Catch and release

There is a lot of talk about reducing federal prison populations. This discussion is almost always connected to the exercise of judicial discretion by federal judges.  For example, see the very thoughtful article entitled A ‘Holocaust in Slow Motion?’ America’s Mass Incarceration and the Role of Discretion written by Professor Mark Osler and my friend Judge Mark Bennett. These discussions are premised on two related ideas: (1) the federal prison population is comprised of many people who don’t need to be there and (2) if federal judges would only exercise their discretion, they would learn that a large number of guilty people who appear before them don’t need to go to prison.

The problem I have with this talk is that (1) most of the guilty people I see ought to be in federal prison and (2) I am no good at distinguishing between those who should go to prison and those who should remain out of prison.  And that realization in turn reminds me of the following cartoon which perfectly captures my views about the rush to reduce federal prison populations through the exercise of federal judicial discretion:

Image credit: (copyright 2011).

Image credit: (copyright 2011) licensed by Jantoo Cartoons.



7 responses

  1. I am so tired of knee-jerk, second guessers with generalized conclusions by folks who aren’t on the hot seat and don’t have to deal with victims or recidivism.

  2. When Richard Pryor made “Stir Crazy” on location in some huge prison, after filming completed, he supposedly said “Thank God For Penitentiaries! There are some evil people. I defend them to the best of my ability, but Father Flanagan was wrong-there is such a thing as a bad boy!

  3. Judge —

    Not to be a pain (a phrase that almost always assures that what follows will demonstrate that the writer is in fact just that), but I recall one of your complaints about Section 3553 has been that the considerations are inconsistent. Doesn’t your post suffer from the same problem? If you’re no good at deciding who should go to prison and who shouldn’t, how do you know that most of the guilty people you see should be in federal prison? More substantively, is your point that it is inherently difficult for judges to make such determinations or that it is difficult for you in particular?


  4. David,

    You aren’t being a pain. Sloppy writing on my part. My point is really two fold: (1) most of the folks I see should go to prison and most reasonable observers would agree; (2) in the few “close” cases where a judge must decide between prison and probation, I am not good at making that decision personally and section 3553(a) is not much help.

    All the best.


  5. Judge —

    Is there a reasonable alternative to judges exercising some level of discretion about those “close” cases? Even under a flawed Section 3553, it seems to me better to have experienced judicial officers exercising at least some discretion in the “close” cases rather than having a discretionless statute that either sends all “close” cases to prison or probation. (I realize that might sound naive coming from a guy who’s never had to sentence someone.)


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