American Justice, Part II

THE OPEN MIND
Host: Richard D. Heffner
Guest: Rudolph Giuliani
Title: American Justice, Part II
AIR: 12/1/84

I’m Richard Heffner, your host on THE OPEN MIND. Crime remains at the top of American concerns, surely. And since, after ten years of painstakingly negotiating and constructing the legislation, Congress recently passed the most extensive revision of federal crime laws in our history – one notably designed to get tough on criminals – we started a dialogue here on crime and punishment, with a particularly brilliant and reasoned public prosecutor. A dialogue that I’d like to pursue further. Now a United States Attorney, Rudolph Giuliani previously held the Reagan administration’s number three law enforcement job as Associate Attorney General of the United States.

Thanks for joining me again, Mr. Giuliani. Now, I , thinking back to the program that we did before, there were so many topics that we slighted somewhat or didn’t even get to, that I want to go back first to the question of the medical model that we spoke about. The medical model of the criminal and of punishment. And extend a little to the question of curing people (if that’s the right metaphorical word), which brings me to the question of rehabilitation. And I’d like to probe just a bit what you think about rehabilitation as a purpose of punishment.

GIULIANI: Well, I think rehabilitation is an important purpose of punishment. I think it’s one that we have recently not paid very much attention to. It’s very popular to say that rehabilitation does not work. And I think it became popular to say rehabilitation does not work because we were unrealistic and overly romantic about rehabilitation back 10, 15, 20 years ago, even 30 years ago, when that became one of the purposes of punishment. But, as we often do, I think we went too far in the direction of throwing rehabilitation out as one of the goals of punishment and one of the goals of the prison system. And the way I would define rehabilitation, I would say that you have to have a prison system, when we have people that we’re going to let back out into society, that operates to at least try and give those people an opportunity to not continue to live a life of crime or to get worse when they return to society, by teaching them trades, teaching them to read and write, teaching them some of the discipline that they have to have to live in society in a lawful way.

HEFFNER: Would you call it rehabilitation though? Doesn’t the word anticipate something that we can’t match?

GIULIANI: Maybe the word, because of its history, and the way in which we painted it and promised it years ago, is the wrong word to use. But I think it is also unfortunate to run away from a concept completely, because even when you look at the recidivist rates at their highest, in the worst state prison systems, a recidivist rate of 60, 70 percent, that still means that with 30 or 40 percent you are having some success in keeping them away and moving them away from a life of crime. I know people that I prosecuted, and people who cooperated as witnesses in cases that I prosecuted 15 years ago, that are rehabilitated. That went to prison for bank robbery, actually did … I know one man who did two terms in prison for bank robbery and just got tired of it. He wasn’t going to go back to prison anymore. He’s a person who has been rehabilitated. Now, I know far more that weren’t. But there has always been a certain percentage of people that have been rehabilitated. And if we can build on that, and we can bring down the number of people that return to committing crime, then we’re going to bring the crime rates down. And I think that is not the most important goal, and it’s not one that I would put at the top of the agenda, but it’s something that we shouldn’t ignore either.

HEFFNER: But, you know, at a time when we’re talking about limited national resources, when everyone from the President of the United States on down is really talking about focusing on using the smaller, the less unlimited resources we once had, upon doable, achievable goals, why think so much about rehabilitation? Why not focus the dollars we are willing to spend on crime and its punishment on building jails?

GIULIANI: Well, I think we have to do both. And I think we have to spend money on prisons. And I think we have to construct more of them. There’s absolutely no doubt about that. Because we have more crime than we can handle. But, by the same token, it’s unrealistic and simplistic to think that you can just create holding pens for people that you’re going to put there for five, six, seven, eight, ten years, and return them to society. Another way to look at it is that most of the people that are committing the crimes that frighten us are people that the system comes in contact with. We touch those people. They’re not unknown to us. We usually put them in our prisons. And what are we doing to them? If we’re making them worse, then we’re making society more dangerous than it is by the way in which we handle our prison system. And that’s why I don’t consider it coddling criminals or a waste of money to spend money on a humane, sensible prison system. Because I think if you don’t, you’re making society more dangerous. You’re endangering innocent people.

HEFFNER: It was interesting, you say, “if we are making them worse, we’re not being very wise.” But can we really make them better? Or, at least, the question should be: Can we make them that much better? I’m not talking about – what is the percentage you used? — 30, 40 percent …

GIULIANI: That’s right.

HEFFNER: … of these people who come out and lead a better life?

GIULIANI: That’s right.

HEFFNER: Wouldn’t they anyway? Or didn’t they because of a rehabilitation program?

