“Mass Incarceration and the Pandemic: A Perfect Storm” SwatTalk
with Judge Jed Rakoff ’64, H'03
Recorded on Monday, Aug. 17, 2020
TRANSCRIPT
Dina: Good evening, everyone. Thank you so much for joining us tonight. My name is Dina Zingaro, I graduated in 2013. I'm a member of the Alumni Council and its Executive Committee. Just a couple of housekeeping bits before we dive in. This talk is brought to you by the Alumni Council. Tonight's talk will be recorded, and tonight's talk and previous SwatTalk recordings, you can find them on our webpage, and they usually post within two to three weeks after it takes place. So during tonight's talk, as always, please submit your questions on the chat feature in Zoom, and please add your name and your class year. And then I will ask the questions at the end during the question and answer period. So tonight it's an honor to be introducing and moderating this discussion with the honorable Judge Jed Rakoff, class of '64. A big thank you to our Alumni Council member, Joe Becker, class of '66, who recommended Judge Rakoff for tonight. It's also very special for me because years ago, as a student at Swarthmore, I externed with Judge Rakoff, and it was one of those rare opportunities and something I'll really never forget. So Judge Rakoff has been a federal judge in the 7th District of New York since 1996. He has been a senior judge since 2010. The 7th District of New York, so prestigious and independent has been called the Sovereign District of New York. Before serving as a judge, Judge Rakoff was a federal prosecutor and a white collar criminal defense lawyer. Judge Rakoff has been called a moral crusader and garnered a reputation as a critic of the lack of prosecution after the 2008 financial crisis. He has also become a leading authority on the application of science in the courtroom. Judge Rakoff teaches law at NYU and Columbia, and he regularly contributes to the New York Review of Books, writing on such issues as access to the courts, the death penalty, mass incarceration, and neuroscience. The pandemic, as we all know, has upended so much of our daily life. And that includes prisons and the courts. Tonight, Judge Rakoff will discuss how the country's mass incarceration is worsening the health risks posed to prisoners in the pandemic and how the courts are trying to grapple with this perfect storm. With that, I'll turn it over to Judge Rakoff.
Jed: So thank you very much, Dina. I'm very grateful for that kind introduction. I'm also glad that my wife is muted because she would demand rebuttal time otherwise. But let's turn to the topic at hand. Mass incarceration is one of the most serious social problems in the United States, but its negative impacts have been made even worse by its interaction with the coronavirus in overcrowded jails and prisons. And as a federal judge, frankly. I get to see this every day and it's not pretty. While many of you may be familiar with the rather dismal statistics regarding mass incarceration, I think it is worth briefly reviewing them. For the past two decades and more, the number of persons incarcerated in the United States' jails and prisons has never been fewer than 2 million people. The US, I'm sorry to say, leads the world in incarceration, both on a per capita basis and in terms of absolute numbers. In fact, a full 25% of all the people in prison or in jails in the world are in prison or are in jails in the United States. Now, this was not always so. For many decades prior to the 1970s, the US prison and jail population never exceeded a few hundred thousand persons, but with rising crime rates in the 1970s, '80s and '90s, it became politically expedient to get tough on crime, and both Republicans and Democrats joined together to pass very punitive laws that required lengthy incarceration. These included mandatory minimum laws that mandated many years in prison, even for nonviolent offenses, career offender laws that mandated life imprisonment for repeat offenders, even when what was being repeated often were relatively low level crimes, and sentencing guidelines that were originally mandatory. And even though they are now discretionary are constantly being increased to ever harsher levels. In addition, both state and federal bail laws were amended to allow the pretrial detention of anyone deemed a, “danger to the community,” which was very broadly defined to include, for example, anyone who sold even a very small quantity of drugs. The result was that the number of incarcerated persons quickly rose to over 2 million. Meanwhile, despite a few recent spikes associated with the pandemic, crime rates have otherwise steadily declined since the mid-1990s to levels not seen since the early 1960s yet, while the number of incarcerated persons has modestly declined in a few states, overall, the number of incarcerated persons has remained above 2 million and that's because we are locking up an ever higher percentage of persons charged with crimes and locking them up for ever longer periods of time. In fact, I would have to say my own observation is that even though state and federal judges have historically been opponents of mandatory minimums, they have over time kind of bought into, or at least become used to this punitive culture. So it has become something of the norm for a judge to send the defendant, any defendant to prison, even when not strictly required to do so. And who are these people that we're locking up? To begin with, the great majority are very poor. 40% are African American males between the ages of 18 and 34. Another 20% are Hispanic males of the same age. At current rates, one out of every three black males in the United States will be arrested at least once in his lifetime. And