Rachel Barkow on Fixing the Fundamentals of Criminal Justice
2019-10-25 · Guest: Rachel Barkow (NYU School of Law) · 52:30
Mass Incarceration and Criminal Justice Reform
Professor Rachel Barkow joins Bob Zadek to analyze why the United States has the highest incarceration rate in the world despite stable crime rates. They explore how political dysfunction and “tough-on-crime” rhetoric have replaced empirical evidence in sentencing and pre-trial detention, and discuss emerging reforms in plea bargaining and bail.
Topics: Mass incarceration, sentencing reform, pre-trial detention, cash bail, plea bargaining, restorative justice, tough-on-crime politics, public choice theory
Speakers: Bob Zadek, Rachel Barkow, Caller (Jacob)
Introduction [00:18]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. We are on every single Sunday morning. We are always the show of ideas, never ever, not once, the show of attitude. Thank you so much for listening this Sunday morning.
In thinking about the relationship between ourselves as citizens and our government, the most sacred role, the most important role that government plays in our lives is protecting our liberty, protecting our persons and property from those who would do us harm. And in doing so, one of the tools that government uses, of course, is the criminal justice system. That is to say, if another was to harm our person or property, it is government’s role, not our role as individuals, to protect us and to disincentivize those who would do us harm, to put them into—to try them criminally and take away their liberty.
Now, taking away someone’s liberty is a very big deal. Liberty is what the country was founded to protect. So when government acts in our name to take away somebody else’s liberty, to put them in a cage for a period of time, or ultimately to deprive them of their life, that cannot be taken lightly. That is the ultimate responsibility of government. How is government doing in carrying out that most sacred of roles? The answer: not that great. And we are suffering from, in the opinion of many, a plague of what is called mass incarceration, which means too many people in prison for too long, for the wrong reasons, with a system that is counterproductive.
This is a hard topic. And to help us understand the nuances of this topic, I’m happy to welcome to our show this morning Professor Rachel Elise Barkow. Rachel is the Segal Family Professor of Regulatory Law and Policy and the faculty director of the Center for Administration of Criminal Justice at New York University School of Law, my alma mater, I should mention. She’s a member of the United States Sentencing Commission and also is a member of the Manhattan DA’s Conviction Integrity Policy Advisory Panel. Rachel has clerked for Justice Scalia and Judge Larry Silberman, who sits in the DC Circuit, the most important, perhaps, of the federal courts of appeal. Rachel has written an important book called Prisoners of Politics. And I guess, Rachel, that describes every one of us, even those who aren’t in prison. So Rachel, welcome to the show this morning.
Rachel Barkow: Thanks so much for having me. And just one small clarification: I’m no longer on the Sentencing Commission, so just making that clear so I’ll be able to speak freely about it.
Bob Zadek: Duly noted. Thank you so much.
Defining Mass Incarceration [02:30]
Bob Zadek: Now Rachel, the subject is, of course, a phrase which is in the news, which has been in the news during the Democratic primary battle. The concept is mass incarceration. There’s a lot packed into those two words. It suggests that we have, as I said in my intro, too many people in prison for the wrong reasons in a badly administered system. That’s a lot to come out of two words. Now, when people, when politicians and people who analyze this issue tell us we have too many people in prison, what is the measure by which that conclusion is reached? What makes the number of people in prison too much? What is the right amount?
Rachel Barkow: So, good question. You know, I think there’s a couple ways we could think about it. So, one, we could compare the number of people we have now to historical trends in the United States. And, you know, we’re way beyond numbers we’ve previously had, you know, even controlling for population increases. So, historically unprecedented. Unprecedented compared to other countries in the world. We lead in incarceration rate. You know, we have more people incarcerated here than in any other country. So our incarceration rates are higher than any other place.
So, you know, that leads to the kind of third thing to think about, which is, alright, well, is it because we’re seeing something historically different or different from every other place on the planet in terms of crime rates or some need to incarcerate this many people? And the answer is no. Our incarceration rates are just not tied to crime rates. So to the extent one might think maybe it’s necessary to have that many people incarcerated as a public safety matter, it’s really just the opposite. You know, we’ve reached a tipping point where we are incarcerating so many people that the incarceration itself is causing a risk of greater crime because when these folks come back out, you know, the experience of being incarcerated makes it really hard to re-enter when they’ve served long terms or they’ve been in pre-trial detention. And you know, just as a reminder to everybody, 95% of the people that we incarcerate in America come back out and rejoin our communities. And so, you know, by any of those kinds of historical, comparing to other countries, or just “is this good as a matter of public safety,” we incarcerate too many people.
