Private: Mass Incarceration and the 'Fourth Principle'

by Jed S. Rakoff, U.S. District Judge for the Southern District of New York; Adjunct Professor, Columbia Law School

*The following is a speech given by the author at the Harvard Law School Conference on Lawyers as Professionals and Citizens on April 10, 2015.

I have read with great interest the brilliant essay on Lawyers as Professionals and Citizens by Ben Heineman, Bill Lee, and David Wilkins that is the subject of the conference, and I want to build my little talk around the fourth ethical responsibility they enunciate in that essay, namely, the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.  I want to discuss that responsibility – which I will refer to here simply as the “Fourth Principle” – as it applies to lawyers and as it applies to judges; and while I recognize that the essay that is the subject of this conference focuses particularly on corporate and economic issues, I want to address this Fourth Principle in terms of other issues, such as war and such as imprisonment.

I was introduced to this Fourth Principle, in effect, as a very junior associate at the New York City firm now known as Debevoise & Plimpton.  When I arrived at the firm in 1970, the leader of the firm, Francis T.P. Plimpton, was just completing his two year stint as President of the New York City Bar Association, then known as the Association of the Bar of the City of New York.  Although that organization was founded in 1870 for the specific purpose of seeking the removal of corrupt judges beholden to the man called “Boss” Tweed, by the middle of the twentieth century the Association had become a somewhat stuffy “Establishment” enclave, widely perceived (though perhaps unfairly) as subservient to the narrow interests of big-firm corporate lawyers.  On paper, Plimpton was more of the same.  Educated at Exeter, Amherst, and Harvard Law School, Plimpton could literally trace his Massachusetts forebears back to 1630.  And his chief fame as a lawyer consisted of being a highly skilled draftsman of corporate debentures – whatever the heck that is.

But once Plimpton became President of the New York City Bar Association, the real Francis Plimpton emerged: a man of principle and courage, who, more than any other single person, opened that Bar Association to racial and gender diversity, to concern with pro bono representation and public service, and to a focus on broad societal issues.  As Sheldon Oliensis, another prominent lawyer of that time, stated, “He [Plimpton] thought that there was no issue on which the Association could not be heard.”  In a period when much of the legal establishment was reacting negatively to what it perceived as the lawless excesses of the ‘60s, Plimpton not only embraced a very broad view of the role of the lawyer in society, but also saw that role as one of promoting change and progress.

Not everyone agreed that this was the natural role of lawyers, let alone of the organized bar; and this debate came to a head in 1972, when Plimpton, though no longer President of the New York City Bar Association, proposed that the Association adopt a resolution that read as follows:

“Resolved: that the Association strongly opposes the continued American involvement in the war in Indochina and strongly urges the immediate withdrawal of all American military forces therefrom.”

Can you imagine a single bar association today that would even consider promulgating a similar resolution in comparable circumstances?

The opposition to Plimpton’s resolution was led by another giant of the New York Bar, Whitney North Seymour, a former President of the Association, who would later also be President of the American Bar Association.  Seymour argued that, whether you were for or against the war in Viet Nam, the merits of that debate were not the appropriate subject of a bar association resolution that, on its face, did not even refer to any legal issue.  Plimpton might have responded that legal issues were involved, e.g., the President’s power to bomb Cambodia (which is why the resolution referred to “Indochina” rather than simply “Viet Nam”).  But that was not the tack he took.  Instead, Plimpton responded that lawyers, because of their central role as leaders in our society, could not duck the responsibility to speak out on the central national issue of the time.  In effect, he embraced what I am calling the Fourth Principle.

Plimpton’s resolution was duly adopted by a substantial majority vote.  And as a young associate at his law firm, I was mightily impressed.  By his actions, Plimpton reminded me of what attracted so many of us to the law in the very place: a desire to promote justice, writ large.  If, as is often alleged (and as Messrs. Heineman, Lee, and Wilkins suggest),  there is widespread malaise among many lawyers today, is it not because they have had to repress or subordinate that quest for justice that led them to want to be lawyers in the first place?

Of course, even lawyers devoted to the Fourth Principle may have different views as to what societal issues are of such central concern that lawyers should feel a professional responsibility to speak out about them.  Nevertheless, I want to suggest one such issue, and I submit that it is one that is so deeply connected to the administration of law that even a Whitney North Seymour would have no difficulty seeing it as an appropriate subject for bar association resolutions and the like: and that is the issue of mass incarceration in our country today.

But I should mention at the outset that the relative failure of organized bar associations and lawyers in general to speak out on this issue pales in comparison to the silence of the judges, who, I submit, have a special duty to be heard on this issue.  Indeed, the commentary to Canon Four of the Code of Conduct for United States judges expressly encourages federal judges to speak out on issues relating to the administration of justice in general and criminal justice in particular.  Yet, 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.

