THE OPEN MIND
Host: Richard D. Heffner
Guest: Sol Wachtler
Title: “The Rights of Criminals vs. The Rights of Citizens”
I’m Richard Heffner, your host on The Open Mind. Let me begin our program today by reading to you some comments made some time back by today’s guest here on The Open Mind. He wrote, “In his recent speech to the American Bar Association, Chief Justice Warren Berger drew the conclusion that the courts could, if they function more efficiently, deter violent crime. He put the question to his audience, “Is a society redeemed if it provides massive safeguards for accused persons and yet fails to provide elementary protection for its decent, law-abiding citizens?” Now, the author of this speech went on, “That question is a call t arms…it suggests the answer that the massive safeguards must be stopped, that we must protect our citizen”. But I would suggest to you that the question is not a call or reason or to experience, it is the wrong question and it offers the wrong choice. The choice is not and never has been between safeguarding the accused and protecting the law-abiding. The two are not incompatible. We can have both or we can have neither, but the lesson of history is that we cannot have one without the other”. Now, these words do not, I assure you, come from someone outside of our legal establishment. Indeed, I would characterize them as words of heartfelt, loyal opposition, for they were spoken by my guest here on The Open Mind, Sol Wachtler, Judge of the Court of Appeals, the highest court in the State of New York.
Thanks for joining me today, Judge Wachtler.
Wachtler: It’s a pleasure to be here.
Heffner: Does it seem unfair to pick out this comment on the chief judge?
Wachtler: No, I think that it’s not unfair and I think that it characterizes what I consider a mistake made by some of my colleagues on the bench and made by many people in public life and many citizens as well, and that is the mistake of trying to say that in order to have a society which is law-abiding, we must have courts which somehow disregard the rights of defendants. And I think it’s wrong to try to draw that equation or make that choice. The fact is that the courts don’t commit crime. We’re at the wrong end of the criminal cycle. And our job really is to do justice and to try to administer justice with an even hand, free from the passion of the crowd and free from the passion of the moment, if you will. And so I think it’s wrong to try to say if the courts did their job we’d have no crime, because that’s nonsense.
Heffner: But Judge Wachtler, why is it said – and it is widely said – if the courts did their job we’d have less crime?
Wachtler: I can’t explain why it is said. Again, I think it’s a misconception. People look upon the courts as some kind of a quiet extension of the prosecutor’s hand, and it’s not. We’re not there to be certain that everyone who is accused of a crime is convicted. Again, we’re there to be sure there’s a just result. I think one of the reasons we have this popular perception as you point out is because many people, unfortunately many people campaigning for public office characterize the court as the big problem. And that’s a very dangerous diversion, because if people think that all they need is to replace judges – and I’ve heard this on political commercials a dozen times: “If I’m elected I’m going to get tougher judges – that creates the impression that if you have tougher judges you somehow do away with crime. And the danger of that is that it tends to divert the citizenry from the real causes of crime and the, perhaps the real solutions of crime. It causes people or allows people to look out of the window instead of looking in their own mirror.
Heffner: You know, I was thinking back to other programs that we have done together over the years, and I must say that it seems to me that this perception, or in your terms “misperception”, has grown further and further and further. Years ago when we first talked together on the air there was probably less of the kinds of feelings afloat that were described in your speech when you comment on the Chief Justice’s…
Wachtler: I agree. And I think that the perception grows with frustration. People look around and they see a society which now is a society living in fear, behind triple-locked doors, where the elderly have to bring in powdered milk because they’re afraid to go out and buy fresh, bottled milk, where a society which prides itself on freedom is actually a society in stark fear and terror. And they look for a solution. And some, you know, it’s bureaucratically satisfying to find some group or somebody out there on whose doorstep they can lay the blame, and say, “Well, you know, if they only did their job we wouldn’t have any problem”. And the one scapegoat which seems to have emerged over the years since you and I have been talking, and the one scapegoat which has seemed to emerge more prominent than any other is the criminal justice system. If the criminal justice system did its job, then we would somehow do away with crime. Forgetting the fact again that the criminal justice system or the courts don’t even come into play until after the crime has been committed. And the fact that there are, there is unemployment out there, the fact that there are slums out there in which crime breeds, the fact that there are one-parent families in many of the so-called ghetto areas where there is no morality taught in a home which doesn’t exist, where the fervor or the germination of crime begins, is ignored. And so rather than society addressing those problems even in the long term, they would rather again find the quick answer. And the quick answer is: get tougher judges and we’ll get rid of the crime.