The Politics of Punishment [04:30]
Bob Zadek: Well then, if incarceration—the amount of people in prison—is not a function of a lot of crime, then what are the—and this, of course, is the subject of your book—what are the bullet-point headline causes of why we have too many people in prison relative to the level of crime?
Rachel Barkow: So it’s really political dysfunction. It’s really good for people running for office to look like they’re doing something about crime, about public disorder. And you know, the easiest thing, the most soundbite-friendly thing to do is to say you’re going to get tougher on the issue. You’re going to increase sentences for something. And the assumption behind that would be that that’s somehow going to help.
But it doesn’t. People are not deterred by an increase in a sentence from five years to seven years. You know, there’s mounds of research on this. You know, what matters for deterrence for people is: are they going to get caught? Not the sentence length. But you know, politicians find it very easy to speak in those kinds of terms. And you know, it’s also the case that our elected prosecutors, elected judges—you know, all those folks have to face the electorate, and they don’t want any kind of campaign ad run against them that highlights any single case where it looks like they were unduly lenient or they cut somebody what looks to be a break and that person goes on to commit another crime.
So everybody’s very risk-averse and errs on the side of being tougher. And so what you end up with is just an enormous number of people incarcerated. So of the 2.2 million, I think it’s important to note that almost half a million, 500,000 people, just shy of that, are detained pre-trial. They haven’t even been convicted of anything. And you know, when you think about, well, why would you have numbers that high for someone who hasn’t even been convicted of a crime, you know, you can really see that political dynamic at play. The prosecutors ask for them to be detained because they don’t want to look like they’re cutting somebody a break. It’s good for them to get people to plead guilty because you’ll plead to anything so that you don’t have to stay any longer in jail. And then judges, again, don’t want to have their election campaign have a highlight be that they let somebody out pre-trial who then commits another crime.
So you end up with almost 500,000 people detained without any convictions. And then when you look at the group of folks who are being incarcerated after conviction, you see sentences that are so dramatically out of whack for any public safety agenda. You know, we incarcerate people well past the point that they’re likely to commit any further crimes because they’ve long since aged out of those behaviors. You know, they may have done something when they were younger, but you know, we’re detaining them until they’re 50 years old, 60 years old, 70 years old. So if you go into an American prison today, it looks like a geriatric ward. I mean, there’s just a bunch of very elderly, very sick people in there. But you know, they’re there because we’ve had this race to ever-longer sentences by politicians, you know, not with any look to see: do they work to deter? Are they helping? Are they good investments of our limited fiscal dollars? Because if we did any of that, we wouldn’t do this. You know, we would just not have this many people. We would absolutely still have some, but nowhere near the kinds of numbers that we see today.
Bob Zadek: And what’s interesting in what you said, and kind of infuriating frankly, is that when politicians run for office, they always run on, of course, or oftentimes run on a “I’m tough on crime, I will increase sentencing.” Imagine if that platform were rephrased to saying, “I will take away more people’s liberty. I will lock up more people in cages than my opponent will.” Imagine if that were the platform, whether that has the same resonance with the voting public. But that’s what they are saying. They are saying, “I can be more cruel than somebody else. I will put people in cages longer.” It’s quite cynical. And of course, the prisoners don’t have a very strong voting lobby. They don’t have many people leaping to their defense. And they are, in the words of Frédéric Bastiat, the “great unseen.” They are locked away where conveniently nobody can see them, nobody knows much about what’s going on in the prison. All we know is they’re not in our sight and therefore not in our consciousness. So the politics are so biased—the science of politics is so biased in favor of longer sentencing—it almost seems hopeless to develop a movement within the political system to reverse the process.
Public Awareness and Reform [07:55]
Rachel Barkow: It’s not great, if you know, to think about the likelihood of reform. But there are some glimmers of hope that ironically come from how much we’ve over-incarcerated. Because we’ve now reached a point in America that one out of every three adults in America has a criminal record, which is a mind-boggling statistic when you really start to think about it. One out of every two people in America has a close family member who has been incarcerated. So once you reach numbers like that, once you get to the point that that many Americans have been personally affected by this over-incarceration epidemic, that’s when you start to get people stopping and saying, “Hey, wait a minute. You know, this is crazy. This is—we’re ruining people’s lives. We’re causing all kinds of enormous racial disparities.”
