About the Judiciary: An Avalanche of Lawyers, Laws, and Dubious Cases, Part I

Host: Richard D. Heffner
Guest: Kenneth Conboy
Title: “About the Judiciary: An Avalanche of Lawyers,
Laws, and Dubious Cases, Part I”
VTR: 1/11/94

I’m Richard Heffner, your host on The Open Mind. And when he first joined me here over a dozen years ago, I introduced my guest as a careful, scholarly, particularly judicious and highly skilled attorney with a meticulous concern not only for constitutional imperatives and the rights of the accused, but also for what overall must be an efficient, effective, and fair judicial system. At that time, Kenneth Conboy was New York’s Deputy Police Commissioner for Legal Matters, had been a leading prosecutor, would become Commissioner of Investigation, then, until he resigned from the federal bench, was United States District Court judge in the highly regarded Southern District of New York. Now he practices at the distinguished Mudge Rose law firm here in New York.

Well, all kinds of factors forge a person’s important career choices, both early on and even later in life. Surely they needn’t be probed. But at least some of those that operated in Judge Conboy’s decision to leave the federal bench, for which he was so ideally suited, surfaced in a quite revealing as well as disturbing op-ed piece published in The New York Times at the end of his tenure in Foley Square where the federal courts sit. The Times labeled his commentary “Trouble in Foley Square,” referring to an avalanche of laws, laws, and dubious cases.

So let’s ask Judge Conboy for his citations for what I continue to hope will not be his final opinion from or on the bench.

Judge Conboy, be more specific about the problems in Foley Square.

CONBOY: Well, Dick, the federal system, of course, is a place where a very wide and diverse range of cases is heard. In Foley Square particularly there is a criminal and civil docket. And these matters are in greater profusion today than ever in the history of Foley Square. The docket has increasingly enlarged, and a very principal reason for this is the disposition on the part of Congress to create entitlement after entitlement. So what we have now is an avalanche of criminal cases and a very, very large volume of civil cases, all of which crowd the courtroom and seek to get the attention of the judges, who in turn have less and less time to reflect and resolve these matters.

The fundamental problem, of course, in all large cities, is the cocaine problem, the heroin problem. And that in turn is the result of the determination of Congress that our only approach to these crime control issues is to be federal law enforcement. So what has happened is that the Federal Bureau of Prisons has almost doubled in size, the criminal docket is now about 18 percent of the overall docket, where it was only seven percent when I first started practicing law. So the emphasis in federal court has shifted to that of being almost a local police court. And it has significantly altered the culture of practice there.

HEFFNER: You say “Altered the culture of the practice there.” Tell me what you mean.

CONBOY: Well, when I was first admitted there in 1964, the Federal Court in Manhattan was principally a civil court. It was a place where the great legal issues of patent and antitrust and securities regulation and labor law and other allied aspects of a developing federal statutory and constitutional law was practiced and developed. Now, as I say, it is given over in large measure to criminal cases, principally narcotics, to discrimination cases. Many of these cases are unstructured, plaintiffs are without lawyers, and they are in significant measure very subjective in nature. So what you have over the course of a typical judge’s day is intractable problems that very, very often take inordinate amounts of time to get from the pleadings stage to the trial stage.

HEFFNER: You talk about “intractable problems.” Is this an intractable situation?

CONBOY: Well, I think what we have to do, Dick, is to decide as a society whether we are going to continue to deal with the crime problem as simply a law enforcement specialty.

HEFFNER: But the drug problem.

CONBOY: And especially the drug problem. Of course, most crimes of violence are the direct or indirect consequence of drug addiction. It’s estimated that about 80 percent of all of the inmates in the prisons of America are either drug addicts or drug abusers. And I would simply observe, which I am sure you appreciate, we now have over a million Americans in jail. We have more people in jail per capita than any nation on the face of the earth. Our prisons are becoming increasingly crowded and increasingly brutal places. There’s very little in the way of rehabilitation in these places. For example, in New York, the governor and the mayor spent in excess of a billion dollars over an eight-year period in enlarging the facilities. They are now still overcrowded.

