Sometimes, a speech is notable less for what is said than when it is said.
When Abner Mikva died on Monday, the 4th of July, at the age of 90, he left behind a record of public service that covered all three branches of government: he was a congressman, a federal appeals court judge, and a presidential adviser.
He also left behind a reminder that, in the field of criminal justice, the choices made in the mid-1990s – choices many lawmakers and policymakers now look back upon with regret – were not made without dissent.
Two decades ago—when the United States dedicated billions of dollars to building new prisons and embraced rigid sentencing requirements while weakening federal appeals—Mikva stood for the path not taken.
On Nov. 16, 1994, Mikva gave a lecture, “The Treadmill of Criminal Justice Reform,” at the Cleveland-Marshall College of Law in Ohio. Mikva’s lecture was delivered two months after President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 and a year and a half before he would sign the Antiterrorism and Effective Death Penalty Act of 1996. The former helped accelerate mass incarceration while the latter stripped habeas corpus appeals of considerable force.
At the time of the lecture, Mikva served as White House counsel, a position he assumed in October 1994. So Mikva was in the center of it all—yet, at the same time, resigned to the margins. Two months ago, The Intercept published a story in which Mikva lamented his inability to prevent the erosion of habeas corpus in the 1996 law. And the lecture Mikva gave in November 1994 provided a counterpoint to key principles underlying the act passed earlier that year.
Mikva moved to the White House from the U.S. Court of Appeals for the District of Columbia Circuit, where his law clerks included Elena Kagan, who went on to the Supreme Court, and Michelle Alexander, who went on to write “The New Jim Crow,” an influential work of legal scholarship in the movement against mass incarceration.
So, as a companion to the obituaries published this week (such as the Chicago Tribune’s account of how Mikva bucked the city’s political machine), here are a few highlights of Mikva’s lecture, which can now be seen as the political equivalent of a judicial dissent.
On mass incarceration and the building of more prisons:
“In addition to cost, there is a national shame factor. We now have more people in jail in relation to our population than any other country in the world. Are we really the most lawless nation around? … The fact is that the criminal justice system is not enough — or even the most relevant institution — to deal with our crime problems. It makes about as much sense to look to prisons to solve our chronic crime problem as it would be to build more funeral parlors to solve a cholera epidemic.”
On sentencing:
“The sentencing guidelines, coupled with the mandatory minimum sentence provisions that Congress is fond of, appear to rest on the notion that the criminally inclined carry around one of those sentencing grid tables that judges use. Before he perpetrates his crimes, the putative perpetrator sits down and figures out the costs, finds them higher than the benefits, and thinks better of perpetration.”
On the politics of criminal justice:
“Even some Democrats voted against the Crime Bill when it first passed the Senate, 96-4. Senator Paul Simon of my home state of Illinois was one of the four. I admire his courage, but I hope he fares better than I did in 1970 when I was one of 38 members of the House to vote against the Organized Crime Act of 1970. I voted against it for similar reasons to his — the provisions in the 1970 Act — like RICO (Racketeer Influenced Corrupt Organizations) and other programs that did nothing about the serious street crime problems we had even then — were totally irrelevant to the problems we were supposedly addressing. I spent the rest of my political career explaining why I voted ‘for’ organized crime. The majority of Congress knows where the politics of this issue lie.”
