The Collapse of Criminal Justice
FEBRUARY 14, 1996
In his new book, Guilty: The Collapse of Criminal Justice, Judge Harold Rothwax says the criminal justice system is failing the American public. He spoke with David Gergen, editor of "U.S. News and World Report," about the need for more rational procedures and new approaches to crime and punishment.
Click here for the RealAudio version of this discussion.
DAVID GERGEN, U.S. News & World Report: Judge Rothwax, Irving Kristol, who's the father of neo-conservatism, as a liberal who had been mugged by reality. And I wonder if that description fits you, sir. You started out some 37 years ago in criminal law. You were a defendant for the poor through the Legal Aid Society. You were a member of the American Civil Liberties Union and became a prominent member of that over the years, and 25 years ago, you became a judge. And now you've written a scathing indictment of the criminal justice system, which has--which is seen as a very conservative indictment. What happened to your views?
JUDGE HAROLD ROTHWAX, Author: Well, I think there's been some change as a result of growing older and perhaps growing wiser and changing your perspective. When you're a defense lawyer, you're focused on representing one person against the world. When you're a judge, you're concerned with the defendant, you're concerned with the victim, and you're concerned with a fair and efficient administration of criminal justice. So you have a much wider and a broader perspective. I don't view this book as an, as an ideological one. I don't view it as an attack on civil liberties. I think that the pendulum has swung too far in the direction of protecting the defendant, and I'd like to bring it back toward the middle. But basically, I see it as an argument for rationality, an argument for common sense, and the things that I'm pointing out are things that seem to me to be foolish in the system and that ought to be changed.
DAVID GERGEN: Now, you think those things that are foolish mostly came from the Warren court, the era of the Warren court and the Supreme Court that changed the criminal law system.
JUDGE HAROLD ROTHWAX: Yes. I think some of the rulings of the Warren court and the rulings of some of the decisions that came subsequent to the Warren court have taken the Fourth and Fifth and Sixth Amendments on a wrong course, and I'd like to go back to a proper interpretation of those amendments.
DAVID GERGEN: You offered many different examples in your book of what you thought had gone wrong because you see these up close. You're sitting as a trial judge for felonies in New York State. It's the highest criminal court in the state of New York that hears that case on a trial basis. You had a case, I gather, with this officer who answered a 911 call.
JUDGE HAROLD ROTHWAX: Yes. Sure. This was the simplest of all possible kinds of cases. An officer close to midnight is sitting in his radio motor patrol car, he gets a 911 call of a man with a gun, who's described as a man wearing red sneakers and walking with a limp. He's a block away, so he starts up his car. He drives the block, and he sees the fellow fitting the description walking in the street, and he gets out of the car and says, "Freeze," and he walks up to him and pats him down and recovers a gun. As always happens in these situations, the defendant, who is--who has property taken from him, then moves to suppress that evidence on the grounds that the police officer allegedly obtained that property illegally. And then I have to have a hearing on a motion to suppress that evidence to determine whether it should or should not be suppressed. I felt that the officer had acted reasonably, had acted in the only sensible way he could have under the circumstances, and I denied the motion to suppress. That case then went up to the appellate court, where I was reversed by three judges to two judges. And one of the problems with the search and seizure law--
DAVID GERGEN: Now, let's go to the facts of that. The reason that that was found to violate this man's Fourth Amendment rights, search and seizure rights of the Fourth Amendment, was that the officer's call was an anonymous call, it was--he did not know the source of the call.
JUDGE HAROLD ROTHWAX: That's right.
DAVID GERGEN: That was the problem for the appellate court.
JUDGE HAROLD ROTHWAX: That was the problem for the appellate court. Presumably they would have preferred if he chose to call it Miller Time, let me go get a drink, and forget about it, it's an anonymous call, I'm not going to go check these things out, and they were concerned about that. The problem is, though, that the law is so confusing, it's so difficult to understand, even the Supreme Court has referred to it as being intolerably confusing, that if you had fifteen judges on it, instead of splitting three to two, they would have split eight to seven, that there is no clear line of demarcation, so that the police officers were not given clear guidance in their administration of the law.
DAVID GERGEN: In the same way you feel that the Miranda warning that arises out of the Fifth Amendment, the court, again, the Warren court issued the famous Miranda case decision, you think that is also getting in the way of a fair justice.
JUDGE HAROLD ROTHWAX: Yeah. It's bringing formalism into the law. You know, the Fifth Amendment says that we are not to compel anybody to incriminate himself. And I have no problem with that. We don't want to be people or threaten people or deny people food or sleep in order to get confessions, but Miranda went further and Miranda acknowledged that you could have voluntary confessions that would still be suppressed under Miranda. Miranda said even if the confession is voluntary, even if it has not been compelled, a confession may, nevertheless, be suppressed if the officer has failed to give the warnings properly or if after the defendant has asserted his right, they ask him a single question. It seems to me that focuses us on other issues, other than voluntariness. Now, we're concerned with whether or not there was interrogation, whether or not this fellow was in custody. It may have nothing to do with whether the confession is voluntary or not. Even Justices Brennan and Marshall indicated that as a result of Miranda, voluntary confessions have been suppressed. Well, it's foolish for us to be suppressing voluntary confessions.
