American Justice, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Rudolph Giuliani
Title: American Justice, Part I
AIR: 11/24/84

I’m Richard Heffner, your host on THE OPEN MIND. In October, 1984, Congress passed a Comprehensive Crime Control Act that had been in the making for a decade, and that provides the most extensive revisions of federal criminal law in our history. They permit pretrial preventive detention of alleged dangerous accused persons, abolish parole, toughen bail and sentencing requirements, limit the insanity plea, generally get tough on criminals. But, of course, we ought, rather carefully, to evaluate this sign of contemporary Americans’ movement away from a medical model of criminal behavior; one that holds crime to be an illness, and the criminal a sick person to be cared for and cured rather than blamed. Clearly, crime is too rampant now. We are too fearful any longer to seek healing rather than punishment, rehabilitation rather than retribution. And it would be well today to examine this fact of our lives with as brilliant and as thoughtfully reasoning a public prosecutor as our guest, Rudolph Giuliani, now a United States Attorney, who, as Associate Attorney General of the United States, had held one of the Reagan administration’s three top law enforcement jobs. And not so long ago, Mr. Giuliani said, “Our criminal justice system is doing a better job of protecting people accused of crime than of protecting society.” And perhaps we ought to ask him whether that was by any means just a touch of hyperbole. Mr. Giuliani?

GIULIANI: Well, in some ways, I guess it was. And it was intended to try to capsulize in a brief phrase a whole group of concepts that I think describe where our criminal justice system was and probably continues to be, until we feel the effects of some of these changes that took place over the course of the last year or so.

HEFFNER: Do you think we were philosophically soft on crime or that administratively we just managed to error our way into these mistakes?

GIULIANI: I think we’ve moved away from the model of America that many of us grew up with 20, 30 years ago, which is one where we emphasize individual responsibility, both for innocent citizens, decent citizens, as well as people who might be caught in criminal problems. And we’ve emphasized so much social responsibility, and in looking for the causes of crime, and in looking for the individual reasons even why people commit crimes, rather than just describing them as reasons and things that might be helpful in the long range, to try and help alleviate the problem of crime, we began describing them as excuses. And I think we did create some of the sickness ourselves in the kind of philosophy that we were applying.

HEFFNER: Well, you know, when you were kind enough to be my guest on From the Editor’s Desk, I asked whether you felt there was any political connection there; would we generally find one party soft and the other party hard on crime? And I wonder if we could just go into that a moment here.

GIULIANI: Well, I wouldn’t call it a political difference. I think I can find as many Democrats that would agree with me on what I just said about how we did go through a phase where philosophically we were too permissive about human misbehavior. And as many Republicans would agree with me, and I think as many would disagree on both sides. I think we might be able to divide people more philosophically. I think there are people that try to socialize too much the view of our kind of society, and in some ways are missing the essential genius of what has been America, which is heavy reliance on individual responsibility. Now, too often, people who say that then appear as if they are trying to be selfish, or they’re trying to ignore the problems that poor people may have, or people that are sick, or people that have unfortunate things happen to them. But I don’t think that has to be the case. I think you can still keep the notion of individual responsibility and still be able to have a humane and decent system, but one that doesn’t rob people of the notion that each person is responsible for their conduct; and if a person misbehaves and is harmful to other people, they have to pay consequences for that.

HEFFNER: Well, what do you do with this concept of the medical model (because it has been called that). What would you do with it now?

GIUILIANI: Well, I think that is an excellent model for a psychologist or a psychiatrist or a doctor or a social worker, in trying to deal with an individual person, in trying to, to the extent that they can be successful in moving people away from criminal behavior, I think that’s terrific. And I think sometimes we become too pessimistic about rehabilitation. Because the rehabilitation rates aren’t 100 percent or even close to 100 percent, we fail to realize that there are some people that are rehabilitated. And even if it’s a small percentage, it’s better that we have that small percentage than that we don’t try at all. But I don’t think that’s a healthy model for the criminal justice system or for government. I think a much healthier model is to hold people responsible, and to elevate the rights of innocent people as the highest objective of government and of the criminal justice system.

HEFFNER: Would you keep the medical model for diagnostic purposes and the model of responsibility for social purposes?

