Criminal Justice

THE OPEN MIND
Host: Richard D. Heffner
Guest: Robert Morgenthau
Air: 8/13/82

I’m Richard Heffner, you host on The Open Mind. I’ve heard it said often enough by all kinds of professionals at all levels of the criminal justice system that the best run prosecutor’s office in the country is here in Manhattan where Robert M. Morgenthau is District Attorney, having also been for many years the highly regarded United States Attorney for the famous Southern District of New York. And since our viewers seem to attend more carefully to crime and to its proper punishment than to any other theme discussed here on The Open Mind, I’ve asked District Attorney Morgenthau to share with me his thoughts on some of the many criminal justice matters that plague and puzzle concerned citizens in every part of our nation.

Mr. Morgenthau, I appreciate your joining me here today, and I wanted to make an observation first and make it into a question. I’m sure you’ll agree that many thoughtful Americans in every part of our country seem to be running scared, frightened for themselves, for their friends, for their families. I wonder whether there’s any turning of a corner in the criminal justice system that you anticipate that will remedy this situation, because it seems so desperately bad for so many of us.

MORGENTHAU: Well, I think the figures indicate that maybe we have turned the corner. Of course, that’s no consolation to somebody who’s afraid, somebody who has a friend or relative who‘s just been mugged or assaulted. But I do think the figures indicate that the worst may be over. It’s going to be a long, slow road back, but I do think we’ve made some significant progress in the last several years.

HEFFNER: In terms of preventing crime? In terms of punishing crime? What area?

MORGENTHAU: Well, I think all of those areas. I mean, I think we are doing a much better job in apprehending violent criminals and convicting them and sending them to prison. And I think as you take the highly active criminals off the street, it’s going to cut down on the level of crime. And I think we’re beginning to see that. So there’s a long road ahead of us, but I think we’re beginning to see some, some reduction in the level of crime.

HEFFNER: It’s interesting that you say that, because here where we’ve discussed the question of crime and punishment so many times, there has seemed to be, over the years and even recently, the continuing emphasis on the failure of the criminal justice systems. But you seem to feel that we are beginning to turn a corner.

MORGENTHAU: I think so. I mean, I think that the fact of what goes on in the criminal justice systems and the public perception are, you know, at wide variance. I think that the public, you know, does not generally understand how many people are convicted, how many people got to prison, I think partly because it’s the exceptional case, the unusual case that, where you have somebody with a long record who has not been convicted then commits an outrageous crime, and then that gets a lot of attention. So that the day-to-day workings of the system, if you can call it that, where it’s successful, really don’t get the kind of attention that it should receive.

HEFFNER: You mean the glass is half full instead of being half empty?

MORGANTHAU: I think that’s a fair way to put it.

HEFFNER: If you were to look back, however many weeks, months, years, to the point at which you felt you couldn’t yet say that, what would have been the factors, what were the factors that you pinpointed where we should change, in terms of prosecution, in terms of police action, in terms of the judiciary? Where in our criminal justice system do you think we perhaps have fallen down more rather than less?

MORGANTHAU: Well, I think probably it was in a matter of money, a matter of resources. I mean, I think for a long time we thought that having the cop on the street and on the beat was enough. Then of course when New York and other cities across the country felt the budget crunch they then cut back on the police because that was a very large segment of the budget and it was an easy one to cut. And then as we saw more crime the whole debate was, do we have enough police or don’t we have enough police, forgetting that the police officer can make an arrest but unless there’s a prosecutor to prosecute that defendant, unless there’s a judge to hear that case, that arrest is not going to result in taking that particular defendant off the street. So I think maybe, you know, five, six years ago in New York City and elsewhere, in large part, I think, because of the help of the Law Enforcement Assistance Administration, more resources were put into the prosecution of criminal cases and more people were identified as being recidivous career criminals, tried, and convicted. I mean, in New York County, Manhattan in 1975 we sent about 1,000 people to state prison. Last year we sent 2,500 people to state prison. This year it’ll be 3,000. We sent another 7,500 people to city correctional facilities. So, you look at one county, last year some 10,000 people went to prison or jail, and that’s a significant number of people.

