From cafe welcome to stay too I'm preparers everybody has their crime or criminal offender type of person. That really gets their anger up and its different for different people for some people at sex offences, others, it's you know. The people who engage in financial fraud for other people, its drug dealing but collector, we as a society in the United States? The way we tended with that is well. Let's give everybody long sentences for the things that make people angry and when you add all that up, you get two point: two million people who are incarcerated, kneeling states- that's Rachel, Barbara the professor, and why you school of law and the faculty D the centre on the Administration of Criminal LAW, she's. Also the author of the new book prisoners of politics, breaking the cycle of mass incarceration. Rachel's work is important and she's one of my favorite people to help navigate this thorny topic. She also happens to be great colleague.

Had a great conversation digging into the weeds of sentencing, reform, clemency and how a prosecutor's office should measure success. But first, let's get to your questions. That's coming up stated faced eighty listeners. It turns out that the next episode of statehood drops on Thursday July Fourth floor planning a special episode and we need your help. Instead of asking me questions, I have a question for all of you and it's something we talk about the show. What is a topic of conversation in America last number of years, so in fifteen seconds or less tell me, what does patriotism mean to you record, a voice memo right on your phone and email it to stay tuned to cafe dot com or call leave us a message at six hundred and sixty nine, two hundred and forty seven, seven thousand three hundred and thirty eight

we'll be featuring. Some of your answers and you'll hear my answer in my guests next week stated findings Tommy, I'm calling from great in Illinois there's no relaxed and Mr Provera, but I love your show. Little do it every week you two former prosecutors thing off we nice for prosecuting and you have a sense of humour, and I have not encountered that in my experience with prosecutors in the past, from I'm a good guy now, but in the path of experts, prosecutors, wondering The old mean severe thank the prosecutors. Do is perhaps an act, and now these are the real people hours and vice versa, which are doing under showed and act in a real people. I mean people live issue by Tommy. Thanks for that question, first in questions, I feel like we ve gotten in a while. So the your question is: is the you think and act or is

thing and act. I like to think that I don't do much acting on the past or when I was in court or in my regular life look people have jobs to do and what would stand up at the podium when I was your attorney and announce the arrests of people who are alleged to have committed serious crimes. That was not a moment for mirth really or smiling cracking jokes but, as I have said on other occasions, and last time the book talking about these things, the prosecutors who are least in the ESA, and why, in the other ones it I've met there, will people to subject as real people and as a people who are prosecuted for crimes are real people and they have stern moments and they have wider moments and depends on what the job is at hand. I know it was a very important thing in our office that we take the work very seriously, but we'll take ourselves too seriously there are a lot of practical jokers. You may not all know this, but I would get roasted as the use attorney twice a year by a bunch of folks ran from my face and it was not kind and a lot of punches we're not

so they say we're nice. Sorry risks to go about, whether that is an act or not. I can say for the record and Milgram is alot nicer than I am, but I'm trying Here's a question from twitter user, my text, life who writes I prepare our scottish- just dropped the Curtis flowers case. This case had been overturned three times for Batson violations by the same prosecutor under the same judge, total trials or six defended in prison for twenty one years, ass: a prosecutor. What are your thoughts? So that's a case that involves racial discrimination, injury selection and the bats in case referred to. As a seminal supreme,

the case from nineteen. Eighty six. They made it clear. You can't do that that you have to have a non racially motivated reasons, for example, to strike someone from a jury Toby not based on their race. Now is held to be an important constitutional right. In the case you mentioned the Curtis flowers case. The same decision in Mississippi tried and convicted multiple times six times. In fact, a defendant named Curtis flowers. There was alleged to have committed a quadruple homicide during the course of this x trials. As the Supreme Court points out, the dossier struck. Forty one out of forty two lecturers, there's also substantial evidence that he asked many more questions of the black perspective, jurors, aided the watchers because of those circumstances and others by seventy two majority. Interestingly, justice, Brett, Cavanaugh newest member of the court writing for the majority. They decide to overturn the conviction and send it back for further proceedings, not inconsistent with that

an opinion which is standard language that Supreme Court opinions use. So the Good NEWS for MR flowers is that the commission has been overturned the baddies for MR flowers is. I don't see that there is any law or regulation that prevents the same prosecutor, who clearly has an issue with how to follow the constitution, especially on the point of racial discrimination, injuries, lecture, there's, nothing prevents him from trying Curtis flowers on these homicide charges. Yet, at the time. In any event, I think it's a good decision. It upholds the rule of law. I think it's it's a terrible thing. Optically, legally, morally, ethically that the same day has tried this person multiple times. It also turns out that the Mississippi States Supreme Court, which is not known as a progressive reliable court, said that in this case, with respect to a violation of the basic rule of jury selection, there is as much evidence

of improper conduct, as they have ever seen. So does along history here of not could conduct on the part of this day. One can only hope that he might reduce himself from the further prosecution of kurdish flowers, there's a lot more to say the case for an interesting. A lot of ways, including the kinds of things are just as Thomas says in his descent, which was joined by Justice New course, in fact an melldrum, and I will be speaking at length about the kurdish flowers case in next week's coffee, insider podcast some folks, among other things of people, been talking about and asking questions about with a lot of frequency, has been the continuing situation in these detention centres where children are being held in terrible circumstances, as was discussed in the coffee insider sample and at great length in the coffee, insider podcast annulment. I talked about the argument made by the D o J attorney that The requirement that those facilities be safe and sanitary does not necessarily mean that children, children must have toothbrushes and soap, among others,

it is safe and senator is a singular category in the agreement, and it was it was has to assume left that way and not enumerated by the parties, because either the parties could not reach agreement on how to enumerate that or that it was left to the agencies, to determine determine boiling, was relatively obvious where the nice things about it, Spock, as is not only do I have great and thoughtful listeners, but some of the people who have been guests on the show also listen even I ve been guests and I got an email today, someone. You may remember Steed Martin now the comedian but stay who was a guest on the show and was the monitored the court appointed to oversee the consent agree that we entered into city on Rikers, island and also for many many years, an advocate for reform in prisons and other kinds of criminal facilities, and I thought it was

while to share with you an email with his permission. That's dean, Martin Road today about what's been going on in these detention facilities, given his decades. In decades of experience on these matters, stay Martin wrote this pre, just listen to your podcast with an an unsafe, unsanitary detention centres as usual you to do the wonderful job of framing the issues. Thanks to you, then he goes on to say. Having inspected investigated, hundreds of detention

ilities during my twenty years of the retained expert for the civil rights divisions of both the Eu S, department of Justice and homeland security? Had I ever suggested to these agencies that the absence of basic necessities, such as soap toothbrushes, etc, could be permitted or justified under any construction of correctional standards. That would have been to abrogate without qualification my most basic principles. It is both appalling and frightening that an attorney with the? U S, department of Justice, would stand before a panel of judges and make such an argument. I just wondered if the department took time to consult with any of their retained, experts who routinely inspect facilities for the civil rights division be Well Steve. I felt was worth hearing not just from people who cases and other people who write on these matters, but from Sea Martin, who has lived and breed the stuff for decades texting. My guess this week is Rachel Barcoe she's, an n y. You lot, professor and faculty director of the

on the administration of criminal law. Rachel is a passionate advocate for major reforms in America's incarceration system, we're friends colleagues, even though we don't agree on everything Rachel, I discuss policy by anecdotes versus policy by evidence, the impact of prison programming on public safety and how the current president is using or abusing the power of the hardened that's coming up stay to its finally summertime did you know that means more time, outdoors, less time at home and while you're at the beach or in the park. The last thing you should worry about his home security. You might think it's hard to find the time or the money to make sure you're getting them Tom Security system. That's why simply safe is my top choice? Hands down simply say protects your whole home every window, room door with twenty. Or seven monitoring for just a fraction of the cost around the clock, monitoring is just fifteen dollars a month, plus it's designed to blend

