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Free Range Parenting: Reckless or Rewarding?; Judge Too harsh to Sentence Teachers to Prison?; Doctors Call For Dr. Oz To Be Fired to Columbia University Aired 6-7p ET

Aired April 18, 2015 - 18:00   ET


[09:00:00] MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish. Welcome to the program.

Campaign 2016 is already heating up. And right now New Hampshire is the place to be. All the GOP heavy hitters, 19 to be exact, are in town for the first in the nation Republican Leadership Summit. Jeb, Marco, Rand, they're all there. It's the first can't-miss event for the 2016 Republican field and there's no doubt several hot button political issues are on the table that could help decide who will punch that GOP ticket.

Let's dig right into it.

Joining me now is "The New York Times" national political correspondent Jonathan Martin and Republican strategist and CNN political commentator Kevin Madden.

So, Jonathan, when there are 19 names in the hat, who benefits? Is it he or she with the strongest name recognition?

JONATHAN MARTIN, "THE NEW YORK TIMES" NATIONAL POLITICAL CORRESPONDENT: I think it's who delivers the best speech, Michael. It's not that complicated. Yes, there's a lot of folks here. But the activists who are in attendance are not at their first rodeo. This is New Hampshire. They are professionals. They know what they're looking for and when they're in that ballroom they want to be inspired. They want to hear somebody who is substantive and they want to hear somebody who stands out a little bit from the rest of the field.

And so I think that, you know, for these candidates to do that, with a crowd as big as you mentioned, they're going to have to bring their a- games. I think you saw yesterday, you know, strong performance by Marco Rubio. Strong performance by Jeb Bush. And also by Chris Christie. But it's April of 2015. A lot of the activists in the building across the street from me who are gearing up for day two are not going to be signing up with any of these candidates before, you know, next year.

SMERCONISH: I thought there was an interesting response something that Jeb Bush said to a questioner in the audience. I want to roll this video and then ask Kevin Madden to dissect it. Play the tape.

(BEGIN VIDEO CLIP) UNIDENTIFIED FEMALE: I don't want a coronation on our side by any stretch of the imagination.

JEB BUSH, FORMER GOVERNOR OF FLORIDA: I don't see any coronation coming my way, trust me.

What are you seeing that I'm not seeing? Got 95 people possibly running for president I'm really intimidating a whole bunch of folks, aren't I?


SMERCONISH: You know, Kevin, it occurs to me that as compared to what's going on on the other side of the aisle at least at this stage it will help Jeb to have such a crowded field assuming he can win the nomination because it is will dispel that criticism that it was handed to him on a silver platter.

KEVIN MADDEN, CNN POLITICAL COMMENTATOR: I think that's right. Look there's a very real animosity towards that right now. You see it not only in New Hampshire there with voters but you also see it in Iowa. You also see it in South Carolina. Folks don't want this to be a dynasty. And so that's a big challenge that Jeb Bush has.

I said this a few weeks ago. I still think it applies. Jeb Bush has to be very careful to make sure that he doesn't go out there acting as if he's the front-runner. He has to go out there and earn a lot of - a lot of this support from places, to get, you know, get his hands dirty meeting with voters in places like New Hampshire where the retail politics and his comfortability with the retail politics comes out and I think that's going to help him through the process and I think you saw that in his answer there.

SMERCONISH: You know, Jonathan, I think it's interesting to see -

Go ahead, finish your thought.

MARTIN: Yes. I was going to say - to Kevin's point, Jeb Bush's stump speech now includes the following opening, you know my mom and dad. You know my brother. But I understand that if I run for president because he hasn't formally announced that I've got to show you what's on my heart. So, he even - even before he begins this stump speech he has this sort of preemptive riff, Michael, where he's basically saying I know that I got to earn this and tell you about who I am and my story and make my case so I think he's self-aware of the challenge that Kevin just described.


SMERCONISH: You know, Jeb Bush also agrees with the president in one respect. I want to show you some tape of something the president had to say this week with regard to Loretta Lynch.


BARACK OBAMA, U.S. PRESIDENT: There are times where the dysfunction in the Senate just goes too far. This is an example of it. It's gone too far. Enough. Enough. Call Loretta Lynch for a vote. Get her confirmed. Put her in place. Let her do her job. This is embarrassing.


