Judge Frederic Block on the Moral Duties and Real-Life Stories of Prison Reform

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1:22Welcome to the Daily Stoic Podcast, where each weekday we bring you a meditation inspired by the ancient Stoics, a short passage of ancient wisdom designed to help you find strength and insight here in everyday life. And on Wednesdays, we talk to some of our fellow students of ancient philosophy, well-known and obscure, fascinating and powerful. With them, we discuss the strategies and habits that have helped them become who they are and also to find peace and wisdom in their lives.

2:07Hey, it's Ryan. Welcome to another episode of the Daily Stoic Podcast. So back in 2012, I don't remember if I was still living in New Orleans or if I'd moved to New York already, but I do remember I was in New York, so I was doing some promo or some press for Trust Me, I'm Lying, which had recently come out. And I was invited on some NPR show in New York, a radio show, and I went into the studio and I'm sitting in the green room. It's just me. I hadn't done a lot of these things before and an older gentleman, a very dignified older gentleman comes in. I think he had an assistant with him or something.

2:43And I'm usually like when I'm in a waiting room or something, I'm just minding my own business. I usually bring a book. I'm not looking to chat with strangers. I don't talk to people on airplanes. I'm sort of minding my own business. And he sort of makes eye contact with me and he starts talking with me and he says, hey, do you mind if I play the piano? And I was like, no, I wasn't like hoping he would play the piano. But I said, yeah, sure. And he sits down and he, you know, plays beautifully for the next five or 10 minutes. And we do get to talking. And it turns out he's a federal judge in Brooklyn.

3:16And I don't remember exactly the specifics. I remember listening to his segment or either before or mine, and we ended up becoming friends. And we would text, we would stay in touch. He invited me to come see him in court, which I did. And then he invited me to dinner sometime. We had dinner at the National Arts Club right off Gramercy Park. And then he ended up telling me I should join. And he sponsored me as a member there. We become friends. And this was like 12 plus years ago now. And we've had dinner many times. Whenever I'm in New York, I hit him up. And, you know, we talked a bunch during the pandemic when everyone was sort of catching up with people and Zooming and stuff.

3:54I remember being very worried about him. And he had written a book called Disroved, which is about like the somewhat mysterious world of federal judges. And he would email me every once in a while and ask for advice on marketing books or getting this book out there. He wrote a Broadway musical at one point. He wrote a novel. And then I asked him a bunch of advice when I was writing my book, Conspiracy, which is, you know, largely a legal drama thriller. I don't know, which is about a very famous legal case. I had a bunch of legal questions that I wanted to run by him. And then when I was writing my Justice book, I sent him an early copy of it and he gave me a bunch of notes.

4:34It's been amazing. I've joked that Judge Frederick Block, that's who I met in that green room. I've liked to joke he's my oldest friend. He was my second oldest friend for a while. I've talked about Richard Overton before, who had quite a number of years on Judge Block, but Judge Block was 78 then and he's 90 now. And he's still working as a judge, still active in the law and in legal issues. He was just out at the Painted Porch and at the Daily Stoke Studios after giving a talk in Arizona. He just flew there and he flew here. He was busting my balls a little bit that I made him come to me. But I said, no, I want you to come to the studios and I want to film this.

5:14I think it would be just really important. Judge Block has been on the bench since he was nominated in 1994 by President Bill Clinton. He's on the district court for the Eastern District of New York. I had no idea how he ended up there. I've talked to him many times, but it wasn't until this conversation that he really told me the whole crazy story about it. But I know he's had an incredible legal career. One of my friends, Ethan Brown, wrote this fascinating book about 50 Cent and the guy that tried to kill him, I believe. Well, Judge Block was the judge in one of those cases, this guy, Supreme McGriff.

5:53He's also judged cases involving mobsters, hedge fund managers, and crazy other cases. The case I went and saw was an organized crime case. He's tried cases involving terrorists and like everything you can imagine in these, what, three decades on the federal bench. He's written a bunch of books, Race to Judgment, Disrobed, an Inside Look at the Life and Work of a Federal Trial Judge, Crimes and Punishments, Entering the Mind of a Sentencing Judge. But this latest one, I was so excited that he did. And I think it's really important. It's called A Second Chance. A Federal Judge Decides Who Deserves It.

6:35And it's not just about him. It's about this thing called the First Step Act, which is advocating for prisoners who have served years of their sentence, been on good behavior, and it allows them to be eligible for release. This isn't exactly politically popular. It's a fraught issue. Almost no one's talking about it. But in these cases, these vexing cases that Judge Block talks about in the book, he's looking at six incarcerated people who have petitioned him for release. And he talks about the merits of each case, the tricky parts of each case, the compassionate release arguments and the arguments for keeping them in prison.

7:14And he talks about sentencing disparities and judicial incompetence, just everything that comes down to this idea of clemency or compassion, which the Stoics talked a lot about. Seneca writes this whole essay on clemency to Nero, arguing that the job of the emperor was to grant clemency. I have a chapter about this in the Justice book, and I talk a lot about it in the Discipline book, even. This idea of mercy, of restraining oneself, of forgiveness. We'll get into all that in the episode. It was so fun to have the judge out to Bastrop to see my bookstore, which I couldn't have even dreamed of when I first met him.

7:51We went out to Lockhart and had barbecue at Smitty's. He was like, I want to see Texas. I've never really been to Austin. I said, okay, I'm going to take you to the best barbecue restaurant in the world, which I think is Smitty's. And we went there and had fun. He really liked it. We talked about his latest book, which, as I said, is called The Second Chance, A Federal Judge Decides Who Deserves It. I'll give you one other thing. So he's a federal judge, and he's talking a lot about the First Step Act. But he said something like 90 % of prisoners in the United States are in prison on state charges.

8:21So part of the reason he wrote this book, what he's really trying to hope happened, obviously he wants people to read and talk about the ideas in the book. But what he's trying to talk about is this expansion of the First Step Act down to the states. He wants states to pass similar versions of this. And look, Judge Block was appointed by a Democratic president. The First Step Act was pushed through during the Trump administration. If he was a partisan judge, this would be something he would be opposed to. He wouldn't be spending his golden years advocating for something from the other side of the aisle if he didn't think it was important.

