Rachel Barkow’s Steps for Ending Tragic Cruelty

I'm serving a 30-year federal prison sentence for a nonviolent offense.

There is no parole in the federal system.

I've seen firsthand how callous and apathetic people in the business of law can be. I remember plea discussions. One of the federal prosecutors said, "She [the judge] would give you the death penalty if she could." The death penalty? I made misrepresentations to 3 (not 3,000) high-net-worth investors, causing a combined loss of $106 thousand (not $106 million). The prosecutor wasn't joking. He didn't laugh. Everyone got quiet after he said that and just kind of looked at one another. He cleared his throat and said,

"Well, she's a tough judge." He wasn't lying.

I was crushed with 30 years in federal prison—30 years. I didn't wipe out the life savings of hundreds of people. Hardly. Through clever tricks, humans ratcheted up my U.S. Sentencing Guideline range to life in prison—the same as Bernie Madoff's sentencing range. My case involved $106 thousand in losses; Madoff's involved $50 billion. Yes, there is a glaring disconnect at play. Far too often, it's not about justice. It's about crushing with brutal sentences pesky defendants who have the audacity to push back in any way (e.g., exercising his or her right to a jury trial or even filing a pretrial motion to suppress or similar motions that inconvenience the federal government). To that end, even people who committed relatively minor nonviolent offenses and pleaded guilty are routinely pulverized with ridiculous prison sentences that span decades (there is no parole in the federal system)—some are even buried alive with life in prison without the possibility of parole.  Ever crush a cockroach with your shoe? A judge giving someone decades or life in prison without the possibility of parole (aka, death by imprisonment) for a relatively minor nonviolent offense is akin to squashing a cockroach. It is. No need for euphemistic speech.

It says that human life has no value. What kind of human can give another human life in prison without the possibility of parole for a run-of-the-mill nonviolent offense? I understand that we need prisons and the justice system, but I don't get that. I never will. 

Despite a wealth of empirical evidence, this practice flourishes, demonstrating that such sentences are purely punitive as they serve no valid purpose. Sure, Charles Manson and Ted Bundy need to be incapacitated. But do low-level, nonviolent offenses really merit decades in a cage? 

In federal criminal court, this is business as usual. Most people in the business of law don't even flinch at such outrageous sentences. Rather, they watch men's and women's lives go up in smoke and then go to lunch without a second thought.

If you follow my blogs, you know that I write about exceptional people in the business of law who are sensitive to such tragedies. Although MiAngel Cody and Brittany K. Barnett are my favorites, I have a dream team: MiAngel Cody, Brittany K. Barnett, Amy Povah, Jessica Jackson, Kim Kardashian, Nancy Gertner, and Mark Osler.  Now, I'm adding Rachel Barkow.

That said, the world has become more and more fascinated with Artificial Intelligence (A.I.). What is it about the prospect of highly intelligent robots ruling the world that appeals to so many of us? Perhaps we recognize the intrinsic value of making decisions based solely on data without messy human emotions getting involved.

Because sometimes human emotions royally screw things up. Case in point, the criminal justice system. 

According to data from the United States Department of Justice, over 2 million people are currently rotting in jail in this country. That's a shockingly high number and might have something to do with the fact that our country incarcerates citizens at a rate 5 to 10 times higher than other industrialized countries. In fact, the incarceration rate in this country has increased a whopping 500% over the past 40 years!

What has caused this massive surge in incarcerations and lengthy prison terms? Is it that more people are committing more crimes, and the crimes they are committing are BIG ones?

According to Rachel Barkow, the Segal Family Professor of Regulatory Law and Policy and Faculty Director of the Center on the Administration of Criminal Law at New York University School of Law, the surge in incarcerations can be chalked up to human emotions royally screwing things up. 

In her book "Prisoners of Politics," Barkow clearly lays out how, over the last 40 years, the U.S. criminal justice system has become a victim to "tough on crime" populism. Beginning in the late 1960s and continuing through the 1990s, politicians began running their campaigns from a "tough on crime" perspective. This angle seemed to garner more votes than the traditional economic benefits touted by previous hopeful candidates.

