Habilitation, Not Rehabilitation
Date: 11.02.1998

Does mandatory sentencing deter crime? No, says this tough but compassionate judge. To be effective, justice must be flexible.

"JUDGE ROBERTS, DID YOU SPIT?" It might seem an impertinent question, but Burton Roberts, administrative judge for the 12th Judicial District of the Supreme Court of New York, knows exactly what I'm asking.

Roberts was immortalized as Judge Kovitsky in Tom Wolfe's bestselling book, The Bonfire of the Vanities. In one memorable scene, the judge comes upon a van of nasty, heckling prisoners. In Wolfe's words, "[Kovitsky's] pupils were like two death rays burning just beneath his upper eyelids." The judge peered into the van and spat at the prisoners.

From his Bronx courthouse chambers the judge insists, "I did not spit." Then he smiles. "It's something I could have done, but I did not," he says playfully.

After 25 years presiding over some of the nation's meanest streets, this 76-year-old jurist retires at year's end. Joining him in his roomy chambers, I wonder what's on his mind. As we sit down to Greek salads in tinfoil containers, I find out: mandatory sentencing. Nowadays, mandatory sentences are hugely popular with voters disgusted with coddled criminals and the politicians who cater to them. Some 46 states have established these laws, including New York.

How do these laws work? Instead of traditional minimum sentences of 6 to 12 years, a second-time armed robber receives 10 years flat. Instead of one-third of the time off for good behavior, there is only the possibility of one-seventh of the sentence being reduced.

Sounds like a good idea to me.

Roberts lifts his head from his salad. I think I see the death rays Tom Wolfe described.

"A terrible idea," he mutters. "Facing a surefire stiff penalty, the defendant, with nothing to lose, asks for a trial. The court can't lock people up indefinitely, so he's back on the streets on a pretrial release. What does a robber do when he's back on the street? He robs." Roberts hits the tin container with an olive pit by way of giving emphasis to his disapproval.

Why can't we keep these criminals locked up before their trial?

Tossing another olive pit, Roberts replies: "We don't have preventive detention in this state." Right. Innocent until proven guilty.

The judge takes a sip of his seltzer and sighs. "The guys who make these laws come from places with more trees than people." For non-New Yorkers, what he's referring to is that the state legislature sits in Albany, surrounded by rolling green hills, while he dispenses justice in a teeming urban setting. He thinks he knows criminals better than some legislator in the apple belt.

"It's not the severity of punishment that deters the crime," Roberts goes on, "Believe me, people who commit crimes don't sit around at dinner talking about whether a crime gets five years or ten."

I look into his death rays and dare: "Come on judge, you're telling me harsh punishment doesn't cut crime! In some countries thieves get their hands chopped off. There isn't much stealing."

Oh, he knows that. His fork hits the table like a gavel and he shoots back: "In old London, pickpockets got a public hanging. And when the people were gathered to watch the hanging, the other pickpockets had a field day. Hanging didn't seem to deter them!

"No, the only thing that works is speed and certain justice," he bellows. "Speed and certainty, not draconian sentences."

Wait a minute. Crime is down around the nation; in New York City alone, homicides are down 40% in the last five years. Certainly that's due to tougher sentences and better policing?

My naivete has him fuming and he shoots back: "Crime is down as a result of demographics. Right now you have less people in the 15-to-25-year age group in which criminals are most active. But there is a rise in juvenile crime in ages 10 to 14. This group, just seedlings now -- will grow to trees casting a terrible shadow over our urban centers."

Now he's back to those damned mandatory sentences. "The worst thing," he says, "is to take discretion away from a judge. It removes the judge's ability to evaluate the nuances of the crime and the nuances of the individual who committed it."

Roberts, a former district attorney and World War II hero, isn't a judge who worries a lot about what newspapers or politicians say about him. I suspect he enjoys it when he riles people. "A leader has to show by example and not cater to what the public wants. I can take it," he says with a shrug.

Just two years ago New York Mayor Rudolph Giuliani and New York Governor George Pataki attacked Roberts for setting bail too low for an accused cop killer. The judge held his ground and snapped: "I do not poll public officials in order to interpret the law." His explanation for the low bail: The death looked to be accidental.

My guess is that he can handle these verbal barrages because they are tame compared with the artillery barrages he endured in WWII. A 20-year-old U.S. Army infantryman, he repeatedly went into heavy fire in Italy and France in 1944 to rescue injured comrades. He was also wounded. Asked about his wartime experiences, Roberts says what a lot of heroes say: "The only ones who are brave are those who died."

After the war he attended Cornell University Law School on the GI bill, but was turned down in his first interview for a job in a law firm. Those were very different days. "In one conversation, the partner asked me what church I attended on Sunday," he says. That, of course, was a way of saying, "We want no Jews." Roberts, who is Jewish, chose to take a public sector job. After a stint as an assistant district attorney, he served as Bronx County's district attorney from September 1968 to January 1973, and was considered one of the most aggressive and effective D.A.s in New York City history.

Tense when talking about the law, Roberts relaxes when he tells an anecdote. "Let me tell you a story," he says, pushing aside his salad tin. "There was a kid whose specialty was robbing Chinese restaurants. He went to Brooklyn Tech and was a smart kid. I gave him youthful offender -- the mildest treatment -- and sentenced him to up to four years in state prison.

"When it came time for his release he wanted to stay in jail so he could complete the schoolwork he had started during prison at a community college. When he came out he went to Pace University. He became an actuary, with a good job at a big firm.

"Instead of throwing the key away, you treat these people with dignity. It's not popular to say, but the only chance we have is to habilitate these people. I won't say rehabilitate, because that assumes they were at one time okay."

Doesn't Roberts believe some people are lost causes? "Absolutely," he says, "Fifteen percent of criminals should be locked up forever.

"But let me tell you another story," says the judge. His subject is Nathan Giles Jr., who robbed, raped, sodomized and murdered a woman in 1978. "A death sentence would be too kind. I gave him 68 1/2 years, 3 life terms and another plus 25 years. He was 34, which would make him eligible for release when he's 104. If the court has trouble finding me in 2044, I wrote into the decision that I want the court to show him as much sympathy as he showed his victim. He should die in jail."

At the Giles sentencing Roberts' final words were, "Good-bye, Nathan Giles -- good-bye forever!" The jury rose and applauded.

Other visitors are awaiting. Judges who were queuing up outside are now settling into his office chairs. He says to one of the judges, "Hey, do you read FORBES?" The judges smirk. Roberts quips, "If you send me three subscriptions you will triple your circulation here." Everyone laughs.

That's his way of saying that there isn't much money in this forsaken part of New York City but that he loves it. He reads a bit of doggerel he wrote for the end of a recent speech. It ends in these lines: "I love thee, Bronx, I love thee well, anywhere else, a living hell."

Okay, he's not a poet. Nor is he a likely candidate for a rocking chair in the Florida sunshine. After retirement, he might join a law firm or become a TV legal commentator. "I want to work," he says. Then, breaking into an expansive smile, he adds, "Besides, my wife, Gerhild, married me for better or worse -- but not for lunch."