8:55And he does think it's important, and I think it's important. And that's why I wanted to have him come on and talk about this very important political issue, but also this very important philosophical issue. And it was also just good to see him. And I'm glad he came out. Thanks to Judge Block. I hope our friendship has many years left. And I hope that you get a new audience from everyone here on the Daily Stoic podcast.

9:21I wanted to talk about you a little bit. Okay. If that's possible. Sure. And, you know, I'm glad to see that after all these years, you still have a great smile. You still have, I think, a sense of humor. You haven't lost it. Yeah. I think it's even better than it was when I first met you. But how did I meet you? Yeah, we met in a green room at an NPR show. I remember you were 24 years old. That's right. You were wandering. You know, your parents, you know, feared the worst for you. I was worried about you too. And we both were invited to be on Brian Lear's NPR show in New York City. And I was at the tender age then of 78.

10:04And so we had a little bit of an age separation. And I had written my first book. Yes, Disrobe. I had never written anything before that. Why did I start doing it? But I realized I had this ability to do this. And I also realized that as a federal court judge, I felt the moral responsibility to share thoughts that I had, knowledge that I had acquired with the public for the benefit of the public and not to keep them in pectoris secretly within myself. I'm a great believer that judges have a moral responsibility. I don't know what the Seneca would say about that, Marcus Aurelius, but I think they probably support that.

10:41Yeah, to demystify and explain the system that determines the pain. If you have power, it's part of utilizing it correctly. It's part of explaining why you do what you do. It's part of bringing a comfort level to the body politic. But you're not an arbitrary, irrational person. But you share the same obvious human dynamics as all other human beings. And you take it seriously to be a responsible human being. Anyway, we can go on and on and on. Well, I remember you walked in. I was there first. You walked into the green room. and you asked me if you could play the piano. And I said, sure, I don't care.

11:17And you just started to play the piano. I played the piano. Yeah. We were waiting for this guy to interview us, right? But I was the big shot. You were a little squirt there, right? Sure. And so I think my interview is twice as long as yours, right? I don't remember. Who even knows where these things go? But that was one of the perks of that book, is that you and I met, and now I can say you're my oldest friend. You can't make this stuff up. You know, I use a good Yiddish expression. I can do that because I'm Jewish, right? I call it besher. Besher in Yiddish means it was meant to happen. So that was a besher moment.

11:52Yes. Me getting out here at the age of 90 is a besher moment for sure. Yes. All of this, we have no control over these things. I have no control over the fact that I think I'm still able to be effective as a judge and functional at the age of 90. I don't take any pride in that because I have no control over that. So these are all Bashir moments. Being here certainly is a super Bashir moment. But I said after I left that interview, who is this 24-year-old idiot who wrote this book? Trust me, I'm lying. I like the title. Yeah. So I read it. And you gave me an education on your prior life, the apparel business and American apparel, whatever it was like that.

12:31And I worried about you. Why were you worried? Well, you know, you told me your mother was worrying about you. So I started to be like your mother and I was worried about you also, right? And I came home and then, you know, I told my wife, I said, I met this guy. I don't know if this guy's going to ever survive. Maybe you have to give him a job now as a clerk for the court. You know, what am I going to do with this guy? He's a nice guy. Well, that's very nice of you. He's kind of naive, you know, and I don't know what the future is, right? So we kept a little bit in touch with each other. And lo and behold, here we are.

13:01So now I'm at the age of 90. I thought you were fascinating as a 78-year-old judge. I was pretty good then. Yeah. You've got a couple more years of experience now. I still play the piano. Yes, I know. You wrote a musical. I wrote a musical. Yes. I've been successful, so I'm okay. But if I wasn't, I'd be looked upon as schizophrenic, you know, writing musicals and writing books. How long were you in private practice? About 35 years. Wow. What drew you to wanting to be a judge? So I didn't have anything that drew me to that. It was just the share moments, circumstances, because I really would not be considered the typical federal court judge.

13:36Yeah. Yeah, you're not really typical at all as a person. I should be typical of something. I can't find what it is. No, I'd say you're unique. You're one of a kind. Well, I like to feel that way, but not like a jerk, but like a rational human being. The good Lord, she makes us differently whenever we have no control over this. I got a left side of the brain. Don't ask me why. I write my opinions like a judge, and I can bifurcate. so I don't use my opinions as an opportunity to talk about politics or anything else like that. But I have this other part of me, so I write music, and I wrote a Broadway show, and I wrote country music.

14:13I can play some of my country music songs for you. I want you to play the piano next door. We're going to do that for sure. Is it in tune? Yes. Is it a baby grand? Yes. Are you serious? Yeah, it's a grand piano. A grand piano? Yeah. Baldwin? Not a Steinway. I'm not sure what it is. It was my wife's growing up. Are you going to really let me play the piano? Yeah, we'll go in there and do it. No kidding. Yeah. So how'd you become a judge? I was a solo practitioner in Suffolk County, which was in Long Island. The first case I ever handled it, I was just trying to make a living handling real estate closings, whatever, trying to make a living.

14:46I had no way of knowing I was going to be here today talking to you, right? But I was kind of fascinated by the law a little bit. And then Warren, his court came down with the second important decision of his tenure as a judge. The first was Brown v. Board of Education. We know about that. The second was Baker v. Carr. And I'm out in Suffolk County just struggling as a lawyer with a shingle hanging up on my door. And I had somebody who knew a lot about Suffolk County, and he said, Baker v. Carr, the idea of representational government is what Warren was really keen on. Before then, it was a political issue that was not for the courts.

15:26But in the famous case of Baker v. Carr that was decided when I first started practicing law, he said, no, there should be equal representation. They called it one man, one vote, inappropriate. It should have been one person, one vote. So from each elective district, you should have equal representation and everybody should have the same representation so that one geographic area doesn't dominate over another. Yeah. So I sat down and I lived in Suffolk County where there were 10 towns. And the five western towns had 90 % of their population. And the five eastern towns, you know the Hamptons, you know Shelter Island, they had 10%.

