Book Review: Prisoners of Politics: Breaking the Cycle of Mass Incarceration

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Friday, September 27, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a book review on Rachel Barkow's book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Clark Neily, who is the Vice President for Criminal Justice at the Cato Institute. I'll leave it to Clark to introduce our author, Rachel Barkow. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Clark, the floor is yours.

 

Clark Neily:  Well, thanks, Micah. It’s really an honor to be able to have this event with someone I consider to have become a friend and fellow criminal justice reformer. Rachel Barkow is a Professor of Law at New York University and a Director of the Center on the Administration of Criminal Law there. She's a Harvard Law grad and a former Silberman and Scalia clerk. [Inaudible 01:17] a large D.C. law firm before going off to teach law and advocate for criminal justice reform. I think her new book, Prisoner of Politics, is one of the most important and interesting books on the subject of criminal justice reform, and that'll be our topic today. But, welcome, Rachel, and thanks for being on.

 

Rachel Barkow:  Thanks for having me, and thanks for everybody there who's listening.

 

Clark Neily:  So I think one of the most interesting things about criminal justice reform is that it is one of the small handful of really, truly cross-ideological issues in front of us today and truly bipartisan. There are very few people on the right or the left or even in the middle who don't agree on some level that there are significant problems in the criminal justice system and a need for significant reform.

 

My perception, though, is that that's basically where agreement breaks down, both the diagnosis and the prescriptions that we get from people differ radically and also the decision about what to prioritize and where to focus.

 

      So before diving in and talking about the theme of your book and what you learned in the course of writing it, could you set the stage for us by telling us what you think are the most fundamental shortcomings or, as I sometimes say, pathologies in the criminal justice system? Where are we most fundamentally getting it wrong in your view?

 

Rachel Barkow:  Yeah, I think the biggest thing is a lack of accountability for all of the actors who are involved in administering criminal laws and punishment in America because for the most part, whether it's prosecutors, whether it's sheriffs, whether it's prison officials, there is very little oversight of any of them. And, in fact, not only little oversight but a complete lack of information, frankly, about most of what it is that they do and how they're doing it, much less measuring results to see whether they're doing a good job.

 

And I'll say good job here as measured by improving public safety because I do think that's the space where whether you vote left or right or somewhere in the middle, I think everyone expects the way that we administer criminal law in America should help to promote public safety. And what's inexplicable about the way we do things now is we don't check any of these actors to see whether they're doing a good job on that front.

 

We don't ask any prison in the United States to give -- and check, hey, what happens to people after they're released from your facility? What are the recidivism rates look like? Because if you're doing a terrible job and you're providing no programming and people come out of there worse off than when they went in, you're harming public safety; you're not making it better. 

 

Similarly, if you're a prosecutor's office and you're just bringing tons of low-level cases that frankly make it more difficult for people to then, after they go through the system, get jobs and get housing, and so they may end up committing more crimes as a result, you're doing a terrible job. If you're not -- you have low-clearance rates in your community as a police force and you have less than a 50 percent shot of getting anybody for the most serious crimes—in some places, it's 20 percent—you're doing a terrible job. And the key thing I think that we should demand is a better framework for holding all of these actors who are doing their jobs accountable to make sure they're doing it right.

 

Now, I think there may be disagreement among folks about how many people should be employed in these positions and the kind of people they want to select for it, but I think that common ground for starters for everybody should be making sure we know what they're doing, and we hold them accountable for their outcomes when it comes to public safety.

 

Clark Neily:  So there's a lot to unpack there and I've made a few notes and things I'd like to follow up on. Let's start with this question of accountability. That's the aggrievance that we hear across a variety of different public policy areas and, of course, a concern is the Libertarian types tend to harp on the administrative state and how it's become so unaccountable and so much power has been delegated to it. What I'd like to explore a little bit is whether you think that the problem of accountability with respect to the criminal justice system is one of degree or is it qualitatively different in your view from the accountability issues that we see elsewhere in public policy?

 

Rachel Barkow:  Oh, I think it's qualitatively different and qualitatively worse. So if you are somebody who generally worries about agencies run amok, that agencies that are too zealous in their overall mission and not paying attention to counterarguments or a down-side to a fully aggressive approach, then nothing should worry you more than a prosecutor's office because that is a government agency. And it is a government agency that pursues its mission with no cost-benefit analysis, no judicial review of their policies, no oversight of any kind at all, really.

 

They have immunity. They have absolute immunity for their decisions to prosecute, qualified immunity when they're investigating. No prosecutor, even when they engage in misconduct, really ever faces consequences for it, so it's this zone of no accountability at all. And yet, it suffers from all the same dynamics that I think scholars and others have rightly pointed out exist at agencies.

 

      So awhile back, Judge Doug Ginsburg and Doug Demuth had pointed out gosh, agencies end up getting really zealous in their mission and they pursue it at all costs because they don't think about how does my mission fit in with an overall system of government or other things that we should be trading off and limited resources. Instead, an agency is basically all in on what it's supposed to do.

 

And one reason they had advocated it, for example, having greater oversight in the Office of Information and Regulatory Affairs in the Executive Branch was to make sure there was generalists that could check in and say well, wait a minute, show me that you've thought about the cost and the benefits. Show me that you've thought about other alternatives that might be less costly to this, to try to reign in that impulse.

 

We don't do anything like that when it comes to prosecutors, and so they can go all in and do without facing any mechanism at all that counteracts or checks that. And so I do think that is a qualitatively different kind of thing. They are not facing judicial review to make sure that their policies aren't arbitrary and capricious. They don't have any other -- the checks and balances that we see for other agencies. And reasonable people can disagree whether for other administrative agencies, those checks do a good enough job or not, but in this space, there are no checks.