And, you know, the kind of the ultimate kicker is it doesn’t do anything for public safety. So I think once you start to get that many people who are personally affected, you know, that’s the beginning of where you start to get about change. And I think we’re starting to see that ever so slightly right now in a minor way in cities in America in particular where they’re voting for their District Attorney. And we’re starting to see people get elected for District Attorney who are running on an agenda—sometimes they call it a “progressive prosecutor” agenda, sometimes they call it a “decarceration” agenda. But whatever label they put on it, it’s basically something different from that tough-on-crime, superficially tough-sounding rhetoric that we’ve seen in the past. We’re starting to see this new generation of prosecutors who are running and winning in places to say, “Hey, look, this model doesn’t work. You know, this model is a public policy disaster. And I want to do better. You know, I want to use data, I want to use evidence, I want to limit the government’s power here because it’s gone overboard.” They’re starting to win in major cities across America, from Philadelphia to Chicago to Boston. We are seeing that shift. And I think it is a product of the fact that so many people are now personally aware of what’s happening. And I think once that starts to happen, that’s the seed of change.
Bob Zadek: I should mention, as a small comment to what you just said, in Queens, New York, AOC’s home district, there was the competition for the Queens County District Attorney. And the candidate endorsed—and by the way, listeners, please do not change the dial, please do not hang up on me, but I’m going to say something heretic—when AOC’s favorite candidate for the Queens District Attorney was somebody who was running on a progressive law enforcement platform just as you described. She didn’t win, she lost to the machine, the Democratic machine candidate. But I found myself—I wouldn’t even tell my family members—but I found myself saying to myself that AOC and I agree on this District Attorney selection based upon what I have read. So that’s a small comment, Rachel, on what you had just said.
The Arbitrary Nature of Sentencing [11:20]
Bob Zadek: Now Rachel, a lot of what we’re talking about so far deals with sentencing. People are being sentenced too long. And it has other effects, which we’ll get into this morning, on plea bargaining. Sentencing is a function of plea bargaining as well. But on the subject of sentencing, how does one figure out the right sentence for a crime? It seems to me impossible. There cannot be data to help you. So you were on the Sentencing Commission. What is the science of sentencing all about?
Rachel Barkow: You know that expression you hear about with sausage? You know, you may be happier going to a sausage factory than you would be to hear about how sentences get created in America. But essentially, it’s—at the Federal Sentencing Commission, when Congress created it in the 1980s, you know, they were trying very hard at the outset to figure out, right, how should we think about what the right sentence length should be? And they had economists on there, you know, to try to help them figure it out. And they had a retributive justice expert to try to help figure it out based on harms caused. And you know, Justice then-Judge, now-Justice Breyer was on the commission. And you know, so really smart people thinking about this.
And at the end of the day, they couldn’t do it. What they ended up doing was just averaging past sentences by judges. And I think that’s pretty telling in terms of where we get sentencing policy. It’s basically, throughout most of US history, it’s just been whatever a judge thought was appropriate. And you know, the typical statute might say, “Oh, you know, you can get anywhere from zero to 20 years.” And then you go before a judge, and that judge could just pick anywhere in that enormous range.
When we started to shift in the 1980s to a model that tried to use a commission or an agency to help, you know, they really struggled to figure out what to do. And you know, for the most part, ended up, you know, either averaging what judges had done, so kind of taking the cumulative knowledge of judges. But one thing that politicians, legislators, when they set the sentencing ranges in statutes—you know, that’s the worst of all. They are just plucking numbers out of thin air. You know, they like round numbers. So, you know, you’ll often see a five-year mandatory minimum, a 10-year, a 20-year, going up in increments of five. You know, there’s no science to that. They just—they like the round number approach to it.
So there’s really no evidence to back up those lengths. But what we do know, what we could study and have, is: well, what if we start to lower some of those sentences? What does it do? Because we could—we have had some natural experiments in America where sentences for groups of people have been lowered. And so that does let us at least look to see, oh gosh, you know, will that be a public safety hit? So at the Federal Sentencing Commission, for example, in 2007, they made some adjustments—this was before I was on the commission—they made some adjustments to crack sentences, which you know, are notoriously long sentences at the federal level, really disproportionately affect people of color, you know, just way disproportionately affect black men. And in 2007, they lowered those punishments and they made the changes retroactive, which meant that people who were then in prison could go before a judge and get the sentencing reduction.
And it created this kind of interesting natural experiment because you could compare that group that got the reduction with the people who served their full sentence because the retroactive change happened too late for them to get it. You know, they’d already served the full term. But they were otherwise matched perfectly. You know, same crime, you could match them for criminal history and control for that. And what’s so interesting is following that group of folks for five years after they had been out, the ones who got the earlier sentence release—so they got a lesser sentence versus the ones who served their full term—the people who got released earlier had a lower recidivism rate. You know, so it’s just empirical evidence that those sentences were set higher than they needed to be for public safety. And in fact, just the opposite: by lowering those sentences, by letting people out earlier, you were getting a public safety benefit. You were lowering recidivism rates. And you know, when you let folks out, that means you clear prison bed space for other people that aren’t—maybe are committing more serious offenses that you need the space for. You’re freeing up the money to use—the money that you would otherwise spend on incarcerating them—to use for other things that would be better investments. You know, when there’s prison programming, there’s always more people who need it than is available. So you’re allowing more people to get the benefits of those programs that work well.
