Sua Sponte

• Author: Hon. Avern Cohn
• Position: The author is a senior U.S. district judge for the Eastern District of Michigan.
• Pages: 27-29

Published in Litigation, Volume 46, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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A discussion of reform at any level must take into account the

elephant in the room: the current massive populations in the

prisons and the ethnic and racial disparities within those popu-

lations. The Sentencing Project estimates it will take 75 years to

cut the prison population in the United States to half. Malcolm C.

Young says in his essay Prisoners in 2016 and the Prospects for an

End to Mass Incarceration, published in June 2018 by the Center

for Community Alternatives, that prospects for decreases in the

federal population are fading. A description of Young’s study can

be found in the May 2019 issue of Prison Legal News.

Selected statistics on the number of persons held in federal

prisons demonstrates why reform is a hot topic today:

State Le vel

Reform at the state level of criminal justice, where the prosecu-

tors and judges are mostly elected, is a far different phenomenon

S U A S P O N T E

A Judge Comments

HON. AVERN COHN

The author is a senior U.S. district judge for the Eastern District of Michigan.

Barbara McQuade and Sally Q. Yates, both senior federal prosecu-

tors in the Obama administration, focus their attention on three

goals in our criminal justice system:

• budgeting less money for sending people to jail

• using tax money for drug prosecutions and treatment programs

• reducing the number of people we send to prison

They find encouragement in achieving these goals in changes

in voters’ and local and state prosecutors’ attitudes. And although

McQuade and Yates find some hope in these changes, we cannot

rely on reform at the state level alone. Reform is required at the

federal level as well. My familiarity is with the federal criminal

justice system. It extends almost 40 years.

A good start when considering reform is to look at the rise

in the prison population, something that has been a topic of de-

bate for decades. Indeed, in 1980, in Imprisonment in America:

Choosing the Future, Michael Sherman and Gordon J. Hawkins

raised a yellow flag when they asked, “Should we build more

prisons?” In 1990, James Q. Whitman’s Harsh Justice cautioned

us against the way we managed criminal justice, pointing out

that there was a widening divide between prison populations

in the United States and Europe. We cannot say our system of

punishment’s deterioration blindsided us.

Year Prison Population Drug Offenders Immigration Offenders

1985 31,300 9,482 (34%) 8,650 (13%)

1995 88,000 9,400 (41%) 8,360 (14%)

2006 176,000 93,000 (53%) 19,000 (11%)

2016 167,000 79,000 (47%) 11,000 (6.5%)

Prosecutors and Voters Are Becoming

Smart on Crime