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Voice features of the claimed cast, including Sienna Miller, Seth Macfarlane, and I only Watts Russell Crow is frighteningly unrecognizable, fully transformed into Roger Ales he growled through the inception and rise, a Fox news. It's a powerful performance, the loudest boys premiers this Sunday only on Showtime, go to show time to come and start your free trial. Now, Rachel Barcoe. Thank you so much for being on the show, thanks so much for I think I should say Professor Marco, my colleagues and in ways? Yes, it's pleasure to have you here, congrats nations in your book, prisoners of politics breaking the cycle of ass incarceration, it's a great book, it's an important book, I'm glad you wrote it, I'm glad. Alot of people are reading it. A lot more should be reading it once they listen to what you to say ass before we start wanted to. Thank you. As a friend and colleague, you read portions of my book doing justice and you provided many instances where smartest edits of anyone. So thank you for helping me make the book,

tighter and better yearbook has excellent and needed no help. I'd think it did and so therefore backs for providing. So we a scholar of all things, with criminal law in there? a debate now in the country about how we make things better. I don't think there's any one who thinks whether your current or former prosecutor defence lawyer agenda an academic or some combination of those things who thinks that the current system is wonderful and the status quo is great. the liberal or conservative. What was your major reason for writing this book and what are you is the major issue that we should be focused on with respect to criminal justice. If our goal in our criminal justice policies is to achieve what safety and I really think that's the common ground. Liberals concern it is that we all share. We want a system that working to make us safer and a goal in writing. The book was to highlight all the things were doing that fail and that objective that I think people intuitions that these things work when, in fact you look at the data

and the evidence in U fine we're doing a lot of things that are counter productive and to boot. Those are the same things that creep racial disparities, alot of human misery and make the system palpably unjust, so it this lose lose environment that I wanted to draw people's attention. To was interesting, the first thing he said was that everyone should be focused on public safety post. Maybe these things are not mutually exclusive, as opposed to justice. How do you think those are different? So I think Justice is paramount in what we're doing, but I have to admit when I talk to people around the country, there's different conceptions that people have of what justice is in what is a just punishment in a given case, you get wildly different answers from people, but the com Brown is everyone can agree what it means to be safe. You know, too not fear that you're gonna face attacks to have crime rates in your neighborhood in your area. You know, that's the objective that I think is the universal one, and I think what's ironic, is we have people peddling these criminal justice policies that, frankly, are unjust by most people's estimate, but again people too

green. But they say: hey you, don't you need to do these things, that's the trade off for safety and so I'm hoping to highlight in the book is: that's just really a false dichotomy. These are policies that are bad from both perspectives and went on overall. We have a lot of interesting point to make about policy based on evidence, as opposed to policy making by anecdote, and I work for foreign- have yours. The sentence I saw some of that would give us any ample of the readily understandable terrible policy that neither provides public safety nor per it's just as just one. Ok, I really want you had to say your favorite one, but your biggest, the worst one. Ok, I'm not sure if it worse, but I think it's very calm, which is this idea that someone has been charged with a crime and most people have a sense or less walk them up immediately, because that's good for public safety as many people in pre trial detention as we could get if, before the trial before the trial before they ve ever been adjudicated guilty blackmail, they ve been arrested for something, and there is, I think, a fear

and sense among many many people in our society that this person the danger and it's a great thing to lock them up as soon as possible. Whenever we see news stories someone who was out, you know really on bail before their trial and they do go on a comment and other crime. There is a sense out see that's exactly what we need to prevent. We need to prevent that kind of thing, so as much attention as possible as the goal and misconception. There is, in fact, when you look at all the evidence in the data detaining people before their trial makes it more likely that are going to commit crimes right and, if you kind of when you think about it, we are taking people from whatever they have whatever childcare arrangements. They have housing, whatever their life is and were uprooting them for. However, long they're gonna be detained, pre trial and what that'll often means m. Is they lose that job? They lose that, I they lose that childcare. They often was custody of their children. So this is one of those life. altering moments for them. That then makes it that much harder for them later. A law abiding life, all else being

no matter what their charge with what they did. It makes it more likely that commit crimes later if we detained in pre trial or mould reviews about them, because we should point out at the outset, people sometimes the grosbeak for all the killers by the general sense of what prosecutors are about, but I A very specific experience in the federal system. Not mistake local system, and even within the federal system, very specific experience in the southern district of New York, and it has been pointed out to me that no different offices have different cultures and different places duty. differently, where's, geographically or state versus this is something else now. We all agree that some people who are charged with crimes based on the federal test should be locked up pending trial because their deemed illegitimate risk of or danger to the community you're, not saying that everyone should be out and free pending trial right, but what I am saying. Is that not everyone should be detained and where the system errors it's in too much detention as opposed to not enough right, there's the one that is because this doesn't happen without the participation of a product,

obviously for defence lawyer required constitutionally and a judge. So what's the conspiracy that's going on and I disagree with you. There's maybe over over detention, pretrial pretty fun system because they have cash bail in a lot of places, and so it's not the test of risk flight or danger the community. But if you can pay the thousand bucks and I think that's wrong and its terrible- we talked about that on the show, but what is happening amongst those three parties in court that causes over detention? So I think it's the accountability problem. If someone is released, pre trial and they do come a crime while they're out that judge that prosecutor, they will be blamed right will hear about them in Europe yeah. Of course you know it's all here about their mistake, but we don't see a front page story. Says man, woman, unnecessarily detained, who presented no rest great, that just doesn't get coverage. There are no blow back for doing that, and this is part of our lives as it is. As an aside,

somebody who is incredibly smart and well versed in all these things and you teach classes in written more than one book in textbooks and articles in now the course of last year and a half or two years, the entire nation a little bit been getting education on criminal justice, through the lens of the Mulder Report and the Russia Investigation and similar and why was in respect to Michael Cohen? And now you have all these people on television, everyday talking about bail and talking about solitary confinement and talking about searches that happen, whether you knock first or not knock, and whether or not it's ok for FBI agents show at six a m as opposed to noon or during high tee. From where you said, what do you make of how people are getting there occasion about criminal law. Given this distortion of the mother investigation, it's got good and bad tributes to it. You know. On the one hand, I would say there are a group of people out there who, for the first time, are outraged by practices that are quite common and I think,

only outraged because they are seeing people that they personally fine to be sympathetic undergoing this, and Oh you know it's some sense. I think that's a good thing to have some people say: hey, you know really. This happens all the time, that's kind of outrageous, and so if it takes them- a kind of political ally to be the victim of that to get concerned about it. There is something to be said about that. That's positive! On the other hand, you know there's attributes of this case and I don't need to tell you, like all these cases are not the typical case, and so they become used as if there's something about them. This is normal run of the mill when there's really exceptional facts and circumstances at stake. So, yes, you should learn about the fact that there are aggressive search tactics. That is something that is not unusual. That would take place in a case or you know people talking about what is a normal sentence for some one in the federal system in learning about the way guidelines working on. So I think that can be good to educate people on. But there are some

things about these cases that are unusual and strange that then become used as a broader critique of the criminal justice system. That's not accurate speaking a poem, four for another. Second, the Manhattan Ba Charge comment important. A number of counts criminally and the report as of the taking of this progress this he's being transferred from wherever he is being held to New York to Rikers Island, which is not a good place and I had a whole chapter by reconciling light book and we did last up with regular out- and I saw somebody post on social media on Twitter. If your site, the poor man effort, is being sent to Rikers Island, you may not be as progressive as you think you are. You react to that right, when I think, that's exactly right, I think the reaction to his initial sentencing was very telling. You know that first sentencing in Virginia when he got forty years, I so many people that I normally think of his kind of progressive criminal justice reform types, absolutely outrage at that sentence, and I thought you know

