THE OPEN MIND
Host: Richard D. Heffner
Guests: Patrick Murphy, with Sol Wachtler and Louis Nizer
Title: “Is Justice Done?”
I’m Richard Heffner, your host on THE OPEN MIND. There needs to be no elaborate explanation for our choice of topic today, “Is Justice Done?” For perhaps at this moment there is no greater concern in the minds of vast numbers of Americans than that devoted to this theme in one or another or its various guises. In so many parts of urbanized America today, we fear for our personal safety, for the safety of those who are close and dear to us. And we talk about crime in the streets, wondering aloud and angrily whether our system of criminal justice still works. For if justice is done, why are we so afraid?
Well, there are many, many questions that come to mind. They have to do with so-called hanging judges, and with their soft-headed or sometimes soft-hearted opposite numbers, with the vast, incredible disparity within our nation of judicial sentences or punishments for similar crimes. With the value of sacrificing time-honored but exacting legal procedures to avoid delays in justice from both an accused individual and a crime-beleaguered society may ultimately be victimized by the fact that justice delayed can become justice denied, questions concerning plea bargaining, crime-breeding prisons, police protection handicapped by judicial fiat, and so on. All of these questions need to be examined. Not all of them even here will be touched upon. Of course, perhaps none to your own satisfaction. But the dialogue must be entered upon reasonably, responsibly, and with that good faith and good sense that must characterize our discussions if we as a people are to assure that working together our police, our jurists, our legal profession, our press, and most of all we ourselves, if we are to assure that we can make those technical procedural changes and those human attitudinal changes that are perhaps necessary if our criminal justice system is to strike that crucial balance we Americans have always sought between the rights of an accused individual and the right of society to protect itself.
And now, let me introduce my guests to discuss this question of, “Is Justice Done?” First, Judge Sol Wachtler, Associate Judge of the Court of Appeals of the State of New York; Secondly, Mr. Louis Nizer, author and eminent trial attorney; Third, Patrick Murphy, President of the Police Foundation, former Police Commissioner here in the City of New York.
Well, gentlemen, let me begin our discussion perhaps, Mr. Nizer, by asking you a first question and then opening it up to the others. On the matter of what we as a people perceive to be true – true or not – but what we perceive to be true, to what extent do you think Americans feel that justice is done, that our criminal justice system works?
NIZER: Well, I once attempted to express it epigrammatically as follows: Perfect justice, impossible; Approximate justice, acceptable; Efforts to make justice more perfect, always. I think that the American people are unhappy with our system and that is as it should be because any system that is operated on the human level will have its frailties. That isn’t to say that our system of justice isn’t better than in most countries that I have studied. But nevertheless there is room for great improvement in a volatile society. And I think that’s what we’re going to discuss today, aren’t we?
HEFFNER: Chairman, what’s your own feeling about the degree to which our system is perceived as, well, let’s say justice working within the limitations that Mr. Nizer has set down?
WACHTLER: Well, Mr. Nizer just cited an epigram. Over one of our county courthouses we have a legend that says, “Justice is God’s idea and man’s ideal”. Now, you can speak in these terms to a public which is subjected to screaming headlines of crime in the streets, where we see as was recently reported in the newspapers that in the Borough of Manhattan in 1973 there were some 50,000 felony arrests and only 500 felony trials because of plea bargaining. And people say, “Well, don’t give me the fancy phrases. What are you doing about it?” And they come up with their own answer. They say you’re not doing enough, or you’re not doing anything about it. And so, and Mr. Nizer pointed out, we must look for ways to resolve the problem because I think the public’s perception is probably accurate and we’re not doing enough and we must do more.
HEFFNER: Do you think that a system of criminal justice can long maintain itself if the public perceives of it as inadequate, as not providing the necessary protection to society of the individual?
MURPHY: I worry a little about that. Recently we’ve heard a discussion about a national police force. Just the fact that that question was raised as something that we must avoid by a high level federal official signifies a worry, a concern that perhaps many people have that this system isn’t working. We have to do something about the terrible problem of crime. And unfortunately there may be some people who are ready to accept something we never want in this country, deprivation of the rights we cherish so dearly. But the system is not working. It’s that simple. It’s a very fragmented system, because we believe in local control. None of us want a national police force. And I don’t think we want a federal government that would operate the system. But we don’t even have the 50 state governments doing enough. And the system is so badly fragmented, it’s such a crazy quilt system that I’m sorry to say many of us don’t know what we are doing because it’s so difficult to see what’s happening from the data that’s available to us.
HEFFNER: Mr. Nizer?
NIZER: I think that the chief impression that the public has about the inadequacy of our system is due to the crime in the streets, the fact that we can’t walk safely on our streets, that there are these thousands of muggings, thefts, stealing in the homes of television sets, and so on. And I would call that drug crime. There are reputed to be in New York City 200,000 drug addicts. When they are caught stealing, any of them say that they steal five to seven times a day in order to collect the $75 they need for a shot. Now, if you take of 200,000, a conservative figure of 100,000, multiply it by five little crimes a day, some of which result in very serious crimes, you have 500,000 crimes a day in the City of New York alone. And of course this is multiplied in various ways across the country. And I’ve traveled and have seen it. Now, that is what gives the law and justice its worst name, this sense of unsafety, lack of safety right in your home or on the streets in broad daylight. And my suggestion there would be that we give free heroin under careful government supervision with psychiatrists present to all addicts. It only costs the government two cents a shot for which these devils have to pay $75 and support rackets. And if you did that you would do a great deal to calm the attitude of the people. And I have talked throughout the nation to some universities, you get people saying now they’re all for capital punishment again, as if capital punishment would stop this kind of thing, when a man is driven by inner devils he’ll kill his mother at that time for that five or ten dollars. And therefore one of the solutions at least, I think, is for us to adopt a system, which has been tried in England, and that is to give fee heroin under careful government medical supervision to addicts. You will do away with a great deal of the crime on the streets that way and restore some confidence in our judicial system which really oughtn’t to be blamed for this situation.