16:05They each had an equal voice on the county government. And it was rare. I said, this is not kosher. This is not really consistent with Warren's decision that we need equal representation. So I sat down enough a minute to do. I didn't know you then. You weren't even born then. No, I wasn't. I couldn't hang out with you, right? I didn't know Marcus Aurelius, so. And I sat down there, put a little scotch next to me, and I started to type out. In those days, we had carbon paper. My first complaint I ever drafted, I was 28, a couple of years older than you when you got on Brian Lira's show. It was challenging the constitutionality of the Suffolk County government as being violative of the principle of one person, one vote.

16:51So we sued the county government. We said it's unconstitutional. Well, you know, you think people have problems with me in my book, The Second Chance. I said, send this kid back to Brooklyn. Send him back to law school. We don't want him out here. What is he, crazy? Suffolk County has had this government since 1684. Well, they don't have it anymore. Yeah. Wow. And I argued the case of the United States Supreme Court. The first complaint I ever prepared, this is Beshear, right? I wound up arguing four years later, United States Supreme Court. And it led to the change of representational government in the United States of America for all elective levels of government, not just the state assembly, county boards, city boards, councilman boards.

17:30So that's how I started. Anyway, you know, I just practiced law. And I had a couple of other kind of interesting cases because people said, go to the block. He takes these crazy cases, right? Yeah. So I had a couple of other of these major cases. I'd make a penny. Yeah. They were all cases that interested me, that really animated me. So they made me president of the Suffolk County Bar Association. And there was an elected position. It was appointed. Moynihan was the Democratic senator from New York. A great senator. Yes. I think to this day, even you probably remember Daniel Patrick Moynihan. No, I know who he is.

18:05Truly crossed the aisle. He truly was an independent. And, you know, he wrote against the injustices of the welfare system, him, even though he was a Democrat, highly regarded. So anyway, to become a judge, you have to have a senator recommend you to the president. And in New York, there was at that time an arrangement between the one hand is a Democrat and Jake Javits is a Republican. And then it was the motto. And they would divide up the recommendations to whoever's in the White House. So if there was Reagan in the White House, then Javits would get three recommendations. One would get one.

18:41And then when Clinton got into the White House, it reversed itself. So I went there because Moynihan actually had something called a Merit Selection Committee. Can you believe that? To this day, Jay and Rostell, who we're going to talk to later, asked me last night, who's your rabbi? I had no rabbi. So Moynihan had really a Merit Selection Committee. And I went there. So imagine choosing judges based on merit, not raw partisanship. I went there never believing that I was going to become a judge. But I felt I had to talk to these people from the city, Brooklyn, where the courts were established.

19:15They let them know that Suffolk County had no federal judicial system. We had a million population. Nobody knew anything about Suffolk County. We were underrepresented. And I felt I was an ambassador to talk to these people. And I met them. And Ed Corman was the one who was scheduled to be the U.S. He was the U.S. attorney. He just finished a major prosecution on this 1 % kickback case. and he was destined to be selected as the judge. And he deserved it. He's on the bench now. But I went there and I said, you know, Ed Corman deserves it. But I just am coming here to sensitize you people that we have Suffolk County.

19:50We have Nassau County. We have no federal court. We have no representation. We have millions of people. And, you know, we have no access to the federal judicial system. And I gave him a lecture. And look amongst the room here. There are 10 or 15 people. Not one of you come from Suffolk. Not one of you come from Nassau. Not one of you probably know a lawyer out there, right? And so was it. I said, I left and I got a call two days later for Moynihan, wanted to speak to me. And he told me that, you know, the knives are out. They don't want me to appoint Corbin because he just prosecuted the Republican County leader in Nassau County.

20:22But, you know, I said he deserves it. He says, but if there's a problem I have, I want you to be a federal court judge. If not now, then sometime in the future. Wow. I said, holy cow, really? So he sent me a nice letter. He appointed a call in, and I got this nice letter. I hung it up at my home. It was really, you know, if I had a chance again. Well, the chance happened nine years later. And I went back to his committee. I wasn't going to go, but, you know, somebody from his committee called, said, Fred, please come back, really, because we can't have everybody from Brooklyn be a judge. We can't have everybody from the U.S.

20:56Attorney's Office be a judge. We need to have some representation. And we need somebody from Suffolk and Nassau County. So I went there. Now, I never thought I was going to get it because there was a fellow there who was wired to be the judge. He was a partner in the major, major Democratic political firm in Long Island, Harold Ickes Jr. David Dinkins was a member of the firm, John English. They were the power. But Moynihan appointed me over him. And I found out later on that he didn't like Harold Ickes. He didn't like these people. He knew them. But he also asked the chair of the committee, who should I nominate?

21:32He said, this crazy guy from Long Island, Fred Block, who's going to be a good friend to Ryan Holiday someday, is the guy you want. I had no idea about that. I didn't even tell you that story. I do remember we were talking, because you mentioned my last book, which you were very helpful on.

21:54We just took our kids to an outdoor performance at The Nutcracker. They had a snow cone. And then they went insane in the car ride home. And one of the things I try to remind myself when that's happening is that I don't control my kids' behavior, especially when they're too far gone like that, but I do control how I respond, right? That's stoicism, but it's also what Dr. Becky talks about. Dr. Becky is a clinical psychologist and a best-selling author, and she founded Good Inside, which is there to give parents practical, actionable tools for handling those everyday challenges with confidence.

22:29My wife introduced me to Dr. Becky's books. I love them. I've recommended them a million times. I've had her on the podcast. And as it happens, Dr. Becky is hosting two live Q &A events for good inside members. I am one of them. She signed me up for it about a year and a half ago. I've loved it ever since. On December 1st, you can join Dr. Becky for her How Not to Raise Assholes event, which is about avoiding entitlement and raising kind, empathetic kids. And on December 15th, she's hosting her How Not to Lose It over the holidays event, which I'm sure we could all use. As I said, I'm a big fan of Dr.

23:06Becky. She's been a great influence for me as a parent and just as a human being. And Daily Stoic listeners can join for 15 % off with code STOIC15. You just got to head over to goodinside.com to catch the events. Thanks to Toyota Trucks for sponsoring this episode. When I bought my ranch in 2015 out here in Bastro County, I drove my car about halfway down the dirt road that we live on, thought this isn't going to work, stopped, parked it, walked the rest of the way home, borrowed my wife's car, drove into Austin and bought a truck. What I bought was a Toyota Tacoma. And this truck wasn't just transportation getting me to and from my house.

