Caption: John Jeffries
John Jeffries 

John C. Jeffries Jr.-Crime and Punishment in America

From: Chautauqua Institution
Series: Chautauqua Amphitheater Lectures
Length: 01:06:38

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John C. Jeffries Jr. is David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law, his alma mater. A civil rights and federal courts scholar, Jeffries joined the Virginia Law faculty in 1975 and served as dean from 2001 to 2008. He has co-written casebooks on civil rights, federal courts and criminal law, and has published a variety of articles in those fields. He also wrote a biography of Justice Lewis F. Powell Jr. Under Jeffries’ leadership, Virginia Law saw the creation of its Center for the Study of Race and Law and expanded the Virginia Loan Forgiveness Program, which allows graduates to pursue careers in public interest without the burden of law school debt. Jeffries previously held a variety of academic appointments, including the Arnold H. Leon and Emerson Spies professorships. Prior to his teaching career, Jeffries clerked for Justice Powell before serving in the United States Army as a second lieutenant. While a student, Jeffries served as editor-in-chief of the Virginia Law Review. He also received the Z Award for the highest academic average and the Woods Prize for the outstanding graduate.

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by Jess Miller

 

As an academic who studies the U.S. criminal justice system, John C. Jeffries warned Tuesday’s Amphitheater audience that his lecture wouldn’t be a happy one. But after three decades of examination, he believes the end to what he calls the “incarceration epidemic” is finally in sight.

Jeffries, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law, gave the second morning lecture on Week Six’s theme, “Crime and Punishment.”

“What we do in this country to people who commit relatively minor, nonviolent offenses is economically wasteful, morally suspect and deeply corrosive of the sense of community between races and classes,” Jeffries said.

And the conversation about crime in America, Jeffries said, should not center around today’s hot-button issues like the death penalty or DNA testing.

“Our gravest problem is how we treat the guilty,” he said.

When crime rates increase, state and federal legislatures react by passing another law or upping the current penalty, Jeffries said. But though the law may earn  lawmakers political points, its policy implications can be seriously damaging to society.

The United States incarcerates three-and-a-half times more people than Mexico, six times as many people as Canada and more than seven times the rate of Ireland and France, Jeffries said. Today, there are 1.6 million Americans in prison, a 392 percent increase over 32 years, he said.

Jeffries highlighted an important trend that he sees as one cause of the incarceration epidemic: the rise of determinant sentencing.

“This caused a massive shift in sentencing from judges and juries to prosecutors, and a corresponding increase in federal incarceration,” Jeffries said.

Traditionally, sentences were handed by judges, who may have recommended a sentence such as “one to 10 years” or “not more than 10 years,” with the possibility of a suspended sentence in favor of probation. But a safety net needed to be established for those “outlier judges” who were especially harsh or especially lenient, so appellate review was created.

Along with appellate review, however, came determinate sentencing. In 1986, Congress enacted the Anti-Drug Abuse Act, widely regarded as the first official act in the war on drugs. The bill changed the justice system from a more rehabilitative one to a more punitive one, but, more importantly, Jeffries said, it created mandatory minimum and maximum sentences for drug possession.

“The sentences were triggered by the type of drug involved, even if the individual offender was a relatively minor character in the story,” he said.

After the act was passed, a minimum sentence of five years without bail was imposed for anyone possessing five grams of crack cocaine, and the same sentence was given to those who possessed 500 grams of powder cocaine. With the law came the transfer of sentencing power from the judges to the prosecutors.

“What’s happening here is that the judge is not determining whether these draconian penalties are appropriate; it’s the prosecutor who can opt into provisions that trigger mandatory minimums and tie the judges’ hands,” Jeffries said. “It’s the prosecutor — not the judge — who’s calling the shots on the severity of punishment.”

Congress also created a sentencing commission to devise mandatory guidelines for all federal offenses. Jeffries said this urged prosecutors to push for the toughest sentence possible, especially for drug cases.

Even though prosecutors can choose what and how many offenses to charge in a drug case, the biggest concern is that prosecutors are not neutral, Jeffries said.

“None of us should want to live under a criminal justice system where the prosecutor determines punishment,” he said.

But there are grounds for hope. Jeffries mentioned three recent developments that he believes will improve the criminal justice system.

In 2005, the United States Supreme Court ruled that sentencing guidelines could not be mandatory; instead, they had to be treated only as recommendations. The minimum and maximum sentencing guidelines haven’t gone away, but judges now have more power to defy federal prosecutors if they feel the case is not being argued fairly.

Though most Americans wouldn’t consider the 2008 recession good for the country, Jeffries believes the recession had one good impact: It made states too broke to pay for their prisons. Some, like Ohio, resolved this by privatizing the prison sector. But states like California, who couldn’t pay the roughly $43,000 per inmate per year costs, simply reduced their prison populations.

Potentially most important is the “unmistakable shift” in the politics of lawmakers. Since the late 1960s, “tough on crime” has been used to attack politicians on both sides of the spectrum, and thanks to former president Richard Nixon, those who imprison as many people as possible seem like heroes in the war on drugs, Jeffries said.