SMERCONISH: Kevin Madden, Jeb Bush also believes that she deserves a vote. Is this another instance of him stepping out from his more conservative counterparts?

MADDEN: I think that and also the fact that he's stepping up and showing voters this is what an executive does. And, you know, if I win this thing I'm going to have to govern and I'm going to want my team. And he wants to be very intellectually consistent there and he does want to just go for the low-hanging fruit, something that he thinks it's going to be really ravel up the crowd.


Instead he wants to be seen as a thoughtful chief executive who is going to do the right thing and is going to act like what a president should act like and I think that was - I think that was really a big part of his answer.

SMERCONISH: Let's flip to the other side of the aisle. Jon Stewart had an interesting take this week with regard to the rollout of Secretary Clinton. Pay attention to what he had to say.


JON STEWART, HOST: Holy (INAUDIBLE) they're racing to her car? Last time any one in Iowa was this excited about a wheeled vehicle the Wells Fargo wagon was bringing musical instruments they'd ordered from a charismatic stranger. Whatever happened to that guy?

What are we doing here, people! There are a lot of good reasons for you to be chasing a van. If the van was perhaps the good humor truck. And you were five.


SMERCONISH: Jonathan, her campaign thus far a campaign I would describe as being for normalcy. Did she succeed at least this week?

MARTIN: Yes, I thought she had a pretty good week. And, you know, there's still much to be determined about where she actually stands on some issues. I thought the biggest news of the week came yesterday where she finally weighed in on what is going to be one of the biggest issues facing the Congress this year, the question about this free trade agreement with Pacific nations.

And she very notably punted on that and said that, you know, basically TBD, she wasn't sure yet. She wanted to this see more details. That is striking, Michael, because a, she is separating herself from President Obama whose administration is lobbying for that (INAUDIBLE) passage of that treaty and secondly, it's a signal that she really does believe that she has to be mindful of her left flank. She has to take her democratic primary somewhat seriously.

SMERCONISH: With regard to her democratic opponents at least as they exist thus far, Kevin Madden, I have been saying it's almost like a boxing analogy. Back in the age of Tyson he needed a tune-up before he would fight somebody who was like Evander Holyfield, when you look at Martin O'Malley, right, do you see someone you say this is the appropriate tune-up because she can defeat him and yet he's going to get her in fighting shame?

MADDEN: I think that's right. One of the real big appeals that Martin O'Malley has is that he's seen as this blue collar regular guy and one of the big challenges that Hillary Clinton has is that, you know, she kind of have this velvet rope candidacy. She doesn't really relate very well. She doesn't really mix well with the crowds.

So I think if Martin O'Malley can be a sparring partner and I think that's the perfect analogy and actually help her begin to understand and relate to a lot of the middle-class voters that so many Democrat primary - that makes up a lot of the big democratic primary fight, I think that may really help her in a general election.

SMERCONISH: You know, maybe I need to update my playbook and refer to Floyd Mayweather and Manny Pacquiao. I guess the question, Kevin, that I would ask you is this, because you've been in the position, you offered this kind of advice to Mitt Romney, we all belittle the fact that oh my good, look at the media running after her because of the Chipotle eating incident.

MADDEN: Right.

SMERCONISH: How do you contain that if you are running her campaign? Because the media has a feeding frenzy for details.

MADDEN: Yes. Well, I think the media more than anything - I think that excitement is driven by the fact that they very, very, very rarely get a chance to - to talk to Hillary directly. It is a velvet rope candidacy. She is kept in a bubble away from the media so any little chance or morsel that they get they're going to make a big deal out of it. She has to come out of that. She has to sort of come down and start meeting more regularly with reporters, parrying reporters' questions. That's going to remain a big problem for her as she continues to go. She's not going to be able - voters want to know that she has a level of credibility when it comes to saying "I'm just like you."

But she can't do that if she's constantly kept away from the media, constantly kept away from voters or when she does meet voters she's in this very sterile manufactured environments that they have with these roundtables that are part more pageantry than they are reality.

SMERCONISH: Quick final question for Jonathan Martin in New Hampshire. Who should we have our eye on on the second tier who could pop, who could break out, given the events this weekend?

MARTIN: It depends who you count as second tier. If you believe that Marco Rubio is second tier, then I think you should very much watch him because I think he is going to be somebody that gets a long look here in New Hampshire and beyond.