Heffner: It’s interesting that you say that because I know in following your career in the Supreme Court of the State of New York and in the Court of Appeals, I know that “Turn ‘em loose” is not the way one would characterize Sol Wachtler. You’re not talking from the point of view of one who, I’m sure, who’s concerned and compassionate but doesn’t ask us to ignore the needs of society in the handling of criminals.
Wachtler: Not at all. As a matter of fact, I think one of the most horrendous problems we’re facing today is that many of the people who are apprehended cannot be tried, because…
Heffner: What do you mean?
Wachtler: Well, we don’t have the judges, for one, we don’t have the number of judges necessary. We don’t have the courtrooms necessary. We don’t have the jail cells necessary to incarcerate them. As a result you have plea bargaining. And this is one of the evils which has crept into our system and which makes our system a mockery in many ways, because a person can commit a crime and never be tried for that crime. In the State of New York some 95 percent, 95 out of every 100 felons are allowed to negotiate pleas, so that they’re given suspended sentences or no sentences at all, or felonies are reduced to misdemeanors, and they’re allowed out without any punishment. And that’s bad, and that’s wrong. And we have to tighten up the system in that respect for certain, without question. What I’m saying though is that even if you made all the reforms necessary, even if you were able to try all those cases which should be tried and incarcerate all those felons who should be incarcerate, we still will not eliminate crime or even cut it down appreciably. I saw an interesting figure, Dick, the other day. 107,000 felonies were committed in the city of New York last year by 3,000 people. Three thousand people committed 107,000 crimes. And we know who these people are. If these people could be apprehended and tried fully for the crime which they committed and then incarcerated and put away for life – I’m not talking about 20 years or ten years, I’m talking about for life – never again be allowed to see freedom, we would make no appreciable dent in our crime rate. But unfortunately again the public doesn’t think in terms of more judges, they don’t think in terms of more jails; they think in terms instead of tougher judges and diminishing the rights of defendants. That’s not the solution.
Heffner: Diminishing the rights of defendants. That certainly seems to be the point that the Chief Judge, Chief Justice is making.
Wachtler: yes, and a lot of people are concerned about that. They’re concerned with the exclusionary rule, for example. We have a rule, as you know, in this country where if evidence is acquired illegally by the police, that is without a warrant, you can’t use that evidence against the individual. Or if we have a confession which was taken without the proper administering of warnings, that confession can’t be used against the defendant. And that remark by the Chief Justice and many comments made by many critics of the exclusionary rule would say, if you would not have that rule, if you would allow these persons to be tried fully and use the confessions and the evidence against them, then we would somehow reduce crime. The fact is that the application of the exclusionary rule only calls for two to three percent reversals when it comes to the appellate level. And again, if the police followed all the rules which are mandated by, many by the United States Supreme Court on which the Chief Justice sits, there would be no need to exclude any evidence.
Heffner: You know, when we were discussing the exclusionary rule here a few months ago, I guess it was with Anthony Lewis and Kenneth Conboy, the Deputy Police Commissioner, we came upon the reference that, well, that you made in a recent speech. It was a reference to Cardoza’s famous dictum: “Shell the prisoner go free because the constable has blundered?” Why should the prisoner go free because there was a mistake on the part of the police officer?
Wachtler: Well, it’s easy to just call it a mistake. But we don’t want in our courts confessions that were taken at the end of a rubber hose. We don’t’ want confessions which were adduced because someone used the thumb screws. We don’t want evidence to come into our courts which were gotten by virtue of a warrantless search. That is a tactic which was successful in Nazi Germany. I could search an area within one mile of this studio and I could uncover dozens of crimes if I was just allowed to break in the doors and search people’s drawers and closets at random. If I was allowed to use that evidence it would certainly encourage me to conduct those kinds of searches. We don’t want those searches.