 

      So here, that should be more disconcerting, really, to everybody to just ask how can we have an agency like that? And one that has increasingly taken on greater and greater power and influence. That's how you have a system of so many people who go through the criminal justice system who are incarcerated because these offices, these prosecutor's offices have just grown more and more powerful.

 

Clark Neily:  Let's pick up on that a little bit. So in my prior professional life, I was a constitutional litigator at the Institute for Justice and for a time, I was head of the LIJ School Choice Team where we spent a lot of time going up against what I think, objectively speaking, is the most powerful political lobby in the country, which is public teachers' unions.

 

      I was amazed when I came over to do criminal justice reform to encounter what may be the second or third strongest lobby in the country which is the law enforcement lobby. Would you agree with that and can you elaborate on this rather striking sentence from your book that I'm going to quote?

 

      On page 9 of your book, you said, "Law enforcement officials stand ready to fight any significant changes that would undermine their almost complete discretion to operate the system to their own advantage." Explain what you mean by that passage, if you would.

 

Rachel Barkow:  Yeah. So I think it's really important to notice that we have in the United States a really powerful set of special interests to maintain the status quo of incarceration, of mandatory minimum sentences, of long sentences on the books, and that would be law enforcement interest because all those things help them to do their job more easily. And I get it, I'm not saying it's bad faith.

 

Again, it goes back to that if that's your mission and you want to zealously pursue it. you find yourself thinking hey, give me as many tools as humanly possible so that I can do my job as easily and painlessly for me as possible. So as we've given, over time, we, the voters, and our representatives have passed things like mandatory minimum punishment and allowed them to use pre-trial detention and cash bail so that people are just in these positions where they'll plead to almost anything to get out of their pre-trial detention or they'll plead guilty because they're so worried to exercise their jury trial right, that they're going to face sentences ten times longer than if they plead.

 

Those are really powerful tools for prosecutors, and whenever there's a discussion around the country to eliminate cash bail, change pre-trial detention, lower sentences, get rid of mandatory minimums, these district attorney associations and prosecutors around the country rally around to oppose it. And they are very explicit.

 

At the federal level, I can tell you when there were some talk about changing mandatory minimums, the National Association of AUSAs wrote a letter that -- it just as plain as day says “Well, don't do that,” not because these are the right sentences and they're proportionate to the harm people are causing. It was, “Don't do that; we use these as tools for cooperation.” This is what we use so our job can be easier. They don't want to go to trial. They don't want to have to prove their cases if they can, instead, coerce people to plead guilty.

 

And so they're an enormously powerful lobbying group that legislators listen to. And we see this at the federal level, in the states' DA's associations, and district attorneys around the country. Countless examples of this, of them opposing legislation that would be reformist and advocating for more powers for themselves, advocating for a longer sentence, more mandatories, and that's just the prosecutor lobbying associations.

 

They're often joined by police officers, police officer unions, corrections officer unions. We have a very large, now, in absolute numbers, number of people whose livelihoods depend on big government when it comes to criminal law enforcement, and they have a stake in keeping it exactly where we have things now. And I think the question for the rest of us is to ask are they guardians of our interest of public safety or are they just looking out for professional -- what makes their job easier?

 

And I think the evidence is quite clear that, unfortunately, they're not dove-tailing. Their professional interests are not the same as our interests in the public. They are doing things that are contrary to public safety, that are wasting money, that are bad for constitutional liberties. And so, it's not the case that they are perfect agents for us. In fact, often, it's exactly the opposite.

 

Clark Neily:  So I'm going to -- let me give you this little pitch over the middle of the plate and do with it what you will, but a common refrain from police and prosecutors when someone points out some feature of the system that is particularly unfair or obnoxious or even a specific case -- I remember there was a case one time where I think a woman went to a police station, I believe in South Carolina, to report theft of some piece of property. And while she was there, they ran her ID and discovered there was a warrant out for her arrest because she failed to return a videotape to Blockbuster, back in the day when there was a Blockbuster and there was videotapes. So she was arrested on the spot.

 

Well, sometimes when we hear stories about that and we bring up the unfairness of the system, we'll hear from police and prosecutors, “Hey, listen, I don't make the laws. I just enforce them.” Do you think that's a fair statement or a fair response?

 

Rachel Barkow:  No, definitely not. It ignores the reality that they are absolutely key in lobbying for the substantive content of laws. If you go to any statehouse in America, they're part of the process. They are asking for things. They are opposing other things. I'd say they're one of the leading lobbying groups in America, and when it comes to prosecutors in particular, but also police officers, they're in thick of asking for things that at the federal level -- because there's good legislative history to be able to track where they've been, where state legislative history, sometimes it's harder to get the paper trail, but their fingerprints are all over everything.

 

The Department of Justice is constantly asking Congress to do things, and then Congress does it. And the same is true of the state level, it's just sometimes you can't find the paper record, but if you interview anyone in a statehouse in America, they will tell you that they hear constantly from district attorneys and their associations asking for things.

 

So they are directly involved in writing the laws, literally with their pens and computers figuring out exactly what the content should be. But then even above that, once the law is passed, the amount of discretion they have to decide who does and who doesn't find themselves facing criminal charges and what charges to bring, it's hard to call that level of discretion anything other than a law-making capacity of its own because it's unreviewable if a prosecutor decides to dismiss charges against somebody.

 

And so they hold enormous power over people's lives, and they don't bring actions against everyone, and they pick and choose. The pick and choose, and once they target somebody, they pick and choose which charges to bring because there's so many laws on the books that for any given set of criminal facts and conduct, prosecutors can choose from a range of different possible things to charge. And so they both exercise direct writing of the laws and then in the exercise of their discretion and who they're picking, they're making all kinds of policy calls.

