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Judge Rakoff delivers Powerful “Fourth Principal” Argument against Mass Incarceration

— April 16, 2015

Southern New York District Judge, Jed Rakoff, delivered a poignant speech regarding the issue of mass incarceration in the U.S. criminal justice system. Speaking at a Harvard Law School conference on the responsibilities and roles that lawyers play both professionally and as citizens on April 10th, Rakoff gave a “fourth principal” argument, taking a non-judicial stand, and instead providing a social commentary that he and other scholars believe to be an essential role of lawyers and judges. The topic of the speech was the deleterious effects of mass incarceration, especially among young minorities.

Basing his speech off of the thematic essay of the Harvard conference, Lawyers as Professionals and Citizens, written by Ben Heineman, Bill Lee, and David Wilkins, Rakoff references the fourth ethical responsibility that the authors mention, calling it the “fourth principal.” Rakoff summarizes this principal as, “the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.” He cites his mentor and former president of the New York City Bar Association, Francis Plimpton, as his inspiration for taking the fourth principal stand at the conference. During Plimpton’s term as president, he embraced many of the social revolutions of the 1960’s including racial and gender issues, during a time when the legal profession generally frowned on the excesses of that decade. Plimpton also penned a strongly-worded anti-war declaration in 1972 after completing his term as president, which the bar adopted after he argued its fourth-principal merits.

In the speech, Rakoff provides alarming statistics, stating that “more than 2.2 million people are currently incarcerated in U.S. jails and prisons, a 500 percent increase over the past 40 years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population. The per capita incarceration rate in the U.S. is one-and-a-half times that of second-place Rwanda and third-place Russia.” Rakoff also notes how these sentences disproportionally affect minorities, especially young African-American males, of which 1 out of every 9 are currently in prison, stating:

“…by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons, many of who have learned in prison how better to commit future crimes. And it is even true in the symbolic sense: by locking up, sooner or later, one out of every three African-American males, we send a message that our society has no better cure for racial disparities than brute force.”

He blames the increase of prisoners on the push for mandatory minimum sentencing requirements beginning in the 1970s that do not give judges discretion based on contextual factors, or offer sentencing alternatives like probation or addiction treatment as examples. He also highlights the largest proportional increase in prison sentences being given to non-violent drug offenders. For this, he blames the “war on drugs” mentality from the 1970s and 1980s, and the lack of political will to roll back the increasingly harsher penalties. Rakoff also assesses the counterargument that has led to the lack of will; that crime rates have dropped 50 percent since 1991, and many feel that is due to the fact that the most likely offending recidivists are already incarcerated. He cites a myriad of scholarly studies that show there is no statistical consensus on how much the decrease in crime is due to the increase in prisoners, but he concedes that there is some level of significance.

The speech also references Supreme Court Justices Kennedy and Breyer’s, March 23rd off-topic commentary about major problems surrounding the criminal justice system during a House subcommittee meeting in which Kennedy stated that the criminal justice system “in many respects, is broken.” Given Kennedy’s position as a centrist, and his tendency to uphold tough sentences and defer to lawmakers on these issues, Kennedy gave evidence regarding the success of alternative sentencing in other countries, as well as the cost-factor of the status-quo as the basis for his argument. Kennedy added, however, “without reference to the human factor,” after listing his reasons. Many see the latter comment to be an indication that even he is beginning to see, like Rakoff asserts, that over-incarceration is a blooming human-rights issue in addition to a legal one.


Bloomberg BNA – Jed Rakoff

New York Times – Editorial Board

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