step back for just a minute. I understand what the guidelines range was, but that first batch of stuff was essentially tax. Fraud unions can, after hey back the money. So this was the prison time. In addition to that, it was not an significant amount of prison time. But the idea was you, people say ah he's decade's you he should spend decades in prison and that's just a little microcosm. I think of what I try to point out in the book is how we get mass incarceration, because everybody has, crime or criminal offender type of person, that really gets their anger up and its different for different people. For some people at sex offences, for others as you know, the people who engage in financial fraud for other people's drug dealing, but collective We as a society in the United States, the way we tend to deal with it is well, let's give everybody long sentences for the things that make people angry and when you add all that up, you get two point: two million people who are incarcerated in the United States, but because there are some categories of people that circle progressive, zinc should read. The book thrown at them

be redeemed, then there's some categories of people, the so called conservative. Think that about and with respect to some there's overlap. So I went out with this issue of politics in making determinations about one or two now. Obviously, the first thing that has to and is or has to be, a law that is prescribed by statute, whether a state law or a federal law that some body of politicians right by definition, politicians, elected people pass and in a prosecutor can decide did so, and so after you conducted investigation, violet as long as it's in the interests of justice to pursue. But the first thing is the law. Whether or not you know it's broad, whether or not it's narrow with enough there's a and it will remain of em sentence associated with it, and I think you have made the point. The question is how to deal with it. That allow. Those laws are past. Obviously, in a political system, but there on based on, as you said, on a repeat, extending its a great line, policymaking by anecdote, as opposed to based on evidence. What are some examples of that? Take sex offender lives because I think that's a good for people. If you have in your mind, if I say sex offender, I think people

having their mind rapists, child molesters in a kind of worse type of that category when you actually look at the laws that are passed round, the country that cover sex offenders. They include things like teens, sending sexually explicit pictures to each other, you secular too. Yes, exactly so their covered, so they qualify for a lifetime registration in many many places public urination, because somebody expose themselves to go to the bathroom outside. That's a sex offence, visiting a prostitute sex So, and this is multiple states- these aren't just kind of one off examples, so in those kind of places where law makers have Ok, here's what we want to do with the category of people known as sex offenders. That's gonna include everything from your child rapist. Two teenagers consensually, sending nude pictures to other. The punishment is sat with the worst person of that category in mind, so you end up with things like lifetime registration requirements or to take another example. If you look at the federal legislation,

was passed in the nineteen Eightys and Ninetys for drug traffickers. You know they kind of had l chop owing You know they talked about these high level traffickers putting great quantities of drugs it circulation, mandatory minimums were set really high for high we'll traffickers they weren't thinking about a conspiracy that includes your kind of low level person, who is the mule who brings drugs over the border or your street courier, but they're all treated the same when he based on the quantity, no matter where they are in the drug conspiracy, and they all get that sentence. That really was frankly with EL in mind. So that's a kind of dynamic we see across numerous offences. It's definitely pattern, but something that actually happens there's an event whether as nine eleven or something else boring or local crime some notoriety in law makers, who have a blunt instrument of passing laws or not passing laws, decide based on an anecdote, as you might say, we gotta do something, and maybe, not a fault of weak long. Maybe it's a fault of bad discretion,

use. Your badge are being used by a particular Georgia particular prosecutor, but they think I represent these people. I care about public safety, also care about justice, and I gotta do and so they pass a law that made unnecessary and mostly works in an upward ratchet. So another words. Some some bad thing happens: you're happy tough laws on the books, but so that something is being done. What its congress or state legislature pass a law get signed by the present signed by the governor, and then you are, without law. Pretty much forever. Could it's it's very difficult politically to undo some tough law, then it is even to enact the tough law in the first place is, always bad, because in other circumstances we might say mass shooting and there has been no movement. kinds of sanctions, for people who, by certain kinds of guns or taken guns away from folks or a hate crime, Knowed Matthew, Shepherd LAW

was passed after a devastating event. That's a little bit. Legislating by anecdote, also had differentiate between the two. I think the key is there's the impetus for passing legislation, some problem in society, whether its hake, times whether its drug trafficking, whether it is sex offence. These are real problems, and so you, you do want a response by your elected representatives. For me issue is what they then choose to do and what information they used to make their decision. So it would be one thing if, after something happens to them, Ok, what could we best due to address this problem that we are now aware of, because there was a high profile event that brought our attention to it, and we looked at studies because there are people who studied and say there are what is it? That would be a good thing to do in response you, I think, the way to think about it would be if we looked at an example from another field that involves, let's say, science. Let's say you had an outbreak of me.

those and you hunted to figure out what should we do about it? We wouldn't normally think the best idea would be to have a bunch of legislators court generalists and have no specialised information kind and go with their God and decide what they think is man. No vaccination exacted might be bad, but people are doing it right and that's that's a real power I think the issue is to get criminal justice in its goals into that same sphere of thinking where we say Hagen. We actually have some accumulated knowledge and information about things that work and don't work. So, let's was that when we make the policy, so let's take an example of one of those policymaking by anecdote. Examples which was crack cocaine, right. So you have when Bias STAR Basketball, Recruit, he's gonna, go to the Celtics there so excited and he dies of an overdose and people think he died of a crack, cocaine, overdose and the result was that that was the kind of trigger for Congress to say this new drug crack has to be. With as harshly as possible- and they literally had a bidding war,

between Democrats and Republicans in Congress to ratchet up the penalties for crack cocaine Where did they look at evidence of? What's the chemical composition of crack? How is it different from powder what do we know about the effects on the human body? It was all by so we might say. Yes, this is a drug that needs to be addressed, but how Congress chose to do it was essentially to create this bidding war, where we got to the point that you would need a hundred times the quantity outer cocaine to get the same sentence? You would get for crack cocaine and it turns out and biased, I'd of powder, cocaine, a powder, cocaine, overdose. So even the story that prompted them to do this turned out to be based on factually false information, and we now know their chemically indistinguishable. There's there's no reason for treating the two drugs that way so thou being ample, were, you might have said, hey Congress. Yes, you recognize there's this new drug. How about you ask Sentencing Commission, you ask other people in the federal government who study these things. To give you some tips,

on where, in the drug hierarchy, crack really falls as opposed to just kind of sea to your pants. Let's make our best guess new and we're seeing the same thing with fair all with, albeit a kind of a range of things where. Yes, there is a real problem, but we don't always come up with the best. solution to that problem, because instead, its symbolic soundbites what'll sound good at the public. What sounds superficially? Tough? other areas where we make decisions and policy decisions and even pass laws based on data and evidence and expertise from where I sit speaking Obama cynically for a moment? Seeing the country both in policy making in lawmaking, actually in lots of areas move away from that we talked about vaccination and measles, and you have a lot people who were spouting off based not on medical evidence or expertise, but based on views towards economic assets, seeing and also with respect to climate change. I'm at science. What gives you hope that in these others, things that some people will say pose an existential threat to the planet that there's not so much care about

evidence in science that We can get somewhere on criminal justice policy. I'm not really sure. I have a ton of I thought I'd say that this is a part cash, but not necessarily in kind of this day. Millions of peat, no, we provide. This is a package, that's about hope, say someone Sonny. I like also to the extent I have it. It comes from the fact that we reach points in our society where people are just hit in the face with how about their policies are. You can kind of look here equally in the United States, where we got regulation of certain issues. Frankly took a lot of tragedies, waste fire people start thinking. Maybe we do have to regulate the conditions on factory floors in criminal justice. I think that kind of tipping point is harder to identify it's a little harder to say. Oh the reason we still have high rates of recidivism and and crime in places and lots of people cycling in and out of the system you know. Sometimes there is a tendency to just blame man