So you know, it’s kind of one of these situations where it’s a win-win when you can do it, and now we have empirical evidence to show it. And it’s not just that federal example. There’s studies and incidents of like this all over the country of states that have lowered sentences and they don’t see crime go up. In fact, they often see crime go down and they save all this money that they can use for other things. So the kind of where we set sentences starts off being kind of ridiculously arbitrary. And so I really do think it’s, you know, as a matter of just good government and good public policy, we should ask ourselves: can we lower them without it being a public safety hit? And as you said, as a matter of, you know, honoring people’s liberty, no one should be imprisoned for longer than they need to be. And we are. We are incarcerating people for much longer than they need to be as a public safety matter.
And you know, just last thing I’ll say on it is: even to the extent people want to do this as a matter of some kind of notion of just pure punishment, just pure retributive justice, “they should have a long sentence because they deserve it,” we’re out of whack even for that. Because you know, we give people longer sentences, for example, for viewing child pornography online than they get for actually abusing a child. You know, we have longer sentences for people who sell drugs than for people who kill and people who rape other people. So the kind of proportionality of our punishment is also just way out of whack. And there’s room for even improving there. So I think across the board, sentencing policy in America is due for some really radical improvement.
Bob Zadek: It makes me crazy when to hear you describe the process, as you said, the “sausage making” of sentencing guidelines. Because—and I’ll ask my listeners to just imagine the last time you were stuck in traffic. I was stuck in traffic maybe for 20 minutes one time driving on the freeway, and I was at risk. I couldn’t stand it because I was deprived of my freedom of movement for 20 minutes. Now divide 20 minutes into, for example, five years of a sentence. And just imagine how cruel it is to deprive somebody of their liberty, of the driving in traffic for 20 minutes, for five years. And five years becomes a throwaway. A sentence of 10 years could just as easily be five years. Imagine what that five years means to somebody’s life. And therefore, I can’t help but feel if you took randomly five years today off everybody’s sentence in prison, as Rachel pointed out with data, the savings, the economic savings would be very, very high, and the granting of liberty to people would be enormous, and we would be much—a much freer society without being at risk.
So Rachel, it troubles me so much that sentencing is treated as if it’s scientific, but it’s a lottery. It’s random. And when you’re dealing with liberty, you cannot have a lottery. Liberty is too dear to us. This is Bob Zadek. We’re speaking this morning with Rachel Elise Barkow. Rachel has written a wonderful book, Prisoners of Politics, which as I said describes us all one way or another. But Rachel is discussing the problem of mass incarceration, what the source of the problem is, and more importantly, what are the cures. We’ll be back in 30 really short seconds to continue our conversation with Rachel.
Pre-Trial Detention and Cash Bail [16:30]
Bob Zadek: Hello everyone, and welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. This morning we are talking with Rachel Barkow. Rachel has written Prisoners of Politics, discussing the subject of mass incarceration, a subject which costs Americans both at the federal and state level enormous sums, and I’ll say waste enormous sums on the cost of incarceration. The prison system does not do a very effective job at rehabilitation, thereby inducing recidivism, further increasing the cost. And most importantly, it is profoundly unfair. We are depriving Americans of their liberty arbitrarily and in a totally random fashion. And liberty is just too important to be cheapened in this way.
Rachel, on the subject of mass incarceration, you had mentioned pre-trial detention. And we didn’t really explain that concept. Tell us what you meant by pre-trial detention, how it works, and what the dynamics are, and how that contributes to the mass incarceration.
Rachel Barkow: Sure. So if somebody is arrested for a crime and they’re charged with the crime, the next question is: should they be released pending their trial? So you know, they would be released and then they’ll report back to court for any court appearances and for their trial date. Or do they need to be detained from the moment of arrest onward? And the way that we do that in America around the country, for the most part, is by using cash bail as the measure that people have to post money. So you know, usually they could go to a bail bondsman who’ll lend them the money that they need, and you know, the bail bondsman will charge them a fee, keep a percentage cut that the person will never get back. But the idea is that the person is going to appear because they have a financial stake, you know, that they will come back to court.
