The Silence of Judges on Mass Incarceration

Via Sentencing Law and Policy: U.S. District Court Jed Rakoff gave a speech at Harvard Law School last Friday about mass incarceration in the U.S. and the responsibilities of lawyers and judges. He says judges need to be more outspoken in their criticism. Bloomberg BNA has reprinted it in its entirety. For those who want the short version, here is a portion of the last paragraph.

In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality. More haltingly, we have also made some progress in our treatment of the poor and disadvantaged. But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt. And while this treatment is mandated by the legislature, it is we judges who mete it out. Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?

Judge Rakoff is not suggesting the strides we have made towards racial equality extend to the criminal justice system. To the contrary, he writes [More...]

Whom are we locking up? Mostly young men of color. Over 840,000, or nearly 40 percent, of the 2.2 million U.S. prisoners are young African-American males. Put another way, one in nine African-American males between the ages of 20 and 34 is currently in prison, and, if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes. Another 440,000, or 20 percent, of the 2.2 million U.S. prisoners are Hispanic males.

He aptly notes that the current state of mass incarceration tied to the wrong-headed mandatory minimum sentencing laws enacted in the 70's as part of the War on Drugs. He counters those who claim our crime rate has dropped because more criminals are locked up:

The supposition on which our mass incarceration is premised – namely, that it materially reduces crime – is, at best, a hunch. Yet the price we pay for acting on this hunch is enormous. This is true in the literal sense: it costs more than $80 billion a year to run our jails and prisons. It is also true in the social sense: by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons, many of who have learned in prison how better to commit future crimes. And it is even true in the symbolic sense: by locking up, sooner or later, one out of every three African-American males, we send a message that our society has no better cure for racial disparities than brute force.

On the silence of federal judges:

For too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.

While many federal judges have signed letters expressing their opposition to mandatory minimum sentences, he says, not enough have spoken out against mass incarceration:

And where in all this stands the judiciary? In some ways, this should be our issue, not just because sentencing has historically been the prerogative of judges, but also because it is we who are forced to impose these sentences that many of us feel are unjust and counter-productive. It is probably too much to ask state judges in the 37 states where judges are elected to adopt a stance that could be characterized as “soft on crime.” But what about the federal judiciary, protected by lifetime tenure from political retaliation and, according to most polls, generally well-regarded by the public as a whole?

There's a lot more to Judge Rakoff's speech, and I recommend reading the whole thing.

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    Rakoff is right, but (5.00 / 2) (#1)
    by scribe on Wed Apr 15, 2015 at 08:32:39 AM EST
    there are a couple problems with federal judges:
    1.  At the trial level they pretty-uniformly come from the ranks of (a) corporate attorneys from large firms and (b) career prosecutors in DoJ.  There are, to be sure, a few who started off as state-court judges but many of those are on the bench because of their political regularity and support.  Similarly, there are a small fraction who started off as magistrate judges.

    But, as judges, they keep with them the mentality and attitudes they had when doing the jobs that got them in a position to be nominated and appointed:  favoring corporations over individuals and prosecutors over defendants.  That's to be expected:  the mere fact of their appointment is evidence of their "success" and, if you're succeeding, there's absolutely no reason to change anything.  Why mess with success?

    To be fair, their experience in some of the large-firm aspects of practice can be ("is") necessary in some of the cases that come before them.  Patent cases are almost-exclusively the province of big corporate firms and with good reason - there's a huge amount of specialized knowledge required.  I can't see handing a patent  case to a judge who's spent his/her lawyering career to date doing slip-and-falls.

    But, still, in their prior lives the vast majority of them who were not career prosecutors will have had no experience with lying cops putting people of color behind bars, let alone in piercing those lies.  I cannot think of the last time someone who made a career as a criminal defense attorney was appointed to the federal bench.  Just doesn't happen.  And if a president were to have the temerity to do that, just what chance do any of you think that nominee would have in getting through the current Senate?  Somewhere between "none" and "zero".

    And in their prior lives, if they are not themselves a minority, it's pretty likely their experience in dealing with people of color will be one in which the people of color either were "The Other" or the housekeeper, nanny or other servant.  Not an equal.  This is more likely to be true for Republicans than Democrats, but the experience I'm describing is one resulting more from class differences than race.  And the pool from which federal judges are drawn is one distinguished by class privilege.

    So, in living from their experience to date, a substantial number of federal judges will have neither the inclination to go where Rakoff suggests nor the ability to see the defendant's perspective.

    2.  Any judge who was to consider going where Rakoff suggests will have been practicing long enough to remember the example made of a federal judge in NYC back about 1994.  In short, that judge had the temerity to accept a defense argument made in support of a suppression motion that running from the cops was not evidence of probable cause to search (and find dope) but rather a reasonable response to the NYPD (given its history of predation on the communities of color).  In other words, it was reasonable for young men of color to run from the police.  Suppression motion granted.

    This resulted in a hue and cry the likes of which I haven't seen until, maybe, when the Furies descended on Indiana Governor Pence a couple weeks ago over that "religious freedom" law.  Maybe even more than that.  Giuliani went nuts.  Ranks of Capitol Hill Republicans went nuts.  They were talking about impeaching the judge.  (This was before the Rethugs took Congress, so it wound up being more talk than action.)  Even Bill Clinton talked against the ruling, IIRC.

