Criminal Justice: Fixing the Fundamentals
Rachel Elise Barkow’s *Prisoners of Politics* reveals a broken system behind mass incarceration
“Tough-on-crime” ranks among the most abused political slogans – up there with balancing the budget by eliminating “waste, fraud, and abuse.”
But unlike empty promises to cut unnecessary spending, politicians actually keep their promises to go hard on the “bad guys.”
From a public choice perspective, acting tough on crime is the perfect ploy for a politician. Here’s why:
Prison sentences are expensive long term, but cost little up front. The politicians gets a quick boost in the polls, and society pays the majority of the cost later, once the perpetrators are released.
A good mob needs a good scapegoat.
Tough on crime was the strategy that George HW Bush used to hammer Michael Dukakis in the 1988 presidential election.
It’s also why Bill Clinton took time off the campaign trail to oversee the execution of a mentally disabled man in 1992.
Lastly, it’s why Trump frequently mentions atrocities commited by illegal immigrants in his speeches to packed arenas.
Rachel Elise Barkow is a professor of regulatory law and policy at NYU and author of Prisoners of Politics [Buy it on Amazon] – a comprehensive look at how our criminal justice system has turned the United States into the leader in incarceration. Barkow has come to the conclusion that mass incarceration is a product of too much democracy and not enough data.
Barkow’s Q&A with the Cato Institute’s Clark Neily (formerly of the Institute for Justice) is a fascinating survey of the abuses of power by federal prosecutors, who have turned plea bargains and mandatory minimums into coercive tools to deny the accused their right to a jury trial.
The Framers are rolling their graves.
I’m pleased to have the opportunity to speak with Barkow about her book on my show this Sunday – especially to discuss how we got so far from the Founders’ vision of a criminal justice system based on jury trial to a world where more than 97% of federal cases end with plea bargains.
While there are some silver linings, such as a bi-partisan reform that passed the Senate last year, the bitter truth is that the overall trend is toward more prisoners, more plea bargains, and more politics as usual.
New statutes consistently make it easier for law enforcement to do their job. Prosecutors are captured by special interests in law enforcement, and judges and politicians are afraid to appear too lenient in the event that they let the next Willie Horton off the hook.
No one is proposing that we bring back Dukakis’ “weekend furloughs” for murder convicts, but there are a range of common-sense reforms working their way through state and federal legislatures. These include clemency for non-violent, non-serious offenders, as well more data-driven proposals to reduce recividism rates.
A Necessary Function of the Administrative State?
Barkow’s solution to the mass incarceration crisis involves a greater role for the administrative state — the bureaucratic arm of the executive branch, which I’ve covered extensively on my show.
While most of my coverage has been negative, Barkow sheds some light on the question of when rule-by-expert might be preferable to pure democracy or congressional lawmaking. Congress could write the laws, but members of both parties seem to prefer scoring cheap political points through scapegoating over fixing a broken system.
Would an administrative agencies tasked with reforming the criminal justice system be subject to the same lobbying and electoral pressures as Congress?
Can data-driven experts fix the criminal justice system – or do we perhaps need a mass lesson in jury nullification?
Is more democratic participation or less needed to keep our prisons from filling up due for non-violent offenses?
Transcript: Rachel Barkow on Fixing the Fundamentals of Criminal Justice
Bob Zadek: In the relationship between citizens and government, the most sacred and important role that government plays in our lives is protecting our Liberty from those who would do us harm. One of the tools that government uses, of course, is the criminal justice system. If another was to harm our person or property, it is government’s role to protect us and to disincentivize those who would do us harm. 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 and to put them in a cage for a period of time, or even 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 is not that great. In the opinion of many we are suffering from 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. To help us understand the nuances of this topic, I’m happy to welcome to our show this morning Professor Rachel Barkow.
Rachel is the Siegel 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 was a member of the United States Sentencing Commission and the Manhattan DA’s conviction integrity policy advisory panel. Rachel has clerked for Justice Scalia and Judge Larry Silverman 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. I guess 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.
