MORE ABOUT THIS BOOK
A sense of justice is central to human endurance. No matter what wrongs we suffer or misfortunes we withstand, the belief that justice will ultimately prevail is part of what keeps us going. Nowhere is this belief more deeply felt than in the United States, and with good reason, for over the decades we have made progress, however haltingly and imperfectly, in dealing with poverty, racism, sexism, homophobia, and many other challenges.
But at present our system of justice is facing more than one challenge that it seems unable to come to grips with, perhaps because our faith in it may blind us to its shortcomings and contradictions. How can we be fully proud of a system that locks up more human beings than are imprisoned in any other nation? How can we have confidence in a system that too frequently convicts innocent people—often on the basis of dubious forensic science and shaky eyewitness testimony—and sometimes even coerces them into pleading guilty to crimes they never committed? How can we accept a system that imposes the death penalty when we know full well that a meaningful number of those sentenced to death will later be proved innocent? How can we pretend we are adhering to the Constitution when we have created a criminal justice system in which the jury trial has all but been eliminated? How can we claim that justice is equal when we imprison thousands of poor Black men for relatively modest crimes but almost never prosecute rich, white, high-level executives who commit crimes having far greater impact?
How can we justify using the convenient excuse of the never-ending “war on terror” to narrow rights guaranteed by the Constitution? How can we accept Congress’s and the Supreme Court’s limiting to the point of near extinction the hallowed constitutional right to habeas corpus relief? How can we applaud the Supreme Court’s view of its ever-more-confined role in combating excess by the president?
Finally, how can we tout our system of civil justice as a remedy for wrongs when the great majority of Americans cannot afford to go to court at all, and are often kept out of court even when they wish to avail themselves of its benefits? In these and other important ways, our system of justice is failing its mission.
That our current system of justice is beset by hypocritical pretensions, conundrums, paradoxes, and shortcomings is not a realization I came to easily. When, after serving as a federal prosecutor and then a criminal defense lawyer, I first became a federal judge a quarter century ago, I still thought the system pretty much delivered justice as it was supposed to and just needed some tweaking here and there to get it right. But my subsequent experience and that of my judicial colleagues too often revealed that our system of justice was seriously flawed, and after a while I thought it my duty to speak out about these deficiencies. I tried to do this, first and foremost, in the actual cases that came before me; but over time, recurring patterns emerged in those cases that made me believe I had an obligation to bring these shortcomings to public attention as well.
About six years ago, I began to write articles calling attention to these problems for The New York Review of Books (to whose editors I owe a huge debt). This book (which was completed in the summer of 2020) further develops the themes of those articles and also addresses additional limitations of our legal system that have become evident to me from the work I have done on var-ious committees of the National Academy of Sciences, the MacArthur Foundation, and the National Commission on Forensic Science. Finally, the book offers some specific suggestions on how to deal with these problems; but it also argues that real reform must come from an increased recognition by everyday people that our system of justice is broken and needs to be fixed.
THE SCOURGE OF MASS INCARCERATION
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. It is time for more of us to speak out.
The basic facts are not in dispute. As of 2019, more than 2.2 million people were incarcerated in U.S. 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 United States is about one and a half times that of second-place El Salvador and third-place Turkmenistan, and more than six times the rate of neighboring Canada. Another 4.75 million Americans are subject to state supervision imposed by probation or parole.
Much of the increase in imprisonment has been for nonviolent offenses, ranging from drug possession to property theft. And even though crime rates in the United States have mostly declined since the early 1990s, the number of incarcerated persons has either risen or remained at levels above 2 million, partly because more people are being sent to prison for offenses that once were punished with other measures, but also because the sentences are longer. For example, even though the number of violent crimes has materially 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. In addition, at least 500,000 of the 2.2 million persons now incarcerated have not been convicted of any crime but are simply there because, having been arrested, they could not make bail.
And 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 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, with at least an equal number subject to probationary supervision. If current rates hold, one-third of all Black men will be imprisoned at some point in their lifetimes. Another approximately 440,000, or 20 percent, of the 2.2 million U.S. prisoners are young Hispanic males.
