The MacNeil/Lehrer NewsHour

MR. LEHRER: Good evening. Leading the news this Wednesday, the Eastern Airline's shuttle was sold to financier Donald Trump, the Supreme Court heard arguments in a major civil rights case, and a large defense contractor agreed to pay a $115 million fine for defrauding the government. We'll have the details in our News Summary in a moment. Charlayne Hunter-Gault is in New York tonight. Charlayne.

MS. HUNTER-GAULT: After the News Summary, we get a flavor of the argument in that major civil rights case before the Supreme Court. Then we continue our campaign issue & debate series, tonight "Crime and Punishment". For the Dukakis side, we have Sen. Dennis DeConcini, and for the Bush side, Sen. Arlen Specter. Our experts are Jerome Miller of the National Center on Institutions and Alternatives, and Ernest van den Haag of the Heritage Foundation. NEWS SUMMARY

MR. LEHRER: The Eastern shuttle may soon become the Trump shuttle. Eastern Airlines today announced the sale of its lucrative Washington-New York-Boston operation to New York financier Donald Trump. The price was $365 million in cash. Trump appeared at a New York News Conference with Frank Lorenzo, the head of Eastern's owner, Texas Air Corporation. Lorenzo said Texas Air did not want to sell the shuttle, but Eastern's labor unions had made that the better choice.

FRANK LORENZO, Chairman, Texas Air: We might have preferred a course that allowed us to build Eastern without a sale of the shuttle, that would have allowed us to make the changes that were necessary in the company, however, we have been deprived of an environment to negotiate the contracts at Eastern.

DONALD TRUMP: My relationship with labor has been different. My relationship with labor has not been confrontational, and maybe only because it hasn't had to be. I've had very good relationships with labor, and I expect that to continue, I hope it continues, and if it does, that's great, and if it doesn't, then there's confrontation, and we can all live with confrontation if we have to.

MR. LEHRER: Representatives of Eastern's unions came out strongly against the sale. An attorney for the Machinists Union said it would mean the end of Eastern Airlines. He said he will go to court immediately in an attempt to stop the sale. If not stopped by the courts, it would be in effect by mid December. Trump said he would rename the service the Trump Shuttle or Trump Air and repaint the 17 planes he bought in the deal with red, black, and gold stripes. Also at the news conference, Lorenzo acknowledged to reporters that he was talking to TWA President Carl Icahn about selling off other portions of Eastern. Charlayne.

MS. HUNTER-GAULT: The Supreme Court heard arguments in a civil rights case today that is widely regarded as the most important of this term. The court is considering whether to to abandon its 1976 ruling that allowed racial discrimination suits against private individuals. The ruling allowed blacks to sue private schools for denying them entrance on racial grounds, but it has also been applied to other areas, including housing, employment and education. Following today's opening arguments, attorneys on both sides spoke about the impact of reversing the ruling.

JULIUS CHAMBERS, Attorney: -- involved in Runyan has been used in a number of areas now not covered by any existing federal statutes and so if the court decides that Runyan is to be reversed, it creates a terrible void that we can't cover, except by some other legislation.

ROGER KAPLAN, Attorney: The danger of that decision is that it threatens to interfere with Congressional decisionmaking in various areas, employment, housing and so forth, and foster court made law which really should be done by Congress.

MS. HUNTER-GAULT: An aerospace contractor that has been overbilling the Defense Department for airline parts has agreed to pay a 115 million dollar settlement, the largest single fraud settlement in history. The Illinois-based Sentsun Corporation agreed to plead guilty to four criminal counts that also charged it with conspiring to undermine the contract bidding process by spending more than $100,000 to buy liquor, meals, theater tickets, and other amenities for Defense Department personnel. Also today, Congress passed a bill to close unneeded military bases in the United States. The Pentagon estimates that up to $5 billion a year can be saved by such a measure.

MR. LEHRER: Overseas in the troubled occupied territories today, Israeli troops took steps against Arabs suspected of murdering other Arabs who gave information to the Israelis. Four Arab homes on the West Bank were destroyed, another five were sealed. In other incidents, seven Palestinians were wounded in clashes on the West Bank and Gaza Strip. Also, a grenade was thrown at a bus carrying Israeli soldiers, there were no injuries. Israeli Defense Minister Yitzhak Rabin said there had been an increase in the use of hand grenades by Palestinian demonstrators. The Associated Press said authorities on the scene blamed this escalation on Islamic extremists rather than Palestinian organizations such as the PLO.

MS. HUNTER-GAULT: The Soviet Union today pledged 600 million dollars to help in the United Nations campaign to rebuild war torn Afghanistan and repatriate millions of its refugees. The program's coordinator, Prince Adruin Aga-Kahn, said it was the largest pledge since an appeal for donations went out in June. The UN estimates that total rebuilding will cost more than $2 billion. In Algeria, the government announced a referendum on political reform that would greatly strengthen the country's Parliament. The move came as a state of emergency and curfew were lifted after a week of bloody rioting against government policy. We have a report from Paul Davies of Independent Television News.

PAUL DAVIES: The Algerian authorities had promised to lift what they called a state of siege at 6 o'clock this morning. But soon after midnight, the quiet of the curfew was disturbed by the rumbling of troop carriers and tanks as the army prepared to pull out of Algiers city center. After seven days on the streets, during which more than 200 demonstrators had been shot dead, the soldiers moved slowly back towards their barriers. The curfews still officially in effect, tanks and armored troop carriers the only vehicles on the road, leaving behind just a handful of government soldiers to protect key government buildings.

MS. HUNTER-GAULT: After that report was filed, there was another outbreak of violence in Algeria. Johns Franz Press reported that 10 people were killed in a clash between pro and anti-government demonstrators. In Pretoria, South Africa, unidentified arsonists set fire to the Southern African headquarters of the Roman Catholic Church today, causing extensive damage. No one was injured in the pre-dawn fire. Witnesses said it started after an explosion in the printing works next door also owned by the Church. It was the second major attack in six weeks on the headquarters of an anti-apartheid church organization and was believed to have been in retaliation for the Church's support of a call for boycotting the municipal elections later this month.