SMERCONISH: Gentlemen, thank you. Two A-listers, I really appreciate the analysis of Kevin Madden and Jonathan Martin.

MADDEN: Great to be with you.

SMERCONISH: Coming up. Are six and 10-year-old siblings too young to play in their neighborhood unsupervised? Welcome to the world of free range parenting. Some parents call it a teachable moment and others say it's just plain crazy. You want to hear the debate we'll be having.

And the mean girl tirade that got an ESPN reporter suspended. Should she keep her job? We'll talk about it.



SMERCONISH: Welcome back. By now you have surely seen the video of the ESPN reporter Britt McHenry lashing out at a tow company employee and you probably have a strong opinion about whether she should be fired. Let's all take another look.


BRITT MCHENRY, ESPN REPORT: Do you feel good about your job? So I could be a college dropout and do the same thing? I have a brain and you don't. Maybe if I was missing some teeth. They would hire me, huh? They look so stunning because I'm on television and you're (INAUDIBLE) in a trailer, honey. Lose some weight, baby girl.



SMERCONISH: ESPN suspended McHenry for one week, now a lot of people, including me, think that's a slap on the wrist and then instead she ought to be fired.

I have the perfect guest to talk to about all of this. "USA Today" columnist Christine Brennan, the dean of female sport anchors and she mentored Britt McHenry. Christine, thanks for being here. Did you ever see this side of her previously?

CHRISTINE BRENNAN, "USA TODAY" COLUMNIST: Michael, no, I did not. I would say I'm a Northwestern grad, and Britt did her graduate work at Northwestern, so I mentor one student every quarter. I mentor dozens of students over the course of the year. So mentored her back in 2008 and then I've seen her on the sidelines a few times at games, of course, where obviously, we're in the same profession, many of us are.

So said hello and chatted. We had one meal together and no, of course, never saw anything like this.

SMERCONISH: I don't think that she helped herself with the apology. I'm going to put it up on the screen so that folks can read it, at least a portion of it. "In an intense and stressful moment I allowed my emotions to get the best of me and said some insulting and regrettable things. As frustrated as I was I should always choose to be respectful and take the high road. I'm so sorry for my actions and will learn from this mistake."

I thought, Christine, that something was missing from the apology.

BRENNA: An apology to the woman who was, of course, taking all the abuse from Britt McHenry that night. Absolutely, Michael. Here's what I would have done and I wish that someone was advising Britt on this, maybe they are, I don't know. A video. The power of video is so strong, we know that. We know that from Ray Rice domestic violence story in September. We know that from this. We know it from politics, everything, video. You've got to meet video with video.

If Britt is to have any chance to rehabilitate herself, the idea that if she had gotten up in front of this, Michael, with a video herself, talking about how horrible I was, this was awful, apologizing by name, assuming that the woman was fine with her name being used, saying she's going over to meet with her. Do anything possible. A video of contrition to the highest level, might have given her a chance to have everyone see a different side of Britt McHenry as opposed to, of course, this side.

That did not happen. And I'm just amazed in this video world that we're in, Michael, that people don't realize the magnitude of the video and the power of it and how it's going to go viral and to, in this case, if you are Britt McHenry, you've got to do something ahead of time. Where were her advisers to help her? Not that it would have mitigated what we saw in the video. It's horrible, but at least moving forward to try to do something in a positive way.

SMERCONISH: I wonder if ironically, the tow company is going to save her because they, too, have put out a statement and here's what it reads in part. "Parking enforcement is contentious by nature. At the same time neither Gina, our lot clerk, nor our company have any interest in seeing Britt McHenry suspended or terminated as a result because of her comments."

I should point out, Christine, that when I discussed this on my radio program this week, I had a number of callers and one of our producers who had familiarity with this particular towing outfit believe me, they don't have many fans out there so maybe it was a little CYA on their part but they're the ones extending the olive branch.

BRENNAN: They are but they are also the ones that leaked the video. It's almost as if, Michael, they realized the tidal wave - they've unleashed a tidal wave and they are standing there saying, "wait, wait, wait, one minute." I don't understand that strategy at all. But clearly maybe they didn't realize what they were unleashing.

