Federal judge Frederic Block on second chances -- and 'who deserves it'
47:31 Share

Your data is like gold to hackers. They'll sell it to the highest bidder. Are you protected? McAfee helps shield you, blocking suspicious texts, malicious emails, and fraudulent websites. McAfee's secure VPN lets you browse safely, and its AI-powered text scam detector spots threats instantly. You'll also get up to $2 million of award-winning antivirus and identity theft protection, all for just $39.99 for your first year. Visit McAfee.com. Cancel any time. Terms apply.

Ryan Reynolds here from Mint Mobile with a message for everyone paying big wireless way too much. Please, for the love of everything good in this world, stop. With Mint, you can get premium wireless for just $15 a month. Of course, if you enjoy overpaying, no judgments, but that's weird. Okay, one judgment. Anyway, give it a try at mintmobile.com slash switch. Upfront payment of $45 for three-month plan, equivalent to $15 per month required. Intro rate first three months only, then full price plan options available. Taxes and fees extra. See full terms at mintmobile.com.

WBUR Podcasts, Boston. This is On Point. I'm Meghna Chakrabarty. Walter Johnson had a ritual. Whenever guys that I knew went home, I would walk guys to the door at this institution named Otisville. It's in New York, upstate New York. And bid them farewell and, you know, wish them luck.

and just tell them that, you know, you can do it. You know, stay out there. The longer you stay out there, the better chance guys that's here have of going home. Otisville is more formally known as Otisville Correctional Facility, a medium-security federal prison. While some of his friends got out, Walter Johnson was never going home.

In 1997, he was given five concurrent life sentences for robbery, cocaine possession, and witness tampering. Johnson was sentenced under the 1994 federal three-strikes law, which required that repeat offenders serve mandatory life sentences. I was really, really, really hurt because I felt that one life sentence is enough to

to wake somebody up. But I also felt that he gave me those life sentences because he wanted to set precedents, that he wanted to set an example. He wanted people to know that if they were judged by this law, if they were found guilty under this law, that it was going to be a harsh, harsh, harsh, harsh penalty. And unfortunately, I was that poster boy for that.

Johnson's sentence was handed down by Judge Frederick Block, who sat on the bench for the Eastern District of New York. At the time of sentencing, Block was in his second year as a federal judge. He referred to Johnson as, quote, a classic example of a person who has to be incapacitated so society is protected against you, end quote.

Walter Johnson's criminal history dates back to when he was just 14 years old, growing up in the Cypress Hills Projects in Brooklyn, New York. It was a really, really rough place growing up there. Unfortunately, many of the people that got my eye as a child, they came from the criminal element. And, you know, they made us younger guys feel like being tough.

And being bad was a badge of honor. And that taking shortcuts was the way. And for many, many years of my life, I believed that that criminal mindset was the reason why I was alive. It made me feel like I was a survivor and that I can endure and overcome anything. But it also made me calloused and inconsiderate and very indifferent, you know, to the feelings of other people.

So Johnson says he hung out with the wrong crowd a lot in his life, a pattern he continued when he started his multiple life sentences at Otisville. But then you had another group of guys who smiled every day, who seemed very optimistic, who participated in programs. I couldn't understand how people who were never going home could act like they on their way home that day or the next day. And those guys were very intriguing to me.

What I did is that I separated myself from the guys who gave up and started associating with the guys that seemed like they were going somewhere. Johnson began filling his time at Otisville with service. He participated in outreach programs, joined a victim impact group, and served on Suicide Watch. Five concurrent life sentences, though, don't usually leave much room for hope.

But in 2018, an unlikely sliver of light appeared. On December 21st of that year, in his first presidency, Donald Trump signed the First Step Act into law. The act allows federal judges to reconsider sentences they've handed down. And it allows the people serving those sentences to seek compassionate release. That's exactly what Johnson did. I wanted the judges to know is that I was a person

who had self-control, who had patience, who was empathetic, you know, towards the feelings of other human beings, who wanted more out of life than taking shortcuts. And I wanted the judge to know that I deserved a second chance. In March 2024, Johnson wrote a letter to Judge Frederick Block, the judge who had sentenced him.

Johnson wrote that he'd done a lot of introspection in his nearly 28 years in prison, and that, quote, I have taken responsibility for the pain that I caused in society when I was ignorant, reckless, and selfish, end quote. Not that Johnson thought his letter would make much of a difference. Block had actually given Johnson a harsher punishment than was mandated by the three strikes law. He'd given Johnson five life sentences, not three. But then one day, Johnson got a call.

