Let the Punishment Fit the Crime … And Then Some?

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge H. Lee Sarokin
Title: “Let The Punishment Fit The Crime…and Then Some?”
VTR: 7/29/89

I’m Richard Heffner, your host on THE OPEN MIND. And my choice of guest and topic today reflects once again my historian’s respect for the law…and, I guess, my own lingering regret that as a young man I didn’t have enough good sense – or ability – to study and practice it. My son has more than made up for that gaffe, however, while I find solace, too, in talking on the air here with some of the most interesting and provocative minds in our legal system…today with the Honorable H. Lee Sarokin, United States Federal District Judge.

Now, the point is made (more important, it’s being made with greater and greater frequency and concern) that we Americans are a wildly litigious people. Indeed, the question comes up ever more and more urgently whether in terms of just plain fairness – as well as their potential for eroding America’s productive and other capacities – some putative legal remedies for life’s hard knocks aren’t just pushing the envelope too far and too hard.

One such presumed remedy is the concept of repeated, punitive damages, those above and beyond compensation for injury sustained, whose threat presumably serves the public interest, as our guest has said, by providing “a strong inducement to the business community to act in a reasonable and responsible manner”. But in a recent decision Judge Sarokin has also reminded us that at least in mass liability cases, where thousands of litigants demand repeated punishment as well as compensation for actual injuries: “Fundamental fairness means that a jury can’t use punitive damages ‘To execute a company’”. And I want to ask Judge Sarokin to what degree this may represent a significant philosophical and judicial about-face for him, and, perhaps, for the courts generally. Judge?

Sarokin: Well, nobody can believe that I am the author of that opinion, I must say. There was an affirmative article in the Wall Street Journal supporting it, and I took a lot of razzing from my colleagues that the Wall Street Journal would approve anything that I had done because I have this reputation as primarily, and I think it’s a deserved one, of being interested in individual rights. So it is certainly a departure for me, but I hope it merely proves that I follow the law and do what I think is appropriate in every case.

Heffner: But, but…you say “follow the law”. Here, there was a larger interpretation of what we should and shouldn’t do. Isn’t it fair to say that?

Sarokin: Well, punitive damages are traditionally something that has been recognized as a way of punishing, usually a company, for conduct that is outrageous and offends the community standards, and my opinion in no way suggested that that should be abolished. There are no standards, which is one of the problems, but I do think basically that it’s not fair to punish anyone over and over for the same wrongful conduct. We don’t do that in the criminal law, and I see no reason to do it in the civil law.

Heffner: You say, “it’s not fair”. My understanding is that the concept of fairness has very little to do with the law. Is that unfair on my part?

Sarokin: Yes. I think that fairness has to be an essential part of the law, and due process, of course, has a fairness element to it, and in this case, I think the repetitive punishment of a company, or companies, for the same conduct…violates due process and, therefore, is unfair.

Heffner: But this is what we have been doing. This is the direction we’ve taken. Isn’t it?

Sarokin: Well, it’s only because we have adopted the general concept of punitive damages, and applied it to mass tort cases, but mass tort cases are a whole new phenomenon in the law, and therefore, I think it’s important for us to take a fresh look at it. I’m a firm believer, despite what may be said about me, in precedent, but I think that new circumstances require some re-evaluation of what we’ve been doing for years.

Heffner: When new views prove to be true views, we will adopt them…

Sarokin: Exactly.

Heffner: …said Mr. Lincoln.

Sarokin: Yes.

Heffner: Now, let’s go back to the comment you made before…a sign of amusement that the Wall Street Journal should have picked up…I noted that, in particular…picked up your decision, your opinion, and just ran with it. Why was that so surprising?

Sarokin: Well, because…you mean because of…that I was the author?

Heffner: What you have ruled previously, or opined previously.

Sarokin: Well, basically I think that I am viewed as someone who focuses primarily on civil rights, individual rights, and I think that that is my obligation as a Federal Judge to do whatever is necessary to defend and encourage and support individual rights. So that, for some reason, is viewed as being inconsistent with the interests of the business community, which I do not accept.