MR. LEHRER: And in the U.S. Presidential campaign today, the major activity was left to the two Vice Presidential candidates, while Michael Dukakis and George Bush prepared for their second debate tomorrow night. Republican Vice Presidential Dan Quayle was in Indiana and South Dakota today. He said he had reached the snapping point over stories that Bush campaign aides are controlling him. He told reporters, "I'm my own handler. I'm going to have fun and say what's on my own mind." Democratic candidate Lloyd Bentsen was in Missouri and Arkansas. He told a rally in Columbia, Missouri, the Republicans refuse to stand up for the U.S. economy. He said they are avoiding issues which keep the nation competitive.

MS. HUNTER-GAULT: That's our News Summary. Still to come, a major civil rights case before the Supreme Court, and an issue and debate on crime. FOCUS - RIGHTS REVIEW

MR. LEHRER: We open tonight with a look at a civil rights case the Supreme Court heard today. Judy Woodruff has that story. Judy.

MS. WOODRUFF: The Supreme Court today heard arguments over whether to overturn a landmark 1976 ruling known as Runyan versus McCrary. That decision was based on laws dating back to the reconstruction era that allowed private individuals to sue other individuals for racial discrimination. Last April, the high court angered civil rights groups and pleased conservatives when it announced that it would re-hear the issues in Runyan even though no one had specifically asked it to do so. We will hear our own debate on this closely watched case now with two lawyers on opposite sides of the argument. Elaine Jones, Deputy Director Counsel for the NAACP Legal Defense Fund, which today argued to uphold the Runyan decision, and Paul Kamenar, Legal Director of the Washington Legal Foundation, which has filed a brief before the court asking that Runyan be overturned. Miss Jones, first of all, just how big a deal is this case? What is it that Runyan permits that is so important?

ELAINE JONES, NAACP Legal Defense Fund: It's a very big deal. What is at stake in these two cases before the court, one Runyan, the other Paterson, is --

MS. WOODRUFF: Now let's clarify. What is Paterson?

MS. JONES: Paterson is the case that was originally before the court last February and it's the issue in that case of whether or not a black woman who had been harassed on her job could sue under this provision of the Civil Rights Act, could sue her employer for that discrimination on the job. Well, when the court heard that case, which was the Paterson case, before deciding that case, the court said, oh, well, we'd better see if the woman has a right to sue at all under this particular statute. And that is the Runyan case. In 1976, the court decided in Runyan that she did have a right to sue to contract for private discrimination. That means as to enter the school or to be hired for the job. The Paterson case has to do with the terms and conditions, whether she has a right to sue about being harassed on that job for racial purposes. And so Paterson and Runyan are related issues, both very important issues. The issue is whether or not you have the right to make me, as a black person, whether I have the right to make and enjoy the benefits of a contract with private persons free of racial discrimination.

MS. WOODRUFF: Do you see it the same way? Is it, are the stakes as high as what Miss Jones just indicated?

PAUL KAMENAR, Washington Legal Foundation: No, I don't think so. What's at stake in this case is for a different reason and that is who is going to be deciding what the law is in this country, are we going to have the courts making up laws as they go along, or are we going to have Congress making these laws? Now in this particular case, the Paterson came, the woman argued that this law from 1866, which simply says, you have the right to make a contract, has been interpreted now to mean that there shall be no discrimination in the performance of the contract. Now, we agree that discrimination of the performance of the contract is bad. The question is whether this law covers it, or are there other laws that Congress has passed in the 60's and 70's, namely Title 7, and other civil rights laws, carefully these types of areas, because if this old statute covers it, then why even have all these civil rights laws on the books that we have, if you have this 1866 statute cover these areas?

MS. WOODRUFF: All right. What about that point, Miss Jones, that there are plenty of other legal avenues for someone to use if they feel that they have been discriminated against?

MS. JONES: Mr. Kamenar is just wrong. There are no other legal avenues --

MR. KAMENAR: She had an avenue under Title 7.

MS. JONES: There are no other legal avenues in which one can get punitive damages for racial discrimination in private contracts. And the problem here is Congress -- he talks about the performance of contracts -- Congress, the 1866 Congress, the 39th Congress, looked at this very issue. The issue was with the newly freed slaves. They could make contracts, no problem. They could work all day long and all night. They were making contracts. The problem was the quality of the contracts, whether they could get paid, whether they had to be whipped on the job, that kind of thing, and they were the issues.

MS. WOODRUFF: We're now talking about the case that dated back in the 19th century.

MR. KAMENAR: Right.

MS. JONES: Both of them do, but they both stem from the same issue.

MR. KAMENAR: There were -- right after the Civil War, you had what was known as the black codes and constitution and statutes on various state laws. There were stains on those books that said blacks cannot make contracts or sue in our courts. The very first suit that was filed after the 1866 statute, it was filed two days later, was a black against his employer who refused to pay him his wages. He went to court and the employer said, you don't have a right to sue me. And the court said, that was a good argument two days ago, but now they have the right to sue. It doesn't cover discrimination in the actual performance of --

MS. WOODRUFF: All right. But what's the relevance of all that to what's happening 120 years later?

MR. KAMENAR: The relevance is for 120 years no court has interpreted to mean that and what the relevance is as we see it is that the court is now going to engage in lawmaking to take this statute and stretch it every which way to cover all these kinds of situations. If that decision is reversed, Congress can repair any damage that they see or any gaps that are left.

MS. WOODRUFF: What about that, Miss Jones?

MS. JONES: Well, it's clear that Congress has already repaired the damage because the 1866 Congress passed the statute. But let me deal with what the issue really is. All right. Under Runyan, I have a right not to be discriminated with regard to my employment if I'm hired and the right to get a job or the right not to be fired because of my race, but then what Mr. Kamenar says is if on that job, you were treated differently from your white counterpart because you're black, you have to sweep the floor or you have to empty the garbage, you're the secretary, the clerical employee, but you have to do something differently because of race, that you don't have a claim under the statute. Now what is the right --

MS. WOODRUFF: Is that what you're arguing?