But what in practice cash bail means is that people who are poor, they can’t even afford the bail bondsman’s fee. They just can’t make even the percentage amount. Because you know, for folks who are living at the margin, $100 they cannot come up with. They don’t have that. They can’t come up with $500. They can’t come up with $1,000, whatever the amount is. And so what ends up happening is that we are detaining people in America because they’re poor, not because of their safety risk or their flight risk. And in fact, you know, if you have the money, even if you’re dangerous in these places, you can be released. So it’s a crazy system that is essentially just about how much money someone has.
And again, it’s another area that’s just not grounded in any kind of evidence. So if you’re worried about people reappearing in court, the number one, absolute best thing you can do to make sure that someone comes back to court is send them a reminder. It’s like your doctor when they send those text messages, you know, like the day before, the day of, “Hey, don’t forget you have an appointment today.” That’s what we should be doing when it comes to pre-trial, when it comes to court appearances. Because for the most part, when people don’t appear, they just forgot. It wasn’t a case of, you know, deliberately absconding, you know, in way upwards of 95, 96% of the cases. They just need reminders.
So cash bail is not needed for that. But what it does instead is it makes it so that people are being incarcerated in our nation’s jails. And you know, these are usually city jails, but they can be in rural communities as well. So they’re usually facilities that offer nothing. You know, they’re really just holding facilities.
Bob Zadek: Such as Rikers Island. Such as the infamous Rikers Island in New York.
The Human Cost of Jail [19:25]
Rachel Barkow: Exactly. And you know, there, you know, to not put too fine a point on it, these are really hellish places. They’re awful. And they intermix people accused of all kinds of different crimes, all there together. So you know, you’re there for allegedly jumping a turnstile at the subway or taking somebody’s backpack. You’re there alongside someone who may have been accused of a very vicious and violent robbery that may have some serious anger management and control issues. You’re all there together. You know, there’s no kind of classification system like we ultimately have in most prisons. This is really—so it’s—there are places that are notoriously aggressive and violent places that don’t do enough to protect the people who are in there. And there’s no programming in almost any of these places.
And when you think about pre-trial detention, you know, the other thing to think about is if someone is told they need to stay in a jail even for a few days—let’s say it’s a week, let’s say it’s four days—you know, that person is likely to be fired from their job for that. You know, that is probably going to be a deal-breaker for their employer. They may—and then they lose their job, you know, then they find themselves evicted from their housing. And if they’re away for a few days and they don’t have any kind of childcare, they often lose custody of their children. So pre-trial detention becomes this life-altering event for people and is really damaging if what we’re hoping to do is make sure that people stay law-abiding. Because it turns out when people have studied this, if you compare two people who have similar—they’re accused of similar crimes and with similar criminal records, you detain one of them pre-trial but the other one gets to go free until their trial, the person who’s detained, when they are ultimately released, they’re more likely to commit crimes. And it makes sense when you stop to think about the fact that that person’s life was completely upended by the detention. You know, this job loss, losing custody of children, losing housing, and makes it just really hard for someone to keep on a law-abiding path. So pre-trial detention is a public policy failure of the widest scale in America. You know, it’s one of the—if you were to think of kind of big government programs that completely fail, I would have pre-trial detention at the top of any list. Because you’re talking about almost a half a million people being detained for no good reason and in fact is causing all these really negative public safety effects, not to mention tearing people’s lives apart. So, and enormous racial disparities in this because you know, it’s disproportionately people who are poor and it ends up being disproportionately people of color. So from kind of any way that you would look at it, it’s a just terrible, failed policy. And it costs us a fortune. You know, so it’s fiscally irresponsible as well. There’s really nothing to say in its favor other than we have a political environment that leads to it because you know, no one wants to be responsible for the one person who while they’re released pre-trial goes on to commit a violent crime. And you know, so what you see are just people detaining everyone because of the fear of the one who may go on and do something really awful.
Bob Zadek: And let’s remember, let’s remember that the person we are talking about, the alleged perpetrator, has in the eyes of the law, he is as innocent as everybody listening to this show. He has not been convicted of anything. All we have is he is suspected, in as a legal matter, suspected of having broken a law. So to deprive somebody of their liberty because they are suspected of doing something but not yet convicted is heinous. To deprive somebody of their liberty because we think they may have done something wrong. Now of course the evidence might be pretty compelling, but I’m talking about a legal matter. As a legal matter, you are innocent until you are convicted. And to deprive an innocent person of their liberty and to have their life so torn asunder as Rachel described is something we all should be ashamed of. And it then, as Rachel said, exacerbates the problem.