GIULIANI: Yes. I think you have to balance the two things. I mean, I think you can’t take someone who is absolutely, totally irresponsible, truly insane, not understanding what they’re doing at all, and treat that person the same way as you would a person who is a rational human being and commits a rational crime. But I think what we did was we went too far. And we would take people who were not truly insane – sick maybe, antisocial, dangerous – but not truly irresponsible in a sense of not understanding what they were doing, and we were treating them the same way as we did the truly insane. And in some ways, in going that far, I think we frightened a lot of people that we weren’t handling the criminal justice system. And by “we,” I mean the prosecutors, the defense lawyers, the psychiatrists who participate in this, and the judges, that we weren’t handling the criminal justice system responsibly; that we were not taking care of them; that we were freeing people who could present tremendous danger to them. And in the long run, it doesn’t really matter, if you are mugged, whether the person who mugs you is an insane person or a responsible person. The same damage is done to you by either. And that has to be our first goal. Our first goal has to be to protect innocent people in society.

HEFFNER: Yes, but how do you carry that forward? You want to protect innocent people. Yet the question as to whether the person who has mugged me deserves the medical treatment or deserves, first and foremost, the imposition of that sense of responsibility and then punishment; doesn’t that have to do with the way we will protect society? What good does it do to see this person not as a sick person, but in the criminal mode in terms of responsibility? What good does it do me the next time I go out in the street?

GIULIANI: I think it creates a very different kind of effect on criminals in society, whether they be violent criminals or white-collar criminals. When they look at a criminal justice system that is overly permissive, and is willing to accept any excuse that is presented, and is willing to delay any time a lawyer asks for a delay or any time they ask for a delay, the overall social effect of that over time is that in the street people don’t respect the criminal justice system. Those people that would consider mugging you, those people who would consider engaging in white-collar crime, those people that would consider engaging in bribery, those people that would consider engaging in theft and burglary and robbery, say to themselves, “This is something we can do with relative safety,” rather than say to themselves – as I think they did at times in our past – “If I engage in this kind of conduct, there’s a good likelihood I’m going to have to pay a very heavy price for that.” Now, you’re not going to deter everyone. There are still going to be irresponsible people that are still going through and you can’t reach; and there are still going to be people who take that chance. But my belief is – and I think every objective study of this has demonstrated it – that if you create in society the impression and the reality that you must pay consequences for misbehavior, you’re going to bring down the level of criminal activity. And you’re going to do a better job of protecting decent citizens.

HEFFNER: Well, this question of deterrence – because certainly, to me, as a potential muggee in the streets, that’s what means most for me – you believe then in the question in the matter of deterrence, that certain punishment for those who have committed crimes, certain punishment of a certain kind in a certain extent, is an important deterrence. Has the failure up to this time been the medical model, or has it been the ineptitude of our legal system?

GIULIANI: I think it’s been both, and I think it’s been a general political or social philosophy that an awful lot of people that make up the intellectual elite, those who are the educators in law school and elsewhere, follow, and believe in very strongly; and I think they’re dead wrong.

HEFFNER: Let’s go back to that intellectual elite. What is it that they say?

GIULIANI: I think they go too far in excusing misbehavior. And they go too far in criticizing and in undermining proper, balanced, lawful authority. It became popular in this country to see the police officer or the FBI agent or the prosecutor as a fool or a knave or a Cossack, rather than to realize that that is a terribly distorted view; that the vast majority of these people are very decent citizens who are, in fact, preserving the very essence of our civilization, our ability to live together in a way that makes it possible for us to go about all those wonderful things that we achieve. And, sure, there are some that fit into the category of inadequate or overly zealous, but that is not the case in that obedience to authority, lawful, sensible, rational authority, is a civilized and very, very important thing. I think we focused on it in a different way for most of the sixties and for a lot of the seventies. And I think we’re now beginning to look at authority somewhat differently. And in saying that I’m not suggesting that we should become essentially a different kind of society than we are. I think we were a healthier society when we balanced authority and freedom and liberty in a different way than we were doing in the sixties and seventies.

HEFFNER: Well, you know, I’d like to continue this for a moment because I do think it’s so terribly important. Talking about, well, what has been referred to frequently (not that you’ve said it) the weak-headedness, or weak-mindedness, the fuzzy-mindedness of those who cannot distinguish between the criminal and those who are apprehending the criminal. I’ve heard it said, and I’ve wondered about it (and your vast experience in all of these areas counts so large here), not so much attitudinal, again, as it has been a question of procedures and the question of, perhaps, even judges who have been unwilling to use the full authority of the law available to them to put criminals (even those who have been convicted), I mean convicted criminals, away sufficiently. So, do you think it’s this, again, do you think it’s the medical model, let’s be concerned with the level of sickness, as opposed to or in conjunction with the level of guilt? Or are there things administratively that we’ve done to ourselves? And I know you’re going to say, “Both.” But I wonder if you could measure them for us.