The result? Far more criminal laws were added during these four decades than at any other time in this nation's history. An increase in penal severity was the silver bullet that killed that old human emotion of fear. But was that fear justified, or something manufactured by a collaboration between television, print media, and greedy politicians hoping for another term? 

In her book, Barkow suggests the latter and recommends that the justice system shift from one whose policies are based on the whims of the electorate to one that sets policy based on defining goals and analyzing data. 

Have the severe penal codes resulted in fewer crimes committed or more crimes? What do the numbers tell us? If we removed human emotions and relied solely on hardcore data and expertise, what would be the outcomes?

As Barkow points out in her book, our current justice system continually recycles offenders through a broken system that leads to ever-mounting costs and a growing class of permanently criminalized citizens. And the real kicker, our current codes don't do anything to increase public safety. It's a waste all around: a waste of money, resources, and, more importantly, human life.

Barkow believes we need to follow the same model used to set food and workplace safety rules by relying on data and expertise to set policy. In her book, she lays out empirical information on how she believes the system can prevent crime and improve the reentry of former prisoners into society.

Of course, this refreshing common sense approach to justice reform could only come from someone who has "been there, done that." Barkow is not "just an academic." Her insights result from serving as a member of the United States Sentencing Commission under former President Barack Obama. During her tenure, the Commission made significant efforts to reform sentencing laws. However, these efforts were met with sizeable resistance from Congress.

But her insights don't stop there. She and fellow justice reformer Mark Olster started a "pop up" clemency clinic in 2014 to help inmates apply for clemency. Their efforts resulted in 96 inmates being released and getting a second chance at life. For this, Barkow earned the prestigious NYU Making A Difference Award, an acknowledgment typically reserved for those individuals who make a profoundly beneficial impact on the world.

Do Harsh Sentences Really Lead to a Safer or Better Society?

Our law enforcement tends to take a "lock them up and throwing away the key" approach to keeping our streets safe from criminals. But again, what does the data say?

In her book, Barkow shares some eye-opening statistics: Not only do the high rates of incarceration NOT lead to better public safety outcomes but incarcerating people also makes them more likely to commit more crimes, not less! In addition, these offenders commit crimes at such a rate as to outweigh any reduction in crime rates.

Barkow has said,

"I do think that people have a sense that, 'I'm going to lock them up and throw away the key.' But, we never throw away the key. Ninety-five percent of the time, the person comes back out, and you are just kicking the can down the road. Incarceration is buying you some time, but the underlying issues the person might have, or the underlying cause of the crime in the first place, you're just putting off."

Barkow's stance reminds us of a fundamental fact many people choose to ignore: that all human beings have the potential to grow and change. The 20-year-old kid who sold a little weed is not the same person as the 40-year-old man who has become educated and just wants to return to his family and be a father to his children.

Justice reform addresses these issues. Barkow believes that society will collectively benefit if we develop and implement sensible, evidence-based approaches to improving public safety through sentencing reform.

How Did We Get Here, Exactly?

I mentioned earlier that politicians and the media historically worked together to create frightening populist images, those of career criminals, dangerous gang members, and drug kingpins, to run campaigns around and build severe penal laws. These laws make it incredibly easy, too easy, for prosecutors to gain convictions and notches on their resumes. 

Typically, the bigger the crimes and the longer the sentences, the bigger those notches are. And because of the broad range of crimes under these newer penal laws, the more often the punishment DOES NOT fit the crime. 

Barkow points out that in allowing prosecutors to choose what crimes to charge, we have given them essentially unreviewable discretion to set the likely prison sentence. And, since many sentencing scenarios limit the power of judges to choose a sentence within an appropriate range, defendants are often forced to opt for a plea bargain to avoid getting the proverbial book thrown at them. The result is, more often than not, a level of punishment that far outweighs the guilt.

Where Do We Go from Here?

Barkow understands that changing the system isn't easy. She's been fighting for over a decade, making little headway. Admittedly, once the genie of populism is out of the bottle, it's hard to get it back in.

Change is challenging because numerous checks on populism built into our Constitution were systematically trimmed away during the war on crime of the late 20th century. For instance, clemency, the ability of the President of the United States to pardon or reduce penalties, has been largely abandoned because it is seen as "political suicide" by many.