So, what we have to do is focus on alternatives, and the alternatives that really do cry out are treatment and education. And there simply isn’t at this point the political will to provide the resources to do that effectively.

HEFFNER: What could give us the political will?

CONBOY: I don’t know. I really don’t know, Dick. The level of fear and anger in the country at large in response to violent crime is just so great that one has to be sympathetic to a congressman or to a senator or to a police commissioner or mayor that the answer has to be increasingly more and more and more of the draconian responses we’ve had from the Congress. For example, it may not be generally known by the audience, but we have a preventive detention statute now in the federal system. You are remanded, when you are arrested, even though you’re presumed innocent, if you are charged with most drug crimes, you are presumed to be a danger to the community. We have, with respect to our state system, we have three and four times the number of prisoner complaints, which in turn clog the civil side of the docket. So the crime issue is the thing that’s driving life in federal court today in most of the large cities, and indeed even in the smaller districts, or districts with fewer judges and less cases.

HEFFNER: But you spoke also about entitlements. You saw them as driving this machinery that is getting out of control.

CONBOY: Well, unfortunately, Dick, we now have so many classes of entitled citizens in the discrimination area that these cases are simply overrunning the docket. They are a very, very large and significant part of the docket. Indeed, they take a far greater proportion of the docket than their numbers suggest. Typically the plaintiff does not have a lawyer. Most lawyers, on examining these cases, will not take them because they are so unpredictable and unstructured. So what you have are civil cases that simply take endless court sessions and motions and floods of paper and still no adequate resolution at the end of the line. This is, of course, part of the national imperative to deal with the very real problem of discrimination through court litigation. I would like to see more companies use arbitration and dispute mediation. Have that as part of an employment contract. So that the matter can be focused on and resolved in a much more efficient and effective way than getting into the formal process of litigation in federal court.

HEFFNER: Is that a cop-out, saying, “Well, ADR, or alternative dispute resolution, move people there?” Is that a way of saying this is … You used the word “intractable” before, and I fell over it. But if these problems are intractable, is that a cop-out to say at least get the commercial suits out of here, out of the court, let the ADR people handle those?

CONBOY: Well, Dick, in point of fact, a large percentage of the non-discrimination cases are indeed being resolved now in alternative modes of hearing and resolution. This is a very, very common alternative now to coming into either federal or state court, girding one’s loins to spend thousands or tens of thousands of dollars to take years to do it in the formal context of procedure and hearing and trial. The great advantages of mediation and arbitration is that it can be as informal as the parties want it to be. And it does not involve the intermediate phases that are so expensive, as for example deposition-taking, the fighting over pleadings, the intermediate motions that very often take months, or indeed, in some cases, years to resolve.

HEFFNER: But doesn’t it remove from resolution the tempered judicial contribution of someone from the bench such as yourself?

CONBOY: Well, I don’t think that what is needed in every conceivable dispute between and employee and employer is a federal judge who very obviously is there first and foremost to interpret the Constitution and to apply federal statutes, interpret them and apply them on a broad range of cases. What is needed in most of these matters is an objective and fair-minded person. And I don’t think that there is a monopoly of that on the bench. I think that there are many, many sources of even-handed, experienced, and indeed shrewd observers of human behavior and the corporate scene who can resolve these matters very quickly and inexpensively.

HEFFNER: Is there any concern on your part that there is a body of precedent being established outside of the court system that may build and build parallel to the court system?

CONBOY: No, because what is largely addressed in a mediation setting is fact-finding. And of course the kind of precedent that you refer to is the law side as opposed to the fact side. And legal development or the growth of the law typically comes in appellate cases. While it’s true that in certain cases a trial judge may file an opinion that can contribute in some way to the larger growth of the law, the fact is that these great majority of these thousands and thousands of cases being filed in federal courts across the country, and in state courts as well, they do not implicate new or divergent theories of law or legal concepts that need the extrapolation that one would find, for example, in an antitrust opinion of the Court of Appeals.

HEFFNER: You don’t think that’ll happen while the court’s back is turned?

