Tagged: state legislature

Judge Rakoff Addresses Mass Incarceration in the U.S.

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The Honorable Jed S. Rakoff, Senior Federal District Judge serving on the Southern District of New York, is one of the most distinguished federal judges and one of the most outspoken on criminal justice issues. A previous PCJI post reported on Judge Rakoff’s recommendations for the process of plea-bargaining. In November 2014, the judge addressed this issue further in an article he wrote for the New York Review of Books.

Prior to assuming the bench in 1996, Judge Rakoff was a federal prosecutor in the Southern District of New York, where he served as Chief of the Business and Securities Fraud Prosecutions Unit. He subsequently entered private practice and worked, among other assignments, as a defense lawyer on securities law prosecutions.

Judge Rakoff has been a friend of the Pace Law School community. He has on several occasions judged Pace’s Grand Moot Competition. He has also mooted Pace’s International Criminal Court moot court team, drawing on his experience as an advisor to International Criminal Court prosecutors at The Hague.

In an article published in the May 21, 2015 issue of the New York Review of Books, Judge Rakoff thoroughly reviews the issue of mass incarceration in the United States. The judge recently addressed this issue further in a speech he delivered at a conference at Harvard Law School in April 2015.

The judge notes that while the population of the U.S. is about 5 percent of the world’s population, U.S. prisons house nearly 25 percent of the world’s prison population.

Judge Rakoff attributes these statistics in large part to strict sentencing laws adopted, beginning in the 1970s, by Congress and State legislatures. These laws, which included mandatory minimum sentences for both violent and non-violent crimes, were intended to reduce the high rate of violent crime the U.S. was experiencing in the 1960s and 1970s. “The dictate common to all these laws,” the judge writes, “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.”

In the years following adoption of these laws, the U.S. crime rate significantly declined. “The unavoidable question,” Judge Rakoff says, is whether the decrease in the U.S. crime rate can be attributed – either wholly or at least in some part – to the adoption of these strict sentencing laws. Judge Rakoff reviews several analytical studies that attempt to answer this question. The judge notes that the answer to this question is especially important because of the social effect of these laws: “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.”

Judge Rakoff’s conclusion from the evidence presented, and the claims made, in these studies is that “one cannot fairly claim to know with any degree of confidence or precision the relative role of increased incarceration in decreasing crime.”

To rebut public belief to the contrary, the judge writes that

those whom the public does respect should point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the solution 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 shared social values.

Colorado Proposes Bill Limiting the Use of Solitary Confinement for Mentally Ill

The State of Colorado is taking steps to restrict the use of solitary confinement for those with a serious mental illness. Colorado Senate Bill 14-064, A Bill for an Act Concerning Restricting the Use of Long-Term Isolated Confinement for Inmates with Serious Mental Illness, has passed through the second regular session reading and would require

the department of corrections to review the status of all offenders held in long-term isolated confinement within 90 days after the effective date of the bill.

According to the bill, if such review concludes that an inmate is suffering from a serious mental illness, the correction facility would be required to move the inmate to a mental health unit, prison hospital or other form of housing that would not include long-term solitary confinement. Further, this bill would require that any inmate would go through a mental evaluation prior to being placed in isolation.

Colorado isn’t the first state revising this long-established and controversial practice of placing inmates in solitary confinement for prolonged periods of time. In 2013, Massachusetts introduced a Bill S. 1133, An Act Relative to the Appropriate Use of Solitary Confinement, requiring that the decision to place an inmate in segregation be reviewed within 15 days of such placement and at 90 day intervals thereafter and that an inmate shall receive a written notice, a hearing at which inmate has the opportunity to dispute such placement, and a final written decision on the matter.

In California, Senator L. Lee introduced SB Bill 970 that would limit the use of solitary confinement on minors at state and county juvenile correctional facilities. This bill would

prohibit a minor or ward who is detained in, or sentenced to, any juvenile facility or other secure state or local facility from being subject to solitary confinement, unless the minor or ward poses an immediate and substantial risk of harm to others or to the security of the facility, and all other less-restrictive options have been exhausted.

And more recently on May 8, 2014, Rep. Cedric Richmond from 2d District of Louisiana, introduced H.R. 4618, Solitary Confinement Study and Reform Act of 2014, intended to develop and implement national standards for the use of solitary confinement in the Nation’s prisons, jails, and juvenile detention facilities. The recommendations include:

  • Limiting the use of segregation to only extreme and specifically defined situations;
  • Ensuring that prior to being placed in segregation, an inmate is entitled to a meaningful hearing on the reasons for and duration of the confinement;
  • Ensuring that indefinite sentencing of an adult inmate to long-term isolation will not be allowed;
  • Ensuring that inmates are afforded a meaningful review of the confinement at least once every 30 days;
  • Ensuring that prisoners and juvenile detainees diagnosed with a serious mental illness shall not be held in long-term solitary confinement;
  • Limiting the use of solitary for the purpose of protective custody only; and more.

This bill was co-sponsored by 22 other representatives from California, Illinois, Florida, Ohio, Wisconsin, Arizona, Colorado, D.C, Georgia, Michigan, Minnesota, Mississippi, New York, and Texas, and on May 8, 2014 it was referred to the House Committee on the Judiciary.

Related Readings:

Legislative Ethics and New York’s Moreland Commission

Last summer, Governor Cuomo created the Moreland Commission and gave it the job to investigate ethical violations by New York State legislators.  Pace Law School Professor Bennett L. Gershman analyzes the ambiguities in the Commission’s mandate and some of its recent problems.

Click here to read the full article.