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24:58It's interesting. So I decided to write this book about justice, which obviously you care a lot about. But I was so reticent to use that word. It says something about our society today that people, when they think of justice, they think of the legal system. or they think of judges and juries as opposed to the sort of higher standard of whether something's right or wrong. You know, I don't use criminal justice in this book. Yeah, for the very reason. So I use the criminal legal system. Yeah, because I'm sensitive to that. Yeah. I don't know how just it is. But in any event, I literally am a fish out of water because when I got on the bench, eight out of the 10 judges at that time were former U.S.

25:39attorneys. They were all prosecutors. And you were a defense attorney, basically. I was not even in defense. I just was basically a solo practice in taking cases I thought were interesting. Representing people without a fee. Yeah. If I didn't think the case was warranted, I'd say you have to pay me$1 ,000 an hour. And I really believe that if somebody did just cause, I'll survive. And I did. But I had that sense of things. But basically, I came from a different world. There was nobody like me to this day on the bench who came from that world. basically a solo practitioner out in Suffolk County.

26:14Where'd you go to law school? I went to Cornell. Where does a judge get their robes? Do they give you the robes or do you have to buy your own robes? You know, you make a good lawyer someday. You ask good questions. They don't give you shit. You gotta buy your own robe. Really? Is there a robe store or you just buy them online? Unless you're Clarence Thomas. He gets a lot of robes. Yeah, right. His are fancier. There's business. You can buy robes, right? If you're a priest, you can buy a robe. If you're a judge, you can buy a robe. But is there a set of rules that the robes have to be, or it can really be anything?

26:43None that I know of. You know, I was toying around. I'm at that stage of life where I don't care. I'm going to be dead in a few years. I can do it. I'm liberated. Yeah, sure. I seem to think of me getting a pink robe. Ooh. That would be funny. Or you could bring back the wigs. Yeah. They don't even do that in London anymore. Really? Mm-hmm. I got a good wig story, I got to tell you. Okay. What's your wig story? I wasn't thinking about telling it to you. But I can if you're interested. Yeah, please. Jan Rostow, a federal defender. She tried cases before me. She was part of the federal defender's office.

27:18And she now is in Tucson. She came for my speech yesterday. I'll tell you all about that. I actually spoke to him on the phone to Stephen May and his parents. I was there. It was really something. So she came because her husband, unlike you, came to celebrate my 90th birthday in Greece. Where the hell were you? You didn't invite me. I did invite you. You didn't invite me. Are you sure? You know, I've never been to Greece, but my son wants to go this summer. So we're going, we're already planning our trip. He's obsessed with the Odyssey. I didn't invite you. No. You know how badly I feel now? So I celebrated my 90th birthday bash at Villa.

27:53We had a great party. And Mike Patton, who was Jan's husband, was there. And she couldn't make it. But I know that she's tried cases before me. So yesterday, there I am. It's an interesting meeting I had. And there's Jan. So I said, come on, Jan. and they'll take you out for dinner. You know, I haven't seen a while. You know, Mike was at the party, blah, blah, blah. And she says, well, where are you going next? I said, I don't know why I'm doing this at my age. I'm going to see some guy named Ryan Holiday in some godforsaken place. Ryan Holiday? You know Ryan Holiday? I said, what the hell's the big deal?

28:26Ryan Holiday. She's a Ryan Holiday junkie. Wow. So I spoke to her just a little while. She's a terrific gal. She's actually tried cases before, but you can't make it up. But I also said that Jan, and I speak to Ryan, we're going to try to call you up afterwards and say hello. I would love that. Okay. She was like, she's been here. Yeah. Because you don't really know Ryan. I know he's a little schmuck. Are you going to be kidding me? Well, so I thought, because I want to talk about your book, but it's not quite an ancient Greece connection, but there is a very interesting stoic connection to what you're talking about in the book.

28:59So two famous stoic cases. I knew you were going to say that. So first off, Seneca's brother, Gallio, is in the Bible because St. Paul is brought into his court. The Jews were trying to try him for, you know, whatever, some religious crime. And he says, this is purely a religious matter. This has nothing to do with Roman law. And he frees St. Paul. Wow. And then... How did you learn that? It's a famous story. And his name changes. He's adopted by this famous Roman. But that's the good example of a Stoic judge being lenient. So Marcus Aurelius' philosophy teacher was this guy named Junius Rusticus, who when Marcus Aurelius becomes emperor, he appoints him to be—basically he's the sort of chief judge slash mayor of Rome.

29:50And there's this dispute between these philosophers. And so into his courtroom comes this guy named Justin, a.k.a. Justin Martyr. And so Roman law says you can only worship the Roman gods. And Junius Rousticus gives Justin chance after chance to basically deny Jesus or to deny the Christian God. And he refuses to. And he says, do you think that if I have you scourged and beheaded, you will ascend to heaven? And Justin says, yes, I do. And then he says, so let it be done. Really? And he orders it. And so this is one of the many persecutions between the Stoics and the Christians. But I think it's this fascinating example of this guy who is this practitioner of this philosophy of which one of the core virtues is justice, who talks about kindness and mercy and all these things.

30:49Seneca writes this essay, which I want to talk to you about, about clemency. And yet he is sort of imprisoned by the law and he can't step outside it. And he ends up, you know, exerting the full force of the Roman state on this utterly harmless individual. And it's a sort of a state on the stoic legacy forever. Well, you had Plato and Socrates and their great dialogue also. But, you know, your first book had nothing to do with stoicism. That's right. So I don't know how the hell this even happened. Well, that's what I wanted to write about. But my job was in marketing. Yeah, you were absolutely in a period of transition.

31:24Yes. And I was just an old judge just sending people to jail, you know, and voting this little stupid book, which still I get royalties. People like that book. What does it feel like to send someone to jail? Well, you know, I can give you an actual experience if you're interested in doing that. Because when you come to court, I'm going to bring you down to the marshal's office where we had jail cells. And I'm going to show you the cells. We're going to even have a marshal put cuffs on you so you get the feel of what it's like. Okay. But I get that question asked a lot. And I feel okay about it because, you know, I believe in the principle of lenity.