the terrible effect of this on the men themselves, their families, their communities are obvious. And what it says about our society is not very pleasant either. Now, one side effect of this mass incarceration has been overcrowded prisons. In 2011, in the case of Brown versus Plata, US Supreme Court confronted an extreme case, the prison system in California, where three to four prisoners were often forced to share a single cell, typically six feet by nine feet, that had been designed for a single prisoner. The negative impact on the prisoners' physical and psychological health was extreme and was often accompanied by a considerable increase in prisoner violence. By a five to four vote, the United States Supreme Court ordered the immediate relocation or release of thousands of these inmates. Though, as you might expect, it was not without a stinging dissent from the late Justice Scalia who called the result radical and outrageous. And to be frank, I doubt that the current Supreme Court would have come out the same way as the majority in Brown v. Plata. But even though not as extreme as in the Brown v. Plata case, overcrowding as a result of mass incarceration has persisted throughout the state and federal prison systems. It is now the norm that two defendants will share a single cell and that so-called common areas for work and play will be intensely crowded. This is true even in those states with declining prison populations, because in most of those states, the prison authorities have taken advantage of the decline in prisoner population, not to relieve overcrowding, but to shut down old, outmoded prisons while allowing the overcrowding in the remaining prisons to remain intact. So this brings us to the pandemic. It is hard to imagine an environment more suited to the spread of coronavirus than a jail or a prison. Social distancing is almost impossible. The maintenance of sanitary conditions is very difficult and so forth. The result is that in some jails or prisons, there have been huge outbreaks of COVID-19. For example, in San Quentin Prison in California, over 2/3 of the 3,000 prisoners have now contracted coronavirus. In the federal prison in Seagoville, Texas, no less than 3/4 of the 1,700 prisoners have tested positive for the virus. Now, to be sure, in both these places, only a small percentage of those who contracted the virus had died. And this is in part because the population of these prisons is fairly young. Nonetheless, the overall death rate in these prisons and in US jails and prisons generally is well above the national average. Perhaps the most extreme case is the state prison in Marion, Ohio. This facility was designed for 1,500 prisoners. It now houses more than 2,400 prisoners. Of those 2,400, a full 80% have contracted coronavirus, and more than 75 of those prisoners have died as a result. Now against this grim news, it needs to be noted that most of the serious coronavirus outbreaks in jails and prisons have occurred in a comparatively small percentage of the institutions. And indeed the great majority of jails and prisons have not reported anything like such outbreaks. Now this of course is partly an artifact of the very minimal coronavirus testing that is undertaken in many of these institutions so that asymptomatic prisoners who have contracted the virus, but are never tested, do not get counted in the official statistics, but the relative success of many prison institutions in avoiding serious coronavirus outbreaks, and in many cases avoiding any coronavirus deaths is also a function of the fairly extreme prophylactic measures that prison wardens have had to take. These include 24-hour lockdown, placing those prisoners who were in contact with someone who tested positive in solitary confinement, and prohibiting all outside visitors, whether family members or even the prisoners' lawyers. The corollary to these extreme measures has been a notable increase in mental health problems among the prison population and even some suicides. More generally, prison conditions, never wonderful, have now become extremely harsh and forbidding. It should probably come as no surprise that the current Supreme Court is unlikely to do anything about this situation. For example, on August 5th of this year, just a few days ago in Barnes v. Ahlman the court, by a five to four vote, stopped an order of two lower courts that would have required the sheriff of Orange County, California to implement measures designed to stop an outbreak of coronavirus in his local jail. As set forth in the dissenting opinion of Justice Sotomayor, the conditions in the jail included being transported in crammed buses, socializing in rooms lacking any capacity for social distancing, sleeping in bunk beds just two or three feet apart, receiving one small bar of soap each week, et cetera, et cetera. The lower courts, sensing that this was a recipe for a coronavirus outbreak, directed the sheriff to take specific immediate and practical steps to alleviate these conditions. But a five, four majority of the Supreme Court put a hold on this order without giving any reason for doing so. So what could be done to alleviate these dangerous conditions? In the case of the federal prisons, use has been made of a bipartisan law passed a few years ago, called the First Step Act, which was so named because it was intended to be a first step toward mitigating mass incarceration. Though for that purpose, it has proven to be only a very modest step at best. But one provision of the law known as the Revised Compassionate Release Provision gives both the Federal Bureau of Prisons and the courts the power to release prisoners in what the statute calls, quote, extraordinary and compelling