This mass incarceration, which also includes about 800,000 white and Asian males, as well as over 100,000 women (most of whom committed nonviolent offenses), is the product of statutes that were enacted, beginning in the 1970s, with the twin purposes of lowering crime rates in general and deterring the drug trade in particular. These laws imposed mandatory minimum terms of imprisonment on many first offenders. They denied bail to many persons arrested on minor charges that were eventually dropped. They propounded sentencing guidelines that initially mandated, and still recommend, very substantial prison terms for many, if not most, offenders. And they required lifetime imprisonment for many recidivists. These laws also substantially deprived judges of sentencing discretion and effectively guaranteed imprisonment for many offenders who would have previously received probation or deferred prosecution, or who would have been sent to drug treatment or mental health programs rather than prison.
The unavoidable question is whether these laws have succeeded in reducing crime. Certainly crime rates have come down substantially from the very high levels of the 1970s and 1980s. Overall, crime rates have been cut nearly in half since they reached their peak in 1991, and, even taking into account the unusual spike in shootings in some cities that accompanied the stresses of the COVID-19 pandemic, crime rates in general are now at levels not seen in many decades. A simple but powerful argument can be made that, by locking up for extended periods the people who are most likely to commit crimes, we have both incapacitated those who would otherwise be recidivists and deterred still others from committing crimes in the first place.
But is this true? The honest answer is that we don’t know. And it is this uncertainty that makes changing the status quo so difficult: Why tamper, the argument goes, with what seems to be working unless we know that it isn’t working?
There are some who claim that they do know whether our increased rate of incarceration is the primary cause of the decline in crime. These are the sociologists, the economists, the statisticians, and others who assert that they have “scientifically” determined the answer. But their answers are all over the place. Thus, for example, a 2002 study by the sociologist Thomas Arvanites and the economist Robert DeFina claimed that, while increased incarceration accounted for 21 percent of the large decline in property crime during the 1990s, it had no effect on the similarly large decline in violent crime. But two years later, in 2004, the economist Steven Levitt—of Freakonomics fame—claimed that incarceration accounted for no less than 32 percent of the decline in crime during that period.
Levitt’s conclusions, in turn, were questioned in 2006, when the sociologist Bruce Western reexamined the data and claimed that only about 10 percent of the crime drop in the 1990s could be attributed to increased incarceration. But two years after that, in 2008, the criminologist Eric Baumer took still another look at the same data and found that they could support claims that increased incarceration accounted for anywhere between 10 and 35 percent of the decrease in crime in the 1990s.
As these examples illustrate, there is nothing close to an academic consensus on the proportion of the decrease in crime attributable to increased incarceration. In 2014, a distinguished committee of the National Research Council of the National Academy of Sciences, after reviewing the studies I have mentioned as well as a great many more, was able to conclude only that while most of the studies “support the conclusion that the growth in incarceration rates reduced crime … the magnitude of the crime reduction remains highly uncertain.”
To illustrate the difficulties, consider a study titled “What Caused the Crime Decline?”—published in February 2015 by the Brennan Center for Justice at NYU Law School—which purports to show that increased incarceration has been responsible for only a negligible decrease in crime. One cannot help but be impressed by the sheer scope of the study. The authors identify the fourteen most popular theories for the decline in crime in the last few decades and attempt to test each of them against the available data.
Five of the theories involve criminal justice policies: increased incarceration, increased numbers of police and prosecutors, increased use of statistics in devising police strategies to combat crime, threat of the death penalty, and enactment of right-to-carry gun laws (which theoretically deter violent criminals because potential victims might be armed). Another four of the theories involve economics: changes in unemployment, income, inflation, and consumer confidence. The final five theories involve environmental and social factors: aging population, decreased alcohol consumption, decreased crack use, legalized abortion, and decreased lead in gasoline (which theoretically reduces the supposed tendency of lead fumes to cause overaggressive behavior).
