July 15, 2019 Book Review

Rehabilitation and Incarceration: In Search of Fairer and More Productive Sentencing

Reviewed by Robert Costello

Rehabilitation and Incarceration: In Search of Fairer and More Productive Sentencing

By Honorable Harold Baer Jr. (edited by Robert C. Meade Jr.), American Bar Association, 286 pages, 2019.

Judge Harold Baer offers readers a timely and urgent book on how to fix America’s overreliance on incarceration. Appointed as a judge of the US District Court for the Southern District of New York in 1994, Judge Baer harnessed his vast experiences along with pertinent research studies to complete this work. His untimely passing in 2014 leaves us a body of work on the bench as a jurist and as a talented author with three books. Robert C. Meade Jr. gives us insight into Judge Baer’s final book, as he served as editor of this volume.

What is your connection to this book, and how did you know Judge Harold Baer?

I came to know Judge Harold Baer Jr. by happenstance. In the late 1980s, he was a justice of the Supreme Court of the State of New York for New York County. He put an ad in the paper looking for a law secretary. I answered the ad and ended up getting the job. I worked for him in that capacity for over three years, until he left the state bench. We got along very well, and I am privileged to say that we became friends. He was very helpful and kind to me. During his time on the state bench and thereafter, we worked on various legal projects. In addition to his regular judicial work, he almost always had or was developing a project that he hoped might make a contribution. We wrote articles and pamphlets and a chapter in a book. We worked together on a book for which he was one of several authors, and together we wrote a first and second edition of a book of our own. When he was a US district court judge, his courthouse was close to my office and we would often have lunch.

After his untimely passing, his wife, Dr. Suzanne Baer, located chapters for his book among his papers. At a certain point, the chapters ended up with me. The material was in need of some editing, updating of statistics and citations, etc. Based upon my extensive prior experiences working with him on projects, I attempted to put the material into shape sufficient for it to be publishable, and to do so in a way that I thought would be in conformity with his approach to things.

What is the premise of the book?

The book considers the heavy reliance upon incarceration by our criminal justice system. Our country imprisons more persons in absolute terms and in relation to the size of our population than almost any other country in the world, and more than other advanced societies. Although we have suffered from high rates of crime, including violent crime, the extent to which we imprison individuals is shocking. For a considerable period, the rate of imprisonment remained high though the incidence of crime declined. Despite this reliance upon incarceration, we have not been able to achieve low rates of recidivism. The book argues that judges should have greater discretion to select reduced prison sentences or alternative sentences in appropriate cases, when it appears possible to achieve the reclamation of the defendant and in a way that does not pose a danger to society. We also should give greater attention to education, training, drug treatment, and the like during the time individuals are under restraint. The goal should be to rehabilitate as many as possible, encouraging them to turn away from crime. Doing this can reclaim lives and can reduce the rate of recidivism, thereby improving the safety of society.

What were the causes for the retributive movement that controlled state and federal crime policies for decades?

The book suggests that the retributive approach to a large extent supplanted a more rehabilitative approach due to, among other things, a sense of pessimism that had grown over time about the ability of the system as it then functioned, and with the then-prevalent understanding about the factors that contribute to crime, to “cure” offenders and the capacity of parole boards to judge when that had occurred, together with a reaction to notably increased rates of crime some decades ago, including drug crime. As drug crime increased, it was felt that a “war on drugs” was necessary, which was thought to mandate heavy criminal penalties. At the same time, in regard to the federal system especially, concern grew about perceived disparities in criminal sentences, which were felt to require a reduction in the discretion of the sentencing judge. That reduction and the use of mandatory minimum sentences contributed to a decline in the flexibility of the system in the handling of offenders and to an increased emphasis upon incarceration. As the discretion of the judge became constrained compared to what it had been before that, the prosecutor began to exercise a greater influence on the sentencing process, in respect of both charging decisions and the acceptance of pleas.

Knowing Judge Baer for many years, how would he have reacted to the signing of the Criminal Justice Reform Bill last December?

It is, of course, speculation, but I suspect that the judge would have reacted favorably to the recent legislative initiative and in general would have viewed in a positive way efforts, especially bipartisan ones, to ameliorate some of the harshness of the sentencing practices in our country today while, of course, paying close attention to the need to protect society against wrongdoers, particularly violent ones.

What specific recommendations does the book advocate to decrease the rate of incarceration?

Among other things, the book recommends, within the constraints of the relevant criminal law in any given jurisdiction, and obviously taking into careful account the dangerousness of the offender and the risk posed to the public, greater emphasis upon the discretion of the judge in sentencing; active consideration of supplements and alternatives to a prison sentence; greater and more effective use of the most productive educational, training, and other programs to wean the offender off the habits of crime and to prepare him or her effectively, and with regard to the real needs of the modern economy as it exists today, for a law-abiding life after incarceration; and more widespread use of reentry courts, drug courts, mental health treatment, and the like. Also, our society, the book suggests, should be carefully examining and evaluating the penalties that exist for criminal activity and whether they are, in some instances, overly harsh, as well as possible reduction in reliance on mandatory minimum sentences. We ought also to be undertaking a comprehensive examination of the collateral consequences of criminal punishment, including the cumulative impact of those consequences, evaluating which of such consequences continue to make sense today and which may be ineffective, unnecessary, or even counterproductive. It needs to be recognized that the retributive approach that has prevailed for decades has produced high rates of incarceration in our country, but it has not altered the reality of high rates of recidivism.

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Robert costello is professor and chair of the Criminal Justice Department at SUNY Nassau Community College and an adjunct professor at Hofstra University.