circumstances. To its credit, the Bureau of Prisons has broadly interpreted this law during the pandemic to authorize the release of prisoners the bureau regards as particularly high risk for adverse consequences, if they contract coronavirus, and so far, the Bureau has released about 8,000 prisoners pursuant to compassionate release. That's about 5% of the entire federal prison population. But the federal prison population only accounts for a very small slice of mass incarceration since in the United States, criminal enforcement is mostly centered in state and local enforcement. And while many states have on their books equivalent statutes to the Federal Compassionate Release Provision, very few have interpreted these laws so as to permit the release of more than a trivial percentage of the inmates. Going back to the federal situation, if the Bureau of Prisons denies compassionate release to a federal prisoner, or simply fails to act promptly on his application, the prisoner can appeal to a federal district court. As a result, my colleagues and I have been confronted with a large number of such appeals in the past few months. But as you might expect from the fact that these prisoners were not released by the Bureau of Prisons, the ones we're getting are the harder cases and often raise very difficult, moral, practical, and legal issues. For example, should you release someone who has a long history of violence, both in and out of prison? Especially when we already experience an upsurge in violent crime and domestic abuse associated with the stresses of the pandemic. Or how about the nonviolent prisoner, who however is young, in good health and has served only a small portion of a sentence? How could it be said that there were truly extraordinary and compelling circumstances requiring his release when there are literally many thousands of prisoners who fit this description? And what about more elderly prisoners? Bernie Madoff, for example, who have physical infirmities that place them at a high risk of death if they contract the virus, but who have committed extremely serious, although in his case, non-violent crimes, and have served only a relatively small portion of their very lengthy sentences. Such dilemmas are not easily resolved, and because of the speed with which the pandemic arose there were very few appellate decisions to guide federal district courts who have to decide these applications promptly. As a result, although federal judges have already granted compassionate release in over 1,000 such cases, they have denied release in at least twice that number. But although I am forbidden by federal law from commenting on any pending case, whether before me or before any other judge, I can briefly describe one recent case where I granted compassionate release since the government has chosen not to appeal and therefore the case is now closed. The defendant was named Paul Zhang, and he was far from a model citizen. In 2008, he pled guilty not only to distributing cocaine and ecstasy, but also to dealing in illegal firearms and in counterfeit goods. I sentenced him, as I was required to do so, to the mandatory minimum of 15 years. But in July of this year, having served about 12 of those years, he applied for compassionate release not only because he himself was suffering from type II diabetes, which put him at high risk if he contracted COVID-19, but also because both of his elderly parents were in very poor health and desperately needed his assistance. Indeed, for this reason, he had spent his most recent years in prison working in the prison infirmary so as to receive training in healthcare. Although the government opposed release, basically 'cause they felt he had committed very serious crimes and should serve his full sentence, I granted release on the condition that Zhang live with his parents and provide the needed care. And just a few days ago, I received a letter from him that begins, “I just want to express my gratitude for your help and support. I am now at home with my parents, and I was able to surprise them by returning. I wish I could have shared that moment with you.” And I admit that even crusty old judges like me can be moved by such letters. Looking to the future, what lessons can be learned from the events I have briefly described today? I think there are two. The first is that we need to make sure that our prisons plan ahead for, and are better equipped to deal with emergencies like the pandemic, but sooner or later, we would face a pandemic should hardly have come as a surprise. Many people have been predicting it for years. But the prison authorities did almost nothing in a way of advanced planning, for that or for other predictable emergencies. And the result has been these slapdash and very harsh measures that they have had to undertake and undoubtedly more deaths than would otherwise have occurred. But the second lesson is even more important. The scourge of mass incarceration leaves its imprint wherever it is found and makes the never very pleasant conditions of imprisonment far more severe than they otherwise would be. The steps that have been taken thus far to try to reduce mass incarceration, such as the First Step Act, have had only the most modest impact and more than 2 million of our fellow human beings remain incarcerated in the United States. We can really not begin to undo the evil of mass incarceration until we repeal the laws passed in the last quarter of the last century that have caused its assent, especially the mandatory minimum and career offender laws. Whether of course we have the will to do so remains very uncertain. So I'll conclude at this point, but I'd be delighted to answer any questions you may have, thank you.