Constitutional Authority and Risk Assessment [22:30]
Bob Zadek: Now I think there was some movement at the federal level. Rand Paul and Cory Booker tried to do some criminal justice reform with cash bail. There is some progress at the federal level. And the states are moving, these laboratories of democracy. In fact, California and other states have taken tiny baby steps towards eliminating cash bail. California’s system, although reformed, is an imperfect first step. But if you could just comment before people get really depressed about what states are doing to fix the cash bail problem, because it is being discussed now in public.
Rachel Barkow: Yeah. So that’s the kind of the good news part of the equation. The bad news part of the equation is some of the solutions are as bad and potentially worse. So you know, the problem is pre-trial detention. We do not need to be detaining people before they’re convicted except in really rare circumstances. Otherwise, you know, most of those folks should be free until they’re convicted. And so what some places are doing like California is while getting rid of cash bail, they’re still putting in place and keeping in place a detention model. It’s just one that’s based on a risk assessment tool instead. So you know, trying to use an algorithm essentially to predict somebody’s dangerousness. But these risk assessments, you know, you need to be really careful in how you set them up, and sometimes they’re quite flawed in terms of their predictions. And sometimes what they’re looking for is, you know, the risk of any possible offending when, you know, what I really think is of concern to the public is, you know, someone who’s going to commit, you know, an incident of violence, you know, as opposed to someone who maybe might be a risk of a drug infraction let’s say or a dirty urine on a supervised when they’re being supervised by probation or something.
So the risk assessment tools themselves are controversial for that reason because you’d really want to make sure that they’re designed well. And you know, California’s has some flaws. The place I would point people to that I think has a good model that is out there is New Jersey, where New Jersey completely changed their pre-trial detention policies and dramatically reduced—so they, you know, got rid of cash bail but they also the risk assessment that they use and the way that they go about it is very narrowly defined, validated instrument. And what it’s resulted in is an incredible reduction in the number of people who’ve been detained pre-trial, you know, without an increase in crime, you know, which I think is important. So you know, it’s come without any danger to public safety, and what it’s done is save New Jersey a ton of money and it’s given those people the liberty that they deserve to have, you know, until they’re convicted.
So I think there are places that I think are doing it well. I think New Jersey’s the best one. It’s just it’s more important when states make the shift that they do so with the best evidence and what we know works best. And I do think that’s where California could improve. You know, I definitely think the New Jersey model is a better model for designing those risk tools and really making a presumption that you’re going to be released, which is what we should have. You know, I mean that’s our constitutional government is, you know, you are free and the government can’t take your liberty away until, you know, they—the government should bear the burden before something like that happens. And I think it’s really important with pre-trial detention for that to be the case as well. You know, you should be presumed to get to go free until you’re convicted unless the government can really make the case for why you need to be detained. And that’s really the way that these models need to shift. And then when they do it, you know, they need to have these tools that are really designed to focus on the risk of someone committing an offense that would really harm another person and use those tools in a way that makes sure that’s the risk that you’re most concerned about as opposed to, you know, kind of a more generalized kind of a risk of just any crime.
Bob Zadek: Rachel, I’m embarrassed that I have to ask this question, and it may not lend itself to a simple answer. But as a constitutional matter, by what authority does government, federal or state, have the power to lock somebody up who is merely believed to have been committed a crime but not convicted? If they can do that, can they lock somebody up because they might commit a crime in the future? That Tom Cruise movie, I forgot the name of it a while ago, Minority Report. So what is the constitutional basis that a government can lock somebody up on suspicion that they may have committed a crime?
Rachel Barkow: Yes, so you know, it’s part of the police powers the Supreme Court has told us because it’s not deemed to be punishment. It’s, you know, deemed to be done as a matter of the state’s exercise of its police powers to prevent harm. It’s basically, you know, done in that kind of regulatory, preventive kind of a way. So right now, for example, you could move to have somebody detained in a civil commitment hearing because you allege that they are a danger to themselves or a danger to other people. So we have civil commitment in the United States. And you know, there’s a high burden on the government to have to show that that’s the case when they go into a court. But that’s how you could get somebody detained even before they’d done anything is you show that they are a danger to themselves or to others.
And you know, and there are people who are in mental health crises that, you know, it makes sense when you think of a public policy that you do want to have some mechanism in place that allows you to prevent a harm before it occurs. But you know, you really need to have it be something that’s a serious hurdle for the government and you want it to be limited. And what pre-trial detention has become is, you know, it’s nothing like that at pre-trial detention. It’s not nearly—it’s not that you have a real burden of showing this kind of dangerousness. It’s just the opposite. It’s the presumption—like for example, you mentioned the federal government. The good news is the federal government doesn’t have cash bail. The bad news is the bail reform that replaced it created—there is a presumption of dangerousness in the federal system if you are a trafficker of drugs. I mean, that’s ridiculous. So you’re presumed to be a danger if you sell drugs and you get detained pre-trial as a result of that.