“So long as that’s true, any attempt to reverse the tide of incarceration is politically risky,” he said. “It means you might get hammered at the polls.”

But today, Jeffries is seeing a change. Conservatives such as Ron Paul, Rick Perry and Grover Norquist are speaking out against the war on drugs. States such as Georgia and Texas are refusing to build more prisons, while simultaneously increasing spending on rehabilitation efforts and working to reduce the sentences of nonviolent offenders.

“This shift in the conservative attitude may be the most important thing happening in American criminal justice today,” Jeffries said. “So long as crime and punishment remain partisan issues, real change will not happen. And we need real change.”

Q&A

Q: You talked a lot about punishment, a little less about crime. Could you, in terms of your statistics — do we commit more crimes here in this country, and perhaps that is why — or have we criminalized more activity than other countries? How does that affect the number of people in the criminal justice system?

A: Are there more crimes, do we commit more crimes? I have no idea. I will say this: Anyone in this Amphitheater who is involved in public affairs, anyone who is involved in business activities, anyone who is active in running a large nonprofit, anyone who does much of anything outside the home is almost certainly guilty of violating a federal crime as we speak. I know I am. And the only reason we’re not prosecuted is that they haven’t bothered with us yet. The reason for that is that crimes are enormously comprehensive, and if you’re not guilty of a federal crime upfront, you almost certainly will be by the time they finish their investigation of you, because if you say anything at any point to anyone in the government that is not true — boom, you’re guilty of false statements. So to ask how many people commit crimes is very, very hard for me to know. I’m very thankful that of those that do commit crimes, few of us are actually prosecuted.

Q: What about the idea of criminalization of activity? Do we have more offenses defined in our statutes than perhaps say Canada and Mexico? 

A: The most dramatic differences is the severity of punishment for drug offenses. In that respect, we are distinctive.

Q: What do you think of restorative justice?

A: I would like first to know what it is.

Q: Our questioner hasn’t defined it; he or she has put it in quotation marks. 

A: It certainly sounds good to me.

Q: How do for-profit prisons affect the equation?

A: For-profit prisons may or may not really affect the equation. The government that uses a for-profit prison has the responsibility to supervise what they do and to monitor their performance, just as if they were employees of the government. Whether they do that consistently or not is a factual question. I suppose the performance on that might be varied. But there is no reason, in principle, why for-profit prisons should be better or worse; that’s an empirical question.

Q: Is there now only a political policy — are there now only political policy issues, or are there any remaining legal issues where the courts could continue to change the landscape of sentencing in America?

A: That is a very good question. Are there only policy issues, and I have spoken about policy, or are there legal issues where the court could change the landscape of sentencing in America? There are certainly specific federal statutes that come up for interpretation, which the court could interpret more broadly or more narrowly. And there is an old rule in the criminal law — it comes, really, from the common law of England — that we ought to have the rule of lenity, have you heard of that expression? The rule of lenity is, if there is doubt about whether something is a crime or not, you should resolve that doubt in favor of “not.” You should resolve in favor of lenity. That rule of lenity is something that has been honored in the breach in the last couple of decades. I think the court could do a better job of returning to that philosophy.

Q: Can you talk a little bit about white-collar crime, and what is the proper punishment for inside trading —or, as this questioner points out, the Bernie Madoffs of the world?

A: Because of Mr. Madoffs, because of the gravity of his wrongdoing and the extraordinary amounts of money involved and the number of people who were injured, I think one is tempted to think that no term of years would be excessive. But let me just say that for most white-collar criminals, I think a certain prospect of a few years in jail would do wonders. You don’t have to execute these people; just a few years at the expense of the taxpayers will really get their attention.

Q: What effect would decriminalization of drugs have, do you think — is that what you’re perhaps suggesting?

A: Decriminalization of drugs is an important topic, one on which I am not an expert, but I think it’s interesting that in this country we actually have that now, with respect to marijuana in many American jurisdictions. Effectively, marijuana is decriminalized in California. You have to go through some hoops, but you can all go through those hoops if you care about it. And it doesn’t seem to be causing any particular problems.

Q: Could you address the plea bargain system we have, and how it affects the justice of our system?

A: You heard me say earlier that the principle way a defendant can get out from under very serious authorized penalties is by recommendation from the prosecutor. That gives the prosecutor the key to the jail. So the prosecutor is in an enormously powerful position when the plea bargain conversation occurs. Think of yourself as the defendant, the prosecutor is on the other side of the table, and the prosecutor says to your lawyer, “Well, you realize that the United States Congress has authorized a maximum penalty for this drug offense of life in prison. And you realize that the only realistic way of getting out of five years is if I say so.” That prosecutor holds all the cards, and the problem with the plea bargain system is the imbalance in that negotiation. People have to say whatever they need to say to get on the right side of the prosecutor.

Q: As a corrections major 50 years ago, I learned we hadn’t decided if we should punish or rehabilitate. Have we still made no progress?

A: Correct.

Q: If the inequality where more blacks being prosecuted is not racism, then what are some of the reasons?

