Pubdate: Fri, 24 Jun 2016
Source: New York Times (NY)
Copyright: 2016 The New York Times Company
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Details: http://www.mapinc.org/media/298
Author: Alan Feuer

JUDGE CALLS FOR END TO 'MADNESS OF MASS INCARCERATION'

In a speech last week to a group of New York lawyers, a federal judge 
from Brooklyn assailed the criminal justice system in which he has 
worked for more than 40 years, saying that the country had to 
"jettison the madness of mass incarceration" and find an alternative 
to overly punitive sentencing to address the problem of crime.

The speech by Judge Raymond J. Dearie of the Federal District Court 
in Brooklyn, at an event sponsored by the New York Criminal Bar 
Association, may not have struck new ground in its critique of the 
justice system. But it did put him in the company of other federal 
judges in Brooklyn who in recent months have come forward with 
scathing appraisals of things such as mandatory sentencing guidelines 
and the disregard paid to the socioeconomic roots of crime.

Last month, for instance, Judge Frederic Block wrote an extraordinary 
ruling saying that courts should pay closer attention to how felony 
convictions affect peoples' lives with "collateral consequences" such 
as ineligibility for public housing and the denial of government 
benefits. And in March, just before he moved into private practice, 
Judge John Gleeson used his final decision from the bench to 
reiterate his own preference for handing down sentences other than 
prison time to some nonviolent offenders.

All three judges were, in some sense, working in the mold of Jack B. 
Weinstein, one of the longest-sitting judges on the federal bench in 
Brooklyn, which is formally known as the Eastern District of New 
York. In 2011, at age 87, Judge Weinstein went on a walking tour of 
the Louis Armstrong Houses in the Bedford-Stuyvesant neighborhood 
before issuing a novelistic ruling in a gang case. The nearly 
130-page decision discussed the housing project's paltry median 
income, its crumbling infrastructure and the effects of segregation 
and discrimination on its residents.

"It's true that there's a degree to which Eastern District judges 
have been vocal, but there are a lot more cases out there - they're 
just below the radar," Judge Gleeson said in an interview on 
Thursday. "I think there is some leadership going on in Eastern where 
the judges are inclined to speak about these problems. But they're 
not the only ones who see them and act on them."

Judge Dearie, a former prosecutor who once served as the United 
States attorney in Brooklyn, gave his speech on June 13 at the Loeb 
Boathouse in Central Park. He started by touching on themes that 
would not be unfamiliar to most criminal-justice reform advocates.

He confessed to wanting to "scream out in frustration, sadness and 
anger" at being forced by Congress to impose mandatory sentences on 
many defendants who appeared before him. He also said that most 
criminals are "not evil incarnate" but rather act out of "weakness, 
need, sometimes desperation." He added, "So many defendants I see are 
without schooling, skills, hope or direction, and no term of years is 
going to change that."

Insisting that his words were not a cry for a broad application of 
leniency - "Retribution and deterrence have their place in sound 
sentencing jurisprudence," he said - Judge Dearie nonetheless 
questioned the practice of prosecutors and law enforcement officers 
to gauge their success by how many years a defendant spends in prison.

"Why this love affair in this country with lengthy incarceration, to 
our great embarrassment as a civilized nation?" he asked, according 
to a transcript of the speech.

Other judges across the country have also taken issue with the system 
that they serve. In a case that drew on one of Judge Gleeson's 
orders, a federal judge in Oklahoma agreed last September to the 
early release of a cocaine smuggler who was sentenced to life in 
prison, ruling that the time he had already served - 30 years - was 
sufficient punishment. And Judge Alex Kozinski of the United States 
Court of Appeals for the Ninth Circuit in California wrote an article 
last year in the Georgetown Law Journal questioning why so few 
criminal defendants are acquitted at trial.

"Does this mean that many guilty men are never charged because the 
prosecution is daunted by its heavy burden of proof?" Judge Kozinski 
wrote. "Or is it because jurors almost always start with a strong 
presumption that someone wouldn't be charged with a crime unless the 
police and the prosecutor were firmly convinced of his guilt?"

In his own speech, Judge Dearie called on sports stars and 
entertainment figures to use their celebrity to talk about the 
problems of the criminal-justice system, suggesting that professional 
leagues run public service advertisements "during the N.B.A. finals 
or at halftime during a Giants game."

"Sports figures and entertainers connect with young people in a way 
that you and I could never," he said, according to the transcript. "I 
confess to doing a slow boil when I hear the money they make, or pay 
for a beer at a ballgame and contemplate the messages athletes and 
performers could deliver every day to a rapt and adoring audience. 
And yet there is mostly silence from these flourishing institutions."

In general, Brooklyn leans toward the left (five of the six United 
States congressional districts that include the borough are 
Democratic). It is also a busy federal district with a diverse and 
bustling caseload that happens to sit across the river from the media 
capital of the country, so its judges' rulings receive a level of 
national attention.

One reason for the "Eastern District Effect," as Daniel C. Richman, a 
law professor at Columbia, called it, could also have something to do 
with the insularity of judicial life.

"There's certainly a communal aspect here," said Mr. Richman, who is 
also a former federal prosecutor. "Judges tend to lead cloistered 
lives and to talk to one another more than most. Or maybe it's just 
something in the courthouse water."
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MAP posted-by: Jay Bergstrom