I was in my cell speaking to a friend of mine and my counselor came to my cell and he told me that I had to go to the phone to speak to my attorney. So when he told me that I had to go to the phone to speak to my attorney, I was really, really nervous. And I walked to the phone, to the special phone to speak to my attorney. And when I got to the phone, I spoke to her.

And my release has been granted. And it was the most beautiful day of my life. In his 26-page ruling, Judge Block explained why he granted Johnson early release. Block said Johnson had proved he was rehabilitated, that he was no longer a threat to society, and that under today's sentencing laws, Johnson would have been given much less time for the same crimes.

Block's ruling was dated October 17th, 2024. Walter Johnson was released that same day. This time it was my time to do that walk. And it was like a movie because everything was so beautiful. So many of the staff members and the officers, they were telling me, you know, congratulations to have a wonderful life. It just seemed like everyone was so happy for me.

And it just made me realize that they were happy for me because they felt that I earned that and that I deserved it. And I'll never forget, they even helped me carry my bags and

And then when I walked out that door, my wife was right there waiting for me. It made me think of when we used to go on visits. Many times when I would wait, I would wait just to see her get in her car, and I would say to myself, "One day, I'm going to get in that car with her." And that was that day. Walter Johnson is now 61. He lives in Brooklyn with his wife and does youth outreach. He's also got his own YouTube channel called Walter "King Tut" Johnson.

And he says it's aimed at tough guys, like he was. Johnson tells us he loves taking his dog Gabby for a walk, he loves his wife's cooking, and loves just being outside. The air simply feels different, he says, than it did inside Otisville.

Well, Judge Frederick Block joins us now. He is a senior U.S. District Judge for the Eastern District of New York. He was appointed by President Bill Clinton in 1994. And he's the author of the new book, A Second Chance, A Federal Judge Decides Who Deserves It. Judge Frederick Block, welcome to On Point. Good to be here.

Can you tell me a little bit about what it was when you read Walter Johnson's letter to you that made you think this case deserves closer examination? Well, Walter Johnson was one of a number of people who made applications to me

to have their sentence reduced and even let them out of jail because of the First Step Act, which has changed the sentencing landscape in the federal system in the United States of America.

If not for that law, which was, to his credit, signed off and put into effect by President Trump at that time, Walter Johnson would not be talking to you today. Walter Johnson would have to spend the rest of his life in jail. Walter Johnson would die in jail.

So this gives you a real sense of how important that law has been. And because of that, district court judges like myself throughout the country are being inundated with these applications, understandably so, by people like Walter Johnson, who are asking now for a second chance. That sounded like the right title for my book, of course. He's one of a number of people who I've granted relief to.

His case turns out to be, I think, the most dramatic because of the underlying facts and the dynamics of it all.

But I've done a lot of these now. And this is just a brief overview so you understand very clearly how that statute is a sea change in sentencing in the United States of America. You know, I promise you we will talk in detail about the First Step Act because, as you note, it's the reason why people like Walter Johnson can even seek relief, as you said. But...

Judge Block. I mean, the fundamental job of a judge is to do just that, to judge. So I really want to hear in a little bit of detail, specifically, like, help me pretend like I'm wearing the robe. What was it inside Walter Johnson's letter that made you think, I'm not going to put this in the reject pile?

Well, I want to make one thing clear to begin with. When I sentenced him way back then, I was not an ogre judge. I don't like to see myself as that type of a person. I was just applying the law of the land, which I was obliged to do. And it required me to give him those three lifetime sentences. And then I add another two, which I had some discretion, but I thought at that time he was a bad guy. He had a terrible track record. The public had to be protected against this person.

And so that's where we start. And I was applying the law. I had no real alternative in terms of the three lifetime sentences that were required under what we call the three strikes and you're out law that existed at that time. But what happens is over the passage of years, things change, people change, the laws change.

Today, we would not be sentencing Walter Johnson the same way we sentenced him 30 years ago, because the three strikes and your outlaws no longer being forced in the Eastern District. And I don't even think in the United States of America on the federal level. So if he was being sentenced today, he would not be given three lifetime sentences. The beauty of the First Step Act

It allows judges to have a second chance to look back at the passage of time and to reevaluate sentences that they previously imposed, which would no longer be viable if done today. So that's one of the factors that impressed me when I read Walter's letter. Okay, Judge Block, hang on here for just a second. Unfortunately, we do have to take that first break. So I want to hear the rest of the story when we come back. You're listening to Judge Frederick Block.