Heffner: When…you say “for some reason”, but you’re not puzzled by that, are you?

Sarokin: No, but I think the labels are really very unfair. For those of us who are really trying to do the right thing, follow the law, follow the Constitution. I think it’s unfair that we are tagged with a label such as being “liberal”, or an “activist”. I always say that an “activist”…when you’re called an activist it means that somebody does not agree with our decision. If they agree, you’re a supporter of the constitution.

Heffner: What about that word, activist. How…what word would you prefer…to characterize your own position on the bench?

Sarokin: I guess I am an activist. (Laughter) To be frank about it, yes, I would suppose so, but activist only in the sense that when issues are presented to me, and I’ve been very fortunate as a judge, in being faced with a number of unique issues. I like to face them. I think that that’s what I’ve been appointed to do, and rather than duck them, I like to rule upon them. That’s the enjoyment of the position.

Heffner: In the debate or argument over whether a judge, a Federal judge particularly, simply takes the Constitution and a yardstick, says the yardstick and the Constitution are over here and I’m going to take…we’re going to take this case, this potential decision and lay it against them. Is that a meaningful, accurate…

Sarokin: I think it’s…

Heffner: …approach?

Sarokin: …if it’s a new area, for instance, drug testing, which is now of great concern to judges and the public in general. There’s obviously nothing in the Constitution that ever dealt directly with the question of drug testing. So everybody who’s dealing with the constitutional aspects has to deal with that modern subject and try to apply the applicable law. And it is not an easy thing to do, but it’s impossible to lay the issue of drug testing alongside the Constitution and come up with an answer.

Heffner: Well, I was…I was taken with some comments that you had made on that issue, and I was taken with a…here in this piece that you wrote in the West Virginia Law Review, “Beware The Solutions”…nice title. You write, “Although there is some dispute as to the existence of the so-called litigation explosion, it cannot be denied that more and more people are turning to the courts”. And then you say, “I suggest that the real reason is a general loss of faith in the other branches of government to protect individual rights, coupled with an abiding confidence in the courts to protect those rights”. I mean, would you say it again? You wrote it.

Sarokin: Yes, I…

Heffner: Do you feel strongly that way?

Sarokin: Everybody is concerned about the litigation explosion and I think it’s a good thing. It indicates that more and more people, as I said in that speech, which was reduced to an article, more and more people are turning to the courts because they view that as the last place where they can have their individual rights vindicated. I think that the increase in the amount of cases is a good thing, not only because it keeps us busy (laughter), and the challenge, but it’s an indication that the people have great confidence in the judiciary. And I think in particular, the Federal judiciary.

Heffner: When you say, “it’s a good thing”, does that mean that the Federal judiciary doesn’t suffer as State judiciaries do, with “glut”, so that they can hardly move?

Sarokin: Well, we have a very large, complex caseload at the present time. But I think that the State courts face many, many more, for instance, criminal cases than we do. We are fortunate in most instances, to receive the more complex, challenging cases than the routine things the State courts have to face every day.

Heffner: Well you know, you wrote here…you don’t mind my quoting this…you write, “Many of society’s ills can be reduced or eliminated by a reduction in our individual rights”. Now that’s…that’s a throwaway, because you’re saying you don’t believe in doing that.

Sarokin: Absolutely not.

Heffner: Okay.

Sarokin: For instance, as an example I give, we’ve abolished the third degree. I’m sure that if you could go around beating up people, you probably would get a lot of people to confess to crimes, maybe crimes that they committed. But I don’t think it’s worth it to have people give up their Fifth Amendment rights merely for the purpose of convicting more people of crimes, or even having more information as to those persons who committed crimes.

