The Correctional Institute of Nothing

Rehabilitation programs are crucial to address the conditions that lead people to commit crimes. Currently, effective rehabilitation programs are not offered in prisons; instead, the carceral system relies upon the erroneous assumption that incarceration itself fixes individual and social problems. In fact, prison conditions further entrench problematic behaviors. True rehabilitation allows incarcerated individuals to confront the offenses they committed, adopt new ways of thinking, and heal underlying trauma. The author, who has been incarcerated since 1989, identifies the lack of rehabilitation opportunities in prisons and offers a better, more humane way forward

Judges as Bullies

It can’t be easy being a judge. The responsibility is enormous: to protect and maintain the rule of law; determine facts and law; resolve disputes large and small; and, in criminal matters, decide whether a fellow citizen remains free or not. In essence, we look to judges to articulate the meaning of “justice”—no doubt knowing all the while, as Clarence Darrow famously noted, “There is no such thing as justice, in or out of court.” I like and respect some judges, but not as many as I should. While some judges have the requisite ability and temperament for the bench—knowledge of the law, independence, fairness, patience, courage, compassion, and humility—too many do not. Too many are mean-spirited and arrogant, going out of their way to insult, ridicule, and demean those who come before them. In short, they are bullies. Bullies on the bench may be an inevitable result of our politicized process of judicial selection, especially on the state level, where most judges are elected. Politics doesn’t usually bring out the best judges or the best in judges. Becoming a bully may also be an occupational hazard. When your daily life consists of sitting in an elevated position in judicial robes, with people bowing and scraping before you, it likely goes to your head. As Steven Lubet says, judges are the “maximum boss” and “[e]veryone else is a supplicant.” This Essay is not about the judges I like and respect, but the ones who have become (or perhaps always were) bullies. Because I am a criminal defense lawyer who has practiced almost entirely in state criminal courts, my stories tend to come from those courts. It might also be that judges are at their worst when they preside over criminal matters

Toward Universal Deportation Defense: An Optimistic View

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, Professor Michael Kagan makes no real predictions. Instead, he offers a deliberately-perhaps even blindly optimistic assessment of how concrete steps that have already been taken could grow into a system of universal deportation defense. In the process, he tries to identify what still needs to happen for this to be achieved, and offer some thoughts on how this might change the practice of immigration law in the United States

Unwinding “Law And Order”: How Second Look Mechanisms Resist Mass Incarceration and Increase Justice

For decades, the United States has used incarceration to achieve a particularized version of safety. Amidst the civil rights movement, presidential candidate Barry Goldwater wielded the phrase “law and order” against the masses of Black men, women, and children in their fight for equitable treatment. This came at a time when “[i]t was no longer socially permissible for polite White people to say they opposed equal rights for Black Americans. Instead, they began ‘talking about the urban uprisings’” and “attaching [those] to street crime, to ordinary lawlessness[.]” The result was a decades-long, persistent campaign to maintain order by arresting and incarcerating communities of color and people experiencing poverty

Reducing Multigenerational Poverty in New York Through Sentencing Reform

The relationship between incarceration and poverty is circular, cyclical, and symbiotic – poverty is a cause of incarceration, and incarceration causes poverty. In the 1970’s and 1990’s, New York led the country in enacting draconian sentencing laws that required judges to sentence children and adults to longer periods of incarceration, while also reducing the ability of incarcerated people to earn time off of their sentences for participation in rehabilitative, vocational, and educational programming. For the past half century, these harsh sentencing laws have been the primary driver of mass incarceration in New York. As a result, generations of families with criminal legal system involvement have been damned to multigenerational poverty. This is most profound in low-income communities, particularly low-income Black and brown communities. Incarceration often deprives children, partners, and other family members of a breadwinner. Even when breadwinners are released from incarceration, incomes for former imprisoned people are between ten and twenty percent lower than those who were never imprisoned. Even incomes for those formerly incarcerated in juvenile detention facilities are lower than the incomes of those who were not. Further, the children of incarcerated parents suffer from psychological, emotional, and educational trauma. These children are six times more likely to be incarcerated in their lives than their peers who do not have incarcerated parents. Romantic partners and co-parents of incarcerated people often struggle with anxiety, stress, and financial precarity. Mass incarceration in New York continues to be a policy choice, and sentencing reform is an important tool to fight individual and multigenerational poverty. This article ultimately presents five legislative proposals that would reduce mass incarceration in New York. Repealing the juvenile offender statute will prevent children as young as 13 years old from being given life sentences; the Youth Justice and Opportunities Act would expand, strengthen, and establish alternative sentencing structures for people under 26 years old that would limit the length of incarceration while also sparing young people from the scarlet mark of a permanent criminal conviction; the Eliminate Mandatory Minimums Act would unchain judges from the rigidity and cruelty of New York’s current sentencing paradigm, while requiring them to consider noncustodial sentences and alternatives to incarceration; the Second Look Act would enable those who are already sentenced to long periods of incarceration to apply for a reduced sentence; and the Earned Time Act would enable incarcerated people to earn time off of their sentence for participating in educational, rehabilitative, or vocational programming

Casting Out from the Inside: Abolishing Felony Disenfranchisement in New York

Felony disenfranchisement laws are an archaic practice, meant to silence a population that is often forgotten and overlooked by society. On the principles of rehabilitation and accountability, New York State ought to completely abolish felony disenfranchisement. It does not deter crime. In fact, recidivism rates show a decline when incarcerated individuals have rehabilitative opportunities through New York State Department of Corrections and Community Supervision ( DOCCS )-facilitated programming and family services. As the arguments laid out in this Comment demonstrate, it is imperative that the New York State Legislature takes prompt action to abolish felony disenfranchisement altogether

Can COVID-19 Teach Us How to End Mass Incarceration?

In this essay, the author argues that federal, state and local government response to the COVID-19 epidemic in prisons and jails was largely incompetent, inhumane, and contrary to sound public health policy, resulting in preventable death and suffering for both incarcerated people and corrections staff. However, the lessons learned from these failures provide a roadmap for policy priorities and legal reform in our ongoing need to decarcerate and end the era of mass incarceration, including: (1) rolling back extreme sentences, recalibrating sentences generally and providing for “second look” mechanisms to those currently serving sentences beyond 10 years; (2) ensuring that decarceration efforts center racial justice as a goal both prospectively and retrospectively; and (3) promoting voting rights for all incarcerated people and those living in the community with a felony conviction

How Do We Reach a National Tipping Point in the Campaign to Stop Solitary?

The use and abuse of solitary confinement in American prisons, jails, and juvenile detention centers is at epidemic levels. On any given day 80,000 to 100,000 people in prisons are subjected to a practice considered inhumane and degrading treatment—even torture under international human rights standards. Despite widespread international condemnation, decades of research demonstrating the harm it inflicts on human beings, and a growing chorus from the medical community raising alarms about its impact on the brain, solitary confinement remains a routine prison-management strategy in correctional institutions nationwide. In the past decade, however, a growing movement has emerged to challenge the use of solitary confinement. This movement is variously driven by civil society campaigns, the emergence of strong international human rights standards, allies in government, civil rights litigation, corrections leadership, and increasing levels of public information and media attention. The question remains whether the current reform movement will be sufficient to create a tipping point whereby solitary confinement is rejected as an acceptable practice in the American sociocultural context and legal landscape. This Essay examines the current factors driving the movement against solitary and posits that a national tipping point is possible with more concerted effort to shift public opinion; increased documentation, research and promotion of alternatives that allow for the safe, humane, and effective management of carceral institutions; and implementation of greater oversight and accountability in corrections institutions in the United States more broadly