He is a senior judge on the U.S. District Court for the Eastern District of New York, and he's the author of the new book, A Second Chance. A federal judge decides who deserves it. Judge Block will be back in just a minute. This is On Point. On Point.

Support for On Point comes from Indeed. You just realized that your business needed to hire someone yesterday. How can you find amazing candidates fast? Easy, just use Indeed. There's no need to wait. You can speed up your hiring with Indeed.

The next time you fly, upgrade your comfort to Emirates Premium Economy.

Sink into soft leather seats with raised legrests and adjustable headrests. Elevate your dinner plans with delicious regional dining, all served with complimentary premium drinks. Enjoy endless entertainment with up to 6,500 channels, including live sports. There's no other premium economy like it. Fly Emirates. Fly better.

At Radiolab, we love nothing more than nerding out about science, neuroscience, chemistry. But, but, we do also like to get into other kinds of stories. Stories about policing or politics, country music, hockey, sex.

Of bugs. Regardless of whether we're looking at science or not science, we bring a rigorous curiosity to get you the answers. And hopefully make you see the world anew. Radiolab, adventures on the edge of what we think we know. Wherever you get your podcasts.

You're back with On Point. I'm Magna Chakrabarty. And Judge Frederick Block is our guest today. He's a senior U.S. District Court judge for the Eastern District of New York. He was appointed in 1994 by President Bill Clinton. And he's author of the new book, A Second Chance, A Federal Judge Decides Who Deserves It. And it's about the cases that he's been hearing since 2018 when the Federal First Step Act was passed that allowed prisoners serving long life sentences to seek compassionate treatment.

Okay, Judge Block, I have to say, and I hope you don't mind me being a little bit truelish, in the first segment when I was asking you to tell me specifically what was in Walter Johnson's letter that made you want to give his case more consideration, you were getting my mock trial juices going there because I wanted to say, counsel, please direct the witness to answer the question.

So tell me, because you see many of these a week, right? I think like several of them cross your bench every week. Some of them... Yes, all of my colleagues are getting these throughout the country, obviously, because people have an opportunity now to seek this relief. But how can you tell from the letter that this is a person who should be considered for a compassionate release?

The first thing we mentioned is that laws have radically changed. And that makes a big impression on me and my colleagues because we would not have meted out the same sentences today that we were required to do 30 years ago. Number two is that I was impressed with his rehabilitation. I

I got letters from the warden telling me that this person was a new person, that he had evolved over the years in jail, that he was one of their major assets in the prison system, helping him, helping people out. And from the people who were supervising him, I was inundated with letters of recommendation telling me that this is not the same Walter Johnson who I sentenced 30 years ago. So that was number two.

And number three, the people who I sentenced for the same type of crimes, they cut deals. They were not subject necessarily to the three strikes of your outlaw. So they've been out of jail for many years, even though they were as complicit arguably as Walter Johnson. So there's a disparity amongst co-defendants who were somewhat similarly situated. And there was one other fact, if I can add,

The victim, there was a young woman who was allegedly assaulted by Walter and others. The jury didn't convict him of that, but I was at the trial and I heard her testimony and I was struck by the fact that she was really physically assaulted by Walter and others at that particular time.

She wrote a victim impact letter, which people are entitled to do. People who have been victims can speak to the judge, they can write to the judge. And surprisingly, she said, Walter Johnson should be left out of jail. And I think it's time for him to get back into society. You don't get that type of a letter very often. Usually the victim letters we get are the opposite. Keep him in jail. He's a horrible person.

And this was one of those exceptional letters where she felt that he's entitled to the benefit of this new law. So you add all these together and it made for such a compelling case. Now, Walter had an excellent lawyer, Mia Eisner-Gridberg, a federal defender, did an excellent job. She wrote a very compelling letter putting all of what Walter's thoughts were down in writing.

I had them come to court. She spoke about this. Walter was there at the same time. It was an official court proceeding to listen to everybody speak about all of these dynamics. And then I reflected upon that and I wrote that decision, which you have referred to. So this is now I clearly understand why Walter's case falls under the extraordinary and compelling, right? Reconciliation.

reasons for compassionate release, which is what that First Step Act requires. It has to be an extraordinary case.