A: Boy, that is a difficult question … and it has been studied and studied and studied. And the best information seems to be that the disproportionate number of African-Americans who are prosecuted reflects a disproportionate number of African-Americans who commit the offenses involved, which is one of the reasons why the disproportion isn’t uniform throughout the criminal justice system, it’s highly concentrated, for example, in drug offenses. But there are always questions involved. Maybe many people commit these offenses and the police are simply more alert to the African-American offender. Maybe the African-American offenders have fewer private resources to shield them from police supervision at arrest. There are many inequities throughout our society on the basis of race;  trying to sort out how they play out in this context is frankly beyond my expertise and ability.

Q: Could you comment on the “three strikes” laws and whether there should be no possibility for early release for repeat offenders?

A: Everybody know about the three strikes law? Well, they’re laws that began in California aimed at recidivist offenders. The idea was if somebody committed the same offense three times in a row, you ought to give up on them and throw away the key. That’s a perfectly sensible view, in my opinion, if the three strikes are really serious crimes. But the three strikes laws have been expanded to the point where people are now being subject to three-strike sentencing where the second offense is shoplifting and the third offense is a minor theft. And when you take relatively minor offenses and trigger the three strikes and you’re out — get the baseball analogy? — when you say to someone after three relatively minor offenses, it’s three strikes you’re out, well, then it’s an overkill situation.

Q: Could you talk about crimes committed by minors, and rehabilitation, and prosecuting minors as adults that a lot of states now do, and the impact of that on the system?

A: When I was a very young lawyer, the treatment of juveniles was radically different from adult offenders. They were treated in different courts, they were treated by different authorities, they were treated by different philosophies. Generally speaking, they didn’t do much incarceration time. And the Supreme Court, in 1968, began to say, “We need to protect the rights of juvenile offenders,” and in protecting the rights of juvenile offenders, the Supreme Court made them more and more like adult offenders. They made juvenile courts more and more like real courts. They made their rights available to their lawyers. Over time, the distinction between being a juvenile defender and adult offender has decreased. I think now, we are beginning to turn the corner on moving back in the opposite direction. And I wish I were an expert, I wish we had someone available to us who could speak authoritatively. Here we are learning a lot from science, and what science has begun to say is that the brain is the most slowly maturing organ in the body. That even after those kids look like adults, and even after they can run and procreate like adults, they still may not be able to think like adults. And that the age by which true mental maturity is reached is not 7 or 11 or 12, but something like 24 or 25. That scientific understanding is revolutionary, and it argues for a reform in the law.

Q: So if there are individuals committing crimes who we don’t think are well-served by incarceration, what should we do with these individuals? What is the cost of that? Are there examples of that from other countries of how they treat convicted criminals, but they’re not being sent to prison?

A: I think that depends hugely … on what kind of criminal activity you’re talking about. If a person is guilty of violent, predatory crime, and we don’t know how to stop that person from doing it, I think we have to lock him up. If a person has a drug habit, and we don’t know how to stop the person from doing it, I think we should try harder. It depends on what kind of damage that person is doing to society. Maybe that example isn’t the best, but I’m just trying to suggest that it’s hard to speak about all crime in one breath. Much of what we put people in prison for today is very scary, very violent, very predatory activity, which we must stop if at all possible. Many people are in jail for things that are wholly nonviolent and not nearly so threatening.

Q: Education seems to be the most effective tool in aiding life patterns. Why isn’t it employed more in prisons?

A: I don’t know. You do have to have people who want to learn. You do have to have people who want to learn, even in law school — even just hypothetically brilliant teachers can’t be ignored by students who sit in the back of the class and play computer games. So maybe it has to do in part with engendering the motivation within the prison to take advantage of the learning opportunities that are being made available there.

Q: If predictable sentencing were to be effective in death penalty cases, why not for other offenses, including drugs?

A: Well, predictable sentences, in this country, are intimately associated with harsh penalties. And it is the severity that seems to be the most questionable. But if a judge were here, and I urge you to ask that question to Judge Gertner —  she’s now a former judge, but she had experience on the United States bench — I believe that judge would say, “Boy, individuals really are different.” Some people have understandable reasons for their misconduct they committed, others are genuine predators. Some have defects of comprehension or personality, which we might be able to treat; others just seem to be bad apples. I think it’s very hard to ignore the difference in individuals when they are in front of you as individuals, which is why judges at least think that justice requires some individual attention.

 Q: Question from Twitter: How can we get the African-American leadership community to play a larger role in fighting crime?

A: Well, I wish you could — maybe I could write a few questions, because maybe I would write ones I can answer. If you don’t mind, I’m going to pass on the opportunity to instruct the African-American leadership committee.

Q: Restorative justice is when the criminal and the victim sit together with a counselor to talk about the effect of the crime. Are you aware of programs such as that and their potential impact?

A: I am aware of some in relatively minor offenses; I don’t know anything really about their impact. I’ll just note that the idea behind that kind of victim-offender conversation is also reflective of something you see all the time on TV, which is the opportunity of victims — or their representatives — to make statements on the sentencing hearing on the impact of the crime. It’s not clear to me that those victims are actually bringing to the table information that should determine the sentence. It is clear to me that they have the right to be heard, and that the act of hearing them lends dignity to the government’s response to what happened to them.