HEFFNER: Out of how many arrests?

MORGENTHAU: Well, out of about 65,000, 70,000 arrests.

HEFFNER: Are you suggesting then, that 55,000 or 65,000 people who did not go to jail were basically innocent people?

MORGENTHAU: No. There are a lot of those people who were convicted. I mean, all told, there were some 50,000 convictions, but you’ve got to think that there are turnstile jumpers, people who stole candy, put slugs in turnstiles, prostitutes. There are a lot of cases where jail sentences were not in order.

HEFFNER: Is the question of decriminalization an important one in this area, that we should, that we do decriminalize certain areas that in the past loomed very large?

MORGANTHAU: I don’t really see that as a… I mean, I think there’s a social question, and a question of policy. But in terms of relieving the criminal justice system of its burden, I think people talk about decriminalization as though that’s going to cure the problems of the criminal justice system. But it won’t. Take the area of prostitution. Street prostitution has a very negative impact on the quality of life in residential neighborhoods and commercial neighborhoods. So that I think that I, for one, do not believe that prostitution should be decriminalized. But even if it were, it wouldn’t have any particular impact on the criminal justice system, because it doesn’t take enough of the resources to have that kind of an impact.

HEFFNER: Well, let’s take the District Attorney’s Office. And though I say we’re talking about the nation at large, one can do that by taking one particular office. And taking our own, are there instructions to your own staff not to pursue certain prosecutions, not to waste time, not to waste resources, but rather to focus on heavier felony crimes?

MORGANTHAU: Well, I mean, you know, our number one priority is crimes or violence.

HEFFNER: Uh hum.

MORGANTHAU: That’s robberies, rapes, murders, assaults. So that we will make the, you know, the major effort in those kinds of cases, and of course we’ll also make major efforts on people who have long criminal records. So that if somebody with a significant criminal record may be picked up on a nonviolent crime, we will still make a serious effort to prosecute that person because one day it may be a pickpocket, but the next day it may be an assault or a robbery. So that even though the particular case on which a defendant comes in is not that significant, if he has a long criminal record we’re going to make a serious effort. So it’s not a question really of saying we’re not going to pay any attention to this kind of a case. What we’re saying is we’re going to concentrate available resources on the serious cases and the serious defendants.

HEFFNER: Assuming that that makes a very great deal of sense – and I think it would to anyone listening or watching – does it also mean, thou it makes sense, does it also mean that there are very, very large areas of criminal activity that are basically not prosecuted?

MORGANTHAU: Well, no, I don’t think it does mean that. I mean, it means those areas are going to get less attention, but it doesn’t mean that they’re going to be ignored.

HEFFNER: Less attention by a factor of what? That we, 80 percent, 90 percent of people who are not committing crimes of violence are basically not run all the way through the criminal justice system?

MORGANTHAU: No, no. They’ll be run all the way through, but we’re not going to spend as much time trying to locate witnesses, require tests and so forth to be made. In other words, they’re going to be handled in a much more routine way. And a lot of cases will fail and will not be successfully prosecuted if that extra effort isn’t made to save a case so that it can be prosecuted safely.

HEFFNERA: Mr. Morgenthau, do you think that it is possible to have a criminal justice system that is viable enough that we could, given reasonable laws, really follow up on most criminal activities in terms of apprehension, in terms of prosecution, in terms of sending them off the streets to jail?

MORGANTHAU: I think so. I mean, it’s going to cost money. It’s going to cost more money than most states are willing to spend. I mean, you know, the prison system in New York Sate and other states, you know, which are now under federal direction to reduce prison populations are a good example. The public wants to see violent criminals go to prison, but they’re reluctant to have those prisons often in their own communities, and they’re also reluctant to put the money up for it. But New York State has significantly increased its prison capacity, even though the bond issue was defeated, and I think it’s going to do that. So that I think that there is going to be capacity to handle, you know, the number of violent criminals who can be processed through the system convicted, and sentenced to prison.

HEFFNER: What is the total amount of money that’s spent, if you know, in this country in the criminal justice system? How much of our resources do we commit…

MORGANTHAU: I don’t. I don’t know the answer on that.

