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We should all be grateful for Michael Tonry's (2014, this issue) characteristically thoughtful article proposing 10 concrete steps to reduce the excessive reliance on incarceration in the United States. It would behoove legislatures and judges to think carefully about each of his proposals. The following remarks constitute an attempt to expand on some of his observations and offer a few cautionary notes about some of his proposals. At the outset, however, it is important to note that I fully agree with the general premise of Tonry's (2014) article, which is by now conventional wisdom among criminal law scholars and practitioners and, increasingly, as Tonry is at pains to document, even among politicians on both the right and the left of the American spectrum: The United States has a vastly overinflated system of incarceration that is excessively punitive, disproportionate in its impact on the poor and minorities, exceedingly expensive, and largely irrelevant to reducing predatory crime. Tonry is also correct that the public mood seems to have shifted at least to the extent that fear of crime no longer drives the political debate as it has for so long in the United States. Reductions in imprisonment, in particular, and a movement away from harshly punitive attitudes in general, are no longer politically unthinkable for candidates for public office, as they have been since the late 1960s. As Tonry emphasizes, it might be an opportune time to consider specific proposals to implement this revived willingness to think about crime in a less fearful and vindictive manner.

The Columbia Law Review's Symposium on sentencing, which took place less than two weeks after the Supreme Court's dramatic semi-invalidation of the federal sentencing guidelines, was certainly timely. Nevertheless, it is critical to understanding the Symposium's purposes to realize that it was not planned in response to United States v. Booker, or even to Blakely v. Washington. The Symposium was conceived before either case was decided, as a very conscious attempt to steer the discussion of sentencing away from Congress and the federal guidelines and toward states' experiences. The vast majority of criminals are sentenced in state systems, and those systems are remarkably diverse. So far, the federal guidelines have influenced state sentencing regimes mostly as a negative model and a distraction. Perhaps it is time for Congress to look to what has been happening in the states, and for academics to focus more of their attention on the specifics of state sentencing reforms. The late twentieth century saw wholesale changes in sentencing philosophy and practice. The conventional wisdom about the primary purpose of sentencing shifted away from rehabilitation as a dominant philosophy and toward retribution or 'just deserts." The method of sentencing shifted away from broad judicial discretion to be exercised on a case-bycase basis and toward narrower authority constrained by rules laid down by legislatures or sentencing commissions. The form of sentences changed from indeterminate terms of imprisonment whose actual length would be determined by parole boards long after sentence was passed, to fixed or determinate sentences, with parole often abolished. The length of sentences increased, as the public sought greater security and less mercy, perhaps even less justice. Thus, the law of sentencing changed, from a legal regime that was famously characterized by Marvin Frankel in the 1970s as literally lawless, to one in which, in many states and especially in the federal jurisdiction, there is an extraordinarily rich and complicated body of substantive and procedural sentencing law.

The thesis of this talk can be simply stated: In any serious discussion of revising the Model Penal Code (MPC), the object of the game cannot be revising the MPC itself. Rather, the object of any revision of the Code is to promote the reform of the nation's actual criminal codes, as adopted by the state legislatures and Congress.

The mandatory minimum sentences attached to federal narcotics violations have come in for plenty of criticism. The United States Sentencing Commission in 1991 submitted a lengthy report critical of the mandatory minimum provisions. A political protest organization, Families Against Mandatory Minimums, has been formed, and has gotten some media attention. Newspaper columnists,professional commentators, judges, and academics, have criticized the statutes. Amidst the controversy over President Clinton's last-minute pardons of various offenders, his pardons of a number of marginal defendants sentenced to lengthy terms under these statutes have drawn little or no objection. Even Chief Justice Rehnquist, a strong voice for law enforcement, has denounced mandatory minimum sentences as having little serious justification.

Bill Tendy was already a legend among federal prosecutors when I first served as an Assistant United States Attorney for the Southern District of New York in the early 1980s. To us youngsters, Bill even then seemed a survivor from another era, when prosecutors really did resemble the tough-talking Hollywood DAs played by actors like Brian Donleavy – while we felt more like insecure young lawyers who should be played by Michael J. Fox or Calista Flockhart. Partly, of course, this was just a function of age and experience; hard as it was to imagine, there must have been a time when Bill too was young and new to tie job – though probably not insecure. Partly, though, it was a function of tie fact that Bill's experience did indeed read back to an era, before the innovations of the Warren Court, when law enforcement had a different, and somewhat rougher, style, and prosecutors were unambiguously associated with that style. In the fall, the Fordham University School of Law will hold a symposium in honor of Bill Tendy, called "Tie Changing Role of the Federal Prosecutor." The following essay suggests that this symposium is timely indeed, and that prosecutors today should be conceived as occupying a very different role from tie one they played when Bill began in tie business. Although the developments I discuss are not limited to federal prosecutions, they are most pronounced in the federal system, particularly in white-collar cases in districts containing major cities. I do not know that Bill approved of all tie changes in the criminal justice system that he witnessed in tie course of his long career, but I do know that he understood the process of change, and the need of the system, and of those who work within it, to adapt to the inevitable evolution of the legal order in response to social and political change.

