Guest: McKay, Robert
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THE OPEN MIND
Host: Richard D. Heffner
Guest: Robert McKay
Title: “Is Justice Done in America?”
I’m Richard Heffner, your host on THE OPEN MIND. And in a world too much beset by the need to be fast and furious, to contemplate less and act more, I very much enjoy the luxury of returning to themes discussed before, even to distinguished guests with whom I’ve discussed them. Old things change, and we change with them. So today I want to reexamine the perennial question: Is justice done? More appropriately, is justice done in America? In a brilliant essay written in 1976, our bicentennial year, former NYU Law School Dean Robert McKay quoted the late, great judge Learned Hand to the effect that, “IF we are to keep our democracy, there must be one commandment: thou shalt not ration justice”. Robert McKay, the Director of the Institute for Humanistic Studies, is my guest again today.
Dean McKay, Bob McKay, thank you for joining me here again on the Open Mind. And I wanted to refer back, if you don’t mind, to that address of yours or that essay on “Is Justice Done”? You said, you quoted Learned Hand. You said, “When Learned Hand, as a young federal judge, advised Supreme Court Justice Oliver Wendell Holmes to do justice, Holmes answered abruptly, ‘It is not my business to do justice. It is my business to play the game according to the rules’. Similarly”, you went on, “it is said that when a student at the Harvard Law School asked, ‘but is that just?’ the instructor responded, ‘If you want justice, you should have gone to divinity school’”. And so I guess the question that I would ask you again today is: if you want justice today, do you avoid or do you embrace the American system of justice?
McKay: Well, I certainly hope that we can embrace the American system of justice through the courts and through the other instrumentalities which have to do with resolving disputes that arise among people. The tension that arises all the time in the system is between the question of whether to try to do abstract justice or whether to follow the rules of the game, the Holmes/Cripin response. And it’s a very real tension. The courts have to do both, it seems to me, because we need the value of precedent, what lawyers call stare decisis. We need stability in the law and predictability as to the results of the consequences of human action. But at the same time we need to move it along and try to come to the correct result. So the law is always in search of change, but is always constant in its quest for stability as well.
Heffner: well, in 1976 when you looked at the result of that tension, you came out or up with – I wouldn’t say an indictment; that’s not fair – but you came up with a number of different areas which you preceded with this comment: “To examine the rationing of justice in America is to look upon the darker side of our society”. Now, do you still feel that way?
McKay: If the context there was the criminal justice system, yes, I think that has not worked well at all. In fact, it’s been described as a non-system because there are so many independent actors in the system, all working in their own way to do what they believe is right. But the police are not coordinated with the prosecutors effectively, the prosecutors with the courts, the courts in the sentencing function do a different kind of thing often one from another. And then the prisons, probation, parole, all work in their separate fiefdoms, and so there is not a coordinated system, and we have not figured out how to better it, as a matter of fact.
Heffner: In the six years since the bicentennial…
McKay: Well, in the six years there’s been continuing talk about the issue and perhaps some progress made in understanding it. But in the meanwhile, the discouraging thing is that the rate of crime has increased substantially. In the mid-1970s we were still rather optimistic that these things could be dealt with effectively. In the six years since that time, the prison population has increased perhaps 50 percent, and prisons in New York State and all around the country are dreadfully overcrowded, so that we have an explosive situation in the prisons. Now, that’s really the result of several things. It’s the public being concerned about personal security and safety for themselves, their family, and their property, demanding that something be done about crime. Crime rates continue to rise. The politicians then say, “We must get tougher on crime”. So they increase the sentences, they build more prisons, they put more people in for a longer period of time, and then the prisons become explosive.
Heffner: Yes, but there seem to be an implication there that what we are doing is getting the criminal element off the streets. And yet, as you point out, the rate of crime continues to escalate.
McKay: Well, it’s, to some extent, getting the wrong people off the streets for the wrong time.
Heffner: What do you mean?