Another check that has essentially gone by the wayside is the judiciary. The 8th Amendment bans cruel and unusual punishment, and the Supreme Court has historically recognized this. But in recent decades, in an attempt to calm the masses, the court set a threshold for 'grossly disproportionate sentences' so high that it is nearly impossible for an offender to win relief going this route.

Barkow recognizes that criminal justice reform will likely unfold in an incredibly complex way, but she sees her expertise and data-first approach as the greatest means to an end of mass incarceration. In her book, Barkow lays out the crucial steps we'll need to take.

First, eliminate mandatory sentences, which inevitably lump offenders together of vastly different "guilt" levels and give them all the same punishment – the one created for the worst of the worst.

Next, enable judges to have the discretion to tailor sentences to the actual facts laid out before them. While the goal with this constraint was to potentially reduce disparities based on which judge you get, the power has now been shifted to prosecutors. So the disparities remain, just now in the prosecutor's office instead of the judge's chamber.

Next, Barkow believes we need to change the way laws define crimes. Laws tend to group together people of incredibly different levels of culpability. For instance, the category of "sex offender" includes people who commit rape as well as teenagers who sext one another. "Career criminals" can consist of those who have committed heinous, violent offenses as well as those who have no violent actions in their past.

We can and need to do better at recognizing smaller categories. Lumping everyone together leads to people rotting in jail without the possibility of parole for lesser, nonviolent crimes. 

Barkow also points out that unfair sentencing leads to harsher-than-necessary punishments and collateral consequences once offenders are on the outside. When lesser convictions can be defined as "felonies," anyone with a felony conviction can find themselves banned from public housing, welfare benefits, and job opportunities. Many offenders with no real job or housing prospects are far more likely to re-offend. Hardly an effective way to reach better safety outcomes in society.

And finally, we can't improve the justice system unless we improve media coverage around crime. There is no denying that in recent decades, the news cycle has been built around a culture of "if it bleeds, it leads." Journalists tend to highlight the most gruesome crimes to gain the most viewers. 

What doesn't get much coverage is how our current criminal justice policy-making system harms public safety in the long run. Nope, you don't generally hear a peep about it. We need to have journalists become more interested in telling human stories of people suffering from excessive criminal punishment.

In a recent interview, Barkow admitted the heartache she felt while researching her book and coming across countless stories of a government official having the discretion to stop an unnecessarily harsh punishment from falling on someone who did not deserve it but instead choosing to do nothing. "To get the world of mass incarceration we have today, sadly, takes a village. It takes willing prosecutors, judges, politicians, and everyday citizens all going along with tragic cruelty."

Ideas Whose Time Have Come

Barkow admits that her ideas will not lead to instant, radical change. And this is mainly because there are far too many powerful interests with a significant stake in keeping things as is. You'll be hard-pressed to find someone in law enforcement, especially prosecutors, support reductions in sentences, and any changes they feel will make their jobs harder. 

For instance, in New York, prosecutors are campaigning against a new law that would require them to share exculpatory information with defendants earlier in the process. While this law is already "a thing" in Texas and working just fine, New York prosecutors are again trying to scare the public into believing the new law will lead to blood on the streets.

And so, the fight won't be easy. But Barkow believes her ideas of reform will begin to counter the poisonous dynamics born from the unhinged populist politics of the late 20th century. And if the summer of 2020 is any indication, a period when people came together to march against systemic racism and for criminal justice reform, the people have begun to awaken to the fact that they have been duped. Hopefully, more of the public will become outraged at the myths and the inhumanity that have been perpetuated and join the fight.

Like MiAngel Cody, Brittany K. Barnett, Jessica Jackson, Amy Povah, Kim Kardashian, Mark Osler, and Nancy Gertner, Rachel Barkow is a special person, an outlier.

All these remarkable people have one thing in common—they are selfless people driven by compassion and an overwhelming desire to fix a broken system of justice. They value human life in ways that escape most people who are in the business of law.

What's more, they recognize that the oversimplified lock-em-up-and-throw-away-the-key approach is deeply flawed.  And they understand that people are complex, that people can change. So they have devoted their lives not to the law but rather to justice. Rachel Barkow deserves the spotlight for her selfless acts tied to making the world a better place.

She's a visionary in much the same way Steve Jobs was.