Book Review: Rehabilitation and Incarceration: In Search of Fairer and More
By Hon. Harold Baer, Jr.
Edited by Robert C. Meade, Jr.
During his lifetime, Judge Harold Baer, Jr. devoted a great deal of time and energy focusing on and criticizing what he saw as the growing industry of mass incarceration and the failures of the American justice system. He was deeply troubled by conditions in our jails, the collateral consequences of felony convictions, and the need for reform and focus on rehabilitation and alternatives to incarceration.
Judge Baer had an extraordinary career. He served for a decade as a N.Y. State Supreme Court Justice and then for another decade as U.S. District Judge for the Southern District of New York until taking senior status. Among many public service positions, Judge Baer was an Assistant U.S. Attorney for the Southern District of New York, where he was Chief of the Criminal Division, served as executive director of the Civilian Complaint Review Board of the New York City Police Department, and had the unique perspective of overseeing New York City's jail system as the judge so designated in a consent decree.
In his final book, Rehabilitation and Incarceration: In Search of Fairer and More Productive Sentencing, published posthumously earlier this year by the American Bar Association, Judge Baer explains how incarceration became a crisis in America, and looks at the serious collateral consequences and penalties beyond sentencing that lead to recidivism. He argues in the book that to live up to its promise, America needs fundamental reform of its attitudes about crime and punishment. In many ways, Judge Baer foresaw today's shifting views of crime and punishment. Focusing on alternatives to incarceration and "the path toward rehabilitation" for many years, he was well ahead of his time.
In this compelling volume, Judge Baer maintains that there has been "an over-reliance on imprisonment as a response to criminal activity" and that we "have emphasized retribution too heavily while unwisely and shortsightedly giving too little weight to the goal of rehabilitation." He discusses where we are and how we got here, and argues that fundamental reform to promote rehabilitation and alternatives to incarceration is not only the right thing, it is also economically sound policy which promotes and enhances public safety.
Judge Baer lays out how our reliance on a punitive approach resulted in the establishment of mandatory minimum sentences and a reduction of judicial discretion. He very effectively argues that removing judicial discretion has had very serious consequences, both for those incarcerated and the public. He also notes that the punitive approach has greatly increased the financial burden on taxpayers, even as recidivism also increased.
Judge Baer's perspective as a prosecutor, defense attorney, and state and federal judge informed his enlightened views on the role of federal courts in prison reform. He had deep concern that our jails and our approach to incarceration reflected America's failure to live up to its promise. One of the more prolific writers on the bench, Judge Baer had an expansive view of civil liberties. He wrote, "As Nelson Mandela teaches, prison conditions reflect the core values of a society and test a nation's commitment to its self-proclaimed ideals."1
I knew Judge Baer for around 20 years. We served together on the Board of Directors of the New York County Lawyers Association (NYCLA), where we both served as president, he from 1979-1981 and me approximately 20 years later. We also served together as delegates to NYSBA's House from NYCLA. His passion and scholarship were inspiring and this final publication, edited by Judge Baer's longtime friend, Robert C. Meade, Jr., with whom he previously collaborated in producing NYSBA's treatise on depositions, is a fitting epilogue to a lifetime of advocacy for the rule of law with compassion and sensitivity.