Jed Rakoff has been an adjunct professor at Columbia Law School since 1988, and has served since 1996 as a federal district judge for the Southern District of New York. Judge Rakoff earned a B.A. from Swarthmore College in 1964, an M.Phil. from Oxford University in 1966, and a J.D. from Harvard Law School in 1969.
After clerking for Judge Abraham L. Freedman on the 3rd U.S. Circuit Court of Appeals, he was an associate at the Debevoise firm (1970-1972); a federal prosecutor in the U.S. Attorney’s Office for the U.S. District Court for the Southern District of New York (1973-1980), where he was chief of business and securities fraud prosecutions (1978-1980); and a “white-collar” criminal defense lawyer at two large New York firms, Mudge Rose (1980-1990) and Fried Frank (1990-1996). Since going on the bench in 1996, Rakoff has authored over 1500 judicial opinions, and has also frequently sat by designation on the 2nd, 3rd, and 9th U.S. Circuit Courts of Appeals. He has co-authored five books, written more than 140 published articles, delivered over 600 speeches, and is a regular contributor to the New York Review of Books.
Rakoff is a Commissioner on the National Commission on Forensic Science and served as co-chair of the National Academy of Science’s Committee on Eyewitness Identification. He serves on the executive committee of the New York City Bar Association, where he was chair of the nominating committee, the honors committee, and criminal law committee. He previously served on Swarthmore College’s Board of Managers and on the Governance Board of the MacArthur Foundation’s Law and Neuroscience Initiative. He has assisted the Departments of Commerce and State in the training of judges in Baghdad, Bahrain, Dubai, Kuwait, Istanbul, and Morocco. He is a member of the American Academy of Arts and Sciences and of the American Law Institute. He is a judicial fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.
What are your thoughts on mandatory minimums?
Perhaps more than anything else, they are responsible for mass incarceration, because they transfer sentencing power from judges to prosecutor. One of my colleagues, John Martin, resigned from the federal bench because he felt these mandatory minimum laws forced him to impose unjust sentences. These laws should be repealed.
Prosecutors can charge numerous crimes for anything, what makes them decide what to charge, where does that guidance come from?
There are many overlapping criminal statutes, so that when you commit misconduct you often expose yourself to multiple charges and that is how prosecutors then can really ratchet up the amount of penalty they’re charging in their indictments. At least 20 years ago, the Justice Department decreed that all assistant U.S. attorneys when bringing an indictment had to charge the most serious crimes they thought they could prove beyond a reasonable doubt. The result is that that the typical federal indictment will charge a defendant with one or more serious felonies that either individually or collectively can result in a very long prison sentence. I suspect similar provisions and similar policies apply in many states. The result is that for many defendants, it becomes too risky to exercise their constitutional right to go to trial.
Do you think if all the problems were solved in your book, that prison is an appropriate punishment for people? Do you think it rehabilitates enough? What should be the goal of prison?
I think the answer to that is complicated. There are many individual cases in which prison is not the best alternative. But the threat of prison is a necessary evil because without that threat I think you would see more crime. If someone is told that the only penalty for robbing a bank is that you get sent to a psychologist for treatment, I think you would find a lot more bank robberies than you have now. It’s the threat of prison that acts as a deterrent. But having said that, there are a great many cases where a short sentence can serve that deterrent function, and it seems to me that a great many sentences are far too long.
There’s a related question and that is how good are the programs that are designed for rehabilitation. In the 1950s the federal courts imposed very low prison terms and sent a lot of people convicted of crimes to programs designed to make them better citizens by solving behavioral and psychological problems, but those programs were not very successful and they did not prevent the significant increase in crime that occurred beginning in the late 60s and continuing to the mid 90s, so they fell out of favor. My belief is that rehabilitation programs are a lot better today than they were in the 1950’s, but it’s also a matter of money. For example, in many cases in front of me, the defense will present a recommendation that the defendant, rather than going to prison, receive intensive mental health treatment. But there aren’t available in such cases many programs that offer truly intensive mental health treatment. The programs in prison are usually very limited in duration. The ones outside prison that I might refer a defendant to vary tremendously, but a lot more money would have to be put even those programs before they could be truly called intensive in the way that psychologists recommend.
When it comes to sentencing, you have a fellow human being in front of you, you know his background, you know he isn’t a “bad” person but is someone who has psychological difficulties sometimes caused by an unfortunate upbringing or traumatic events. If you had a magic wand, you would like to say in such cases there’s little point of sending this person to prison, he needs intensive mental treatment – it’s nice to say, but it’s often not available. The problem is, if those programs are so superficial or so underfunded or so limited that they don’t work, then you’re just fooling yourself. The problem could be solved in my view by spending much more money on longer and more intensive and personalized rehabilitative programs.
What are your views of current police practices?
Police practices have rightfully come under greater scrutiny in recent years, and many judges have a role to play here if progress is to be made. For example, New York City had a stop and frisk practice for many years that many people thought was implemented in a racially discriminatory fashion. Ultimately one of the judges on my court held that practice to be racially invidious. While not everyone agreed with that decision, it greatly contributed to the practice being ended. The point is that judges can play a meaningful role in scrutinizing questionable police practices.
Do you think current laws impose “cruel and unusual punishment,” in violation of the Constitution?
The Supreme Court itself is quite divided on what constitutes cruel and unusual punishment because it is a vague term. The majority of Supreme Court justices in cases where the cruel and unusual punishment ban has been invoked have usually looked to whether there is an existing “consensus” that a particular kind of sentence is cruel and unusual. For example, the Supreme Court, in holding that it was unconstitutionally cruel and unusual to apply the death penalty to juveniles, noted that most states don’t permit the death penalty for juveniles, and also mentioned that throughout most of Europe juveniles are not punished with the death penalty. The dissent said we shouldn’t be looking to foreign countries; it’s a question of if it’s a consensus in the U.S. But the more fundamental reason there was this debate was because cruel and unusual punishment is a vague term.