HEFFNER: Do you think we would have to, whatever the specific answer is, that we’d have to double it, triple it, quadruple it, really to prosecute sufficiently, adequately, successfully?

MORGANTHAU: No, I think what we’ve got to do is spend additional money in the, you know, in reasonable increments and see. You know, I don’t like to say you’ve got to double or triple. In other words, I think that, you know, maybe this year we should be spending ten percent more and see what kind of an impact that has. Because if we’re right in our theory, which is that a small percentage of the criminal population is committing a very high percentage of the crime, as we take those people off the street, the level of crime is going to go down. And I think that’s what we’re seeing now. I think that’s why the crime rate is leveling off in this state and I other states, because I think that what we’ve done is not unique. I think throughout the country you’ve seen so-called career criminal programs, violent felony offender programs, different names, where prosecutors and the police are concentrating the limited resources on the highly active, violent criminals. But I think, in other words, instead of saying I wouldn’t recommend that you double the budget, I would say let’s spend ten percent more and see if that has the impact that we expect. And we have been doing that. I mean, despite the budget crunch, I think that more money has been going into the prosecution of cases. And there has been an expansion of prison facilities. And I think we’re seeing the results, but we’ve got to stay with that with modest increases. And if we’re right, three or four years from now there ought to be a significant reduction in the level of crime.

HEFFNER: You talk about modest increases, increments of perhaps ten percent in term of our financial resources dedicated to the question of, to the matters of criminal justice. What about an increase in length of time that we assign to those who have been apprehended and convicted? Should we have longer criminal…should we have longer prison sentences?

MORGANTHAU: Well, I think that certainty of punishment, and promptness, promptness and certainty are more important than the length of time. I other words, I think somebody, you know, who robs a bank, assaults somebody, ought to know that he’s going to be tried, convicted, and go to prison. And I think that’s more important than the length of the sentence.

HEFFNER: And is the career criminal program or the programs that you referred to, are they focused on that certainty?

MORGANTHAU: Yes, they are. They are. I mean, and we, in, for instance, in our county, the average time from arrest to disposition in our career criminal program is about a hundred days. A little over three months.

HEFFNER: As distinguished from general delay of how long?

MORGANTHAU: Well, we’re down pretty well now with the general…I mean, 75 percent of our cases are disposed of within, felony cases are disposed of within five months.

HEFFNER: Now, you say, “disposed of.” And that obviously has to bring me to the question that is very much on the minds of people in California recently, who in their own referendum expressed their concern about the technique of disposing of cases through plea bargaining. What’s your own feeling about plea bargaining?

MORGANTHAU: Well, let me say, in the first place, there’s much less plea bargaining now than there was 20 years ago. We can take, again, in our country, 20 years ago, two-thirds of the people who were indicted by a grand jury for a felony – two-thirds – were allowed to plead to misdemeanors. Last year, only five percent of the people who were charged with a felony by a grand jury were allowed to plead to a misdemeanor. So there’s been a very significant reduction in the amount of plea bargaining. It’s kind of interesting because 20 years ago there was not a criminal justice crisis. People, there were many more resources available. But the fact is, I think, this is typical across the country, there’s been tremendous reduction in plea bargaining. The other thing to remember is that plea bargaining is generally in the interests of society, because what you’re doing is you’re trading off the certainty of conviction and punishment against the possibility of acquittal and no punishment.

HEFFNER: And why does plea bargaining have such a bad, dirty name?

MORGANTHAU: I think for two reasons. One is that the public doesn’t understand what actually happens. And I think the second place is that there are from time to time examples which appear to be outrageous. But generally, I mean, let me give you an example. I mean, we had a case involving the rape of a nun, which caused, you know, tremendous outrage, rightly so. This was an outrageous, disgusting case. But that victim did not want to testify. Her advisors, her doctor did not want her to testify. It was a serious situation as to whether she could have identified either of the two assailants even if she had testified. A very serious question. So after a very careful talk, we accepted a plea of 10 to 20 years. Well, what we were doing there, we were making sure that that defendant was going to be out of circulation for a minimum of 10 years – probably 12, 14 years will be the actual sentence served – against the very strong probability of acquittal if he had gone to trial. So that kind of a case, you know, causes a great deal of concern. And the public’s going to say, and I understand that, why, you know, “Why is the DA allowing that defendant to plea bargain?”