The Epidemic of Mass Incarceration
Bob Zadek: The subject is mass incarceration. There’s a lot packed into those two words. It suggests that we have too many people in prison for the wrong reasons. That is a lot to come out of two words. Now, when politicians and people analyze this issue, 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: One, we could compare the number of people we have now to historical trends in the United States. We are way beyond numbers we’ve previously had, even controlling for population increases. So it is historically unprecedented. It is unprecedented compared to other countries in the world. We lead in incarceration rates. We have more people incarcerated here than in any other country. So our incarceration rates are higher than any other place. That leads to the kind of third thing to think about, which, 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? 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 is really just the opposite. 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, the experience of being incarcerated makes it really hard to reenter when they have served long terms or have been in pretrial detention. Just as a reminder to everybody, 95% of the people that we incarcerate in America come back out and rejoin our communities. By any of those kinds of historical comparisons to other countries — whether this is a matter of public safety — by either measure we incarcerate too many people.
Bob Zadek: Well then if incarceration, the amount of people in prison is not a function of a lot of crime, 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 and about public disorder. The easiest thing and 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. 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. There are mountains of research on this. What matters for deterrence for people is whether they are going to get caught, not the sentence length. Politicians find it very easy to speak in those kinds of terms. It is also the case that our elected prosecutors, elected judges — 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 a break and that person goes on to commit another crime.
Everybody is very risk averse and errs on the side of being tougher. 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 pretrial. They haven’t even been convicted of anything. When you think about, “Well, why would you have numbers that high for someone who hasn’t even been convicted of a crime?” you can really see that political dynamic at play. Prosecutors ask for them to be detained because they don’t want to look like they’re cutting somebody a break. It is 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.
Judges again don’t want to have their election campaign have a highlight be that they let somebody out pretrial who then commits another crime. So you end up with almost 500,000 people detained without any convictions. 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. We incarcerate people well past the point they’re likely to commit any further crimes, because they’ve long since aged out of those behaviors. They may have done something when they were younger, but we are 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 are just a bunch of very elderly, very sick people in there. They are there because we’ve had this race to ever longer sentences by politicians, not with any look to see, do they work to deter, are they helping and whether they are good investments of our limited fiscal dollars? If we did any of that, we wouldn’t have this problem. Nowhere near the kinds of numbers that we see today.
Bob Zadek: What is interesting, and kind of infuriating frankly, is that when politicians run for office, they always 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.” 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 they can be more cruel than somebody else. That they 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 Frederick Bastian, 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 are not in our sight and therefore not in our consciousness. So the politics are such that it really invites long sentencing. As I’ve observed many times on this show, government and politicians traffic in fear. To the extent that politicians can make the voting public afraid, they will look to politicians to protect them. We all remember being instilled with the fear of crime, and when somebody says, “Don’t be afraid, I have the secret,” that has great voting appeal. So the politics are so biased in favor of longer sentencing, it almost seems hopeless to develop a movement within the political system to reverse the process.
Rachel Barkow: It’s not great to think about the likelihood of reform. But there are some glimmers of hope that ironically come from how much we’ve over incarcerated. We’ve now reached a point in America that one out of every three adults in America has a criminal record. This is a mind-boggling statistic when you really think about it. One out of every three Americans has a criminal record, and one out of every two people in America has a family member or 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 “This is crazy. We’re ruining people’s lives. We’re causing all kinds of enormous racial disparities.”
And you know, the ultimate kicker is that it doesn’t do anything for public safety.
I think once you start to get that many people who are personally affected, that’s the beginning of where you start to get about change. I think we’re starting to see that ever so slowly. In cities in America in particular, where they are voting for their district attorney, we are 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.” We’re starting to see this new generation of prosecutors who are running and winning in places to say this model does not work.
These prosecutors are arguing this model is a public policy disaster, and they want to look at more data and evidence and limit governmental power, because it has gone overboard, and 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 is happening, that it sows the seed of change.
Bob Zadek: I should mention as a small comment to what you just said, in Queens, New York, there was the competition for the Queens County district attorney. 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 Democratic machine candidate. I wouldn’t even tell my family members this, 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 have just said.
