Robert McKay

Justice and the Law, Part II

VTR Date: December 30, 1980

Guest: McKay, Robert


Host: Richard D. Heffner
Guest: Robert McKay
Title: “Justice and the Law, Part II”
VTR: 12/30/80

I’m Richard Heffner, your host on THE OPEN MIND. My guest is Dean Robert McKay. And we’re actually going to continue a previous discussion on justice and the law. First, however, let me repeat what I said to begin that other program. That by profession I’m a teacher, and yet even to me the commanding professions of our times are those of medicine and the law. And if from time to time you’ve watched THE OPEN MIND over the past quarter of a century, you know that the practitioners of both of these noble followings most frequently are my guests on this program. Yet it seems to me that there’s a difference. It seems to me that doctors are somewhat more concerned about their patients, lawyers about their profession’s procedures and prerogatives. More and more, doctors talk about preventative medicine. Comparatively little, if anything at all, is said however about preventative law. And I’ve wondered seriously if it’s because conceptually that’s impossibility, or because American lawyers simply take their relationship to justice less seriously than doctors do their relationship to their patients’ health. And so I’ve invited as today’s guest on THE OPEN MIND a legal scholar and gentleman who has thought long and hard about justice and the law, whether they are one and indivisible or two and sometimes quite separate adversaries themselves. Robert McKay has been the director of the Program on Justice, Society and the Individual of the Aspen Institute for Humanistic Studies. For some years he was Dean of the New York University Law School, and among his many other public services we must list his chairmanship of the New York State Special Commission on Attica.

Thanks for staying with me, Dean McKay. I welcome you again on this second OPEN MIND program. I think in terms of where I’d like to begin this time I ought to point out that do you serve too as the Director of the Institute of Judicial Administration, because I think we ought to go back to the criminal justice system, go back to Attica perhaps. You had the honor and the burden of serving as chairman of the committee that looked into Attica. And I’m sure that the whole question of the criminal justice system must have burdened you greatly. I’d like to begin in a strange place and ask whether after that experience you’re a believer in capital punishment.

MCKAY: No. I’ve never been a believer in capital punishment. So that probably did not affect me in that particular way. But it is true that I had never thought very much about the criminal justice system until I found myself unexpectedly chairman of the commission. I had been a teacher of constitutional law and therefore had some familiarity with the criminal justice due process and protection cases, but I had never really had any experience with the criminal justice system in operation, that is the trials in the lower criminal courts, the sentencing provisions, the incarceration. And it’s a completely different world when you get to that level than when you think about the abstractions, the constitutional principles that are involved at the appellate level. And from that time on I’ve been very much affected and very much more active in the criminal justice system that I ever had been before.

HEFFNER: To what end? What changes – I presume you’re talking about changes – would you bring about?

MCKAY: Well, it’s so easy to say the criminal justice system is a failure, and then to talk about what to do about it is much harder. I guess I’ve focused mostly upon the sentencing and incarceration aspects of it, because that’s what I saw most vividly at the Attica investigation. We found, for instance, that the prisoners think that the system works unfairly. Now, they may be right or wrong, but prisoners in adjacent cells quite often find that they’re in for what they believe to be similar charges but they’re in for widely different periods of time. And when they come up before the parole board they found, in our experience, that the interviews were lasting about three minutes. And they didn’t feel that they were getting a fair investigation into what was for them, after all, the most important decision: How soon they would get out. And the conditions of confinement were, we thought, quite intolerable. If anything, they’ve gotten worse in the last very few years. They got better for a while in New York State, and I think to some extent elsewhere. But now the prisons in New York City, New York State, the United States generally, are much worse than they were before because they are now so overcrowded.

HEFFNER: Why should anyone listening to us, watching us today, be concerned about overcrowded prisons, be concerned about disparities in sentencing, be concerned about the ways in which prisoners live, instead of being concerned about crime on the streets?