GIULIANI: It may be; it may not be. I mean, I don’t think we know enough about what works and what doesn’t work. And what I certainly don’t advocate is massive rehabilitation program for criminals, because I don’t think it can work. And I think to delude yourself into thinking that you can essentially change human nature is probably the mistake we’ve made in the past. But, having said that, it still is a terrible mistake to have prisons that make people more violent; to have situations in which they spend five, six, seven years in prison, and don’t learn how to read and write, and don’t learn a trade. To those people, you have just about said, “We’re going to send you back into society, and you have to commit crime. You’ve got no choice.” So what are we doing? What we’re doing is we’re returning these people to live with innocent people, to live with decent people, who are going to victimize them. We can do sensible, common-sense kinds of things in prison. For example, you can teach people trades that can be used in society. Now, there’s a social cost in that. The social cost is that labor unions oppose very, very strongly – a lot of them do, not all – oppose prison industries, because they say we don’t want competition from people who are sitting in prison. Well, you have to make a choice there. And one of the choices you have to make is, that you have to invest some resources in attempting, at least, with a certain number of people, to give them an opportunity to live a different kind of life when they get out of prison.

HEFFNER: Do you think that it’s possible to identify those who, as they enter prison, can be rehabilitated, or those who can make good use – good use from our point of view, from the point of view of society – of rehabilitation programs?

GIULIANI: Absolutely. You can do that. You can’t do that 100 percent. You’re not going to do that to perfection. You’re going to make mistakes on either side of it, and when you do it’s a shame, but you are. But just because you can’t do it perfectly, that doesn’t mean you shouldn’t do it at all. The federal prison system, that I was very familiar with and had responsibility for for two and a half years, just about, has six levels of federal prisons. And within those levels a lot of sublevels. We don’t treat everyone the same. You make distinctions between people that come into prison. Some are very dangerous, some are dangerous, some are not so dangerous. And some are there because they’re white-collar criminals and they’re not really dangerous, but they need to be deterred, and you need to create a general deterrent. All those people have to be treated somewhat differently. And when you have a system that treats them differently, you also have a system that, while they’re confined, can reward them or punish them. In other words, prison can get worse, or prison can get better. Under most of our state systems – not all, but most – we have essentially penitentiary-like prison systems. You go into one kind of prison, the James Cagney style penitentiary that we remember from the movies, and it can’t get much worse, and it can’t get much better. And I think that’s a terrible mistake. I’m not saying that a more diversified system that offers more opportunity is going to rehabilitate everyone who goes to prison. It’s not. Or even will it rehabilitate some large percentage of them. But I think it will bring down the number of people who absolutely have to return to a life of crime when they go back out onto the street.

HEFFNER: Let’s look at deterrence. We talked about that the last time we met, just tangentially. And I’d like to go back to the question of capital punishment. Obviously, it is the ultimate deterrent for the person who is punished. Do you really feel, though, that it does deter others?

GIULIANI: Capital punishment, I believe, is a deterrent. But I also believe that capital punishment has been very, very unfortunately used by politicians and, sometimes, even criminologists, as an answer to the crime problem. And because there’s such emotion attached to it on both sides – people in favor of it, people against it – it can become your entire crime program. You can run for mayor, governor, senator, or whatever, and your answer to crime is capital punishment. And I happen to believe that capital punishment is important, and does have a role in the system. But I don’t like to talk about it a great deal because I think it sends people in the wrong direction. There’s no doubt that capital punishment can deter certain kinds of crimes. It can have an effect on the level of murder that we have in our society, which is alarmingly high in comparison to other nations. And I think it can have an impact on, for example, someone who commits robberies as the way they make their living. If capital punishment were part of the law of a particular state, I believe it would be less likely that individuals would go into a robbery situation with a loaded gun or put themselves in the posture of possibly killing someone. And I think in that way you can bring down the rate of murder. But I don’t think that it is an answer, any kind of a general answer, to the problem of crime. And, no matter how we construct capital punishment in our society, it would be very, very limited. It’s going to be limited to certain very egregious cases, and it’s going to be limited to only those cases where we’re absolutely certain. So, the number of times that we would impose capital punishment would be so small that it couldn’t possibly be some kind of general, across-the-board deterrent.

HEFFNER: Why don’t you embrace instead the notion that the ultimate punishment is removal, total removal for all times, from society? The life equivalent of death. Imprisonment. Throw the key away.

GIULIANI: Well, because I don’t know that we can do that.

HEFFNER: Why can’t we? If we can take someone’s life, why can’t we imprison them for life?