The Science, or Lack Thereof, Behind of Sentencing
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 may be happier going to a sausage factory than you would be to hear about how sentences get created in America. But essentially at the federal sentencing commission, when Congress created it in the 1980s, they were trying very hard at the outset to figure out how we think about what the right sentence length should be. And they had economists on there to try to help them figure it out. And they had retributive justice experts to try to help figure it out based on harms caused. 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. I think that’s pretty telling in terms of where we get sentencing policy. It is basically whatever the judge thought was appropriate. And you know, the typical statute might say you might 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, they really struggle to figure out what to do. And you know, for the most part they ended up either averaging what judges had done and taking the cumulative knowledge of judges. But one thing that politicians and legislators, when they set the sentencing ranges and statutes, that’s the worst of all.
They are just plucking numbers out of thin air. They like round numbers. You’ll often see a five year mandatory minimum, a 10-year, a 20-year going up in increments of five. You know, there is no science to that. They like the round number approach it. There is really no evidence to back up those lanes.
But what we could study is “What if we start to lower some of those sentences. What does it do?”
Because we have had some natural experiments in America where sentences for groups of people have been lowered that lets us at least look to see whether there will 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 are notoriously long sentences at the federal level that disproportionately affect people of color. 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 sentences because the retroactive change happened too late for them to get it. They’d already served the full term. But they were otherwise matched perfectly, for the same crime, the same criminal history and control for that.
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 had a lower recidivism rate. That is 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 and you were lowering recidivism rates. When you let folks out that means you clear prison bed space for other people that maybe are committing more serious offenses that you need the space for. You are freeing up the money for better investments. 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. We have empirical evidence to show it. And it’s not just that federal example. There’s at their studies and incidents like this all over the country have 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. We set sentences in a way that starts off being kind of arbitrary. And so I really do think as a matter of just kind of good government and good public policy, we should ask ourselves, can we lower them without it being a public safety hit? You said as a, as a matter of honoring people’s liberty, no one should be in prison for longer than they need to be.
We are incarcerating people for much longer than they need to be as a public safety matter. 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 wack even for that because we give people longer sentences 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 proportionality of our punishment is also way out of whack. There’s room for even improving there. So across the board sentencing policy in America is due for some really radical improvements.
Bob Zadek: It makes me crazy to hear you describe the process and the sausage making of sentencing guidelines. I’ll ask my listeners to just imagine the last time you are 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 for five years, which 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 that if you randomly took five years today off everybody’s sentence in prison, as Rachel pointed out with data, the saving economic savings would be very high and the granting of liberty to people would be enormous. We would be much freer society without being at risk. It troubles me so much that sentencing is treated as if it’s scientific, but it’s lottery. It’s random and when you’re dealing with liberty, you cannot have a lottery. Liberty is too dear to us.
Pre-Trial Detention and Bail: Explained
Bob Zadek: Rachel, on the subject of mass incarceration you mentioned pre-trial detention. We didn’t really explain that concept. Tell us what you meant by pre-trial detention, how it works, what the dynamics are, and how that contributes to the mass incarceration.
Rachel Barkow If somebody is arrested for a crime and they are charged with the crime, the next question is, should they be released pending their trial? They would be released and then they would 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 for the most part is by using cash bail as the measure that people have to post money. They could go to a bail bondsman who will lend them the money that they need. The bail bondsman will charge them a fee and keep a percentage cut that the person will never get back. The idea is that the person is going to appear because they have a financial stake so they return to the court.
However, in practice what cash bail means is that people who are poor can’t even afford the bail bondsman fee. They can’t even make that the percentage amount. For folks who are living at the margins they cannot come up with $100, they cannot come up with that or whatever the amount is. 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. In fact, 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 when your doctor sends those text messages the day before, or the day of, “Hey, don’t forget you have an appointment today.” That’s what we should be doing when it comes to pretrial when it comes to a court appearances, because for the most part when people don’t appear, they just forgot. It wasn’t a case of them deliberately absconding. Most of the time they just need reminders. So cash bail is not needed for that. What it does instead is it makes it so that people are being incarcerated in our nation’s jails. These are usually city jails, but they can be in rural communities as well. So they’re usually facilities that offer nothing.
