From the New York Times opinion page:
The Democratic presidential candidates should look at what a growing number of prosecutors are doing to end mass incarceration.
By Emily Bazelon, April 5, 2019
The United States spends far too much money locking up far too many people for far too long.
A few years ago, a politician had to be brave to say anything like that out loud. Now it’s a mainstream and bipartisan view. …
That presents a major opportunity for Democratic presidential candidates. But for all the energy behind reform, no presidential candidate has articulated a big, comprehensive vision for transformational change. There’s a consensus that the system is broken, but no agreement on how to fix it.
The presidential candidate looking to distinguish herself might start by looking at a new wave of reform-minded district attorneys who are challenging conventional law-and-order approaches in red states and blue ones.
Like Kim Foxx!
…To end mass incarceration, however, exempting nonviolent offenses from jail time isn’t enough. People convicted of violent crimes make up more than half of the country’s state prison population. But the image of prisons overflowing with murderers and rapists is wrong. In many states, “violent felonies” include offenses like breaking into an empty house or snatching a purse or iPhone on the street. Reducing sentences for these offenses — and changing what counts as a violent felony to begin with — is a good way to start lowering this share of the prison population.
Breaking into your home — a mere technicality. Somebody mugging your mom — that’s not really so bad, now is it? I mean, Donald Trump was sore about his mother being mugged in 1991, so that just shows you how racist it is to object to a little purse-snatching.
Ms. Bazelon is a staff writer for The New York Times Magazine and author of the forthcoming “Charged: The New Movement to Transform Prosecution and End Mass Incarceration.”
Interestingly, Emily Bazelon, whom you are going to be hearing even more from shortly because of her upcoming book, is a hereditary legal pundit. Her grandfather David Bazelon was one of the major architects of the horrific crime wave of the 1960s into the 1990s that destroyed so many once great American cities.
As we can see in my old graph, the homicide rate doubled from roughly 1964-1975, while the imprisonment rate dropped slightly (i.e., the chance of being in prison per crime committed dropped sharply in the liberal 1960s and early 1970s).
But who can remember these days that liberals like David Bazelon took over the American criminal justice system in the 1960s with catastrophic consequences? Emily Bazelon doesn’t appear to remember that.
As head judge of the D.C. circuit court in the 1960s, David Bazelon was the most powerful judge in the country not on the Supreme Court. And as the best friend of the most influential Warren Court justice, William Brennan, Grampa Bazelon often worked behind the scenes with Brennan to set up various cases to get in front of the Warren Court for pre-planned decisions.
So, what could possibly go wrong when you take advice from a Bazelon on how to reform the criminal justice system? From Wikipedia’s entry on David Bazelon:
Influencing the United States Supreme Court
Bazelon was for decades the senior judge on the United States Court of Appeals for the District of Columbia Circuit, and a close associate of Justice William J. Brennan Jr., whom he had met in 1956. Justice William O. Douglas and President Lyndon B. Johnson would be their sometime companions on trips to baseball games.
Bazelon served with Warren E. Burger on the D.C. Circuit for over a decade, and the two grew to be not just professional rivals, but personal enemies as well.
The Washington Post would note in 1981 that during the Warren Court era, lawyers who wanted a Bazelon opinion upheld would do well to mention the judge’s name as many times as possible in their briefs… “One mention of this name was worth 100 pages of legal research.”
Bazelon became a primary source of Justice Brennan’s law clerks.
Bazelon had a broad view of the reach of the Constitution. Conservatives viewed the judge as dangerous for his tendency to rule in favor of the lower class, the mentally ill, and defendants. Bazelon authored many far-reaching decisions on topics as diverse as the environment, the eighteen-year-old vote, discrimination, and the insanity defense. Many of his “radical” rulings were upheld by the Supreme Court.
… Bazelon was the nemesis of Chief Justice Warren E. Burger beginning from the time both served on the Court of Appeals. Bazelon was a nationally recognized advocate for the rights of the mentally ill, and his opinion in 1954’s Durham v. United States (which adopted a new criminal insanity test) set off a long clash between the two judges. Under Bazelon’s Durham rule, a defendant would be excused from criminal responsibility if a jury found that the unlawful act was “the product of mental disease or mental defect,” rather than the product of an “irresistible impulse” (which was the old test).