Q: As someone who has been involved in legal education for a long time, what effect does the equality of representation for usually poor clients have in terms of the end result?

A: What effect does the quality of representation by lawyers for poor criminal defendants have? I think it would be impossible to overstate how much impact that has. Here’s our criminal justice system: Our criminal justice system provides more rights, more protections, more opportunities to defend yourself in more ways than any other system on the planet — if you can pay for them. Now if you can’t pay for them, we say that we will hire you a lawyer — all of you know that from the TV Miranda warnings — we’ll hire you a lawyer if you cannot afford one, but believe me, that lawyer we will hire you if you cannot afford one is not Johnnie Cochran. And he doesn’t have a budget of $3 million to spend on experts. So we have all the rights, but for the average, run-of-the-mill, poor criminal defendant who is given appointed counsel, those rights are on a starvation budget. And for most of those defendants, the procedural fairness that you and I would take advantage of and respect — for most of those defendants, that procedural fairness is not fair.

Q: Do you believe felons should be allowed to vote? Why or why not? Is this a race issue, for example, in Virginia?

A: There is a long history of not allowing convicted felons to vote, and that was when we had relatively few convicted felons. Over the years, people have thought more and more, “Well, after one has served the term and done all the punishment, surely you should be admitted back into society and given all the rights and opportunities, including the right to vote.” That is my view, but it is a view that others disagree with.

Q: Again, from Twitter: Is there a trend in juries becoming more or less lenient?

A: The question was whether there was a trend in juries becoming more or less lenient. Not that I know. I think the major fact to say about juries is that they’re utterly inconsistent. Right? Should I say a little bit more? People love the jury, and sometimes I get people irritated with me by being a little snarky about them. But just remember, the jury is a one-time thing. It’s a completely ad hoc group. They don’t see two cases, much less 2,000. They don’t have the opportunity to compare defendants or offenses or punishments, they don’t acquire any expertise or perspective. They come, they do, they leave. So what juries do is extremely hard to describe, because each jury is it’s own unique animal.

Q: Several questions about the privatization of prisons and the impact of it as a policy matter. Would you like to speak a little more about whether this makes sense for the states?

A: It’s not a subject I know much about. You may have to search to find one that I do [know more about].

Q: Are there types of crimes that you believe always warrant incarceration? Is recidivism the key criterion? If not, what is?

A: I think everyone agrees that physically threatening conduct to other people, injurious conduct to other people, warrants incarceration, and that recidivism is by far the greatest red flag in that area. If somebody loses his head in a bar once — well, maybe that’s one thing. If it happens again and again, you’ve got to do something about it. I think everyone agrees with that.

Q: How should judges be chosen? Elected or appointed? Those are your two options. And why?

A: So I was thinking I was getting some vibe from the audience — that everyone in the room was agreeing that the right answer is that they should be chosen by me. Federal judges sit for life; I think that’s something worth rethinking. The duration of a lifetime appointment is a very long thing and a judge who has been on the bench for 10 or 20 or 30 years, sometimes begins to feel altogether too close to God. These people want to go get some lunch. May I suggest you let them?

Q: We’ll let them shortly. Would you — I don’t want to ask this as a yes or no question — can you discuss successful re-entry programs for people leaving prison? Are there successful programs that assist former prisoners get back into the mainstream?

A: That is an incredibly important area, and one in which we have underinvested. But people who are released from prison, they usually need help. And that help is, everybody thinks first, a job. That’s the big thing, but there’s more than that. The lack of any constraint, someone who goes from an environment in which everything is … well, let me just think about college freshman. Have you met a college freshman somewhere who gets away from home and goes a little crazy? Well, think about someone who has been regulated in every respect of his or her daily routine for five years and then is suddenly put out on the street. That transition is a lot to ask for. So we should have major investments as we release people earlier from incarceration. We should take that money and try to use it to find ways of transition back into regular society. And that means some economic opportunity, and it means some social support, as well.

Q: Given the power of federal prosecutors, as you discussed, can you talk a little bit about to what extent … the president or the attorney general or the leadership in Washington affects how prosecutors act on a daily basis?

A: Each United States district — and in each state there is at least one judicial district, in some states there are more, some states as many as four — each judicial district has a United States attorney and then a large number of assistant United States attorneys. Those jobs as United States assistant attorneys are very sought-after jobs by the very best young lawyers. You can’t graduate from law school and do a good enough job to be an AUSA right off the bat. They say, “No, we want you to go to a big law firm and let them train you for a few years, and then we’ll give you the privilege of coming to work for us.” So if you wanted to find a group of people who are really blue chippers, the population of the assistant United States attorneys would be a pretty good place to start. That’s an incredibly gifted, dedicated crowd. At the top of that pyramid is the United States attorney, the individual appointed by the president, and above him or her is the Department of Justice and over the Department of Justice, is, of course, the President of the United States. And we all know that at that point, it’s not just merit; it’s politics. So, of course, the attorney general and the president and the United States attorneys set particular agendas — I think you can see that from reading The New York Times — and those agendas are often motivated in part by political concerns, as well as law enforcement concerns. But again, let me say that the general quality of the federal prosecutorial bench is excellent, and thank goodness. Otherwise, I’d be in a lot of trouble here today.

