Courts In Crisis

THE OPEN MIND
Host: Richard D. Heffner
Guests: Judge Sol Wachtler
Title: “Courts in Crisis”
VTR: 2/24/90

I’m Richard Heffner, your host on The Open Mind. And I’ve known today’s judicial, judicious guest for nearly two decades now, almost since he went on the bench. Sol Wachtler was first a New York State Supreme Court Justice, then was elected Associate Judge of the State’s highest court, its prestigious, nationally influential Court of Appeals, and now is its highly regarded Chief Judge, a Republican appointed by Democratic Governor Mario Cuomo.

Judge Wachtler has discussed many issues at this table over the years: “Original Intent” as an appropriate guide to judging Constitutional matters before the courts; free press/fair trial issues; freeing prisoners because our constables have blundered; and on and on.

But I’ve never before known him to be quite so exercised about the state of this nation’s criminal justice system as he has become in recent years. Indeed, as the 1990s began, in his annual State of the Judiciary Address, Chief Judge Wachtler pointed to drug-related crime as creating “The most profound crisis we have faced in fifty years”, nowhere more so than in our courts. And so I suppose I must ask the Chief Judge first to address himself to the suggestion made by such prominent Americans as Nobel Laureate economist Milton Friedman, former Secretary of State George Shultz, columnist William Buckley, and now even a Federal Judge – that we legalize marijuana, heroin, crack, the drugs of choice that are literally smothering our criminal justice system because they are illegal and this nation is still trying to enforce the law…trying, but not succeeding very well. Judge Wachtler, should we or shouldn’t we make that shift?

Wachtler: We certainly cannot even consider, I don’t think appropriately, legalizing drugs. First of all, I don’t know how we’re ever going to undersell, the illegitimate market because now drugs are so readily available, and because they can be converted so cheaply into crack, that is cocaine into crack because there’s a new drug coming along which is easily fabricated by readily available materials that – this drug is known as “crank” or “ice” or “crystal”, it’s a methamphetamine, which is highly addictive and, as I say, will become available and very inexpensive. So that the legalized drugs will not be able to compete with the illegal drugs. That’s the one thing. That’s the response to those who say “let’s take the profit motive out of the drug business”. The second thing is that these drugs, crack…let’s take crack as an example…create such enormous damage to the individual using the crack, the person who uses it, first of all it affects the dopamine in the brain, which heightens the sexual activity, diving people to be enormously promiscuous, and it’s led to the spread of AIDS. Also, a lot of unwanted pregnancies and the crack babies, born from these pregnancies, are like no other babies, Dick. The baby of the heroin addict, or the alcoholic mother…the mother still wants the baby and the baby bonds to the mother. Not the crack baby…the crack baby is emotionally distanced from the mother. These are the children, by the way, in New York City…last year we had 12,000 crack babies born. These are the sociopaths of tomorrow. These children are born with a disturbing neurological synapse – now to think in terms of legalizing a drug that would drive people to do these kinds of deeds I think is just an unthinkable product of this legalization process.

Heffner: Of course we have often though the unthinkable. And the reason for it, frequently, is that we’re not doing so well in not thinking the unthinkable, and honestly, isn’t that true now? You with your concerns about what’s happening to the criminal justice system, thanks to drugs.

Wachtler: Well, there’s no question but that drugs is having an enormous impact on the system. Some 80% of our crime is related to drugs, either people are on drugs when they commit the crime, they’re committing the crime to get money to buy drugs, or they’re directly drug-related, and there’s no question but that the profit motive is so great s to drive many people and make it very tempting for them to be in that business. But will legalizing stop that? As I said before, the illegal market will continue. Are you going to legalize it for children? Are you going to say that those 11, 12, 13, 14 year olds who are using crack today would be able to get it legally, if you legalize the market? No. so there will be an illicit market for the juveniles, and there’ll be, again, an illegal market for those people who can fabricate the drugs less expensively than those people who will be selling it on a legal market. So there will always be this drug market, and again, when these people are on the drugs, and they commit the crime, they’ll commit the crime whether they’re on legal drugs, or illegal drugs. There’s no question but the fact that, that drugs are wreaking havoc with our system. We’ve had, here in New York State, and by the way this is true of every other state in the union, where they have major metropolitan areas, we’ve had a 700% increase in the last five years in abuse and neglect cases – directly related to drugs. A 300% increase in felony arrests, directly related to drugs. So the problem is monumental. But again legalizing it will not stop the problem.