Now, you know, whatever people think about selling drugs, it’s just not the case that you could say there’s a blanket presumption that they’re all a danger to others. You know, the offense that a person selling drugs is most likely to commit again is selling more drugs. They’re not—it’s very unlikely they would commit something else. But we have a presumption in federal law that you get detained. And so as it turns out now, somewhere something like 75, 77% of all people in federal court are detained pre-trial because they fall under one of these presumptions that they’re dangerous. You know, that’s very different from what our model of civil commitment detention looks like. You know, you have to show dangerousness. You have someone come in who has evaluated the person, a psychiatrist, a psychologist. You’d have people talk about what they had done that makes people fear that they’re really a danger to others. You know, we saw the person wielding a knife and threatening neighbors and threatening to kill themselves. Those kinds of—that kind of testimony, that kind of analysis. That’s nothing like what pre-trial detention looks like in America. Pre-trial detention in America is basically: this person has been charged with a crime. Okay, we’re going to detain them. And if anything, the presumption is you will be detained and you have to post cash bail to get out. Or on these risk tools that are being used because of the way they’re designed and if there isn’t a presumption of release, it’s just very hard for the person to be in a low-risk category, particularly if they come from a neighborhood that’s heavily policed.
So if you’re living in a part of America where there’s a big police presence because you got high crime rates there, you know, some parts of urban America where you got police around all the time, so you’re arrested all the time, you know, for things like, you know, trespass because you’re found to be in a public housing facility that you don’t live in, or you’re stopped for any number of reasons by the police. That is going to mean that you’re going to be high risk because you’ve already been stopped by the police many times. But you know, the main reason you’d been stopped so many times is you live in a place with lots of police. And so it becomes this kind of self-fulfilling prophecy and you can’t get out of that high-risk indicator even though you are not actually a risk to harm any other person. It just so happens that you’ve been really heavily policed in your life because you’re a young black man who lives in an area where there’s tons of police around and they’re stopping you for everything.
Victims and Plea Bargaining [27:00]
Bob Zadek: We have been cheapening—in all that you say, the message to me is we cheapen and devalue liberty. Liberty is a throwaway. Put them in jail, what the heck, without any consideration of how significant it is to deprive somebody of their liberty even for an hour, let alone for months of pre-trial. We have one caller which I want to take, Rachel, then I want to discuss the issue of plea bargaining, which is a big contributing factor to the incarceration rates. So Jacob, are you still there this morning? Sorry you had to keep you waiting so long.
Caller (Jacob): Rachel and Bob, regarding sentencing and the importance of accurate sentencing, both of you seem to be a part of some kind of groupthink imprisonment of some sort because you’re both courtesy of your alma mater, you’re both having a great experience in the legal world with your legal education, but you never mention the victims. And all of this time together on the air, no mention of the victims. And one example I was privileged to be aware of a hearing where the judge, in just a few days after the arrest of a burglary suspect—serious incident—the prosecutor and the judge already signed off on a plea agreement without even notifying the victims. Do you think that there should be at a minimum before any plea agreement is done that there should be a probable cause hearing in all the 50 states? That should be the policy, a minimum of a probable cause hearing where there’s some meeting of the victims and the available evidence before any kind of plea bargain, negotiated plea is signed off on.
Bob Zadek: Well, we’re going to discuss—thank you Jacob for the call. And actually, it’s a perfect segue into the next topic I would like to discuss with Rachel, which is the whole area of plea bargaining. And I’ll start—I’ll introduce the subject by saying we have had since perhaps the Magna Carta 1215 or before, we have cherished as part of our jurisprudence the right to a trial by jury of one’s peers. The jury trial has been one of the bulwarks to protect citizens from extreme action by government. And jury trials in criminal cases have virtually disappeared. Silently, they are gone. About 97% of all convictions are done without a jury trial. And the question to ask ourselves is whether that is healthy or whether that is simply efficient. So Rachel, with Jacob’s comment and that brief introduction, tell us about the mechanics of plea bargains and how the extreme sentences that are threatened impact on the plea bargain.
Rachel Barkow: Sure. And you know, I’ll start with victims because I do believe Jacob is right that we should absolutely be asking ourselves whether the way we do criminal justice in America does a service to people who’ve been victimized by crime. And it fails there too. First of all, most crimes go unreported. So you know, that’s kind of failure one is we have millions of victims in America who have such little confidence in how it’s going to play out, they don’t even report their crime. We don’t even hear about it. So they’ve just decided to check out of using a formal process altogether.