GIULIANI: Well, there are things that we’ve done to ourselves procedurally. And I think where we are … we overemphasize process in our society. Let me see if I can give an example. The Abscam cases. In all those cases, and in all of the reviews of those cases, both by the Congress and by the media, and even by scholars, the emphasis was on the misbehavior, or alleged misbehavior, of the FBI agents and the prosecutors who handled that investigation. Did they go too far? Did they go too far in trying to entrap the Congressmen into committing crimes? What restraint should we put on their behavior? How should we straighten out the prosecutors? Now, to me, that’s a legitimate question; and it’s one that I have to concentrate on as a prosecutor. I think it’s important to raise that question. But to balance this all off – because there was not an equal emphasis on what kind of society are we? What kind of Congress do we have when so many Congressmen will so easily sell themselves for $50,000? I mean, we had, in my view, a large number of Congressmen who were clearly-established federal felons. Every court that reviewed that, agreed and upheld those convictions. But we haven’t had the same kind of searching emphasis on what changes should be made in congress, what changes should be made in the way we conduct ourselves politically so that we prevent so many Congressmen from taking money in such a short period of time. And it is our emphasis on process that, I think, creates that.

HEFFNER: Well, of course, you, naturally, open the door for me to say what do you mean overemphasis on due process?

GIULIANI: No, I don’t mean that. Because I think that – if we talk about the crime bill that passed – we have made changes. We’ve made changes that balance the system somewhat more in favor of the government and in favor of what I would call victims and innocent citizens. But even with that, even with all of those changes, we end up having a system that goes further in protecting the rights of people accused of crime and convicted of crime than any other system in the world or in the history of the world. So I think we have to put in context how we’re debating this. Both sides of this debate agree that America should overemphasize the rights of the accused, that America should overemphasize the rights of the convicted; it’s how far do you go in that direction? I consider myself a very firm believer in due process, and a Libertarian in that sense. But I think we became almost stupid in our excessiveness in the way in which we were protecting, overprotecting, the rights of people to the disadvantage of other people.

HEFFNER: Are you sanguine now that we’ve moved somewhat certainly in the Federal Crime Bill of 1984, we have moved; are you thoroughly sanguine about this movement? I suppose one could say to the right. I don’t think one needs to characterize that. But to tightening up?

GIULIANI: Right. I am, on the federal level. And I would describe it as a movement to the center, because I think what we did was we moved very, very far – and I don’t know if left and right is the right description – but we moved too far in the direction of overemphasizing the benefits to be granted to people accused and convicted of crime. And I think we’ve moved now toward the center, even though I think our society, even though all of these changes tilts, and our criminal justice system tilts in favor of protecting the rights of people accused of crimes. I think it should do that. I think, on the federal level, we have achieved a sensible balance. And it’s going to take four or five years for all of these changes to have effect; maybe even more than that. But I think we’re going in the right direction. I am not sanguine about the direction we’re going in in many of our states. Not all, because some of them actually were the leaders. Some of the states were leaders in effecting these reforms. And there, in the state systems, you’re talking about most of the crimes, and most of the serious crimes that affect people on a day-to-day basis.

HEFFNER: Do you think that, with the change in federal crime laws now, do you think that will satisfy the people who have been most vocal in the demand for what you call balance, so that they won’t move this too far over on the other side? Or do you have any concerns about moving too far on the other side?

GIULIANI: I think that there is a chance that we will not carry through on these reforms in the sense of carrying them through to the states. And I think two things could cause that: One is the thing that you mentioned, and that is that having won the battle now on a federal level and in a couple of states, an awful lot of people who had enthusiasm for this might feel like it’s all over with; and therefore, there’s no reason to carry it on any further. And the second is that our crime rates are dropping. And they’ve dropped each of the last three years. And in the last year it dropped very significantly. And I think that could fool us in to believing that we have, in essence, cured the problem of crime. I think the thing that we have to do, though, to give ourselves some perspective on that, is compare the level of crime we have in America today to the level of crime that we had ten years ago. And we find that, even with the drop in the crime rate over the last three or four years, we have considerably more crime a decade later than we had a decade before. And shocking, and very disappointing to me, we have considerably more serious crime than any of our Western allies or any of the societies with which we would want to compare ourselves. We murder our fellow citizens ten times more than they do in Great Britain, and 20 times more than happens in Japan.