 

They could decide, “We don't want to bring shoplifting charges anymore in our jurisdiction because there's other things that are too important.” And as a result of that, that just becomes something that's not enforced anymore. Or they could decide that, “Yeah, we're going to bring firearms charges, but we're only going to bring it against people from this neighborhood. Whenever else we see someone who has a felony record with a firearm in their home, we're not really worried about it. We're worried about it here because we think there's too much gun violence in this community.”

 

      So as they make those kinds of decisions, I think we have to realistically view that as also making the laws as well.

 

Clark Neily:  Great. Well, let's change gears a little bit. I want to pick up on another point that you made and tie it to something you said in your book that I think is underappreciated and very important. You talk about basically a failure to follow the data to confront the actual effect of various policies that are embraced.

 

And, of course, that's a major reason why people who support a more limited role for government, that can be both a matter of philosophy but also for practical reasons that the unintended consequences are a constant factor in our system, and very often, policies that are intended to produce one set of results produce quite a different set of results.

 

And you raise this concern in your book that it's possible that in some settings, government can even be criminogenic, which is to say that government itself can be a generator of criminal activity. And you make that point specifically in connection with pre-trial detention. Can you explain that and elaborate on that?

 

Rachel Barkow:  Yeah, I think there's a conventional set of assumptions about pre-trial detention that while the more people we detain pre-trial, the better. Because if you're someone who watches your local news or reads the paper, if there is an instance of someone who was let out, for example, post cash bail and then commits another violent crime, the thought is, “Oh my gosh, why weren't they detained?”

 

And whenever there's that failing in the system, it gets news coverage and people focus on it. And I think that leads people to believe, “Wow, we should really want to detain as many people as possible to avoid stories like that.” But what you don't get news coverage of and you never read about is the fact that when you are detaining people -- and most of the people who are detained, they are there because they just can't afford the bail.

 

It's not that they're there because there was some score of how much of a risk to society they are. They are just so poor that they can't make $500 bail. They can't get a bail bondsman. They can't make the deposit to get the larger amount. They're just, they're too poor. And so as a result of that, they're detained pre-trial and what you don't hear about is that when people are detained even for a couple of days, it's a life-altering event.

 

Usually, that means you're going to lose your job. People are often evicted from their home because they lose their job, they can't pay their rent, they're out, they're kicked out on the street. They lose custody of their children because there's no one to take care of them, and they become wards of the state.

 

This is something that is a spiraling event in a life, so when empirical researchers have looked at it, they tried to study people who [were] charged with the same crime, same criminal history, but some people can make bail and get out and some people are detained. And what they found are the people who are detained, when they do ultimately get released back into society, they're more likely to commit crimes precisely because the detention itself created all these other negative consequences in their life and made it really hard for them to be on a law-abiding path. So the actual detention was the problem, not anything else associated with them.

 

And I think there's so many examples like that where we have state intervention that ends up being counter-productive. And I understand why the people who'd ask for the detention do it. The judges don't want to risk that someone that they do release is going to commit some violent crime because that will make the news. Whereas, they're never going to be held accountable when they're detaining too many people.

 

And same for prosecutors, so they all have this professional interest. Most of them are elected; they don't want to lose the next election if there's a bad outcome. So they over-detain, and the result is we have almost 500,000 people who are in jails around the country in the United States who've never been convicted of anything. It's about 20 percent or so, 20 to 25 percent of our total population of people incarcerated, they haven't been convicted of anything.

 

And for almost all of them, they could be safely out with no risk to the community. And by keeping them detained, we're making them more likely to struggle when they do finally get out, which most people do by the way. To the extent people are unaware of this, 95 percent of the people who find themselves incarcerated for any length of time will rejoin their communities. And we should always be asking ourselves, “Are we making it harder for them when they do rejoin communities to stay law-abiding or are these state interventions making things worse?”

 

Clark Neily:  Yeah, this is, I think, an important point and it bears maybe just a bit more discussion to underscore that designating some activity to be a crime and then bringing the full force of the state to bear on people who transgress is a really big deal and it's not cost-free. Of course, it cost money to enforce those laws, to prosecute them, to inflict whatever punishment, including incarcerations. Those are all out-of-pocket costs.

 

Then, of course, there are other costs including the fact that once you put somebody behind bars, you're going to substantially disrupt their life and they lose their job. They may lose their housing if they have a family, that's a potential supporter of the family that is no longer there. The data shows that the children who grow up in a home that is missing one parent because that parent is incarcerated tend to have worse outcomes, so etc. etc.

 

      So you ought to be extraordinarily careful before you decide to go that route and declare a particular activity to be criminal and bring the full sanction of the state to bear. Do you think that we are careful in this country about what conduct we designate as criminal?

 

Rachel Barkow:  Oh gosh, no. We can't even count all the things that are criminal, which to me is the perfect illustration of how much we've overdone this. We cannot get an accurate count of how many things are federal crimes because we have so many regulatory offenses that if you do them willfully or knowingly, they turn into federal crimes. So it incorporates all the federal regulations that are out there.

 

It's how you can have that great CrimeADay twitter feed of all the different things that you can do that turn you into a criminal. And it's not, again, it's not just federal. State codes are really big. And not only do we over-criminalize underlying conduct, when we do identify conduct to criminalize, we over-punish it. We use increasingly longer sentences. We turn more and more things into felonies, and then we give people collateral consequences for having felony convictions that make -- again, really set them up to fail.

 

We deprive them of access to driver's licenses so they can't get -- they don’t have a driver's license if they have, let's say, a drug felony conviction. Well, now they can't drive to a job because a lot of people live in places where there is no public transportation. So it's this kind of unthinking use of excessive heavy-handed state interference without much thought to well, is there a downside to this?

