White-Collar Crime

Is Rakoff the Only Judge Not In Love with DOJ?

A new essay by Judge Rakoff bemoans the tacit judicial support of mass incarceration. But why are judges backing destructive policies?

By  
on

Judge Rakoff is at it again.

In another great piece in the New York Review of Books, “Mass Incarceration: The Silence of the Judges”

If there is a point to any of the columns I write here, it’s probably best summarized by this passage at the end of Rakoff’s piece:

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.

People accused of white-collar crimes and blue-collar crimes are both treated poorly. In some sense, Rakoff is wrong: our criminal justice system is a dark triumph of democracy and equality; our government treats you poorly no matter who you are.

But, more specifically, in this piece Rakoff goes straight at mass incarceration and asks one of the big questions — why is it that judges haven’t said more about our epidemic of incarceration? Judges are on the front lines, why aren’t they raising this?

Here’s a sample:

Sponsored

For too long, too many judges have been too quiet about an evil of which we are a part: the mass incarceration of people in the United States today. It is time that more of us spoke out.

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.

So, Rakoff asks, in the face of all of this, where is the judiciary? Why aren’t they saying more?

To be fair, Rakoff notes that there are some judges taking a stand — “Lynn Adelman of Wisconsin, Mark Bennett of Iowa, Paul Friedman of the District of Columbia, and Michael Ponsor of Massachusetts, as well as former federal judges Paul Cassell and Nancy Gertner.” And there are surely other great judges who are taking a more judicious approach to the sentencing guidelines in a less public way as they go about their task of sentencing.

Rakoff also notes that the Judicial Conference has opposed mandatory minimums, but the Judicial Conference’s criticism only goes so far: “nowhere in the [Judicial Conference’s Report’s] nine single-spaced pages… is any reference made to the evils of mass incarceration; and, indeed, most federal judges continue to be supportive of the federal sentencing guidelines.”

The Sentencing Commission’s data bears this out — the guidelines still drive sentencing. As Rakoff says and any criminal defense lawyer knows, the guidelines often go up but they very, very rarely go down.

Sponsored

So, why are the judges silent?

I think there are two reasons, neither of which is in Rakoff’s column (Rakoff’s piece is, to be clear, long on discussion of the problem but short on diagnosis).

The biggest reason we haven’t seen a groundswell of criticism, is because many judges are partly responsible for mass incarceration. Many are former federal prosecutors. One can say that the judiciary doesn’t have much power but to follow the law as Congress writes it, but the executive branch sure has choices. Indeed, Congress gets a lot of the heat for making laws with mandatory minimums, but those laws don’t do much without a Department of Justice using those mandatory minimums to fill prisons. If any one entity has built our legacy of mass incarceration — at the federal level at least — it’s DOJ.

Lots and lots of federal judges are former federal prosecutors. A person who spent years putting a lot of people in prison is not going to be shocked to learn later that there are a lot of people in prison. Beyond that, judges are creatures of their legal environments. Even if a judge didn’t log time in a US Attorney’s Office, odds are that she swam in the same social and professional waters as a lot of federal prosecutors — and still does. To criticize folks in your own community, especially those in positions of such power, takes real strength, life tenure or no.

Sure, there are exceptions. And kudos to them. But the problem with mass incarceration stems from the Department of Justice. To criticize our prison size is to criticize DOJ. Judicial reluctance to criticize mass incarceration is just a consequence of not wanting to criticize DOJ.

Which is why Judge Rakoff is sui generis. DOJ, on matters of policy and individual cases, asks the judiciary to just trust it. And routinely judges do.

Topics

, , , , , , , ,