MCKAY: I think we should be concerned about both. But Dostoevsky, I guess, said it as well as anyone, that “A civilization can be judged in part by the way it treats those who offend against the laws of that particular civilization”. So when we treat other persons – and they remain persons even though convicted criminals – in a way that is inhumane or indecent, then we are convicting ourselves of a lack of humanity to that extent.

HEFFNER: But Dean McKay, suppose you began by saying, “Dostoevsky was wrong. Just reject that”. What does it mean, that you judge a society or a civilization by the way it treats its prisoners?

MCKAY: The let me move to the purely pragmatic level. The persons who are convicted of crime and who are incarcerated for a period…very few of them are there for life. Very few of them are executed. An infinitesimal number are executed. Most of them thus are going to be back on the streets. And if in the process they have been brutalized by the experiences they have had in prison, and if they have not learned a trade, if they have not become literate, as a large proportion of them are not as they go in, if we have done nothing along those lines, they are likely to come back into our midst and prey upon us again. It’s the recidivism problem.

HEFFNER: But doesn’t that presuppose that if we do do something, if we do provide for better prison conditions, if we do teach them this or that or the other thing, that recidivism will not occur?

MCKAY: I perhaps overstate in suggesting that that’s the way it’s going to happen. I don’t believe that the prisons necessarily rehabilitate. I’m not sure that there’s much deterrence value in prison. But if the conditions are indecent, and if we do not do what we can to restore those individuals to some kind of sense of decency, our communities are going to suffer.

HEFFNER: Dan McKay, again you say, “If we do not do what we can”. And yet when pressed a moment ago you seemed to concede that there really wasn’t, in your estimation or in your experience, much that we can do or do do. Now why beat this horse not quite dead?

MCKAY: I accept the proposition that prisons are for punishment, and they should be rigorous experience. But whether the sentences should be ten years for a relatively minor offense, or two years, it may well be that we should have a lesser sentence, the short, sharp shock of prison confinement – and it’s a very serious one indeed for anyone who is confined – is likely to be as effective a teacher as the ten-year sentence. And in that sense we do not need as many prisons as we have. We do not need individuals to be incarcerated as long as they are. Sentences are too long, in my judgment, in general. Not in particular cases. And they are, there is too much disparity in the amount of time that is imposed upon different prisoners.

HEFFNER: what makes the sentence too long? Too long?

MCKAY: Being out of proportion to the severity to the offense, as judged by the community at the time. Now, I understand that’s an abstraction. But we can work it out. And tests have been taken as to what various individuals think is an appropriate severity of sentence for a particular kind of offense in specified circumstances. And we can also…

HEFFNER: What judges think?

MCKAY: The public as a whole.


MCKAY: And Robert Wolfgang at Pennsylvania has had some very interesting experiments in that respect. And you get a sense of it that way. You can also take in a particular community or a particular state what the average of the median sentences have been for particular kinds of offenses and use that as a kind of a gauge. But what seems to be happening now, and to some extent with the encouragement of public officials, is that the severity of the sentences being inched up on the theory that that is going to prevent crime. Now, that I think is wrong.

HEFFNER: But I note in your own essay on this question on sentencing you indicated the four traditional purposes of incarceration: deterrence, isolation, rehabilitation, punishment. Now, isolation – a person is locked up. Presumably he’s not committing another crime at that point.

MCKAY: And the way you can incapacitate and thus protect against crime is by taking all first offenders who are potential recidivists (whatever that means) and lock them up until they’re 35 or 40. Persons are not as likely to jump over fences and so on, and are less likely to commit violent or other kinds of crime after the age or 40. But we’re not going to do that. We shouldn’t do it. The vast proportion of first offenders do not offend a second time. And we have to take some cognizance of that reality.

HEFFNER: Do you think that the criticism that has been leveled against sentencing, not as too severe, but as too lenient, has been based upon the first offenders, based upon those you say…the vast majority of them do not come back , but rather has been aimed at the criminals whose sentences…


HEFFNER: …have not kept them out of jail but rather kept them coming back and forth?