HEFFNER: Of course, the public doesn’t say it unless the press…

MORGANTHAU: That’s right.

HEFFNER: …has presented that picture for the public. As you were coming into the studio, our friend, Sidney Gruson of The New York Times was going out, because we had just done a program. In talking with him about the responsibilities of the press, I go, as I suppose I should have expected, a much handsomer, rosier picture of the power and the responsibility and the exercise of responsibility of the press. What do you think the role of the press has been in interpreting for the American public, not just here in Manhattan, but around the country, the realities of the criminal justice system, the kind of reality you just discussed?

MORGANTHAU: I don’t think, frankly, the media has done that good a job. I think that they tend to isolate what appears to be an outrageous situation without really going into the facts, because that doesn’t make a story. And then also not reporting the many thousands, really, of long sentences. I know in one 24-hour period we had three defendants receive sentences of 25 years to life. Now, that means they’re not eligible for parole until 25 years have been served. Those are tough sentences. One paper gave it two lines, the other two papers didn’t even cover it, the story.

HEFFNER: Well that, of course, is the other side of the coin. That side of the coin that indicates that when there’s good news – if you want to call that good news – it’s no news. But let’s go back to the question of bad news. Let’s go back to the question of what which could be interpreted as bad news. Let me ask you, in terms of the downside of plea bargaining – there’s a downside to everything – whether the reports have been totally unfair? To the degree that they haven’t been. To the degree that some outrageous activity has taken place within the framework of plea bargaining, where does the responsibility lie? Where has it appropriately been? Prosecutor? Police? Judiciary?

MORGANTHAU: Well, I mean, you can blame the police for a lot of things, but they have nothing to do with the plea bargaining.

HEFFNER: Okay. That leaves us two elements of the criminal justice system.

MORGANTHAU: Well, yeah. Well, it leaves us, you know, of course there’s the defense counsel, the prosecutor, and the judge. But I would say that by and large, in 95 percent of the cases that I’m familiar with, the plea bargaining is in the public interest. Let me give you one interesting figure. A study was made in the District of Columbia on plea bargaining in burglary cases. And they found that defendants who pled guilty received longer sentences than those who went to trial. So I think the perception that defendants are getting lesser sentences, and that they’re getting away with something, just is plain not right.

HEFFNER: When you say “longer sentences,” you mean in an absolute sense, not for the crime that they pled guilty to?

MORGANTHAU: No, I mean…Well, I mean, people who pled guilty to burglaries received longer sentences than those people who were tried and convicted of burglary.

HEFFNER: Now, the question of copping a plea, the question of getting away some way with a criminal activity still brings to mind the question of the judiciary and their, in our city here in New York and in other cities all over the country, I know that there are those who maintain that our judges are too soft, that sentences aren’t long enough. And again, I come back to that question in which you say the certainty of sentencing is more important than the length of sentencing. But on the question of punishment, I have to ask you as a longtime experienced prosecutor, both on a federal level and here in the Manhattan DA’s office: Do you believe in criminal punishment, capital punishment?

MORGANTHAU: No, I don’t.

HEFFNER: Why not?

MORGANTHAU: Well, really for two reasons. One is I just believe in a civilized society. You don’t put in the hands of government the right to take somebody else’s life. I just am philosophically opposed to that. I just don’t think that’s a way to deal with crime. But on a very practical level, I don’t think it works. Because the very person who says, “I believe in capital punishment,” often you put that person on the jury and then it’s his decision, and you’re going to have a lot of hung juries. And then all up and down the line, I mean, up the line you’ve got the judge who’s going to be super careful because now a person’s life is in his hands, you’ve got the governor who is going to be, you know, there are going to be appeals for commutation and so forth. So that, I mean, experience has been that it’s much more difficult to get convictions in capital cases. They are scrutinized very carefully by appellate judges. They almost always end up on the governor’s desk. And it may take ten years before there’s an ultimate decision in a capital case. Whereas now judges in this state and other states can give 25 years to life, 50 years to life. That’s a long time. And I think it’s a very, number one, as far as punishment’s concerned, I think it’s a very adequate punishment. And as far as a deterrent is concerned, I think it’s every bit as much of a deterrent to tell somebody, “You’re going to be in prison for the rest of your normal life.” I think that’s every bit as much of a deterrent as saying, “You’re going to lost your life.”