Interestingly, though, I'm seeing here that more than 5,300 people across the country serving lengthy sentences so far have fallen under extraordinary and compelling and have had either been freed or had their sentences dramatically reduced by judges. So let me go back, though, because in the 1990s when you sentenced Walter Johnson—

The whole legal atmosphere around repeat offenders was different. And I just first wanted to ask you specifically regarding that case. As you said, the mandatory minimums at that time only compelled you to sentence him to three life sentences. But you tacked two more on top of that. Why? Yeah.

So I considered the testimony of the victim who testified before me in the court trial, and I was impressed by the fact that she was abused. The jury did not convict him of sexual molestation of this woman, but nonetheless, under the law at that time,

I was entitled to, believe it or not, considered acquitted conduct when it came to sentencing someone. And that is the law at that time. And I did that because I, quite frankly, had a very poor, poor impression of Walter at that time. I was very sympathetic to this victim. Uh, and that's what I did subsequent to that. Uh,

there is a change in the way people look at acquitted conduct. The Sentencing Commission now has said, "Don't consider that anymore." But at that time, it was appropriate for me to consider that when it came to sentencing. There were no limitations on what I could consider.

I would not have done that today. So I also wrote about the fact that those two discretionary sentences on reflection today, given the sea change in the laws, I would not have done that. So I would have imposed the three mandatory sentences but not the two discretionary. It didn't really make a big difference. He was going to go to die in jail one way or the other. But it's the symbolism of it, right?

It's the symbolism, right. And I just dignified this woman's testimony. I was the trial judge. It struck me as compelling and my heart went out to her. And she's the one now who wrote and said enough is enough. Let her out of jail. You know, it's very interesting to me about the First Step Act is that it reopens the door to the thing that federal mandatory minimums were supposed to close, right? And that is individual judicial discretion, right?

And if memory serves, back in the 1990s, again, it was a time of fear of extremely violent criminals. There was the talk from people like Hillary Clinton about super predators, things like that. But the idea was that there was

too much variation across the federal bench when it came to handing down sentences for very serious crimes, right? And as you said, when you looked at Walter Johnson in the 1990s, you did not see a savory human being at that time. But in other cases, judges were criticized for being...

lenient against convicted defendants. And so I wonder what you think about that. Like, has the pendulum swung back towards judicial discretion in a positive way this time? I think so. First of all, it's important to know that we're not opening the jailhouse doors and letting criminals out. The public has to worry about, you know, being endangered because of that. These are people who have been in jail a long time.

They have engaged in meaningful rehabilitation. The chances of the public being concerned about recidivism is zero. The statistics show that there is no danger of recidivism. These are people who should no longer be in jail because we have this mass incarceration problem.

And they've been in jail a long time and they are subject to great scrutiny by the judges before we render our decisions granting compassionate release. I've checked their syllabus rate and as far as those who have been let out of jail, I don't know one in the country that has had to be reincarcerated.

So it's important for the public to know that naturally there's a fear factor about people who are prisoners and people who have been in jail and that they're coming back into the public. But they need not worry about that. What they should worry about is the fact that we're keeping people in jail spending an enormous amount of money who no longer should be in jail. And that really is this incredible, incredible discretion that judges have now been given under this incredible principle.

Well, so can you tell me about a case where you applied your discretion and you found that you did not want to grant compassionate release? I think there's the Justin Volpe case.

Yeah. So, you know, obviously I wrote this book. And what motivated me to write the book is because I had these interesting applications that were made to me and that I had to give myself a second chance to revisit what I had done in the past when those I sentenced. Some of them, my predecessors sentenced, but they no longer alive. They made the application and I got the case.

The Justin Volpe was one of those cases. And I took six examples, six cases that I put in the book, which I thought would make for great stories. And I thought there would be an effective vehicle for me to explain the law, to talk about this newfound discretion, and to give the public, in lay language, this is not technical stuff, a good feeling and a good sense of what our justice system is all about today compared to what the past was.

So Volpe is the first case. And let me know if I'm just talking on and on and you want to interrupt me. You can give me the CliffsNotes for the Volpe case. Well, you know, judges keep talking all the time.

and I think that you have the right to interrupt me. I won't put you in jail, guaranteed. I promise not to object too many times. It sounds like you can make a good judge. I know they've never considered that. People used to tell me back in the day I should have gone to law school, but go ahead, go ahead. I think a little bit of humor is important. I try to use it. I use it in the book also because I think that really can be an effective tool for driving home serious points. Shakespeare did that all the time.

Back to Volpe. So it was the first one I received. Volpe was sentenced way back when by my predecessor, Judge Nickerson, who passed away not too long ago. So the case happened to be randomly assigned and I got that.