Heffner: What will?

Wachtler: I don’t know. Right now we know they’re having a mammoth effort in Columbia against the Medelin Cartel. We take little comfort from that in New York State because our drugs happen to come from the Cali Cartel, which has not been touched at all. We know that interdiction hasn’t worked, we know that there are some 800,000 poppy farmers, who during the Afghanistan War went into Pakistan, who are now coming back into Afghanistan, and the only thing they know is how to raise poppies, so we can expect a bumper crop of heroin coming in this next summer. We know that “ice” which started as did crack in Hawaii, and then moved to California, is now moving east, and will soon blanket the country. So that you say, “where is salvation?” I don’t know.

Heffner: Yes, but Judge Wachtler I claim the benefits of anonymity, of being not a public person, but a private citizen, and it’s easier for me, it seems to say, “I don’t know”, but in the public sector, what hope has the nation if you and other major public officials really mean “I don’t know”?

Wachtler: Well, we know that there are certain parts of the society which have to be mobilized to deal with the problem.

Heffner: Like what?

Wachtler: Education. Rehabilitation. These are areas which really have not been touched as sufficiently as they should be, and perhaps I differ with Dr. Bennett on this. He feels that law enforcement should be some 75% and 25% should be for education and rehabilitation. I would reverse that because although I’m in the law enforcement end when it comes to the courts, I recognize the fact that we just can’t build the jails fast enough and the courts are, as I said before, so overwhelmed that we can’t deal with the volume. We have to keep doing this, we have to keep arresting those who commit crime and those who deal in drugs. We have to do the very best we can. But we have to also start thinking in terms of other solutions as I mentioned a moment ago, I think that rehabilitation, I think that education…but we don’t’ know, and on one has told us yet, the best method for rehabilitation…the best method for education. And so, we’re hoping that those people who are in these disciplines will starting working this out for us, to give us some instruction. Is it best to use a substitute drug? Are the methadone programs working as they should? Should we talk about complete withdrawal, should we talk about different settings, should we talk about work program? All of these different methodologies are being tried. Which is the best? I would hope that perhaps in Washington they would concentrate on this, they would really try to find out what the best method of rehabilitation is so that we can devote our resources to that modality. Education, I think that we’re just about convinced now that although “saying no” is a desirable affect or effect of an educational process, that just telling our children to say “no” is not enough. So we have to devise ways of reaching the children. What is the best way? At what age? With whom? By what means? These are the things we’re hoping that experimentation will be directed toward so that we can dry up the supply as well as the demand. The supply we’re never going to be sopping completely because as I said interdiction is not working, and we have the local fabrication of “ice” which does not require the coca leaf, but if we can stop the demand side that there isn’t this tremendous market for drugs, then perhaps we’ll be doing more to, to discourage the importation of it.

Heffner: Tell me why you put your emphasis on that demand side. I don’t, I don’t disagree with you, obviously, I understand what it is that you’re saying, but is this is a function of a sense of the total incapacity of our government to do anything about the supply side?

Wachtler: Well, there was…once a time, and I was part of the group that called for this, you know, I said, and I might have said it on this show, Dick, that the answer is interdiction because we don’t grow the coca leaf in New York State. Every ounce of cocaine, every ounce of heroin is grown outside of this country. So I said, “if we can only stop it, seal the borders, use the military, use any device you can, stop it from coming in”, I’m willing to concede now that that will not work.

Heffner: Why?

Wachtler: We can’t stop it.

Heffner: Why?

