Crime and Punishment, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Sol Wachtler
Title: “Crime and Punishment”, Part I
VTR: 1/16/1997

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND and my guest today, who I count among the most decent and concerned human beings as well as a dear friend and dedicated public servant, is Sol Wachtler, the former Chief Judge of the State of New York. Now Judge Wachtler’s new Random House volume, After the Madness: a Judge’s Own Prison Memoir, is the compelling and, in our times, too frequent story of tragically unrecognized, undiagnosed, and untreated mental illness compounded in this instance by naivite and massive doses of self-medication followed finally, and almost inexorably, by crime and then punishment; punishment that many of us thought, reflected others’ personal and political imperatives and ambitions, but was really blind and indifferent to human frailty, particularly to the pain of mental illness. Now, writer Tom Wolfe says about Sol Wachtler’s book that “it is the riveting prison diary of one of America’s most powerful judges who fell abruptly into the abyss of the criminal justice system; Fascinating observations about crime and punishment, many of them startling, some of them bitterly funny”. So that I want to begin our program now by asking Judge Wachtler to what extent he would now also refer to the abyss of the criminal justice system. How do you respond to that phrase?

WACHTLER: Well, abyss is a very apt description of being in prison. It’s humiliating, it’s dehumanizing. It’s the kind of experience that I would wish for no one. Unfortunately, the popular mythology out there is that prisons are country clubs. They refer to some prisons as “Club Feds”. They talk about a life of ease. But it’s none of those things. It’s an abyss and a terrible place to be. And actually prison should be a terrible place to be. It’s for punishment.

HEFFNER: So why do you think this “country club syndrome” set in? How did we get to that?

WACHTLER: Well, one of the reasons is that it’s politically popular to beat up on people who commit a crime. Again, they’re apt subjects for criticism and condemnation because they’ve violated the laws of society, so they should be punished. Nobody could ever fault anyone for punishing someone who has committed a crime. So that it becomes politically popular to punish them more and more, to make hard time harder and we’re seeing that repeatedly. There’s a sheriff of Maricopa County now who’s become a folk hero because he feeds the prisoners green bologna, and keeps them in tents of 100 degrees of temperature and puts women on chain gangs. Rather than anyone criticizing him, everyone applauds him. That’s the way it should be. And again, it’s become politically popular. If people run for public office, one of the platforms on which they stand is to, again, increase punishment, make it more severe, to that people won’t want to go to prison. The fact is that when people commit crimes, they seldom think about going to prison.

HEFFNER: It’s interesting. Tell me about that.

WACHTLER: Well, a person is driven to crime because of greed, because of selfishness, because of some mental aberration, and when people are in that state they often don’t think about getting caught and serving time or serving punishment. If they did, then this country, which has such a rage to punish, would not have so much crime, because we have so many people behind bars. Over a million people behind bars. We dwarf, as far as that statistic is concerned, we dwarf every other country. Illustratively, England has something like 97 people for every 100,000 in its population. Japan has something like 45 people in prison for every 100,000 of its population. And we have 500 for every 100,000 in our population because we punish for almost everything.

HEFFNER: Yes, but I know from reading After the Madness that indeed, you are the last person in the world to want to appear, because you don’t feel that way, as if you were condemning us for punishing.

WACHTLER: Oh, absolutely.

HEFFNER: You don’t do that…

WACHTLER: No…

HEFFNER: In this book.

WACHTLER: No, and I don’t intend to do that even now. I think that we should punish. I think that prison should be used to punish crime. I think that sometimes, unfortunately, they’re being used for other reasons. They’re being used to punish non-violent offenders who should better be treated, better to be put in alternatives to punishment. Incarceration should be reserved for those people who have committed crimes of violence, those people we have to get off the streets for our own safety and protection, but not for first-time, youthful drug offenders who sometimes sell drugs in order to feed their own habits. And we put them away not for a year or 2 years, but for 20 years, 30 years depending on the amount of drugs they happen to have in their possession at a certain time, and this is absurd. It’s absurd. It’s counterproductive, it resolves nothing, but it makes for a very popular stance politically to say “I put them away longer, I made them do harder time, I punished them more severely”. And again, there are many people, as far as I’m concerned, who could not be punished enough, and could not be put away long enough or in any harsher environment. But there are others who don’t deserve that. And I think that that’s the unfortunate part of our punishment system and the political layer that we place on morality in respect to punishment.

HEFFNER: Well, there’s nothing new about that. I remember a young judge running for the Court of Appeals in the State of New York, appearing in his judicial robes and in his commercial slamming shut the doors…

WACHTLER: …of the jail. No, no, first of all, I never wore my judicial robes…

HEFFNER: You didn’t?

WACHTLER: Not at all.

HEFFNER: Why did I think so?

WACHTLER: Because, because you weren’t watching carefully.