MR. KAMENAR: We're arguing that they have claims under Title 7. Indeed, in Paterson, the woman, herself, who alleged she was harassed, did have a claim under Title 7, but she foregone that route --

MS. WOODRUFF: Title 7 being an entirely different --

MR. KAMENAR: Yes, which is conciliatory. You have conciliatory procedures. You have EEOC come in the picture. This 1981 is a wild card. It's like a bull in a china shop that goes in and bypasses all these carefully crafted procedures that Congress enacted. If you want this kind of remedy that Elaine Jones wants in the NAACP, go to Congress and have it covered that way. And, indeed, Justice Kennedy today said, where do you stop? What is harassment on the job? If one racial epithet is uttered, does that mean you can sue under 1981? Does two racial epithets count? There's no controlling principle, as Justice Kennedy said. And that's the importance in this case in that once you get off the language of the statute, you get into a legal version of Beirut where everybody's factions can get the court to argue for its side.

MS. JONES: Two points.

MS. WOODRUFF: Miss Jones.

MS. JONES: One, when this statute was passed in 1866, just anyone could just read the legislative history and see what Congress was discussing was the newly freed slaves, what was happening to them. They were being whipped.

MR. KAMENAR: Sure. And they could sue him for assault and battery.

MR. KAMENAR: They were being whipped on the job. Congress was concerned about that. They weren't being paid the wages.

MS. WOODRUFF: Well, again, what's the relevance of that to what's happening right now?

MR. KAMENAR: Well, what is happening now is the court is now revisiting that statute to see if that statute affords us the rights that the court said it afforded to us in 1976. In 1976, the court interpreted that 1866 statute to afford me as a black person the right to make --

MS. WOODRUFF: But the court has a perfect right to re-look at a case.

MR. KAMENAR: Sure.

MS. JONES: And it has decided, and that is the issue that was already stated. But let me make another point with regard to contract. He's talking about the employment area. Let's look at another area. Let's look at the area of education. All right. The court said in the Runyan case in 1976 that that little black boy had a right not to be discriminated against in being admitted to that private day care facility. They couldn't deny him based on his race. Now the next issue is, all right, if he can be admitted, which is fine, but can they treat him differently, can there be racial epithets hurled at him? Can names be put on his lunch box?

MR. KAMENAR: Can the teacher discipline the student?

MS. JONES: Can he be put -- segregated -- and I say, no, not on the basis of race.

MS. WOODRUFF: And you're saying that Runyan permits someone to go to court?

MS. JONES: I'm saying it permits someone to go to court to challenge it and Paterson permits someone to look inside what's happening to that child in school.

MR. KAMENAR: Can I just read one sentence from what Justice Stevens said in Runyan, and here's what he felt about the history. Here's Justice Stevens, who's basically --

MS. WOODRUFF: This is a quote from --

MR. KAMENAR: From the Runyan case.

MS. WOODRUFF: This is set in 1976.

MR. KAMENAR: 1976. "There is no doubt in my mind that that construction of the statute, that the Civil Rights Act prohibits private racial discrimination, would have amazed the legislators who voted for it. Both its language and historical setting in which it was enacted convince me that Congress intended only to guarantee all citizens the same legal capacity to make and enforce contracts to litigate and to give evidence." For a hundred years, there was no other interpretation. You had the '76 decision and Runyan come out that way. Now they're going down this road where you're having Paterson explore these unsettling principles and the court's saying, we may have made a mistake by getting off the statutorial language, and that is what happened.

MS. WOODRUFF: Miss Jones.

MS. JONES: My response to that is for a hundred years there was no interpretation. And so if the court's -- .

MR. KAMENAR: Yes, there was.

MS. JONES: -- interpretation of this particular statute, 1982, was made in 1968 with the housing cases and in 1976 and in 1981, but the point is in the court today it was very interesting, because the person who argued Mr. Kamenar's point of view conceded that private acts of discrimination was at the core of Congress's concern in 1866 when they passed the statute, that private people - -

MR. KAMENAR: That's right. And you can remedy private acts of discrimination by giving blacks the right to sue, so that if somebody was being whipped, they could file suit for assault and battery, if somebody was being defrauded on their wages, they could file suit for that, but it didn't mean that you can force an unwilling party to enter into a contract that no one enjoyed, neither whites nor blacks. This is a novel interpretation.

MS. JONES: No one is talking about unwilling party, but we're saying there are contracts -- when there are voluntary contracts that race, race discrimination should not be a basis for determining whether or not --

MS. WOODRUFF: Just quickly, both of you, what happens if Runyan is overturned? Miss Jones first.

MS. JONES: Runyan and Paterson both are very very important decisions. They are critical to the civil rights protections that we built in this country. And the national policy, if it's overturned, I do not know what will happen. What I do know, as a matter of national policy we have to have, we have to have an effective Section 1981 on the books.

MS. WOODRUFF: Mr. Kamenar, what happens?

MR. KAMENAR: If Runyan is overturned, there are hundreds, if not thousands, of anti-discrimination laws on the books at the state and federal level in housing, employment and public accommodations that would not be impaired one iota by this decision. Whatever minor gap there is, Congress will be quick to fill that up because they have 66 Senators led by Ted Kennedy on their side and they're afraid to debate this issue in the Congress.

MS. WOODRUFF: All right. I don't think we're going to get any closer on this one.

MS. JONES: Why debate it in the Congress, when we want it --

MR. KAMENAR: Because it's easy to get to court --

MS. JONES: It's been decided --

MR. KAMENAR: You don't want to debate it in the Congress. It's harder to convince a majority of the Congress than it is five Justices of the Supreme Court.

MS. JONES: I don't mind. You think so?

MS. WOODRUFF: I don't think we're going to resolve this one this evening. Thank you both for being with us, Miss Jones, Mr. Kamenar.

MR. KAMENAR: Thank you.

MS. JONES: Thank you very much. SERIES - '88 - ISSUE & DEBATE

MS. HUNTER-GAULT: We now move on to the seventh in our election series of issue and debate segments. Tonight we look at crime. With us to discuss us are Senators representing both of the Presidential candidates and two criminal justice experts with opposing views. But first we have this background report from Correspondent Kwame Holman. [Arrest Scene]

KWAME HOLMAN: Statistics show the nation's crime rate rose only slightly in the last year, but experts say well publicized crime and violence that attend the illegal drug problem make people feel crime is growing out of control.