Heffner: Well, the operative word may be “Merely for the sake of, etc.”, and that brings me to what you wrote next, “the reason we do not do this (violate our Constitution) is because the price is not worth it. As a free society, we have decided that it is more important to be protected in our property and persons than to find criminals”. Now, if this were the summer of 1958, I would understand that better, but it was the summer of 1988 that this speech was reprinted as an article, and I find it hard to believe that you say and believe that the American people feel this way. I know you do.

Sarokin: Oh, the American people do not feel this way.

Heffner: Okay.

Sarokin: I am of the cynical view that if the Bill of Rights was put up for vote now that at least many of the provisions would be voted down. People do not understand why, for instance, someone who confesses to a crime and specifies the circumstances and where the gun has been hidden, that for some reason that confession should be…should not be used because the person was not warned of their rights, or there were some other coercive features to obtaining the confession. People do not understand that. The public is not in favor of that, I don’t think, without question. That’s why they need Federal judges, because we cannot have our decisions dependent upon whether they are popular or not.

Heffner: You know…you know I’ve been debating with a variety of people this question of cameras in the courts, and it seems to me that one of the…one of the downsides of cameras in the courts is the opportunity it provides for campaigning on the air. As you say, the Federal judiciary does not have to be concerned with that because you’re appointed for life, or at least for good behavior, and there’s a difference. But that’s why I was puzzled at what you wrote. You say, “We have decided that this is more important…”

Sarokin: Well, can I just interrupt…

Heffner: Sure.

Sarokin: I think it’s unbelievable in this day and age that there are still elected judges anywhere for that very reason. No matter now wonderful an elected judge, it’s…it’s inconceivable (and this may be a very unfair criticism of those who are elected), that they can ignore that there are people out there who will be voting for or against them based upon their decisions, and the most important element of the judiciary has to be independence, and I don’t know how you can have an independent judiciary if they are elected.

Heffner: Well, you’re…you’re a…you’ve said a number of things that are interestingly different, and certainly one constellation of ideas appears in this terrific piece, the Rutgers Law Review, Spring 1986, “Justice Rushed Is Justice Ruined”, and of course, you’re taking off on the business of justice delayed is justice denied. But you’re the only person I’ve ever read or heard saying “Come on, slow down”. In fact, slow down because that’s the nature of the judicial process.

Sarokin: Yes. Well, the main thrust of that speech was my concern that because we have so many cases that judges are emphasizing settlement over disposition to the point where I am fearful that settlements are being coerced by judges. It…the system will not work without settlements. In the Federal system we settle 92% of our cases, so that 8% are tried. But I am very much concerned, as expressed in that article, about the fact that judges, in order to have good statistics, are bringing lawyers into chambers off the record and coercing settlements and I think that that is a great danger, and if I can just add this one other aspect of it…I don’t know how the clients react to a judge making a recommendation that a particular case be settled for a particular amount when they’ve never seen the client, they’ve never heard the client’s testimony, and I think that that’s very bad for the system.

Heffner: You said “for the sake of good statistics”. What did you mean?

Sarokin: We, in the Federal court, have a monthly report that shows the number of cases that we have disposed of during the course of that month, and that is published and circulated and also kept in Washington, and I think it has somewhat of a competitive, if not a coercive aspect to it.

Heffner: That sounds like you’re elected this month to the “clean plate club”.

Sarokin: Exactly.

Heffner: Certainly to the “clean desk club”.

Sarokin: Yes. I’ve made up my mind that I would never do anything merely for the purpose of establishing good statistics. That’s…I said to my colleagues, who were worried about the number of cases they’ve disposed of, I said, “Did you ever hear in anybody’s obituary that he got rid of a lot of cases?” I mean…

Heffner: (Laughter)

Sarokin: …and I don’t think that’s a very important part. We have to move cases because expediting cases is important for the rights of the litigants, but that does not mean forcing people to settle when they do not want to.

Heffner: Do you think that the concern…the general public concern with “justice delayed, is justice denied” then really has to do with the State courts and with the criminal State courts?

Sarokin: I think so. The concern obviously is with the criminal cases, but what has happened as a result of the growing number of criminal cases, the civil calendar is very much delayed both in the State courts and the Federal courts.