I would say this, again, to whom much is given much is expected. My late great father, of course, told me that so many kids growing up in America have heard that. We're so fortunate to get a chance to do what we do and this video world is unrelenting and will come at you and we know that. If you're in a world as Britt is, as I am, as you are, and to have any moment like this. First of all, as a human being, you shouldn't but then with this great gift of being able to be a journalist in sports, it's just - it's unbelievable to me that anyone would not understand the magnitude of what they're doing and try to stop it as quickly as possible.

SMERCONISH: So here's my out of the box thought for Britt McHenry. The best thing for her career is that she be fired. Because we are a very forgiving nature - nation and if we see that she was harshly punished, we will root for her eventually, but if people turn on their television and they see her and think she only got a slap on the wrist, they'll hold it against her in perpetuity.

BRENNAN: I don't disagree with that, Michael. I don't at all. I hope for Britt, she's only 28 - I hope there is - that she can carry on in some form. What are we as a society if you just say that's it and we'll never going to hear from you again. That makes no sense to me.

In fact, I think, again, if she gets out there with some interview somewhere, on video where she can show people some other side of her, a side that I know as a very nice person over the years, if she can do that, she needs to do that and the quicker the better.

But you're right. And hopefully there's some good that comes from this. Hopefully she can really shine a light on the mistakes that she made and hopefully some respect for people like Gina, you used the name, her name is out there, and the opportunity to say, hey, this was awful.


And this woman is doing an important job and let's have respect for her.

SMERCONISH: Well, how great it is to have you here. Thank you, Christine Brennan.

BRENNAN: Thank you, Michael, appreciate it.

SMERCONISH: Coming up a couple fighting back after allegations of neglect. It's all because they let their six and 10-year-old children walk alone in their neighborhood. They're called free range kids and it's sparking a major debate. So, who should decide what's best for kids? Child protective services or their parents?

Plus, three former public school educators sentenced to 20 years in prison for their role in a standardized test cheating scandal. Was the sentence too harsh. A former jailer who himself went to prison is about to give his take.



SMERCONISH: Welcome back. A Maryland couple is getting a wave of support online in their fight for free range parenting. The couple sparked a debate when they let their six and 10-year-old children walk alone in their neighborhood. The kids were picked up by local police after a neighbor saw them unattended and called 911.


UNIDENTIFED MALE: I am walking my dog.


UNIDENTIFED MALE: Two kids that are unaccompanied. And they've been walking around for probably about 20 minutes by themselves.

UNIDENTIFIED FEMALE: OK. How old do they look?

UNIDENTIFED MALE: Maybe 7. Little boy maybe about 7, 8. Little girl maybe about 6.

UNIDENTIFIED FEMALE: OK. And you don't see any parents around them?


UNIDENTIFIED FEMALE: OK. Have you talked to them? Do you know why they are just walking around by themselves?

UNIDENTIFED MALE: No. They came up and asked to pet my dog. I let them. And that was it.


SMERCONISH: Their parents were accused of neglect but supporters of free range parenting want government agencies to back off saying they are teaching their kids to be more independent.

Let's get reaction from both sides of this debate. Joining me now is Leonore (INAUDIBLE). She is the founder of the Free Range Parenting Movement and she also sparked controversy after letting her nine-year- old son ride the New York City subway alone.

Robert Siciliano is a personal security expert and he's been known to put GPS tracking devices on his kids. Robert, why couldn't the man walking the dog simply have engaged in conversation with the two young kids and said, "hey, what are you up to," instead of involving the law?

ROBERT SICILIANO, PERSONAL SECURITY EXPERT: I'm not sure that it would be necessary for him to engage with them in conversation to begin with. I don't see why that would be necessary and calling the law, I'm not entirely sure that was necessary either.

SMERCONISH: Well, how should it have been handled?

SICILIANO: I'm not sure it should have been handled at all. If those kids weren't in any immediate harm or immediate danger, I don't see why law enforcement was called in for any reason.

SMERCONISH: OK. I think we have agreement on this. LENORE SKENAZY, FOUNDER FREE RANGE PARENTING: Good-bye. My work here

is done.

SMERCONISH: Wait a minute, though. We live, Lenore, in such dangerous times.


SMERCONISH: I know because Nancy Grace told me so.

SKENAZY: Nancy Grace told me the same thing the other day.

SMERCONISH: But I see these child abductions constantly being trumpeted in the news. Do we live in such dangerous times?