In the early 1990s, I spent a couple of years as Chief of the Criminal Division in the Office of the U.S. Attorney for the Southern District of New York. One of my principal responsibilities was to hear "appeals" from defense lawyers, usually, although not exclusively, in white collar crime cases. These lawyers felt that their clients should not be indicted, or that the plea offer they had received from the prosecutor in charge of the case was unduly severe. Sometimes their arguments were essentially factual contentions that the government had the wrong take on the evidence – that the soon-to-be defendants were simply not guilty of the conduct that the investigators and line prosecutors believed they had committed. In these cases, the defense lawyers hoped that a more experienced (or at least different) prosecutor would appreciate the weaknesses in the government's case. More commonly, however, the appeals were addressed to prosecutorial discretion – even if the government could not be persuaded to see the client as innocent, perhaps the more experienced prosecutor could be made to see that the scarce resources of the Department of Justice should not be wasted on this particular, purely technical violation. It was rather common, in such discussions, for defense counsel to assert that, properly understood, the pending matter was "really not a criminal case," or was "really a civil matter." I have made the argument myself, when representing clients in criminal investigations. It always struck me as somewhat surprising that, while the two sides usually disagreed about whether the assertion was true about the matter in hand, everyone in the room acted as if we knew, and more or less agreed about, what the assertion meant.

RICO is nearing its twentieth birthday, but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes. As the pressure for change has intensified, and the debate has moved away from judges and law professors into newspaper columns and the political arena, increasingly dubious claims have been heard on both sides of the reform issue. It may be useful to give a kind of consumer's guide to the arguments frequently heard during these debates. In particular, I would like to focus on the RICO reform bill that has progressed the farthest in Congress, with a view to answering two related questions: What are the strengths and weaknesses of that bill, and why has that bill had greater political success than more conceptually sound reforms? Before turning directly to those questions, however, I would like to address some of the mythology that surrounds the debate over RICO because the arguments of both proponents and opponents of RICO reform are either inaccurate or irrelevant or both.

RICO is nearing its twentieth birthday,' but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes. As the pressure for change has intensified, and the debate has moved away from judges and law professors into newspaper columns and the political arena, increasingly dubious claims have been heard on both sides of the reform issue. It may be useful to give a kind of consumer's guide to the arguments frequently heard during these debates.In particular, I would like to focus on the RICO reform bill that has progressed the farthest in Congress, with a view to answering two related questions: What are the strengths and weaknesses of that bill, and why has that bill had greater political success than more conceptually sound reforms? Before turning directly to those questions, however, I would like to address some of the mythology that surrounds the debate over RICO because the arguments of both proponents and opponents of RICO reform are either inaccurate or irrelevant or both.

One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. Passed in 1970 as title IX of the Organized Crime Control Act of 1970, RICO has attracted much attention because of its draconian penalties, including innovative forfeiture provisions; its broad draftsmanship, which has left it open to a wide range of applications, not all of which were foreseen or intended by the Congress that enacted it; and the sometimes dramatic prosecutions that have been brought in its name. RICO's complexity has attracted several efforts to unscramble the many issues of interpretation it poses. The potency of its sanctions and the procedural advantages it bestows on prosecutors have drawn polemics of praise and criticism from practitioners and scholars with ties to law enforcement or defense practice. Yet there has been little discussion of the fundamental questions RICO poses concerning some of our basic assumptions about criminal law and procedure. One reason for this lack of discussion may be that the uses of RICO that most starkly raise the issues I have in mind were not contemplated in the congressional debates about the statute and have become more clearly dominant with the passage of time. Congress viewed RICO principally as a tool for attacking the specific problem of infiltration of legitimate business by organized criminal syndicates. As such, RICO has hardly been a dramatic success. Few notable RICO prosecutions have dealt directly with this sort of criminal activity. Instead, prosecutors have seized on the virtually unlimited sweep of the language of RICO to bring a wide variety of different prosecutions in the form of RICO indictments. All but ignoring those subsections of RICO that directly prohibit the act of infiltrating legitimate business by investment of illicit profits or by illegitimate tactics, prosecutors have relied principally on the expansive prohibition of the operation of an enterprise through a pattern of racketeering activity to strike at those – whether or not they fit any ordinary definition of "racketeer" or "organized criminal" – who commit crimes in conducting the affairs of businesses, labor unions, and government offices.