Dina: Thank you so much for that. Really fascinating and equally concerning. So everyone, please continue. A number of questions have already come in, but you can continue to add them in. And so, some of the questions have a little bit of overlap. So there are a lot of questions about, how does this all relate to the growth of for-profit prisons? And that came up in a couple of questions.
Jed: Yeah, I think, you know, because of the natural Marxist tendency of all good Swarthmoreans, that has probably been exaggerated in the minds of some from what it really is. Private prisons account for approximately 9% of the 2 million people who are incarcerated. They are a lobby. They have some impact on Congress like other special interests, but I have not seen any evidence that they are even remotely as effective in that regard as say, the National Rifle Association or other very prominent lobbies. The First Step Act, which has had only modest effect, but was still a first step, was passed by almost totally Republicans and Democrats alike. And the most severe opposition to it came not from the private prison lobby, but from former federal prosecutors. And as a former federal prosecutor myself, I'm ashamed of that, that that happened. But it was the Association of Former Federal Prosecutors that viewed mandatory minimums and other such punitive laws as a benefit because they encourage people to cooperate with the government in identifying other criminal activity. And for that reason they opposed the legislation. So that's a long-winded answer. The short answer is, I think the private prison lobby is a factor, but not a big one.
Dina: The questions are coming in so quickly. So there's a question here from Michael Cook. I don't have a class year, but he asks, are steps being taken to reduce overall crowding apart from releases due to COVID-19?
Jed: Yes, but not without considerable difficulty. For example, I mentioned before solitary confinement. So historically, solitary confinement, which means you are in a small steel cell that has one light bulb and is completely sealed. No windows, no nothing, (Food is pushed to you through a small opening) has been shown to have terrible effects on the mental health of people who are in solitary for any prolonged period of time. So yes, one of the ways that they've tried to ease overcrowding is by putting more people into solitary. Historically most of the solitary cells have been open because they're used for, in the typical situation, for punishment. You do something in prison that violates prison rules, you're sent to solitary. That's the main punishment they have. Instead they're sending people who had not committed any infractions at all to solitary to keep them isolated because they are often people at high risk. For example, more elderly people. There's nothing worse, in my view, short of getting the coronavirus than being a 65-year-old prisoner who is stuck in solitary confinement 24/7. That is going to have very serious mental health detriments.
Dina: Thank you, and Marie Otay, apologies if I'm getting the pronunciation wrong. She says, “thank you, Judge. Morally, what is the issue with releasing a prisoner who was COVID positive, but has no healthcare plan or place to go? I am concerned with wholesale releases in California that are not being done as carefully as the case that you described.”
Jed: So when someone who has tested positive gets compassionate release, they are first held back in the prison for 14 days, quarantined in effect, and then tested again to see if they are now, they are now negative. So at least in the federal system, and I can't speak with the same sureness about the state system, at least in the federal system, no one is released who is corona positive. But there may be States that are doing that. I just don't know. Typically release is to a specified place. For example, Mr. Paul Zhang's case that I mentioned, I wanted to be sure that he was with his parents because the whole point was to help the parents get better health care. So I said he had to remain there except for meeting with doctors or meeting with his lawyer or other specified exceptions. And I think that's true in most state release situations. Now, it is true, there are people who are released who have nowhere to go. In the federal system, the probation department then arranges for them to be placed in homeless shelters, which are not wonderful places either, but at least it's a known place where they will get at least some minimal care. And I think that's true in most states, but I'm just not as sure.
