what I have done is, I’ve asked each sector of the criminal justice society, if you will , to tell me what they think is wrong with respect to their own eye or motes, and as it relates to the other sectors of the society. And pretty soon we will issue a report on that.
Let me tell you what I think we have to do. And it’s not a fixed point of view in terms of answer to all of our problems, but I’m going to give you condensed thought on my position.
KOCH: I believe that the pendulum has swung in favor of the defendant and defendant’s rights. So that society’s rights, which are paramount, are no longer paramount in our court system. Instead of having a system that is bent on doing justice and where you have a criminal to see that the criminal is punished, we have an adversary system. It’s like a game. It is not a search for justice. It is a search on the part of the side of the prosecution to convict and on the part of the defense counsel to exonerate, and the judge is sort of neutral up there. Now, I don’t think we can change that system to make it more like the inquisitorial system that exists elsewhere in a search for real truth and justice. But there’s some things we can do within that system. One, I happen to believe in the death penalty as a deterrent. Now, it happens that maybe 75 percent of the people in the City/State of New York and maybe the country believe in the death penalty. But you have the people who are opposed to it who say that somehow or other it is immoral. That happens to be permitted in the Old Testament, the New Testament. Pope John Paul II just spoke out and said that it was an acceptable option in certain egregious cases. So, from a religious or moral point of view, it is certainly acceptable. I believe it’s a deterrent. But even if it were not a deterrent, I believe that society has a right to show its sense of moral outrage. Now, therefore I have proposed and will continue to support he reinstitution of the death penalty, particularly where you kill a police officer. I can’t for the life of me understand why the Governor of the State of New York and the legislators in our assembly and state senate refuse to enact the death penalty, especially in the death, the willful killing of a police officer.
Let me take you to a second situation. We have court-imposed rules which will suppress evidence if a police officer makes a mistake in how he got it. I am not talking about a willful, malicious police officer who consciously commits a criminal act. I am talking about a police officer who is not supposed to be a barrister, a solicitor, a first-rate lawyer, and who is not supposed to be a constitutional expert, and who, when he enters a car or some other facility and doesn’t realize he has to have a search warrant, because he’s unaware of that particular section of the law or case law, and he secures a gun that we know murdered somebody, and that gun is the evidence that can be used to convict, that gun may be suppressed. And the murderer goes free. Now, I am not talking about constitutional bars. In some cases, we should change the constitution. That’s what amendments are for, you know. But within the current Constitution, you have a right to change some of these court-imposed laws as it relates to the suppression of evidence.
And thirdly – and then I’ll stop (there are about 11 different major legislative areas that I’ve asked the state legislature to address) – as it relates to bail. You know, there was a time, if you were indicted for first-degree murder, that you were not eligible for bail. And now you are eligible for bail. So the statute, as it relates to bail, is that bail must be reasonable when set. It doesn’t require that there be bail in every case. I believe that if you have someone who has a record, not just of arrests, but a substantial record of criminal offenses of a major kind where that defendant has been convicted of assault, of murder, of rape, and he comes back after a number of these crimes, that you don’t let him out pending the trial. Do you think that if someone has been convicted of rape two times, that if he rapes a third time and he’s out on bail from the second time of not, no bail having been fixed at all, that we should allow him out pending that trial? I don’t think so. So, if you say that, you’re attacked. You’re attacked as a racist, you’re attacked as a fascist. It’s ridiculous! And when you’re attacked, particularly when the epithet “Racism” is used, I say to those people, “Don’t you know that the vast majority of people who are assaulted in the City of New York overwhelmingly are black? That 80 percent of the victims of criminal physical assault in the city of New York are black?” Eighty-six percent of people who do the assaulting are black too. What difference does that make? The people who are the victims, black and brown and white alike, want something done. And constantly, when you take these positions, you’re assaulted by the so-called civil libertarians. I consider myself a civil libertarian. But I believe the rights of society are paramount, not the rights of the defendant. The rights of the defendant are to be protected. The rights of society to be protected are paramount.
HEFFNER: Now, let me ask a question again that I ask of other people who are not necessarily as eloquent as you are, haven’t made their case as well as you have. What’s the downside of that position? If you were back being a lawyer, being an advocate, involved in our adversarial system, what would you say is the downside of the position you’ve just taken?