CONBOY: I think that, generally speaking, what the parties ask the mediator to do is to decide simple credibility questions. And that is of course what happens in a trial in a courthouse. Only in the special or idiosyncratic case do you have a larger legal value implicated where a judge is disposed to write careful and systematic opinion and where that opinion is then reviewed and perhaps reversed or enlarged upon in the Court of Appeals and indeed ultimately perhaps taken to the US Supreme Court. Remember only a tiny, tiny fraction of the circuit decisions are reviewed in the Supreme Court. And in only a very small percentage of the trial records is there a formal and extensive circuit opinion. So this kind of fact and law division is really quite common within the court system itself, so we ought not to be concerned about it in the mediation context.

HEFFNER: You know, when I read in The Times that you were leaving the bench, couldn’t help but think of one particular question, and that was whether in the years that we’ve known each other you’ve gone from the police commissioner’s office, commissioner of investigation and so forth and so on. Your years on the bench, did they contribute to your changing your mind philosophically or in any other way on issues that you felt very strongly about before you went to the bench?

CONBOY: Well, I must say the experience of having the responsibility to sentence individuals to prison is quite a formative and, I guess I shouldn’t call it mind-altering, but it certainly is an attitude-altering experience. After all, as you may know, the Congress has passed many mandatory minimum sentences now, and judges are required to impose a five or a ten or a 15-year sentence, even on persons marginally implicated in narcotics trafficking. Indeed, many, many of these individuals are drug addicts. And when you see individuals who are 21 or 22 or 25 years old who are on the margin in many of these cases, and you are obligated under the statute to impose a five or 10 or 15-year sentence, that is a difficult responsibility to carry through. We obviously are obligated to follow the law, and we do.

But I must say I am less enthusiastic now than I was as deputy police commissioner, to the point that the answer is draconian sentences and building prisons. In other words, the whole theory of segregation, to take the offender and to remove the offender and to have, if not the general deterrence of other malefactors in society at large, but simply to interdict any further antisocial behavior on the part of the individual who is going to prison. The fallacy in that argument is that you will never have sufficient jail cells to deal with the numbers of persons who are involved in violent and drug behavior. I do believe that it is a big mistake not to have a very broad and well-funded component in our anti-crime efforts to educate and rehabilitate. I think it’s a terrible, terrible error to think that all we need to do is to build more prisons. Because the market is simply too lucrative. And as long as the addicts are there, and as long as the causes of addiction are in the community, then you will have new candidates for a new prison cell to be built next year or five years from now. It’s a cycle that cannot be stopped unless you eliminate the addict.

HEFFNER: Do the, does the rigidity, to the extent that there is rigidity in the federal sentencing guidelines, that contribute significantly to your decision to leave the bench?

CONBOY: Not significantly, but it was a factor. The difficulty with the guidelines is that they remove a significant amount of discretion from the trial judge in terms of what is fashioning an appropriate sentence. Now, I must say that before the guidelines were enacted there were some very real and appropriate criticisms that there was very great diversity and variance in the typical sentence imposed on the typical defendant for a typical crime. For example, if a person is convicted of one count of tax fraud in New York and wound up getting probation, and the same type of offense led to a three-year jail sentence in Colorado, well, obviously this does raise questions about fairness, and this kind of disparity did leave many, many who view the system with the conviction that this is simply an unfair process. So the guidelines were in one respect designed to eliminate that disparity. What has unfortunately happened is that it has become an immensely complex system that has led to protracted sentencing proceedings that has impacted the docket very negatively and that has, in the ultimate sense, deprived the judge, in cases where leniency was really necessary, has deprived the judge of having the authority to be lenient.

HEFFNER: What do you feel then might be the resolution of this conflict between disparities that are vast and unfair and rigidities that lead to sentencing that you yourself feel is unfair?
CONBOY: Well, the guidelines do authorize what are called “downward departures.” And the downward departures are an area of the guidelines that I think can, with some measure of appellate flexibility, become more a viable ground to avoid the unfair or the unduly harsh sentence.

HEFFNER: Then why the concern?

