The Law Made Us Do It: 46 Times

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The media have agreed that we face a catastrophic crisis in mass incarceration, andwe are being treated to a swelling chorus of ex-presidents, retired judges and remorseful prosecution agencies all agreeing that we have a disaster on our hands.

Despite its diversity, the ensemble harmonizes flawlessly on the poignant motif: “The Law Made Us Do It!”

Like Hell it did.

“The Law” gave you the tools to do it with, but you are the ones who choose to pick up the tools and to use them.

Unless we all face up to that fact and understand why the choices these actors made seemed like good ideas to them at the time, they (or their successors) will, after a fleeting interval, just do it again.

Consider the list of 46 drug sentences just commuted by President Barack Obama.

This pitiful number of commutations in the face of a “mass” phenomenon results from the fact that it was easier for a camel to pass through the eye of a needle than for prisoners to weave a way through the list of six eligibility criteria set up by the Pardons Office at the Department of Justice (DOJ).

The DOJ’s first criterion alone would have been enough to eliminate many candidates. Prisoners were only eligible for pardon if they, “By operation of law likely would have received a substantially lower sentence if convicted of the same offense today.”

In other words, if you can show that a bad law caused your grotesque sentence, then you can be considered for a break. Blame “The Law,” not us: you might have a shot.

But the fact is, in every one of the 46 cases that ultimately won commutation—and in all of the others that didn’t as well—there was a moment when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke.

They could have zigged, but they chose to zag.

Much of the punditry on the “criminal justice reform” wave is based on a false understanding—or at least one so radically incomplete that it might as well be false— of the sources of distended sentences and warped racial impact.

This prevailing version of the etiology of mass incarceration imagines that some legislator, prosecutor or judge sat and pondered the interaction of various substantive criminal law goals such as punishment, deterrence, incapacitation, and rehabilitation, and decided on a legislative scheme, a prosecutorial strategy or a sentence. Next, they picked a number based on a careful policy calculation.

Now, we, from Rand Paul to Bernie Sanders, see that our predecessors miscalculated. So, we will simply find a new, better number: change the statute, rewrite the policy.

But what we confront here is not a dispute among mandarins about sentencing philosophy that can be permanently resolved by top-down legislative methods.

What we actually face is a population of cops, lawyers, probation officers, and judges trying to get through their days. They are not driven by ideological commitments or racist theories. But they are under pressure, from the political and media climates, their caseloads, the docket lists, their peers, and the administrators who thirst for “outputs.”

They don’t set out to do extraordinary harm to individual minority defendants; it’s worse than that. The fact is they don’t care enough about any individual minority defendant to target one. They barely see them.

These players are seeking their own safety as much as they are seeking anything, and their strongest allegiance is to the path of least resistance.

They want to get to get rid of the damned case without a trial, and to move on to the next one. Then, tomorrow, they will be able to handle that next case in the same way as long as they manage to preserve the “going rate” today. .”) Long sentences are a weapon in their struggle, not their goal.

Their decisions may be incorrect, and they may not be exactly admirable; but they are rational. They solve a local problem, at least for a moment.

Their incentives will remain in place even after the formal laws or policies up in the stratosphere have changed. So, for example, even after Attorney General Holder had announced with much fanfare the DOJ’s new sentencing and plea bargaining policy, frontline Assistant United States Attorneys in the Southern District of New York still asked for a 50-year sentence for a defendant who had the temerity to turn down a 10-year plea bargain and demand a trial.

No change in “The Law” (or laws) can be a quick fix to the plague of racially skewed mass incarceration because “The Law” was never the sole cause of the disease in the first place.

Like workers in any deluged production system the criminal justice system’s workers are responding to the pressures they feel with triage, “work-arounds” and “covert work rules” that they see as indispensable to doing the work they’ve been assigned. (“Nice for the Attorney General to a have a policy; me, I’m stuck with a caseload.”)

The catastrophic aggregation that goes by the name “mass incarceration” is built out of a pile of these small choices made on the frontlines.

Enact new laws while leaving the pressures the frontline actors are responding to in place and the system will quickly find itself a new path to the same end.

We need to account for causes beyond “The Law.”

So, now that we have found what the DOJ sees as the 46 worst federal criminal sentences in existence, we shouldn’t just mitigate them and then walk away.

We should find out why they happened. We should treat them as a treasure.

If we go through our list of 46 and see who zigged when they should have zagged—and, more importantly, why—we might be able to do something to prevent constant recurrence.

For this process to work, blame has to be beside the point: reciprocal finger-pointing will get us nowhere. The goal is “forward-looking accountability,” not punishment or shaming.

And we have to have everyone at the table. The perspectives of the prisoners, their communities, and of the researchers who can tell us where the aggregation of similar tendencies leads, will all have to get a hearing.

We can’t fix mass incarceration by commuting 46 sentences at a time.

Even if we could, the problems wouldn’t stay fixed.

As Attorney General Holder pointed out last year, “If we truly hope to get to the bottom of errors and reduce the chances of repeating them, then it is time we explore a new, system-wide way of responding, not by pointing fingers, but by forthrightly assessing our processes, looking for weakness in our methods, and redesigning our approach.”

The commutation cases give us 46 places to start.

Editors Note: For another view on commutations and clemency, please see Margaret Colgate Love’s Viewpoint “Clemency Is Not the Answer“.

James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice, and the principal essayist in the National Institute of Justice Special Report, Mending Justice: Sentinel Event Reviews (2014). The opinions expressed here as his own. He welcomes comment from readers.

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