WACHTLER: This is a suggestion which has been made which I think has its practical aspects. Unfortunately, I just don’t think that this will receive legislative acceptance. If it hasn’t up to now, I don’t think it will in the future. So we look to other alternatives. The rehabilitation programs. These have worked with some degree of success, and I think Commissioner Murphy is familiar with the recent success in certain areas. We also look to more severe penalties. Now, that has proven unsuccessful. We’ve tried that here in New York State with our new drug laws.
HEFFNER: But wait, wait, wait. You say “Proven unsuccessful”. How proven unsuccessful?
WACHTLER: Well, New York State now has the toughest drug laws in the nation. And yet we find that it has not deterred the traffic in heroin, it has not slowed down the addiction rate, it has not driven people into the programs to which it was supposed to drive them, that is the rehabilitation programs. It just isn’t working. As a practical matter, what is happening is many of the district attorneys are not indicting for the felonies which would bring these heavy crimes. They are accusing the person arrested of a lesser crime so they don’t have to invoke these harsh penalties.
HEFFNER: But that points in the direction not of the inadequacy of the punishment promised, but the inadequacy of the officials who control our criminal justice system.
WACHTLER: I’m not so sure. I think it might prove to be a realization on the part of those officials that it is impossible really to invoke these penalties in a uniform fashion with respect to all those who are arrested. For example, the district attorney in this county recently spoke of those who are taking the methadone which they’re getting out of methadone treatment centers and then selling them. Technically they’re in violation of the drug laws and technically they could be put away for life.
NIZER: Well Judge, you say that the legislature won’t accept this. I have heard that said that his would make addicts, restore them to addiction permanently so to speak by giving them free heroin. But first of all, I don’t see these addicts getting off the addiction as it is. But even if that were so, as in balance between the safety of your wife and child on the streets and in your home and the poor condition of the addict already hooked, shouldn’t we throw our weights that way, and shouldn’t the legislatures open their eyes to this situation? It is only one facet of the situation, but it seems to me a very important one. What you say about the criminal laws not working by heavy punishment is the very point I too stress. You don’t by severe punishment stop the man from mugging your wife on the street and grab her pocketbook for five or eight dollars because he’s got to get that $75 together.
HEFFNER: Excuse me. How would we know, since from the testimony of you both it seems clear that thought the law is on the books the law has not been enforced the way it was intended to be enforced?
MURPHY: Well, I think the law that’s on the books, like so many other laws on the books, are not and never can be thoroughly enforced, and we’d have to build so many prisons in this state to house all the people who’d receive life sentences if the theory of that law were applied. Life sentence for any felony drug pusher…
NIZER: Commissioner, isn’t it a known fact that whenever the law is too severe that severity results in its not being applied? For example, if you take too many crimes subject to capital punishment, the juries, even though they think a man is guilty, will find him guilty only of first-degree assault? They don’t want him to be sentenced to death.
MURPHY: There’s no way of removing the human element…
NIZER: The psychological reaction.
MURPHY: Yeah…from a criminal justice system. There must be discretion on the part of the police, and be assured that that is very broad discretion. The prosecutor has discretion. Human beings must make a system work. And somehow or another if a system doesn’t have the capacity to do the whole job, human beings make the adjustments so it can do some part of it.
WACHTLER: And then there’s an overriding sentiment or feeling on the part of many people in the justice system that it is not the severity of punishment which deters crime, but rather the certainly of punishment.
NIZER: Yes, and promptness.
WACHTLER: And promptness. And this of course then goes right back to how do we administer a system which makes certain that those who are guilty of committing a crime are punished for that crime promptly.
NIZER: And that brings you into the inadequacy of our whole judicial structure to deal with this. And there, if you’ll give me a minute, I’d like to analyze that very briefly.
HEFFNER: I give you a minute.
NIZER: The population of this country has increased by about 40 to 50 percent in some 20 years, I think. Same judicial structure, not really enlarged. We have passed thousands of laws, each of which bring a flood of litigation. Take the SEC laws, prompting actions by the thousands. The civil rights laws, just think of all the actions that have begun under it. Potential laws. Everything results in new litigation. Same judicial structure not enlarged. Finally, due to a higher standard of living and an arising sense of independence, people are more litigious. You don’t sleep on your rights. You rush to your lawyer, “I want to sue him”. So you have a new flood of litigation. The same judicial structure. Now, if you realize that the bottleneck is chiefly due – incidentally, many things can be done to speed up our system. We’ll come to that, I hope – but if you realize that fundamentally to put this in a simple analogy, if you have a plant, you are manufacturing, you make 1,000 dresses in a year, and somebody gives you an order for a million, and you’re delayed in your deliveries and he complains about the bottleneck, you have a just grievance to say, “Why don t you permit me to build a bigger factory?”
