“Why this love affair in this country with lengthy incarceration, to our great embarrassment as a civilized nation?”
This question was posed rhetorically by Judge Raymond J. Dearie of the Federal District Court in Brooklyn at an event sponsored by the New York Criminal Bar Association. Judge Dearie is the latest jurist to voice frustration and discontent with the state of the U.S. criminal justice system. Last month, Judge Frederic Block in a bench ruling noted that the courts ought to consider the collateral damage wrought by their decisions on the losers of the system such as ineligibility for public housing and denial of certain government benefits. In March, Judge John Gleeson used his final bench ruling to vocalize his preference of avoiding prison sentence whoever possible.
The trend of judges speaking out against a corrupt system of jurisprudence: highly encouraging because it illustrates that legal insiders are finally coming to grips with the problems. The opinions of these progressive judges offers a refreshing counterweight to those who display a pathological hostility towards the notion that the system is flawed. And if the trend continues, the momentum behind reform will reach a critical mass.
The judges quoted above appear to be exercising a tradition of outspokenness by judges in the Eastern District of New York against the systemic injustices within the criminal justice apparatus. This “Eastern District effect” was a custom started by Judge Jack B Weinstein who served on the federal bench in Brooklyn. Judge Weinstein, in 2011, gave a walking tour of the Louis Armstrong Houses in Bedford-Stuyvesant pointing out the pernicious effect of segregation and discrimination on minority residents there. In a similar vein, Judge Dearie highlighted the damaging knock-on effects of mandatory minimum sentencing guidelines and accused the system of ignoring the socioeconomic roots of crime.
Other prominent figures outside the Eastern District have also issued scathing appraisals of fundamental issues such as how the criminal legal system determines guilt. Most notably, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit in California has questioned why so few defendants are acquitted at trial; is it because jurors almost always start with a strong presumption that some wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt?” he asks.
This is a striking comment by a federal judge and its implications are frightening, especially to those who believe in the core legal-theoretic principals of ‘reasonable doubt’ and ‘innocent until proven guilty’. However, questions like those posed by Judges Dearie and Kozinski are necessary in order to force a serious discussion about the functionality of the justice system. By asking the uncomfortable questions, a democracy can begin to make substantive progress in freeing innocent convicts and imposing only reasonable sentences on those who break the law.