the individuals themselves. You know it's just a lot of people individually, making bad choices in their lives as opposed to saying Thirdly, we have this criminal justice policy apparatus that does a terrible job, because its failing like three quarters of the time as people cycle in and out. So it's a little tough to have people clearly identify that our policies are problematic, but I think the tipping point for that as we now have so many Americans who themselves have personally had involvement with this system that they see at first hand. So you know you got one three adults in America with a criminal record, one out of every three, which is really a statistic. That's hard to wrap your mind around and I think you start to think of the millions and millions of people who have family members in its way one in two people have family members that have some kind of justice involvement. I think when people start to see at first hand, they get us stronger sense that this is not working, and what's that Brian Stevens,

in proximity idea and I think we have a lot more people in America who approximate to a system that doesn't work. You, I think in your book. When you talk about rikers. No one who has proximity to Rikers would say we're doing a good job, detaining people there that people will out of that place better and more likely to lead a law abiding life than when they went in, and I think, as more and more people get close to places like rikers and jails in prisons and the rest of criminal justice. I think that's gonna be the turning point, but the optimistic take and I'm not completely convinced even myself that were there are all animal, Optimism here, you know We disagree on some things and I was most of my adult life, but I still think there's lots of things wrong, certainly Rikers Island and how we incarcerate people, who, I think we doing cards right too many people as you just a minute ago. a hundred to one ratio between crack cocaine, apparel cooking the Lahti years, but after a period of time

That ratio was made not equal, but was realigned some and there are people regressive. Then you have derivatives who have joined together in a bunch of different respects, to say I think, uniquely this wasn't true in ninety ninety four jointly other based a little bit different considerations to say: we're incarcerating twenty people. and progressive, might save me to go to has been on the show civil rights leader and a friend also who says look. She was prepared to join with the coat brothers on policy issues because, from her perspective there's lots of reasons why it unfair, unjust and discriminatory to have so many people locked up from their perspective a little more their emphasis was on cost. You know it hurts the economy and it's bad for the country in slightly differ ways what others overlapping concerns about justice as well, and they both come at it from a slightly different perspective, and probably don't agree and much else on the political table, but they can agree on things and that I got the first step back. For example, the present Europe takes him credit for so that my promptly

It is hard to say if its correct, that that is a trajectory, that's hopeful and good or will not erode. So I think it does lead us to someplace better. I guess that question where your ultimate destination is, and so the reason I stay a little pessimistic if you think about reducing our, in population, let's say by fifty percent. You know goal of cut fifty Van Jones or nation and others have talked about that. We would mean at the current pace that were seventy five years to get there, and that would assume we keep continuing with these kinds of reforms, and I we're about to hit a ceiling, because if you look at the actual things that the two sides have agreed on so far, it's very modest you're really incremental, modest change. I think they're good. I think the first Step ACT is good, is just a first rightness, as it is the most babies that, like you, could run the saddle shoe, and this was a step were then the baby fell right afterwards, but did take that first step. The question is: how long is it going to take to you turn into

Saint bolt from that one, and we are really really far because the things that people are agreeing on you, I read through all of the presidential camps at many of them- had submitted these proposals in this Brennan Centre Report of kind of what they thought of for criminal justice policy, and it's all so modest. You know it's targeting nonviolent first time low level. Drug offenders, which I agree is a really important category to look at, but that's not most. The people who are incarcerated in the United States. You know that's the kind of thing we're gonna have to get past if we want big reform because most of the people, who are incarcerated in the United States are there for some kind of a crime that most people would think thus having involve violence. You know we have people and harsher therein. Therefore, homicides for rapes for robberies, burglary and we could about whether that's really violent or not. But people don't like burglaries, and so that's when you start to get into the offences that are politically more difficult to try to reduce sentences. For you know, it's one thing say that hundred to one ratio for crack powder. Yes, they gotta too,

into one, which was a good thing, but even then they couldn't agree to make it retroactive and give a break to all the poor people who were still serving the old hundred one sentence, as you know that just happen in the first step act. So when you think about taking two decades to remedy what was clearly a really flawed hunter. to one regime, that's what makes me worry that if it takes two decades to fix that one, how long is it going to take to fix the much more politically difficult problem? when asked about the ninety. Ninety four crumble. in the news, because lots of folks- and if you know everyone's running for President a democratic side You know we ve come a long way from nineteen. Eighty four and even communities of color there a lot of strident push for tough laws? I would Do you think there were at least some good the nice. Ninety four crumble, including the assault weapons ban, the agree with yes, there's not a push back within the democratic party. Is people run? To what extent do you people are Joe Biden or others to the extent you have a problem.

and I can only for a crime built today twice as it is a true to judge them. For reacting in the way they did back. Then I think it's always important to take into account the context People are making decision, and so for me personally, I'm only answering for me and every voters different one. I look and see given what we knew, what they knew in the ninety nine. These lawmakers in what way range of policy positions that were available to them than were there. People, then speaking out that this was actually going to be very of, two and frankly there were so you know that's kind of one thing, could look at is even at the time as long as we can. Then, if other people who recognise this was a failed approach, then I think it is fair to criticise and ask friends about will widen. One politician go with approach, ay and another went with b, but to me what more valuable as task? Where are they now? Because I believe you know this is a big part of my professional, here. I believe Inclemency. I believe interview people second chances, including politician. Exactly you not that's another one of those kind of progressive hypocrisy. Frankly, because there's a lot of people who really do

even rehabilitation and human change in the context of people who commit violent against each other, who sometimes actually believe it for people who aren't engaged in those acts. Politicians. So I pressed we believe in human evolution in thought and progress, so I do judge people buy. What they tell me now they ve learned about what they did back then now there. I still think some of these folks are gonna get some kind of Oh great, though, to be honest with you. I was nay, nay, alright, I'm having a name names since I'm not running here's where it's good to have tenure, so you take it, take comma Harris. You know there is an example of somebody who has a lot career in law enforcement and has made many decisions along the way, as attorney general as district attorney, but whose as you know, now says. Well, I was a progressive prosecutor and you know I really don't think that's a fair label for how she behaved while she was, for example, attorney general, because I was alive, then cognisant and in this professional line of work, while she was attorney general and while it was happening, I was outright

that many of the decision she was making give us. So she defended some really horrible behaviour on the part of Orange County District attorney's office in cases took a positions on appeal that I really think we're not positions of justice. You know did not. Represent the highest kinds of positions. One would like to see attorney general's office and fought cases where there was really really blatant misconduct by prosecutors in her state. She wouldn't take a position on reforming three strikes legislation. There were just a few things that she did that at the time I was disappointed cause. I thought this is a very smart person who I kind of had my eye on is a politician to watch and those were disappointing moments, but because I believe in reform inclemency, you don't. I still think today, a new day, so you know what does she say now and then Europe's it is mixed. Like I definitely get it's the people well spent and its well. I've always been progressive, as opposed to. Actually I made mistakes.