McKay: Not that the people who in prison now aren’t typically serious offenders, but many of them have committed only property crimes, and maybe there are alternative ways to deal with them rather than prison. Prison is a hardening experience rather than one that tends to rehabilitate. We are pretty clear on that now. So that in many cases it would be more effective for the long-range safety of the public and the security of their property if the less serious offenders were given some alternative form of punishment: community service, other kinds of sanctions, halfway houses. But the prison itself should be reserved, in my judgment, for the most serious kind of offenders, particularly the violent ones who have committed serious assaults.
Heffner: There are two parts to that, Bob McKay. One is making certain that the serious criminals, those who have committed serious crimes…
Heffner: …are locked away.
Heffner: But the other part of it, treating those who have committed lesser crimes differently, do you think there is much of a chance that we in this country are going to accept that notion?
McKay: Well, some states have. Minnesota, for instance, has. And in Michigan recently their prisons became so overcrowded that they gave early release to some of the offenders. That is, they were within, say, two months or three months of terminating their sentence, and so some of them were released. And in other states where the public has demonstrated unwillingness to build new prisons, an accommodation is going to have to be made. And the only kind of accommodation that is easy – well, there are really two kinds – one is the early release of prisoners, and that’s not very satisfactory although it may be necessary in an emergency; the other is to put less people there or for shorter periods of time. It may be that some of our sentences are too long. After all, a prison is a, even a short time in prison is a very unpleasant and to many a rewarding experience in the sense that it tells you not to do it again. So that three years as opposed to two years and six months probably doesn’t make much difference.
Heffner: Now, let me ask again whether you think that most Americans would accept that idea. Now, I understand what has happened, that under the pressure of a federal court edict, prisoners perhaps have been released because of the overcrowding of jail or for other such practical reasons. But this isn’t something, this isn’t’ an idea whose time has come in terms of public opinion.
McKay: That’s very true. The public is mostly unwilling to accept the notions that I’ve advanced just now. But it seems to me that we have to keep trying to educate them. Take New York, for instance. Governor Carey appointed a commission which we call the Lawman Commission, technically the executive advisory commission on the justice system. The recommendations that have come out from that have been, on prison overcrowding, which there’s a very serious problem as I’ve just suggested in New York and elsewhere, and more recently recommendations on the administration of the criminal justice system to try to make it coordinated so that there is some sense in the system. Now, these things really you have to keep trying to educate the public as to the purpose of prison, the sentencing mechanism, the relationship of prosecutor and police and the courts and the parole and probation, all those things. It’s a hard time to do it, but it seems to me it’s totally necessary if justice is to be done to all, not just to those who are charged with crime and not just to those who are law-abiding, but to make the system work more effectively and at less expense and less detriment to the public.
Heffner: Well, as you know, at the end of the program I’m likely to say or ask, “Are you optimistic or pessimistic”. I don’t want to do that this time. I really want to ask you now what chance you see. I know what you’ve said about the absolute necessity. But sometimes there aren’t answers to the question we ask. Nowhere is it really written that there must be an answer to every question. What do you think is going to happen in this area?
McKay: Well, let me turn to a slightly different phase but that perhaps illustrates dramatically the problems, and that’s the capital punishment issue. It’s well demonstrated now that the death penalty is not important in deterring crime. It’s a sanction, it’s the maximum sanction we can impose. And yet it is advocated as though somehow that would turn back the tide of crime. Now, many of the people who advocate that must know better, because all the intelligent information is that it is perhaps satisfying to the spirit of retribution that the public may have for an offensive, a heinous crime, but it has really nothing to do with reducing the likelihood of other serious assaultive crime, homicides, rapes, and so on in the future.
Heffner: How do we know that?
McKay: Oh, the studies, they’re measured in terms of states that had capital punishment and then eliminated it.
Heffner: How long has it been since we’ve really had capital punishment in this country?
McKay: Well, there have only been six executions in the last 15 years.
Heffner: Well then, how can we judge in terms of this period?