HEFFNER: I’m glad that you mention all of these things, Mr. Nizer. Because it began to sound as if you were saying – and if Judge Wachtler and Commissioner Murphy were agreeing that essentially what we’re talking about is a one-dimensional problem, that of the drug addict, as many as there may be, and the crimes that derive from that.
HEFFNER: All right.
NIZER: That’s one facet of it.
HEFFNER: It’s only one facet. You point your finger then at the court system?
WACHTLER: Also, not only the court system, but the laws…
WACHTLER: …the laws which the courts are called upon legislatively to enforce. For example, the many victimless crimes which we have and which we must administer. And by the way, when we spoke about the legislature’s reluctance to act in respect to heroin maintenance programs; it wasn’t until last year after many, many years of trial and attempt that the legislature was willing to recognize alcoholism as an illness as opposed to a criminal offense. So you see they move very slowly. …
NIZER: And prostitution…
WACHTLER: And prostitution…
NIZER: …is another example.
WACHTLER: The blue laws. We had two district attorneys’ offices in the State of New York which were completely bottled up for two months just enforcing the Sunday closing laws. Now, this is an absurdity. I can recall sitting as a trial judge in the State Supreme Court where we used to have uncontested matrimonials – and you’re well aware of these, Mr. Nizer – where we used to have a husband or a wife seeking a divorce who would come before the court and they used to give them a script because you see in this state we compel them to prove fault. And they would have to say, “On April 1 did your husband hit you about the head?” Answer on cue, “Yes”. “And on May 15 did he lock you out of the house?” Answer on cue, “Yes”. And after the litany was gone through the lawyer would then say, “I move for divorce”. And the judge, and the judge could then be a totem pole with a tape recorder in him for all the judicial discretion he exercised, would then say, “Divorce granted to submit judgment and findings”. Now, while the judge was occupied with this pursuit – mind you, this is the highest court of original jurisdiction in our state – while he was bushing himself or bothering himself with this, there were thousands of indicted felons waiting to be tried and we are told that there were no courtrooms available.
HEFFNER: Suppose we…Do you feel the same way, Commissioner?
MURPHY: Well, I just think we ought to get a disclaimer in here very early. I think the crime control system in the United States is a disgrace. It probably needs much more funding because the problem has increased so much, as Mr. Nizer has pointed out. But I think we should be clear that those of us in the crime control system or who have been in it are not responsible for crime. The whole society has much to do with this. And I’ll cite just one example. If a person comes out of prison and can’t find a job because there are discriminatory attitudes towards the ex-offender, he’ll probably be back in the circuit again, the police arresting him. And so there are many other social and economic causes. I’m not trying to shift the blame, because I think we’re just very, very slow in improving the system itself, but…
NIZER: The point you make is fair that the failure of our judicial system in various respects is not responsible for crime. The social conditions and psychological other conditions which are responsible for crime are not the result of judicial failure in any particular respect, or probation departments or the rest. I’m sure that’s a fair point.
WACHTLER: The point is thought that we recognize the fact that we have not fashioned a perfect society, so that we have the crime. And then we have to say how do we deal with it? And one of the things that I was alluding to a moment ago, talking about the court system, and Mr. Nizer’s so right, Justice Berger recently gave an instructive comparison when he said that two thirds of the cost of a C5A aircraft would pay for the entire federal judicial system for one year.
NIZER: Let me give you the figures on that. We spend in the entire federal judicial system $279 million odd thousand dollars, 279 million. We spend $82 billion on defense. You could for four planes, that’s how much they cost now, you could for four planes exceed the entire cost of the entire federal jurisdictional programs.
MURPHY: Those are tragic figures.
NIZER: It’s very disproportionate.
WACHTLER: There’s one of the points of origin. And then if we went further to take some of the matters which don’t belong in the courts out of the courts so they’d be handled by referees and handled administratively and streamline the court system, then we could make so much progress in dealing with the problem.
HEFFNER: But wait a minute, gentlemen. Suppose we make all the concessions you want: A, we cut out four planes, four more planes or four fewer planes, and double the budget or triple the budget of the federal judicial system and increase vastly the budget of the judicial system or the justice system throughout the rest of the nation. Suppose we have an end to the victimless crime laws, and suppose we do something along the lines of what Mr. Nizer suggests about drug addicts. Aren’t we still left with a vast and complex system of problems that might still and probably would still make for an inadequate system? I admit that if there were fewer cases, there were fewer laws against victimless crimes there would be less clogging of the judiciary and we’d have less plea bargaining and fewer of the stories that appear every day in the newspaper of the man who was plea bargaining. He took a lesser plea and sometimes let off directly and commits another crime. That’s what I as a citizen am aware of.
NIZER: The answer is yes. And may I at least suggest one or two or three things immediately that would still be left and can be done? First, there ought to be designated in our complex society special administrators, not judicial people, but administrators, business administrators to administer our courts and the system. It has become spread, fragmented, and not properly operated in many ways from probation up and down to trial and waiting for juries to be called and all the rest. Courtrooms are missing. A computer could tell you when a courtroom is empty. Judges are upstate sometimes. They have time and they’re not utilized because we don’t know just when to call them. And all the rest of it. So that there ought to be a fine business administrative head and organization for that. That too takes some money. But if it could be done it would save us a great deal of money.