POLICE OFFICER: This is good cocaine. You can see the crystals in it.

MR. HOLMAN: Drug use is thought to be implicated in as much as half of violent and property crime. As public fear of crime grows, so does the amount of anti-crime rhetoric from the two major party Presidential candidates.

GOV. MICHAEL DUKAKIS, Dem. Presidential Candidate: [Sept. 16] My state has cut crime by more than any other industrial state in America. Our murder rate is the lowest of any industrial state in this country. And our Governors Alliance Against Drugs, which the Drug Enforcement Administration says is a model for the nation, is helping a lot of young people in my state to stay away from drugs.

VICE PRESIDENT GEORGE BUSH, GOP Presidential Candidate: [Sept. 22] I'm the one in this race who wants to strengthen law enforcement. Our first priority must be to keep the criminals away from the good and decent people who want to raise their families in peace and safety. Some people need to be taken off the streets and kept off the streets.

MR. HOLMAN: But taking criminals off the streets has led to vastly overcrowded prisons and jails. Mandatory minimum sentences for drug-related and violent crimes have swelled the nation's prison population to a record 604,000. Thirty states, the District of Columbia, and the Federal Bureau of Prisons, now exceed their prison capacities. It could be much worse. 75 percent of convicted felons are sentenced to alternatives other than prison. Most of those in prison are there for numerous or violent crimes, including crimes punishable by death. More than 2,000 inmates now await execution in the 38 states with capital punishment statutes. The death penalty is a law and order issue on which the candidates frequently disagree, even while trying to take a hard line against crime.

GOV. DUKAKIS: [Sept. 25] I'm opposed to the death penalty, I think everybody knows that. I'm also very tough on violent crime.

VICE PRESIDENT BUSH: [Oct. 10] Some crimes are so terrible and so heinous that the criminal should pay the ultimate sanction and they deserve the death penalty.

MR. HOLMAN: The tough talk has extended to calls for new anti- crime legislation. Vice President Bush favors a bill now before Congress that would allow police to conduct searches without a warrant under some circumstances and authorize civil fines against people who possess drugs even if they aren't found guilty. Gov. Dukakis has not taken a position on those measures. The candidates also differ on gun control. Each year, police confiscate thousands of concealable weapons from criminals. Handguns like this machine pistol were used in about half the 17,000 homicides last year.

VICE PRESIDENT BUSH: [Oct. 26] He favors gun control and I oppose it --

MR. HOLMAN: Vice President Bush along with the National Rifle Association successfully opposed federal legislation that would have required buyers to wait seven days between ordering and receiving a handgun. The delay, to allow time for background checks of purchasers, was supported by Dukakis. But the most highly publicized issue in the candidates' war of words over crime is prison furloughs, which allow inmates to leave prison unescorted for short periods of time, usually two days. In the last year, all 50 states, the District of Columbia, and the federal prison system, granted furloughs to 53,000 prisoners who exhibited good behavior. 2 percent failed to return. Nearly 40 states allow furloughs for those convicted of first degree murder. Furloughs usually are allowed when a prisoner is nearing release.

PRISONER: This program gives me the opportunity to be with my family and kids again.

MR. HOLMAN: Penologists view furloughs as a way to help inmates make the transition back into society after years in prison. George Bush has used one instance in which the Massachusetts prison furlough program failed to mount a major attack on Dukakis.

VICE PRESIDENT BUSH: What did the Democratic Governor of Massachusetts think he was doing when he let convicted, first degree murderers out on weekend passes?

CLIFF BARNES: I don't think any of you could understand what it's like to be tied up in a basement and listen to your wife being violated and beaten.

MR. HOLMAN: Cliff Barnes was tortured with a knife for 12 hours and his wife, Angela, was raped twice by William Horton, an escapee from the Massachusetts prison furlough program.

ANGELA BARNES, Crime Victim: Even after the second assault on me -- I mean, having a first assault on me was bad enough, okay. You figure the guy would leave. He got that. I mean, if that is what he was waiting for, if he was watching the house because it was me and that's what he wanted, he had that, and then he did it again.

MR. HOLMAN: The attacks occurred in the Barneses' Maryland home last year, six months after Horton fled Massachusetts during his tenth prison furlough. The Barneses have said they will sue the State of Massachusetts for damages and Cliff Barnes has recorded pro Bush radio ads. William Horton had served 11 years in a Massachusetts prison for his part in the murder of a 17 year old gas station attendant.

DENNIS HUMPHREY: Throughout his incarceration he worked his way successively down through the various levels of security.

MR. HOLMAN: Dennis Humphrey is in charge of the Massachusetts furlough program. He says William Horton was considered an acceptable risk.

DENNIS HUMPHREY, Massachusetts Corrections Dept.: His work reports continued to be positive, his housing reports while he was at the institution continued to be positive. In general, there was nothing that gave us any indication that he could become dangerous to the community on that furlough.

CLIFF BARNES, Crime Victim: You shouldn't let people out like Willy Horton who are convicted of first degree murder and sentenced to life without the possibility of parole. Somewhere along the line a judge and jury who heard how heinous and horrendous his crime was said this man is not eligible -- he doesn't need to be rehabilitated.

SPOKESPERSON: Furloughs for first degree murderers puts society at risk and, therefore, should be abolished.

MR. HOLMAN: The furlough program existed in Massachusetts long before Dukakis took office, but public outcry over the Horton case led the Governor to sign a bill outlawing furloughs for prisoners sentenced to life without parole. But the Bush attacks continued.

VICE PRESIDENT BUSH: Theirs is the kind of mind set that seems to reserve all its compassion for the criminals with little left over for the victims of crime and that sees nothing wrong with letting violent murderers who aren't even eligible for parole out on weekend passes.

MR. HOLMAN: For weeks, Dukakis said little to defend himself against Bush's attacks on prison furloughs. Last weekend, he launched a counteroffensive.