CONBOY: Well, the difficulty, of course is that the guidelines are administered on a national basis. And as you inch away from adherence to the formal constraints, you, of course, tend to lapse toward the very condition that induced the guidelines in the first place. Clearly if we have too murky and generalized a standard for a downward departure, then that is going to lead to judges essentially doing what they subjectively feel is best. That in turn will lead to the kind of disparity that was objected to. So what’s needed is a systematic and balanced process.

I’m not without hope that – after all, the guidelines are only five or six years old – I think perhaps over time they may through appellate interpretation and changes that the guideline commission itself authorized, because there is an ongoing commission that is constantly looking at these problems, that in the course of another three, five years, it may be that the formal rigidity can be tempered by some modifications that will allow for a good compromise between untrammeled discretion, which was the problem before, and little if any real discretion, which was the problem up until recently with the guidelines.

HEFFNER: Are there any other larger legal concepts, constitutional concepts about which you may have modified your thinking, if not changed your mind, in these years on the bench?

CONBOY: Well, I must say, having handled a number of cases in the First Amendment area, that I have become very much more an absolutist with respect to the First Amendment. I think that this is especially the case now as we see so many cases coming into federal court on the political correctness ground. And I am amazed at the efforts that one sees in the cases filed around the country to circumvent or curtail speech with which one does not agree. And this, of course, is especially true in the academic freedom area. I do think it’s the most interesting part of the constitutional law development in the trial courts now. And I must say I am very much more of an absolutist in the area of the First Amendment than when I first took the bench.

HEFFNER: So you don’t have very much sympathy with those who would say that Madison and Jefferson and the others would have interpreted First Amendment concerns differently than their presumed followers do today? Would have thought of a larger public interest and fit First Amendment procedures more comfortably within that concept of what’s good for society?

CONBOY: Well, I think that what one always has to fall back on when looking at what the founders believed, you have to put it in the context of their historical times. I have no doubt that all of those persons who you mentioned fundamentally believed that the most effective way to expose a fool was to let that fool speak. And indeed, even up almost to our own time, Woodrow Wilson took that position when he was president of Princeton, at a time when Princeton University was undergoing, in his pre-World War I tenure, something of what universities here in our own time are dealing with, that is diverse views, diverse attitudes, in many cases harshly and crudely spoken. It was Wilson’s view, as it was Jefferson’s and Madison’s view, that let the speaker be heard, and the mere expression of an intolerant or an arrogant or a bigoted point of view will in fact be understood and heard and rejected.

HEFFNER: Yet he wouldn’t, was unhappy about the thought of pardoning Eugene V. Debs for presumably seditious actions which consisted of saying what you hear on every street corner today or you probably heard during the Vietnam War.

CONBOY: Well, there is no doubt that the immediate demands of one’s public responsibilities sometimes leads otherwise positive constitutional admirers to perhaps act contrary to the Constitution. The best example was the famous case in our own Southern District of a Presbyterian minister who got up on a soapbox in Union Square during the Civil War and preached a peace theme on the Sermon on the Mount. This led President Lincoln to instruct the local federal authorities to arrest him and to hold him. He sought a writ of habeas corpus in our federal court, our Southern District, and the judge granted it. So I think while Woodrow Wilson on Debs and Abraham Lincoln on peace speakers in Union Square, while we may regret what they decided was necessary in the context of that immediate moment, that on the larger scale of things, over the 200 and what, 16 years of our republic, I haven’t the slightest doubt that the prevailing view is the sound view, that let the expression be had.

Now, I must say there is a troubling aspect to this in the university communities. It’s hard to hear if there’s a great deal of static and disruption and rudeness and arrogance and provocative and insulting comments. Clearly Woodrow Wilson and James Madison might be less enthusiastic about the value of having the view heard art all costs if the forum in which the view is being expressed is impugned by disruption and uncivilized conduct. That’s the problem now. We are really confronting that now in the First Amendment area.

HEFFNER: Fortunately, because you’re now off the bench, Judge Conboy, you and I can discuss these things more freely in the years ahead, which is my way of thanking you for joining me today on The Open Mind.

CONBOY: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, please write The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150. For transcripts send $2.00 in check or money order.

Meanwhile, as an old friend used to say, “Good night and good luck.”

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