Rakoff: And Judges Too

There are a handful of federal judges who, while still on the bench, have chosen to speak out about the legal system in a way that doesn’t extol its virtues or mention that platitude that it’s the best anyone has created.  Easy as it may be tell the truth, even the ugly truth, when you’re no longer on the payroll, doing so when you still have enough juice to make it count is rare. Southern District of New York Senior Judge Jed Rakoff has, once again, proven himself a rare judge.

In the past, Judge Rakoff has discussed the infirmities of federal sentencing, the charade of junk science and coercing defendants into pleas.  That these are all related, and overlap, comes as no surprise to anyone engaged in the system.  In the New York Times Review of Books, Judge Rakoff goes in a different direction, and one where a sitting judge almost never treads: Mass Incarceration: The Silence of the Judges. Sure, we know about all these problems, but are judges the cure or the disease when it comes to mass incarceration?

The basic facts are not in dispute. More than 2.2 million people are currently incarcerated in US jails and prisons, a 500 percent increase over the past forty years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population. The per capita incarceration rate in the US is about one and a half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada. Another 4.75 million Americans are subject to the state supervision imposed by probation or parole.

Most of the increase in imprisonment has been for nonviolent offenses, such as drug possession. And even though crime rates in the United States have declined consistently for twenty-four years, the number of incarcerated persons has continued to rise over most of that period, both because more people are being sent to prison for offenses that once were punished with other measures and because the sentences are longer. For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.

And to add to the obvious, the imprisoned are disproportionately of color.

And whom are we locking up? Mostly young men of color. Over 840,000, or nearly 40 percent, of the 2.2 million US prisoners are African-American males. Put another way, about one in nine African-American males between the ages of twenty and thirty-four is now in prison, and if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes.

Judge Rakoff goes through the morass of studies seeking to show a connection, or lack thereof, with the spectacular drop in crime in the United States and the spectacular increase in incarceration.  While he runs through the studies in greater detail, the TL;dr version is: we have no clue. The studies conflict, and ultimately, it’s all just 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 whom have learned in prison how better to commit future crimes.

So why hasn’t the public reared its ugly head, elected politicians to end this waste and destruction? Rakoff explains:

[A] simpler explanation is that most Americans, having noticed that the crime-ridden environment of the 1970s and 1980s was only replaced by the much safer environment of today after tough sentencing laws went into force, are reluctant to tamper with the laws they believe made them safer. They are not impressed with academic studies that question this belief, suspecting that the authors have their own axes to grind; and they are repelled by those who question their good faith, since they perceive nothing “racist” in wanting a crime-free environment. Ironically, the one thing that might convince them that mass incarceration is not the solution to their safety would be if crime rates continued to decrease when incarceration rates were reduced. But although this has in fact happened in a few places (most notably New York City), in most communities people are not willing to take the chance of such an “experiment.”

This, then, is a classic case of members of the public relying on what they believe is “common sense” and being resentful of those who question their motives and dispute their intelligence.

All of which leads to the question of what has society’s henchmen, the judges, done about it? He distinguishes elected judges, who have to pander to a “tough on crime” public to get elected, from federal judges, who enjoy life tenure.

On one issue—opposition to mandatory minimum laws—the federal judiciary has been consistent in its opposition and clear in its message. 

Then again, mandatory minimums takes authority away from judges, giving an ulterior motive to their opposition.

As stated in a September 2013 letter to Congress submitted by the Judicial Conference of the United States (the governing board of federal judges), “For sixty years, the Judicial Conference has consistently and vigorously opposed mandatory minimum sentences and has supported measures for their repeal or to ameliorate their effects.” But nowhere in the nine single-spaced pages that follow is any reference made to the evils of mass incarceration; and, indeed, most federal judges continue to be supportive of the federal sentencing guidelines. (Emphasis added.)

In other words, nothing.  On the whole, the life-tenured judiciary not only hasn’t taken the lead, but has been pretty much good with their signing off on mass incarceration.  There are some judges who recognize their role in perpetuating prison nation, including one Supreme who said as much to Congress:

Justice Anthony Kennedy—the acknowledged centrist of the Supreme Court—told a House subcommittee considering the Court’s annual budget that “this idea of total incarceration just isn’t working,” adding that in many instances it would be wiser to assign offenders to probation or other supervised release programs. To be sure, Justice Kennedy was quick to tie these views to cost reductions, avoidance of prison overcrowding, and reduced recidivism rates—all, as he said, “without reference to the human factor.” Nor did he say one word about the racially disparate impact of mass incarceration. Yet his willingness to confront publicly even some of the evils of mass incarceration should be an inspiration to all other judges so inclined.

And yet, that offers little comfort to the defendants in the trenches.

But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt.

But aside from judges speaking and writing about the problem, Judge Rakoff offers no course of action for the judiciary to be part of the solution.  While he notes, “it is we judges who mete it out,” it is the rest of America who takes it.

4 thoughts on “Rakoff: And Judges Too

  1. BillyBob

    That judge is best,… who enjoys lifetime appointment.
    Judge Rakoff is the best. Somebody on the federal bench is paying attention.

  2. Pingback: Ghost dope, statutory minimum sentences in drug cases, Judge Jed Rakoff, U.S. Sen. Charles Grassley, chairman of the Senate Judiciary Committee, and the Des Moines Register editorial « Hercules and the umpire.

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