The following is an edited version of the remarks given by Eastern District Judge Raymond Dearie to the New York Criminal Bar Association on June 13.
We judges make our rulings, write our opinions and generally limit ourselves to the specific issues before us. Yet I must admit that at times I’ve wanted to scream out in frustration, sadness and anger when I have been required to impose a mandatory sentence or have been prevented from doing the sensible thing, particularly during the dark, pre-Booker days of the so-called guidelines. After more than 30 years, I have gathered some thoughts and frustrations, and tonight I get to share some of them with you, to vent perhaps, as I would with anyone who will listen in earnest about the work we do and the much maligned system within which we dedicate our collective efforts. I admit up front that I am likely preaching to the choir, and in many ways my perhaps pie-in-the-sky dreams of a better, more intelligent “system,” inspired by experience and common sense, may seem to many to be just the wishful thinking of an over-the-hill jurist who thinks he knows better.
Ladies and gentlemen, in my view the “system” needs to be re-thought and retooled significantly. Let’s stop tinkering with this system of ours and collectively demand in the name of decency meaningful change, intelligent change. We need to get out and get under so to speak and rethink our practices, re-test the theories of the ancient past and, above all, jettison the madness of mass incarceration and the almost singular reliance on law enforcement as the principal means to address social ills that are beyond the reach of even the most dedicated law enforcement officials who serve us with justifiable pride and commitment.
In an earlier life, I was a prosecutor, a pedigree I no doubt share with many in the room. I learned two important lessons as a prosecutor that I really didn’t fully appreciate at the time, but I now know and appreciate their impact on me as a judge.
First, I learned, to my surprise, that most people who commit crimes are not evil incarnate. Many, perhaps most, are genuinely decent people who all too often act out of weakness, need, sometimes desperation. So many defendants I see are without schooling, skills, hope or direction and no term of years is going to change that. Second, I will never underestimate the capacity of people to change. You’ve all seen it. I recall a young violent man who became a cooperating witness in a case I prosecuted. When I first met him during the initial proffer he was angry, suspicious and seemingly beyond redemption, his face reflecting utter contempt and derision. But under the guiding hand of his lawyer he decided to cooperate. Well some six or seven months went by during which he worked almost daily with the case agent who conducted a series of lengthy debriefings and then I met him again to prepare him for his appearance before a grand jury.
It is a moment I will never forget. I didn’t recognize him. Physically he was the same. But everything else had changed. Gone was the practiced scowl, the attack-dog mask, and the look of utter contempt. A barely literate man-boy whose only achievable goal was daily survival, who had been family-less since he was 11 when his grandmother lost her battle for control to the lure of the streets. As a result of his arrest, he had begun his first meaningful relationship with another man who happened to be his arresting agent but who in their meetings started to show him some respect and taught him the high value of self-worth and personal dignity. That fixed-eyed stare of the sullen and undirected had surrendered to something better. He had been saved by the bizarre confluence of arrest and an agent who recognized not only his value as a prosecution witness but also saw within him a decency and intelligence that could be harvested.
This is not a cry for leniency. Not at all. Certainly retribution and deterrence have their place in sound sentencing jurisprudence. We must protect the people, first and foremost, and at times incapacitate those whose victimization of others has not been otherwise remedied. But if we don’t focus on who is committing crimes, and why, how do we make intelligent judgments about fitting punishment, much less the likelihood of recidivism? We have to focus, to the extent we can, on the potential for change, and whether a term of years, of whatever length, enhances that potential, or whether there exists a more compelling, legitimate sentencing goal that needs to be satisfied.
Why this love affair in this country with lengthy incarceration, to our great embarrassment as a civilized nation? Less than 5 percent of the world’s population and yet we have almost 25 percent of the world’s prisoners. Young, well-intentioned and competitive prosecutors, inspired I suggest by their law enforcement colleagues, assess the level of success in a case by the sentence imposed, not by the harm uncovered and addressed or by the intervention on behalf of the victims, but by the number of years imposed at sentencing. “What did he get?” “Two years.” “Oh well, good job.” “Five years”? “Great, let’s celebrate.” And where has all this tough-on-crime bombast gotten us, as we throw good money after bad, satisfying this thoughtless impulse, full of sound and fury, accomplishing very little?
I cannot help but wonder how we as a society would fare if we took a fraction of the money we spend on warehousing people and invested it in programs to reach those vulnerable to the hollow call of the streets. Those who from the moment of their birth do not stand a chance. We too often ignore the issues, the causes, the needs, sit back as a society, wait for them to commit crimes, prosecute them with great gusto, root for a stiff sentence, and then pat ourselves on the back for a job well done, too often filling the prisons with scores of non-violent offenders, often destroying the salvageable with cruelly lengthy sentences and risking the well-being of innocent family members. And if we allow uninformed or indifferent legislators and the tabloids to continue to set the tone and suggest policy, nothing will change. I have loved my job, and I am one very lucky fellow to have landed it, but in a very real sense I feel at times that I too am part of the problem. Just another stop along the way on a track that leads nowhere.