And people under 30 or under 40 probably don't remember Abner Louima. I find that people certainly maybe our age certainly know about the Abner Louima case. It was the poster child of police brutality back in those days. I think it was 1998.

where Justin Volpe, a highly regarded police officer at the 70th precinct in Brooklyn, I think it was the 70th, was charged with ramming a broken broomstick up the rectum of an innocent Haitian named Abdelouima.

That really, I think, was the case that triggered the Black Lives movement. It was the George Floyd case of its era. And it was the first time that a police officer had been charged with police brutality, with assaulting this innocent person, and sentenced to jail for 30 years.

So that was big headlines in those days. And I think a lot of people still remember that case. So I chose that as the first case.

And what I've done in the book is that I talk about these cases and then I challenge the reader. I want the reader to be engaged and involved. I said, what would you have done? What did Judge Block do? Turn to the third chapter and you'll find out. So the reader can tell me, should Volpe be left out of jail? Should he not be left out of jail? So he had been in jail for 21 years. He had several years to go. And he was the first case I had.

where somebody was asking me to give them compassionate release here to let him out of jail under the new statute. Wow, I think that's number one in my book. That's the best first chapter I could possibly think of. So when you read it, which I think you have, and when the public reads it, they're going to be gripped by the story of Abdelouiba and Justin Volpe. And then they're going to have to say, would I have let Volpe out of jail after 20 years? Or would I keep him in jail?

Now, I would like to keep it a little bit of a mystery because people are out there maybe interested in possibly reading the book and getting involved in this dynamic. I don't know whether I should spill the beans now or whether I should keep it hanging over people's head. Give me your recommendation.

Spill the beans, Judge Block. You want me to do that now? So I'm taking away the drama from it a little bit, right? I'll do it in this one case. But the others, you know, let people say, what would you have done if you were Judge Block? Would you let him out of jail? Would you not let him out of jail? So the six chapters, they go every which way. Volpe...

I didn't let him out of jail. Now, I have a feeling that most of the people who might be reading the book will say, I would have let him out of jail. And I don't agree with Judge Block. Why did he let this guy out of jail? Police officer, served 21 years. He was a model prisoner. He was no problem in jail. Enough is enough. Another four years to go, let him out.

So we explain all of that in the book, Why I Did Not Let Him Out. Well, we won't give that away. I promise. We won't give that part away. Okay. Well, the contrast between the Volpe case and Walter Johnson is really sort of at the heart of the debate across the judiciary today.

over the First Step Act, right? Because there's definitely not agreement that the First Step Act is a good idea. There are judges elsewhere in the country who think, well, allowing the reconsideration of cases sort of takes away from the orderly execution of the law. Correct. It's a hot-button issue. And the application of the First Step Act varies greatly throughout the country.

In the Eastern District of New York, which is part of the Second Circuit, the Second Circuit has given it a broad reach, has really opened the doors to give judges and require judges to give serious consideration to all of these various factors. It's not the same every place else in the country. It may well be that the Supreme Court will one day have to decide what the standards should be, what extraordinary and compelling is really all about.

uh... and to put the meat to the bone so to speak so you're talking about a hot button issue now that is the body of the judiciary no question about it in the e_d_n_ wise so my colleagues a little bit more conservative uh... they will be apply the new law if somebody's very sick or the dying in jail and they want to die at home in others like me and a bunch of others you know will look at walter johnson and say this is

the case really that should be the poster child for the appropriateness and the importance of the First Step Act.

The other thing about the First Step Act is that it once again brings into sharp relief a central debate about law in this country, which I think has been with us since the nation's founding, which is should the law be an absolute and timeless thing? Or should it be something that evolves based on the reality of the country in its current form, right? The way the country is now. Where do you fall on that?

Well, we know there is this dichotomy. Some jurists on the Supreme Court, you have that dichotomy, believe in the fact that the Constitution should be interpreted as originally written. There are those like Justice Breyer, recently retired, who took the

opposite position that the Constitution is a living document and it should embrace what society is all about at a particular time. Now that tension and that dichotomy still prevails.

And it's really something that runs through the judiciary on all levels. I am not an originalist. I just do not really comprehend how you can disregard 200 years of history and how our society has changed.

and not accommodate those changes in application of our laws. But it's absolutely something that divides judges and divides the public, and it's an ongoing debate.