KOCH: Oh, I’ll give you some of the statements they give. They say…
HEFFNER: No, that you believe is the downside. No qualms at all about what you just said?
KOCH: No, I have no qualms about it. I know what the infirmities are.
HEFFNER: What are the infirmities?
KOCH: Infirmities, for example, if you have the death penalty, I am sure that somewhere in some jurisdictions where they’ve imposed the death penalty someone who was convicted was wrongfully convicted and executed. I mean, that’s the worst. Okay? Now, I must say to you that we have, to offset that, cases of people who committed not one murder, but who were sent to jail for that one murder and then came out and committed one or more additional murders. And I am saying that I understand that society will make an error, and it is a tragedy. But the greatest tragedy of all is that people in our society are afraid to walk the streets, to stay in their apartments. And the ones who suffer the most enormous trauma are the elderly in our society who feel like prisoners, and when assaulted never recover emotionally from that trauma. Now, there are others who will say that when you do these things that you are going to commit these actions against blacks more than whites. Yes, that is true because 86 percent of the people who commit the crimes of violence happen to be black. But the victims are overwhelmingly black, and the fact is the black community is now rising up. I don’t know whether you followed those articles, saying that the black community has to address these issues. That doesn’t mean racism. If you happen to be white and are pointing out that 80 percent of the victims are black, is that racist?
HEFFNER: It’s strange to me that you make reference to the in-and-out quality of rapists and others who commit violent crime, and that your answer seems to be, or major answer – and you choose it first – is capital punishment. Have we not the capacity, have we not the indignation, have we not the resources to take such people and to remand them to prison and keep them there?
KOCH: There is no such thing.
HEFFNER: What do you mean, “There is no such thing”?
KOCH: There is no such thing as life imprisonment. It does not happen. They will tell you it happens. But what happens is that somewhere along the line, the persons involved allegedly where the key is going to be thrown away, come out.
HEFFNER: But now, Ed, Mayor Koch, you’re asking for a basic change. You’re asking for a change from a basic fix against capital punishment to electrocution of certain criminals who commit certain capital crimes. You’re asking for that basic change; can’t you ask for the other basic change? That we do learn to take the key and throw it away?
KOCH: I believe in punishment for those who commit the crime of murder, willful murder. I believe if you are prepared to willfully, maliciously take a life, you should know that your life is at stake. I believe that. If you’re telling me that we can’t get it, then I’m willing to take the second, which is the throw-away-the-key approach. But I know it doesn’t happen. And I know that…You see, the memory of man and women is so weak. And 15 years later, you’ve got the Birdman of Alcatraz, this nice guy with these canaries, right? (Laughter) And then you build a little story about them and they write their books and so forth. I believe in punishment. If you commit the crime of willful murder, be prepared to give up your life. I also believe it is a deterrent.
HEFFNER: What do you mean, you “also believe”? I thought that was the reason you believed it.
KOCH: No, two, I gave you two reasons. I said the Supreme Court has given two reasons that make the punishment of execution an acceptable option. They said one is deterrence, and the others is – and I’m almost quoting the language exactly, not quite – that society has the right to display its sense of moral outrage at particularly heinous crimes.
HEFFNER: But why?
KOCH: Well, that’s called society’s right for retribution. You know, there are people who say that somehow or other you’re not allowed to talk about revenge, that that is not a word that society is not allowed to use. I don’t understand that. Now, if you don’t like the word “revenge”, you can use the word “retribution”. You can use the word “punishment”. But what we’re saying is that society has the right to say, to you who commits a crime, “We’re going to punish you. We don’t expect you to be rehabilitated”. Nobody gets – “nobody” is too strong a word – very few people in prison are rehabilitated. That’s a fact. The purpose of prison today overwhelmingly is to keep you for some brief period of time where you can’t commit a crime against society.
HEFFNER: Okay. Now, let me ask, as Mayor of the City of New York, what are you doing to make it possible to keep some of those people, maybe all of those people, incarcerated, so they can’t commit the crime?
