The Limits of Litigation
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.