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October 9, 2019

Might as well face it, "we're addicted to jail"

156aa1d654fcab80912437f490d1ce5eWith apologies to Robert Palmer, this recent Hill commentary by David Oscar Markus has me wanting to riff on a rock classic:

Whoa, you like to think that we're a nation that's free, oh yeah
It's closer to the truth to say we can't let people be
You know you're gonna have to face it, we're addicted to jail

The last phrase of my tortured lyric here is the headline of the Hill commentary that should be read in full.  Here are its closing flourishes:

We issue jail sentences like candy, to address every known problem that we have.  Drug problem — jail.  Using your family member’s address to get your child into a better school — jail.  Paying college athletes — jail.  The United States jails more people than any other country in the world.  We have higher incarceration rates than Russia, Iran, and Iraq — by a lot.  We tolerate innocent people sitting in jail when we only suspect that they might have done something wrong, as one man did for 82 days when he brought honey into the United States.  82 days.

Even though oversleeping doesn’t seem to be a rampant problem, the judge in Deandre [Somerville]’s case admitted that he was trying to solve a broader jury “misconduct” issue with jail.  This is not how it should be.  The jail solution has become much worse than the diseases it was trying to cure. So what do we do about it?

One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary.  As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one).  A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government.  Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan.  Ohio State fans would never tolerate it.  And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.

In many cases, former prosecutors have never represented a person sentenced to jail.  They have never visited a client in jail.  They have never explained to a family — while the family cried — that their loved one is going to be taken from them.  As prosecutors, they have only put a lot of people in jail.  And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.

We have many problems in this great country, and our addiction to jail is high on the list.

October 9, 2019 at 10:37 PM | Permalink


The article conflates two problems with the suggestion that they are connected. Even if there were more defense counsel or civil rights lawyers on the bench there would still be anecdotes of failures of the criminal justice system that resulted in jail like the ones described. As a result, the authors concerns have not been shown to be sufficiently correlated. Does he have a study to prove his point? What exactly is his point, jail vs no jail or sentences that are too long. Given the anecdotes, seems like the former to me.

Even if one assumes that we are addicted to jail, the idea that an “easy fix”is to appoint more defense lawyers is ignorant in my view. In my experience, some of our best judges for the government have been former defense lawyers. Maybe it’s to appear fair, or maybe it’s because they’ve seen and heard all of the lies and excuses for bad behavior. My sense is the latter and frankly, I think local culture has more to do with who gets what than whether the judge was a prosecutor or defense lawyer.

Of course, the author doesn’t want that, he wants defense lawyer judges like himself except this Harvard law grad surely won’t take the pay cut from his likely lucrative gig of trying “criminal cases and argu[ing] criminal appeals throughout the country.”

Finally, that there are no former defense lawyers on the Supreme Court is interesting, but we could hardly confuse Sotomayor as a former prosecutor despite the fact that she was.

Posted by: David | Oct 10, 2019 9:12:05 AM

I seriously question the assumption that defense lawyers as a group would impose shorter sentences, or more alternative sentences, than prosecutors. That has not been my experience as a trial lawyer for forty years. In addition, as I frequently urge my friends, "never make me a judge."

Posted by: Michael R. Levine | Oct 10, 2019 10:27:07 AM

Well, perhaps the answer is to have fewer prosecutors.

Posted by: beth curtis | Oct 10, 2019 4:12:47 PM

Jails have high re-incarceration rates. They call them frequent flyers. If you release them during pretrial they don't show up.
There are not that many of them but because the return frequently and stay longer than most pretrial detainees they use up a lot jail beds.

Posted by: John Neff | Oct 12, 2019 5:41:00 PM

. My family and I are victims of the system. Sentenced to 40 years under the 70% law likely to never be free again. did not ever have a chance the prosecutor in the case asked the states crimelab technician to "reconfigure" the DNA results , the technician testified too this but they still got away with it.. so they went from a we can't really tell to it's a scientific match! In prison serious health problems have developed and there is no help from the prison infirmary. likely won't live long enough to see the end of the appeal process. Prisons and the for profit private corporations that run their infirmary's are all about profit. They arnt trying to let anybody go they enjoy too much tax payer money to do that. So they drum up new reasons to build more warehouses to store innocent people in. Only about 2% of people in prison are really so violent that they should be separated from society. But what do I know I'm just living the nightmare... And one last thing the very worst thing about being locked up and taken away is watching what it does to your family and watching your mother age about 30 years in 5 years. The reason the system is so broken is greed . They don't want it to change...

Posted by: Anarchy Army176 | Oct 16, 2019 1:49:24 AM

I disagree with the comments that having more defense-minded judges will not affect the system. The system is affected anytime there is diversity of backgrounds on the bench. While the article might over-emphasize the impact of defense and civil rights attorneys' appointments to the bench, any bit of diversity helps.

Posted by: Kate Toth | Oct 16, 2019 10:34:13 AM

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