Wachtler: I don’t know why. Because again the profit motive is so great that perhaps it’s worth the risk. Perhaps it’s so easy to smuggle in. you can take one ounce, one ounce of cocaine that might cost $500 and within two or three hours convert that into $2,500 worth of crack, and all you need…it used to take cracking process with ether and free-basing and you’ve heard of all those different methods. Now all you need is a little pie plate, a microwave oven and within 15 seconds you can convert cocaine into crack with some baking soda. Now that becomes a cottage industry.

Heffner: Now how many of the people who are involved in this “cottage” industry make the assumption that if caught they’re going to go to jail? That they’re going to pay some real penalty?

Wachtler: Well, this is one of our problems. Number one, it’s hard for me to say, and I can’t say with any great conviction that this would be the deterrent it should be, because again the profit motive is so great that people are willing to take the risk, many believing they’ll never be caught. But I wish we could provide more of a deterrent by saying to those people, “If you’re arrested for a particular crime, you’re going to be tried for that crime and punished for that crime”, and there’ll be no plea bargaining. Unfortunately, we can’t say that. In the Criminal Court of the City of New York…and again this is replicated in every major city in the country, we have 1,000 cases a day coming in. we have 75 judges. That gives us about 4 minutes per case. Now in 4 minutes you cannot try a case. So what happens is each one of them, some 99.4% of the cases in our criminal court are plea bargained. Now when the word out on the street is that it doesn’t matter what you do, you’re going to be able to cop a plea to something less, and serve little or no time at all, then of course, the courts are not a great deterrent.

Heffner: But you know, Judge, it’s one thing to talk about cutting down demand and talking about educational programs, and talking about the people in Washington devising, doing research and finding out what will be effective. It’s another thing for me to talk to the man who sits at the very top of this state’s, of New York State’s judicial system, who presumably has some large responsibility for whether the courts are doing what you would like them to do in this regard, and who has to say, “That isn’t what the situation is, at least in this state”, and from what you’ve told me, I gather in other states, too.

Wachtler: It’s not true in any state because we don’t have the resources. You see people concentrate and people who run our governments, concentrate on two ends of the continuum of criminal justice. And that is the police and the corrections. Arrest them and jail them. The large part in the middle, which is the court sytem, is virtually ignored by the people who run our governments. We are underfunded and under-financed, and this is true of every court and we have a Conference of Chief Justices, and we meet and we discuss this, it’s true of every court in the country. They are just under-financed and they just can’t provide the kind of personnel, both judicial and non-judicial, or the kind of courtroom space necessary to try these vast number of cases. And then we have another problem. We have, again, to take New York State statistically, but this is the same as all the other large states, we have in New York State, 475,000 children of addicted parents. We have 58,000 children in foster care and we have another 20,000 being added every year. And most of this is due; a great part of this is due, to the drug problem. And again, the resources aren’t there to take care of this, so when we look, in the future we worry even more about what’s coming.

Heffner: Do you mean to say that you believe that this nation is not rich enough, is not wealthy enough to devote the resources necessary to your end of the problem?

Wachtler: Oh, if I took my end along…

Heffner: Yes.

Wachtler: …the answer is I’m certain that the resources could be found, but they are not. For some reason, again, the rhetoric is much better directed, during political campaigns, and in the governmental arena, towards providing more police, and more jails. This is what the people want to hear and this is what the people who run for political office say. Very seldom do you hear someone running on a platform, “and if I’m elected you’re going to see more judges, and more courtrooms so that we can try these people and see that they’re incarcerated”. People don’t want to hear that, so they don’t’ hear it and when the time comes for the budgets to be prepared, the courts are usually given very short shrift.

Heffner: Maybe the judiciary hasn’t done the kind of job it should do in making Americans understand, in helping them understand that there is something between policeman who apprehends the accused the correction agency, and that is that court that you’re talking about.

Wachtler: You could well be correct on that, and perhaps the judiciary has to do a better job, or people who are concerned with the judiciary must do a better job in educating the public. This becomes very, very important that the public know this because if we’re going to say, as again, Dr. Bennett has said, that we want to devote our resources to law enforcement, then we must consider the courts as part of that overall picture. Interestingly enough the President called for a 10% increase in the Federal judiciary, and I applaud that. But the Federal judiciary is not where the action is. Again in New York State today, Dick, today we will handle more cases, more drug cases than every Federal court in the United States of America will handle in one year. So it’s the state courts, and California will tell you the same thing, it’s the state courts where all of the drug cases are being tried. So providing more Federal judges will not help us meet that burden.