SKENAZY: Thank you for the softball. We live in actually a 50-year crime low at the moment. And sometimes people say, well, of course, crime is low against children, we're keeping them inside. But crime is low against, you know, car theft and burglary and murder, rape, assault, those are all down.

So the fact is that crime is down and if your mom was sending you out to play, anytime in the '60s, '70s, '80s or '90s she was sending out in more dangerous times than today?

SMERCONISH: Robert, do you agree with that that we live in far less dangerous times than we were all raised?

SICILIANO: I don't necessarily agree with that. While there may have been several million people victimized say, 20, 30 years ago, there are still, you know, millions of people victimized today. Statistically there are still plenty of victims out there. There's still plenty of crime occurring every day.

The FBI crime clock ticks and it claims a victim. While free range parenting and this movement to some degree is necessary due to common sense being thrown out the window with zero liability policies - I'm sorry, zero tolerance policies, you know, you need perspective.

And the perspective is there are still millions of people with heartache due to violent crimes.

SMERCONISH: Tell me how you raise your own children. Because I made reference at the outset to you using GPS tracking, I believe you have a German shepherd, I believe you also rely on video cameras. Give me a little bit of your philosophy.

SICILIANO: So mu business is security and security is all about layers of protection. The more layers you have in place, the more secure you're going to be. While there's no such thing as 100 percent security having various technologies in place, having various systems in place. Education is of primary importance. Of course, your brain is your best defense weapon. Adopting all of these measures of protection is not a bad thing.

It doesn't make a person paranoid. It makes them in relative control to a certain degree and again there's no such thing as 100 percent but, you know, these are things you can and should do. You wear your seat belt because you know there's a chance you could be involved in a motor vehicle accident. You should be aware of your personal security and teach it to your children because bad things can happen.

The inevitability of something bad happening in the course of a lifetime is not a matter of if but when. How bad is a different discussion. So people need to be educated and aware and they need to take control of their personal security. To go in the opposite direction and to think that it can happen to me or it can happen my family at all is being irresponsible.

SMERCONISH: What's the free range response to that?

SKENAZY: The free range response is I love helmets and car seats and seat belts, things you can keep doing your everyday activities without changing them.

[09:30:02] The idea that there has to be somebody with children all the time and otherwise they're not safe or watching them somehow electronically is a new one and I find it weird. When I was a kid and my mom sent me out to walk to this school, as we've discussed, already the crime rate was higher, she wasn't feeling like she had to follow me or hold my hand, and actually when I got to the corner and I needed to cross, the crossing guard back then was 10.

So, the idea that suddenly 10-year-olds are so vulnerable and shouldn't be out in the world is a really new one and I think it's because we're overestimating danger and I think we've really starting underestimating kids across the board and we think of them in terms of danger at all times.

SMERCONISH: Why did you turn loose your son at 9 on the New York City subway? What was the thought process?

SKENAZY: The thought process was he'd come to us, my husband and me, and said, will you please take me someplace and let me find my own way home on the subway here in New York City where we live. And we had to talk about it. And we though, does it make sense. And we made sure that he knew how to read a map. Obviously, he speaks the language.

We're all on the subways all the time including him. So, he was very familiar with it. There's safety in numbers 6 million people ride the subway every day and altogether it seemed like if he was ready, we were ready. And I wouldn't have let him do it if I thought it was a crazy, dangerous thing. I let him do it because it seemed like a normal part of life.

SMERCONISH: Robert, what do you make of that attempt to give a child independence, Lenore's decision to allow her 9-year-old ride the New York City subway alone?

ROBERT SICILIANO, PERSONAL SECURITY EXPERT: So, I don't necessarily think that we are overestimating danger. I think we're under- preparing our children to respond to potentially dangerous situations. Growing up none of us were really properly educated or informed as to what to do stranger danger is somewhat of a myth.

But I think that overall, parents today are in a certain amount of denial that they don't -- while they may be helicopter parents, while they may be there and think they're protecting their kid, they're not necessarily preparing them for the world that can at times be dangerous and I think that if you don't properly educate and inform the parent as to how to teach that kid personal security responsibility, that kid's not going to be able to navigate the world responsibly.

Putting your child on the subway, you know, is a leap in faith. As long as you have taken that kid on that subway a number of different times, prepared them for different situations, you know, be able to react to certain situations, OK. But at the same time, there are too many parents out there that aren't doing that properly.