McKay: Based upon earlier experience in this country when there were many executions, and in other countries that went from capital punishment to no death penalty but eh maximum life imprisonment. You see, the United States is one of the few so-called civilized western countries in which capital punishment is attest now. But it’s gaining, which I think supports your point. There is more and more spirit in favor of the death penalty because of this misconception that it has something to do with crime. And it really does not.
Heffner: What you said it has to do with is the spirit of retribution.
McKay: That’s right. And we’re entitled to punish. That’s what prisons and the courts are all about: punishing those who violate the rules of the system that are laid down for the law-abiding. And so there must be punishment. The hard problem is to know what is the proper level of sanction and against whom it should be imposed. Particularly the severe sanction of prison. Now, obviously…
Heffner: Which sanction of prison?
McKay: Prison is a severe sanction. You better believe it!
Heffner: Well, you said that before, and you of course wrote that here. And I do believe it. But I noticed you moved very quickly from the severe punishment of execution to the severe punishment of prison.
McKay: Execution, of course, is the maximum punishment that can be imposed. And it has all the problems of being irreversible and raising passions. Life imprisonment is severe punishment. Brief incarceration is severe punishment. Try spending a day or two in prison sometime and you’ll quickly feel the closed-in quality of that society.
Heffner: Thank you, no. “If it weren’t for the honor, I’d just as soon walk”, as Abe Lincoln once said. But you know, there have been people at this table who have been very much in favor of capital punishment.
McKay: I’m sure of it. The majority of the American public favors it now.
Heffner: When I’ve suggested that perhaps the answer to the question is instead life imprisonment and throw away the key, the answer invariably is, “But we are not capable in terms of our criminal justice system of being certain that there will be life in prison with the key thrown away”. What’s your answer to that? Because I have no answer to it.
McKay: Well, in New York State it’s possible to give consecutive sentences for different counts, different offenses. Justice Burton Roberts did that recently where there were six homicides and he gave six 25-year sentences consecutively. Now, that’s a pretty good indication of life imprisonment. The only way that can be changed is for a governor to give clemency at some future time, which seems rather unlikely in this case. So that that I think is a kind of copout answer. But let me say one other thing about capital punishment. You mentioned earlier how little of it there had been in recent years. But the interesting and to me rather a frightening prospect is 1983. The constitutional challenges have mostly been run out. In some states, well, in the country as a whole there are over 1,100 men mostly, a few women, on death row. My speculation is that there will be a bloodbath of executions in 1983 because the rules that have been worked out now. Almost 40 states have capital punishment. Some of them have as many as 200 on death row, In Florida for instance, 150 in Texas, if I recall the figures correctly. And there are going to be executions next year. Now, the interesting question is: what will be the public reaction? Will they be pleased to see its finally taking hold? Or will they be somewhat horrified when they suddenly see the large numbers of individuals who may be executed? I don’t know.
Heffner: What do you bet?
McKay: Well, I would like to think that they would be revolted by the notion of taking that many lives. But I’m not clear on that.
Heffner: Bob, do you think that if we went one-by-one down the list of those on death row we would find absent in absolute rejection of the idea of capital punishment, that we would find in our hearts reasons for not executing this one or that one or the other one in terms of the possibility of innocence? Is it essentially the revulsion to the idea of capital punishment? Or is it essentially the fear that justice will not have been gone?
McKay: I think the public as a whole will not make those discriminating choices. And I’m not suggesting that many of those who are sentenced to death now are innocent. There may have been procedural flaws in their convictions and all that sort of thing, but that’s not really the issue. I think the question is whether society isn’t barbarized to some extent by the taking of life. For instance, the recent execution by lethal injection, and the first of that particular type. The warden, or prison doctor I guess it was, went to the man a few hours before he was to be executed to see whether he had large enough veins to accept the particular, the fatal needle. He said, “Yes, he has good veins”. And so the execution went forward in that way. Well, there’s something that’s pretty unattractive to say the least about those kind of negotiations about having medical personnel who are engaged in saving life participate now in the taking of life.