Q: Would you say the same about the public defender bench, taking into account what you’ve said about the lack of resources that are available?

A: I could recruit from the graduating class at Virginia a group of young lawyers who would be superb public defenders, if you could only find the money to pay them.

—Transcribed by Kelly Tunney

Piece Description

by Jess Miller

 

As an academic who studies the U.S. criminal justice system, John C. Jeffries warned Tuesday’s Amphitheater audience that his lecture wouldn’t be a happy one. But after three decades of examination, he believes the end to what he calls the “incarceration epidemic” is finally in sight.

Jeffries, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law, gave the second morning lecture on Week Six’s theme, “Crime and Punishment.”

“What we do in this country to people who commit relatively minor, nonviolent offenses is economically wasteful, morally suspect and deeply corrosive of the sense of community between races and classes,” Jeffries said.

And the conversation about crime in America, Jeffries said, should not center around today’s hot-button issues like the death penalty or DNA testing.

“Our gravest problem is how we treat the guilty,” he said.

When crime rates increase, state and federal legislatures react by passing another law or upping the current penalty, Jeffries said. But though the law may earn  lawmakers political points, its policy implications can be seriously damaging to society.

The United States incarcerates three-and-a-half times more people than Mexico, six times as many people as Canada and more than seven times the rate of Ireland and France, Jeffries said. Today, there are 1.6 million Americans in prison, a 392 percent increase over 32 years, he said.

Jeffries highlighted an important trend that he sees as one cause of the incarceration epidemic: the rise of determinant sentencing.

“This caused a massive shift in sentencing from judges and juries to prosecutors, and a corresponding increase in federal incarceration,” Jeffries said.

Traditionally, sentences were handed by judges, who may have recommended a sentence such as “one to 10 years” or “not more than 10 years,” with the possibility of a suspended sentence in favor of probation. But a safety net needed to be established for those “outlier judges” who were especially harsh or especially lenient, so appellate review was created.

Along with appellate review, however, came determinate sentencing. In 1986, Congress enacted the Anti-Drug Abuse Act, widely regarded as the first official act in the war on drugs. The bill changed the justice system from a more rehabilitative one to a more punitive one, but, more importantly, Jeffries said, it created mandatory minimum and maximum sentences for drug possession.

“The sentences were triggered by the type of drug involved, even if the individual offender was a relatively minor character in the story,” he said.

After the act was passed, a minimum sentence of five years without bail was imposed for anyone possessing five grams of crack cocaine, and the same sentence was given to those who possessed 500 grams of powder cocaine. With the law came the transfer of sentencing power from the judges to the prosecutors.

“What’s happening here is that the judge is not determining whether these draconian penalties are appropriate; it’s the prosecutor who can opt into provisions that trigger mandatory minimums and tie the judges’ hands,” Jeffries said. “It’s the prosecutor — not the judge — who’s calling the shots on the severity of punishment.”

Congress also created a sentencing commission to devise mandatory guidelines for all federal offenses. Jeffries said this urged prosecutors to push for the toughest sentence possible, especially for drug cases.

Even though prosecutors can choose what and how many offenses to charge in a drug case, the biggest concern is that prosecutors are not neutral, Jeffries said.

“None of us should want to live under a criminal justice system where the prosecutor determines punishment,” he said.

But there are grounds for hope. Jeffries mentioned three recent developments that he believes will improve the criminal justice system.

In 2005, the United States Supreme Court ruled that sentencing guidelines could not be mandatory; instead, they had to be treated only as recommendations. The minimum and maximum sentencing guidelines haven’t gone away, but judges now have more power to defy federal prosecutors if they feel the case is not being argued fairly.

Though most Americans wouldn’t consider the 2008 recession good for the country, Jeffries believes the recession had one good impact: It made states too broke to pay for their prisons. Some, like Ohio, resolved this by privatizing the prison sector. But states like California, who couldn’t pay the roughly $43,000 per inmate per year costs, simply reduced their prison populations.

Potentially most important is the “unmistakable shift” in the politics of lawmakers. Since the late 1960s, “tough on crime” has been used to attack politicians on both sides of the spectrum, and thanks to former president Richard Nixon, those who imprison as many people as possible seem like heroes in the war on drugs, Jeffries said.

“So long as that’s true, any attempt to reverse the tide of incarceration is politically risky,” he said. “It means you might get hammered at the polls.”

But today, Jeffries is seeing a change. Conservatives such as Ron Paul, Rick Perry and Grover Norquist are speaking out against the war on drugs. States such as Georgia and Texas are refusing to build more prisons, while simultaneously increasing spending on rehabilitation efforts and working to reduce the sentences of nonviolent offenders.

“This shift in the conservative attitude may be the most important thing happening in American criminal justice today,” Jeffries said. “So long as crime and punishment remain partisan issues, real change will not happen. And we need real change.”