GIULIANI: As a practical matter, I don’t know that we can do that on a broad scale.

HEFFNER: Why not?

GIULIANI: A number of correctional officials tell me that the worst kind of prison to administer is a prison filled with people without hope, without any possibility of returning to society. Because there is absolutely no deterrent to their misbehavior. In fact, you really get into a circle here. The only deterrent to their misbehavior becomes capital punishment. If you’re going to spend the rest of your life in prison, then, I guess, you can slightly alter the conditions of confinement. But we have a federal prison, for example, in Marion, Illinois, where we have 500 or 600 of the worst criminals in America, including those from the states that the states can’t handle. These are essentially people who are committed to prison for life. When I was Associate Attorney General, we had one individual that, during the short time that I was in office, two years and a couple of months, committed murder twice while confined. And when asked why he did that, he said, “Why not? Why shouldn’t I? It gets me a trial if I do this.” So he gets out of the boredom of his day-to-day existence. And we could not impose capital punishment on him because it was a federal facility, and the House of Representatives has failed to pass a capital punishment, a Constitutional capital punishment bill for the federal government. So this person is just a living source of danger, not only to other inmates, but also to the prison officials who have to deal with him. And this is not one isolated person. There are a number of people in Marion, Illinois, where there are three times more correctional officers than there are people, and it’s a tremendously tense situation.

HEFFNER: Of course, if that is the case, then what you’re saying, we simply have no alternative to capital punishment.

GIULIANI: I think in some situations – although in an ideal society I would be against capital punishment, but in an ideal society we probably wouldn’t need government – I think in some situations you have to come to the unfortunate choice that the only thing available is capital punishment. And I don’t think you could have a system where you used life in prison without possibility of release, if you didn’t also have as a fall-back deterrent, capital punishment. And that’s why I think it’s that false hope that’s offered by politicians who don’t want to bite the bullet and say, “Gee, in some situations, capital punishment is necessary.”

HEFFNER: Let me ask you whether you think we’re likely to run into abuses, whatever that means, of capital punishment?

GIULIANI: I think we could run into abuses of it. And I think there are people that are too zealously committed to capital punishment, either as a deterrent, and they over-promise it as a deterrent, or even people who frighten me because they’d want to use it more generally than I think is healthy for our society. And I think we’re going to have to be very careful now that we’re moving again in the direction of utilizing capital punishment, at least in most of the states, that it only be reserved for the situations in which there is absolutely no other alternative. And I don’t see any reason why you couldn’t have both. I don’t think they’re mutually exclusive. I don’t see any reason why you couldn’t have both capital punishment in your system as well as life without possibility of release.

HEFFNER: How would you guard against the social misuse of capital punishment? The misuse of capital punishment to punish society’s momentary enemies? Those who stand against what we in society stand for, for instance?

GIULIANI: I think a lot of the Supreme decisions on capital punishment have been very, very helpful in imposing some very, very strict conditions on when it can be used and how it can be used, and the inquiries that have to take place even after someone is found guilty of murder, as to mitigating factors and aggravating factors. But I do think one concept has not been given enough emphasis, and that’s the concept of certainty. And it’s the one that troubles me the most, because I know that no matter how much we improve, our system is going to always be imperfect. Human beings are imperfect, so they can’t construct a perfect system. And, for me, the major question that has to be faced – after you’ve satisfied all the other Constitutional criteria for imposing punishment – is, I would want to see, in a case in which execution was going to be used, more certainty than I would in a case in which we find someone guilty and give them a term of years.

HEFFNER: But you’ve already conceded that, in this veil of tears, certainty, I would say, was impossible. Perhaps you’re saying it’s not impossible, just unlikely.

GIULIANI: That’s right. And that in talking about degrees. I think as a, for example, a governor or a president that reviews the question of whether an execution should take place. I would think that should be the primary focus that they should impose on that. Stepping back from the trial, stepping back from the record this person has. Is there really no doubt that this person has taken the life of another individual or whatever, the life of many individuals?

HEFFNER: But you’re satisfied that it is possible to attain the kind of certainty that you would need as a criterion for capital punishment?

GIULIANI: Oh, sure. I mean, you look at – and I guess the most obvious one is Lee Harvey Oswald’s murder on national television. I mean, that’s about as obvious as you can be. Situations in which there are numerous witnesses, where the person gives a voluntary confession. Where the person has murdered once before, such as this situation of the person in prison who I think has murdered now three or four times. Those are situations in which you can achieve the kind of certainty that I would be comfortable with or satisfied with.

HEFFNER: Are you satisfied – talking about using that word – that the criminal justice system is now moving in the proper direction?