Heffner: How much good, or bad have the media done in delivering…in helping you and your counterparts in other states, deliver that message?

Wachtler: the media has done a very poor job of delivering that message, because again the media has not depicted the role of the courts accurately or appropriately…

Heffner: What do you mean?

Wachtler: Or sufficiently enough, so that the people will be educated with respect to the fact that you can’t…it does no good to have vast street arrests, as we now have been having on the buy-and-bust situations for drug cases, to have vast arrests, if when they come into court, a judge can only spend 4 minutes per case, and take that case and discharge it, and then have the person walk out on the street because, again, that breeds disrespect, not only for the courts, but for the entire criminal justice process. So if you want to have that process work, and I think that the media has an obligation again, not only the judges, but those people who reach the public, have an obligation of instructing the public with respect to this enormous need.

Heffner: what about during those 4 minutes? Those are your four minutes, those are the minutes over which you and your colleagues exercise some control. Do you think we have to change, in any major way, our approach to the relationship between the apprehended and conviction, and punishment? I notice that in your State of the Judiciary address you have suggested certain changes…size of juries, the judges being able to perform some of the functions that Grand Juries have performed before.

Wachtler: Oh, yes, I think that New York State should follow the lead of many states and do away with its Grand Jury. California has…California now has the preliminary hearing…New York still adheres to the ancient rigor of the Grand Jury process which absorbs an enormous amount of time. Last year w had to send 4,500 arrested drug dealers back out into the street because we could not get them before the Grand Jury within the 120 hours prescribed in the law. This is wasted time, and it’s wasted in dealing with an anachronism which doesn’t belong with us any longer.

Heffner: You and I have talked before about letting the prisoner go because of the blunder of the constable. Are we blundering gin other ways in the conduct, in continuing down the path that was appropriate 50 years ago, 100 years ago, 200 years ago?

Wachtler: Oh, certainly with the Grand Jury.

Heffner: Beside that.

Wachtler: …and certainly with the handling of certain matters, and we discussed this…I sat at this microphone and discussed this with you a decade ago, with certain so-called victimless crimes…

Heffner: Yes.

Wachtler: …which are violations of administration ordinances, which relate to zoning problems, or spitting in the subways, or matters of that sort, which don’t belong in our criminal courts, and they still are in great measure because people look to the courts to do things which courts aren’t geared to do. My hope is now when they see the courts so over-burdened with real crime, that they’ll start getting the priorities back into order and that we’ll be able to get some of these matters out of the courts.

Heffner: I’ve followed your career, read your speeches, if not religiously, then fairly regularly over these years, you’ve always been concerned about maintaining our liberties. You’ve always been concerned with the best in the American heritage. Are you willing now to give up a little of what was absolutely necessary 200 years ago in order to have a trade-off and get something that absolutely necessary today?

Wachtler: Not…not, not an ounce. Not a quarter of an inch. Not a modicum.

Heffner: Despite what you’ve described as the situation?

Wachtler: Despite what I described, I still think that the most fundamental and important basis for our democratic society are the freedoms which we enjoy and the need to preserve the commitment which we made with our Founding Fathers by seeing to it that we don’t have unlawful searches and seizures, that we don’t allow people to be forced into confession, that we don’t have people languishing and missing or deprived of a speedy trial, that we don’t deprive a person of a right to counsel. All of these things are fundamental, and one of the things that is a great temptation, and I remember debating this, I think it was Louis Nizer…

Heffner: You’re right, by gosh.

Wachtler: …at this table, where he talked in terms perhaps of thinking about a retreat in some of these areas, and I say now as I said then, that would be the beginning of the end for us.

Heffner: Yes, but you have seemingly described, not the beginning of the end, but the middle of the end in the statistics that you’ve quoted.