 

And, again, I think it does go back to this accountability point because no one's ever stopped to say, “Hey, wait a minute. Why are you doing this? Did you look to make sure that on net this would be good for society and public safety?” And because that never happens, people have incentives to overuse this thing. Politicians do because they want to look like they're tackling a problem and instead of really getting at underlying issues with the problem, the easiest thing in the world is to just say, “Oh, you know how I'll do it. I'll just -- I'll have a -- I'll make -- I'll turn it into a crime. I'll turn it into a crime, and I'll increase the sentence if it's already a crime.” Just this kind of knee jerk, unthinking way of approaching things.

 

And the same is true when prosecutors want to establish their record. They show how aggressive they were in a particular area. And when we do that collectively, that's how you end up with having a country that is the largest incarcerator on the face of the earth and way different from historically how we did it. All this is just basically the last four decades or so that the United States had this turn to this kind of a model. This isn't how this used to be.

 

But it really is an excessive use of enormous state power. And I think anyone who has any kind of skepticism of government involvement in people's lives, there is no reason that you should have a line in your head that says, “Well, I'm only worried about it when it's civil involvement but not criminal” because all the same issues apply and, in fact, are magnified when it comes to state interference and calling things crimes and punishing people.

 

And I do think anyone who's had any personal involvement with this or knows someone who has, it immediately becomes obvious to you. And so to me, this is just a question of waiting for enough people to have this proximity to the issues before things start to turn and that is why I think it's already starting to happen. Because we have one-in-three adults in America [that] have a criminal record. When you have statistics like that, you have the basis for a political movement to seek change.

 

Clark Neily:  One of the things I find quite frustrating is the tendency on the part of some people in the demographics that is more likely, if you're listening, for example, to a teleforum like this to poopoo the issue of overcriminalization. I just want to tell a quick anecdote.

 

      There's a USA Today article from this year that notes that in 2007, Shreveport, Louisiana passed a law making it a crime to wear pants that are saggy so that they expose your underwear. Now, that sounds ridiculous, but guess what? There were 726 arrests using that law, and it was only repealed in June of this year after a police officer shot and killed a 31-year-old man while trying to arrest him for wearing saggy pants.

 

So just because there's nobody rotting in prison for selling mixed nuts with fewer than three different kinds, which is in fact a federal crime—we know that from the CrimeADay twitter feed—there are still people who are exposed to the full violence of the state for ridiculous things like wearing saggy pants in a jurisdiction where you could walk down the street in a bikini if you wanted to.

 

So the good news is -- and I want to change gears here, but really not change gears that much. The good news is that there's an app for this, right? There's an app for overcriminalization. It's the jury trial. But you have another, I think, rather stark passage in your book that I want to read and then have you -- invite you to elaborate on.

 

You say in your book that the "Framers constructed a constitutional architecture to guard against pathological politics," including the politics of overcriminalization. I inserted that. But they're design assumed a world of criminal trials and a simpler body of laws that no longer exist. I absolutely agree with that, but I'd love for you to unpack that and tell people what you mean by that.

 

Rachel Barkow:  Yeah. I think one of the things that is so great about our constitutional structure is how much of this had been anticipated. Some problems you say, "Oh, wow. If the Framers had only known, what might they have done?" But this is one that was on their radar screen, and you can find it in the Federalist Papers. They talk about how laws will partake of too much severity, and you need checks on them. And one of the key checks that they had in place was the jury, which was in the Constitution in Article III, even before the Bill of Rights, which is -- just shows you how front and center and important it was.

 

And the idea is, of course, before the government can come in and take somebody's liberty away, you've got to be able to convince people outside the government, ordinary citizens, that the government gets to do this to you. So it was a key check of ordinary people on the process. What ends up unfortunately happening, though, to that key check is that if -- unlike other constitutional rights where the Supreme Court has made very clear that the government can't put a price tag on it, can't say, “Oh, you want to exercise your First Amendment rights? Well, that's going to cost you.” They do do that, exactly that, when it comes to the jury trial right.

 

And for years, we've always had some kind of underlying amount of plea bargaining in the system – you plead guilty and you get some time off your sentence. But people didn't think it was actually allowed so it was done on the down low. And then in the 1970s, the Supreme Court says it's okay, just gives it an imprimatur that says, “Well, now this is how the system survives and it's fine.” And as soon as the Court says that, we go from a plea-bargaining raid of about 75 percent of all cases that end in conviction being the result of pleas to where we are now which the statistics are anywhere from 95 to 97 percent, which is an enormous increase.

 

And the other shift that we start to see after the Court says this is fine is prosecutors get really bold in the kinds of things they threaten people if they go to trial. So they say, “Hey, you want to go to trial? Well, then I'm going to bring a new indictment, I'm going to supersede the indictment. I'm going to bring charges that will have a mandatory minimum attached of a life sentence or 30 years. But if you plead now, I'll let you get away with five.”

 

And I think when we see those kinds of negotiations, it's pretty obvious that there's no way the prosecutors think this person really deserves 30 years or life or they wouldn't be offering five years right now. And so, I think it's obvious that that is just done to make people not go and exercise their jury trial right, and it's coercive. It's putting a price tag on that really critical check of the system, and I think it's one of the wrong turns that the Supreme Court has made.

 

And I think it's a real question about whether or not the Court can start to ease up on that, because when they made these decisions where they accepted it, they did say things like, well, “We are not seeing evidence of prosecutors using this just to coerce people to plead guilty.” They thought as an efficient tool, but or -- and then they also said it's certainly not the case that it's being used where innocent people find themselves pleading guilty.

 

Well, fast forward to today, we know that at least 10 percent of the cases with proven DNA evidence showing people to be innocent were the results of pleas, where people who were innocent pleaded guilty just because they were that much more worried about going to trial because if they did lose there, the punishment was just so harsh. So we have a system that's dominated by pleas where juries have very little say, and even when you go to trial and you have a jury, they can't be told what kind of punishment you're facing, even if it's a mandatory punishment.