Heffner: Well, you know, I’d…I’d like to come back to this…this notion of, as a people we have decided that it is better to protect individual rights. You then say, well, you didn’t mean, most people, and you are concerned about nurturing and protecting those rights. How do we go about doing that? Don’t the judges, even the non-elected judges eventually follow the election returns, as Mr. Dooley said so long ago?

Sarokin: I don’t think so. I know that even in the current debate over abortion, one of the Justices, might even have been the Chief Justice, said that it’s realistic to assume that Justices read their mail, and read the newspapers, but we hope that judges eventually decide a case based upon what they think is the correct application of the law, rather than what the public wants.

Heffner: I guess I wasn’t thinking so much about, “is this particular accused person guilty or innocent?”, but rather about the feeling of what is needed in our national lives…and move that way.

Sarokin: Well, affirmative action is the perfect example. I think if you took a vote…

Heffner: Which way?

Sarokin: …in this country, 90% of the people would be opposed to affirmative action.

Heffner: And, what is happening now?

Sarokin: Well, I think that it is not as in vogue as it was before and that may be because of the public’s reaction to it, or it just may be because of the present makeup of the Supreme Court.

Heffner: Yes, but…but, Judge Sarokin, I mean isn’t that the point? I read your opinions, the wonderful compendium of things you have written and said and ruled over the years, and I think when it came to the question of compensatory activity, I was a little surprised at some of the things you had written, but that’s beside the point…

Sarokin: You’re not alone.

Heffner: …(Laughter)…you mean, as a la the WALL STREET JOURNAL? I…I would think that what you have written in strong defense of affirmative action would be an indication that you believe that we are steeping back and that the courts themselves are stepping back.

Sarokin: Yes. I don’t think there is anything more difficult to explain to the public or to persons adversely affected by an affirmative action decision. If someone is number one in line to receive a job, and a minority who is number ten obtains it…it’s virtually impossible to explain to that person who was number one of that person’s family why this is happening. So I concede, although I’m a firm believer that it’s essential, that it is one of the most difficult concepts…I’ve…I have always been of the view that our opinions, and that’s one of the great failings of the judiciary, should try to explain what it is that we are doing and why we are doing it. But even I have had great difficulty with explaining why affirmative action is right, although I still believe that it’s essential.

Heffner: Yes, but you make it sound as though it were a question of communications.

Sarokin: Very much so.

Heffner: You don’t think it’s a question, instead, or also, of just firm belief…”I don’t want that…don’t tell me again and again what you mean”.

Sarokin: Oh. No, no. I think that most people are opposed to it, but if we are ordering it in cases, it would certainly be helpful If the judges were capable and made it a practice of explaining why it’s appropriate in a particular instance, and that’s not only in affirmative action cases. I , I think that opinion writing in this country is so focused on citing precedent, with all the numerical citations that follow it, rather than explaining to the litigants the reasons for the decision, and if there’s a public issue, to the public why it is we are doing what we do. Our opinion writing, I think, is a disaster. It’s like prescriptions for…by doctors. Nobody else can read it or understand it.

Heffner: Well, I must say that, you don’t fit into that…

Sarokin: Well, thank you.

Heffner: …you don’t. In reading the opinions, the comments, I was struck by the fact that they are literary essays, and that’s…

Sarokin: Well, I thank you for that. I must say that the credit for that, if credit is due, goes to my father. He was a newspaper man. I grew up with a love of language, and an understanding, I think, of the importance of it, and I give him all of the credit. If I can write, it’s because of my father.

Heffner: Talking about newspapers, and your father being a newspaper man, you seem to…the word “fairness”, I started off by picking that up, sees to loom large in your considerations, and in your work, judicial work, in the area of press freedom, you seem to emphasize press freedom…yes, but, and you have a lot of “buts”, “however”, and “balances” in your, in your writing, you’re emphasizing the responsibility of the press to be fair and truthful, and it’s clear that there was a split between those two. Where do you come down with due respect to your father?