GOV. DUKAKIS: He certainly knows of his role in supporting a correctional halfway house in Houston, one of whose inmates left the house and raped and murdered a minister's wife. He even presented that halfway house with a Presidential award after the tragedy occurred.

MR. HOLMAN: As evidenced by their latest campaign commercials, both candidates will continue to talk about prison furloughs.

BUSH CAMPAIGN AD: -- His revolving door prison policy gave weekend furloughs to first degree murderers not eligible for parole. While out, many committed other crimes like kidnapping and rape and many are still at large.

DUKAKIS CAMPAIGN AD: George Bush sat by while a federal furlough program released thousands of prisoners, many of them drug dealers, almost 14,000 in 1987 alone. And now suddenly, George Bush is attacking Michael Dukakis for just one case in his furlough program. Michael Dukakis for President, because the best America is yet to come.

MR. LEHRER: We go now to two Senators who have been designated by the campaigns to represent the two Presidential candidates on the issue of crime. Sen. Dennis DeConcini, Democrat of Arizona, is here for Gov. Dukakis. Sen. Arlen Specter, Republican of Pennsylvania for Vice President Bush. Both are former prosecutors. Both are members of the Senate Judiciary Committee, and both join us from Capitol Hill. Senators, welcome. Sen. Specter, is the furlough issue a good measurement of how Bush and Dukakis measure on crime?

SEN. ARLEN SPECTER, [R] Pennsylvania: Yes, it is, because there is a very sharp contrast between the two candidates. The important thing about the Massachusetts program is that unlike any other program in the country, with the possible exception of one state, the Massachusetts program allows convicts to be released before they have a fixed release date, and that is in some states, your release date has to be within 90 days, under the federal system withintwo years, but Massachusetts does not follow that accepted procedure. The Massachusetts authorities have justified their program, Gov. Dukakis has justified it, as a management tool and as a way to evaluate when a person is eligible or ought to have commutation. And there's a lot more to the Massachusetts program than the Horton case. They have released hundreds of career criminals on furloughs. In 1986, for example, they had 299 furloughs granted to convicts who had six or more adult incarcerations. They had 116 furloughs to convicts who had four or more parole violations. Now, some of these furloughs were granted to the same individual twice, because they don't keep the statistics by individuals, but by the total number of furloughs. And Gov. Dukakis has sought to justify his program by saying that there is no difference, that it's a distinction without a difference, as to other furlough programs and that simply isn't true. When a person has a fixed release day and he's granted the furlough, he or she is granted the furlough, as a method of integrating that person back into the community, it makes sense. But it does not make sense to grant furloughs to career criminals who do not have a fixed release date, who like Horton were sentenced to life without parole, which means they ought not to be released.

MR. LEHRER: Sen. DeConcini, how do you and the campaign answer that?

SEN. DENNIS DeCONCINI, [D] Arizona: Well, I think the furlough question is an issue because George Bush has attempted to paint unfairly Mr. Dukakis as responsible for the tragedy of the Horton case. That's like blaming Ronald Reagan for the shuttle disaster three years ago. Those things are tragic. Nobody sits here and blames George Bush because it was his administration that that went down, nor is Jeffrey Barney, the person in 1981 in the halfway house funded by federal funds who went out and killed a minister's wife and raped her and then George Bush went down to the halfway house and presented them a Presidential award, now those are tragic situations. And nobody substantiates that or blames George Bush for Mr. Barney. Nor should Mr. Dukakis have to shoulder the blame for a tragic, tragic thing. And the Massachusetts case of the Horton and the furlough situation in Massachusetts is very significant, because first of all, it was put into the law by the former Governor who happened to be a Republican. When it was exposed through the Horton case, who led it to change it? It was Mr. Dukakis, the Governor. Now talk about the federal program, if George Bush is going to pick out the furlough as an issue, boy, he'd better look inside his coat pocket and maybe look in the mirror and say, gosh, where was I when almost 15,000 federal detainees in prison were furloughed in 1987? Seven thousand of them were drug or alcohol offenders in addition to being convicted of other crimes. So George Bush wants to hold himself up at a different standard and then say, but, Mr. Dukakis, you supported a furlough program. My good friend, Arlen Specter, was a prosecutor; so was I. We have furlough programs in our state. And the one that Massachusetts now has is tougher than most, because no lifers can get out. Now in many states they can still get out if a date is set. And Mr. Dukakis moved forward and corrected that. I don't see how anybody can blame for Mr. Dukakis for this disaster, like I don't blame Mr. Bush for the rape and murder of a minister's wife of a halfway house that he was serving in the administration that funded it, it's just not fair, and it's dirty politics.

MR. LEHRER: Dirty politics --

SEN. SPECTER: May I raise one point as to what Sen. DeConcini has just said?

MR. LEHRER: Yes, sir.

SEN. SPECTER: I disagree on the facts as to what Gov. Dukakis has done by way of response. It's true that the furlough program was initiated under a Republican Governor, but in 1976, after there were a number of problems demonstrated with the Massachusetts program, Gov. Dukakis issued a pocket veto to stop a change and he made a shift only in 1988, in April of this year, when he was confronted with 125,000 signatures on petitions and a very hot political issue in the Presidential campaign --

SEN. DeCONCINI: Well, Jim, if I can, you know, you hear these kind of charges coming down, that, well, there was a lot of other problems. I'd like to see them. We haven't seen any detail because they can't substantiate that. What they can substantiate is, in fact, a Republican Governor signed the bill, in fact, a tragedy occurred just like the one in Texas occurred, a rape and a murder, and Mr. Dukakis came in and corrected it. What more can you ask of a public official? And that's exactly what happened.

MR. LEHRER: Sen. Specter, what about the case that Sen. DeConcini has mentioned and also Gov. Dukakis mentioned in the tape, the question in Houston of a similar situation and a halfway house in Houston, the Vice President then gave support to the halfway house, is that a legitimate counter to what happened in the Willy Horton case in Massachusetts?

SEN. SPECTER: Well, it isn't a legitimate counter because Horton was different because there was no fixed release date, unlike the case in Houston, but when Sen. DeConcini says, what are the specifications and the problems with the Massachusetts program, it is far more than one case, and I do not criticize the Massachusetts furlough program, because of one case. There can be a problem in one instance anywhere.