You know now, knowing what I know now, I should have done this differently. That's what I like hearing from people, and I have a really gotten that from her. Yet she has some good points since now she wants better funding for defence counsel. She supported legislation in her time Congress. That, I think, is good, and so you know it's a I'd say it's a mixed bag they are, but I my kind of voter ten. I go up whenever I see someone. Basically I've been right. All along you know, I'm still right now, as opposed to just honestly saying you know, that was a script, Joe Biden, you know it take our. I was gonna go to their monarchs. There's. Somebody who has in a very passive voice kind of way said Mister swore made him the nineteen nineties. Not I made them. He was the leader for a lot of that legislation. He wasn't just kind of power by voter in the Senate, you know he was one of the movers for the nineties legislation in again. I think it's possible for him to come out of the box now and say: although

heart was in the right place. We were very concerned with drug problems and crime problems, and we took an approach that we thought was tough and effective. Now we recognise was just superficially tough and actually created more problems than it solves. You haven't said that, instead, it's been so were to what I was saying with Common Harris, more of a kind of I'm all right. therefore, the american people, we did a lot of good things. Then Did we overreach in some? Yes, and you know, then he kind of pivots to some things the Obama administration did, while he was there that in some sense remedied some of those. But you know I'm not really for me it's a question of what they're saying now and for those two, for example, who have kind of along track record on criminal justice. I still can learned about what they are. Actually saying today your many distinctions in your long career, academically and professionally one of witches

the most sought after thing for people who finnish law school was the clerk on the United States Supreme Court and you did for the late justice. Antonyms coolly. Are people ever surprised? That's the justice for whom you clerk sometimes to what it to its source of depends on whether or not they know my own political views, which, which tend to lean laughed and not right, and that is not the way that the justices views or but for others. It's it's less uprising because His positions in criminal cases, for example, actually very much line up with us of arguments I make in the book, and I have given talks at federalist societies and with libertarian whoops and one of the things that I think is kind of great about how our framers devised our system of government is. They knew these kinds of things would happen and they put in place very good checks in our constitution to deal with them, and so, if you are an original list interpreter of the constitution, or you value that framing generations perspective on these things. You end up being applied

robust enforcer of defendants, rights and a lot of areas, and although Justice Glia was not perfect in that regard, for sure- and I disagreed with some of his decisions, he was actually quite good and a whole range of criminal justice matters where it would often be the formal traditional, liberal justices and him as the fifth low in some really am areas, and so I think, for people kind of immersed in the Supreme Court doc it that way. Who knows? there was this side of him and how important he was too some key defendants rights. Then it's a little s odd than I both clerk for him and really enjoyed it when he was young chambers really funny whose values one well, you know hard for me to say, because I didn't get to hang out with the others. Mostly backlogs talk you thinking probably when we need a second funniest Owen. Was it's hard to say he was actually the funniest, but just as Thomas has a laugh kind of like, if you remember the old tonight show and Edward MA am and that kind of really full throated. Ah, you know the where Johnny Carson,

they something that wasn't even that funny. But when ethnic man gave the laugh, you kind of laughed in spite of herself for a young girl there's Johnny Carson hosted the right now. My aids, a few people ago, occurs casino fats from you. I am you may want to just cut that right on out, and so he has that laughed justice, Thomas it creates an aura of humor around him that that seems funnier result, so he pretty jovial personality justice, Stevens very funny and warm they all have. Our own unique sense of humour on on the court, but I do think that Justice Gully in particular, was a very funny person. What did she tell you? He taught me some work habits that I think were stored nearly so one thing that he did is before any opinion that he wrote ever left his chambers. He would sit next to the clerk and have the law clerk bring in the reporters, the books that hold all of the opinions that had been cited in his opinion, and he would look through every one of them to make sure it had been

actually cited and that their wasn't something else in that opinion that he didn't like such that, citing it would send signal that he didn't want and the level of care to do that for in every opinion, is something that really has stayed with me. So I use research, assistants or I get help from others. I feel that seems of obligation to really own it myself and look closely at underlying sources, because you know I think, to myself. If justice golly, I could do it. Surely I should take the time to do the same thing you ever Whim argued just as clear legal or otherwise I mean I like to think so. Violent seems unfair to be able to say that when you can't come on here and dispute lawyers, our gardens vertically rephrase it did you ever persuade him to your point of view, which is not necessarily the slightly different. Yes, I think that that

something I was able to do and it wasn't because of my unique skill set. Actually, I would say that is a testament to the fact that he did have an open mind you. He did go out of his way to hire law clerks, who had political views different from his own. That was because he wanted to have people question. Has functions and and really take him to task if he was doing something that was inconsistent with his you approaching, I wasn't like the argument you would win would be hey why you lookin at all those founding era document. As you know this as a living constitution, let's take a look at here and now, but if you on his own terms could say you are miss reading this here, or your misreading, this statutory text so taking his mouth ology, as a given and on his own terms, showing something that wasn't quite right? He very much with listen. and was open minded and you really great work environment, I have to say that one story I like to tell my students- because this also has stayed with me- is there early on in my courtship, I made him

taken. A memo had circulated. I just didn't indicate it was a plurality opinion below so normally in an opinion, you assume it's a majority of the judges voted for it and if it's not a full majority, but it's just a sufficient number, you'd say plurality would indicated, and I didn't in this memo I didn't put that parents identical in and already walked around the building when it hit me that I hadn't this, and so I was then in full the door to justice, Gilias Chambers and walked in, and you know, confessed to this area and I think it was my first week at the courtship- and I said oh gosh, justice golly, I I circulated the memo and I didn't indicate it was a plurality and you know he dropped the papers that he was working and he looks at me and he says: well, you know what, if that is the worst mistake. You have made, you will be the best law clerk I have ever had just circulate another memo, and I thought you know that is how you get somebody who works for you to want to, because then I thought I could still be the best clerk. He ever had a double down. I've never gonna make a mistake like that again, and you want to do the best you

for someone who's Abbas like that, and that is how I felt the whole time. You know he was really a terrific person to work for this document prosecutors. You say a lot about them. One thing that I found really interesting things very small how should we measure the success of a prosecutor One of the things you say is that it is very common in typical for the metrics used evaluate the success or effectiveness of prosecutors- is how many people that they charge. What percentage of people do they charge? They can back the temperature standard thing. It's an easy thing to measure. I think, with aspect of most officers that those numbers are easily knowable. I will tell you before you go into how that's bad, that I don't disagree with you. I made it a point when I was turning to not pay a lot of attention to those statistics, and I would get the numbers they would come and we had a fiscal year than ended. I think, on September thirtieth, you know you would get these printer that said how many new narcotics charges, Hamley robbery, charges on terrorism, charges on people, the crushing charges- and I couldn't tell you- was. I sit here right now

during the years I was in the Austrians office, but those numbers were I. Nor can we rate was very high anecdotally, because I thought it was actually not a good idea to have people think, while the way you're gonna be measured, is by having convictions you get and we had culture in the office that I hope, is a lot of places that there's nothing painful about losing a case by getting an equivalent to case and you have the same privilege of coming in reporting to the. U S attorney a case in which there was an acquittal, because a jury saw things differently as much as in the case There is a commission and by the way you were celebrated- and I hope this happens most places. If on the eve of trial or during trial at some point after charge was made. You came across other evidence that suggested in other cases, fallen apart and hopefully no one was at fault for that. Well, sometimes in good faith, make mistakes and witnesses make false identifications, and if you were the person who prosecutor who came forward and The dismissal of the case because It no longer made sense to bring There is really no shame in that. There is pride in it and that's important. So I agree with you: I miss my question is, and this is something to struggle with.

Then do you measure the success and quality of a prosecutor's office. If you need to be another but too much weight on these easily knowable stats. I wish we could clone attitude that you have and have it in all the twenty four hundred prosecutors offices around the country, I don't think it's true. I really, unfortunately, think we have a lotta leaders in these offices who, it's all about. The winds, there's a culture that you celebrate the winds and the losses are, alas, like it would be for a sports team. You know that you are treating it the same way we treat when NFL season. That's not what we're doing and prosecutors offices, but I think there is an attitude that exists and its prevalent throughout the country. That is bad and I do think you know that's not doing just that shouldn't be the goal but because it so easily measured. It often is what we can easily measure and what we focus on. If that's what counts, that's what people try to achieve and so the key for a prosecutor. office is to really think what are we doing now. Justice is a tough metric. We talked about

People have different conceptions of it, but I think there are other things we could look at in the office and ask questions about prosecutors. That would tell us, so we could God. What are the cases that you are diverting in your office that shouldn't be their cause? That's a success. You know it is diverting just to be clear, will remember so taking cases out of the criminal justice system, because you recognize this is actually a person in front of us who has a mental health issue or a drug problem, and really we get a better public safety, our common, a better outcome in their lives. If we put them into a treatment programme get it that underlying problem and keep them out of the criminal justice system, because once we deal with that problem, they will be more likely to lead a law abiding life, so we'll get the public safety benefits and we will free up our resources for cases that we really need to focus to me, we should measure that we should measure the successful diversion of cases outside of the system that shouldn't be there, and you know that should be praised and rewarded fool different at the federal system and then a state system, but we look through,