Dina: So Seth Rubinstein, he poses a quote before his question. Quote, a crisis is a terrible thing to waste. What do you think are the best ways that criminal justice reformers can leverage the temporary COVID crisis to generate major long term lasting changes to the criminal justice system?
Jed: Well, I think that when the First Step Act was passed a couple of years ago, there was a developing recognition that mass incarceration was a very bad thing in many respects. And an important part of that, though, by no means the only part, was the recognition that there were really a number of horror cases that could be described. There were cases of innocent people being wrongly convicted and sentenced to life. There were cases of people languishing in jails for two, three years because they couldn't afford even modest bail, et cetera, et cetera. And I think those horror stories, I'm sorry to put it this way, but I think those horror stories had a significant impact on the general public and indirectly then on political representatives of the public. There are, I'm so sorry to say, plenty of horror stories to go around as a result of the impact of the COVID crisis on the prison system. I described very briefly places like Marion, Ohio, but there are much more detailed descriptions that could be given. I think the most important thing Dina, is that you should do a 60-minute program on this.
Dina: I'm tempted by how good this talk is, so... So the next question comes from Natalie Guetta. Of all the arguable goals of incarceration as criminal punishment, which do you weigh most or least heavily when you consider whether to grant compassionate COVID release?
Jed: Well, in terms of granting it, I think the most important factor is usually whether the person is personally at high risk of serious consequences from contracting the coronavirus. The family situation, as in the case I mentioned also can come into play, but I would say more commonly is, if you have someone who is elderly, who is suffering from a variety of disabilities that are unquestionably putting him or her at high risk, you know, then I'm going to start with the presumption that this person should be released. The main thing that can overcome that presumption is the seriousness of the crime. I mentioned the Bernie Madoff case. That's a pending case not before me so I won't comment further on that. But if for example, you have a person who was convicted of first degree murder and has served 10 years, but is in poor health, et cetera, you might still think it's not consistent with the need to punish that person for that monstrous crime to release that person. So I think the seriousness of the crime is the most important of the negative considerations, and the health of the prisoner is the most important of the positive considerations. The one thing I've learned as a judge is that every case is different and you need to very, very much get into the details. And so you can't generalize. That's why I don't like, for example, the sentencing guidelines 'cause they attempt to generalize when human beings are so individualized. But to the extent I can generalize, it's in the way I just indicated.
Dina: So Jody Williams, class of 1966 asked, “what recourse is there down the road for inmates who die from COVID where there is strong evidence of negligence in health care, even pre-COVID for them.” And she said, think Florida, for example. I don't know, yeah, I don't know, yeah, I'll let you...
Jed: So you can bring a lawsuit, but there are a lot of hurdles that will be difficult to overcome. The most obvious hurdle is that most high level executive members of the executive, including prison wardens, for example, have a form of immunity. You might say, where do they get that? It's not in the Constitution. You're absolutely right, it's not in the Constitution. It has been put there for about 200 years by the courts. And to be frank, I'm not a big fan of this kind of immunity. The ultimate derivation was from English common law, but that's because English common law decreed that the King can do no wrong. My vague recollection is that we fought a revolution because we didn't agree with that position, but that didn't stop the early courts of the United States from adopting from the English common law a whole slew of principles, including the principle of executive immunity. You read about this every day when it's invoked by the President in claims made against him. But it's invoked much more routinely by policemen, by federal officials above the ministerial level and so forth. There are other hurdles, but that's the biggest one that you need to overcome. The lawsuits that have been the most successful have not really made recompense of the kind the questioner was asking about. If you have a class action seeking to change conditions in a prison, that is not in any way affected by immunity. That's changing the way the system as a whole is organized to make it accord with basic principles of due process and other constitutional provisions. So those lawsuits have to some extent succeeded, like the one I mentioned, Brown v. Plata involving the California prison system, but those are forward looking and they don't do a thing for the poor person or his family who suffered in the way the questioner was asking.