And if you're not educating your kids, if you don't know what the risks are, and you're not properly informed yourself, then it is inevitable that something bad is going to happen to you and your family.

If you don't have a home security system today, in my opinion, that's being irresponsible.

SMERCONISH: Quick final thought, Lenore?

SKENAZY: I think we should all prepare our kids for the world and one of the ways they get to be more safe and street smart is gradually giving them freedom and not always watching them and being with them and that's what free range kids is about. Not about being freewheeling, about being safe and sane and letting your kids become part of the world like we are.

SMERCONISH: Lenore Skenazy, Robert Siciliano, thank you both for being here. We appreciate you.

Coming up, nine Atlanta educators convicted in a nearly decade-long cheating scandal. The judge calling it the sickest thing that's ever happened in that town and he's thrown the book at them, sending top administrators to prison for their role. Did the judge go too far?

Plus, a 78-year-old man on trial for having sex with his own wife.


[09:37:37] SMERCONISH: Welcome back.

It was high drama in a Georgia courtroom this week after a judge dropped the hammer on former Atlanta school educators who were convicted of conspiring to cheat on state standardized tests. Three of the defendants who the judge said were at the top of the food chain were sentenced to 20 years in prison, which means they will serve seven years behind bars.

In case you missed it, take a look at how testy things got after the sentence came down. (BEGIN VIDEO CLIP)

UNIDENTIFIED DEFENSE ATTORNEY: Your Honor, I am making a motion for you to recuse yourself in respect to my client since are you not making your decisions based -- apparently, you're going back and forth on a motion.


JUDGE: You sit down or I'm going to put you in jail. If you yell at me, point at me --

UNIDENTIFIED DEFENSE ATTORNEY: You've been yelling at me, judge.


SMERCONISH: The sentences were higher than what prosecutors recommended. So, what I'd like to get to is whether the judge took the proper path to lock up these teachers. And I know just the guy to talk to about all of this.

Bernard Kerik is the former New York City police commissioner. He ran the prison system in New York City. He himself was sent to prison for fraud. He's also written a new book that's called "From Jailer to Jailed: My Journey from Correction and Police Commissioner to Inmate."

Bernard Kerik joins me now.

Three of these administrators sentenced to 20 years. They have to do seven. Five individuals sent away for 1 to 2 years and the prosecutors in many of those cases had requested half of that.

So was the judge imposing this stiff sentence? What do you make of it?

BERNARD KERIK, FORMER NYC POLICE COMMISSIONER: I think he should have just taken them out and shot them. You know, because that's what he did. He gave them a death sentence. Twenty years?

In fact, I think under Atlanta, the Georgia state law, second-degree murder is ten. Ten. You can kill somebody and get ten.

He gave these people 20 for a nonviolent crime. This is -- this is typical of a system where we over-punish. I'm not saying these people shouldn't be held accountable. If they were wrong, they should. But there's ways --

SMERCONISH: What would you do? What would the punishment be if Bernard Kerik were signing it?

KERIK: I would say they serve a minimal prison sentence and community service, real community service. I heard the whole 2,000-hour community service thing. The reality is that's never going to happen, because they're going to be completely useless.

[09:40:02] They're doomed to failure once they're convicted. Once they do their time. What are they going to do as far as community service goes?

SMERCONISH: You were in a minimum security camp. I think that's the proper way to describe it, based on what I read in your book. If an individual gets seven years, what kind of time are they doing?

KERIK: If they get seven, if it was a seven-year sentence he's going to a minimum security.

SMERCONISH: What if it's 20 and you have to do seven?

KERIK: No, if he's sentenced to 20 years, that person is going to a medium or high facility. So you are taking nonviolent people and you are sticking them in an arena with the worst of the worst, the guys doing 20, 25, 30 -- murderers, rapists, you name it, and you're going to take these people. You're going to suck out of them whatever -- whatever societal values they have and now, you're going to institutionalize them and you're going to make sure that they are complete criminals by the time they leave.

SMERCONISH: CNN viewers, some of them, sitting on the sofa right now, saying, wait a minute, Bernard Kerik, he was the 40th police commissioner of New York city. And he went away himself.

What, did you come out soft?

KERIK: No. Listen, I'm no different today than I was 20 years ago. Bad people do really bad things belong in prison. You have to protect society.