But then for the people who do report the crime, it is often the case that they don’t want the kind of sentence that the government is offering somebody, either because they think it’s, as your question posited, too lenient, but also sometimes they think it’s too harsh. They would rather have some other process in place that actually addresses what they’re suffering from as opposed to just putting somebody in a prison to have them come back out again that never addressed the underlying issue that caused the person to commit a crime in the first place. So there’s a fair amount of research out there that when you ask victims and you say, “Would you rather have the person go to prison for X number of years or, for example, in places that offer it, would you like to participate in one of these restorative justice programs that will make the person who committed the crime really think about what they did, confront you, apologize, and that you’ll try to figure out what would actually make that harm be addressed? You know, what do you need to have this defendant do? Beyond the apology, whether it’s doing something in the community, working to pay you back by giving—maybe there’s a financial way in which the person could do it, or there’s other things the person could do. Or make the person participate in programming so they deal with whatever the underlying drug issue is, let’s say.”
A lot of victims want that. And they’re not asked, and it’s not even presented as an option. So all too often, the prosecutor just assumes without ever consulting victims what they want. And you know, what they assume they may want is just all about sentences in prison and the length. But you know, when we think about again the fact that 95% of the people come back out again, it really matters to victims that when they come back out, they’re not going to do those things again to other people. But if we’re not doing anything to stop that, then we’re just kicking the can down the road in a very unsatisfactory way for all of us, victims and the general public. So I think it’s really important to always keep our eye on that, and I think you’re very right to ask that question.
Conclusion [30:00]
Bob Zadek: Now Rachel, in plea bargaining, the prosecutors negotiating the plea bargain have the threat of a very, very long sentence because we have very long sentencing guidelines. So they give the alleged perpetrator the option of pleading to a much lower incarceration crime and taking a plea or risking a jury trial with a lifetime or close to lifetime sentence. So it’s almost coercion. And “plea bargain,” the word “bargain” is kind of misused because it’s a bargain where the perpetrator has very little going for the perpetrator. So isn’t that system inherently misused, and doesn’t the prosecutor achieve convictions when perhaps a trial would have gone the other way?
Rachel Barkow: Yes. So I would call it a “trial penalty” instead of a plea bargain. It’s putting a price tag on your ability to exercise your constitutional right to a jury. And prosecutors threaten people every day in America with sentences as long as life should they go to trial. They’ll say, “I’m going to charge you with this law that has a life sentence or it has a mandatory minimum of 30 years, but if you plead guilty, then I’ll recommend that you get two.” So no one in their right mind could think that the prosecutor honestly thinks you deserve life or 30 if they’re willing to take two. They’re just using it to coerce people. And they’re using it to take the jury out of the process when in fact the jury is the way that you and me and everyone else in this country gets involved in checking the government in individual cases. And the Framers very much knew how important it was. It was in the original Constitution even before the Bill of Rights that there would be a jury. I mean, it’s supposed to be a real protection, and instead you have government employees, prosecutors, basically taking them completely out because they make it just too expensive, too costly, too risky for any defendant to exercise that constitutional right. And you know, it’s really only happened because the Supreme Court has just not done its job in saying that’s an unconstitutional condition on the exercise of the jury trial right.
Bob Zadek: Rachel, we have a minute left. Can you leave us on a positive note? Do you see hope? Is this getting attention? I think it’s a bipartisan issue, happily, so there is cooperation among both parties. Do you see the prospects for improvement, or is it not yet have enough momentum?
Rachel Barkow: I do. You know, I think enough people have been personally affected and have seen how bad it all is that we’re starting to see a change. And I do think it’s on the right and the left. Unfortunately, opposition is also on the right and the left. So there’s bipartisan support and bipartisan opposition. So we still have a ways to go. But I think the reason it’ll ultimately fall and we won’t see this anymore is it’s a massive government failure. You know, it’s a massive government program that fails on every relevant measure, and I think it just—it’s not sustainable. And so it will crumble of its own weight. I just wish it would happen sooner rather than later.
Bob Zadek: Rachel, thank you so much for helping me bring this issue to the attention of our listeners out there and for your great work on the book and your great work in the area of criminal justice reform. We sure do appreciate it, and you are certainly acting to protect the liberty of those people who are least able to protect it for themselves. So thank you so much for the work you have done and for sharing your wisdom this morning.
Rachel Barkow: Oh, thank you, and thanks for having me.
Bob Zadek: Thanks a lot. Bob Zadek saying so long for now to my friends out there. I’ll be back happily again next Sunday morning. Speak to you then.