Q&A

Q: You talked a lot about punishment, a little less about crime. Could you, in terms of your statistics — do we commit more crimes here in this country, and perhaps that is why — or have we criminalized more activity than other countries? How does that affect the number of people in the criminal justice system?

A: Are there more crimes, do we commit more crimes? I have no idea. I will say this: Anyone in this Amphitheater who is involved in public affairs, anyone who is involved in business activities, anyone who is active in running a large nonprofit, anyone who does much of anything outside the home is almost certainly guilty of violating a federal crime as we speak. I know I am. And the only reason we’re not prosecuted is that they haven’t bothered with us yet. The reason for that is that crimes are enormously comprehensive, and if you’re not guilty of a federal crime upfront, you almost certainly will be by the time they finish their investigation of you, because if you say anything at any point to anyone in the government that is not true — boom, you’re guilty of false statements. So to ask how many people commit crimes is very, very hard for me to know. I’m very thankful that of those that do commit crimes, few of us are actually prosecuted.

Q: What about the idea of criminalization of activity? Do we have more offenses defined in our statutes than perhaps say Canada and Mexico? 

A: The most dramatic differences is the severity of punishment for drug offenses. In that respect, we are distinctive.

Q: What do you think of restorative justice?

A: I would like first to know what it is.

Q: Our questioner hasn’t defined it; he or she has put it in quotation marks. 

A: It certainly sounds good to me.

Q: How do for-profit prisons affect the equation?

A: For-profit prisons may or may not really affect the equation. The government that uses a for-profit prison has the responsibility to supervise what they do and to monitor their performance, just as if they were employees of the government. Whether they do that consistently or not is a factual question. I suppose the performance on that might be varied. But there is no reason, in principle, why for-profit prisons should be better or worse; that’s an empirical question.

Q: Is there now only a political policy — are there now only political policy issues, or are there any remaining legal issues where the courts could continue to change the landscape of sentencing in America?

A: That is a very good question. Are there only policy issues, and I have spoken about policy, or are there legal issues where the court could change the landscape of sentencing in America? There are certainly specific federal statutes that come up for interpretation, which the court could interpret more broadly or more narrowly. And there is an old rule in the criminal law — it comes, really, from the common law of England — that we ought to have the rule of lenity, have you heard of that expression? The rule of lenity is, if there is doubt about whether something is a crime or not, you should resolve that doubt in favor of “not.” You should resolve in favor of lenity. That rule of lenity is something that has been honored in the breach in the last couple of decades. I think the court could do a better job of returning to that philosophy.

Q: Can you talk a little bit about white-collar crime, and what is the proper punishment for inside trading —or, as this questioner points out, the Bernie Madoffs of the world?

A: Because of Mr. Madoffs, because of the gravity of his wrongdoing and the extraordinary amounts of money involved and the number of people who were injured, I think one is tempted to think that no term of years would be excessive. But let me just say that for most white-collar criminals, I think a certain prospect of a few years in jail would do wonders. You don’t have to execute these people; just a few years at the expense of the taxpayers will really get their attention.

Q: What effect would decriminalization of drugs have, do you think — is that what you’re perhaps suggesting?

A: Decriminalization of drugs is an important topic, one on which I am not an expert, but I think it’s interesting that in this country we actually have that now, with respect to marijuana in many American jurisdictions. Effectively, marijuana is decriminalized in California. You have to go through some hoops, but you can all go through those hoops if you care about it. And it doesn’t seem to be causing any particular problems.

Q: Could you address the plea bargain system we have, and how it affects the justice of our system?

A: You heard me say earlier that the principle way a defendant can get out from under very serious authorized penalties is by recommendation from the prosecutor. That gives the prosecutor the key to the jail. So the prosecutor is in an enormously powerful position when the plea bargain conversation occurs. Think of yourself as the defendant, the prosecutor is on the other side of the table, and the prosecutor says to your lawyer, “Well, you realize that the United States Congress has authorized a maximum penalty for this drug offense of life in prison. And you realize that the only realistic way of getting out of five years is if I say so.” That prosecutor holds all the cards, and the problem with the plea bargain system is the imbalance in that negotiation. People have to say whatever they need to say to get on the right side of the prosecutor.

Q: As a corrections major 50 years ago, I learned we hadn’t decided if we should punish or rehabilitate. Have we still made no progress?

A: Correct.

Q: If the inequality where more blacks being prosecuted is not racism, then what are some of the reasons?

A: Boy, that is a difficult question … and it has been studied and studied and studied. And the best information seems to be that the disproportionate number of African-Americans who are prosecuted reflects a disproportionate number of African-Americans who commit the offenses involved, which is one of the reasons why the disproportion isn’t uniform throughout the criminal justice system, it’s highly concentrated, for example, in drug offenses. But there are always questions involved. Maybe many people commit these offenses and the police are simply more alert to the African-American offender. Maybe the African-American offenders have fewer private resources to shield them from police supervision at arrest. There are many inequities throughout our society on the basis of race;  trying to sort out how they play out in this context is frankly beyond my expertise and ability.