Since all round the country right now, we have states that have prosecutors who are lowering the incarceration rate in their office. Crime is not going up in most cases. It's going down you if anything it stable or going down, and so that's a successful measure to say: hey, we incarcerate too many people. What are we doing to bring that rate down in our office? You know because its suggesting better assessments of which cases matter and which ones don't we could use that as a metric. We could ask what is this prosecutor's office doing to make more likely that when people do stay in the criminal justice system and go through and get sentenced and get put in prison that they're going to come out and they're going to be better off for having gone through this they're going to be less likely to commit crimes. So what are prosecutors doing to promote? trade in what are they doing in an office? I know you talk a lot about this in your book and I am so grateful that you do because that's part of a prosecutors job it has to be. If you care about public safety account just be your job. and when the sentencing is over, you need to ask yourself as a prosecutor, when I send someone to a prison, what does not place? Look like

offering programming and if they're, not. I think a good leader of an office will tell the public, hey we need to do a better job in our prisons, and so that's a metric too. It's a metric for me when prosecutors speak publicly to the citizenry about what should be doing differently about various safety issue. So what are the positions they take publicly on reach free or police shootings or Any number of other public safety issues between police Community relations. Unity should be leaders on all these things and those should be things we value, because we know all that matters for ultimately reducing crime rate, and I think those are all great points now they have all too. As I say in the book, I didn't think about not because of some bad intention, but a sort of out of mind. This idea what happens to somebody once you ve done your job as a prosecutor in the interests of justice, you bring a case. You proceed to completion and if there's a guilty verdict by plea or- trial. Then we make a recommendation that events where mix recommendation the judge sentences and then that person is

into the custody, the bureau prisons and weed really have a role anymore, formerly, and so, when people really busy and have a lot going on when they move under the next case. It's not unnatural. Them to then lose sight of manner, in front of their mind, what happened to that point because her now in the custody of some other subdivision of the government- and I don't hear a lot about those folks- I became a lot- We're interested in these issues when we begin to investigate wreckers, island and became an organisation that cared about what happens when folks in prison and making sure then, as advocates, we were in a spot to say there should be programming in prison because it has a huge impact. As you said, and his own rightly says, and public safety because folks you're gonna get out one day and if they haven't been taught, if they haven't gotten basic skills, if there's no plan to bring them back into society in a way that welcome in a way that acknowledges among other things, are right to vote, then you gonna have big problems. What can you do other than having a few sort of prosecutor

think about in talk to their offices about it and may be publicly about I didn't. Last couple years I was in office to have prosecutors involved on the back and because some people say prosecutors are to involve and everything to begin, he were. Having discussion about how maybe prosecutor should be involved after someone is convicted of a crime relating to have treated, in prison, Hattie Square that well. I think it's part of up prosecutors mission to promote public safety, to ask if you're going to court and you're gonna ask for someone to be sentenced for some period of time. I think it's part of your job as a prosecutor to ask. Why am I asking that period of time. What's gonna happen to that person during that length of time that I am requesting, and if you think that you're sending someone to a facility were there going to be made worse than its perverse to ask for a longer stay in that place? That is bad right. Presumably it's part of that sentencing, determination, recommendation and I think the other thing that prosecutors, the public. We should just all the honest about prosecutors are lobbyists their big time lobby

actually around the country. They are the leading lobbyist for criminal justice legislation across the board for sentencing for the definition of crimes they are out there and whether it's their debts, attorneys associations or individual prosecutors in places. They are off the leading voice in a state when it comes to criminal justice topics and please associations- also, yes, even able, and even more so for sure and both of them I'm not even sure it's more so honestly, the prosecutors are really kind of everywhere when it comes to these criminal justice topics and so the quest. That is why some and not others, why take such a vested interest in Let's say, should we have mandatory minimum sentencing reform but not asked questions about prison? A cynic might say since, I have said this that you can gather. I am one of your rhetoric that there is one that is in their professional interest, because

longer sentences or mandatory minimums, is gonna. Make the job of a prosecutor easier. Prison conditions actually dont have any direct effect on the prosecutors daily professional life. But it is the right thing to do with the goal of public safety, so I think the good prosecutors, your people, like you who say hey because it should be part of our job. We need more people who are out there doing it, and you know the way I would think about it is when we send somebody to prison, they don't go away forever. No. Ninety five percent the people that we lock away, come back and join our communities, and so prison is this kind of short term way of dealing with what is some other. underlying issue that lead to criminal conduct in the first place, and so what kind of like, if you blow up your credit cards, can. Maybe you didn't have cash on you at the time, so use your credit card and you can max it out. that's your short term solution. Whatever your financial problem was, but you know one that bill comes do with all that interest on it. Hopefully

You have solve the underlying financial problems or you have just made everything worse, that's, basically what we do with present. You know we ve kind of solve the short term issue of whatever criminal we were dealing with, but it's gonna come who again later, when they come back out, and unless dealt with the underlying problem. While there are there, we ve just it down the road and actually, in many cases, made it worse, and so I do think part of what prosecutor should be thinking about that kind of angle of public safety, and I think they are one of the few, authors who are situated to know what prison conditions are like they have that perspective There's not that many people who do judges prosecutors, prison shows in a lot of this, I will say is: could we do? a very good job holding prison officials accountable for what happens in their facilities. That's a whole other set of problems that I thought about this problem is really kind of insane. When you think about it, we we have no accountability measure, so that is a space where, if you

prison official? You are not assessed based on whether or not people come out of your facility doing better or worse, and so all of your incense are too just figure out while there with you what it's your job easier. So few as a prison official think, solitary confinement makes my vizier right here and now, because I can use it as a disciplinary measure and you're not thinking this person. I've just put in solitary when they ultimately get out is going to have so much untold damage from that experience that they're gonna have a hard time readjusting. You may not care about as a prison official cause, that's kind of not your immediate concern and we don't have accountability measures for that. So we have prison officials who not only use Terry Confinement, but they take away visitation rights. make phone calls really expensive because they can make money off it, but it's terrible for keeping people connected to their loved ones and re entering later. We have all kinds of policies like that that we do in it. We need to realign infects and so for sure

they should have accountability, but you know until they do or at the same time I do think prosecutors are well situated to call out some of these things that their seeing through lots, more things and most I mean not that expensive in their simple things that I learn when I was working with. This regulation called defy when you get out of prison in most places, some people don't have an idea that governments should I d no hard. It is to open a bank account or to get a job for job. If you have a ninety cost bucks on average, as I understand it in most states to discuss, everyone whose release from prison that simple thing so government issued photo. I d they make make things easier in the absence of which make so many things harder, and yet even something like that doesn't get done further to your point about what happens in prison. It's not just that some of these harsh techniques and practices make people's jobs easier, but it goes back to the central premise of your book, the Inn use of politics and this desire on the part of some people to be tough prison guards. Correction officials-

don't necessarily always like it when they see people minute a crime serving their sense and maybe a violent crime even and then getting a free class and algebra. What are learning a trade they can figure out to become electrician of Luton where's. My vocational training network, minor TIM where's, my Jim. If I go to a I gotta pay, you know whatever forty fifty sixty bucks a month, so I can on treadmill why these guys, who are supposed to be being punished, having acts to a gym. Not appreciating. That has an effect in this matter. Those are the kinds of things among others, the cause there to be less violence and imprison. Sometimes people promoting things are not the best interests not just of the inmates, but also the correction officers, to find that we're disconnect all the time and everywhere you know. I think that that is a weird aspect of what we do. We just do so many things that should ourselves in the that way. You know that maybe there's a short term emotional satisfaction whatever it is retribution revenge. You no anger at someone for getting a crime and then want to take some

away from them. Let's make it so they can't get a driver's license, and they get out or no more public housing for them no more well, her benefits for them, and while that may satiate some short, term emotional satisfaction, because people are mad at somebody for something they have done. What I hope people recognise is that is coming. At an enormous public safety costs, because you are setting all of those people up to fail and to commit additional crimes. so I really hope that people can at least stepped back and ass at what price do you want to take this thing away from somebody you know Much does it mean to you to take that algebra class away from somebody if it turns out that person is gonna successfully reenter with it, but otherwise will fail They don't have it, and so I do think it requires us to ask what is are instrumental in putting people away in facilities and how much of it is about public safety and how much of it is just this kind of retributive desire to punish people, and there too Think it's worth asking. Do people even know the kinds of crimes people are committing cause the