Bazelon’s innovations helped lead to various terrible and hilarious trial outcomes in the 1970s, such as Dan White’s Twinkie Defense helping him get off with a light verdict for murdering San Francisco’s mayor George Moscone and supervisor Harvey Milk. Bazelon’s Durham Rule turned out to be such a disaster in practice that he had already given up on it after 18 years.
Back in the 1970s, due to Judge Bazelon’s efforts, Temporary Insanity was a big deal as a Get Out of Jail Free card. I’m reminded of the only bit of the mock-soap opera Soap (1977-81) I watched. The father tells his daughter:
Dad: “You can’t marry him. He’s a murderer!”
Daughter: “But, dad, you’re a murderer too.”
Dad: “That’s different. The jury found me temporarily insane.”
From David Bazelon’s NYT obit:
David Bazelon Dies at 83; Jurist Had Wide Influence
By MARILYN BERGER FEB. 21, 1993
David L. Bazelon, who as a Federal appeals court judge for three decades wrote landmark opinions extending the rights of the individual and expanding the rights of criminal defendants, died on Friday at his home in Washington….
As Chief Judge of the appeals court from 1962 to 1978, Judge Bazelon presided as the court was breaking ground in criminal law …
His court’s broad reach resulted from its jurisdiction over Federal regulatory agencies and its role as the appellate court for the nation’s capital. As the Federal Government grew, so did the influence of Judge Bazelon’s court. Next to the Supreme Court, his was considered the most influential court in the country. As its Chief Judge, he was one of the most influential jurists in the land. He was also the focus of sharp debate among admirers and detractors.
In a career spanning eight Presidential administrations, Judge Bazelon (pronounced BAA-zeh-lawn) became a familiar figure in Washington society, a welcome guest with a warm sense of humor, who stayed trim by jogging regularly.
… Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.
…. Judge Bazelon, who believed that the judiciary should reach beyond the bench and speak out on social issues, was assailed by conservatives as being soft on crime and by some legal scholars for bringing the judiciary into the regulatory process.
There was a spirited and bitter antagonism between Judge Bazelon and Chief Justice Warren E. Burger, who had served with him on the appellate court.
In a scathing Supreme Court opinion in 1978, Justice William H. Rehnquist, reflecting the views of the Burger Court, accused the Bazelon court of “judicial intervention run riot.” …
But Judge Bazelon was a heroic figure to many liberals. Joseph L. Rauh Jr., the Washington lawyer who served as a clerk to Justices Benjamin Cardozo and Felix Frankfurter, wrote to Judge Bazelon in 1979, “I have worked for great judges and have known many more great judges, but I believe you have had the most socially useful judicial career in my lifetime.”
Former Justice William J. Brennan Jr. of the Supreme Court, long a close friend of Judge Bazelon, said his major contribution was in extending the Bill of Rights to restrict state power. Justice Brennan said in an interview in 1989 that Judge Bazelon was particularly instrumental in expanding the right of defendants in criminal cases to be represented in court and in extending to the states, through a series of rulings during his years on the appellate court, the right to prohibit evidence that was improperly acquired.
It was not enough, in Judge Bazelon’s view, for a defendant to have legal representation. He believed that the Constitution required the court to look at the quality of that representation.
When he saw a lawyer who did not put enough effort into a case, he would often point at the lawyer and say, “There goes a walking violation of the Sixth Amendment.” Redefining Criminal Insanity
In 1954, applying modern psychiatric theories, Judge Bazelon established a new definition of insanity as a defense in criminal cases. Previously, for almost a century, the test was whether the defendant knew right from wrong. Judge Bazelon wrote in his decision in Durham v. United States that “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”
In 1972 Judge Bazelon concurred in his three-judge court’s decision to establish a more restrictive test, but his opinion in the Durham case generated new consideration of the insanity rule.
Much of his activity on and off the bench was aimed at removing the causes of criminal behavior, making prisons less brutal and assuring greater fairness in sentencing. He vigorously opposed mandated prison sentences that did not give a judge flexibility to set the term. He also urged that society deal with injustices that he believed bred crime: poverty, broken families, racial discrimination and lack of educational opportunity.
In an article in The New York Times in 1977, Judge Bazelon wrote: “It is always easy to concede the inevitability of social injustice and find the serenity to accept it. The far harder task is to feel its intolerability and seek the strength to change it.”
As the youngest of nine children, David Lionel Bazelon once said he came by his feelings for the underdog almost as a birthright. He was born in Superior, Wis., on Sept. 3, 1909, to Israel and Lena Bazelon.