HEFFNER: I guess I’ve got to ask you why, in your estimation, do we?

GIULIANI: Oh, my word. There are any number of very, very complex reasons for that. I can name a few, and I’m not even sure these are the most important. I think we have created ourselves as a more violent society than either of the two that I mentioned, in the way in which we glorify the criminal. And by that I don’t just mean the mafia criminal. We’ve done that. But, going back to Billy the Kid and the whole emphasis on guns that we have in our society, which I think is unfortunate. The way in which we’ve undermined authority in the sixties and seventies, I think, has something to do with that very steep increase, particularly in the seventies, in our crime rate. I think there are any number of explanations, some of which liberals would agree with and some of which conservatives would agree with. And I’ve often said I think they’re both right, except you have to put all the reasons together. That the liberal model of what causes crime – poverty – explains some of it, but it hardly explains all of it. And the conservative model – undermining of authority, a permissive lifestyle, a permissive social attitude – I think does also cause crime, but not all of it. And you’ve got to look at all of these reasons, and I think we are not addressing that yet as a society or nationwide.

HEFFNER: You mentioned guns. And I have to ask you whether you, in terms of your experiences, have come to be in favor of small-gun control?

GIULIANI: Yes, I’m in favor of gun control. It was a source of some controversy when I was in the Justice Department, when I would testify before the House of Representatives in particular, about measures to ban armor-piercing bullets for example, and to tighten up the federal gun control laws so that there would be a waiting period for someone to obtain a gun. And it still amazes me that we don’t have that as part of federal law. If a person goes into a store to buy a gun, they have to fill out a form, and on that form they are asked, “Are you, or have you ever been a federal felon,” and a number of other questions: “Have you ever been committed to a mental institution?” And we rely on their word, completely. Because if they fill out that form, though they’ve committed three murders in the past and been convicted of it, if they put “No” down, they get the gun immediately. And it was recommended several years ago by the Attorney General’s Commission on Violent Crime that the United States have a law very similar to Canada’s, which is that you would have to wait 21 days before obtaining the gun. You would go buy the gun, apply for it, and then it would give the gun dealer the opportunity and the time period to check your criminal record to determine whether or not you were a person that was ever judged insane or ever committed a serious crime. And Congress refuses to even consider it. And I think it would be something that would have a very, very beneficial effect on our society.

HEFFNER: You say that Congress refuses to consider it. You were number three man in the Attorney General’s department in the Reagan administration, in the first Reagan administration. What was the administration’s posture on this?

GIULIANI: The administration’s posture on it was divided. There were a number of people in the administration that favored it; a number of people in the administration that opposed it. And, therefore, I would say the administration bears the same responsibility as Congress, because there is such deep division over the whole issue of guns and gun control, there was basically inaction on it, just like there was inaction in Congress.

HEFFNER: Do you anticipate action, favorable action, at any time in the foreseeable future?

GIULIANI: I’m going to keep talking about it. I don’t know that I can tell you that I anticipate favorable action on it. It’s something that I think we should continue to keep in front of the American people as an agenda item, and something that should be done. In Canada, since they’ve had that law in effect, which is only about four or five years now, the rate of suicide has cut in half. And I think, if you’d think about it for a moment, you’d see why. A person in a deep emotional depression will go and buy a gun, get it immediately, and kill themselves as they’re living through that impulse. Whereas, if you have to wait 21 days – and I think in Canada it might be slightly longer than that – by that time a person might have sought help, a person might have been able to reestablish themselves in their own way. And the first effect of it was a sharp decrease in the amount of suicide. I believe it was cut in half.

HEFFNER: Let me turn away for a moment, back to something I was asking you before. And I think I misstated my question. I really wondered whether the victory now, the partial victory, the movement toward the center, as you characterize it, that the Federal Criminal Law Act provides, whether it will stimulate a further movement. You suggested that perhaps it might lead to a slackening off of enthusiasm and the feeling, coupled with a declining crime rate, that we’ve done what we had to do. But let’s assume the crime rate does go down further. Do you anticipate though any untoward, in your estimation, movement further and further and further toward the right, limiting more and more those traditional protections that the criminal or the accused have enjoyed?