Bob Zadek: Such as the infamous Riker’s Island.
Rachel Barkow: Exactly. These are really hellish places. They intermix people accused of all kinds of different crimes. You can be there for jumping a turnstile at the subway next to someone accused of a vicious and violent robbery who has serious anger control issues. There’s no kind of system like we ultimately have in most prisons. There are places that are notoriously aggressive and violent that don’t do enough to protect the people who are there. There’s no programming in almost any of these places. And when you think about pre-trial detention, the other thing to think about is if someone is told they need to stay in jail just four days, that person is likely to be fired from their job for that. That is probably gonna be a deal breaker for their employer.
They may lose their job, they find themselves evicted from their housing and if they’re away for a few days and they don’t have any kind of child care, 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.
It turns out when people have studied this, if you compare to people who are accused of similar crimes and with similar criminal records and you detain one of them pretrial but the other one gets to go free until their trial, when the person who is detained is ultimately released, they are more likely to commit crimes. And it makes sense when you stop to think about the fact that that person’s life was completely up-ended by the detention.
This job loss, losing custody of children, losing housing, 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. 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 half a million people being detained for no good reason. In fact, it is causing all these really negative public safety effects, not to mention tearing people’s lives apart. There are also enormous racial disparities in this cause.
It is disproportionately people who are poor and it ends up being disproportionately people of color. So from kind way that you would look at it. It’s just a terrible failed policy which costs us a fortune. It is fiscally irresponsible as well. There’s really nothing to say in its favor other than that we have a political environment that leads to it because no one wants to be responsible for the one person who while released pretrial goes on to commit a violent crime. So what you see is just people detaining everyone because of the fear of the one who may go on and do something really awful.
Bob Zadek: Let’s remember that the person we are talking about, the alleged perpetrator, in the eyes of the law, is as innocent as everybody listening to this show. He has not been convicted of anything. Here is merely 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. 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 that innocent person of their liberty and to have their life so torn asunder as Rachel described is something we all should be ashamed of.
New Developments in Cash Bail Laws
Bob Zadek: There was some movement at the federal level. Rand Paul and Cory Booker tried to do some criminal justice reform with cash bail. There was some progress at the federal level and the States are moving. California and other States have taken a tiny baby steps towards eliminating cash bail. California system, although imperfect, is taking first steps. But if you could just comment what States are doing to fix the cash bail problem because it is being discussed now in public.
Rachel Barkow: That’s 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. The problem is pre-trial detention rates. We do not need to be detaining people before they’re convicted except in really rare circumstances. Most of those folks should be free until they’re convicted.
What some places are doing, like California is while getting rid of cash bail, they’re still putting in place and keeping in place that detention model based on our risk assessment tool instead. These risk assessments can be quite flawed in terms of their predictions. Sometimes they’re looking for the risk of any possible offending. What I really think is of concern to the public is someone who’s going to commit an incidents of violence as opposed to someone who may be at risk of a drug and fraction or a dirty urine sample on probation. So the risk assessment tools themselves are are controversial for that reason. You really want to make sure that they’re designed well.
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. New Jersey completely changed their pre-trial detention policies. They got rid of cash bail, but risk assessment that they use is very narrowly defined and validated instrument.
It resulted in an incredible reduction in the number of people who’ve been detained pre-trial without an increase in crime. It has come without any danger to public safety and saved New Jersey a ton of money. It has given those people the ;iberty that they deserve to have until they’re convicted. There are places that I think are doing it well. I think New Jersey is the best one. When States make the shift it is important they do so with the best evidence and what we know works best. I definitely think the New Jersey model is a better model for designing those risks told and really making a presumption that you’re going to be released. That is our constitutional government. You are free and the government can’t take your liberty away until the government proves that you are guilty.
You should be presumed to be free until you’re convicted unless the government can really make the case for why you need to be detained. That’s really the way that these models need to shift. And then when they do it they need to have these tools that are really designed to focus on the risk of someone committing on an offense that would really harm another person. They need to use those tools in a way that makes sure that’s the risk that you’re most concerned about as opposed to a more generalized risk of just any crime.