Well, when we come back, Judge Block, I actually want to dig a little bit deeper into this, because as you said, the First Step Act might eventually land before the Supreme Court. And while that happens, you've actually also been really working at the state level to try and get states to reconsider what their mandatory minimum sentencing regimes are. So we'll talk about all that in just a minute. I'm Meghna Chakrabarty. This is On Point. On Point.

When a vehicle is certified by Volvo, it's much more than a certified pre-owned. It's certified for that road trip you've been meaning to take. Certified for your growing family. Certified for small steps and big leaps. No matter where the road ahead may take you this season, Volvo hopes you enjoy every moment and are confident in the certified by Volvo vehicle you've trusted to take you there. Contact your Volvo retailer today.

That sound is the leaky shower head that came with your place. The one that has you starting every morning with a low pressure nightmare that's nearly your age. Stop settling for someone else's shower. Consider this your wake-up call to swap it for the relaxing feel of a Moen shower head and see how one easy change changes everything. Water designs our life. Who designs for water? Moen.

You're back with On Point. I'm Magna Chakrabarty. And today, Judge Frederick Block is with us. He's a senior U.S. District Court judge for the Eastern District of New York. He was appointed to that position in 1994 by then President Bill Clinton. He's speaking with us today about his new book, A Second Chance, A Federal Judge Decide Who Deserves It. And we have an excerpt of it, by the way, at onpointradio.org. Judge Block, I want to talk with you a little bit more about how this question of

whether incarcerated people who have been there for a long time do deserve this second chance through the First Step Act, as you write about in the book. For example, Florida Governor Ron DeSantis calls the First Step Act a jailbreak bill.

And then within the judiciary itself, I think some of the clearest articulations of the different points of view are coming out of Texas because there's been really important cases there. And there's one case in which in the dissent, Judge Jerry Smith writes that he believes that reconsidering

sentences in this particular case he was writing against the majority amounted to ideological fervor, right? And then he said, the kindest thing I can say about the majority's zealous opinion is that it is a horrifying violation of this court's well-respected rule of orderliness. I heard you that you're not an originalist in the previous segment, but respond specifically to this accusation. Why do you, why would you disagree with Judge Smith?

Look, I think it's a rigid application. It denies humanity. I don't think it speaks well for the law to really just say it's static and never can change under any circumstances whatsoever. His dissent, you know, does represent this segment of the public that has issues with this concept. I get it.

But it's not, I don't think, the majority of the thoughts that are now percolating throughout the judiciary. If I remember, Adam Liptak of The Times really wrote about all of that. You may have gotten that from that. I did. Thank you. I should be graceful enough and say, yes, that was from a piece by Adam Liptak in The New York Times. Yeah, yeah. I guess the best thing I can say is that people are entitled to their opinion. Now, I wrote in the book that...

that yes, DeSantis and some other folks, you know, really, you know, put thumbs down on this law. They consider it, you know, a terrible, terrible law. You're sentenced to jail. The sentence should not be changed. You're going to die in jail. So be it, right?

But that's, I think, the minority mentality because the statute was enacted by this enormous bipartisan core section. Eighty-eight senators voted for it. And I think 350 or thereabout members of the House voted for it. And the president signed off on it. So I think the senators and those others who have taken a different view of this are in the minority. And I really give Congress and the president a credit.

great, great, great thank you really for doing something which really smacks at humanity. It's rational, it's sensible, it's a forward-looking decision in the face of the knee-jerk reaction that people emotionally have that, you know, we can't be soft on crime. That's really not what we're doing here. These are people who have been in jail a long time. These are people who deserve a second chance.

We have, as I write about, this enormous mass incarceration problem in the United States. That's what motivated Congress to enact this incredible bipartisan piece of legislation. It's an embarrassment that we have 4% of the world's population and 22% of its prisoners. And we spend 80 billion dollars a year to incarcerate people who perhaps should not be in jail anymore.

The conservatives, you know, are concerned about the waste of money and the enormous amount of money we spend, you know, to incarcerate people in our country, more so than any other country in the world. So that's what motivated Congress to act. And that's what the public should understand. This is sound...

This is good legislation. This is not a threat. This is not being soft on the crime. We are keeping the wrong people in jail. And I think that maybe the people who ought to be in jail, the ones who we know are just rampaging through the streets and stealing things from stores. Maybe they're the ones that should be in jail. But that's a whole different issue.

But these – the public need not be concerned about federal judges strictly applying the law and we're not letting people out of jail who should not be let out of jail. There's no concern that the public need have about that. They may want to consider whether we have some concerns about pardons and clemency. That's a whole different issue. I want to underline something you just said a bit. We're talking about an act that applies to federal judges. Yes.