Heffner: Unless you as a policeman were then punished. Why isn’t it the policeman who is punished? Why is society punished by setting the criminal out into society again?
Wachtler: You’re talking about being punished perhaps civilly for the having committed a trespass on the property.
Heffner: Uh hmm.
Wachtler: You’d be hard pressed to find any jury which would convict or find guilty any police officer for committing a trespass if as a result of that trespass they uncovered the fruits of a crime. Because people are attuned to thinking that sometimes the results justify the means. But again I think the courts can say and have said, and I hope will continue to say, that the commitment which our founding fathers made with every citizen in this country to the effect that they should be safe from searches and seizures without a warrant, and they should be safe from not being compelled to testify against themselves, all of these protections I think are somewhat meaningful. And they are most meaningful, by the way, when we’re having times when the wisdom of these rules are being tested and pressed the most. In other words, you have a time of high crime. And again those are the things which people say are the first things to go, the protections. But once those protections go then you start leading yourself into a police state. And by the way, that’s the only time and place that a police officer’s job is easy, in a police state. And that’s something again that we don’t want here. I think that you can have compatibility, you can have police officers who abide by the rules, who get a warrant when they have to get a warrant, who advise a person of his rights before they take the confession. And by the way, there’s been no diminution of confessions or the amount of confessions taken by virtue of having to administer the Miranda warnings. A police officer can abide by these dictates from the courts and still make the apprehensions. The big problem comes in after they make the apprehension. And that is providing the mechanisms to try and punish the felons. We had 100,000 felony arrests in New York City last year, but only 5,000 felony trials. And again it was because they don’t have the personnel, the courts, the backup systems, the prosecutors, the legal aid attorneys necessary to try and dispose of the cases.
Heffner: Judge Wachtler, if there is to be a stitch in time that will save seven or nine, your high court or the United States high court, talking about the lack of resources and the lack of facilities won’t provide these stitches. What will? You’re talking about a very real and very grim situation.
Wachtler: But they will provide the stitches, Dick. The first thing they have to recognize – when I say “they” I mean those who are responsible for enacting the laws and for budgeting for the implementation of the laws enacted – is to, when they mandate certain sentences, that they provide the cells necessary to house those who are being sentenced in that fashion. When they say there shall be no plea bargaining except in certain extraordinary cases, that they provide the necessary courtrooms and judges to try those people who can’t bargain a plea. If tomorrow they pass a law which said there shall be no more plea bargaining in the State of New York, that everyone arrested for a felony shall be tried for a felony, they whole system would break down. You couldn’t possibly try them. As I told you, we could only try 5,000 in the city last year, when there were 100,000 out there waiting to be tried.
Heffner: Is this true of the rest of the country?
Wachtler: It’s true of most of the parts of the country where there are urban areas which have high crime rates and large populations to deal with.
Heffner: But how could state legislatures, how could local councilmen, etcetera, made enough aware of the situation if the Chief Justice of the United States seems to be pointing a finger in another direction?
Wachtler: I think that the Chief justice has – and I say this with all due respect – relied on what might be considered a placebo. He’s done the same thing, unfortunately, which many people who are seeking political office do. That is to look for a simple answer which is acceptable to the public. Very easy for the public to say, “That’s right. Get a tough judge in there and we’ll have no more crime”. But again those easy answers have not worked. And so long as people rely on those easy answers and don’t come up with the hard answers to very difficult questions, we’re going to be beset by this crime problem for years to come.
Heffner: You know, it’s interesting. Before you said something about the courts were not places where you’re just supposed to send someone away, courts were a place where you are supposed to identify justice.
Wachtler: That’s right.
Heffner: In talking about the prosecutor, the police first, and the prosecutorial staff, and the judges, the bench, as all part of the criminal justice system, I think we get a very, very different point of view, and I guess a rather erroneous one. We lump you and your brethren in with the police and in with the prosecutors when your job is something rather different.