The primary findings of the Brennan Center study are that “increased incarceration has had little effect on the drop in violent crime in the past 24 years” and has “accounted for less than 1 percent of the decline in property crime this century.” To reach these striking results, the authors rely (as did most of the earlier studies cited above) on the social scientist’s favorite method, a multivariable regression analysis that “controls for the effects of each variable on crime, and each variable on other variables.” But as anyone familiar with regression analysis knows, it rarely speaks to causality, as opposed to correlation; and even to show correlation, the analysis involves a lot of educated guesswork. The authors admit as much, but they seek to downplay the level of uncertainty, stating: “There is always some uncertainty and statistical error involved in any empirical analysis.” But when you are dealing with matters as difficult to measure as how much of the decrease in crime can be attributed to everything from decreased alcohol consumption to increased consumer confidence, your so-called estimates may be little more than speculations.
In an attempt to adjust to this difficulty, the authors state the percentage of crime decrease attributable to each given factor as a range. For example, increased police numbers accounted, according to the study, for 0 to 5 percent of the decline in crime between 1990 and 2013. But if you take the low end of each of the ranges, the fourteen factors analyzed in the Brennan Center study collectively accounted for as little as 10 percent of the decline in crime over that period; and even if you take the high end of each of the ranges, the various factors still accounted for only 40 percent of the decline in crime. Under any analysis, therefore, either the decline in crime in the last twenty-five years or so was chiefly the product of forces that none of the leading theorists has identified, or (as seems more likely) the regression analysis used by the authors of the Brennan Center study is too imperfect a tool to be of much use in this kind of situation.
My point is not to criticize the Brennan Center study. It is in many respects the most ambitious and comprehensive study of its kind undertaken to date. But as the National Research Council report points out in discussing the many similar studies that, as noted, led to a wide range of results, there are simply too many variables, uncertainties, estimates, and challenges involved in the question to rely on a regression analysis that is little more than speculation dressed up as statistics. The result is that one cannot fairly claim to know with any degree of confidence or precision the relative role of increased incarceration in decreasing crime.
Put another way, 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 $180 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 disenfranchised, unemployable ex-convicts, many of whom 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.
So why do we have mass incarceration? More than anything, it is because the laws that were passed in response to the substantial rise in crime rates in the thirty years between 1960 and 1990 remain politically popular. These laws varied widely in their specifics, but they had two common characteristics: they imposed higher penalties, and they removed much of judicial discretion in sentencing.
The most pernicious of these laws were the statutes imposing mandatory minimum terms of imprisonment. Although there were a few such laws prior to 1970, thereafter Congress passed numerous laws dictating relatively harsh mandatory minimum terms of imprisonment for a very wide variety of criminal violations. Most notably, these laws imposed mandatory minimums of five, ten, and twenty years for various drug offenses, and as much as twenty-five additional years for possession of guns during drug trafficking. But they also imposed mandatory minimum terms of imprisonment for such widely varying offenses as possession of child pornography, aggravated identity theft, transportation of aliens into the United States for commercial advantage, hostage taking, unlawful possession of antiaircraft missiles, assault on U.S. service members, stalking other persons in violation of a restraining order, and fraudulent use of food stamp access devices. The dictate common to all these laws was that, no matter how minor the offender’s participation in the offense may have been, and no matter what mitigating circumstances might have been present, the judge was required to send the offender to prison, often for a substantial number of years. So, for example, a courier who, in return for a few hundred dollars, delivered a small quantity of drugs to one or two customers might still face a mandatory minimum prison sentence of five years, ten years, or even more if she was part of a loosely connected ring that collectively distributed a large quantity of the drugs.
Throughout the 1970s and 1980s, many of the fifty states—with the full support of the federal government, which hugely increased its funding for state prisons during these years—passed similar mandatory minimum laws, and some went a step further and imposed mandatory minimum sentences of life imprisonment for recidivists (California’s “three strikes” law being a noteworthy example). Not to be outdone, Congress not only passed “career offender” laws similar to the “three strikes” statute but also, in 1984, enacted, with bipartisan support, the federal sentencing guidelines. These guidelines, although initially intended to minimize disparities in sentencing, quickly became a vehicle for greatly increased sentences for virtually every federal crime, chiefly because Congress repeatedly instructed the Sentencing Commission to raise their levels.