HEFFNER: Ah…

WACHTLER: Never. Secondly, if you remember that commercial, what I said then, what I said now, and what I said on this show twenty years ago I still say: and that is that people who commit the blood crimes, the crimes of violence, the rapes, the murders, the muggers; these people belong behind cell doors. But I also said in that commercial and on this show that people who commit crimes that are non-violent, people who commit crimes who could be treated not in the punishment cycle, but in the treatment cycle, those people can be redeemed because those people will one day be back on the street. Those people do NOT belong behind cell doors. And if you recall, I did say that.

HEFFNER: Well, when you talk about redemption and you talk about the punishment cycle or the learning cycle; I am so impressed with in After the Madness with a point that you made and you are almost talking about using the expression that we used to make about those trying to learn to make effective use of computers, “garbage in, garbage out”. But here on page 21 you write “There seems to be no one there to inform the public that by restoring some degree of self-esteem, the prisoner, incarcerated for a non-violent crime, we can improve his re-entry into society”. And by that you mean protect society.

WACHTLER: Exactly.

HEFFNER: …re-entry…

WACHTLER: Exactly.

HEFFNER: And then you go on and write, “And whether we like it or not, most all of them are coming out. If the prisoner is made to feel like garbage when he is in prison, he will for certain act like garbage when he is released”. And that, I think, as a theme of this book, is quite extraordinary.

WACHTLER: Well, I make that point in the book, and I illustrate it in the book by telling various case histories, and cases of various people with whom I came in contact in prison. I felt that way before. I had no sense, though, of the reality of the premise. When you go into prison, you are dehumanized. Your self-esteem is taken away from you. There is a philosophy of management that says that if you treat a person like garbage, the person starts thinking of himself as garbage. Then he will be docile and be able to be treated like garbage. You know, you put garbage out in the evening, it’s picked up and taken away in the morning, and that’s the way it’s done, and so the prison guards have a mentality, some of them, not all of them, but some of them, that they are there to punish. They don’t realize that the prisoner is there, and that’s the punishment. The guards feel that they are there to punish the prisoner. And so they dehumanize the prisoner. They don’t look upon the prisoner as a person. They treat them with great indifference. They try their best to lower their self-esteem, to make that person feel like garbage with a conscious effort. And then what happens, I point out in the book, when they get out of prison, they still have that feeling of low esteem, they still have that feeling of being garbage, and they act like garbage. Whereas if you treated these people like people…and I’m not saying to give them perks, and I’m not saying to give them, you know, luxuries…you know, that’s the extreme that people talk about. They say that either you treat them like dogs and animals, or you’re giving them color TV and you’re treating them as if they’re some kind of royalty. I’m not talking about either one of those extremes. I’m talking about treating them as people, with decency. They have to respect the prison discipline, they have to adhere to the rules, they have to recognize that they’re there to be punished, but not punished by being dehumanized and humiliated. And that’s the point I try to make in the book.

HEFFNER: Well, again and again in After the Madness I find it so compelling to note your own reasons for writing and your own strong feeling, your own concern, not with the lot of the prisoner, first and foremost, but with the lot of the prisoner because you are concerned…who is he? Who is she? What are they? What are they going to do in society after that? And the “treat them like garbage, they’ll act like garbage” is such a compelling thought, reading the book I kept wondering…and you tell many, many stories here that are fascinating, as Tom Wolfe indicates…what did you learn that you didn’t know when you sat on the bench for all of those years?

WACHTLER: Well, I learned a great deal about some things that we pass off very quickly. When we talk on certain subjects, we talk about the strip-search, and I had many cases coming into the court when we talked about the strip-search…someone comes into prison and that person is searched, not only when he or she comes into prison, but every time a prisoner comes, any time a person does anything that is a bit different as far as prison routine…they go back and they’re given a strip-search. We wrote about it and we knew that it must be a humiliating experience. We said though, that it was necessary to maintain security within the prison. And so we said strip-searches are legal.

HEFFNER: On the bench…

WACHTLER: On the bench I said that. If I were on the bench now, I’d STILL say that. But at least I would know what I was talking about. At least when someone argued that a strip-search was humiliating and dehumanizing, I wouldn’t say to myself “Oh yeah, big deal, you’re being searched”. Because again, you have to be subjected…even the urine testing…I remember when we had a case involving some school teachers who were being subject to random urine testing and I wrote the decision for the court that said that this was improper unless they had reasonable cause to believe, or reasonable suspicion with respect to that person or that teacher’s drug use. Again, my decision would be the same. But I remember when that case was being argued. The people arguing on behalf of the school teachers said that “it’s a humiliating experience to have to be subject to a urine test”. And I remember the judges talking and saying “What is so humiliating about it? Every time you go to a doctor’s office you give a specimen. That’s not humiliating”. But that’s because we didn’t understand what a urine test really was. That it’s done in front of a mirror with two people watching you, that in a sense you are made to feel like a sub-human during the process. So again, should we have urine testing in prisons? Absolutely, it is essential. I’m sure there is a contraband being brought into the prisons. When we relate the urine testing mechanism to other people in other professions, we should look at it as not as something that is just a routine procedure, but as something that, again, is quite embarrassing and quite humiliating. And there are other instances, Richard, where again, it’s quite different from reading briefs, and then going through the actual experience. One such experience I had was solitary confinement, which again, we wrote up in such a way to relate to the inhuman aspects of it, without knowing. Now I’m not saying that every judge should go into solitary confinement. I’m just saying that it gave me a very unique perspective about which I write in the book.