But we're putting nonviolent people in prison with sentences for violent people. That's not what the system was created for. These people could be held accountable. But not in a way where you destroy them professionally, personally for life, for eternity, and that's what we're doing.

SMERCONISH: Something I was reminded of when I read your book, 90 percent of those behind bars they're coming out sometime.

KERIK: And that's -- you know, I know there's people watching that would look at this and say, well, they deserve what they got.

OK, don't be so quick to think they deserve what they got because you're going to get what you get when they come out. You're taking people that for the most part have been good people that made a mistake. You're institutionalizing them, you're teaching the worst of the worst character traits you can find and then you're sending them back into society as a completely useless person because they can't get a -- they're never going to get hired again, never.

They're not going to find a job. They're going to be useless in society. They're going to lose their kids. Their kids are now going to grow up as children without parents, which is worsening society.

SMERCONISH: I'm glad you brought that up because there's a ripple effect, a collateral effect, that you write about in the book. I'm going to read to you a paragraph from your own book. "Think of it this way: A young man 31 years old arrested for a first-

time nonviolent drug offense is sentenced to nine years in federal prison. He has an 11-year-old son whose collateral sentence is that by the time the boy turns 20, he will have spent nearly half his lifetime without his father and perhaps the most critical time in the child's life when he will need his father most, he will be without him."

I don't know the parents status of the administrators and teachers, I assume they've got kids.

KERIK: That's exactly what you're doing to them but we're doing it around the country by the thousands. We're taking first-time, low- level, nonviolent drug offenders and giving them 10 and 15 years in prison, nonviolent kids.

And then we sit around in Washington and we're curious as to why the recidivism rate isn't dropping. Why aren't people in the workforce? You're taking them out of the workforce. You're guaranteeing they'll never be in the workforce. Don't ask.

SMERCONISH: Fair to say if you and I had this conversation before you went away and something like this was in the news, Bernard Kerik would have given me a different answer? You had an epiphany before you went away?

KERIK: Honestly, I wouldn't have given you an anxious. I would have watched it on the news and went about my business.

I didn't know what I know today. I didn't see what I've seen in the last five, six years. And I can tell you that every prison administrator, every law enforcement executive, they don't know what the system is really like. They can't unless they've been there.

SMERCONISH: Bernard Kerik, thank you for being here.

KERIK: Thank you, sir.

SMERCONISH: Coming up, a 78-year-old former lawmaker is on trial for having sex with his sick wife. More on the extraordinary criminal case unfolding this week in an Iowa courtroom.


[09:48:25] SMERCONISH: Welcome back.

A rare and salacious criminal case unfolding in an Iowa courtroom where former lawmaker is accused of third-degree felony sexual abuse for sleeping with his wife who suffered from dementia. The question at the heart of the case whether Donna Lou Rayhons consented to have sex with her husband, 78-year-old Henry Rayhons. He took the stand in his own defense yesterday. Take a listen.


UNIDENTIFIED MALE: (INAUDIBLE) the end of this, there is a discussion about Donna's cognitive state and her ability to give consent to sexual activity. Right?


UNIDENTIFIED MALE: Do you remember when the discussion got to that point?


UNIDENTIFIED MALE: And do you remember what you said?

UNIDENTIFIED MALE: Yes, I said it's not a problem.

UNIDENTIFIED MALE: And why did you say that's not a problem?

UNIDENTIFIED MALE: Because I -- I indicated -- my thoughts were -- or my definition of that was intercourse.

UNIDENTIFIED MALE: And what about intercourse?

UNIDENTIFIED MALE: I did not have intercourse. That wasn't in that particular --




SMERCONISH: The case is unprecedented, and there are strong opinions on both sides of the debate.

Dr. Arthur Caplan is the nation's foremost bioethicist. He's been credited for bringing the intersection of philosophy and medicine into the public discourse. He's also the founding director of the division of medical ethics at NYU.

Dr. Caplan, both of them 78. It's a second marriage for both. They met while they were singing in the church choir.

[09:50:02] She had dementia, there's no doubt about that. She has since passed.

My question to you -- should criminal charges have been brought against him?


Absolutely not. I mean, we have a technical ethics description for this, it's bonkers. And I'm ready to say it's bonkers on steroids.