DAVID GERGEN: I was struck that your indictment, what you call the collapse of criminal justice, goes beyond the, the decisions of the Supreme Court. It also goes to many state procedures which, of course, are in effect not only in New York but in many other states, and are leading the decisions or forcing your hand in cases in ways that I think defy common sense. The, the example, for example, of Mr. Luperon and a speedy trial--
JUDGE HAROLD ROTHWAX: It's a very good example. We have a statute in New York that says everybody who's arrested for a felony must be brought to trial within six months, and if he's not brought to trial within six months, then the case against him must be dismissed. Well, Mr. Luperon was arrested and he was released on bail, and he jumped bail, a warrant issued for his arrest. And he wasn't brought back for a period of time, and when he was finally brought back, he then moved to dismiss the charges on the grounds that he hadn't been given a speedy trial. And our court upheld that, our highest court upheld it and said that it was our obligation to use due diligence to search for him. I mean, it's like the orphan who kills his parents and then says treat me nicely because I'm an orphan--the fellow who killed his parents and says, treat me as an orphan. So it makes no sense. It defies common sense. In fact, it gives inducements to defendants to flee under those circumstances.
DAVID GERGEN: How is it--Philip Howard has written a book about common sense, describing government regulations and what's happened in the executive branch of government. You're writing a book about sort of how we've encrusted the judicial branch with so many rules and regulations. How is it this comes about? Are these sort of--that in the attempt to do the right thing, we go too far overboard in grave situations which allow people to manipulate or gain the system?
JUDGE HAROLD ROTHWAX: I wanted to name my book, by the way, The Death of Common Sense, but it had already been taken by Philip Howard. But I see the book as a criminal justice analog of what he has written about the, the civil side. I think part of the reason we, we view it, that it develops in this way is because we are unable to change much of it. Basically, the Supreme Court has constitutionalized American criminal law, which limits the ability of the legislature and the public at large to have any large impact on it. So we tend to become acquiescent and accepting, and not critical and reviewing what goes on. And this is--
DAVID GERGEN: What would you do to the changes then? How would the citizenry expect then a more rational system?
JUDGE HAROLD ROTHWAX: Well, I think the beginning of it is public awareness, public knowledge. Many of the recommendations I make could be changed by a legislature. You could change the speedy trial statutes that we've just discussed. You could change the discovery statutes that we've talked about. There are a number of ways in which the legislature can change the number preemptory challenges, whether you have unanimous verdicts and so on. All that is subject to change. Other changes, such as the changes I recommend in the Fourth, Fifth, and Sixth Amendment areas, can be authored, I think, if the people begin to look at it in a different way, and then over time, the courts will reflect that cultural change in attitude.
DAVID GERGEN: Sort of the old notion that when the court changed its--the Supreme Court changed its views in the mid '30s under Roosevelt, the, the switch in time that saved nine--
JUDGE HAROLD ROTHWAX: Right.
DAVID GERGEN: --that, that sometimes the court follows election results as well.
JUDGE HAROLD ROTHWAX: I think if there's a public outcry and intelligent discussion of the faults of these decisions that there will be a readiness to change, yes.
DAVID GERGEN: Now there is another perspective I'd like to have you address, if I might, sir, and that is I talked to Norville Morris today. He's the--you know him from the University of Chicago--and he said many of these abuses may exist in the system but, you know, if you stack up the number of people who are getting off, who are gaming the system, versus the number who are going to prisons, we've had this vast increase over the last 15 years in the number going to prison. We've tripled the number of people in our prisons. We now have five times the incarceration rate of say Western Europe or Canada, or Australia. Is the problem as large as you present it, given the high number going into prison?
JUDGE HAROLD ROTHWAX: I think you know--let me just point out a few things. One, saying that a lot of people are going to jail is not to me an argument; it's a way of saying that a lot of people are going to jail. The issue is: Should they be going to jail, or should they not be going to jail? And it's not an argument with me on the issue of whether the principles that we're using are rational are not, and even if you accept that argument, if you say, 5 percent of the people who are being arrested are affected by these rules and not 95 percent, 5 percent of 3 million is 150,000 serious cases a year that may be going by the board, and then these people go on and commit other crimes again. So if the principle, if the procedure is an irrational procedure, we ought to make it rational, whether a lot of people are going to jail or not. All I am arguing is in favor of rationality.
DAVID GERGEN: Good luck as you go back to the bench, and thank you.
JUDGE HAROLD ROTHWAX: Thank you.