31:54I don't know whether it's a stoic principle or not. What is that? If you have a doubt, you know, be lenient because you're dealing with somebody's life. And if you're in doubt, you know, just, you know, weigh it in favor of less jail rather than more jail. Yeah. So I feel okay about that. But it's the most challenging and the most important part of being a judge. The Supreme Court judges don't do it. Circuit Court judges do it. The District Court judges are the sentencing judges. They have enormous discretion. and it ranges all over the place. Depends about who the judge is, their background, everything else like that.

32:29But everyone will tell you it's the most awesome responsibility you can have if you're a reasonably sensitive human being dealing with the liberty of a person's life. So a doctor deals with, you know, how long you're going to live. But we deal with the quality of a person's life while they're alive, and you do as well. The hardest sentences, believe it or not, are not the mafiosas, are not the ones who have killed people. that's 10 years, 9 years, 11 years, 12 years. It's whether you're going to put anybody in jail at all who's never been in jail for six months, for a year, for two years. That person is not a violent person, but he's committed a fraud or something that really probably warrants him going to jail.

33:10We have some candidates out there in the political world today, right? We have a mayor right now under indictment. And Trump, to put Trump in jail for that crime is not just an automatic type of thing. Yes. And those are the toughest sentences to give a lawful citizen who's never done anything wrong otherwise, who's had this aberrational experience in his life in a nonviolent crime to give that person a taste of jail or not. Those are the hardest sentences. And I imagine when you have had to put people away for such an enormous amount of time to not punish someone at all can feel unfair. So like you have this sense of knowing that you've had to punish certain crimes very severely.

33:51And then you have someone that maybe you feel sorry for or you want to be lenient to, but there's a fairness and equity that you have to consider. Everyone asks these questions. So I had one pretty profound interview. I don't know if you know the gist. you know this guy Mike Pesky has a big podcast in New York he was a bright guy, he would like him but after a while you develop in a strange way a comfort level as odd as that may sound because you develop hopefully a mature sense and this balance of decency and humanity that you apply to this chore that you have but to this day I don't stay awake because if I have a doubt I always result in doubt to give a person less jail time than more jail time so I can sleep okay.

34:34Well, I was thinking about the timelessness of those dilemmas because, so we were just talking about some Stoke examples, but I was writing about Montaigne, the French thinker and essayist. And he has this observation in one of his essays, because he was a lawyer. And it's fascinating how many people have been lawyers over the centuries. He was saying that he watched this judge sentence someone to jail or imprisonment, whatever the punishment was at that time, for adultery, as he was receiving a note from his mistress. He was fascinated at the ability of humans to compartmentalize, to punish someone for something that they themselves were actively engaged in.

35:15We have a lot of examples. The hypocrisy in our country is enormous. Yeah. You know, people want to ask me first off about sentencing. That seems to be what's primarily on the mind of people. Well, this book is all about sentencing. And, you know, as you know, this is a revolutionary statute that was passed, you know, about the first step back. And you know that the problem we have in our country is mass incarceration. Yes. And I think you know about that. More than any other country in the world, right? Well, 4 % of the world's population, 22 % of its prisoners. We have a hard time. You're the same way as civilized society.

35:52We have no problem putting people in jail. We have a hard time letting them out of jail. So, the whole incredible statute that was enacted when it was not a political year, now this is going through a different type of dynamic right now, was a bipartisan piece of legislation signed off by Trump, contrary to basically his past reputation, signed off by Harris who was a senator, and 87 other senators. So this was an incredible piece of bipartisan legislation during the time when Congress was divided, still is, and it was just an anachronistic thing that happened. But conservative, liberal, Republican, Democrat, all believe we have to attack our mass incarceration problem.

36:41Economically, it's$80 billion a year. But from a humane point of view, these people are getting old. They're dying in jail. They're no longer threats. They can't even walk. They can't even talk. They're the worst shape that I'm in. It's really the most revolutionary thing that I've experienced as a judge because it gives me the discretion to reconsider a previously imposed sentence and to change it. And this isn't, for people who don't understand, this isn't something like the Innocence Project that's clearing necessarily innocent people or the wrongfully committed. It's saying, hey, you may have done the crime, you may have deserved a good chunk of time, but we're now with the perspective of time and the changes in society able to reconsider.

37:25To reconsider. Yeah. When politically and culturally, it's such a dangerous issue because the upside is really only experienced by the prisoner and their family. And the downside, if they commit some other heinous crime, it's politically dangerous to people who the judge who lets them out, the politicians who supported it. And so it's easier to lock someone away and lose the key than it is to reconsider and rethink. We've lost a sense of humanity. Isn't it kind of like in each individual case, we're thinking, hey, let's throw the book at this person. Let's make sure they never do this again. But what we're staring at societally is the cumulative effect of doing that where you end up having 20 % of the world's prisoners.

38:16So it's the scale of it that is also the profound injustice. Each individual injustice or perhaps even each individual case you think of as being just, but when you cumulatively imprison so many people for such an interminable amount of time, and then the conditions in those prisons are what they are, that becomes its own form of injustice. Yeah, but people basically don't want to relate to it. You know, it's really not on the agenda. Right. And because of that, we have this almost conspiracy of silence. I talk about the importance of having the First Step Act, giving federal judges the opportunity to reconsider previously imposed sentences, giving federal judges the opportunity to make a dent in our mass incarceration problem.

39:06Right. But letting feeble-minded people who just, you know, don't even belong in jail to begin with, you know, the age of popular, on and on and on. But we can do that for 10 % of our population because that's the federal jail. Yeah. 90 % of the states. Right. So my cause is to try to get the states to enact comparable legislation. Right. Because unless you do that, you know, mass incarceration problem cannot be resolved. So that's my cause and I tend to years right now. And that's what hopefully this book is designed to do because we throw the gauntlet down. Trump, Harris, both supported in 2018 the First Step Act.

