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May 7, 2015

"Mass Incarceration: The Silence of the Judges"

The title of this post is the headline of this lengthy piece authored by Judge Jed Rakoff appearing in The New York Review of Books.  Here is how it starts and ends:

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.

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 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.  Approximately 440,000, or 20 percent, of the 2.2 million US prisoners are Hispanic males....

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?

May 7, 2015 at 10:29 PM | Permalink


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good evening Doug.

Judge Rakoff says, the burden falls on "we judges, who are FORCED to impose sentences that many of us feel are unjust." And says 'this treatment is MANDATED by the legislature"

With all due respect, Judge Rakoff, like the vast majority of judges, state and federal, have forgotten what they learned during the second week of Con Law, when they studied Marbury v Madison. The United States is a constitutional democracy, unlike almost every other country in the world, in which the power of judicial review gives judges the authority to declare a particular sentence, as applied to a particular case, unconstitutional under the Eighth Amendment.

Following a hundred years of struggling with the question of whether the cruel and unusual punishment clause prohibits long sentences, instead of simply modes of punishment like boiling in oil and keelhauling, as Justice Scalia and Thomas still believe, it is now clear, in Graham v Florida, that "in accordance with the constitutional design" the power to trump the legislature on length of sentence is within the power of the judiciary.

Graham specifically adopted Justice Kennedy's three step test in his Harmelin v Michigan concurrence, as the appropriate constitutional vehicle to analyze as applied Eighth Amendment challenges.

Would that more judges exercised their power to strike particular sentences in particular cases. I believe it is a constitutional duty of judges

The progress begun in Ewing v California, where Ewing actually won the nose count of the seven judges, minus Scalia and Thomas. who simply won't admit the Eighth Amendment can trump the legislature, has been enshrined in Graham.

I wish judges exercised their power as judges to void some of the sentences Judge Rakoff complains about


Posted by: bruce cunningham | May 7, 2015 11:57:34 PM

I think Judges should deffinately take some active action against this Mass Incarceration & make more effort to speak out against the inhumanity in US jails and prison.

Posted by: Car Accident Settlement | May 8, 2015 1:53:51 AM

Car Accident,

I believe that encouraging judges to "speak out" is inconsistent with the role of judges in our governmental structure. Judges decide "cases and controversies" that come to them, not make general statements about political issues in the abstract.

In fact, the more a judge "speaks out" the more likely it is that they will forfeit their ability to serve as a judge. For example, many years ago a former Chief Justice of the NC Supreme Court was quoted in an article about capital punishment saying that he believed "the death penalty saves innocent lives."

The next time I had a capital case appeal come before the Supreme Court I moved to disqualify him from considering the case since he had already expressed his opinion that if my client died it would save innocent people from dying. That expressed opinion, I contended, unsuccessfully, revealed a lack of impartiality necessary to fairly evaluate the serious legal issues in the case.


Posted by: bruce cunningham | May 8, 2015 7:04:47 AM

"won the nose count of the seven judges, minus Scalia and Thomas"

nice math there

I'm sympathetic but the realistic nature of the thing & probably a reasonable application of 'cruel and unusual,' will still require judges to broadly follow the decisions of the elected branches regarding punishments here. Judges can do serious good here, especially along the margins, but something like the "war on drugs" can be stopped by judges only so much. If long sentences are "usual" in this country, the 8A will be a limited check.

To remind, at any rate, Justice Kennedy has repeatedly spoken against mass incarceration. At times, though he is often classed (with reason) with the conservatives, we remember why he was seen as a good option over Bork.

Posted by: Joe | May 8, 2015 10:06:08 AM

I demand Judge Jed Rakoff's home address.

Using the Kelo doctrine, I will seize all houses next to his. I will then use the Fair Housing Amendments Act of 1988 to fill each with twelve non-violent drug offense black thugs, without going through zoning hearings. I want to ram his clients, the ultra-violent black thugs, down his throat rather that down the throats of the hapless and politically powerless residents of the Hood.

Posted by: Supremacy Claus | May 8, 2015 10:59:33 PM

Your non-violent, street level dealers, the non-kingpins, and the non-organizers, chased a kid into my parents' apartment lobby. They fearlessly blasted away, as he begged for his life, and a bunch of neighbors were watching. Why? They felt protected by the vile lawyer like Judge Rakoff, a pro-criminal biased rent seeker. All should have been executed before age 18.

See this scene from American Gangster, in a similar vein, a true story.


Posted by: Supremacy Claus | May 8, 2015 11:51:04 PM

Anyone who has been forced to attend Catholic Mass on Sunday by their parents understands the words Mass incarceration.

Posted by: Liberty1st | May 9, 2015 2:54:42 PM

How dumb is Rakoff:

"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."

Revolving door justice leads to more crimes but fewer life sentences. Doug, why aren't you calling out this idiocy?

Posted by: federalist | May 10, 2015 5:00:18 PM

We all start out being locked up-- in the womb. Some folks yearn for it. Some do deed which get them locked up in a womb of sorts. If we could sort the bad eggs out early on and abort then we would not have any criminals. Sorting out the bad eggs is what the criminal justice system is all about. It just needs to start at a very early age. Certainly prenuptual, prenatal, or pretextual.

Posted by: Liberty1st | May 10, 2015 6:20:52 PM

From a knowledgeable lawyer I know.

"Rakoff is a politician. Nothing wrong with that, unless he declines to resign as a judge."

Posted by: Supremacy Claus | May 11, 2015 12:58:44 AM

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