And a lot of federal cases are very high profile by virtue of what kind of crimes fall under federal statutes. But in talking about our incarcerated population in the United States, federal cases are only, what, a tenth of those? So the largest source of long-term incarceration is coming from state level, which I don't think the First Step Act has any power to influence at all, right? Right.

Well, you're right on the money. This is something which is going to be, I think, the cause of the rest of my life. I feel so strongly about it because the federal government is only 10 percent. About 200,000 out of 2 million people are housed because of the federal laws and federal facilities.

So Congress has really created the gold standard by which all states should take a look at and say, you know, maybe we have to belly up to the bar because we're not going to effectively reduce our mass incarceration problems unless the states act also. I'm involved now in trying to see whether that can happen.

A few states have taken steps in the right direction. I think Colorado, District of Columbia has statute, Pennsylvania has. Not enough. What about your own state? What about your own state of New York? My state, New York, dear to my heart. And they have to, have to enact the pending Second Look Act.

It's been proposed for the last three legislative sessions. The leadership has not put it up for a vote. It would pass, I'm sure, if it was. I think the governor is gun-shy. They're concerned about being accused of being soft on crime because of the bail reform issues and a lot of other sensitivities. But it's got to be enacted.

because there are people in jail in New York and Arizona throughout the United States who shouldn't be in jail anymore. They were convicted of the statutes which no longer are viable, and they should have the opportunity to have a second chance for many reasons, like Walter Johnson was given that opportunity. So this legislative session is going to have to decide, and the governor, whether to finally pass the Second Look Act.

And I'm working with a lot of people to see whether we can get the legislation to finally have the courage to do what is the right thing.

So I'm very committed to that. We write about it in the book. And I used the Stephen May case I dedicated the book to have as a telltale example of an oppressive state law that's keeping somebody in jail who should not be in jail, who's entitled to a second look. But Arizona doesn't have a second look act on the books. Arizona doesn't seem to be inclined to wanting to enact what I call more sensible progressive legislation.

So this is what's happening now. I hope that my book, I hope this conversation, I hope what's going on right now will help and be a catalyst to get states, more states to do what the federal government has done. It's led the way. The states must do it. Otherwise, we will not be able to resolve our mass incarceration problem and the billions of dollars we're wasting every year to house people in jail.

Judge Block, you know what's interesting to me is no matter how persuasive you are in your advocacy to advance the second look bill in New York or similar legislation statewide, just going back to the federal level, I mean, it was even –

I think it was under the Biden administration that the Biden administration Justice Department was pretty opposed to to to reconsidering a lot of some key sentences. And I can't imagine that the Trump Justice Department under this current administration is going to be any less opposed to it. Do you think that there was a there was a narrow window of a sort of more open mindedness about this that may be closing now?

Not necessarily so. When I listened to Pam Bondi's when she was being questioned for her. For Attorney General. Yeah. Yeah. Not too long ago, she opened up by saying she supports the first step back. She supports this concept that, you know, the president signed off. She said President Trump, she says, supports it. We are looking forward to maybe having a second president.

step act as well. So I really encourage that this new administration gets it. I think Trump gets it. I think people know we have to deal with a mass incarceration problem. And, you know, ask Pam Bondi. I mean, I heard her say that she supports it, and I hope that she will embrace my book and everything we're talking about today. I think they will.

Because it's the reason why Trump signed off on it. We make the story. We explain it all in the book, how that came to pass. So I really am maybe naive, but I'm cautiously optimistic that this administration, whatever people may think about it, pro, con, whatever, is committed to really enacting further reform legislation that would effectively deal with a horrific mass incarceration problem. What about the Supreme Court, though?

Because, again, getting back to the federal level, if the First Step Act is challenged, you know, up the legal hierarchy, it could land before the high court. And under its current makeup, I think there's more originalists than not.

I think it's a bit of a crapshoot. Look, the issue before the Supreme Court, if it ever gets there, and there's some sort of a split now in the circuits you mentioned, Judge Smith, there are other people out there, so the case may be heading in that direction. The Supreme Court would then have to put the meat to the bones.