 

They are not told that they have the right, they have the power to give an acquittal in a case for whatever reason that they want to. Instead, they're really micromanaged, and so even when you get it, there's not a lot of wiggle room so people are rightly afraid to exercise that right when they have this enormous risk of increased punishment at stake. And I think it's one of the greatest failings of our modern constitutional case law, was the Supreme Court allowing that to happen.

 

Clark Neily:  Well, I agree. And I -- another part of my professional background was I did medical law practice defense work at the beginning of my career. My sister's a doctor. My dad was a NASA engineer and an aerospace engineer after that. And so those are two areas I know pretty well, and I know that both in the medical field and in commercial aviation, they take the possibility of a really serious disaster like a plane crash or a really serious act of medical malpractice, they take that incredibly seriously.

 

And they have something called the Sentinel Incident Review where if something like that happens, you drop everything that you're doing and you try to -- you look at the system, you look at the process to see how it could possibly have produced such an intolerable result. And I'm just flabbergasted that the one area where there is similarly high stakes that shows no interest in examining the process to see how an intolerable outcome occurred is criminal justice, where somebody has been coerced into pleading guilty to a crime that we later determine they did not commit.

 

And not only does not -- there's no sort of systematic review of the process that led to that result, just treated as business as usual and they just go on as if no big deal, why? Can you think of any way to try to have the government or prosecutors have more skin in the game so that they are more sensitive about the possibility of these kind of intolerable outcomes?

 

Rachel Barkow:  Yeah, I think it does go back to accountability because when these things happen, no one loses their job, no one faces -- they don't even give -- if there's any kind of monetary judgment, and they're usually frankly small dollar amounts, they don't come out of the budget of any of the actors who are involved. And so there's no way in which people internalize what they have done or even think about it as they're currently making decisions, “Oh, I should be really careful here.”

 

      Now, I will say I think people who do these jobs, police and prosecutors, I think the vast overwhelming number of them want to get the right result. They're not doing anything deliberately bad, and I think it was a tiny percentage of people who are engaged in any kind of intentional misconduct. But we set up our structure of government in the United States focusing on people who will do bad things and also to make sure that even good faith efforts to do things, that people have all the right incentives to do a good job.

 

And when it comes to this area, there's no accountability and here, again, you can point to court decisions where you have a supreme court that just created immunity doctrines out of whole cloth. Absolute immunity, qualified immunity, those aren't in the text of the statute. They are not historically grounded, so any kind of good textualists, good originalists, that is nowhere to be found. And they're terrible policies, so you can think about them as a bad way of judicial interpretation and then, to add insult to injury, they're also terrible policies.

 

And so I think if we had better accountability for when mistakes are made, as a matter of constitutional doctrine -- but even a part from thinking about the constitutional doctrine, having jurisdictions take this more seriously than they do. And it's a question of what mobilizes government to do that? Sometimes it's a lawsuit where they have to pay out money, but that hasn't seemed to do the trick. So I think it's going to become one where voter mobilization is going to start to get at more of these issues. And I think that's starting to happen.

 

But I will just say this is one of those spaces that, again, I don't think this is a Liberal, Conservative, Democratic, Republican kind of divide at all. And, in fact, a lot of these doctrinal spaces that we've talked about so far today are right in the heartland of originalist methodologies. These are decisions that the Supreme Court justices got wrong precisely because they diverted from a textualist or originalist methodology and ended up with these just really terrible policies because if there's any kind of governing methodology when it comes to constitutional jurisprudence these days, it's we'll just defer to whatever the government wants. And that is not a good methodology. And it's not a good methodology in criminal law cases in particular, and it leads to really terrible outcomes.

 

Clark Neily:  It seems to me that any originalist worthy of the name should be deeply concerned about whatever constellation of doctrines and practices leads or has led to the practical extinction of the criminal jury trial on American soil. Very clearly, the Framers would have been extraordinarily concerned about that, and we've essentially, like the proverbial frog boiling in water, just allowed it to happen.

 

      Let's finish on a related note here. Near the end of your book, you say that "one cannot expect much scrutiny of the government from a bench overwhelmingly occupied by prosecutors." And as you know, Cato just released a study earlier this week in which we did what no one has done before which is to look at the background of every sitting non-senior federal judge to check and see whether that conventional wisdom is true. Is it in fact the case that prosecutors are over-represented on the federal bench? And the results of that study were absolutely yes.

 

      Just to summarize, if you look at people who have worked in the criminal justice system but only for one side, prosecution or defense, prosecutors are 4-1, prosecutors to criminal defense attorneys on the bench. And if you expand that to look at people who either were courtroom advocates for government or courtroom advocates for individuals against government in a criminal defense or public interest setting, then the ratio is 7-1. So we absolutely have a federal judiciary on which former government advocates vastly outnumber advocates for individuals against government.

 

      Let's finish our discussion and move into taking questions with you just elaborating on what you think are the consequences or what are some of the effects of the judiciary in which -- that we've allowed to become so imbalanced?

 

Rachel Barkow:  Yeah, I just think it's insane to have ratio that looks like that. I'm not someone who thinks we should bar any professional background from the bench. I think it's great to have people with all kinds of backgrounds, but to have it so tilted toward people who have spent their lives or a large portion of their lives working for the government is disconcerting because so much of what a judge has to do is ask whether or not the government has overstepped, to enforce the Constitution against the government.

 

And if you have a professional background where you did that and probably you were an honorable governmental employee, you rose through the ranks, you became a judge, I would have to believe you represent the best of government behavior. I think there's a lot of cognitive disconnect, then, that would be involved in having to say but I can really scrutinize here and think about cases where the government didn't live up to that. And I think are there people who can do that for sure?