MR. LEHRER: What about his charge that this is all dirty politics, Sen. Specter?

SEN. SPECTER: Well, it is not dirty politics. The facts are that the Massachusetts program is different from any other in the country with the possible exception of one state, and the Massachusetts program released many career criminals. I have the statistics as to the people released on furlough from Massachusetts. They had 254 who had two parole violations; 108, three parole violation; 116, four parole violations. It is a whole system, not one case, and the Governor has justified it --

MR. LEHRER: Well --

SEN. SPECTER: -- wait, one final statement -- the Governor has justified it in a way which is philosophically unjustifiable. It is not a management tool. It is not to decide whether a person ought to be released. It is a way after a decision for release to integrate the person back into the community.

SEN. DeCONCINI: Jim, I'd like to know where was George Bush when 15,000 almost federal people, prisoners, were put on the furlough program? Some of them were murderers. They have been convicted of murders. Now a date had been set, but some of them went out and committed crime. One of them went and killed somebody just like Mr. Horton did. And I don't say that George Bush is responsible. But if you're going to blame Mr. Dukakis for Mr. Horton, saying, well, the program is different, it's no different than the fact the guy down in Houston was a convict who had a fixed date on a furlough and committed a crime and George Bush didn't come back and try to correct the system as Mr. Dukakis did when this tragedy occurred in that state.

MR. LEHRER: Gentlemen, don't go away. We'll be back. Charlayne.

MS. HUNTER-GAULT: Also joining us tonight are two experts with very different views on matters of criminal justice. Jerome Miller, President of the National Center On Institutions and Alternatives, who is a former criminal justice official from the State of Massachusetts, and Ernest van den Haag, who holds the title of "Distinguished Scholar" at the Heritage Foundation and is a former Professor of Law and Public Policy at Fordham University. Starting with you, Mr. Van Den Haag, first of all, do you have any thoughts on this furlough program and how important it is in being tough on crime one way or the other?

ERNEST VAN DEN HAAG, Heritage Foundation: Yes, I do. The program was not limited, as we have heard, to Massachusetts, and I would abolish it all over. The only good reason that I have heard about that program is that enhances the morale, in other words, cheers up the convicts in prison. But we don't send people to prison to have them cheered up. People sentenced to prison should stay in prison. If the court fixes a date for release, that's when they should be released. I don't quite understand the whole purpose of the furlough program. And when people tell me it's successful, they mean that the people on furlough have come back. But I don't see in what sense it has ever contributed to anything. There's absolutely no evidence that prisoners who have been furloughed upon final release commit fewer crimes than prisoners who never had a furlough or anything like that. Nobody has even collected these statistics. I think it is a totally silly program to begin with.

MS. HUNTER-GAULT: How do you see it, Mr. Miller?

JEROME MILLER, National Center On Institutions & Alternatives: Well, I think the professor should acquaint himself with the literature first. In Massachusetts, those on furlough who are given furlough before their release, recidivated at one half the rate that a comparable group that were not given furlough.

MS. HUNTER-GAULT: Recidivated, you mean?

MR. MILLER: That is committed crimes. In fact, it is a way of easing someone back into society. It's meant primarily for those whose time is approaching an end in prison, and it's a fantastic shock for someone coming out of a prison, particularly for one the way Mr. Van Den Haag would prefer, as something out of a Dante's Inferno, I dare say. It's very difficult to make that sort of adjustment coming back into society. The furlough program has been and is highly successful. It's in virtually every state in the union. Hundreds of thousands -- last year, 1/4 million prisoners, near 1/4 million, were on furlough, and among programs, it's certainly the most successful. The Massachusetts rate has been somewhere around 99.6 percent successful. The other thing I find very very intriguing in the earlier discussion is I was on Gov. Sergeant's cabinet when this furlough program was instituted. It was by a very humane and decent and progressive Republican Governor. He should be very proud of what he did. I think it's unfortunate it's been cut back due to political pressures.

MS. HUNTER-GAULT: Let me just ask Mr. Van Den Haag. You said you hadn't heard any statistics. Are those convincing?

MR. VAN DEN HAAG: Not at all. And I don't know what they are based on. You see what you would have to do is to compare --

MS. HUNTER-GAULT: What are they based on?

MR. MILLER: They're based on research within the department.

MR. VAN DEN HAAG: What you would have to do is to compare people who have committed the same crime, have stayed the same lengths of time in prison, and come from the same socio economic background, at about the same age, furlough versus non-furlough. I don't think it has been done.

MS. HUNTER-GAULT: Has it been done, Mr. Miller?

MR. MILLER: Yes. In fact, I just talked with the people in the Department of Corrections in Massachusetts in the last two days, and they have some very good studies on this.

MR. VAN DEN HAAG: They kept them secret though.

MS. HUNTER-GAULT: I gather that you would agree with Sen. DeConcini that the case in point of Willy Horton was just a tragedy that shouldn't reflect on this, on the furlough program?

MR. MILLER: Well, that's precisely right. These kinds of incidents occur. I think if we're going to begin to hold people responsible for furlough programs, we should then begin to hold prisons responsible for their alumni, for those who would serve their time, their due time, the way people like this professor would suggest. In fact, the recidivism rates of those who served these horrific sentences is unbelievable. It's running 60, 70, 80 percent come out and commit more serious crimes having been subjected to the kind of treatment this man would suggest most people be subjected to.

MS. HUNTER-GAULT: You have a brief rebuttal on that?

MR. VAN DEN HAAG: Yes. I'm sorry, I don't agree with any of the statistics. There's no evidence whatsoever that people who serve a long prison term recidivate more often than people who serve a short term or are put on probation or anything like that. These statistics are pointless and there have been lengthy analysis that shows the exact opposite.

MS. HUNTER-GAULT: All right. We can't resolve that one here tonight. Let me put out this question to you in terms of this whole debate about who is the toughest on crime. How important is it and how effective is it to be tough on crime in the real world, Mr. Van Den Haag?