Nothing is often corrections. Officers, don't always know what someone has done and the public often as you know, and they often just assume. I know the worst Hannibal. Lecter kind. person is who we have in. Since and when you know you actually go to them as you have, as I have you know, and what you You are a lot of people who come from really unfortunate circumstances. You know who have had the deck stacked against them and they made poor choices. Saying there shouldn't be consequences for those choices, but these are not people who are irredeemable. You know these are people that have made mistakes but could be put on the right track and could successfully contribute to their communities agreed to be clear. There are some animal also there are- and I think the question is what in people's minds the greater proportion of folks- and I think there is a tendency on both sides frankly to have kind of really skewed perception of. I dont think that every single person who we incarcerate Kin reenter society success

I don't know. I would say that percentage is small of the people who cannot be, but there are some you know, and so for that reason I find it hard to to. and abolitionist argument that doesn't account for what are you gonna do with those people, because, unfortunately they exist and in fact, when you talk to people in prisons, incarcerated people, as I have done, I'll tell you about those people and they will say while not everyone could be you know what are you out of your mind? You know there are through our certain number people. Can they don't you think it's the percentages, and so I think, we're as the public might think. That's like seventy percent of the people. Present. I would counsel the number and about three percent like three per cent of the bad apples and almost any organisation, whether your talking about a police force?

corporation prisons, you know, there's a certain logged on to him when he was right, never get really man, but you know you guess, there's a group of people that, unfortunately, for whatever reason you know, causes a lot of the of the problems, but the vast majority we could be doing a much better job with the hope is to get more people with that as the prototype that they have in mine. And that's the optimistic note which, as I do think now, is more people have personal experience with criminal justice, either themselves or with love ones. They see that cause now their brother, their sister, their father, and they can say. I know this person. I know this person in a way that their than what they ve done wrong? If you write about in your book about cooperators and how you get to kind of z them for everything they ve done, you know that's true of people. Are cooperating to you know that kind of whole gamut of people who have committed crimes. We could successfully reenact most of them and that's what we should be trying to do something about pardons inclemency. Do you spend our time of the vote

about it, and it's much in the news also as well. First are with this explain in a pity way why it should be that an executive, a single man or woman, either a president or a governor, but an executive, duly elected. Let's suppose why, person be able to unwind prosecutions at his Her whim essentially and have the power of the pardon have the power of clemency. Clemency is critical because our system makes mistakes our system wall ten towards too much severity and wool over punish people and that something the framework. recognised when they put the clemency power in our constitution and in what way up. There is right. Next to the commander. In chief power, I mean it was something they really thought was important and When you look it's because, as they say in the Federalist papers, you know what society is, gonna partake in law that are too severe and we need to have a check on them and they knew that from the experience in England, with the bloody code that you had to have

some kind of a mechanism. There was the king which could grant people relief from those blue codes, those laws that are too harshly marriages interrupt you. Yes, I get her show why try intranet in, but I do sometimes but the constitution doesn't say clemency in cases of mistake. Right no, of course not, The question is when you try to pinpoint Why you're giving relieve you know that is, law is for, and I think it it's the limit to be able in advance to specify what you need. It is precisely for that reason you if we could say in advance all the ways that, could go wrong. We wouldn't need it. I think you're right, but it's the limits of law. You know it's the amidst of law in advance to say, here's when things will go, to severe or shears when mistakes will be made, because I think you can always foresee or specify in a written word. Eggs clear when you need it. So the idea is you have this discretion, but you

have it in an elected official and frankly, if you don't like the way that elected official is exercising that power, you can remove that official. I mean that's how the framers envision did it wasn't as if this was on limited powers. as they did also envision that you could get rid of that person, but to give such limitless power- and I disagree with you- but you know- have problems with how this can unfold and we ve seen some of that in recent times, the Pardon power the power can be abused views by a present be abused by governor. Do you think the doll trappers abuse the pardon power? Yes, but I dont think its to get rid of the power altogether, and you know I would also highlight its: not the only area in our legal system and our set of laws were we have that kind of power juries have on renewable power to acquit for any reason, prosecutors have chile and unreliable power to decide not to charge somebody when they decide not to charge somebody, that's it. So we

of these mechanisms built into our system in favour of leniency. I think there important, because, frankly, all the other political dynamics point towards severity. So for me the key is to say, there's a value to the power, but it's just as important to pay attention to how the person vested with it is exercising it. So, in the case of tromp, I think it's fair to criticise many instances his use of the party in power since he's taken office was the worst one. How gosh there also bad I'm not all of them, but I should say there also bad Alice. Marie Johnson was a great instance of clemency reminders. Rosemary Johnson was so she was individual who had been sentenced to life in prison as a first time offender for drug trafficking and money laundering and had Sir twenty one years by the time she was given a clemency grant by President Tromp. She had applied for clemency President Obama's term in office, and many of us had thought she was an ideal candidate

for President Obama's clemency initiative, where he was targeting people in situations like hers for grants, and she was in we denied and her case caught the attention of many many people, including Kim Kardashian, and it was Kim Kardashian who really got it in front of president tromp and really urged him to give the grant, and he did. I was grateful What you I want to say that the arpeggio pardon right off bad sure it was number one particularly horrible, just remind us who yes, so he was the sheriff in Maricopa County Arizona who had been held in contempt of court for violating the constitutional rights of people in his county on particularly immigrants in his community, for abusing them and violating their constitutional rights, so to give up pardon in a case like that, right off the bat First one I think, sends a message that this is

someone. This is not a president who cares about the rule of law. It was given to a political, crony and supporter and the way that that ends up reflect hang on the president is that there's gonna be favouritism. in the granting of these partners, which we have seen, because that was just the first of many that went to people who rode on spoke about him said nice things about him, Conrad Bark exactly! You know diminished, assume that you have a whole range of people, people who have been political supporters in one way or another, and that is a bad use of the pardon parrots not supposed to be for that. You know it is simple. to be four cases that were unjust, that are remedied and if you're only giving it to your friends, you know that's the definition of justice. So I I do worry about some of the grants we have seen. I hope see more like the Alice, Marie Johnson Timing, regular people who did get proportionately long sentences. There are thousands of people like her out there, and so Seymour grants in cases like that

seventeen, but how broad powers for an executive. In this case we would like, but the present mostly to grant a pardon. But it has been the case traditionally that the present doesn't make the choice. himself and as a process in their criteria in their guidelines now present, as we have seen, can throw out the window do whatever he wants, but you least have this process, and so I ve been critical of the present for bypassing process and again, at the end of the day, confusedly wants. That seems not to make a ton of sense, because it's the very institution that a problem says that engage in the underlying prosecutions themselves, whose now make decision looking back into may not be the same human beings because it may have been some time in the past, but the same institution is now being asked to recommend either for or against clemency petition. Part petitions, in your view, is it should be taken out of the problem. Just as initial Matra, I presume you agree that there should be some