GIULIANI: I don’t think so. I mean, that’s something we always have to be vigilant about. And there are certainly, just as there are people that I would regard as excessive on the left in the way they grant benefits to criminals or would like to see our society grant additional benefits to the criminal, there are many people on the right who have an excessive and overzealous view of this. And I think that if they wanted to begin to tamper with some of the basics of our justice system, such as the burden that is placed on the government to prove someone’s guilt beyond a reasonable doubt, the protections that exist in the Fifth Amendment that protect us against accusing ourselves and convicting ourselves of crime, the basics of the Bill of Rights. I think there is such a strong consensus in this country, not only among the lawyers but among most decent citizens, that we have to have a system that makes it difficult to convict someone of a crime, because, although I don’t believe the system is wrong very often, as a matter of percentage. I think it’s right most of the time. You never know, even if you granted the system is correct 99 percent of the times and we’re wrong one percent, you never know when you’re dealing with a particular case whether you are in the 99 percent or in the one percent. So you need those protections there for you and for me and for our families, for our friends. Because I’ve seen, having been on both sides of this as a prosecutor and a defense lawyer, I’ve seen terrible mistakes made on either side.

HEFFNER: Do you think those protections, those defenses, reasonably and rationally applied, still provide for our defense?

GIULIANI: Absolutely. I think our system provides more in the way of protection for people accused and convicted of crime, even after all of these reforms, than any system in the world or in the history of the world.

HEFFNER: Can I go back then – we just have a few minutes left – I want to go back to the question of procedures, courtroom procedures. You lawyers – and I’d like to pin you down, not to percentages obviously – but to the question of how much of what you have deplored about our criminal justice system has been attributable to these procedural failures, as I think we would agree, to these efforts really to stand in the way of justice?

GIULIANI: I think a good deal of it has. I think I’d have to join together two groups, although they probably are part of the same group, lawyers and judges, are probably most responsible for it. And I think if you could isolate one single problem that is the single most important problem faced, particularly in our urban criminal justice system, it’s the problem of delay. The tremendous amount of time that goes by between the time a person is arrested and the person is finally held to answer for that crime. And that has so many devastating effects, including diminishing the deterrent effect of punishment. We could probably impose lighter penalties if we imposed them more surely and more swiftly than when we impose them a year or two years later. And that delay is primarily caused by lawyers who abuse the system by asking for endless delays because they are handling more cases than they should be handling, because it is generally in the interest of a criminal defendant to delay a trial and to put it off for as long as possible. And then, very importantly, that’s a failing of judges in not being harsh enough with lawyers, taking control of their calendars and making it necessary that cases be tried quickly and elevating that to a very, very important concern, because societally, when you add up all of these cases, it’s one of the things that is bankrupting the criminal justice system, making it impossible for it to function.

HEFFNER: Well, you know, we have a minute, perhaps, left. I wonder, how do you explain the attitudes on the part of judges that lead to this situation?

GIULIANI: It is very, very easy for me to state what I just stated as a societal goal overall. It is very difficult, in the individual case, when a lawyer comes up with three good reasons for a delay, and you want to be a nice guy and you want to be reasonable, and you want to appear to be reasonable. It’s much easier then to just grant the delay, let the case slip by, and unfortunately, most judges are very human, they have human failings. And what happens, as an overall matter, is that cases are more often delayed than they’re held to a very tight schedule.

HEFFNER: You’re being very kind, aren’t you?

GIULIANI: Probably I’m being more kind than others would be. But I think that overall it’s a system that works pretty well. So I think, when we’re talking about making changes in it, we shouldn’t be talking about making radical changes in it; we should talk about making adjustments in the system.

HEFFNER: Well, you know, as you say that, I realized there were so many questions that I want to ask you. I want to ask you about capital punishment. I want to ask you about rehabilitation. And of course, what I’m going to do is ask you to come back again soon to The Open Mind and let us continue this discussion.

GIULIANI: I’d love to do it.

HEFFNER: Thank you for joining me today.

GIULIANI: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope that you, too, will join us again next time on The Open Mind. Meanwhile, as an old friend used to say, “Good night, and good luck.”