Heffner: But that’s an argument against perhaps that kind of execution, maybe for the kind that you and I remember at Sing Sing when the lights used to dim in Ossening.
McKay: The electric chair…
McKay: …the hanging, the firing squad, the gas chamber. None of them I find particularly attractive for what we like to think of as a civilized and thoughtful and caring society.
Heffner: But of course they’re not assigned in terms of the attractiveness of the crime that was committed.
McKay: No. but many of those who have been executed have committed absolutely heinous, horrible crimes. And society’s entitled to retribution. I believe that is demanded. It’s only the question of what form.
Heffner: And as you suggest, society today increasingly demands that ultimate final form.
McKay: Yes, that’s right.
Heffner: Let me get back to the question of is justice done on something removed from the question of capital punishment. You said essentially in the civil justice, criminal justice system. And yet in 1976 you found it in your heart and in your mind to be critical of the civil justice system, and of the administration of justice as well.
Heffner: Do you still feel that we are missing something there that when the question “Is justice done?” is asked, that that is still the darker side of America?
McKay: Yes, I suppose we will never have what anyone would consider a perfect system of justice, because justice is an abstract concept and you don’t know what is just what is not just.
Heffner: Bob, forgive me, forgive me. When you say “absolute”, no one would disagree with you.
McKay: All right.
Heffner: But you said to examine the rationing of justice in America is to look upon the darker side of our society. You don’t want to contrast that with something that is totally bright and light.
McKay: I was thinking primarily of the criminal justice side. But on the civil justice side I certainly had and have substantial complaints. It’s an unequal system. Now, we’ve done quite a lot to try to equalize it. The notion of providing counsel to those who cannot afford it. In a litigation-ridden society such as ours where the tendency is to turn to the courts and to need representation to get through this complex world, whether it’s tax issues for the wealthy or whether it’s social welfare issues for the poor, legal assistance is very often needed. And we know at the same time that it is more available to some than to others, so justice is more equal for some than it is for others. Now, I think great efforts have been made and great strides have been made in working toward equalizing the system. But in the last two or three years I think we’ve taken some steps backward, because the Legal Services Corporation, which was providing legal assistance to many thousands of poor people, is now being cut back and may be terminated altogether. That’s too bad.
Heffner: When you say we’ve taken strides forward, that is an historic or an historical observation. Bu tin our own times, we’re sitting here late in 1982, wouldn’t you put your emphasis upon the steps backward?
McKay: Yes, I’m very concerned about those, I would call them retreats from things that seem to me to be great advances made in the beginning and the early 1970s and now being cut back in the early 1980s. I hope there’ll be a movement once again to surge what i would consider forward, to try to equalize and provide justice assistance to all who need it.
Heffner: To what extent does your profession, the legal profession, to what extent does it contribute to the litigiousness of our society that you complain about?
McKay: Well, that’s hard to say. You know, the old canard, which I don’t quite accept, but they say in a small community where there’s one lawyer he starves; if there are two lawyers, they get along; and if there are three lawyers, they all prosper. The suggestion is that lawyers do stir up litigation. And of course that’s a violation of the Code of Professional Responsibility. Lawyers should be there as helping hands for those who need assistance through the maze of administrative and complex and criminal procedures and structures. But obviously some lawyers are willing to assist in starting litigation or to prolong litigation unnecessarily and to bring sometimes frivolous suits. All of those things are violations of the professional responsibility standards, but they’re hard to pin down precisely. I think in general certificate good lawyers are not guilty of those kinds of offenses.
Heffner: You mean the lawyers who have enough on their plate?
McKay: Well, to some extent that’s true.
Heffner: Chief Justice Berger has talked about the litigiousness of our society. The brethren have complained about the burdens upon them even on the Supreme Court. Do you see any sign that we are moving at all away from these trouble areas?