In the first portion of this study, we saw that the Supreme Court in its 1981 Turkette decision endorsed what was already the consensus view of the courts of appeals that a group of individuals associated in fact to pursue entirely illegitimate purposes could constitute a RICO enterprise. Prosecutions of such associations have quickly become the leading use of the statute. It can be reliably estimated that more than forty percent of the reported appellate cases involving RICO indictments concern prosecutions in which the alleged enterprise was such an illicit association. When the cases are classified by the nature of the predicate criminal acts rather than of the alleged enterprise, roughly the same figure appears: about forty percent of the cases involve allegations of concerted criminal activity by more-or-less organized criminal groups, with the rest divided among the various types of perversion of legitimate institutions discussed in the preceding sections. These figures demonstrate that the principal use of RICO has not been to deal with the distinctive evil of infiltration by the mob into legitimate enterprises, but rather to add an additional weapon to prosecutors' efforts to attack organized criminal groups themselves for their primary illegal activities. The illicit association cases present a broad spectrum of illegal activities. In many of the cases, the illicit activities charged as predicate acts involve repeated instances of the same general type of criminal conduct. The large number of RICO narcotics prosecutions typify this kind of case, although similar examples involving gambling and prostitution activity can be cited. Other cases involve arson, extortion, and theft or fencing schemes. The use of RICO in many of these cases appears indistinguishable from the use of ordinary conspiracy law. Although most of the RICO cases seem to involve particularly large or lucrative conspiracies, some of them are strikingly ordinary criminal conspiracies. Why have prosecutors invoked RICO so frequently? The cases in this area are so diverse that no single answer is possible. In some instances, particularly in simple cases involving schemes limited to one particular sort of crime, the answers parallel those we have already seen in the political corruption, white collar, and labor racketeering areas.

The seemingly inexhaustible debate over the proper role of the Supreme Court in constitutional adjudication concerns an issue of enormous practical importance: whether the Court has or should have the power to overturn the decision of a democratically elected legislature to, say, prohibit abortions, affects not only the allocation of significant political power, but also the moral lives and indeed the very bodies of millions of citizens. For this reason, many contributions to that debate, from academics as well as from practicing politicians, have burned with the passion of political commitment, seeking to influence events directly by persuading judges (or those who might have power to constrain them) to adopt particular policies. Michael Perry's The Constitution, the Courts, and Human Rights is not such a book. I don't mean that Perry lacks political commitment, or does not sincerely wish that the courts would adopt the program he proposes. But both his substantive conclusions and his writing style suggest not only that the book is not directly addressed to an audience of judges and legislators, but also that his project is fundamentally detached from what political institutions actually do. Perry brings to his book a thoughtful intelligence and a comprehensive knowledge of the academic literature on the questions he addresses, and he has much to say that is interesting and valuable. But I think that few will find his conclusions satisfying as a program for the Supreme Court to follow.

John Hart Ely's Democracy and Distrust is an ambitious attempt to create a new theory of judicial review, breaking away from both "interpretivism" and "noninterpretivism" – a division Professor Ely regards as a "false dichotomy" (p. vii). The book is brilliant and provocative, so much so that one fears less that its faults will be obscured – there is little danger that polemic critics will fail to pounce on them – than that the flash of Professor Ely's reasoning and the controversy it generates will distract us from the genuine importance of the insight that powers his analysis.

As its title suggests, Raoul Berger's Government by Judiciary states an extreme version of a familiar thesis: The Supreme Court has abandoned its proper role as interpreter of the Constitution and has usurped the power to act as a third legislative chamber. Like kadis under a tree, the Court creates law from mere personal predilections. The main instrument of this judicial coup has been the fourteenth amendment. Government by Judiciary is an historian's book, strongest when using the historian's tools to illuminate the past. Underlying this research, however, is a remarkably simplistic theory of constitutional interpretation, a theory that forms the basis for Professor Berger's dire conclusions about the role of the Supreme Court in American government.