Some things in the Constitution are very clear, some things are broad but reasonably clear like the President being the commander in chief. But there are some things that are both broad and vague, and cruel and unusual punishment is one of them. How it is interpreted also raises the debate over the basic theory of how to interpret the Constitution. Historically, many judges believed that because the Constitution is designed to last for ages, it needs to be interpreted and reinterpreted in light of changing conditions. But there are other judges, perhaps now in the majority on the Supreme Court, who take an “originalist” view, and would say that what counts is what a term in the Constitution meant at the time in the Constitution was enacted. To me, this view doesn’t make sense, at least when it comes to broad and vague terms like “cruel and unusual” that seem on their very face to invite periodic reinterpretation. There were punishments in existence at the time the Constitution was enacted, like chopping off fingers, that were considered routine then but would be considered cruel and unusual now by common consensus.
What about legislative action? Take the over- excessive drug laws for example, it seemed like over the course of less than a two decade period all these laws sprung up. Is it harder to get laws off the books than on the books? What’s it going to take to roll back on a lot of these overly-punitive drug crimes?
Many criminal laws are passed in reaction to particular events. You have laws named “so and so’s” law referring to an awful event that has occurred. These events often generate harsh laws; but the problems with the laws are not visible to the public and therefore there is not the same impulse to repeal them as there is to enact them. Nevertheless, I think there is a slow but growing realization in Congress and in some state legislatures that some of these laws should be repealed. But I don’t expect quick action.
How does it affect your job knowing all this?
One of the reasons I wrote my book is that I don’t think the public realizes how much of the control of the criminal justice system has been transferred by ill-conceived laws from judges to prosecutors. When I was a prosecutor in the 70s, sentencing was totally controlled by the judges. While people sometimes complained that there were sentencing disparities between judges for similar crimes, looking back there is no question that the sentences imposed by judges during that period were overall much lower than they are today. So in the name of avoiding disparities and in the name of increasing general deterrence, we have forced judges to impose sentences that they never would impose if they had their own way. A corollary to this is that sentencing has as a practical matter been turned over to the prosecutors, whose charging decision can mandate much of the sentence; and that’s an evil in itself because the judge is the one neutral player in the system. Prosecutors are advocates for tough sentences; that’s their job. But to give them power to actually determine sentences is, I think, contrary to the basic principles of the adversary system, which leaves it, not to the contending advocates, but to the neutral judge to determine what’s right.
While I’m old enough to remember what sentencing was like before these shifts, younger judges have grown up in this system of reduced judicial discretion, so they take it to be the norm. This is true not only with respect to mandatory minimums and career offender statutes, but also with respect to the sentence guidelines. Newer judges look to the guidelines because they don’t know what else to look to. But to focus on the guidelines is to focus on generalities, rather than on the actual person who is about to be sentenced. When I sentence someone, I think the most important thing is to understand the human being who is before me, and the guidelines don’t pay any attention to that. The guidelines look to what will punish the defendant for what he did wrong, but they totally ignore why he did it and what will help him to become a more law-abiding citizen.
Furthermore, even with respect to punishment, the guidelines rest on the intellectual mistake that everything of importance to sentencing can be measured and reduced to numbers. But none of the primary purposes of sentencing—deterrence, rehabilitation, and punishment—can be measured in any meaningful way, so the numbers the guidelines assign to even the factors they do consider are totally arbitrary.
Further still, because of this shortcoming, the guidelines put inordinate emphasis on the few things that can be measured. In drug cases, which are 40% of the federal criminal docket, the guideline calculation is more than 70% a function of the amount of the drugs that were distributed. The weight of the distributed drugs dwarfs every other factor in these guidelines. But this leads to absurd results. For example, in a typical drug conspiracy case involving 6, 8, 10, 12 or more defendants ranging from a kingpin at the top to a smalltime courier at the bottom, under the guidelines they are all legally responsible for the entire amount of drugs distributed. So that courier at the bottom will be facing the same 30-40 year guidelines range as the kingpin. Similarly, in fraud and theft cases, the guideline calculation is, again, more than 70% a function of the amount of money the investors lost. So, a bank robber who gets lucky and comes away with $10,000 from his robbery will face a much greater sentence than an otherwise identical bank robber who only managed a heist of $1,000.
As for disparities between even similar individuals committing similar crimes, such disparities still exist; they’re just hidden, because everything is plea bargained, so the person really determining the sentence is the prosecutor. If you are a defense counsel, you might go to one prosecutor and he’ll let your client plead to a “five year count”; but other times you might go to another prosecutor who has a tougher temperament and who says “ok, the best I’ll give you is a 10 year count.” All of this is done in negotiations in the prosecutor’s office and there’s no record and it’s all hidden. So what we’ve done is exchange low-level but visible disparities by judges with harsher, hidden disparities orchestrated by prosecutors, of which there is no record and no public scrutiny. And you have little choice, because, even if you are innocent, the harsh mandatory and guideline penalties you face if you go to trial means that as a practical matter, your best way to reduce your risk is to plea bargain. As a result, since these harsh laws were enacted, jury trials have almost disappeared, with only 3% of indicted defendants going to trial. Once again, this puts prosecutors in the driver’s seat and makes the criminal justice system in this country largely a secret system that gives judges little say and provides the public with little scrutiny.
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