The basic facts are not in dispute.  More than 2.2 million people are currently incarcerated in U.S. jails and prisons, a 500 percent increase over the past 40 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 U.S. is 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 4.8 million Americans are subject to the state supervision imposed by probation or parole.

Most of the increase in imprisonment has been for non-violent offenses, such as drug possession.  And even though crime rates in the United States have declined consistently over the last 24 years, the number of incarcerated persons has continued to increase over most of that period, both because more people are being sent to prison for offenses that once were treated 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 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.

This mass incarceration – which also includes about 800,000 white and Asian males, as well as over 100,000 women (the great majority of whom committed non-violent 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 propounded sentencing guidelines that initially mandated, and still recommend, substantial prison terms for many other offenders.  And they required life-time 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 rates of the 1970s and 1980s that gave rise to these laws.  Overall, crime rates have been cut nearly in half since they reached their peak in 1991, and they 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: for, the argument goes, why tamper with what seems to be working unless we know that it isn’t working?

There are some who claim that they do know the answer to whether our increased 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 sociologist Thomas Arvanites and 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, economist Steven Levitt – he of “Freakonomics” fame – claimed that incarceration accounted for no less than 58 percent of the violent crime decline in the 1990s and 41 percent of the property crime decline during that period.

Levitt’s conclusions, in turn, were questioned in 2006, when the sociologist Bruce Western re-examined the data and claimed that only about 10 percent of the 1990s crime drop 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 it could support claims that increased incarceration accounted for anywhere between 10 percent and 35 percent of the crime decrease in the 1990s.

As these examples illustrate, there is nothing close to an academic consensus on the proportion of the crime decrease attributable to increased incarceration.  Only last year, a distinguished committee of the National Academy of Science, after reviewing not only the studies I have mentioned but also 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.”

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 $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.  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?  As mentioned, it is the product of laws that were passed in response to the substantial rise in crime rates that began in the 1960s and continued through the 1980s.  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 – for example, criminal contempt of Congress carried a mandatory minimum sentence of six months in prison – beginning in the 1970s Congress passed laws dictating much harsher mandatory minimum terms of imprisonment for a very wide variety of criminal violations.  Most notably these laws imposed mandatory minimums of five, 10, and 20 years for various drug offenses, and as much as 25 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 United States servicemen, stalking other persons in violation of a restraining order, fraudulent use of food stamp access devices – and much more besides.  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 be present, the judge was required to send him to prison, often for a substantial number of years.

Throughout the 1970s and 1980s, many of the 50 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 case).  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 21 years, mandatory and binding.  And while, in 2005, the Supreme Court declared that they were unconstitutional unless discretionary, federal judges were still required to treat them as the starting point for any sentence determination, with the result that they continued to be followed in most cases.  More generally, judges both state and federal 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 even 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, 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 ‘60s to the never-ending nature of the “war on drugs.”

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 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.  What is called for in such circumstances is leadership: the capacity of those whom the public does respect to point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the key 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 societal values.  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.  Recently, however, there have been some small signs of progress.  For example, in 2013, Attorney General Holder finally did away with the decades-old requirement that federal prosecutors must charge offenders with those offenses carrying the highest prison terms.  And in the last Congress, a bill to eliminate mandatory minimum sentences for non-violent drug offenders was endorsed not only by the Department of Justice, but also by such prominent right-wing Republican Senators as Ted Cruz and Rand Paul.  On the other hand, prosecutors still have discretion to charge offenders with the most serious offenses available, and they usually do.  And the aforementioned bill to modify the applicability of mandatory minimum sentences never reached a vote.

As for the organized bar, the American Bar Association, to its great credit, has increasingly spoken out about the dangers of mass incarceration and, most recently, has created a Task Force on Overcriminalization to suggest alternatives.  But no other bar association, so far as I am aware,  has openly denounced mass incarceration, called for outright repeal of mandatory minimum laws, supported across-the-board reductions of statutory and guideline imprisonment levels, or otherwise taken the kind of forceful positions that would cause the public to sit up and notice.

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?

On one issue – opposition to 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 60 years, the Judicial Conference has consistently and vigorously opposed mandatory minimums 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.  And Congress, while occasionally approving guidelines reductions recommended by the Sentencing Commission, has, as mentioned, 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, expressed his agreement (albeit in an academic article) that “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.”

Perhaps the most encouraging judicial statement was made just a few weeks ago, on March 23, 2015, when 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 it 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 still, his willingness to confront publicly even some of the evils of mass incarceration should be an inspiration to all other judges so inclined.

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?  We may be the Third Branch, but we have yet to learn the Fourth Principle.

Criminal Justice, National Security and Civil Liberties, Prison Policy/Incarceration, Sentencing Guidelines