 

      Are there people who do do that? Absolutely. But in designing of a bench, you would want to have people who have also spent a professional life suing the government, who have exposure to the places where government has gone wrong because then they have that sensitivity to those instances and they can bring that to, if it's an appellate court, the group discussions of government behavior, and it's just an additional background and perspective that I think is well worth having on the bench.

 

And I think you've made really good points, Clark, about asking -- it doesn't guarantee if we're going to hire umpires for a sports league. Sure we would expect them to be neutral given the role that they're in, but I don't think that anybody, if you were a Red Sox fan, would want a slate of umpires who were lifelong Yankee fans. It's just -- sure, they can try to step out of the role, but it may color things at the margins. And it may be -- and it also, I think, makes peoples from the outside really lose some faith in the integrity of the institution to have it look like that. And so I think professional diversity is really important.

 

      I also think it's really important to make sure there are people committed to the idea of liberty and who have expressed that and made it quite clear that that's something they're committed to. And I think, particularly for a Federalist Society audience, there is a vast difference between a justice -- in the mold of Justice Gorsuch, for example, who really does stick to originalist interpretations, is more of a textualist, more like I will say my old boss, Justice Scalia, than Justice Alito who really just rules for the government in criminal cases.

 

You can predict with almost 100 percent accuracy how he's going to come out because it just doesn't even matter what any of the foundational documents say, it's the government and it's a criminal case and you come out one way. And it's been so rare that it's been anything other than that, and I think it's important when selecting judges that we get people who aren't going to be reflexively voting in favor of the government when the number one thing of their job is to make sure that the government stays within constitutional bounds.

 

Clark Neily:  Well, on that not at all controversial point, why don’t we pause? I really -- I've enjoyed this conversation immensely. I hope that our listeners have too. And now we get to the point where we're going to take some questions and hopefully people have some.

 

Micah Wallen:  We will now go to our first question.

 

Caller 1:  Rachel, you are terrific. I haven't thought of it before the way you put it about the interest groups being the law makers, the way they hang around in these interests to see that the state has it, but now you've also made me think that the media is a law maker.

 

I'm involved right now as an amicus curiae in the appeal of the Boston Marathon bomber case, and I would think that any reasonably educated person looking at the transcripts and looking at the evidence would know that that guy is innocent. I mean, there's like no evidence. But the Boston Globe, the CNN have so persuaded everyone that -- normally, I live in Australia and I can speak up all I want to down there about the Marathon case, nobody gets upset. But here, wow, I've recently tried talking to a few people and it's like a blasphemy. I'm offending God if I say anything other than this party line on this particular criminal case. So I'm just here to underscore what you said in adding the media as a law maker.

 

Rachel Barkow:  Thank you for that. No, I think the media -- I don't know the specifics, I will say. I haven't followed enough to say anything about the underlying facts of that case, but I will say that the dynamic that you're talking about with media involvement has been terrible. They're really -- the thing that gets viewers, if you watch the evening news, for decades now, about a third of any local evening newscast is a crime story.

 

And that's true whether crime is up or down because you only need just a couple to fill the air waves. And the more sensationalized, obviously, the better for viewership. And so the result of that is the public doesn’t have a really good sense of whether crime is going up or down and also what most crimes look like in their jurisdiction.

 

And that is a real problem for policymaking and law reform because legislators then legislate with high profile cases as the backdrop and don't take a lot of time to really think how a given law will actually be applied in a particular place, who's going to be affected. So the policies are all set with the worst possible cases in mind, and that's how you end up with overcriminalization over punishment.

 

Clark Neily:  Thank you.

 

Micah Wallen:  All right. We'll now move to our next caller.

 

David Hubert (sp):  Hi, this is David Hubert. I'm calling from Atlanta. If I accept your argument, my concern is this battling of data and how do we get to an honest broker to deal with data on both sides of the issue in order to form an opinion? Is there any solution to that?

 

Rachel Barkow:  So that's a good question, and I will just say right up front, there's going to be spaces where the data is incomplete. And we're going to have to make policy calls, because the data's only going to tell us so much. And at that point, you have to -- it's going to be the discretion of the political -- the people you voted into office and who you want making those decisions when the data falls short and doesn't tell you something.

 

      But there are so many areas where the data's consistent and quite clear, and particularly quite clear that a given policy is bad for public safety. So an example I'll give you would be the removing of driver's licenses from people who have unpaid traffic tickets, unpaid fines, drug convictions, so things completely unrelated to their ability as drivers. That is a terrible public policy when it comes to crime reduction because it now means people have to decide between driving on a suspended license, which is itself against the law, or they don't have a license and then they can't get a job because it's like a 4-5 hour commute to any place of employment. It just makes it impossible, and so they may choose, frankly, to commit more crimes because that's the only option available to them.

 

So the studies there, the data there, that's really clear, and the only reason you'd want to keep a driver's license prohibition would be, frankly, because you're just so angry at someone for doing whatever crime or fact it is that they haven't done because it's a terrible policy. It's not cost effective. It's not a revenue generator to then put people in prison again for driving on a suspended license and then say you're going to keep losing it until you pay back the debt. It's just, on every measure it fails.

 

So there's policies like that where I think data becomes very clear about what it is we should do and the key is just putting mechanisms in place where we view it. But I will say they're so -- and there's a lot of policies like that. There's a lot of policies where we actually have really good information and it's not subject to interpretation. But I do want to concede that you're right in asking “What do we do?” when it is something that the data just tells us length of sentence. We know longer sentences at some point become criminogenic. They make it just too hard for people to re-enter, and they themselves cause recidivism. But, honestly, we can't pinpoint exactly when that is.