HEFFNER: Would you have cast your eye or nay, your vote as a judge, differently?

WACHTLER: In certain cases I would have. In the solitary confinement case interestingly enough, in fact thankfully, as I look back on it, it was a 4-3 decision involving a prisoner who was in solitary confinement for 5 days – and the case was Wilkinson vs. Skinner – he was suing the sheriff of Erie County…ah, Monroe County…and he said that being in solitary confinement for 5 days was cruel and inhuman. Being locked up in a cage for 23 hours a day, not being able to brush your teeth except every other day, take a shower…sleeping on a metal slab with a 2 inch mattress was cruel and inhuman. And our court, on a 4-3 decision, and I wrote on the majority opinion, I said “yes, he could sue for this”. This was the first time we gave a prisoner the right to sue. We said “he could sue for this”. And then I noted that it could be cruel and inhuman. In this case we don’t think it probably was, but it could be. Even one day, I said, in solitary confinement could be cruel and inhuman. I said that in a decision ten years ago. Little did I realize when I wrote that decision that one day I would be in solitary confinement, not for a day but for over 30 days, and it is a horrendous, horrendous experience. So, again, in that particular instance, my decision would have been the same, but I certainly would have approached it with a greater understanding and empathy for the lot of the person who is in solitary.

HEFFNER: What chance do you think in all the world there is in this country of coming to be so concerned about cruel and inhuman punishment at a time when, I daresay, there are many people who would say “Right on!” cruel and inhuman…

WACHTLER: Absolutely, absolutely. Absolutely, and I tell you, I might be right there with them when it comes to people who are committing crimes of violence, people who have physically injured another person, committed murder, committed rape. It’s hard to conceive of too severe a punishment for a person like that, short of, of course, the death penalty, which I’m opposed to. But there are others, and the vast majority of prisoners, 70 percent of them, Richard, a vast majority of them who DON’T deserve this treatment. And those are the ones that I would hope people would look at. Like the story of a young man in my book who was in his twenties. He had been arrested for the use of cocaine, a small amount, locally, and was given just a minor punishment, never treatment, and then started using it more and more and then wanted to get the money to get more of it…and so he went out and bought himself a hat, put on the hat and went to a bank with a starter pistol. He went to the teller of the bank and said “fill it up”, and the teller put something like $1,800 in the bag. Then a 20 dollar bill fell on the floor. He reached down for it and his hat fell off. He looked up at the camera and he had his picture taken. Well, he took his small bag of money, went to his apartment, called up his dealer to get some cocaine. It was delivered, he paid for it, and then was arrested an hour later. He was sentenced to over 20 years in prison for that. Now he’s still in his 20s, in his late 20s, a beautiful young boy who never wanted to hurt anyone, but he committed an armed robbery, and so he should be punished, but for 20 years? When he comes out, what kind of person will he be?

HEFFNER: Well, that’s a theme that runs through this book, fellow prisoner after fellow prisoner. You tell the stories of young men that are apprehended and are sent away for an incredible amount of time. And you, because you’re sympathetic to them, because you’ve come to know them, tell their stories in terms of, not of they’re being innocent, and I don’t mean to imply that, but of the circumstances, which any decent human being would sympathize with. How do we get into a situation where there are so many lengthy, lengthy sentences for these acts?