MCKAY: Well, I guess I have to give answers both ways. Increasingly I think it is true that first offenders are not being incarcerated. That’s partly the system is incapable of handling them, and the hope that by giving them some reasonable probation or parole that it will be possible to keep them employed, keep them with their families and so on, and thus restore them. I happen to think that’s usually successful. But the increasing pressure is to have mandatory sentences regardless of the circumstances of the case, even for first offenders in certain kinds of offenses. And I think it has not been worked out very well in terms of the empirical experience. It’s been worked out by politicians and legislators who seek to persuade the public that they are tough on crime.

HEFFNER: But it’s interesting that you say that. And I think you say that critically. They are seeking to persuade the public. Obviously they’re doing that for their own purposes, to be elected or re-elected. And yet you talk about surveys done of attitudes toward sentencing, and you talk about public attitudes toward sentencing, so that we all come back to “what do the people want?”

MCKAY: Good point. Let me see if I can clarify that. The public in the abstract is going to say there are, the sentences aren’t long enough and not enough of them are going to prison. They’re not staying long enough. But when individual members of the public are asked what they think would be an appropriate time to be served for a specified offense, they tend to be much more modest in their demands upon the system.


MCKAY: And so there’s a kind of a community sense that we’re not being tough enough that is inflamed by particularly dramatic and horrendous offenses. But when people rationally try to think out what they would do if they ere in the position of judge, they tend to be much more conservative (if that’s the word), much more reasonable, I would say.

HEFFNER: You know different people that the ones I know, because most of the people I know want to throw away the book, or throw the book at the prisoner and throw away the key, and that of course, this matter of punishment…

MCKAY: That relates to the particular offense. Where a police officer has been killed, and there’s a story about that individual, or where there ahs been a rape, or any of these other kinds of vicious crimes that occur. And I’m not sure I disagree in some of those instances. But what I’m saying is when they are told about the nature of a particular offense, a property offense, have a particular degree of burglary or robbery or larceny, they’re not as demanding for throwing away the key as when they talk about the particular dramatic episodes which get hyped up.

HEFFNER: What are we going to do about this? Clearly the condition is going from bad to very, very much worse.

MCKAY: Well, the first thing we have to do is to make the public understand somehow that the courts cannot prevent crime. That the tendency is to say that if only the judges would do so and so, of if only the prisons were made more unpleasant, that there would be less crime. That is not the reality. There is no experience to that effect. Sot the first thing we have to know is that the roots of crime lie in the society as a whole, not in what the courts can do or what the prison officials can do. Now, that doesn’t get us very far along the road, and we don’t know what does cause crime, and we don’t know how to prevent it. But at least we must understand that that’s the dilemma, and that there is no easy cure out there by putting more people in prison for long periods of time. Then I think we can perfect the system in a lot of ways. A lot of the delay can be taken out of it. A lot of the demeaning qualities can be taken out of it. The sentences can be evened up by having what we call relatively determinate sentences, which I favor, and the New York State Commission, the governor’s commission, favors. And we can do better about the conditions of confinement. We can be more humane. Now, those are ameliorative, but they do not cure the problem of crime. And we should not expect them to.

HEFFNER: They also don’t protect us immediately.

MCKAY: They also don’t protect us.

HEFFNER: And isn’t that what the public is demanding?

MCKAY: Yes. But does anybody have a solution to that? It’s a phony solution to say that the courts can do it by longer sentences, unless, as I say, you want to incapacitate for 30 years for property offenses. And we are not prepared to do that.

HEFFNER: Why do you say we’re not prepared to do that? Because of the surveys?

MCKAY: We’re not prepared to pay for it. We’re not prepared to pay for it.

HEFFNER: An, right. But that’s a very different point. Now, we have to make that distinction.

MCKAY: They are also not that inhumane. We’re not that irrational.

HEFFNER: Would you make a bet as to whether we will get closer and closer to what you call that point of irrationality as it becomes more and more dangerous to live in our society?