Why don't we have a family meeting? Why are we in court with a third- degree felony charge against this guy for having sex with his wife? I understand she's demented. But the courtroom isn't the place to resolve any issues, if in fact there were issues about this. SMERCONISH: Well, how do we protect her? Because a physician charted

-- he was asked by a social worker and he charted that she was unable to give consent. How do we protect her against being taken advantage of, even by the husband?

CAPLAN: Well, you know, in any situation where you're facing dementia, because of Alzheimer's or stroke or other problems, and you know that that's going to come, I think you need to sit down and talk about what you want.

Do you want to go to an assisted living home? Would you try to stay home? Do you want to have extraordinary medical measures taken? Do you want to continue to have sexual relations?

What the moral of this story is, is you've got to plan these kinds of things, you don't settle them at the last minute, hauling this poor soul into court and accusing him of a felony crime against his own wife.

SMERCONISH: You and I had a number of conversations years ago on radio. In the aftermath of the Terri Schiavo case, and your mantra at the time was that everybody needs a living will.

Now, listen, this is really unpleasant subject matter to be discussing and unpleasant, I'm sure for children or adults to be discussing with their senior citizen parents. My question to you is this -- do we need now, a separate category in the living will, that speaks to this kind of a circumstance? Sex among seniors? If they are put in an institution?

CAPLAN: I think that's a great question and I'll answer it and say yes, I think we do. I think it's important to cover all bases, I think if you're headed to an institution.

Let's say you're not suffering dementia. You're going into assisted living. Maybe you meet somebody there. Maybe you want to have some romance. Is that OK with the institution? Are your kids going to be protesting somehow?

So the conversation is critical. Let me add something else, Michael in a lot of these places, there's no privacy. The institution wasn't set up to allow people private space, you want to think hard about whether the institution should be changing to give people the opportunity to spend time alone even when they're married, even if they're cognitively with it.

SMERCONISH: Read the tea leaves as to what's going on in this particular case. Do you think it's been impacted by the fact that it was a second marriage for each, and that there were children by virtue of their first marriages? In other words, do you think that maybe her children were unsettled by this prospect in a way that perhaps if they had had biological children, we wouldn't be having this conversation?

CAPLAN: Yes. It's a great question, too.

I do. I don't know the facts here, I don't know the background, but if I was going to speculate, I'd say something is wrong with this felony business and all of these convictions, instead of having a family meeting, instead of sitting down and talking this through.

I have a feeling the children from the first marriage, maybe there's some objection to the second marriage. Maybe they didn't like that maybe they weren't happy with this guy.

Again I don't know. But something is off. Winding up in the courtroom when you know, a couple that was pretty happy and no one is challenging the fact that the second marriage was loving and happy for both of them. Boy, that's -- that's applying a kind of 2x4 to kill a mosquito.

SMERCONISH: All right. Bottom line, as Dr. Caplan says, have the conversation, as unpleasant as it might be.

Switching gears because you're the nation's foremost bioethicist. I need to ask you about Dr. Oz. As you know, he's come under fire, some want his faculty position at Columbia withdrawn. A, what's going on? B, what will be the future?

CAPLAN: Well, the problem with Dr. Oz is that he's been promoting fringe cures, unproven things. You know, he's kind of got us eating blueberries to solve our cancer and prevent our Parkinsonism and make our Alzheimer's go away and he's promoting too much in my terms, fairy dust.

This is getting the medical community upset. After all, he's the most visible, most famous doctor in America. He's got a big platform. People really listen to him. They go out and buy the stuff that he promotes.

I think it's probably too harsh to say let's fire him from Columbia. But it isn't too harsh to say let's pull him out of some of these leadership positions that he has as a vice chair, other things that he's running, because those are more rewards.

[09:55:05] And think right now, he's too far off the acceptable path, as soon as he gets back on it, restore all the positions. I do worry about a lot of the stuff that he promotes, just not backed up by evidence.

SMERCONISH: I took note of the fact that the opposition to Dr. Oz came from a number of physicians and that the chief signatory to the letter was from Stanford, and, of course, the complaint was against his role at Columbia. And I should point out, thus far, Columbia is saying they're standing for academic freedom.

Dr. Arthur Caplan, thanks as always. We appreciate you being here.

CAPLAN: Thanks, Michael.

SMERCONISH: We'll be right back.


SMERCONISH: Hey, thank you so much for joining me.

Please don't forget you can follow me on Twitter if you can spell Smerconish. I'll see you next week.