    The government made a motion for reconsideration after a week or two of this.  The judge granted it and reversed himself.  The storm subsided.  The judge kept his job.

    A regular, loyal Republican can beat his wife bloody and keep his judgeship, but rule in favor of defendants and look forward to the treatment that NY judge got.  Lesson taught and remembered.

    I'm certainly all in favor of judges speaking out (5.00 / 4) (#2)
    by Peter G on Wed Apr 15, 2015 at 10:10:07 AM EST
    but isn't the more important point that judges regularly impose excessive sentences that no law requires them to impose?  Many people are sentenced to prison who could better be handled on probation or community sanctions of some kind, and those who are sentenced to prison are almost uniformly sent away for too long. Most of those terms are not "mandatory minimums," although those are also a part of the problem. I have a client - a middle class black woman - who will begin a 15-year federal sentence on Friday for her lesser (but not insignificant) role in a relative's mortgage fraud scheme. Even putting aside the impunity extended to the real perpetrators of housing fraud in recent years, that's just ridiculous.  Same thing for those Atlanta school teachers who created false test scores. The sentences regularly imposed in state and federal courts around the country are indefensible on public policy grounds. Judges need to stop doing it.

    Sure, (none / 0) (#3)
    by Reconstructionist on Wed Apr 15, 2015 at 02:21:48 PM EST
     but would the end result that is most important become more likely if more judges spoke out more forcefully. Would some of their peers either find them more persuasive because they are peers or simply think the one's speaking out provide them with "cover" for imposing less draconian sentences.



    How often do judges get impeached (5.00 / 1) (#4)
    by vicndabx on Thu Apr 16, 2015 at 12:37:10 PM EST
    Is it just a matter of whether they run afoul of some local politician?  If that's the case, I see no reason why judges can't be more free-thinking - regular citizens aren't paying attention enough to criticize.

    I think the larger concern for judges is CYA over Wille Horton type blowback.  How do you convince a person to risk their livelihood?

    It's very rare (none / 0) (#5)
    by Reconstructionist on Thu Apr 16, 2015 at 12:58:55 PM EST
      but does happen.


        Samuel Chase is the only one in history whom I believe was directly impeached for the political nature of rulings from the bench. He was a Federalist and when Jefferson took office and Jefferson was adamantly opposed to judicial review (Marbury v. Madison, etc.) believing it was an "anti-democratic" attempt by the judiciary to undermine constitutional separation of powers and checks and balances and seize too much power So, Jefferson seized on some controversial actions by Chase in a few cases to get rid of him. He was impeached but acquitted by the Senate. Historians often assert the ultimate acquittal cemented the status of an independent judiciary and the principle of judicial review.


    Excessively long sentences (5.00 / 2) (#6)
    by NYShooter on Thu Apr 16, 2015 at 07:16:56 PM EST
    is one thing; The treatment inmates receive once in prison is quite another.

    I don't need to be a lawyer to claim that the Legislatures that pass the laws regarding prison sentences don't include the sadistic treatment prisoners routinely receive once they begin their sentences.

    To my knowledge the punishment prisoners are granted is the loss of their freedom......period. The beatings, rapes, and other assorted assaults on their dignity are extra-legal add-ons offered by the guards, and wardens.

    The mere fact that most prisoners will, someday, be released should be enough incentive to insure that they don't come out more experienced in anti-social behavior than when the went in.

    Some incarcerated persons (4.00 / 2) (#7)
    by oculus on Thu Apr 16, 2015 at 07:38:25 PM EST
    assault their fellow inmates w/o the assistance of wardens and/or guards.

    It's always one or two people (none / 0) (#12)
    by sj on Fri Apr 17, 2015 at 11:10:50 AM EST
    that ruin it for everybody.

    I mean seriously. Do we have to drop the bar to the lowest common denominator?


    I'm confused, sj (5.00 / 2) (#13)
    by Peter G on Fri Apr 17, 2015 at 12:42:13 PM EST
    Are you referring here to prisoners or to blog-commenters?

    Ha! (5.00 / 2) (#14)
    by sj on Fri Apr 17, 2015 at 01:28:36 PM EST
    Now that you mention it, I'm not sure myself.

    Oh, Snap! (5.00 / 1) (#8)
    by NYShooter on Thu Apr 16, 2015 at 08:10:15 PM EST
    How disappointing is it to anticipate your normally clever response, and get this inanity instead?

    Answer: Very.

    Are you replying (5.00 / 1) (#9)
    by Zorba on Thu Apr 16, 2015 at 09:01:16 PM EST
    to oculus's response to you?  Because, if you are, Shooter, I agree with you.

    Yes... (5.00 / 2) (#10)
    by ScottW714 on Fri Apr 17, 2015 at 08:21:20 AM EST
    ...like a computer response, expected and void of human thought.

    If only the guards had some control of the prisons they guard...  

    But the worse part, we treat like like them like animals and then we are completely mystified as to why they act like animals once released and complain that they never should have been released to begin with.  Then demand lower taxes and tougher laws.


    Yeah, I was, Z (5.00 / 2) (#11)
    by NYShooter on Fri Apr 17, 2015 at 08:47:38 AM EST
    was so shook up I forgot to hit the "reply? key.