MCKAY: Well, it’s an interesting dilemma. I don‘t know how it’s going to come out, but the demands for more prisons are being repudiated because they are so costly. I guess that’s the reason. And so the conditions become more and more confining and more and more crowded and courts are less and less willing to send individuals to the situations that they find increasingly are cruel and unusual. We were right up against it. If the public demands longer sentences but will not pay for the institutions to confine them, they’re going to be let out on the streets increasingly.

HEFFNER: Okay. Where would you make your gets the break will come? What’s going to give?

MCKAY: I don’t know. My guess is – or maybe it’s my hope – is that we’ll think more carefully about what it is that courts can do and what prisons can do and, recognizing the limitations, impose less severe sentences, and beef up parole and probation. Now, one individual can handle ten or 20 times as many persons on the street with reasonable supervision than a whole host of people in a lockup, so that if we would give real attention to parole, real attention to probation, then we could allow more people to be released under that kind of supervision.

HEFFNER: Now, I’m not going to demand of you that you create, present us with a crystal ball and look in it. But is this your assumption of what will happen, or again your hope?

MCKAY: It’s hard for all of us, I suppose, to disassociate ourselves between hope and belief.

HEFFNER: You know better than must of us the pressures that are being put now upon public officials.

MCKAY: I know that. And I deplore them. And that’s why I say I think it’s very important for the media, for instance, to demand that the public officials explain better what it is they’re doing and not resort to open warfare upon petty property offenders. The things we’re concerned with are really the crimes of assault and violence. And if we can make the system conform to ways of dealing with those problems in a serious and rational and full-fledged way, and less attention to sweeps of the streets for misdemeanors, for pornography, for prostitution, for gambling, things of that character.

HEFFNER: Dean McKay, doesn’t that take us back a decade and more? Aren’t you talking about something hat one could have talked about critically ten years ago, 20 years ago? I don’t think the pressure today has to do with letting pimps and prostitutes out. I think the pressure has to do with the escalation of crime and the fear for one’s personal safety, the safety of one’s loved ones.

MCKAY: We all share that. But nobody has really found the right prescription. All I’m saying is that it is not the right prescription simply to make mandatory sentences of all manner of offenses. That things we need to deal with are the crimes of violence and the repeaters among the criminals. And those can be identified.

HEFFNER: The repeaters can be identified?


HEFFNER: And what would you do up there? Up the ante?

MCKAY: Sure, sure.

HEFFNER: Life imprisonment perhaps?

MCKAY: Maybe at some point. I don’t want to do that right away. The second offender in a property offense doesn’t get life imprisonment.

HEFFNER: All right. At what point do you think the studies have indicated that recidivism sets in to such an extent that society is so much better off if we throw away that key? Is there any indication?

MCKAY: I don’t know that there are any studies that demonstrate that in a conclusive way. But nearly all statutory systems escalate the punishment that can be imposed for second, third, fourth, and fifth offenses.

HEFFNER: Your theory is the, it seems to me though, that our prisons are such hell holes that if a man or a woman is locked up for any considerable period of time he or she is further degraded, is more of a threat when let out on the streets. And I wonder whether we’ve really yet faced up to the question of a more or less permanent place for those who have committed crimes, more than one, more than minor crimes, crimes that become more and more major as they are exposed to these prison conditions, out of self-protection.

MCKAY: Of course that is done. That is possible now. And it does happen. Maybe that should happen more often in those cases, and less often incarceration in the less serious cases. So it’s a balance that we haven’t learned very well how to structure. The trouble is that there isn’t a rational dialogue.

HEFFNER: What do you mean?

MCKAY: Of the kind that…The questions you’re asking are the right questions, and they’re hard to answer. At least I can’t answer them effectively. But the dialogue in public tends to be on the sensational crimes and the need to deal with them in the most severe way. And that looks down into, when the concern is about drugs, the Rockefeller law, which has been demonstrated to be unsuccessful in reducing the use of drugs, that the answer given, and a false answer, was to impose mandatory sentences even for possession of small amounts of marijuana and other more serious drugs. But that has now been proved to be the wrong answer for that particular problem.