Wachtler: That’s right. And any judge who lets himself be deluded into thinking he’s again part of or an implementer of the prosecutor’s arm is doing a grievous disservice. I know if you or I are ever arrested and brought into a court of law, we would like to feel at least there was someone in that courtroom beside our own attorney who is looking to the justice of the situation, who is trying again to administer the law fairly. That’s what, if our judicial system stands for anything it should stand for that. And when people ask the question, “Is the criminal justice system working?” and if they expect the answer to be, “Yes, it’s stopping crime”, the answer will never come. Even if the criminal justice system again worked perfectly it will not stop crime.
Heffner: It seems to me, a guess on my part, that in the years since you have been on the bench there has been a growing co-opting of the judiciary into this criminal justice system.
Heffner: Is that just a function of that?
Wachtler: No, no, it’s very true, again because people are looking somewhere. There’s an air of desperation. They’re looking somewhere. And where is the focal point? The focal point is after this fellow has been arrested he’s now being brought before the bar of justice where he will be punished hopefully. And there sits the judge. And the judge again becomes the axle on which the whole system rides. Again I think that it’s an important function that the judge plays in this process. But it must be an even-handed role.
Heffner: Are you suggesting then that you’re satisfied with the level of involvement of the judiciary in this country?
Wachtler: I think that the, again if you ask the question, “Is the criminal justice system working?” and you emphasize the word “Justice”, I think that the criminal justice system is doing a good job, but it could do a much better job. Right now, and again I used those figures before of 100,000 arrests and only 5,000 felony trials. When you hear someone campaigning for public office they talk in terms of more police. How often do you hear them talking in terms of more judges or courtrooms? They say we’re going to put more police out there. So instead of having 100,000 arrests, maybe with more police we’ll have 150,000 arrests. But you’re still only going to have 5,000 trials. So you broaden the mouth of the funnel but the neck remains just as narrow. So that means instead of having only 95,000 plea bargains you’re going to have over 100,000 plea bargains; but plea bargains nonetheless. And people who commit crimes not being punished for those crimes. And that’s wrong.
Heffner: Where does the funnel get narrowest? In the courtroom…
Wachtler: Oh, yes.
Heffner: …or the lack of courtrooms, or jails?
Wachtler: It gets narrow in all three of those things, because they happen just that quickly. The courtroom, you need more courtrooms, you need the judges to try the cases, and you need the jails. And right now there’s a tremendous struggle, a you know. I mentioned before the principle of total incapacitation, that is taking these 3,000 who commit these 107,000 crimes and putting them away forever. It would cost the State of New York to do that $3 billion to build the necessary jails and $1 billion a year to run them. And yet we had a half-billion-dollar bond issue on the ballot last year which was defeated. So that people say, “Put ‘em away. Don’t let these animals roam the streets”. And I would agree with them, they should be put away. But if you want them put away, give the process, give the system someplace to put them.
Heffner: Going back to the same question I put to you before, are you saying that the same thing holds true by and large in most large urban areas?
Wachtler: Yes. Now, some urban areas have dealt with this in a different way.
Wachtler: Some states, for example, have said in their legislative bodies, “Let’s not have 10- to 15-year sentences. Let’s have five to ten years. If you sentence someone from five to ten, he will be as deterred and as disciplined than if you sentenced him for ten to fifteen. But in New York State any legislator who ran on a platform to reduce the amount of punishment meted out would get no further than the campaign speech. Certainly, surely wouldn’t get past Election Day.
Heffner: That’s probably due to the refusal of the media to interpret such a posture in the way in which you have suggested it should be interpreted.
Wachtler: Oh, yes. I would think that if the media undertook a role to spell out to the citizenry the fact that if you reduce sentences somewhat you could put more people in jail and punish more people so that those who commit, felons wont’ think and say on the street “I’m going to do what I did the last five times, and that’s cop a plea, and I’ll be back here next month”. I think that if the people were made aware of that fact then perhaps the legislators would be emboldened.