Q: Could you comment on the “three strikes” laws and whether there should be no possibility for early release for repeat offenders?

A: Everybody know about the three strikes law? Well, they’re laws that began in California aimed at recidivist offenders. The idea was if somebody committed the same offense three times in a row, you ought to give up on them and throw away the key. That’s a perfectly sensible view, in my opinion, if the three strikes are really serious crimes. But the three strikes laws have been expanded to the point where people are now being subject to three-strike sentencing where the second offense is shoplifting and the third offense is a minor theft. And when you take relatively minor offenses and trigger the three strikes and you’re out — get the baseball analogy? — when you say to someone after three relatively minor offenses, it’s three strikes you’re out, well, then it’s an overkill situation.

Q: Could you talk about crimes committed by minors, and rehabilitation, and prosecuting minors as adults that a lot of states now do, and the impact of that on the system?

A: When I was a very young lawyer, the treatment of juveniles was radically different from adult offenders. They were treated in different courts, they were treated by different authorities, they were treated by different philosophies. Generally speaking, they didn’t do much incarceration time. And the Supreme Court, in 1968, began to say, “We need to protect the rights of juvenile offenders,” and in protecting the rights of juvenile offenders, the Supreme Court made them more and more like adult offenders. They made juvenile courts more and more like real courts. They made their rights available to their lawyers. Over time, the distinction between being a juvenile defender and adult offender has decreased. I think now, we are beginning to turn the corner on moving back in the opposite direction. And I wish I were an expert, I wish we had someone available to us who could speak authoritatively. Here we are learning a lot from science, and what science has begun to say is that the brain is the most slowly maturing organ in the body. That even after those kids look like adults, and even after they can run and procreate like adults, they still may not be able to think like adults. And that the age by which true mental maturity is reached is not 7 or 11 or 12, but something like 24 or 25. That scientific understanding is revolutionary, and it argues for a reform in the law.

Q: So if there are individuals committing crimes who we don’t think are well-served by incarceration, what should we do with these individuals? What is the cost of that? Are there examples of that from other countries of how they treat convicted criminals, but they’re not being sent to prison?

A: I think that depends hugely … on what kind of criminal activity you’re talking about. If a person is guilty of violent, predatory crime, and we don’t know how to stop that person from doing it, I think we have to lock him up. If a person has a drug habit, and we don’t know how to stop the person from doing it, I think we should try harder. It depends on what kind of damage that person is doing to society. Maybe that example isn’t the best, but I’m just trying to suggest that it’s hard to speak about all crime in one breath. Much of what we put people in prison for today is very scary, very violent, very predatory activity, which we must stop if at all possible. Many people are in jail for things that are wholly nonviolent and not nearly so threatening.

Q: Education seems to be the most effective tool in aiding life patterns. Why isn’t it employed more in prisons?

A: I don’t know. You do have to have people who want to learn. You do have to have people who want to learn, even in law school — even just hypothetically brilliant teachers can’t be ignored by students who sit in the back of the class and play computer games. So maybe it has to do in part with engendering the motivation within the prison to take advantage of the learning opportunities that are being made available there.

Q: If predictable sentencing were to be effective in death penalty cases, why not for other offenses, including drugs?

A: Well, predictable sentences, in this country, are intimately associated with harsh penalties. And it is the severity that seems to be the most questionable. But if a judge were here, and I urge you to ask that question to Judge Gertner —  she’s now a former judge, but she had experience on the United States bench — I believe that judge would say, “Boy, individuals really are different.” Some people have understandable reasons for their misconduct they committed, others are genuine predators. Some have defects of comprehension or personality, which we might be able to treat; others just seem to be bad apples. I think it’s very hard to ignore the difference in individuals when they are in front of you as individuals, which is why judges at least think that justice requires some individual attention.

 Q: Question from Twitter: How can we get the African-American leadership community to play a larger role in fighting crime?

A: Well, I wish you could — maybe I could write a few questions, because maybe I would write ones I can answer. If you don’t mind, I’m going to pass on the opportunity to instruct the African-American leadership committee.

Q: Restorative justice is when the criminal and the victim sit together with a counselor to talk about the effect of the crime. Are you aware of programs such as that and their potential impact?

A: I am aware of some in relatively minor offenses; I don’t know anything really about their impact. I’ll just note that the idea behind that kind of victim-offender conversation is also reflective of something you see all the time on TV, which is the opportunity of victims — or their representatives — to make statements on the sentencing hearing on the impact of the crime. It’s not clear to me that those victims are actually bringing to the table information that should determine the sentence. It is clear to me that they have the right to be heard, and that the act of hearing them lends dignity to the government’s response to what happened to them.

Q: As someone who has been involved in legal education for a long time, what effect does the equality of representation for usually poor clients have in terms of the end result?