HEFFNER: but doesn’t the public clamor for capital punishment indicate that we generally, that our society generally doesn’t believe that, and does believe that capital punishment is a deterrent? And mustn’t that reflect what we generally feel about the potential for losing our lives?

MORGANTHAU: I think so. But I mean I’m afraid that the public is almost looking for easy answers. And the death penalty has become an easy answer to the crime problem. And so, you know, we’re grabbing at straws. We’re looking for the easy way out. And there is no easy way out. And I just, I mean forgetting about my own personal views, I think, from a practical standpoint, the death penalty would not help at all. In fact, I think it would be a negative.

HEFFNER: Of course I was going to ask you initially whether you didn’t think, after you talked about the certainty of conviction, the certainty of punishment, whether that didn’t relate to the question of capital punishment too. But then you make the point that capital punishment isn’t certain. It’s much…

MORGANTHAU: Less certain, because you’ve got everybody being extremely careful and extremely cautious. And then you’ve also always go to worry about what the Supreme Court is going to say. In the last analysis the Supreme Court may say, “Well, we’ve reviewed this whole thing, and we don’t think the New York State law is constitutional.”

HEFFNER: Well, we have just a few minutes left, and I’m glad you mention the Supreme Court. Do you feel, as many people on the periphery of the criminal justice system, and very few of the professionals, as some of those people say, that Supreme Court decisions, whether in Miranda or in other instances, have lessened the opportunity to apprehend and then once apprehended, to punish, to convict and punish criminals?

MORGANTHAU: Certainly in certain areas the Supreme Court has made convictions more difficult. But again I think this is the easy answer syndrome. I mean, I think people are looking for easy answers. And they’re saying, “Well, if we could only get the Supreme Court to be tougher, then we take care of crime.” I mean, we’ve got a violent society in the United States, all across the country. And there’s no sort of one thing or two things that you can do. I mean, you got the Supreme Court to change its position on, say, search and seizures. That’s still not going to significantly reduce the level of crime.

HEFFNER: Well, you’ve suggested there are many elements.

MORGANTHAU: That’s right.

HEFFNER: Would you opt for that element? Would you wish as a prosecutor, as a citizen more importantly, as a lawyer, as someone deeply concerned with the question of crime in our country, would you opt for a reversal to a considerable extent of recent Supreme Court decisions over the past 20 years?

MORGANTHAU: Oh, I think the Supreme Court is narrowing the scope of its decisions. I think we’ve seen that in the last few years. I think one of the problems is that the lower courts always take a long time to follow the Supreme Court. And I think for years they were not as liberal, if you want to use that, as the Supreme Court. Now I think they’re not as conservative as the Supreme Court. So it’s sort of like a pendulum with the Supreme Court up here and the lower courts out there. It always takes a long time for the end of the pendulum to catch up with what the top of the pendulum is doing.

HEFFNER: The question I’m really asking you is whether you are hopefully waiting for the pendulum to come that distance?

MORGANTHAU: I think as far as the Supreme Court is concerned, I think the pendulum has already swung considerably back. But I think it’s taken a while for the lower courts to correctly read what the Supreme Court is saying. I mean, I think our, you know, our case involving child pornography was an example of that. I think the New York State Court of Appeals didn’t really correctly read what the state of the law was. Of course they were unanimously reversed by the Supreme Court of the United States, although the Supreme Court of the United States said, “We don’t criticize the New York State Court of Appeals for not understanding what our views were, because they hadn’t been, in fact, they hadn’t been articulated before.”

HEFFNER: And that’s a case and that’s a subject that I’d really like to come back to another time to discuss with you, perhaps when the Court of Appeals has decided again.

Thanks very much for joining me today, Robert Morgenthau, District Attorney of New York, of the County of New York.

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