 

And so at some point, you're making a guess about okay, I'm getting some incapacitation benefit from sentencing someone for a particular length of time. But at some point, the sentence becomes too long and they would've aged out of crime anyway, and now the sentence itself is causing harm. And we have fantastic criminologists in the United States. They can't tell us when that point is. So that's a little bit of guesswork, and at that point, I think the best that you can do is put people who are in the positions of making the decision about what to do, people who are smart, people who get the tradeoff, and are as thoughtful as possible in a realm where the data is incomplete.

 

Micah Wallen:  We'll now move to the next question.

 

Bob Zadic (sp):  This is Bob Zadic. I have two questions. I abhor, of course, all the plea-bargainings at 97 percent, but if we didn't have plea bargaining, how could this country possibly absorb all the jury trials? We'd end up with every federal building being nothing but criminal justice courthouses.

 

And in the same vein, I equally abhor prosecutorial discretion, but with so many criminal laws, if a prosecutor doesn't exercise discretion, what's the alternative? That he brings every criminal trial any time there's a crime, no matter how minor? We couldn't possibly absorb it. So I wonder if you could help with solutions to these horrible problems.

 

Rachel Barkow:  So I will say that I think -- and Clark, if you want to weigh in on this too, but I think one thing that would happen is we'd have fewer cases brought in the first place. And I don't think that's a bad thing. I think that would require jurisdictions to just think about their resources and where their -- where do we really need criminal law as opposed to a different kind of response? Because criminal law has become a cheap, easy place to go for a whole variety of things that could be dealt with as civil matters or as non-governmental matters entirely. So I actually think it's good that we would have fewer trials, and I think necessarily we would have to.

 

      The other thing we could do is we could have -- yeah, sure you could get some kind of a small discount if you plead guilty, but the difference between saying hey, here's the small discount versus here's an enormous penalty that you're going to have if you go to jury trial, those are two very different things. And I think if you made that a much smaller gap between what it is that you are facing at trial versus pleading guilty, I think you'd still have pleas. You'd still have people who would do it for the much smaller, smaller discount. But you'd get rid of that enormous prosecutorial leverage.

     

      But I think government -- it is expensive, and I think we as -- the Framers wanted it to be. They wanted it to be really hard for the government to act across a whole range of things. It's why they separated powers. It's why they make it really difficult for the government to do anything because they were not about efficiency. They were about -- they were in the business of protecting liberty. And I think it should be expensive before the government gets to do that so that we as a community decide when do we really want to spend all that money to take away somebody's liberty?

 

      I think it would bring some rationalization to how we do things. And I'll just say, empirically, if you want an example of this, in California, when the Supreme Court said that their prisons were overcrowded, and it was unconstitutional because people couldn't get medical care in their prisons as a result of there being too many people, the Supreme Court said you have to reduce your prison population by about 35,000. And California's response to that was okay, so we have to reduce our state prison population. What we'll do is we'll release those folks; we'll send them to their local communities. And we'll give our local communities some grant money to try to figure out what to do with them.

 

Because, normally, when a district attorney or a county prosecutor brings a case and sends somebody to state prison, they don't pay for state prison. That comes out of the state budget. So it's a phrase that Frank Simmering uses, "It's correctional free lunch." It's a free resource, and so of course they're overusing it. But as soon as California went back to these local communities and said well, here are these -- they're coming to you and here's some money, but not enough to cover their jail stays, you decide what to do with it. And magic of magic, the local communities were like oh, it turns out these people don't need to be in prison. If we have to pay for it and we look closely at their cases, we realize they could actually be free, and there's other ways to deal with them.

 

      And as a result of that, California did see an enormous drop in their incarceration population. They didn't just go into jail, and there wasn't an increase in crime. So having the resource constraint, I think, can be a very good thing.

 

Clark Neily:  Thanks for that question, Bob. This is Clark. I'm going to jump in really quickly and say this: let's be clear that it's not an all or nothing thing. There aren't very many people advocating for the complete elimination of plea bargaining and I don't think it's realistic anyway, neither is getting rid of prosecutorial discretion which is, as you suggest quite correctly, an inevitable feature of our system.

 

But to pick up on something Rachel said, the system as it's currently constructed has a lot of perverse incentives, and we're missing a lot of low-hanging fruit that would help better align those incentives. Just take one fact. There are more arrests for marijuana possession in 2017 than for all violent index crimes combined. Those are the most serious kinds of violent crimes. That doesn't make any sense. Not all of those arrests lead to a prosecution and incarceration, but every single one of them consumes scarce resources in an already overtaxed criminal justice system.

 

So we need not just more discretion, but we need that discretion exercised in a way that is more in line with what's really good for society. And I will end by saying this: I don't know what the correct amount of enforcement of criminal laws in this country is. But I do know that if we are not prepared to spend at least a couple of hundred thousand dollars, basically comply with the constitutionally prescribed mechanism for adjudicating criminal charges, which is a jury trial, then I don't think we're serious enough about -- to be putting somebody in prison and taking away their liberty for some period of time. We've been doing it on the cheap for too long, and I think it's really perverted the system.

 

Micah Wallen:  We'll now move to our next question.

 

Caller 4:  I joined a little bit late, and I hope I'm not going to ask a question that you've covered. But just to comment on the legislature imposing on the judiciary by having mandatory sentencing guidelines, tying arms and legs and neck to keep them incarcerated. And as a second question, alternatives to incarceration. I'll let you both comment.

 

Rachel Barkow:  So the rise in mandatory minimum punishments or mandatory guidelines, I think the intent was -- and, again I think a lot of this tragedy of where we are today is I don't think this was done in bad faith to create some massive system of incarceration. I think people had good intentions, but unfortunately, they went awry in what actually happened.