KOCH: Well, I’ll tell you what I’m doing. Firstly, I’m moving in the state legislature for changes in the law which will allow for quicker trials. Today, our judges – and they don’t like me to say it; they’re always very upset when I’m critical of our judges – do you know that our average judge in the Supreme Court tires 17 cases a year? And I think we pay them about $50,000. And I think that they’re getting a raise soon. Do you know that some of that is due not to their own actions but because we allow counsel to spend one, two, and as much as three days in selecting a jury, whereas in the federal courts it’s done in a couple of hours because the judge keeps control of it. Do you know that the defense bar basically controls how our courts work? If the defense bar – we’re not talking about lawyers who are appointed at the judge’s request to assist impoverished defendants, or the Legal Aid Society – if those lawyers want to tie up the courts, they ask for a trial. Because the courts are not able to give them trials. We only have about 21,000 cells in the whole State of New York, if we send people to jail. Last year, I believe, there were about 500,000 felonies reported as having been committed in the City of New York. Thirty–seven thousand felonies were the subjects of arrests in the Borough of Manhattan. And of the 37,000 that went to the Grand Jury, only about 5,000 came out with indictments, because they really can’t handle it. And of those 5,000, very few went to trial, and very few went to jail. We don’t have any way of punishing people who commit minor crimes. I mean, if you don’t send people to jail for different reasons when they commit a crime of assault – and I’ll give you an illustration in a moment of that—then what do you do with the person who smokes on a subway, who does graffiti and destroys the climate of our life by ruining our trains? There’s no way of punishing them. You can’t fine them; they don’t have any money. You don’t put them in jail. Where are the sanctions?
Or let me give you an illustration of what really bothers me. And I, you know, judges don’t like me to point out the cases, and I do it very rarely, I think, in my near three years as mayor, I’ve done it five times. So now I’m doing it the sixth.
HEFFNER: The sixth.
KOCH: We had a case where you have extortion by some blacks who come to construction jobs, and they say to the person who is in charge of the construction, “You hire blacks, or we’re going to shut down this job”. And then the person who is there says, “But we have blacks on our job. Look at the crew”. There may be 25 or 30 percent black, or whatever the percentage is, and the person who comes on the scene says, “But they’re not ours. We want ours on the job from this particular block or neighborhood or community”. And we had a situation where a group of such people came onto a construction job and mobbed the people who were on that job and committed violations of the law. So they were arrested. Three of them were arrested, of the mob that was there. And I said to Bob Keating, who is the director of criminal justice in my administration, “Follow that case. Just find out what happened to it”.
HEFFNER: What happened?
KOCH: And months later I found out what happened. They were given $50 fines. Now, let me tell you what that means. I asked Bob Keating, “I want you to tell us, what did it cost the City of New York or the court system in terms of police time and judge time and DA time to get that $50 fine? It cost $500, the City of New York, the government, for the $50 fine. What is even worse is that some of the three – I don’t remember if it’s one, two, or three of the three; I just remember the number – are what are called “predicate felons”. They had already been convicted of prior felonies. These were bad guys, right? Now, you say to that guy, “Listen, don’t you ever go out and extort again. Don’t you ever go out and assault people again”. He says, “Why not? It cost fifty bucks. It’s a license”.
HEFFNER: It really gets to you, doesn’t it?
KOCH: It sure does.
HEFFNER: It’s the thing that seems to get to you the most.
KOCH: Yes, sir. Because people have a right to walk these streets safely. And I don’t have control over the criminal justice system. The DAs are independently elected. And the judges are, the ones that I appoint serve there for ten years, they can’t be removed. The other judges, the Supreme Court judges who handle the felonies, are elected, actually politically elected, but we can go into that at a later time. And the only area that I have some control is the police commissioner. And there, I’ve said to the police commissioner, “I am never going to tell you what to do from a political point of view. If I found that you’re not able to do the job…” – It’s Bob McGuire; he’s probably the best police commissioner that the city’s ever had, and I believe that heart and soul – “If I ever find, Bob, that I’m not able to have confidence in you doing your job, I’m going to fire you”. But do you know, I couldn’t even do that if I wanted to, because under our law, he has a five-year term, and I only have a four-year term. (Laughter)
HEFFNER: But one thing you could do. You could give him more dollars, you could give him more cops…
HEFFNER: …you could make the streets more heavily populated by the policemen I don’t see any longer.