McKay: One of the things that’s most talked about in the profession now is the coming regime of alternative dispute resolution procedures. And we have moved, I think, quite far in that direction. There’s a lot more emphasis on arbitration, on mediation, on other devices for taking business out of the courts and resolving them in some less time-consuming and less costly way. That’s, I guess, the hottest subject in legal education right now. And it’s being considered in conferences all around the country. There are actual programs going forward in this basis. Indeed, if we had not made advances in that area, I think the courts might well now have been overwhelmed. As it is they’re overburdened. But a lot of business has been taking out of the courts. And more, I believe, still can be.
Heffner: It seems to me that each year as I read the reports of your professional meetings there is great enthusiasm for reform and that enthusiasm is more than considerably dampened by the attitude that goes somewhat along the lines of “Leave things as they are”. Is this a misreading on my part?
McKay: Well, I ultimately have high hopes for and sometimes a little despair for the American Bar Association, the organized bar in general. But it seems to me that the movement at in large has been forward, and the bar has been pretty good about being relatively disinterested in the things that would help the cause of lawyers and relatively helpful in advancing the larger interest. The interest in justice, if you wish to return to that concept. Not perfectly. Lawyers are like anybody else. They see things from their own perspective. But the organized bar, some of the bar associations in New York City and New York State are doing very good things, disinterested things, things that do not have anything to do with helping them or their own clients.
Heffner: Dean McKay, don’t – well I won’t begin the question with “Don’t” – but I would ask you whether you feel that the criminal justice system, the civil justice system, the question of justice in this country: “Is justice done?” – Whether that question may not be too important to leave to the lawyers?
McKay: I fully agree. I’ve said that in print upon occasion.
Heffner: Then what do you do about it?
McKay: You bring in the public and try to educate them as to what the issues are, what the problems are, and get them to help solve it. That’s being done increasingly. We have non-lawyer court watchers who comment upon the way judges perform. I think that’s useful. We have non-lawyers on grievance committees for discipline of lawyers, and on the discipline committees themselves. We’re beginning to have non-lawyers on bar association governing bodies. In all those respects we get the citizen input, and I find that exceedingly valuable.
Heffner: of course, one of the great problems in that area is that so many of our citizens have gone to law school and are lawyers. My own students by the dozens and dozens and dozens do so. The legal ingredient in our lives is o huge that I again would come back to the question of the darker side of our society. You started off that way. Are you still optimistic?
McKay: Well, I’m a great believer in law and in lawyers. Lawyers are helpers in our society. They’re fixers. They are there to…it’s a service profession. Sometimes neither the public nor the lawyers remember that. That we’re not there for any purpose except to help others. We don’t add to the gross national product in any way. We don’t do anything, we don’t make anything, we don’t move anything. We simply write and talk and advise. And, in measure say, in our complex society that’s very important. We live in crowded conditions. We bump into each other all the time. And we need people to help us resolve the inevitable friction that arises from that kind of contact.
Heffner: And yet this question of litigiousness seems to indicate that the profession itself leads to more rubbing than perhaps is necessary.
McKay: Well, it’s hard to know. Of course it’s a litigious society, but recent studies show that we’re not more litigious than England…
Heffner: Is that true?
McKay: …or the continental countries. That’s right. They have a smaller proportion of lawyers but they resolve their disputes in somewhat different ways. But they’re also litigious. People are naturally friction based in a society that is complex and difficult to work your way through. People are bound to have difficulties with each other and with inanimate objects as well.
Heffner: Dean McKay, in 25 seconds that we have left, would you continue, as a good lawyer, as a good scholar, would you continue to embrace the adversary system?
McKay: Yes. We pay a price for the adversary system because it does mean that where representation is of unequal quality, as is often the case, the one with the less effective representation or the lesser resources for investigation and preparation may be disadvantaged. But it is at the same time a very good vehicle for discovering as near as may be the truth, and the truth shall give us justice.
Heffner: And perhaps make us free. Thanks so much for joining me today, Robert McKay. And thanks, too, to you in the audience. I hope you’ll join us again here on THE OPEN MIND. Meanwhile, as another old friend used to say, “Good night and good luck.”