I don't think any of the people in prison are innocent. By the same token, half of them don't belong there because they are first-time nonviolent drug offenders who carried drugs for the dealers in order to feed their habit. Then they were caught and sentenced to 10 years because, for example, they were carrying three kilos of drugs. We put them in prison, don't give them the chance to be educated or rehabilitated, treat them like garbage, and when they get out they're going to act like garbage.
What do you propose we do?
These days, to be elected to public office, you have to say, "We're going to get the sheriff to feed prisoners green bologna, stick the women on chain gangs, and put prisoners in tents when it's 110 degrees." Instead, I would make it a national priority to discover the best ways to rehabilitate and treat addicts, and would put first-time drug offenders in supervised halfway houses to rehabilitate them.
Knowing the system, do you have any hope that this will happen?
Yes. Not because of good intentions, but because we just can't afford to build prisons anymore. There are 1.6 million people behind bars now in this country. For every 100,000 people, we have 615 people behind bars, compared to England with 95 per 100,000 or Japan with 45. We can't keep putting more people behind bars. It will bankrupt us.
In your book, you tell the story of an elderly farmer you met in prison who mortgaged his pigs to keep his farm, then sold his pigs to pay the mortgage, which was technically stealing from the bank. And he had the same sentence as...
A bank robber. Mandatory sentences are terribly wrong. The prosecutor determines the sentence and not the judge. A woman steals powdered milk to feed her baby, a man steals powdered milk to cut heroin—same crime, same sentence. There has to be some discretion, some mercy, some understanding. Shouldn't the sentence be molded around the individual circumstance?
But wouldn't the judge then be seen as soft on crime?
If you're an elected judge, you can be sure that they'll bring up your lenient sentencing of criminals in the next election. They'll say, "This is the judge who let criminals go because he said they were mentally ill. We don't need judges like that on the bench."
A judgeship is a very political position, though we like to think it isn't.
To be a good judge, one has to be free from the passions of the law. And elected judges cannot be totally impartial. But 80 percent of the people in this country want to elect judges. They want to have a say about who the judges are. They're deluding themselves, because they don't know who they're voting for.
In a book called Drug-Impaired Professionals, Robert Holman Coombs says that the substance abuse and depression rates in the legal profession are higher than in the general population. Does this surprise you?
I think that with intelligence comes a degree of arrogance, and with arrogance comes the delusion that you can handle it and that you are in control.
What is the legal profession, if not exercising control over other people? You're in the business of judging people.
That's the business, but that's not control. Someone has to make judgments because we live in a society where there are adversarial contexts. I could think back to decisions I made that influence lives, such as the one that said that the blue laws prohibiting stores from being open on Sundays were unconstitutional. So whenever you go shopping on Sunday in New York, you can blame me. I wrote the decision that removed marital rape exemptions in New York. Before that, a husband could legally rape his wife. I wrote the case that said that Grand Central Station could not be torn down because it's a landmark. These decisions had to be made. That I don't consider control.
If you ran a school for judges, what would you have them do?
We'd never go to see prisons. Instead I would get someone like me to tell them what prison is really like. What they see on their tours of the prisons is so sanitized.
Do judges need psychological literacy?
Absolutely. And they don't have it now. To show you how psychologically illiterate the judiciary can be, the famous Supreme Court Justice, Oliver Wendell Holmes, said that a mentally retarded woman should be subject to a hysterectomy because her mother was an imbecile, and she was an imbecile, and three generations of imbeciles are too much. That's Oliver Wendell Holmes!
Maybe you should write a book on psychological literacy and the law?
That's a wonderful idea.
You've been through a great deal since being arrested. Are you a better man for this experience?
I think so. A weaker one, a less secure one, but a better one spiritually. I lived a charmed life. Every newspaper story was glowing. I was a kind of oracle. And then suddenly I found myself disgraced. In the last lines of the book's epilogue I say, "Every person who is in a position of significance should fall from grace long enough to sort the wheat of true friendship from the chaff of opportunistic association." Now, for the first time in my life, I can appreciate what redemption means, and what forgiveness means, and what hope for acceptance is about. And I learned how important it is to have a supportive family.
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