KOCH: Sure. Absolutely. Sure. And the fact is it all costs money. And I must say that we’re going to try to do everything. But just putting more cops on the street does not apprehend criminals. It means on that block, where that cop is standing, there may not be a criminal act. But you cannot put a cop on every block of 6,000 miles of streets.
HEFFNER: Sure, Mayor Koch, I understand that. But that brings us back to this question of the arguments. Does capital punishment deter? You say it does. Does the presence of more cops, does it deter? There are arguments on both sides.
KOCH: I’m going to tell you what most people in this field of criminology have said is the major deterrent to crime or to criminals. It is speedy trials, and the expectation, if convicted, of punishment. We don’t have speedy trials, and we don’t have punishment.
HEFFNER: What prospect do we have of either one?
KOCH: Well, I think it’s going to get better, because people are fed up. Listen, if they can remove a president, I know they can remove a mayor. That goes without saying. But they can also shake up a criminal court and a criminal justice system. I’m going to help them do it.
HEFFNER: You know that THE OPEN MIND is almost 25 years old, and from the beginning, Mayor Koch – and you were a guest years and years and years ago – from the beginning, discussions of the criminal justice system…
HEFFNER: …have gone exactly the same way. I haven’t had as activist a mayor sitting here saying, “I’m going to…
KOCH: I’m going to try! I mean, all within my power. I’m going to tell you just a brief little story that came out of my mayoralty which shows the anger and the frustration that people have. I went to a senior citizen group in the Bronx made up of 100 men and women. Happened to be a Jewish group. And when I came before them, I said to them, “You know, ladies and gentlemen, or crime is terrible, because you’ve told me that before I even opened my mouth here. And I want to tell you something that happened this very week. A judge that I know was just mugged. And do you know, ladies and gentlemen, what that judge did? He called a press conference, and he said to the newsmen there assembled, ‘This mugging of me will in no way affect my decisions in matter of this kind’. And an elderly lady stood up in the back of the room and said, ‘Then mug him again’”.
HEFFNER: (Laughter) Okay. You know, I started off this half-hour by asking you something that you brushed aside very quickly. I asked you – and we have just two minutes left – asked you about the citizens’ role. Now, I gather, not just in this city but around the country, this fed-up population is now beginning to take action into its own hands. And in this city we have the Guardian Angels. In other cities we have other mechanisms of helping those people who said, “Mug him again”. You’re kind of negative about that.
KOCH: No, I am not negative about auxiliary police officers. And the auxiliary police have been increased in my administration. When I came in, there were about 4,000; there are now 6,100, and they’re trained and they know what to do. I am not positive about groups that are paramilitary and not under any discipline, and we don’t know what they’re doing. Simply because you wear a beret, no matter what the color, does not necessarily make you a good or bad person. So, while I will never say to people that you shouldn’t organize on your community blocks and do whatever you can, I don’t think the answer is in that disorganized way. If you want to be helpful in a formal way, become an auxiliary police officer. But the real response to crime has to be through the police, the DAs, the cops, the parole system, the jail system.
HEFFNER: that’s your definition of the real response. But suppose a citizen’s response is, “I want to do something now, and I’m going to…
KOCH: Yes, well, then you organize in your community and on your block with your community organizations, and you have whistle campaigns, and you have people who patrol the streets at night an who are able, just by physically being on the block will know who’s there and who shouldn’t be there. We have that going. I don’t think that’s the answer.
HEFFNER: I gather there are those people who feel that your attacks — and I share your point of view – upon the adversary system and upon a system that doesn’t make sure that we have certain and swift justice has spread the vigilantism that is spreading in this city and elsewhere. Is that totally unfair, in the few seconds we have left?
KOCH: Not my attacks on…
HEFFNER: Yes, your attacks upon…
KOCH: Oh, really? Yeah? Well, then stop doing it. Because what I want to do is get the system changed in a lawful way so it’s a permanent structural change. I’m against vigilantism of any kind.
HEFFNER: Mayor Koch, thank you very much for joining me again. This could go on forever…
HEFFNER: …and I think maybe we should arrange for it to do so. Thanks.
And thanks, too, to you in the audience for joining us here on THE OPEN MIND. I hope you’ll come back again. Meanwhile, as an old friend used to say, “Good night, and good luck”.