“A Skeptical Eye and a Generous Heart”: Perspectives on Daniel J. Freed from the Vera Institute of Justice

Like Burke Marshall, Joseph Goldstein, and other colleagues on the faculty of the Yale Law School, Dan always took doctrine and principle seriously. This might not sound so exceptional in a law school, but very few people thought questions of sentencing could be settled by doctrine or principle. Not that Dan has ever been cloistered from the real world of criminal justice. Dan always surrounded himself with practitioners, and his co-teachers, like Milton Heumann, were the scholars who most immersed themselves in the real practice of criminal justice. But where others aligned their thinking by ideology and then looked for the doctrine to justify it, Dan liked to start with principles.

As with so many other aspects of criminal justice policy, the Clinton years were particularly unfortunate to Dan and the principles that he advanced. Not only did Bill Clinton not appoint Dan to serve on the United States Sentencing Commission, which would have been an obvious and wise move, but he left the commission largely empty while the federal prison system grew to become one of the world’s largest. This, however, is where dedicated teaching gets its revenge. Dan is perhaps the greatest single influence on a new generation of legal sentencing scholars, with many of his students leading the field and shaping the thinking of his colleagues. And it is remarkable how many of them have been editors of or contributors to the Federal Sentencing Reporter. Whatever else the FSR achieved, it became a virtual community of Dan Freed–affiliated scholars and its contributors a Who’s Who of American legal scholarship on sentencing. If there is hope that we ever restore a principled basis to the shameful field of U.S. criminal sentencing, it is because of these scholars—Dan’s students and FSR colleagues.

I probably owe most of my career to Dan, since I believe it was Dan who suggested that Michael Smith consider hiring me to run Vera’s London office in 1986. From the time I first joined Vera, through my last board meeting in 2004, Dan was the unofficial historian of Vera on the board. Others have served as long as, or longer than, Dan, such as Burke Marshall and Palmer Baker, but Dan was the keeper of the story. If Burke understood Vera’s commitment to people and to ideas, Dan understood Vera’s commitment to learning from its own past and the experience of others. Whether he was prodding us to understand why the bail reforms of the 1960s had not succeeded in ending the prominence of money bail or in lowering the rate of pretrial detention, or asking how a new Vera project designed to serve as an alternative to incarceration would not repeat the mistakes of earlier projects, Dan taught us how to learn.

I remember several board meetings where one or another energetic new project director was presenting his or her new project, and where Dan would suggest an exercise. Dan would ask each of the key staff to write down what they expect to happen in a case, or with a program, and then put those pieces of paper away unread. Later, when the actual results were known, go back to the papers and see how the real results differed from what was written. Then ask, “Why?” Dan understood the dynamics of reform: how each event changes our thinking and our strategy, and how we can sometimes forget our original hopes and ambitions. It is good to become realistic, but it is also good to remember the practical ambitions that bring us to this work. Dan, it seems to me, combines those two qualities perfectly: a clear-sighted realism, and a practical ambition for a more just society.

Dan embodies all the qualities that Vera strives for in its work: a passion for justice, a reliance on knowledge and evidence, and extraordinary judgment. As a result, he knows almost everything about every substantial program that Vera has ever done. And, as a result of that, every director has always looked to Dan for advice, guidance, and more important, approval before undertaking anything of significance. The metaphor of “on the shoulders of giants” cannot be more apt in describing Vera’s relationship with Dan.

In the last decade that I have known Dan, my admiration for him has only grown. By far, the most enjoyable part of any Vera board meeting is when Dan, who has always listened intently and thoughtfully to whatever presentation or proposal is being made, says he has a question or comment. The room goes silent, all eyes, board and staff alike, are on him and not a peep until he’s done. (E. F. Hutton has nothing on Dan.)

Because it’s never just a question or a comment but a lesson that ties in the present with the past, about what is being proposed and its relationship and relevance to what’s gone on before, a narrative historical arc that contextualizes and raises critical questions. And when he’s done, everyone realizes that something important and useful has been said. Those moments are, to continue the corporate financial analogies, priceless. And there have been thousands of them.