GIULIANI: Yes. I think the criminal justice system is moving in the direction of balancing the rights of society and the rights of innocent people against the rights of people who commit crimes, and trying to consider both. And trying to achieve both goals of the system, which is both to protect society and to protect the accused. I think we are moving in that direction. I’m not sure we’re there yet, but I think we’re moving in that direction. And I think the right questions are being asked.

HEFFNER: There’s a … Well, we talked last time about some of the down sides of the criminal justice system, and the question of delay in justice: justice delayed is justice denied. We talked about the role of your profession, the role of lawyers; we talked about the role of judges. And I really wanted to go back to that. It has been such a political point that increasingly we find that judges permit delays. And you talked about this the last time we met. I want to go back to why, if what we are talking about is as clear to you as it is, why is it not as clear, effectively clear, to the judges who permit these delays?

GIULIANI: When you sit inside a profession, whether you’re a lawyer or a judge or a doctor or whatever, newspaper person, journalist, you become terribly defensive about any suggestions that more accountability should be required of you. I think many people in each of these professions and others that we haven’t mentioned, feel that maybe too much of them is being asked of them already. And it’s very difficult for them to say there are standards that we should impose on ourselves to make ourselves more accountable. I really believe that the single most devastating thing that goes on in the criminal justice system are the delays that we permit. And I do not think that we need more judges, or that we need more police, necessarily, or that we even have to spend more money on the system. In fact, I’m not sure that spending more money on the system right now would achieve very much if we just had the same system that isn’t operating correctly. We’d just be spending more money on a system that continued to collapse. I think we have to take a look at modernizing our court system. Computerizing it. Putting cases on schedules the judges are required to adhere to. And having judges have individual calendars such as they have in most of the federal courts now, where a judge has a case assigned to him that becomes his case, and he’s accountable for disposing of that case within a fixed period of time. Most judges would get very upset at that, because they would say this is unrealistic, you’re asking us to do too much; you already ask us to do too much. That was the reaction of many federal judges when the individual calendar system was imposed on the federal court 12, 13, years ago. They now all live under it. It’s the reason why in the federal courts we can prosecute someone, try them, from beginning to end, in 30, 60, 90 days. Whereas, in the state system, sometimes it will take as much as two years to do what we can do in 60 or 90 days.

HEFFNER: What likelihood do you see that you’re going to achieve this, that we’re going to achieve this as a nation, on the state level, as we have on the federal level?

GIULIANI: I think in any reform that takes place, any change that takes place, the way you start it is by talking about it, debating it, laying it out to the public. And I think there are people that are doing that now. I don’t see it as something that is going to happen overnight. But the crime bill that we’ve discussed took 11, 12, 13 years of education to get it to the point that Congress was willing to pass it. Maybe we’re talking
about that kind of long process here. I hope it isn’t quite that long.

HEFFNER: Well, you know, it’s so interesting, I must say, in the 28 years that I’ve sat at this table on The Open Mind, and had the pleasure of talking to so many attorneys and so many people in the criminal justice system, no one has ever said before – and I’m not talking about more police, I’m not talking about more money, I’m not talking about more judges; I’m talking about an efficient use of the resources we have. Now, why is it that Rudolph Giuliani sits here and says this and I’ve never heard it before?

GIULIANI: Well, I don’t know that people haven’t said it before. It really is almost an obvious fact if you observe the system, and you observe the amount of money that we spend on it, which is considerable, the numbers of people that are involved in it, and the fact that it just is not moving along the way it should. The justice system, if it’s going to work at all, has to adjudicate someone’s innocence or guilt quickly. That is very, very important. And I feel as strongly about that in my old role as a defense lawyer as I do in my role as a prosecutor. You have to get a quick answer to the question, “Is this person innocent or guilty?” Now, quick doesn’t mean immediate. It doesn’t mean within days. But it should mean, at least, within several months. And, therefore, those people that are being incorrectly charged (and there are always some of those) are taken out of the system and the burden is lifted from them. And those people that are guilty would then be held to punishment; and punishment within a shorter period of time. And I think, if you did that, you wouldn’t have to impose penalties as large as we impose now. One of the reasons why we sometimes have to impose a very large penalty is we take so long to deliver the message, that you have to make it a more dramatic message when you deliver it. Now, I’m not just talking about the individual. I’m talking about general deterrents for the rest of society.

HEFFNER: Is that why you were saying that even as a defense attorney, not just as a prosecutor, you felt that delay was bad for your clients?