39:45They both recognized the need to tackle mass incarceration. They should be asked, and I do ask them, how about reaffirming that today? And how about speaking out for the 90 % of the people who are in jail so we can really have an effective dent in our mass incarceration problem? They're not going to do it. Don't you think a lot of people are embarrassed post-George Floyd about some of the things about defund the police and some of the extremes that people went to. And then obviously there was a subsequent rise in crime, whether it was related to that or not. There is this reluctance to engage in the issue because they don't want it to be an albatross around their neck or they don't want to embarrass themselves.

40:24It is absolutely so. This book is toxic. Yeah. Look, I'm not a politician. Good politics sometimes makes for lousy law. Yes. The combination - Who said that, right? Who said that? Some smart person must have said that. Yeah. I said that. You mean I didn't make it up? Oh my God, I can't do anything original these days. So you add the political dynamic and the emotional overload. And those two things are poison. And, you know, the rule of law, the issues that we should be thinking about, we talk about it in the book here. People don't want to touch it with a 10-foot pole. They just can't deal with it from political and emotional reasons.

41:01And it's not like, okay, so people don't want to talk. There's a lot of things we don't like to talk about. There's taboos in society, right? But I think what's unique about this issue is that the refusal to talk about it or engage with it, what results is profound human suffering. To say nothing of the expense and the injustice, but there is profound suffering on the other side of that that just goes on and on. And there's a legacy of that in this country that I think is interesting. What's that famous prison in Louisiana that was famously a slave plantation, and then after the Civil War, it just became a prison where they still continue to lease out the convicts doing work?

41:39Like, the tradition of it, the names for what's happening change, but the game remains the same. And we also have, believe it or not, you can buy stock in the stock exchange for private jails. Yes. And a lot of these small communities depend upon private jails. They want to keep the people in their jails. Well, there's a federal prison right up the road. There's the Bastrop Federal Prison, and it's the largest employer in the county or the second largest employer in the county. Yeah. So there's economic factors here involved. Look, it's all complex stuff. There's no question about it. And I get it all.

42:12But the question is, how do you, how do I, how does anybody else come to peace with themselves as a human being? If we're just going to ignore any sense of humanity and decency and forget about the human animal, then what kind of a society are we? What does Marcus Aurelius say about that? He says, one of my favorite lines in meditations, he's listing all the things that you're not supposed to do as a person. And then he says, but remember, you can commit an injustice by doing nothing also. Yeah. And the idea of just ignoring a problem because it's uncomfortable or politically difficult or because the victims of it are not sympathetic in the way that rapists and murderers and fraudsters, et cetera, are not particularly sympathetic in a world where there's all other sorts of suffering people doesn't make it any less right or wrong.

42:59I think people are just emotionally overwhelmed with it. You know, the triggered George Floyd, this and that, defund the police, all these trigger words, you know, just evoke emotions, which really cancel out people's capacity to be rational, humane, decent human beings, which I think people want to be. Yeah. But we don't have a chance. But anyway, we give people a second chance in this book. Now, I don't open up the prison doors. Sure. And you probably know that I try to be a little creative like you, right? I learned from the master. So I talk about six cases that came to me. The first was the Abdel-Lewimer case.

43:38Now, you may remember that. The young people don't. Yeah. But the older people remember it. And I got Volpe, who was the one who stuck the broomstick up his rear end. A grotesque abuse of authority and power. One of the problems I had when I was writing the book was to say, Do I say he shoved the boomstick up his rear end or he shoved up his ass? Yes. So I said rear end. Okay. Rectum. I think he said rectum, yeah. Yeah. I was tempted to say the other. Yes, sure. But anyway, so I got this application by Volpe to let him out of jail. Russo, who was the consigliere, the capo of the violent crime family that, you know, shot all these people back in the wars, you know, on the streets, he applies for the compassion release.

44:22And I had a gas pipe case over threatened to kill me. He forgot about that. He asked me to let him out of jail. Am I crazy? I'll let this guy to jail so he can't kill me. But he was feeble-minded. These are no longer threats at all. But there's really good reasons to reconsider what we've done in the past. A lot of these sentences just didn't make sense at all when they were handed out. They make less sense today because a lot of the laws have been changed. And there's another The X win-win factor. I will not let anybody out of jail who has not shown to me that he has actually rehabilitated himself in jail.

44:55And, you know, I pride myself on the fact that we have no recidivism rate. The judges, about 5 ,000 of my colleagues have let people out of jail already. We don't have any recidivism. Why? Because we are carefully calibrating who these people are. We're not just, you know, letting people out of clemency for political purposes or whatever. Sure. And so we really have a lot of safeguards in place here. We don't have any recidivism when we let these people out of jail. They earned it. They're not a threat. The wardens really support it many times as well. It's the humane thing to do, and it's the sensible thing to do, considering everything we have to deal with.

45:31So anyway, I got some pretty good blurbs in the back. Which one of your books was blurbed by Judge Judy? Was that disrobed? Yeah, that was disrobed. By the way, she didn't want to give me a blurb about this. She didn't? She doesn't agree? She does not support this at all. Interesting. Why do you think that is? She's very conservative. You know, and she's really super law and order. She doesn't agree with this at all. But don't you think that's a part of law and order? That there is a disorder to excessive and egregious punishments? There's no question about it. By the way, this is a blessing in disguise for the Bureau of Prisons.

46:02Yeah. Because people know that they have a chance of a second chance if they behave. So they're like Boy Scouts in the Prisons Tower. Yeah. They better behave than they ever want. They have to have a perfect rehabilitation record before I will consider letting them out. So it's a win-win. Yeah, there's a disorder to having a significant percentage of your population behind bars. That's a disturbing statement about your society. I don't want to overload people's statistics because I sound like a judge writing about technical things. But I remember a couple of them, 113 million adults out of a population of 330 million in our country have had a family member in jail.

46:4779 million have a criminal record. I mean, really, we have no problem putting people in jail. You walk down the street, maybe one out of every 10 people you pass has been in jail. You know, it's a big alumni society, right? Yeah. And so, you know, we have to really think about what do we want to be looked at as a civilized society. Other societies don't do this. Norway, for example, they will let people out of jail when they're satisfied that they really do have a sense of their problem. They've dealt with the problem. They have a job waiting for them. And the recidivator is almost nothing. Because people get out, they have to have a hope.

