Yale Law Professor Dan Freed has undoubtedly been the biggest influence on my own career as a law professor. I had him for a year-long sentencing course during my third year — a course that was a descendant of the legendary Yale Sentencing Workshop that Dan helped to organize in the 1970’s. The Yale workshop brought together lawyers, judges, policymakers, law professors, and law students for intensive discussions about the sentencing process. A proposal emerging from the workshop caught the attention of Senator Ted Kennedy, who used it as the framework for a major sentencing reform bill. Eventually enacted (with several important modifications) as the Sentencing Reform Act of 1984, the Kennedy bill created the United States Sentencing Commission and the Federal Sentencing Guidelines.
By the mid-1990’s, when I had him as a teacher, Dan had become an outspoken critic of the Commission and the Guidelines. However, his course still reflected his faith in the value of bringing together people with diverse perspectives to talk to one another in a rational, mutually respectful manner about sentencing law and policy. Thus, we had a parade of fascinating guests in the course: judges, prosecutors, defense lawyers, probation officers, law professors, a sociologist, a Senate Judiciary Committee staffer, and others. Taught seminar style, the course included many lively, memorable conversations with our distinguished guests. The experience sparked what has become a long-term interest of mine in sentencing — a subject that I now teach and write about regularly. In fact, the paper I wrote for Dan’s course became my very first law review article. I’ve stayed in touch with Dan (now retired) since then, and have benefitted from his counsel at many turns.
Dan has been a model for me in several respects.
First, his efforts to bridge the gap between academics and practitioners — reflecting a belief that both groups have a lot to learn from one another — have fueled similar interests on my part. Indeed, this very Blog was envisioned as, among other things, a vehicle for academic-practitioner dialogue.
Second, Dan’s devotion to achieving useful reform in the law has been a big influence on my scholarship and public service activities. I’ll never forget meeting with Dan to discuss the first draft of my seminar paper, in which I railed against what seemed to me an especially poorly worded provision of the Federal Sentencing Guidelines. Dan simply asked me, “Well, how would you have drafted it if you were on the Sentencing Commission?” At his urging, I included in the next draft specific wording for a proposed amendment to the Guidelines. The experience led me to see legal scholarship in a whole new light — not just as an exercise in criticism for its own sake, but as an opportunity to participate in the law reform process. In the course of all of my subsequent academic writing, I have persistently asked myself, “Well, what exactly do I want to accomplish here and how exactly should the new guideline/statute/rule be worded?”
Third, Dan’s teaching and writing focuses intensely on the institutional context in which sentencing occurs. Sentences are not imposed by Olympian judges operating in some sort of social vacuum, but rather reflect the collective efforts — sometimes cooperative and sometimes not — of several different actors, including prosecutors, defense lawyers, and probation officers, each of whom plays a particular role subject to particular constraints. With Dan having drilled this insight into my head, I think I have avoided the tendency of some other scholars to view sentencing merely as an exercise in applied moral theory — a tendency that sometimes leads to law reform proposals that, however philosophically appealing, seem unworkable in practice. In both my writing and my teaching, I try always to attend to the particular institutional settings in which criminal justice is pursued.
One final thought about Dan. Midway through the fall semester of my course with him, Dan suffered a serious heart attack and missed about a month of classes. His first time back in the classroom, he took ten minutes at the start of class to describe, with wonderful grace and good humor, what the heart attack experience had been like for him and his family. In my memory, this was the first time I really saw one of my professors as a human being, not merely as an otherworldly oracle of legal theory. This, in turn, helped me to see that I might actually be a law professor one day myself.