Sarokin: I am a great believer in the First Amendment and freedom of the press, but I do think that the media and certainly the press included have not taken on the responsibility that I think that they should take on.

Heffner: The Constitution doesn’t talk about a responsibility.

Sarokin: No, and that’s why my decisions invariably will enforce the freedom of the press, but I always like to mention the fact that I think they should recognize some right of responsibility. It doesn’t affect the result, but one of the things, if we go back to opinion writing, I think we are in the message sending business. In addition to resolving the dispute between the litigants, I think that one of our responsibilities is to send some messages, and I don’t know if anybody’s listening, but I certainly try in every opinion I write that I think is of any importance, I try to say something that maybe somebody will listen to. If nobody else, my wife will.

Heffner: Judge Sarokin, I…it puzzles me what you say…not about your wife listening and reading, but in the area of punitive damages, you seem to be stretching the envelope yourself, out of fairness, and it is not fair to, to do so.

Sarokin: Yes.

Heffner: And if you feel it is not fair to interpret the Constitution in an absolutist, free press manner, why do you say you will come down inevitably as a First Amendment person, you’ll also come down as a Second, Third, Fourth, Fifth, etc. Amendment…

Sarokin: Yes.

Heffner: …person.

Sarokin: Well, what I mean is I am concerned where the press clearly has a right to print stories about persons accused of crime. There’s just no way that I could ever rule that it would be inappropriate or illegal. On the other hand, it disturbs me very much that persons are charged with terrible crimes, they receive widespread publicity and then when they are either acquitted or the charges are dropped, there is no like publicity to that event, and the fact is that bad publicity…the publication of charges stay with a person their entire lives, and I don’t…I cannot say that if the press does that, that it’s illegal, but I certainly think that some thought should be given as to whether it’s fair for them to be destroying somebody’s life, and yet I can’t suggest that those things should not be printed. So I have no answer for the media on that, but it certainly disturbs me when I see it, particularly in cases in which I’m involved. It has a profound effect upon those people.

Heffner: Just between us, have you ever, in your concern about fairness, and in your concern for responsibility, have you ever tempered what might otherwise have been an absolutist approach to the First?

Sarokin: No. That sounds…

Heffner: sounds very absolute…absolutely.

Sarokin: I think it’s true. I’m very comfortable with the decisions I’ve arrived at and I don’t think I’ve ever done any bending inside to arrive at a decision.

Heffner: With any of the other Amendments?

Sarokin: No.

Heffner: You mean the document stand so firmly and so well, or is it just that you’re pledged to uphold it?

Sarokin: Pledged to uphold it, and ultimately I never worry about a decision once rendered because I’m always comfortable with it once I’ve done it, and forget about it after that, but I don’t think at arriving at it I’ve ever felt that I’ve had to sacrifice anything in which I believed or really to arrive at a result.

Heffner: We have about 30 seconds left. In that lengthy period, do you think that the punitive damages approach that you’ve taken will prevail?

Sarokin: Yes, because both the American Bar Association and the American Trial Lawyers Association, I don’t think I have the right name, one of the trial lawyers’ respected associations, has recommended a nationwide punitive damage case in these mass tort matters so as to avoid the repetitive recoveries, which I have concluded are unconstitutional, and unfair.

Heffner: And some civilians are going to consider it unfair to them when that point of view prevails. Isn’t that true?

Sarokin: Yes, because…but I’ve never understood why it is an individual plaintiff should receive a fine and that’ really what punitive damages are. I think it ought to be going to some fund to protect those people and compensate them, those who have been injured by the conduct, or maybe to some other appropriate purpose, but not a windfall to the first one who happens to get there and obtains a big judgment.

Heffner: Thanks, Judge Sarokin, I appreciate very much your joining me today on THE OPEN MIND.

Sarokin: My pleasure, thank you.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s provocative guest, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; The Lawrence A. Wien Foundation; The New York Times Company Foundation; and, from the corporate community, Mutual of America.