47:26They have to have some desire. They have to have a feeling of being a human being and have something to look forward to without hope. Forget about it. If you have no job and you get out, the recidivist potential is 80%. If you have employment, it's 20%. It's as simple as that. People need hope.

47:54you know i'm reading this book right now about it's called the fatal shore it's about the founding of australia and it's talking about how australia starts as a penal colony right but why did why did britain have to ship these people tens of thousands of miles away what why it was two things. One, they had this totally dysfunctional, awful for-profit prison system that had zero idea that prisoners could ever be rehabilitated. They had this view then that being a criminal was a class of person, that it was almost a disease you caught. And then once you had it, you were that. You could be born a criminal.

48:33And then second, they had this incredibly strict, overbearing legal system that would punish all of these petty crimes. There was like hundreds of crimes you could be punished to death for. So what would happen is they would punish people to death for like stealing, you know, two loaves of bread or breaking a window. And then the king would have to grant them clemency because it was absurd that you would be executed by this. But then they couldn't store the prisoners because they didn't have enough space. So when America rebels from the British Empire, Britain loses its ability to ship its prisoners to here, and they have to come up with a new place to do it.

49:13And they think, oh, let's send them to Australia. But you just realize what a dysfunctional system you have when your laws are too strict, your prison system is broken. It creates this bottleneck. You just start accumulating people and people and people, and there's no release valve for it. And that's effectively what we have now, some version of that. Well, you know, you probably know about Michelle Alexander's book, The New Jim Crow. Yes. Okay. But she wrote about collateral consequences, about, you know, we still have Jim Crow, even though they're not physically in jail. Yeah. In effect, they are in jail because there are so many collateral consequences that we attach to people who are released from prison.

49:54You can't get jobs, you can't vote, you can't promote, you can't get housing, on and on and on. So you probably know one of the real good decisions I was writing, while you were making a lot of money writing your books, I was writing these opinions, which I made no money on, right? It was the Nesbitt case. And I did lecture throughout the country about it. And I really, you know, focused on the collateral consequences that we have, thousands in our country, which make it impossible for people to get out of jail and get a job. And to get housing and to really live like a human being. And that's a feature and not a bug of the system.

50:29Like the purpose of Jim Crow was not just to keep the races separate from each other, but was to keep black people from leaving the South by criminalizing a lot of different activities so they didn't lose their labor. I just interviewed Wright Thompson, who wrote this fascinating book about the Emmett Till case. Really? And yeah, the purpose was to not lose the labor that the cotton system depended on it. And that's, we have, yeah, an incredibly strict criminal. A lot of immigration problems are based upon the same thing. Yeah. We needed these people to come here to pick the cotton and the grapes.

51:09And, you know, I handled some border cases, you know, some years ago down in Las Cruces. And these people thought it was okay to come here to pick the vegetables. They didn't know they were committing a crime. So there's another example where if you label somebody as an immigrant, lights out. So we've sort of lost our capacity to rationally think things through. We really canceled out our minds at the starting gate. I don't know why it was not always that way. We had Lincoln-Douglas debates. They were intelligent debates. People took this in size, but there was like a rational process that we had.

51:43We don't have that anymore. And so, you know, you worry about all that. So anyway, we're talking about giving people a second chance. This book, I think, lays out six examples. And I don't tell you what I did until the third chapter. And I let you guess whether or not Judge Block let him out of jail. Did he keep him in jail? Why did he let him out of jail? If he let anybody out of jail, why did he keep him out of jail? So I think there's a little bit of suspense to it also. No, it's fascinating. And I think that even you probably got a kick out of that, right? I did. It made me think. So one of the sort of seminal writings from the Stoics, Seneca is the advisor to Nero.

52:21So he has this sort of unstable head of state that he's trying to contain. So imagine somebody has absolute power, power of life and death over millions of people. What's the most critical skill that that leader should have? You know, if you ask certain leaders, they'd say power, they'd say mercilessness, control. And Seneca writes this essay that survives to us, to Nero, and he says the most beautiful as well as the most essential thing that a king can have is—or skill they need to have is this idea of clemency. And the essay is called On Clemency. He doesn't invent the word, but he popularizes it in Latin, clemencia, I think.

53:02The idea that clemency is what the powerful does to the powerless. You know, what do you do when you have power over another person? And that restraint or that mercy or that second chance is one of the most philosophical, but also most essential sort of traits in a leader and in society. So there is really a legitimate basis for clemency of properly applied, but not misapplied. Yeah. Not for political favors. I'm not playing politics, but that's not the way you do it. Right. But we ask for clemency for Stephen May in this book, right? There's a perfect example where clemency would be warranted, but it's based upon a rational, provocative, sensible analysis of a lot of factors.

53:52So that has its place. Yeah. It also can be abused. The beauty of the law now that I'm applying is that we have a lot of stops. We have a lot of provisions in here which will not allow us to make, hopefully, irrational decisions. Yeah. That each person who is released, you know, has proven his or her mettle. We don't have any recidivism as a result of this because we apply a strict standard. And because of that, we apply the rule of law and we don't apply emotions and we don't apply political favorites at all. Judges are the bastion of that principle now. And certainly the Stoics talked about judges a lot, right?

54:34But what would they say if they were here today about our judicial system? Yeah, I mean, I think the idea that you're supposed to be locking people up forever with no chance of ever coming out. I mean, Roman law was a very harsh, unmitigated force. So in some ways they probably would have accepted it, but I think they would have been aghast at the sheer size of our prison system. Okay, so you might like this. Speaking of second chances, have you read this book David Brooks wrote called The Second Mountain? No, but I read David Brooks' column. He's awesome. He was talking about like, what do you do after your main thing, right?

55:13After you have your career, you do the thing all about you, what do you do next? And I was fascinated. I talk about this in my book on discipline. Do you know what Lou Gehrig did after he couldn't play baseball anymore? I do not know that. He was appointed by the mayor. I think it was LaGuardia still. Appoints him the president of the New York City Parole Board. And his job was to decide whether prisoners got parole or not. He was so disabled at that point that he couldn't even sign his own name. He had a stamp. But he would show up every day. He could have made a fortune. You know, he got offers to, you know, be the face of a nightclub.