Bob Zadek: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 committed a crime but not convicted? If they can do that, can they lock people up because they might commit a crime in the future like that Tom Cruise movie Minority Report?
Rachel Barkow: It is part of the police powers. The Supreme Court has told us that it is not deemed to be punishment, it is done as a matter of the state’s exercise of its police power to prevent harm. It’s basically done in a regulatory kind of 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. We have civil commitment in the United States. 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 have done anything. You show that they are a danger to themselves or to others. There are people in mental health crises. 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 harm before it occurs.
But you really need to have it be a serious hurdle for the government and you want it to be limited. What pretrial detention has become is an opposite presumption of dangerousness in the federal system. You are presumed to be a danger if you sell drugs. It’s just not the case that you could say there is a blanket presumption that they’re all a danger to others.
The offense that a person selling drugs is most likely to commit again is selling more drugs. We have a presumption in federal law that you get detained. And so as it turns out now somewhere, something like 77% of all people in federal court are detained pretrial because they fall under one of these presumptions that they’re dangerous. That’s very different from what our model of civil commitment detention looks like. You have to show dangerousness. You have someone come in who has evaluated the person, a psychiatrist, a psychologist, etc. You have people talk about what they have done that makes people fear that they are really a danger to others. We saw the person wielding a knife and threatening neighbors and threatening to kill themselves.
That’s nothing like what pretrial detention looks like in America. Pretrial detention in America is basically this person has been charged with a crime. Okay, we’re going to detain them and the presumption is you will be detained and you have to post cash bail to get out or there are these risk tools that are being used which because of the way they’re designed there is no presumption for 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 have high crime rates there, that is going to mean that you’re going to be high risk.
The main reason you’d been stopped so many times is because you live in a place with lots of police, and so it becomes this kind of self-fulfilling prophecy.
Plea-Bargaining: A Loophole in the Right to a Jury?
Bob Zadek: I will introduce the subject by saying that perhaps the Magna Carta 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 the extreme action of government. And jury trials in criminal cases have virtually disappeared silently. 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.
Rachel, tell us about the mechanics of plea bargains.
Rachel Barkow: I’ll start with victims, because I do believe that we should absolutely be asking ourselves whether the way we do criminal justice in America does a service to people who have been victimized by crime, and you know, it fails there too. First of all, most crimes go unreported. So that’s failure number one. For the people who do, you know, 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 too lenient, but also sometimes they think it’s too harsh.
They would rather have some other process in place that actually address what they are suffering from as opposed to just putting somebody in a prison, having them come back out again, than never address the underlying issue that caused the person to commit a crime in the first place. There’s a fair amount of research out there that when you ask victims, “Would you rather have the person go to prison for X number of years?” or, for example, in places that offer it, they could ask you if you would 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. There are other things the person could do.
A lot of victims want that but they are not asked and it’s not even presented as an option. All too often the prosecutor just assumes without ever consulting victims what they want. What they assume they want is just all about sentences in prison and the length. 95% of the people come back out again and it really matters to victims that when they come back out that they’re not going to do those things again to other people. But if we’re not doing anything to stop that we are just kicking the can down the road in a very unsatisfactory way for all of us, victims and the general public. I think it’s really important to always keep our eye on that. And I think you are very right to ask that question.
Bob Zadek: In plea bargaining, the prosecutor negotiating the plea bargain have the threat of a very, very long sentences. They give the alleged perpetrator the option of pleading to a much lower incarceration crime or risking a jury trial with a lifetime or close to lifetime sentences. So it is almost coercion. The word bargain is kind of misused because it is 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: 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. But if you plead guilty, you know, 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 then 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.
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. 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, and too risky for any defendant to exercise that constitutional right. It has 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.
Bob Zadek: 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 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 is a massive government failure. It is a massive government program that fails on every relevant measure. And 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.
Links
- Prisoners of Politics [amazon]
- Book Review: Prisoners of Politics: Breaking the Cycle of Mass Incarceration | The Federalist Society
- Prisoners of Politics: Breaking the Cycle of Mass Incarceration | Cato Institute (Q&A with Clark Neily)