GIULIANI: Yes, I think we have to divide up two sets of clients. Delay is very bad for an innocent client, because you want to get it over with, and you want to prove your innocence. You want this problem gone. From the point of view of a client that’s guilty, sometimes delay isn’t so bad because you’re just delaying the inevitable and hopefully witnesses will forget, they’ll become discouraged, and they won’t testify. But in no event does delay help society as a whole. It harms us greatly.

HEFFNER: You know, I’m a professor at Rutgers, and frequently we talk about the criminal justice system and the way it’s portrayed in our mass media. I find it so interesting that my students are so cynical about the system of justice in this country. And there is that notion that, of course, a rich man will find justice – meaning he will find himself adjudicated, judged innocent – and a poor man not. Do you think there’s anything to this notion of a different system for the poor and the rich?

GIULIANI: Yes, I think there is. And I think I’d divide it into two levels. It’s certainly true that there’s a difference in the kind of medical care you can obtain if you are tremendously wealthy as opposed to moderately wealthy as opposed to middle class as opposed to poor. I mean, and there are differences in the food that you eat and the restaurants you can go to and your style of life is very different. And therefore, it shouldn’t be that surprising that you can obtain a better lawyer, you can put more resources into a defense of yourself if you are very wealthy as opposed to middle class or poor. But, when I was talking about medical care and those sorts of things, you’re not talking about a core function of government. And justice is a core function of government. And I think we have a much bigger burden that justice be doled out to people on something like an equal basis. And actually, it’s the middle class that probably is in the worst condition in terms of equal treatment before the courts. The very rich can afford very, very good lawyers, and whatever else goes along with that, to prepare a defense. The poor, although I wouldn’t say they are as well represented, are fairly well represented by a lot of young lawyers who are in legal aid societies and are public defenders, and are appointed by courts to represent people. I was appointed when I was in private practice. I was in a Wall Street law firm, and I ran a program where we were appointed to represent indigent people. These people got the same benefits that our very wealthy clients were getting from our firm. It’s the people in the middle class that are really harmed by this. They’re not poor enough to obtain either pro bono lawyers or legal aid lawyers; yet they’re not rich enough to afford the very fancy lawyers that demand a great deal of money. And I think that’s the area in which we have to start making some changes. And I think the best answer to that is in the legal profession itself.

HEFFNER: What do you mean?

GIULIANI: Well, I think we should be offering our services not just to the very poorest. I think we should be offering our services to people in the middle class. I think that pro bono services, lawyers’ services, should be available. Or maybe services at different scales of rates for people that are accused of crimes who are in the middle class.

HEFFNER: Do you think lawyers charge too much in this country?

GIULIANI: I very reluctantly have to say yes, I think lawyers charge too much in this country. And I think that I’ve heard a lot of debate on this issue, but I think we as a group are pricing ourselves way beyond the market. And I think we’re harming ourselves, both as a business, I think as a business matter we’re harming ourselves; and I think we’re losing our status as profession, and becoming a trade in the way we approach billing clients and seeking new business, and looking at the law as a business. I have a very good friend who’s leaving government service to go back to the private practice of law after 15 years. And what he said to me the other day was, “When I left, it was still a profession. Now what I’m going back to is completely a business, and a trade.” And he’s really quite disillusioned about it.

HEFFNER: And the remedy?

GIULIANI: I think the remedy is that we have to stop the escalating rates. The rates really are protecting a lifestyle. They’re not absolutely necessary. I mean, they’re not …

HEFFNER: Not for justice?

GIULIANI: Absolutely not. They are protecting a lifestyle so that lawyers can live in the kind of lifestyle that they think they’re entitled to. And I’m not sure that they’re right about that. And I think they are not keeping their eye on the fact that, first and foremost, the law should be a public matter, and being a lawyer should be a public service. Whether you’re in government service or you’re in private practice, you’re still serving justice, and you’re serving the court.

HEFFNER: Since you are all officers of the court, do you think the courts will take a stand in this area?

GIULIANI: Again, we get back to the notion of imposing some accountability on yourself. We were talking about judges at one point, and now we’re talking about lawyers. And I don’t know that we have a very noble history, either as judges or lawyers, of imposing standards on ourselves. I hope we do. I think lawyers, to some extent, maybe do that a little bit better than some other professions. But we haven’t had the kind of dramatic movement in that direction that I would like to see.

HEFFNER: Mr. Giuliani, we have a habit of getting, at the end of our programs, to a point that I certainly would like to pursue, and I think the audience would, too. You’ve got to join me again sometime soon.

GIULIANI: I’d love to do it. Thank you.

HEFFNER: Thank you very much for joining me today.

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