Dina: The next question is from Moriah Radin. She's a federal public defender in California. And she asks, “without mandatory minimums do you believe there would be a significant reduction in mass incarceration?” She says, “it seems deeply entrenched in the system that incarceration is the only response judges feel comfortable with, how can we change that?”
Jed: So, I'm old enough to remember when it was considered a harsh sentence for someone to be sent to prison for five years. So there has been a massive change, and you're right that some of it has become ingrained in the attitudes even of judges. But it's one thing to be told, “Judge, send this guy away, he's a bad guy.” And it's quite something else to be told, “Judge, you have no choice. You've got to give them 20 years 'cause that's what the law requires.” And there was a poll done of federal judges approximately 10 years ago. And they were asked, if you had to make one change in the current sentencing regime, what would it be? An 83% said, do away with mandatory minimums. So that gives me some hope in believing that judges would in fact give lesser sentences once they were given the freedom to do so. Another indication of this is, after the federal sentencing guidelines became discretionary, at first the sentences were the same just because, again, of the ingrained attitudes that had developed, but over time that began to change. In the Southern District of New York, which is my court, but is also the largest federal court in the United States, over 50% of the sentences are now below the guidelines. So over time I think judges will return to the less punitive attitudes that they had historically held, but it won't happen overnight.
Dina: This next question comes from Judith Litzenberg. She asked, do you think an Eighth Amendment argument can be plausibly made to eliminate some of the conditions produced by COVID?
Jed: Well, I'm glad to say that I am forbidden from federal law from commenting, giving opinions on issues that might actually come before me. And I think that's conceivably one that came before me. And the reason I'm ducking your question is not only that I am required to duck it by law, but I haven't really thought that one through, so I better duck it.
Dina: No problem, we'll move on. Jared Lederman asks, “when making decisions to decarcerate in light of COVID, how much does access to good data about transmission impact your decision?” He says, I'm thinking about the work of groups like recidivists.org. I'm not familiar.
Jed: Recidivist. Yeah, recidivist.org. Somewhat. There's an old saying among lawyers, which I think is very true. The facts drive the law. The facts of the individual case are going to be more important than anything that could be said of a more general sort. But one interesting thing about the compassionate release proceedings is that because there are so few appellate precedents, judges feel a greater liberty to look at stuff that they might not otherwise look at. So I'll give you just an example. Even if the parties don't present to me the medical records of a given person who's applying for compassionate release, I require that the Bureau of Prisons provide me with those medical records, 'cause that are very valuable in assessing the situation. In a different situation I might say, gee, I should only act on what the parties have given me and shouldn't go beyond what the parties have given me. But the nature of this crisis and the need to act so quickly and the lack of precedence, I think it's given most judges, not just me, a certain freedom to inquire more broadly. And that would include the kind of statistics that the questioner was referring to.
Dina: This question is coming from Michael Fleischmann who's in my class, 2013 who I believe is watching with his legal colleagues at the moment. So his question is, can the judge please talk more about the recent SCOTUS ruling he cited and whether that ruling is controlling over states? He said, California has pursued some early releases and other efforts, and I'm wondering whether the SCOTUS ruling will curtail these efforts.
Jed: Well, I assume you're referring to the Supreme Court's decision a few days ago where they stayed the order. So here is what is very disturbing about that decision. And of course, ultimately the Supreme Court is my boss, but one under the First Amendment can criticize even one's boss. The lower court, the sheriff of the Orange County Jail who was faced with what was being reported at least by numerous sources as just an open imitation to a big COVID-19 outbreak said, "Oh, we're doing everything that's necessary." The lowest court, the district court held a hearing on that and determined, not only wasn't he doing everything that was necessary, he wasn't even doing the things he said he was doing. So that court ordered immediate relief. What we call the law injunctive relief. You must do this, this, this. It went up to the Ninth Circuit Court of Appeals and they affirmed. And of course, for this to have any effect, given the nature of the pandemic crisis, it has to be done quickly. The Supreme Court instead, by a five to four majority, said “no, we stopped the order.” It's called a stay in legal terms. So the sheriff doesn't have to do anything. Now, eventually the whole case will come before the Supreme Court and they will be able to decide it by that time at the rate things normally happen in the Supreme Court, will be months or years down the line. And so it'll be a moot point, so to speak. So I do think that decision sent very much the wrong message, and I am worried about its implications, but it's so recent that, you know, we haven't seen me fallout yet.