Wachtler: The statistics are, as I said before, overwhelming. They can be met by providing more courtrooms, and more judges and more non-judicial personnel.

Heffner: would you…would you be willing…

Wachtler: …but if you sacrifice the other, you’ll never get it back. Once you start giving up our freedoms, once you start allowing people to search without a warrant, just for the end result of uncovering the crime, then you’re sanctioning a police state. And, you know, we’ve said before, Dick, that the job of a policeman is very, very difficult in our society. And it should be. The only time that a policeman’s job is very easy is in a police state.

Heffner: That’s because you’re a Judge, and the other guy’s a cop. But seriously, I hear what you’re saying and you’re right. It was many, many, many years ago that you said that with Louis Nizer at this table because of the suggestions he made. But you’ve again just described not the antithesis of the police state because no one’s urging upon us a police state, but doesn’t something have to give here…you say we can make these changes…we can…you didn’t say “have our cake and eat it, too”, but you said these are the things we can do.

Wachtler: Certain changes have to be made and can be made consistent with the Bill of Rights. I mentioned the Grand Jury before, the Grand Jury started well before our Bill of Rights, or our Constitution was drawn…it started in England, but England gave it up sixty years ago. That’s an anachronism, that’s no guarantee, there’s no guarantee in our Constitution that says that a person shall have the right to go before a Grand Jury.

Heffner: There are no more anachronisms in our procedures?

Wachtler: Oh, yes, there are and they certainly should be eliminated and resolved and they had been and we’ve moved very quickly in many areas. We think that there should be elimination or cutting down of preemptory challenges, we’ve gone to the point where we allow judges now to select juries rather than…in many criminal cases, rather than have the attorneys spend two months endlessly nit-picking as to what person should serve on a jury. We streamlined all those procedures of necessity. But again, when it comes to the point of streamlining procedures, when that comes into a collision course with fundamental or basic guaranteed Constitutional rights, it’s the procedures which have to slow down.

Heffner: You know, you must recognize how much that sounds like what those who are responsible, outside the judiciary, in the legislature, in the Executive Departments, how they sound when they say, “We can do everything at once, we have to give something to the courts, and something to education, but it’s not possible with the resources at hand to meet all these problems.” It seems to me that everybody is standing still protecting his own turf.

Wachtler: Well, you’re…there’s no question about that, and I recognize that. There has to be health care and there has to be education and there has to be shelter, but there has to be courts as well. The only thing that bothers me, and the thing that I grieve for, is the public perception which says that “If the courts would do their job, we’d have no more crime. Or if these soft-hearted and soft-headed Judges weren’t so lazy, we could do away with crime”. You know all the rhetoric that I’ve heard so often and you’ve heard as well, if “these judges, these liberal judges would put more people in jail…”, when Franklin Delano Roosevelt was Governor of this state we had 12,000 people in our state penitentiary, in the ‘70s it went into the 13,000 range. We now have 52,000…we’re at 120% capacity, and none of them went there voluntarily. Now, this is all judges doing the job they have to do. But I say along with all the other people who are trying to, as you say, protect their turf, that we need resources if we’re going to do the job that the public expects us to do.

Heffner: and as a public official would you say “Yes” then if I said, “Well, obviously we have to increase the degree to which we tax ourselves”?

Wachtler: I think so. I think so, absolutely. If people want the kind of protection that law enforcement can give them, they do need more police, they need more prosecutors, they need more defense attorneys, they need more non-judicial personnel, they need more judges. If they want plea-bargaining to be stopped, as we all do, and they want people to be punished for the crime they commit, they have to be willing to pay for it.

Heffner: You’ll admit that’s a good place to end the program.

Wachtler: Fine.

Heffner: Thank you very much for joining me today, Judge Wachtler. And thanks too, to you in the audience. I hope that you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to The Open Mind, PO Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night, and good luck.”

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; the M. Weiner Foundation of New Jersey; the Edyth and Dean Dowling Foundation; the Mediators and Richard and Gloria Manney; the Richard Lounsbery Foundation; the New York Times Company Foundation; and from the corporate community, Mutual of America.