A: What effect does the quality of representation by lawyers for poor criminal defendants have? I think it would be impossible to overstate how much impact that has. Here’s our criminal justice system: Our criminal justice system provides more rights, more protections, more opportunities to defend yourself in more ways than any other system on the planet — if you can pay for them. Now if you can’t pay for them, we say that we will hire you a lawyer — all of you know that from the TV Miranda warnings — we’ll hire you a lawyer if you cannot afford one, but believe me, that lawyer we will hire you if you cannot afford one is not Johnnie Cochran. And he doesn’t have a budget of $3 million to spend on experts. So we have all the rights, but for the average, run-of-the-mill, poor criminal defendant who is given appointed counsel, those rights are on a starvation budget. And for most of those defendants, the procedural fairness that you and I would take advantage of and respect — for most of those defendants, that procedural fairness is not fair.

Q: Do you believe felons should be allowed to vote? Why or why not? Is this a race issue, for example, in Virginia?

A: There is a long history of not allowing convicted felons to vote, and that was when we had relatively few convicted felons. Over the years, people have thought more and more, “Well, after one has served the term and done all the punishment, surely you should be admitted back into society and given all the rights and opportunities, including the right to vote.” That is my view, but it is a view that others disagree with.

Q: Again, from Twitter: Is there a trend in juries becoming more or less lenient?

A: The question was whether there was a trend in juries becoming more or less lenient. Not that I know. I think the major fact to say about juries is that they’re utterly inconsistent. Right? Should I say a little bit more? People love the jury, and sometimes I get people irritated with me by being a little snarky about them. But just remember, the jury is a one-time thing. It’s a completely ad hoc group. They don’t see two cases, much less 2,000. They don’t have the opportunity to compare defendants or offenses or punishments, they don’t acquire any expertise or perspective. They come, they do, they leave. So what juries do is extremely hard to describe, because each jury is it’s own unique animal.

Q: Several questions about the privatization of prisons and the impact of it as a policy matter. Would you like to speak a little more about whether this makes sense for the states?

A: It’s not a subject I know much about. You may have to search to find one that I do [know more about].

Q: Are there types of crimes that you believe always warrant incarceration? Is recidivism the key criterion? If not, what is?

A: I think everyone agrees that physically threatening conduct to other people, injurious conduct to other people, warrants incarceration, and that recidivism is by far the greatest red flag in that area. If somebody loses his head in a bar once — well, maybe that’s one thing. If it happens again and again, you’ve got to do something about it. I think everyone agrees with that.

Q: How should judges be chosen? Elected or appointed? Those are your two options. And why?

A: So I was thinking I was getting some vibe from the audience — that everyone in the room was agreeing that the right answer is that they should be chosen by me. Federal judges sit for life; I think that’s something worth rethinking. The duration of a lifetime appointment is a very long thing and a judge who has been on the bench for 10 or 20 or 30 years, sometimes begins to feel altogether too close to God. These people want to go get some lunch. May I suggest you let them?

Q: We’ll let them shortly. Would you — I don’t want to ask this as a yes or no question — can you discuss successful re-entry programs for people leaving prison? Are there successful programs that assist former prisoners get back into the mainstream?

A: That is an incredibly important area, and one in which we have underinvested. But people who are released from prison, they usually need help. And that help is, everybody thinks first, a job. That’s the big thing, but there’s more than that. The lack of any constraint, someone who goes from an environment in which everything is … well, let me just think about college freshman. Have you met a college freshman somewhere who gets away from home and goes a little crazy? Well, think about someone who has been regulated in every respect of his or her daily routine for five years and then is suddenly put out on the street. That transition is a lot to ask for. So we should have major investments as we release people earlier from incarceration. We should take that money and try to use it to find ways of transition back into regular society. And that means some economic opportunity, and it means some social support, as well.

Q: Given the power of federal prosecutors, as you discussed, can you talk a little bit about to what extent … the president or the attorney general or the leadership in Washington affects how prosecutors act on a daily basis?

A: Each United States district — and in each state there is at least one judicial district, in some states there are more, some states as many as four — each judicial district has a United States attorney and then a large number of assistant United States attorneys. Those jobs as United States assistant attorneys are very sought-after jobs by the very best young lawyers. You can’t graduate from law school and do a good enough job to be an AUSA right off the bat. They say, “No, we want you to go to a big law firm and let them train you for a few years, and then we’ll give you the privilege of coming to work for us.” So if you wanted to find a group of people who are really blue chippers, the population of the assistant United States attorneys would be a pretty good place to start. That’s an incredibly gifted, dedicated crowd. At the top of that pyramid is the United States attorney, the individual appointed by the president, and above him or her is the Department of Justice and over the Department of Justice, is, of course, the President of the United States. And we all know that at that point, it’s not just merit; it’s politics. So, of course, the attorney general and the president and the United States attorneys set particular agendas — I think you can see that from reading The New York Times — and those agendas are often motivated in part by political concerns, as well as law enforcement concerns. But again, let me say that the general quality of the federal prosecutorial bench is excellent, and thank goodness. Otherwise, I’d be in a lot of trouble here today.

Q: Would you say the same about the public defender bench, taking into account what you’ve said about the lack of resources that are available?

A: I could recruit from the graduating class at Virginia a group of young lawyers who would be superb public defenders, if you could only find the money to pay them.

—Transcribed by Kelly Tunney

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