Second, our prison system is a revolving door, recidivist. Sixty to 80 percent it is estimated of prisoners come back. This means that our whole system of alleged rehabilitation is a complete failure. Statistics that, for example, that the average prisoner spends some 15,000 odd hours in jail, and 30 of those are spent on rehabilitation. We have 23 psychiatrists for every 17,000 inmates, which is one minute and 20 seconds a month for each inmate. That will give you another idea of where we are failing to correct the situation. It becomes a school for more crime instead of a rehabilitation program. Part of that incidentally is a sexual problem. We are backwards in this country, terribly backwards. In most countries conjugal rights are given to prisoners. Their wives visit them privately. In Mexico they built a wing, it’s almost like a fine hotel, where wives visit prisoners.
WACHTLER: They say that our prisons, the only thing that they definitely cure is heterosexuality.
NIZER: That’s right. There is 90 percent, in some estimates, homosexuality. A prisoner who is sentenced, say, for only one or two or three years loses contact with his family and may come out a homosexual. In many countries like Brazil and Sweden the prisoner is permitted out of jail to visit his home overnight twice a month or three times a month. Different countries treat it differently. Or they visit the prisoner.
HEFFNER: Mr. Nizer, suppose someone were to say, “Stop a minute”. And suppose I were to represent the person who would say, “That’s bleeding heart talk. You’re worried about his prisoner and you’re telling me, you’ve been giving me the statistics and how many moments in the course of a week or day or a year the psychiatrist is available for prisoner. But immediately I’m concerned about my own safety and that of my family. If you were to take the key to that prison and put it in a hidden place, you would be protecting me more and my family more than with the discussions of what we should do ideally in terms of improving the rehabilitation system”.
MURPHY: May I respond to that?
MURPHY: I think one of the tragic aspects of our current situation in the United States is that for five and a half years the American people have been deceived by national leadership that talked about law and order and deceived the American people about how to solve the crime problem. More police on the street, longer penalties, tougher law enforcement, tougher judges, whatever that means. That was the rhetoric. The rhetoric of law and order. Well, what’s been the outcome of it? I’m at the point today that I hope lawlessness has not been encouraged by the pardon or a prominent American who may have violated the criminal laws. But the American people need leaders who will speak honestly to them about this complex problem and not be demagogues and attempt to dangle in front of them the quick, easy solution, law and order. It’s not that simple. It’s a very complex problem. And all of these points that the judge and Mr. Nizer have alluded to must be faced. We can’t shove them aside.
NIZER: But Commissioner Murphy…
HEFFNER: Let me just…Mr. Nizer go on, because I don’t think that the position that I’m expressing here is otherwise represented at the table. There’s no crime to that. Suppose one were to say, “Yes, you are quite correct, there has been this rhetoric”. But would you also say that the rhetoric had been followed by the kind of action that the kind of action that the rhetoric presumed, and therefore the action, the tougher attitude, the certainty that crime would be punished had actually come to pass? Or are you saying there is simply rhetoric which was unfair? You’re saying there was rhetoric, but you’re condemning the action the rhetoric was supposed to precede.
MURPHY: Okay, what was the action?
HEFFNER: And it never took place.
MURPHY: Well, there was some action.
MURPHY: Three and a half billion dollars of federal funds in six years. Not enough perhaps. But in a system that costs approximately nine or ten billion dollars a year, three and a half billion dollars of new federal money is significant. What’s the outcome then? We’ve just learned that crime has gone up again amore more and more crime.
HEFFNER: But you started by saying for five years or so we’ve heard about law and order and a tougher attitude toward criminals. The facts would seem to be from the illustrations that have been given here, that recidivism is perhaps just as much or even more a part of freeing the criminal so that he comes back again than what we do to him in prison to make certain perhaps that he’s going to commit another crime. He can’t come back again; he can’t commit another crime if he’s in jail. But if he is let out of jail, almost immediately he is sentenced.
I’m sorry, I didn’t mean to make a speech. Go ahead, Mr. Nizer.
NIZER: I’m adhering to your own injunction to be brief.
HEFFNER: (Laughter) You’re making me adhere to it.
NIZER: This is a philosophical question. You can’t put all criminals in one capsule. Belated statement. Some are punished for only two or three years. You’re not going to throw away the key on them, are you? You’re going to let them out in two or three years. The question of conjugal rights therefore is doubly important for the short-term prisoner so he comes out normal and can resume his relationship with his family and his wife. You must think of the other side of it. She also is waiting for her husband. But I get away from that aspect of it. The discretion involved in punishment is an important reform. And we haven’t touched it yet. Judge Marvin Frankel of the Federal Court has written a book in which he suggests that all of our punishment devices are unstable and disparate. They are not at all consistent. And it has been suggested and adopted in some jurisdictions, Judge, that every sentencing judge doesn’t give the sentence himself. So that as the English say, the degree of punishment doesn’t depend upon the state of the digestion of his lordship on the morning that he arises. He must submit his idea of punishment to two other judges, a panel who are designated by a higher court. And the three of them consider the matter. To the extent that that has been tried, we find that the sentences are more lenient, strangely enough. The severe judge becomes more lenient, the more lenient judge becomes a little more severe. But the total average result seems to be a little more leniency.