55:49He could have done endorsements. He could have done commercials. But he decided to spend the last couple years of his life. He knew he didn't have that much time left. He got a job with the city. And his job was to give people second chances. I think I heard of that story. But, you know, I now have a lot of people who are my age and younger than I am who don't know what to do with their lives. Yes. Many of these people have been big shots with big law firms. They've been the senior potter. They've been the managing potter. but they've been one dimensional. So the age of 65 or 70, they're no longer the managing partner.

56:24Right. And there's an industry of psychiatrists that deal with this form of depression of people who are very, very, very wealthy and very, very successful, but their lives are suddenly empty. We're living longer because of modern medicine. People have a chance to have a second life as well as a second chance. Yes, that's what the second mountain is. What's the next mountain you're going to climb, and it should be a less selfish mountain. Yeah. There's a dichotomy of the people I know who really have problems adjusting, and then there are those who are perfect because their lives have not been one-dimensional.

57:00Yeah. They've not been wedded to just the law. They've not been wedded to just making money. And some of them even write music and country music and do all these crazy things, right? I like to think that I would be able to be okay if I didn't have this job. I worry about it, but I think I have not a one-dimensional way of life, nor do you. So you never have to worry about getting as old as I am. You're going to do just fine when you're 90 years old. I'd be so lucky, though. Well, I expect you to be 90, you know. And I'm going to be really disappointed if you don't make it. You know, my son was asking me the other day, he said, hey, you know, so-and-so's grandmother's like 98 or whatever.

57:40And I was like, oh, that's very old. And I was like, you know, you've met someone older, right? And he's like, who? And I was like, when you were a baby, I'll show you a picture of it. There was this guy who lived in Austin. His name was Richard Overton. He was 112. And I took my - That's the guy you told me? Yeah, I took my son to meet him. And I was like, you'll never meet someone born earlier than 1906. You're talking about this with people with second chances. You know, you're someone who you got a 50-year sentence. Think about how different the world was 50 years ago. Yeah. It's crazy. Yeah.

58:08You can't make this up. Right now, I am sensitive to the fact that I don't think I'm as articulate as I would like to be. Yeah. You're doing great. Yeah. But, you know, people don't see me as a 90-year-old person. You don't feel like it. I wouldn't guess you were 90. Yeah. But when you get to be 90, you're sensitive about whether you still can be and should be a federal court judge. Sure. Because we are appointed for life. So it's a major responsibility. Yeah. Seneca talks about where he talks about this old - Seneca talks about this? He talks about this. He says there's nothing sadder. And he starts to describe this person that he would have known, everyone would have known.

58:44He talks about this old lawyer who's still pleading cases in front of the Roman courts, still trying to be relevant, still trying to be important, that he was so identified with his job and his success and his ambition that he didn't know when his time was up. Yeah. So can I count on you to tell me? I'll let you know. I'm counting on you. I saw you in court 10 years ago. It was a pretty impressive thing. I remember, yeah, it was a RICO trial. And I forget exactly the specifics, but it was fascinating to see you do what you do and how active. Like, I think my understanding of a judge is you sit there, then you render judgment at the end or whatever, but you were having to engage with the witness and the lawyer.

59:31It was a fascinating thing to watch. I wish I remembered the trial, but, you know, I'm glad you were there. You're going to have to come and get. Yeah. But I really believe in humanizing the courtroom. I really take very seriously having the jurors feel that, you know, it's not me against them, that we need each other, that we're part of the system. I do a lot to humanize it. I have a standard joke I tell them all the time. I'm getting tired of telling you after all these years. When you go home, you can't talk about the case. Yeah. You know, just, you know, you're going to be questioned by your loved ones, whatever, you know, what's the case all about, blah, blah, blah.

1:00:00They don't offer you their opinions, especially if it's a case like a sexual case, right? and you got to just say, please, Judge Block told me I can't talk about the case. When it's over, I'll be happy to talk to you about anything you want to know. He said, I can only tell you one thing, that the judge looks just like Brad Pitt. I get a laugh. And then I talk about using humor because Shakespeare does it. So humanizing the courtroom is a very important component of what I try to do. And if when you come back to see me, I think you'll see that I do it. And it's important for people to feel that we're part of an important system, that we each are a part of it, and that we have to march together collectively as judge and jury.

1:00:41So I'm very sensitive to it. And I come down to talk to them. I get off the bench. I talk to them like Marcus Aurelius. I deliver my closing comments right in front of them like a professor of law. Yeah. And I do a lot of things like that. And I think humor is helpful. And I tell them that Shakespeare used humor in every one of his plays. False there. Good friend of mine is going to do false there for the BAM. Very good guy. You know, uses humor also. And he understood the power of humor if used effectively because we need to, we have that capacity to laugh at ourselves. It can be the unifying feature in our country.

1:01:20It can be the one thing that can coalesce us, that maybe people share in common. So I kid around. No, I think you're right. I have a chapter about this in the book that I'm writing now. the day that Lincoln calls his cabinet in, before he reads them the Emancipation Proclamation, he brings out his, basically a joke book, and he reads them these chapters about, you know, from this humorous Artemis Ward, and they go, what are you talking about? And he says, if I don't laugh, I would die. I think Doris Goodwin wrote about that in her book. Team of Rivals. So I kid around about having another career at the age of 90.

1:01:56I said, I'm going to pass this by Ryan, see what he thinks. You know, we have stand-up comics, right? We don't have sit-down comics. But, you know, I think that I could be the first 90-year-old sit-down comic. I bet you could do it. Yeah, and I think I could do it. And I got the whole storylines, you know, and I can bring my wife into it, you know, and I can tell a lot of good stories, you know. I'm wondering whether I'm losing it now. I'm still a federal court judge. You know, last week I was worried about something. I put the prosecutor in jail instead of the defendant. I think I could do it.

1:02:28But the idea is that if I do it, and you know I'm crazy enough to do it, right? You would do it, yeah. The message is that we need to laugh. We need to have something that binds us all together. And if a 90-year-old sit-down judge can't do it, who can? Yes. So I'm toying around the idea. I like it. Will I have the guts to do it? I think you should. Yeah. Do you want to go see the bookstore? Let's do it.

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