Heffner: But instead of having a situation in which the media are interpreting accurately, correctly, productively what the court system is about, it would seem quite clear that in the past decade there has been such a series of confrontations between media and the judiciary.
Wachtler: Tremendous problem. And it’s exacerbated every time a judge takes a plea to a reduced sentence. Take the judge who has 500 felony indictments waiting to be tried, and he has to dispose of them within a period of about a month. And that’s the way it works. And so one of those 500 is a grand theft auto. And he takes that case and he says, “You’ll plead guilty to a misdemeanor, a lesser crime.” And the defendant says yes, and he allows that lesser plea and he gives him a suspended sentence. And then on television that evening you hear about Judge so-and-so who took this fellow who had stolen his fifth automobile and gave him a suspended sentence. And everyone, including my own family, looks and says, “That judge is an imbecile”. But again if that judge didn’t take the lesser plea, how could he have tried the other 499 cases, and where would he put this fellow if he did convict him of stealing the automobile when of the other 499 felony indictments there might be 200 which involve murders?
Heffner: But that’s not the only level on which there is conflict between the media and the judiciary. It would seem that increasingly, as you become more and more involved in satisfying the conflicting interests between one amendment to the Constitution and another.
Wachtler: Yes, well this is an enormous problem. The media has its First Amendment rights, which is a right given to it by the Constitution to inform the public. And the courts are given the obligation of enforcing the Sixth Amendment, which is to ensure a defendant of a fair trial. And that’s where the conflict comes into play, where the media says, “We want to report everything that has to do with this defendant, including his criminal background and matters which might not be subject to disclosure at that particular time”. And the court says, “Well, if you disclose all of that, it will be almost impossible to empanel an impartial jury”. And so the two debate and argue. The way it works out, the judge usually has the final word, because the judge makes the law. That is, that’s what the judge thinks. Then comes the editorial the next day and the judge is lampooned and harpooned, and so the media has the last word. The tow of them, by the way, in denigrating one another, of course diminish the rights of each, and both are, I think, a great deal to blame in many instances.
Heffner: We only have two minutes left. Where are we going in that regard? This question of First and Sixth Amendments?
Wachtler: There has been a great rapport established within the last two or three years between the press and the bench and bar. Meetings have been held, symposia have been held, and guidelines have been drawn. And they’ve been abided by, by and large. And the most fortunate thing that has come out of all of this is that now the media, one publication is not afraid to criticize another for perhaps overstepping its bounds, and judges are also becoming more critical of others. Witness the fact that we very recently overturned a trial judge within the last week because he excluded the press and we said he had no right to do so. This more and more is becoming a pattern.
Heffner: Of course there have been other cases in which you have indicated that he had a right to do so.
Wachtler: Oh, yes. Oh, yes. There’s no question about it. There are times when the rights in balance come out on the side of the defendant and not on the side of the press. When we’re certain that the press will be able to print the story anyhow, perhaps 24 hours later, but print it anyhow and not jeopardize a trial so that once we get a conviction or have a conviction we don’t have to see that conviction overturned.
Heffner: And you’re not being Pollyannaish in this regard?
Wachtler: Oh no, no. I see great help and hope there. I see more hope in accommodating the First and Sixth Amendment rights between the press and the judiciary than id o in resolving the problem of resolving criminal justice in this state and in this nation.
Heffner: Just one last brief question. Do you think that that resolution of First and Sixth will come at the cost of the press, the media, or of the courts?
Wachtler: No. no, I think that it will come not at the cost of any, but because of an accommodation. For example, we have a hearing which we say is closed to the press because something might come out in that hearing which would jeopardize the right of the defendant. We now say it will be videotaped and immediately after the ruling the press will be made privy to it. So that in that way the press can perhaps get their story as quickly as possible and still not interfere with the rights of the defendant.
Heffner: And our videotape has just run out. Thank you for joining me today, Judge Sol Wachtler.
Wachtler: Thank you.
Heffner: And thanks too, to you in the audience. I hope that you’ll join us again next time on The Open Mind. Meanwhile, as an old friend used to say, “Good night and good luck.”