WACHTLER: I think it’s important to relate what you’re saying to what Dick said a moment ago. Because what Mr. Nizer’s saying might smack of some kind of bleeding heart type of curative. Whereas it relates directly to a law and order type of cure, the fact is that if we could eliminate the disparate sentences and have more uniformity, the rehabilitation which must take place at a prison to eliminate the recidivism is made much easier. When I toured the state prisons that was one of the greatest complaints of the prisoners. They said, “How can you say that this is a justice system, when I committed the same crime as the fellow in the next cell and I was sent away for 15 years and he only got five?” They recently ran in the Second Circuit a survey of 50 different judges in the New York/Vermont/Connecticut area, that is the Second Circuit. And they took a hypothetical case with the same presentence report, that is the same record, the same background. And it was amazing the differences in sentences of these 50 judges from the same social economic background. I was exposed to an even more dramatic experiment in Reno at the State Trial Judges College, where they had the same type of experiment from judges all over the country with a homicide resulting in the difference between execution to probation. That was the range of punishments. Now again, when you look at a justice system you say, “Is this justice to have such disparate sentences?”
NIZER: And also appeals, the right to appeal from a sentence which never before has been granted. The judges’ discretion at sentence has been deemed inviolate.
WACHTLER: That’s right.
NIZER: And now there ought to be a right to appeal simply from the degree of punishment.
WACHTLER: Well, they can go to one appellate level, but they can’t get, for instance, to my court because it’s a matter of discretion which can’t be reviewed.
HEFFNER: Judge Wachtler, let me ask you whether your experience indicates that recidivism is mostly or very, very largely a function of the inadequacies of our prison system, for lack of rehabilitation facilities, and largely a function of the disparate nature of the sentences?
WACHTLER: Well, as Mr. Nizer said, you can’t put all criminals in one capsule.
WACHTLER: There are different factors which come into play. But an argument can be made to a strong “law and order man”, in quotes, that we must have adequate rehabilitation. Because if we do then we know that certain prisoners will find a way in society, and then of course we come back to what the Commissioner said. We have to educate society to accept these people. And then they won’t be repeaters, which is what constitutes the bulk of our crime. So that we serve a selfish self-interest in rehabilitating these people. Let’s forget that fact that we’re doing anything for the prisoner. We’re doing something for ourselves. I was in Attica not too long ago, and they were teaching men how to make license plates, stamp license plates. And I said, “Well, is there a need on the outside for license plate stampers?” And the fellow said, “Well, there are always metal stamping plants”. And I said, “Well, how many are there, what is the need? Will these men who are trained in this field be able to go into that field?” There is no comprehension about what I was talking on. So this is a terrible mistake, and it leads again to more crime.
HEFFNER: Commissioner Murphy?
MURPHY: And there’s another side to what’s wrong with this system of ours in which we don’t know very well what we’re doing, because we can’t follow the cases, nobody has a good grasp of how the discretion is being applied at every step in the process. And that other side of the coin is that there are many smart criminals and experienced criminal lawyers who are beating the system every day. And many of the prisoners who end up in those state prisons are probably not the ones who belong there. And some of those who belong there are not getting there for one reason or another because the system – well, I hate to say it – but I think the system has almost broken down. That’s how bad it is.
HEFFNER: Well, Commissioner, when you headed the New York City Police Force, are there many times – or perhaps I shouldn’t put it that way – were there times when you felt that the problem with the criminal justice system were the limitations upon your own police department, or perhaps the, not limitations upon the police department in terms of judicial orders and the requirements that the individuals right be protected, but the frequency with which cases were dismissed or plea bargaining went on so that that figure of from 50 to 90,000 felony cases a year with 500 cases actually coming to full trial? Was there a time when you felt not that it was…
HEFFNER: …the rehabilitation or lack of it, but it was the limitations placed upon you by the judicial system?
MURPHY: Well, yes. But frankly – and this might sound surprising for someone with a police background to say — but I was much less concerned about the Warren court decisions that we hear so much rhetoric about than I was about the fact that when a New York City police officer arrests somebody it takes eight and one half hours of a police officer’s time to process the arrest, when I know that in Oakland, California, a city that was studied in pair with New York City, it takes an hour and a half.
HEFFNER: Why? Why the difference?
MURPHY: Well, because they must be doing something more efficiently in Oakland, and I don’t understand at all the complexities of the problem of processing here in the system in New York. We have a fine administrative judge in the city, Judge David Ross, who’s trying, but it’s such a complex system that somehow or another we seem unable to overcome these problems.
HEFFNER: Just between the four of us, what do you really think accounts for that disparity between eight hours and one hour?
MURPHY: The basic reason is this: The 50 states will not accept their responsibility to set standards that would make the system work. You see, it’s a process something like production line. The police arrest, the prosecutor becomes involved, a court, and eventually the correction system. And nobody’s managing the line. Each agency goes about its work in its own way. We all know about the terrible tension, and I’ve been guilty of it myself, speaking out against the courts, and judges speaking out against police commissioners who talk too much. And we get no place. Now are we going to rationalize the system? The states could do it. We don’t want the federal government to do it. But the states, it seems, that state legislatures, we referred to them earlier, I would suppose that this crime problem is a very bad political problem.
HEFFNER: But Commissioner Murphy, Oakland is still in a state of the United States, and so is New York City. Now, what do you think the difference was?
MURPHY: Well, apparently Oakland or California has made more progress on that specific issue. And don’t for a minute interpret that to mean that I think in all respects California is better. Because I’ve recently seen some data about the percentage of people they keep in prisons in California. We keep a lower percentage proportionality in prison in the United States, and maybe we are right. Because there are too many people in prisons who have only committed property crimes.
HEFFNER: Yes, but now, this distinction in numbers, are you suggesting that a criterion of a properly working police system, justice, criminal justice system is a minimal percentage of time spent in prison by offenders?