WACHTLER: We get…

HEFFNER: …again, non-violent…

WACHTLER: We get into that situation by virtually what we call “sentencing guidelines”, which we have in the federal system and many state systems. In New York State we have in respect to drug crimes, the Rockefeller Drug Laws…by the way, you had asked how my, my opinion changed? When Nelson Rockefeller spoke to me as a young judge about the drug laws which stopped drug use…he had tried various other things unsuccessfully…and he said “What I want to do is to pass laws where if you’re in possession of drugs, even if just a small amount, you go away for life! No chance of parole. That will discourage people from using drugs”. And so these laws were enacted, and I thought by now that they would probably stop the use of drugs. There might be a few sacrificial lambs along the way that might spend a lifetime in prison, but it might be worth it to stop this scourge of drug trade. Well of course, it stopped nothing. Drug trade increased many, many, many times over. Later on, when my judgment matured a bit, I wrote, I was sent in a case where a mill hand, just a young woman who was working in a heroin factory, was sent away for 20 years. And I said well, this is…there has to be something cruel and inhuman about that. The majority said “No, these are the guidelines, these are the parameters established by the legislature, and she will go away for twenty years”. We have a case now in New York State involving a woman named Angela Thompson – she’s in Bedford Hills – she was 17 years old when she went to live with her uncle. Her uncle was a notorious drug dealer. She didn’t know this. Her uncle gives her a package to deliver on the corner. Whether she knew what was in the package or not is irrelevant. She was 17 years old. She went to deliver the package and the package was delivered to a narcotics agent. She was arrested and sentenced to 15 years in prison…first time offense, for delivering a package for her uncle. Her uncle, who was a drug dealer, a notorious drug dealer, received the same sentence. That’s what you call irrational sentencing under mandatory punishment. You have a barroom brawl…two men get into a fist fight and one knocks down the other. The victor is arrested for assault – another scenario – a man spots an elderly woman down the street, jumps on her and beats her up. He’s arrested for assault. Under sentencing guidelines, it’s the same crime! Same punishment! That’s why they take a drug kingpin, who has been dealing for years and years and years, and say “Well, we’ve got this fellow, he’s a kingpin. We’re going to put him away for thirty years”. This is the mandatory sentence. Then they apply the mandatory sentence to the fellow who was delivering drugs for the kingpin and the irony is, (and this is something else I would love to discuss with you, these so-called conspiracy laws) the irony is that the kingpin is let free, and they grab the other fellow because they can grab many more of them, the low-level traders. And they’re put away for sentences up to 40 – I met one fellow whose was 70 years! For dealing drugs.

HEFFNER: Well…

WACHTLER: Does that make sense? By the way, the taxpayer pays several million dollars for that.

HEFFNER: Well that’s what I wanted to ask. We seem to be biting off our noses to spite our faces in that we’re building more and more prisons. But we’re really warehousing people, aren’t we?

WACHTLER: That’s right, and the wrong people. And again, people will not draw the distinction. Politicians refuse to do so in addressing the public. Time and time again I hear these speeches “It’s time we put these people away!” Well, who are these people? You’re lumping, again, first time petty drug offenses in with major, violent criminals. There are people in the federal prisons today serving 5, 6, 7 times the amount of sentence that rapists are serving, and what they did was to deal in drugs, and mostly again, because they were hooked on drugs themselves.

HEFFNER: So is there any indication that what your experience was with these people, that they grow worse, and now I’m not talking about the garbage…perhaps I should put it the other way…is there any sense, is there any sign that there is something positive about what goes on in terms of sentencing? There has to be some rationale…

WACHTLER: No. There is very little rationale. Again, the rationale simple is that you commit the offense and therefore you are going to be punished according to what they call a grid. So that, theoretically, if a woman steals powdered milk to feed her baby, and a man steals powdered milk to cut heroin, they’ve committed the precise same crime. And when you apply this blind grid without having a judge allowed the discretion, a look at the different circumstances, when you apply this grid, they both go away, again, theoretically, assuming that’s the crime ascribed, they both go away for equal sentences.

HEFFNER: All right, we’re coming to the end of this, but we’ll do another one if you will stay where you are, but I want to…ask what was the rationale, to use the word again, for the sentencing…

WACHTLER: …sentencing guidelines? Well there are two rationales…

HEFFNER: …ask the judges…

WACHTLER: No, no, there are two rationales that are very interesting. On the one side there was Senator Kennedy, who felt that by applying a blind kind of justice we don’t discriminate against minorities in favor of a white person who is well educated and so forth. Everyone is treated the same because you just look at the crime. So the liberal establishment at that time – it’s all changed by the way – the liberal establishment was in favor of guidelines for that reason. The conservative establishment – and President Reagan jumped on this – didn’t trust the judges and said that the judges weren’t sending them away for long enough. And so you had a wonderful marriage of two contrary philosophies focusing in on sentencing guidelines and saying they’re marvelous, and they were enacted. Now there’s a big retreat from that.

HEFFNER: Sol Wachtler, thank you so much for joining me today on THE OPEN MIND, and as I say, there’s so much more to talk with you about in terms of After the Madness, and this incredible prison memoir. And you stay where you are, and the audience comes back next week to see the second of our two programs. Thank you once again.

WACHTLER: Thank you.

HEFFNER: And thanks, too, to you in the audience. I do hope you’ll join us again next time. And if you would like a transcript of today’s program, please send $4.00 in check or money order to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. Meanwhile, as another old friend used to say, “Good night and good luck”.

Continuing production of THE OPEN MIND has been made possible by grant from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Thomas and Theresa Mullarkey Foundation; The New York Times Company Foundation; and from the corporate community, Ruder-Finn.