MR. VAN DEN HAAG: Well, let me put it this way. Until about 1950, the crime rate in the United States, beginning in 1900, slowly declined. In the 1960's, it almost doubled. At the same time, prison sentences for serious crimes were about five times less often imposed than used to be the case. In other words, the less punishment you have, the more crime you will have. And that has been the experience of mankind for a long time and that is, indeed, why we have prisons.

MS. HUNTER-GAULT: Mr. Miller, do you see it that way?

MR. MILLER: No, not at all, but I just wish the professor would acquaint himself with the research. There's absolutely no research that show that crime rates decrease with imprisonment rates rising. In fact, there is some research that show exactly the opposite, that, in fact, we are creating more and more crime. Those states which lock up more and more people cannot show lower crime rates as any result of this. Deterrence, prison has a deterrence. It may be a deterrence for middle class offenders, for white collar offenders, but for the average Joe going into prison, it's not much of a deterrence, and there are certainly other better ways. Now, I'm not suggesting that violent, dangerous, predatory people should be on the streets. They should not. But to suggest that this binge of imprisonment we've been on is going to lower crime rate is patent nonsense and you would think we would begin to realize it, looking at what's happening in the country. Crime rates went up again this year. We have more people in prison than ever in history.

MS. HUNTER-GAULT: Well, Mr. Van Den Haag, let me just ask you this. In terms of what the candidates have been saying, what positions do you consider important in this whole debate in being tough on crime in the way that you see necessary?

MR. VAN DEN HAAG: Well, there seems to be a fairly clear difference regardless of the details. Vice President Bush is in favor of the death penalty, which will affect very few people. We have never executed more than 25 persons a year out of 20,000 homicides a year.

MS. HUNTER-GAULT: So does it make a difference that he's in favor of the death penalty?

MR. VAN DEN HAAG: It is a symbolic difference, yes. To be in favor of the death penalty is as though saying we will be serious about crime, we are more concerned about the victims than we are about the criminals, we believe that punishment deters.

MS. HUNTER-GAULT: And does it? Does this kind --

MR. VAN DEN HAAG: I certainly think, and I don't know of anything else that does.

MS. HUNTER-GAULT: Let me just get a response from Mr. Miller on that.

MR. MILLER: Again, the research is even clearer that the death penalty does not deter murder. In fact, the research, recent research out of Yale University, suggests that the more executions we have, the more people that are on the edge tend to get more violent, and, in fact, the death penalty may create more murder. But I think that the death penalty is clearly a winner politically. It's known as a "de-wimpification strategy". Those who fear being viewed as wimps can yell and scream about executions, about getting tough on criminals, about executing people. It makes them sound very macho and very masculine. Unfortunately, it has nothing whatsoever to do with crime rates or murder rates.

MR. VAN DEN HAAG: I think more than about 70 percent of the American people feel that it is immoral to have the murderer survive his victim indefinitely at taxpayer's expense.

MS. HUNTER-GAULT: I don't think --

MR. VAN DEN HAAG: That is why they are in favor of the death penalty. They also believe, as I do, that if you keep a person in prison, even if you say you will keep him in prison forever, in effect, sooner or later, he will be released, and the only way to ultimately get rid of such a person is to execute him.

MS. HUNTER-GAULT: Very briefly, Mr. Miller.

MR. MILLER: Well, I think that if the pollsters are a little bit more subtle in this, and there have been a number of studies done on this, particularly in focus groups, that when people discuss this in detail and are given options are given some understanding of what goes into murder -- most murders, as you know, occur in family and among close acquaintances -- that the support for the death penalty tends to drop away, but as long as people are responding to slogans and to referring to other human beings, despite the fact they've done heinous things, as animals and as beneath our contempt, I think that obviously it's going to have support. But those politicians shouldn't be deceived that it's always a winner. Gov. Cuomo ran strongly against it and won. Gov. Shaft, my former boss in Pennsylvania, won, strongly against it and won, even though the polls showed 80 percent support.

MS. HUNTER-GAULT: All right. Stay with us. We're going to continue this with Jim.

MR. LEHRER: We are and let's go back to the two Senators first. Sen. Specter, as a practical matter, as a member of the United States Senate, but also based on your experience as an on-the- street prosecutor, how much difference can a President of the United States make in reducing street crime in this country?

SEN. SPECTER: Quite a lot, Jim. The President sets the tone. Also, the federal government has become much more involvedin street crime. We have the armed career criminal bill, which makes it a federal offense dealing with career criminals. The federal government has to take a leadership role in providing jails. There is legislation under consideration that would build as many as 200,000 jail cells if we took 200,000 career criminals off the streets, they commit a robbery or a burglary a day or more, and the President could have a real forceful role in a leadership position to fight crime and drugs.

MR. LEHRER: Do you agree, Sen. DeConcini, that the President can make a difference?

SEN. DeCONCINI: There's no question about it, Jim. And I think that's why we're talking about this issue so much --

MR. LEHRER: You bet.

SEN. DeCONCINI: -- about crime. And let me just say that I think that is a legitimate issue. Which one of these candidates have a record on it? And it's so clear to me that the Bush/Reagan administration talks tough, but they don't do much about it. And let me just point out an example. Just two weeks ago, I believe, very close to that, Mr. Bush made a long statement about things, about the crime, and he talked about the victims of Crime Act, that Congress should do more and expand that. It so happens that the Bush/Reagan administration cut $65 million out of that in the '87 budget. And how can you demonstrate that you're going to be tough on crime? You take the drug bill of 1986 that we passed had $230 million for drug education program. When the budget came up, it was cut, it was cut in half. It had $250 million for direct aid to state and local programs. It was wiped out. Over three years, this administration has cut a billion dollars out of federal funding of local and state programs. You can't have it both ways. You can't just talk tough and then when it comes to committing yourself to it, and the federal government, because I agree with my friend, Arlen Specter, that you've got to stand up and do it. And if it's going to cost money, I think people are willing to pay hard tax dollars if they have to or cut programs someplace else to fund these programs. This administration hasn't done that; talked tough, but it hasn't put up the bucks.

MR. LEHRER: Is that true, Sen. Specter?