MURPHY: Well, I think that under our system and our 50 systems – and there are not even 50 systems – thousands of systems in the United States there are all kinds of disparities. There are many states in which most of the prisoners have committed property crimes. Whereas in other states they’re prisoners who have committed violent crimes for the most part.
NIZER: Richard, I think before this program is over there is likely to be a distortion for this healthy discussion of what’s wrong. I think there ought to be a larger perspective, because you know, if you focus all attention closely on the ear of an elephant you forget there’s an elephant there at all behind it. Our judicial system as a whole, in my considered judgment, having studied others in other countries, the Roman system which we have much to learn from in other respects on publicity and so on. We have no time for that today. I don’t think this program ought to result in an impression that our whole judicial system is just bad. It does function within its limitations as we have just pointed out, and subject to many corrections, it does function. Most of the people in it, probation officers and judges – and this isn’t just lip service for effect – are dedicated people working their heads off weekends and nights. There’s much that must be done, but compare it with the banking system or the wool industry or the medical profession or…
HEFFNER: Or you say the television station before…
NIZER: Or the television, we started a half hour late there today. It’s a human system and subject to such complexity and sensitivity where you’re dealing with justice, particularly, where on one hand you want to speed it up, and on the other hand every time you speed it up you limit the right of the individual. You started out with a very profound precept. To what extent is there a clash between the necessity of the individual’s rights, which we must protect above all else because that’s society itself really, and the system? Now, it’s difficult question. For example, people have suggested that you save time with the judicial system by limiting the selection of jury. People are offended. It takes three days. Or cross-examination. Put a limit on it. Or the number of appeals. No other judicial system gives you as many appeals as our system. Well, every time you do that you cut down, and you must weigh it, those rights which we under our Constitution and Bill of Rights have thrown around each individual to protect them. And when you make, when somebody makes light of it, wait until they get into trouble.
WACHTLER: That’s right. And just as significant, and I was very interested to hear the Commissioner, speaking as a policeman, recognize the importance of preserving certain of these Fourth Amendment rights against search and seizure, Fifth Amendment rights against coerced confessions. If we in the courts sanction this just for the sake of getting a conviction, then there might be people who’ll say, “Well, at least they’ve unhandcuffed the police, and at least now the police can go in and make arrests and get convictions”. But at the same time we would be eroding these very, very essential constitutional protections.
NIZER: Justice Douglass once wrote on that very subject that you’ve touched, “They freed, the Supreme Court freed a confessed murderer. A murderer who under stress and made a confession which was deemed under duress and therefore thrown out”. And he was acquitted. And the judges said, “We are freeing a murderer. But we do so because this is the price a civilized society pays for protecting the freedom of people. Because otherwise, sooner or later, innocent people are going to be beaten with a pipe…
WACHTLER: That’s right.
NIZER: …until they confess.
WACHTLER: And Cardoza said that the prisoner must often be let free if the constable blunders.
WACHTLER: Again to protect these very, very important and precious rights.
NIZER: The only reason I make this point is I think it would be a disservice to the very cause we’re trying to correct to give the impression that it is all a failure and corrupt. The point is there’s room for improvement because the law is not a statue. It isn’t a marble statue; it’s a living organism that breathes, and we must adjust it to the new conditions.
HEFFNER: But, Mr. Nizer, when Judge Wachtler was saying what he did a moment ago, and you agreed with him, when he was speaking I heard you say, “This is the price, this is the price we pay”. It does seem to me that whatever we may conclude at this table, there are increasing numbers of Americans who feel that that price is too high, perhaps because they are not as aware as you are of what goes into it, and what the penalty might be if we trade off in the direction of fewer rights.
WACHTLER: In some respects.
HEFFNER: If we go along the line, if we project the line along which we’re going now into the future, and there are fewer and fewer people who are willing to pay that price, the price of liberty maintained, and perhaps a less hardnosed attitude, perhaps more handcuffs, or the present number of handcuffs, aren’t we going to bring the whole house of cards down? I mean, this is why I began the program by asking about the perception…
WACHTLER: We adjust.
HEFFNER: …on the part of the American people. We may agree here about, Justice Douglass may say, “This is the price we pay”, but what about the fellow out there?
MURPHY: Well, can I say one word?
HEFFNER: I’m sorry, Commissioner.
MURPHY: I completely agree with Mr. Nizer. I don’t want this great system of justice that’s been created at a high cost in this country tampered with. But what is the perception of the man on the street? His perception tends to be, “Hire more police officers”. Again, this may sound unusual for a police administrator. Maybe we’ve hired more police officers at great cost in some of our cities when we need double the capacity in courtrooms and judges. And again we don’t know very much about that. And maybe we need more prosecutor staffs. So the simple notion the policeman on the street will stop crime is unfortunately what too many Americans think is the answer. And very often it comes down to dollars and cents, and how best do we spend those dollars.
NIZER: On the subject of the complexity of this matter, I’d like to quote a wonderful statement, I think, by Chief Justice Charles Evans Hughes at one time when they said, “How do you expect the citizen”, talking about perception, “How do you expect the citizen to comply with the law when you divide five to four up here in the Supreme Court?” And he said, “You know, if it were an economic question and you had a group of economists, you’d expect them to divide five to four. If it was architects, how to build a house, you’d expect a division. If it was a medical question you certainly would expect a division. Why do you expect when you get to the social science of law which involves all of these sciences combined to reach the icy stratosphere of certainty?” “The icy stratosphere of certainty”. We ought to realize that his is not simple, that you can’t reach that icy stratosphere of certainty, that we must continue our efforts to improve the system, but by no means discourage the people to thin that they’re living in the system in which the judicial system is a failure.