Dina: So Niki Sebastian from the class of 1965 asks, ”Mandatory minimums were supposed to mitigate the wide discrepancy between judges and districts. Since they didn't work out well, do you have an idea for an alternative, more workable, but still equitable process?”
Jed: Yeah, I think that history shows that the cure for disparity in sentencing creates more problems than it solves. So it is unquestionably true that there are some judges who are tougher sentencers, and there are some judges who are more lenient sentencers, and that's not a good thing. But every attempt to fix that has led to harsher sentences and the high end becomes the norm or even a higher norm is imposed. So the main attempt to solve it other than the mandatory minimums was the sentencing guidelines. And the theory was that we could come up with an arithmetic score that would tell every judge, you ought to sentence this guy within a certain narrow range. Two things happen. One, Congress kept dictating to the Sentencing Commission that they should raise that range higher and higher. And this always came after there was some sort of a bad event. So there was scandals involving various businesses. Congress said raise the white collar levels. There were standards involving opioid crisis. Congress said raise the drug standards. This was done across the board and the result was no respect for the individual differences of the human beings that you're called upon to sentence. When I sentence someone, I look as much as I can into his or her history, what led them to do what they did, what are the possibilities short of prison that might turn them around and make them productive citizens, et cetera, et cetera. The guidelines deal with none of that because they don't lend themselves to across the board arithmetic calculations. So in our zeal to do away with disparities among judges, which do exist, we have created a much greater monster in my view.
Dina:This will be the second to last question. This is from Joanne Kunz, from the class of 2005. She works for the Philadelphia DA who was elected on a platform of reducing mass incarceration. “The politicization of this issue makes it very difficult to make the legislative changes you suggested. How do you think public opinion can be shifted to appreciate how disproportionately we punish in this country?”
Jed: Yes, well, first of all, as myself a native Philadelphian, you've got a great job. I mean, you put your finger right on it. It has been good politics for a long time to be tough on crime. And as soon as there, as there always inevitably will be, spikes so that even though crime rates as a whole have come way, way down, at any given moment, some crime will be on the upsurge and that will inevitably lead to cries for more punitive measures. It goes very deep in the American psyche and in the modern American political tradition. Nevertheless, and I come back to the First Step Act, there have been moments when it has been overcome even politically. And I think the key is to bring to the attention of the public individual cases caused by the problems of mass incarceration that are so touching, so awful, so contrary to what any decent person would want to see happen, that it brings home to the heart, as well as the mind of the listener just what evils mass incarceration can lead to. So I'm no politician, but for what my two cents is worth, that's the path I would emphasize.
Dina: So the final question comes from Margaret Rowski from the class of '62. “Did you think you would become a judge when you were at Swarthmore? Did Swarthmore help you get there or other education or life experience?”
Jed: I didn't think I'd become a judge. I thought I'd become, forgive me, the writer of musical comedies 'cause that was my hobby. And that showed how little sense of reality I had, but Swarthmore taught me so many lessons that have helped me as a judge. The first was the importance of getting deeply into the facts, not just bologna generalizations, but really getting into the details. And second, that one can talk all day long about law and policy, but if the system doesn't command your moral respect, it's ultimately not worthy of respect. And that was a lesson that I think is deep-seated in the traditions of Swarthmore and the traditions of Swarthmore students. So I am endlessly grateful to Swarthmore for what it did for my life and for my role as a judge.
Dina: Well, great, that is our hour. Everyone, thank you so much for all of your questions. Judge, thank you so much for making the time to join us here tonight.
Jed: My pleasure.
Dina: Good night everyone.
