Prison Law Blog

Sara Mayeux

The Limits of Litigation

with 2 comments

If I am correct in concluding that the criminal justice system of this country is incarcerating citizens at an unjustifiable level with clear overtones of racial discrimination, the quest is, where do we go from here? This issue is very different from the issue of prison conditions. Resort to the courts was appropriate and useful in the fight to improve prison conditions, but reformation of incarceration policy cannot be achieved by litigation. A change in the incarceration policy can only be achieved by political action, directed, for the most part, against Congress and state legislatures rather than, as in the cases of prison conditions litigation, against the executive.

Influencing incarceration policy will not be an easy job. It will not depend on resort to the language of the Fifth or Fourteenth Amendments or (in light of Supreme Court opinions legitimizing the most severe sentences) the Eighth Amendment, but rather on rallying the troops to support (or oppose) legislation.

— Judge Morris E. Lasker, “Prison Reform Revisited: A Judge’s Perspective,” 24 Pace Law Review 427 (2004); originally presented at Prison Reform Revisited: A Symposium Held at Pace University School of Law & the New York State Judicial Institute, Oct. 16-18 2003. Full article can be downloaded here. Earlier, I noted Judge Lasker’s death here.

Written by sara

January 22, 2010 at 11:15 am

2 Responses

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  1. I think Judge Lasker is correct that litigation is not the answer.

    I also think that the proponents of changes in incarceration policies need to get their facts straight. Jails are much more complicated than prisons because they serve more functions and there can be large variations in judicial incarceration practices by the same judge between counties in the same judicial district.

    There are major differences between federal and state prisons and it is fairly common for statistics based on federal prisons to be applied to all prisons. There are also substantial differences between state prison policies (in some sates sentences for low level felonies are served in the county jail where in others aggravated misdemeanors can result in prison sentence).

    The use of community based corrections (CBC) can also lead to large differences between states. Unfortunately the down side of CBC is that many of those incarcerated (in both jail and prison) are probation violators.

    There is a very long list of factors that might cause crime but in general the only factors where complete and reliable data are available for jail and prison inmates are gender, age at arrest and race. It turns out that recidivism is a very important factor but in general a proxy for recidivism has to be used in the study of jail and prison inmates. I think that age and recidivism are the dominant factors with gender and race in third and fourth place respectively.

    If you want to reduce jail and prison populations you have to reduce juvenile crime and juvenile and adult recidivism.

    John Neff

    January 23, 2010 at 12:22 pm

  2. […] could take months, it seems like a good time as any to re-post one of my earliest posts, on the limits of litigation. As Judge Morris Lasker put it: “A change in the incarceration policy can only be achieved by […]


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