MURPHY: And what a delicate balance and what a difficult process this is for a member of the judiciary faced with, for example, a brutal, brutal crime, where you are almost totally convinced by virtue of the evidence that the man is guilty beyond peradventure of doubt, and yet the evidence against him was procured illegally, and if you do let the conviction stand you sanction the method of procuring the evidence, which encourages further breaches along that line. And so you say, “Well, do I suppress the evidence and keep sacred the Fourth Amendment in this instance, or do I let the evidence go in and let the conviction stand and let the public taste vengeance?” And this is the difficult balancing. A policeman once said, you know, “When the judges are this harsh in looking that carefully”, as you mentioned initially in your opening remarks, “at the law, they make a policeman’s job very difficult”. And the answer, of course, is that a police man’s job in our society should be difficult. It’s only in a police state that a policeman’s job is very easy.
HEFFNER: But you see, I think it’s true that those of us whoa re very concerned with this question, who are not lawyers, are not primarily involved with the protections that you discuss. You say that you don’t want to sanction the use of the poison fruit. It comes from the poison tree. Wiretapping, illegal search, whatever it might be. What do you sanction, on the other hand?
MURPHY: We sanction searches that are first approved by the court by virtue of a warrant, where there’s probable cause when, where there’s reliance on an informer who is shown to be reliable or known. There are various ways in which these things can be done properly.
HEFFNER: Yes, but…
MURPHY: And the police are instructed in this.
HEFFNER: But what I mean is in the particular case before you. You say you don’t wish, you cannot bring yourself to sanction an illegal activity to bring about a conviction. When you do not convict then aren’t you sanctioning, in some way, that I and the public understand and perceive, the crime itself?
WACHTLER: Well, perhaps unfortunately that’s the way the public perceives it. And that’s the great tragedy. But again, if the constable blunders, we feel the man must go free. Now, Richard, just to illustrate this, and when we speak before groups we say this: We give you an illustration of the illegally procured evidence which could lead to a conviction if not suppressed. And then we say, “But we would suppress this’. And the reason we would suppress it is this: If I searched every apartment or every home within a one-mile radius of this studio, I would uncover 50 crimes. Now, does this justify my being given the license to conduct those searches? If your answer is yes, then what you’re saying is you want a Gestapo police state. If your answer is no, then you must follow that by saying that any evidence so procured must not be introduced into evidence to prosecute the individual.
HEFFNER: I’m sorry, Mr. Nizer.
NIZER: Justice Black, a short time before he died, was asked by a reporter on this very subject, “How do you expect a prosecutor to get a conviction in view of the rules you’re handing down up here to protect the individual? No prosecutor, it is almost impossible to get a conviction”. And Justice Black amazed him by his answer. He said, “Of course. That’s our purpose. We want to make it very difficult for the prosecutor to get a prosecution. That’s our American system. You want to change the Bill of Rights and the Constitution, that’s another matter. But as long as that stands we throw our cordon or rights around the individual”. Now, look how severe that cordon of rights is. Maybe we do want to change it in view of what’s happening in society. But as it is now, just look at it. Unanimous decision of the jury. One juror disagrees: free. Presumption of innocence to the very end.
WACHTLER: And a difficult presumption to overcome. Very difficult.
NIZER: And beyond the reasonable doubt test. Not ordinary preponderance of evidence. It’s a very severe test, beyond the reasonable doubt. You just mix up one police officer and he contradicts himself and you seem to have a reasonable doubt. The man needn’t testify. He can sit there and thumb his nose symbolically at the prosecutor. And they want to ask him, “Weren’t you there on a certain date?” He says, “Fifth Amendment. You can’t make me testify against my…” Now, these are the rights under our Bill of Rights and Constitution. “And”, said Justice Black, “Our very purpose is to make it difficult for a prosecutor in our kind of society”. Now, when crime grows as fast as the Commissioner is pointing out, we shift our weights, and we should. For example, today, district attorneys in many areas can comment on the fact that he defendant didn’t testify. That was never permitted in some states before this. So that it is true that we must adjust the judicial system to meet the situation and then perhaps when there are more normal times we throw our old cordon of rights around the individual again.
HEFFNER: There seems to me to be a conflict between what you’ve just said, Mr. Nizer, which I had hoped someone would say, that perhaps new times require new ideas. With what Judge Rockler was saying about the absolute protection…
MURPHY: I don’t agree with that, by the way…
HEFFNER: With what?
MURPHY: That these should change.
HEFFNER: Right, then I…
MURPHY: I think that soon as these are changed or watered down or modified because of the exigencies of the times, then the constitutional protections become almost meaningless, then they become something which is convenient at one time and inconvenient at another. And I don’t think that we can consider it in that light. The protection against self-incrimination was born back in the days of the rack and screw. There was a good reason for that. The protections against unlawful search and seizure go back to Magna Carta. And we don’t want homes broken into to procure evidence. So I don’t think that these should be watered down at all. I think that as a matter of fact they meet their greatest test during these times, and this is where they should beheld the most inviolate. Of course, not all my colleagues agree with me, and that’s what makes for split courts.