Depending on the nature of your practice, this may or may not surprise you. It is commonplace to be called upon to sentence an individual who is one of four or five children sired by three, four, or five different men, none of whom is around or supports them or their mother. The mother, or often the grandmother, does what she can for a period of time, but by the time they are teenagers, the lure of the streets yanks them from the 10th or 11th grade and the gang becomes the family and the perilous mixture of peer pressure, anger, drugs and need takes over. And all too often the outcome is disastrous. So many of them are doomed from the start.
No secret why so many of them turn to crime. Or return to crime. And yet, we do little to arrest these conditions, to address these corrosive elements. Instead we’re “tough on crime,” the prosecutors call their press conferences, the media does its predictable thing, but nothing changes in reality, the beat goes on. I’ve been on the bench long enough to sentence the offspring of defendants I sentenced a generation ago. It can be very discouraging to act as the referee, but have no say in how the game is played. Some do survive and prosper, a coach, maybe the local pastor, occasionally the cop on the beat comes to the rescue, but we ignore the question why, defer or ignore all critical analysis, and just keep going, when there is so much to learn, so much good to be found, you might say, so many lives to be saved.
I have been on all sides of the criminal process—prosecutor, judge, even defense attorney. I don’t mean to suggest that the problems are simple or that sure-fire programmatic solutions are readily at hand. There are many challenges. Young people have to at least finish their basic education, they need support, they need to learn that having babies and walking away is not cool, that violence against another is just not acceptable. But one thing is clear. If society relies on the jail cell alone to bring relief to the streets of New York or Chicago, or to fight the heroin epidemic that has invaded our communities, little will change. And I don’t suggest that this is just a challenge for law enforcement or the courts or the educators. It is everyone’s problem. We need all the tools in our arsenal in trying to reach these young restless kids.
If ISIS can do it, why can’t we?
There are without question individual athletes and performers who give back to their communities in significant ways. And some contribute without hoopla or ceremony. True all-stars on and off the court, playing field or stage. But have we even begun to tap the potential of these powerful cultural forces that impact our young every single day? Imagine 30-second spots during the NBA 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. I confess to doing a slow boil when I hear the money they make, or pay for a beer at a ball game and contemplate the messages athletes and performers could deliver everyday to a rapt and adoring audience. And yet there is mostly silence from these flourishing institutions. And while I’m on my soapbox, it seems we only hear the sounds of silence from the music industry and the lights appear to be out in Hollywood. Such a shame. A colossal opportunity lost. They will market their CD’s and movies very effectively, but where are these industries when it comes to doing lasting good?
But there is room for some optimism. There are many good people and organizations that fight against this destructive tide. You’ve never heard of many of them, and despite paltry resources they achieve impressive success. There is talk of sentencing reform; so far, just talk out of Washington, that shouldn’t surprise you. But some enlightened states have led the way to real change, evidence-based changes that have shown concrete and significant results.
And I can speak from personal knowledge when I tell you that the Alternatives to Incarceration programs in the Eastern District—everything from drug courts, re-entry programs, the POP and SOS programs have yielded results that remove all doubt about the value of such programs, the receptivity of the offender population and the bottom line success of the vast majority of participants.
Working with talented and enormously dedicated probation and pretrial officers, many of the judges of our court participate on a regular, at least monthly basis, meeting with the participants as a group and discussing their progress on the many issues that confront them. The judges and officers do this in addition to their regular dockets and caseload responsibilities. And the participants, otherwise headed for federal prison, when given the tools to succeed, when exposed to people who care, and motivated by their own struggling peers, they respond. They succeed well beyond anyone’s expectations, overcoming obstacles that we never faced. And let me assure you, those of us who participate, we are well compensated when that happens.
So let’s try to sum it up with a few final points:
1. Let us reserve prison cells for the violent and those who victimize irreparably.
2. In each case let us all think seriously about the wisdom and need of incarcerating non-violent first offenders whose only real victims are themselves and for whom leniency may be the first break they have ever had.
3. Let’s reduce the role of prosecutors at sentencing and return probation to their ideal role of informing, not advocating or refereeing.
4. And let’s make good on the promise that if you commit a crime and pay your debt to society, there comes a time when that debt is paid in full and you get to wipe the slate clean and thereby enhance your prospects for better employment and greater security for you and those you care about. An isolated misjudgment should not become a perpetual scarlet letter making meaningful employment, advancement and prosperity all but impossible to achieve.
After all, we are a profession. Beyond the duty to the client and obligations to the court, we are all invested in the common good. As it should be.