intelligent, neutral body, notwithstanding the broad power of the pardon who advises the president and the generally speaking the president, should abide those recommendations. What's your proposal yet equally, I think there should be a process in place. I just don't think the people who brought the case initially are well position to take that objective. Second, lucky, no going back to what we talked about with after you, ve sent- and somebody in kind of thinking of the prosecutors role is ending there, it is kind of straw instead, then go back to the prosecutor, whether were asking questions about clemency or parole or compassionate release. There's an oddity going back to that person. If the prosecutor hasn't stayed in touch with this person, who hasn't been kept, her breast their rehabilitation, progress, they're, not they giving you any information on. What's happened from the date of that sentencing, but they do have information. Could we went to the clemency programme, then I sat around the table and lots and lots of meetings where prosecutors in my this were asked to give their view to the pardon attorney and yes, there are none only kept in touch, but they knew information about the nature of the crime and about other factually

the crime and also were able to point out false or misrepresentations made by the lawyer for the person seeking a pardon or clemency. So I presume you, you believe that the underline prosecutor should insulted will have some role in providing information. Does that they may be Not be the ultimate institution that gives a recommendation exactly right, so you want to go to them for any information you needed about that initial case and exactly the kinds of things you're talking about, but because the Decisions are really about what has changed in this person's life since they ve been sentence, you know, they're, not suited to answer those kinds of questions, and certainly not to be the ultimate decision maker, which effectively is how the federal system currently has it set up, because if you apply for clemency and you go through the Department of Justice and the pardon many or the deputy attorney general, whose also kind of in that decision making hierarchy decides that you don't have meritorious petition, it doesn't even go to the White House, I mean it just dies there, so the idea

be to create a structure that advises the president that doesn't have that buying. But, as you say, creates a process that is not who happens to be crony of the President or Fox NEWS happens to raise the case, but instead you have a real process. With decision makers that advise the pay because the decision is still ultimately going to be his or her just to make. You know it's in the constitution that it goes to the president. We could have set up a group of people who, because I do believe in that have knowledge of these kinds of cases, it would be good to make that a group of people who know something about rehabilitation who know something about going through the prison formerly incarcerated people criminologists. You can have psychologists on there. You can have enforcement. You could have all the range of kinds of professional perspectives on it, who create a commission of sorts that that would say to the President Hagen. We think this person does

of a grant and honestly, it would serve another benefit because it could create some political insulation too. He was not an easy thing to grant clemency in many cases because of that site anecdote. All you want to appear superficially, tough. You know to be able to say, hey look. I gave it to this blue ribbon panel and they all agreed from all their different perspectives, that we should give a grant, but just for the sake of everybody understanding, this system will be put in the hands of prosecutors. That is when we see anywhere else in the country? That is a kind of uniquely odd federal experience. To put that decision into the hands of those things that we talked about today? We talk about the federal system as best I appreciate the oddity. decided to think about that more. While I have you, professor, does you aren't you too, Well, you know I am. I would ask you to legal questions about pardons one. Can a pardon constitute obstruction of justice? I believe that it can just because you have the ability to grant a pardon doesn't mean that you can't do.

For unlawful reasons, in the same way that you could have a lawful ability to engage in any number of other government task. But it could amount to bribery or corruption of your office I see no reason why it would be outside of the way we approach all those other issues. Certain question can president lawfully pardon himself, so that is another one of those questions that in autumn does give you my opinion on your says in her opinion, you're here The only professor here, where are you going professor you're afraid he was all I would I have to admit I would want to go back and look at some more of the foundational documents on this. One was your heart which, from my hunches now, because of the inherent conflict of interests in granting a pardon to oneself the tray were the issue that comes up in this is that you know it is tangled up. The idea with whether or not a president can be charged in the first place, as opposed to whether or not you need to use impeachment as the exclusive method to remove that person

certainly can't party your way out of an impeachment, so you know it's. It is tangled up with that particular title to. Hopefully it won't come to the issue that we really have to give a definitive answer to that question because it actually, yes, professor, Rachel Markham. Thank you again for being with me and ass. The book it's great is very important This is the kind of things that we talked about here and one more worry need to pick up his book prisoners of politics breaking Michael of Mass incarceration Rachel thanks again thanks so much for having me. The conversation continues for members of the capping inside refuted. Join me in this she'll bonus. Re asked Rachel tell me more about her days, clothing for the late justice, Antonyms Clia and why she believes cameras should not be the Supreme Court to hear that and get the exclusive weekly Cathy Insider podcast sign up today, a cafe dot com, slash inside it so this week, at the end of the show, while everyone

talking about elections of in the? U S, I've got to talk about an election in Turkey. There was a local elections for who would become the mayor of Istanbul, the largest city in Turkey. That election was held in March thirty. First, the President of Turkey present Erdogan. We ve talked about a bunch on the show how they have been disintegrating: freedoms in that country, how he has gone about becoming a little bit more authoritarian as time is done by how is consulted power for himself and his party, the Uk Party, so in that local election for mayor of Istanbul pray

Irwin heavily supported one candid from his party, but that's not the candidate who one on March thirty. First, it was the opposition candidate from the Republican People's party or see HP, Akron Molly. He one according to reports by the thinnest of margins, about fourteen thousand votes. Point two percent that wasn't the end of the story because President Irwin didn't like that result very much. So what did he do? He uses power and effectively have that legitimate election annulled, and then they call the new one so that he and his party and is preferred candidate would win that second election occurred just as past Sunday on June, twenty third and guess what the voters of Istanbul didn't like would present Erdogan,

very much either they voted again for in the mobile and this time, instead of it being closed, they delivered him. Fifty four point, two percent of the vote. That was a landslide the New York Times called. It quote the biggest defeat of the governing party in close to two decades, close quote. So why is that important, important reasons in Malta's victory ends are the ones twenty five year dominance in the city where he rose to power as its mayor and ninety. Ninety four and some people say, has used power from that city to fund all sorts of things that he wants to do in the car.

Everyone is famously said himself, whoever wins Istanbul wins, Turkey, whoever loses Istanbul loses Turkey, and so the victory of the opposing party has raised questions about Irwines political future and has to a significant degree, based on some of the visuals from his tumble, renewed hopes for democracy in a country where suppression has escalated overtime, as I mentioned earlier, one is crackdown on basic freedoms, jailing, hundreds of journalists and prosecuting his political opponents. But now, as the Washington Post. In an echo of what, in your time said, reports at the election has pierced. Irwines quote aura of invincibility now people who want democracy and people who are Turkey all are saying it's a major blow to President Erdogan leaving his party weaker than it's been since it came to power in two thousand and two, but a cautionary note as a celebrations rage, hun we need to maybe be a little careful, not just on

the people, the symbol is well they're allowed challenges remain ahead for the new mayor who faces hurdles both translating his victory into effective governance and also You never know what one might have planned next. He doesn't like to lose any certainly doesn't like lose power, but for now we'll keep a cautious I and something going on in the country. Thousands of miles away, we can view it is a victory for democracy and for hope. The pendulum swings made swing. Other places too for this episode of stated thanks again to my guest professor Rachel Barcoe Tweet, your questions are freed Ferrara with the hashtag ass priest free call six hundred and sixty nine two hundred and forty seven seven thousand three hundred and thirty eight and leave me a message that six thousand six hundred and ninety two for creek or you can send an email to stay tuned to cafe dot com,

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go now to simply save docked. Hobbs lash preach, so they know our show sent you that simply saved outcome, Slash preach, hasty to listeners. It turns out that the next episode of stay tuned drops on Thursday July. Fourth, so we're planning a special episode and we need your help. Instead of asking me questions, I have a question for all of you, so I'm fifteen seconds or less tell me: what does patriotism mean to you? report, avoids memo right under phone and email to stay, till the cafe dot, com or call leave us a message at six hundred and sixty nine, two hundred and forty seven, seven thousand three hundred and thirty eight will feature some of your answers and I'll share my thoughts next week, statin.