 

      So with mandatory sentencing, mandatory guidelines, the focus was on wide disparities among judges in how they were sentencing people, racial disparities, geographic disparities, all kinds of concerns. It mattered what judge you ended up getting. And so legislative responses were to have these mandatory guidelines or mandatory minimums and they just didn't think about or didn't think enough about the fact that that was just going to transfer power to prosecutors because that is exactly what those laws do.

 

Instead of cabining it so that people are treated the same, people are treated more differently in regimes that have mandatory guidelines and mandatory sentencing because it just shifts it over to prosecutors to decide what to charge and that then dictates the sentence. And if prosecutors have variation in their charging patterns, which they do, we have an increase in disparities.

 

      And so you can see that's been empirically demonstrated at the federal level. Mandatory minimum sentencing, prosecutors don't bring the mandatory minimum in all the cases that they could. They disproportionately bring it in cases against people of color. It's erratically applied so it's not a good deterrent. It doesn't do any of the things that I think the law makers thought that it would do. And so we are definitely better off giving judges some discretion because when we do that, it acts as a nice counterbalance against prosecutors. So now, at least you have another actor in the system that can look at prosecutorial behavior and make sure that they didn't go far in one direction.

 

      So I think that one is -- again, that's another one of those areas where we have really good empirical evidence that those things did not work as intended and, in fact, produced worse results. And when it comes to alternatives to incarceration, I think we should absolutely be pursuing those in lots of areas, but I do think we should be driven by data. And there, not every alternative to incarceration works. Lots of people have programs that are great and that are good, but unfortunately, there are some programs that aren't. And so I think we should in general support that, but we should also make sure that any program that somebody is sent to has been proven to reduce recidivism and works.

 

Micah Wallen:  All right. We'll now move to our last question in the queue.

 

Miriam Moore:  Good afternoon. This is Miriam Moore in Washington D.C. Thank you so much for your talk. I found it very interesting. I've been listening to the conversation about criminal justice reform and use of force reform over the last few years and find many of the arguments persuasive.

 

One thing I've heard from others who are more skeptical is that we're willing to make these changes or we're, perhaps, more inclined to make these changes now because we're living in a time of historically low crime, and we've forgotten what it was like to be in a time when there was much more crime and much more violent crime in the United States, and that's why these reforms are being considered. Do you have anything to say in response to people who make that argument?

 

Rachel Barkow:  I think politically, they are absolutely right. I think if we had higher crime rates or we were suffering from a crime wave, it'd be harder to have a rational discussion about what to do. So they're right on the politics, but I would just caution that they're not right if the implication is we need these things to keep crime low because that's not true.

 

      And, in fact, when people have tried to figure out exactly how much the drop in crime that we've seen in the United States, which thankfully we have, how much is that attributable to using longer sentences, more prosecutions, more incarceration? And the highest estimate has it as being responsible for about 25 percent of the decline, which means 75 percent of this -- and that's the highest. Other estimates put it at 3 percent contribution to that, and some have it as being criminogenic and causing more crime than it's stopping.

 

So the studies range all over the place, but even if you take the one that is the most generous and says it's maybe responsible for about a quarter of the decline, that means that really what's dropping crime are other things, that at least three quarters of it is being done by other things. And that could be anything from removing lead from communities because of the association it has with mental health problems in communities, it could be gentrification in urban areas. There's a whole range of other possible things that reduce crime that aren't our response in these areas.

 

      And many of those other things are cheaper and easier to do. But even if we then look at okay, there are some things we do that do help to reduce crime, and I think it's important to note that and pay attention to it. We only want to keep doing the things that we know are helpful and not the things we know that are harmful. So as opposed to thinking them as a big glob of stuff we should continue to do, we should separate out all the different policies.

 

So for example, while it is true that having more police around, people are very responsive to being caught. That's the best deterrent – surveillance, odds of detection. But they're not very deterred by longer punishments because people think well, if I don't get caught, I don't have to worry about that long punishment.

 

      So in thinking about how to deploy resources, if you were trying to decide to do it, there's better ways to improve detection than necessarily going with longer sentences. Similarly, these collateral consequences of conviction have all proven to be terrible for reducing crime, precisely because they make it so difficult for people to get jobs, get housing, lead law abiding lives. So I think we can be more nuanced in our response to those kinds of things, but I do think I don't want to live in communities that aren't safe. And I think most people who do criminal law reform share that view.

 

We all want the same goal, and the key is just being very mindful of what works and what doesn't work. And it's just not true that this massive build-up -- and I'll say one last thing empirically about that is we do have the natural experiment of the states on this score. And we have had states around the country that have dramatically reduced their incarceration rates and dramatically changed their policies, places like California and others, and they have not seen an increase in crime when they've done it.

 

So we both have the empirical studies where people have tried to do all their multi-varied analysis, and then we have what we can see with our own eyes in jurisdictions around the country that have cut sentences, and they're saving money and they're lowering crime. So it definitely -- it's not an -- it's a false choice to think that these are the polices we need to keep crime low.

 

Clark Neily:  I'm going to quickly exercise my moderator's privilege to make a, perhaps, distinctly Libertarian point and -- which is this: arguably, the two most powerful generators of criminal activity known to man are first, to create black markets and second, to fail to socialize young men. So if you want to have a tremendous amount of crime, the first thing you do is outlaw something that lots of people want to do and will continue doing anyway and will have to be supplied through a black market. And second, put lots of fathers in prison so that young men don’t have fathers to socialize them. And pause and ask yourself whether or not we've gone down both of those roads.

 

Micah Wallen:  All right, and I know Rachel has a class to teach and get to, so I'll go ahead and close this right at the top of the hour. I'll give either of you a chance for any closing remarks, if you would like.

 

Clark Neily:  I think I just made mine.

 

Rachel Barkow:  And I just wanted to say thank you to everybody.

 

Micah Wallen:  All right, and on behalf of The Federalist Society, I'd like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.