HEFFNER: But if we were to recognize society’s stake in long term incarceration for repeating criminals, those who commit serious crimes, wouldn’t we be taking the heat off of this larger question of “punish them all”?

MCKAY: You know, I think we do that.

HEFFNER: Well, you said that, when you said…

MCKAY: You know, it’s a question of how many crimes and how serious. But it’s perfectly possible now, and indeed it does happen, for the repeated criminal of violent crimes to be put away fro very long times or indeed for life.

HEFFNER: But it doesn’t happen that often, does it?

MCKAY: I don’t know the figures on it.

HEFFNER: And what’s your guess? I mean that’s the important thing, not that it’s possible.

MCKAY: You mean how many are in for life terms?

HEFFNER: Well, I didn’t just mean numbers. Is there really a movement, a discernible movement to take people such as those you’re describing off the streets and away from us and protect us from them?

MCKAY: Ah, yes, I think so. I can’t…

HEFFNER: You’re not just talking about the possibility?

MCKAY: No, no. I’m talking about the reality. The figures on it I can’t give you. It’s an interesting question. I don‘t know whether anybody has investigated precisely what the movement over time has been in that direction. It’s worth knowing.

HEFFNER: Let me come back to the first question of this program. What movement is there in the direction of capital punishment, reinstitution of capital punishment where it has not existed for some time now?

MCKAY: It’s strong in this country. A majority of states now, it seems to me…it’s close to 35, give or take a bit, states that have capital punishment. And each time that the Supreme Court has a new decision on certain things that can’t be done, that laws are retailored. But the movement is in the direction of capital punishment within the limits of what the Supreme Court will permit. The public as a whole, I’m sure, would support it.

HEFFNER: You do feel that the public would support it?


HEFFNER: And what would stop it?

MCKAY: For certain offenses.

HEFFNER: What will stop it?

MCKAY: What will stop it?

HEFFNER: When nothing will stop it what we’ll have is a full-blown capital punishment system again.

MCKAY: Well the odd reality still is that almost no one is executed in the United States.

HEFFNER: I know.

MCKAY: And that’s the anomaly of it. And it seems it also is not a successful deterrent. Now, I don’t want to get into the empirical studies there. They arguably go both ways. I think the convincing evidence is that capital punishment does not deter violent crime. But it’s a symbol of a simple answer to a complex question that the public and the politicians seize upon. It is not a simple problem; it is a very difficult problem. And capital punishment is not the answer. And we fool ourselves if we think that that’s going to solve it by having more and more offenses listed as capital.

HEFFNER: But it will make the public feel, correctly or incorrectly, somewhat safer, somewhat as though something is being done to protect it.

MCKAY: That’s too bad, because if they’re lulled into a false sense of security and safety, then they won’t deal with any of the real and substantial problems in the criminal system, which are very serious.

HEFFNER: Well, by gosh, we’re not dealing with them now.

MCKAY: Because the public doesn’t deal with them at the level of rationality. They deal in symbols, in gestures.

HEFFNER: And you would say it was the politicians who were playing upon these feelings, with these feelings?

MCKAY: Well, politicians and the public interact with each other. I support those politicians who can stand above that and try to lead the public instead of being led by the public. There are some.

HEFFNER: Dean McKay, we’re at the end of our time now, and it seems to me that you are a wonderfully optimistic person. Does that reflect accurately what you feel about the law in America, criminal justice system, etcetera?

MCKAY: Well, I’m dismayed with the rise in crime. And no one knows how to account for it. I’m dismayed that the criminal justice system remains so imperfect. But I remain eternally hopeful that we will learn to do better.

HEFFNER: Well, maybe, let’s say, come back a decade from now and we’ll see whether your optimism is warranted. Thanks very much for joining me today on THE OPEN MIND, Dean Robert McKay.

And thanks, too, to you in the audience. I hope too that you’ll join us again on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.