SEN. SPECTER: A drug bill in 1986 had 750 million dollars which went for state and local government, about 250 million for education, 250 million for jails, and 250 million for rehabilitation processes. But I think more needs to be done and the Vice President has addressed these issues in a very forceful way and made commitments to increase federal funding in these important areas.

MR. LEHRER: All right. Let's take up, gentleman, all four of you now, the point that Sen. Specter made a moment ago, beginning with you, Mr. Van Den Haag, and that's the question of tone, that a President of the United States, in addition to the specific programs that the Senators have just spoken to can also set a tone as far as the country and the way it deals with crime. Do you agree with that?

MR. VAN DEN HAAG: I certainly do. He is the leader of the country. He influences what local officials will do. He influences what people think, therefore, what officials they will elect. He can be very influential and I think that by emphasizing the punishment of criminals rather than the furloughing of criminals by emphasizing that prisons are there to punish those who have committed crimes rather than experimenting in rehabilitation, which according to my data have never been successful, I think he is taking a position on crime that most people would agree with.

MR. LEHRER:Mr. Miller, tone?

MR. MILLER: Well, I think there's a lot of research that show that rehabilitation works but I think the tone is a very important issue here. And I think the tone in this campaign unfortunately hasn't been very humane, I don't think on either side. It bothers me, for example, that we cannot talk about things that work, that things that, in fact, will lower crime rates. Obviously, they've done quite well in Massachusetts. Crime rates are down despite all this rhetoric, crime rates are down quite dramatically, particularly among young people, but among the younger offenders as well. One of the things that I notice is ignored in this campaign is the fact that Massachusetts, the only state in the union, that for the past 15 years, since the time I was there, has not locked up many of its juvenile offenders. Now that sounds terribly permissive, but, in fact, they've had lower crime rates among those youngsters than probably any comparable state in the nation, much less violence, and I think that is contributing to the lower crime rates in the adult area right now. But that is verboten. We dare not talk about decency in humanity and concern, or even about effectiveness. Now I think when you talk about setting the tone for a campaign, the last group to set a tone for a campaign was the Nixon Administration in 1968. They ran against Ramsey Clark and of course leading the charge was John Mitchell. So whenever I hear a tone being set by politicians with reference to law and order, I always wait for the other shoe to drop. It's kind of like hell, fire and brimstone preachers and law and order thumpers. They often have their own hand in the cookie jar. And I think the tone being set in this is not an entirely honest tone.

MR. LEHRER: Not an entirely honest tone.

SEN. SPECTER: May I comment on the decency issue?

MR. LEHRER: Yes, sir.

SEN. SPECTER: There is a facet of what the Vice President has been urging with respect to realistic rehabilitation where that is possible for first offenders and youthful offenders, job training, education, programs that Mrs. Bush has articulated on education, some of which we have put into effect in the District of Columbia, where we have programs for literacy training and job training before people are released, so that there is a very definite decency tone in what Vice President Bush has said, but if those programs fail and people are not rehabilitated and then they become career criminals, I believe that the approach is correct for long sentences, life sentences for career criminals.

SEN. DeCONCINI: Well, Jim, you know, I think the decency is important and Mr. Bush is a very decent man, there's no question about it, and his wife is very interested in some of these subject matter. But when it comes down to producing, where has Mr. Bush been? When the administration signed a bill, said it was the major crime bill, we're going to put all the assets of the country behind it, and then the first budget that comes up, they wipe out half of the education funds. That's the decent side of this issue. If you're going to talk and you're going to say you're for these things, then you've got to have the courage to stand with your convictions.

MR. LEHRER: Sen. DeConcini, but what about Mr. Miller's point though that there is a lot of talk but it's not honest talk at this political campaign about the crime issue?

SEN. DeCONCINI: I think there's a lot to that that unfortunately -- I guess I look at it this way, those of us in public campaigns have been through it -- when you don't have a record and your opponent does, what do you do, you attack your opponent, and that is what George Bush has done. He has moved, and maybe successfully, I don't think so, I think people will see through it, he has moved away from a failure of himself to fund programs that they have talked about. He's moved away from a failure as the head of the NNIBS, National Narcotic Interdiction Border System, the Southwest and Florida task force where even his own DEA agent, Mr. Mullen, in charge said it should be abandoned, he's moved away from that and gone after the furlough, gone after the Horton case that is a tragedy and tried to make this a personal thing between Mr. Bush, who is going to stand up for tough, tough laws, and going to fund these programs. He doesn't say that he cut all those funds and that Mr. Dukakis who had a very tragic thing happen when he was Governor -- but George Bush had the same tragic thing and Mr. Dukakis is not saying, well, it's your fault.

SEN. SPECTER: May I comment on the honest talk?

MR. LEHRER: Yes, sir.

SEN. SPECTER: There is some honest talk, the MacNeil/Lehrer Show, for example. On the furlough issue, I think we had a key concession from Mr. Miller when he said that furloughs are designed for people with release dates. Now I believe from our discussion on furloughs there is an agreement essentially here that a furlough ought to be given only to a person who has a release date for reintegration into the community. And Gov. Dukakis was flatly opposed to that philosophical approach.

SEN. DeCONCINI: But that isn't the case. He signed the bill that changed it.

SEN. SPECTER: Well, Dennis, he did, but only under enormous pressure and he vetoed one in 1976. Massachusetts had the wrong approach from '76 to '88, and Gov. Dukakis was wrong.

SEN. DeCONCINI: He had the courage to change it.

MR. LEHRER: On that we have to go, gentlemen. Thank you, all four, very much for being with us tonight. RECAP

MS. HUNTER-GAULT: Once again, a last look at Wednesday's top stories. Eastern Airlines agreed to sell its lucrative shuttle service to financier Donald Trump for $365 million, Eastern unions said they would oppose the sale. The Supreme Court heard arguments in a key civil rights case and Sentsun Corporation, a major defense firm, agreed to plead guilty to defrauding the government. Sentsun will pay a $115 million fine, the largest single fraud settlement in history. Good night, Jim.

MR. LEHRER: Good night, Charlayne. We'll see you tomorrow night. I'm Jim Lehrer. Thank you and good night.