Moreover, these so-called guidelines were, for their first twenty-one years, mandatory and binding. And while, in 2005, the Supreme Court declared that they were unconstitutional unless discretionary, federal judges are still required to treat them as the starting point for determining any sentence, with the result that they continue to be followed in most cases. More generally, both state and federal judges became accustomed to imposing prison terms as the norm; and with the passage of time, there were fewer and fewer judges on the bench who had ever experienced a gentler approach.
But why, given the great decline in crime in the last quarter century, have most of the draconian laws that created these harsh norms not been repealed or at least moderated? Some observers, like Michelle Alexander in her influential book The New Jim Crow (2010), assert that it is a case of thinly disguised racism. Others, mostly of an economic determinist persuasion, claim that it is the result of the rise of a powerful private prison industry that has an economic stake in continuing mass incarceration. Still others blame everything from a continuing reaction to the “excesses” of the 1960s to the never-ending nature of the “war on drugs” to the sheer increase in the number of both police officers and prosecutors, who view it as their role to ensure public safety by sending more and more people to prison.
While there may be something to each of these theories, a simpler explanation is that most Americans, having noticed that the crime-ridden environment of the 1970s and 1980s was replaced by the much safer environment of today only 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, people in most communities are not willing to take the chance of such an experiment, and occasional new spikes in one crime or another reinforce that rigidity.
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. What is called for in such circumstances is leadership: those whom the public does respect should point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the solution to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms but also in terms of wasted lives, devastated families, and racial bias.
Until quite recently, that leadership appeared to be missing in both the legislative and executive branches, since being labeled soft on crime was politically dangerous. In late 2018, however, Congress passed, and the president signed, the aptly named First Step Act, which retroactively reduces mandatory minimum terms of incarceration for nonviolent drug offenses. This has already led, in my court as elsewhere, to substantial reductions in sentences for nonviolent offenders, who were often serving mandatory terms of thirty years and more. But, as the name indicates, this is but a first step in reducing mass incarceration, and has in fact reduced incarceration totals by only a small amount. It does not begin to eliminate federal mandatory minimums altogether. It does not address the situation in the state courts, where most mass incarceration occurs. It does nothing to address the common tendency of both state and federal prosecutors to charge suspects with the most serious offenses available, thereby greatly increasing the likelihood of prison time. And most fundamentally, it does nothing to erase the now ingrained assumption that a prison term is the “natural” and best response to social misconduct.
So 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 judges who are forced to impose sentences that many of us feel are unjust and counterproductive. It is probably too much to ask state judges in the thirty-seven states where judges are elected to adopt a position that could be characterized as “soft on crime.” But what about the federal judiciary, which is protected by lifetime tenure from political retaliation and, according to most polls, is generally well regarded by the public as a whole?
On one issue—mandatory minimum laws—the federal judiciary has been consistent in its opposition and clear in its message. 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; indeed, most federal judges continue to support the prison-favoring federal sentencing guidelines, which, while no longer mandatory, still provide the basis on which most federal sentences are formulated. As for Congress, while occasionally approving reductions in the guidelines recommended by the Sentencing Commission, it has much more often required the Sentencing Commission to increase the prison time reflected in those guidelines, thereby further supporting mass incarceration.
Yet even within the judiciary there is some modest cause for hope. Several brave federal district judges—such as 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—have for some time openly denounced the policy of mass incarceration. More recently, a federal appellate judge, Gerard Lynch of New York, wrote: “The United States has a vastly overinflated system of incarceration that is excessively punitive, disproportionate in its impact on the poor and minorities, exceedingly expensive, and largely irrelevant to reducing predatory crime.”
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?
Copyright © 2021 by Jed S. Rakoff