You have the statutory language. It has to be extraordinary and compelling in order to do this type of thing. But nobody has defined what extraordinary and compelling is. Neither the Sentencing Commission nor Congress has defined what that language is.

all the judges now sort of are at sea as to how to apply it. More liberal, for lack of a better word, more restrictive, for lack of a better word. So it's really up in the air. So the Supreme Court one day can say, "Extraordinary compelling." They can give it a very strict construction.

and make it more difficult for people to get relief, or they can give it, like the Second Circuit has, a broader construction to give people like myself the opportunity to have a little bit more discretion and play in the joints to do justice. You still have a lot of faith in the legal system in the United States, don't you? Well, I think it's really, you know, with the last act standing here, I mean, if the legal system in the United States and what I represent...

is going to be compromised, then we're really in a lot of trouble. Because, you know, people do believe in the rule of law. You know, I talk to jurors all the time. They really believe that. And I tell them all the time, we have to enforce the law, whether we agree with it or not. That's my job. You know, there are cases I have where I don't agree with what Congress has done. But if I do not apply the rule of law, we're going to have chaos. We'll become a third world country. We can't do that.

I think that now more so than ever before that the federal judiciary is really the last bastion of making sure that the rule of law is still the sine qua non of our government and of our democracy. Yes, because the president of the United States right now seems to be doing everything he can to...

to undermine the rule of law? You know, I try to avoid getting involved in the politics of the country. Why? Because I don't think that judges should do that. I have my own private thoughts. I'm not going to share them. But I think we have to draw a line between what a judge's responsibility is as compared to what a politician's, you know, desires might be. So I cautiously do not engage in any of this.

at all, but I do speak out about what I think is appropriate in terms of concepts of justice. But you said that you believe the federal judiciary is the last bastion standing in protecting the rule of law in the United States. I believe that's the case. It seems to be the case. You know, my colleagues, they're pretty good. I mean, throughout the country, whether it's South Dakota, whether it's Manhattan or New York,

I'm impressed with their qualifications. I'm impressed with their commitment. These are people who, with some exceptions, of course, really do believe, as I speak today, that we are responsible, that the federal judiciary is really something which the public should be proud of and should want to make sure that it's not going to be compromised.

Um, Judge Block, you were put on the federal bench in 1994 by President Clinton. So now you've got, I mean, and obviously you had a great deal of legal experience before that, but now you've got 30 years of experience on the bench under your belt. How have you changed as a judge over that time?

I think everybody changes through the passage of time. I suspect you're not the same person you were when you were 20 years old or 18 years old. Thank goodness I'm not. But specifically you, yeah. Yeah. If you haven't evolved, there's something wrong. Look...

After 30 years, I think I can do the job much quicker, much more efficiently. And if I can't, I should resign because 30 years had to make a difference. You accumulate knowledge. You're exposed to so many different people. Everybody has to evolve. I call it, I think I mentioned the Johnson case, judicial maturation. So after 30 years, I should not be

the same person I was 30 years ago. I thought I was okay then. I think I'm better now. I think what happens, what ought to happen, I think this is what you see in my colleagues, as they get older, as they get more experience, as they judicially mature, their judgments, they become a little bit more secure in their judgments.

They're not more concerned anymore about whether they're going to be reversed, whether they're going to pass the bad smell test, whether the newspapers will list some things bad about them. And I think that that's part of evolving as a human being. I'd like to think that I've reached that stage. I like to think that I should not worry about what people say about me, what they say about my decisions, whether I'm going to get reversed or not.

And I think that I feel differently today because I feel a little more secure. Whatever your reputation is, it's not going to be changed. And it sort of frees you up emotionally to have more confidence in your judgment and what you have evolved as a human being over the course of years. Now, if I may, can I let people know how old you are right now?

I've got to give away my age now. You don't have to. I don't mind. I'm sort of proud of it. And, you know, the good Lord has given me this opportunity to speak to you. I don't think I sound like a 90-year-old person. And people tell me I don't look older than 89, so I feel pretty good about that.

And we have no control over this. I have friends who have cancer and suddenly somebody has a kidney operation and this could happen to me tomorrow. So I think you have to be a little philosophical about it. I'm just, the good Lord has given me this opportunity to be here to talk to everybody today and I'm really grateful for that. Who knows what tomorrow will be.

Well, Judge Block, let me say that it is my most fervent hope that when I'm a mere two-thirds of your current age that I'm as sparkling then as you are now. It's been such a pleasure to speak with you. Thank you so very much.

Thank you for having me. Judge Frederick Block. He's a senior U.S. District Judge for the Eastern District of New York. And he's author of the book, A Second Chance. A federal judge decides who deserves it. We have an excerpt of the book at our website, onpointradio.org. I'm Meghna Chakrabarty. This is On Point. On Point.