NIZER: Nor do I want to scrap. I fought all my life for those rights. But let me ask you a simple question on that. When you have an epidemic in the city, you stop the individual’s rights to send his children to school, you close up his store, you take away many rights. Or if you have a riot, you may declare martial law and stop it, or a disease or epidemic. Now, isn’t it possible that violent crime rising to a great height and threatening the very existence of our nation, if it were to occur – I’m just making an assumption now – might require an adjustment of some of our statutory rights…
WACHTLER: But who makes the adjustment?
NIZER: Oh, by legislative
WACHTLER: What subjective test is applied?
NIZER: Not the judge; the legislature.
WACHTLER: Well, there are people who will, while the legislature can in many cases fall to the whim of the public, who because of a certain set of circumstances feel that this is an epidemic now of crime that might have been just as bad before. But the point I make, Mr. Nizer, is that this is exactly the kind of rational which precedes dictatorships.
NIZER: No, I don’t think one should enlarge it that quickly. Let me put a direct question to you. I agree that begging is a terrible thing. But where you have the kind of organized crime, not just the individual crime, and suppose the legislature of the state said, “In the light of this exigency, we say that instead of getting the judicial order, a district attorney signing an affidavit that he has reasonable cause is enough”, which today isn’t enough.
WACHTLER: I would think that’s outrageous. I don’t know why they can’t go to a magistrate and get a warrant.
WACHTLER: I think if there are exigent circumstances, in other words, if for some reason they…
NIZER: Yes, I agree with that…
WACHTLER: …can’t get it, then they should.
HEFFNER: Commissioner Murphy?
MURPHY: I think I’m on the judge’s side, but I also worry that if we don’t do more about this terrible problem of crime an do it soon, we will reach the position when state legislatures and other public officials in response to the public outcry will be willing to sacrifice some of these rights that we cherish.
WACHTLER: To avoid that, I do wish we could get stronger national leadership to tell us we can’t have 25 percent unemployment in a census tract in Harlem of young men under 25 and expect crime, no matter how good the control system is made, to not be with us. Because of the mobility and turmoil in this nation we’re going to have crime for a long period of time. We don’t need to have as much as we’re having now, but we need to face some of these other problems on the fringe of the crime problem, the alcoholism, drug addiction. Incidentally, I commend the Nixon administration for putting more money into narcotics treatment for the first time in the history of the nation, more money into narcotics treatment than in drug enforcement. I think that’s the enlightened kind of approach we need to see more of.
HEFFNER: Well, you talk about the need for leadership. And I admit that I’ve wondered as I’ve sat here today that when I sit in my home this evening this program is on the air and watch it whether the question won’t occur to me as it does now whether there isn’t some limitation that we place upon ourselves in a public setting such as this, knowing that leadership is being exercised by a distinguished judge, a distinguished lawyer, a distinguished former police commissioner, and whether there is as much frankness as there would be if the cameras were off and we were speaking literally in the privacy of our living rooms. And it seems to me that so frequently, because we understand that we’re on the air and that we’re exercising leadership, that we’re less capable of seeing the glass as half empty rather than half full.
NIZER: Well, you’ll observe that the word “right” and the word “law” is the same in almost all languages. Drois in French, duretto in Italian, provo, rescht in German. Therefore what you have here symbolically is to find the right and the law and relate them to each other. And there are very many ways and variations of achieving it. Certainly I don’t want any impression that I would do away with any of the Bill of Rights simply because we have an exigency. But at the same time I think we must be progressive enough to recognize there can be amendments to our laws involving many areas where today they are sacrosanct where they shouldn’t be, these debates and discussions about the rules of evidence. Every time I hear a rule of evidence is about to be changed there is a hue and cry about…the heart, cutting the heart out of somebody. Now, many rules of evidence should be changed.
WACHTLER: Absolutely. That doesn’t really rise to a constitutional protection.
NIZER: No, no it isn’t a constitutional…But I…constitutional matters. We have amended our Constitution.
WACHTLER: Certainly, and that can be done.
NIZER: Twenty odd times. And we have so interpreted even the Bill of Rights as at various different times in our history to apply them differently. And I don’t want to appear to be so welded to what I have devoted my life to, the protection of those civil rights for individuals, as to say that I won’t conceive of some possibility in which, due to an exigency, if this country were in revolution, we were at a time when the universities were in riot condition and so on, that I wouldn’t recognize some…
HEFFNER: In the 30 seconds remaining, Judge Wachtler, am I correct in saying that you would still come down more forcefully on the side of maintaining those constitutional…
WACHTLER: At this point and juncture of our history, the answer is yes. I would also say that I could not agree more than with what Commissioner Murphy said. What we really need here is a Marshall Plan which embraces every vestige of the system in order to prevent the exigent circumstances which we, I think, all fear.
HEFFNER: What do you mean, Judge Wachtler?
WACHTLER: A Marshall Plan to attract housing, to eliminate slum conditions, to improve education, to improve our court system. You know, this nation can go into a decimated country after a war and rebuild it from scratch. We should look at our whole crime problem in that light and start pumping massive, massive aid and finite administration so we can eliminate our problems.
HEFFNER: And that’s obviously the point at which I have to end our discussion. But thank you so much, Sol Wachtler, Associate Judge of the Court of Appeals of the State of New York; Louis Nizer, author and eminent trial attorney, and Patrick Murphy, President of the Police Foundation and former Police Commissioner of New York.
And thanks, too, to you in the audience. I hope that you will join me again on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.