Preet Bharara: From CAFE, welcome to Stay Tuned. I’m Preet Bharara.
Rachel Barkow: Everybody has their crime or criminal offender type of person that really gets their anger up, and it’s different for different people. For some people it’s sex offenses. For other it’s the people who engage in financial fraud. For other people it’s drug dealing, but collectively as a society in the United States, the way we tend to deal with that is, “Well, let’s give everybody long sentences for the things that make people angry.” When you add all that up, you get 2.2 million people who are incarcerated in the United States.
Preet Bharara: That’s Rachel Barkow. She’s a professor at NYU School of Law and the Faculty Direct of the Center on the Administration of Criminal Law. She’s also the author of the new book Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Rachel’s work is important, and she is one of my favorite people to help navigate this thorny topic. She also happens to be a great colleague. We had a great conversation digging into the weeds of sentencing reform, clemency, and how a prosecutor’s office should measure success. First, let’s get to your questions. That’s coming up. Stay tuned.
Preet Bharara: Hey Stay Tuned listeners. It turns out the next episode of Stay Tuned drops on Thursday, July 4th, so we’re planning a special episode, and we need your help. Instead of asking me questions, I have a question for all of you. It’s something we’ve talked about the show, and it’s a topic of conversation in America over the last number of years. In 15 seconds or less, tell me what does patriotism mean to you? Record a voice memo right on your phone, and email it to StayTuned@cafe.com, or you can call and leave us a message at 669-247-7338. We’ll be featuring some of your answers, and you’ll hear my answer and my guest’s, next week. Stay tuned.
Tommy: My name’s Tommy. I’m calling from Brighton, Illinois. Miss Milgram and Mr. Preet Bharara. Look, I love your show. I listen to it every week. You two former prosecutors seem awfully nice for prosecutors, and you have a sense of humor. I have not encountered that in my experience with prosecutors in the past. I’m a good guy now, but in the past I’ve had experience with prosecutors. I’m just wondering: Is the whole mean, severe thing that prosecutors do, is that an act, and now these are the real people, or is it visa versa? What you’re doing on your show is an act, and the real people are the mean people? All right. Thanks. Love your show. Bye.
Preet Bharara: Tommy, thanks for that question. It’s one of the most interesting questions I feel like we’ve gotten in a while. The thrust of your question is is the mean thing an act, or is the nice thing an act? I like to think that I don’t do much acting on the podcast or when I was in court or in my regular life. Look, people have jobs to do, and when I would stand up at the podium when I was US Attorney and announce the arrests of people who we alleged to have committed serious crimes, that was not a moment for mirth really or smiling or cracking jokes. As I’ve said on other occasions, and spent a lot of time in the book talking about these things, the prosecutors who are at least in the SDNY, and the other ones that I’ve met, they’re really people just like judges are real people and just like people who get prosecuted for crimes are real people. They have stern moments, and they have lighter moments. It depends on what the job is at hand.
Preet Bharara: It was a very important thing in our office that we take the work very seriously, but we don’t take ourselves too seriously. There are a lot of practical jokers. You may not all know this, but I would get roasted as the US Attorney twice a year by a bunch of folks right in front of my face, and it was not kind. A lot of punches were not pulled.
Preet Bharara: Thanks for saying we’re nice. Sorry you were skeptical about whether that is an act or not. I can say for the record that Anne Milgram is a lot nicer than I am, but I’m trying.
Preet Bharara: Here’s a question from Twitter user MyTextLife who writes, “@PreetBharara SCOTUS just dropped the Curtis Flowers case. This case is been overturned three times for Batson violations by the same prosecutor under the same judge. Total trials are six. Defend it in prison for 21 years. As a prosecutor what are your thoughts?” That’s the case that involves racial discrimination in jury selection, and the Batson case you’re referring to was a seminal Supreme Court Case from 1986 that made it clear you can’t do that, that you have to have non-racially motivated reasons, for example, to strike someone from a jury. Something not based on their race. That was held to be an important constitutional right.
Preet Bharara: In the case you mentioned, the Curtis Flowers, the same District Attorney in Mississippi tried and convicted multiple times, six times in fact, a defendant named Curtis Flowers who was alleged to have committed a quadruple homicide. During the course of those six trials, as the Supreme Court points out, the DA struck 41 out of 42 black jurors. There was also substantial evidence that he asked many more questions of the black prospective jurors than he did of the white jurors.
Preet Bharara: Because of those circumstances and others, by a seven to two majority, interestingly Justice Brett Kavanaugh, newest member of the court writing for the majority, they decided to overturn the conviction and sent it back for further proceedings not inconsistent with that Supreme Court opinion, which is standard language that Supreme Court opinions use.
Preet Bharara: The good new for Mr. Flowers is that the conviction has been overturned. The bad news for Mr. Flowers is I don’t see that there’s any law or regulation that prevents the same prosecutor, who clearly has an issue with how to follow the constitution, especially on the point of racial discrimination and jury selection, there’s nothing that prevents him from trying Curtis Flowers on these homicide charges yet a seventh time.
Preet Bharara: In any event, I think it’s a good decision. It upholds the rule of law. I think it’s a terrible thing both optically, legally, morally, ethically, that the same DA has tried this person multiple times. It also turns out that the Mississippi State Supreme Court, which is not known as a progressive or liberal court, said that in this case with respect to a violation of the Batson rule of jury selection, there was as much evidence of improper conduct as they have ever seen. There’s a long history here of not good conduct on the part of this DA. One can only hope that he might recuse himself from the further prosecution of Curtis Flowers.
Preet Bharara: There’s a lot more to say about the case, because it’s sort of interesting in a lot of ways, including the kinds of things that Justice Thomas says in his dissent, which was joined by Justice Neil Gorsuch. In fact, Anne Milgram and I will be speaking at length about the Curtis Flowers case in next week’s CAFE Insider podcast.
Preet Bharara: Folks, among other things that people have been talking about and asking a lot of questions about, with a lot of frequency has been the continuing situation in these detention centers where children are being held in terrible circumstances, as was discussed in the CAFE Insider sample, and at greater length in the CAFE Insider podcast. Anne Milgram and I talked about the argument made by the DOJ that the requirement that those facilities be safe and sanitary does not necessarily mean that children, children, must have toothbrushes and soap among other things.
Sarah Fabian: Safe and sanitary is a singular category in the agreement, and it was one has to assume left that way and not enumerated by the parties because either the parties couldn’t reach agreement on how to enumerate that, or that it was left to the agencies to determine really-
Judge Fletcher: Or, it was relatively obvious.
Preet Bharara: One of the nice things about doing these podcasts is not only do I have great and thoughtful listeners, but some of the people who have been guests on the show also listen even after they’ve been guests. I’ve got an email today from someone you may remember, Steve Martin. Not the comedian, but Steve Martin who was a guest on the show, and who was the monitor that the court appointed to over see the Consent Decree that we entered into with the city on Rikers Island and also has been for many, many years an advocate for reform in prisons and other kinds of correctional facilities. I thought it was worthwhile to share with you an email, with his permission, that Steve Martin wrote today about what’s been going on in these detention facilities, given his decades and decades of experience on these matters.
Preet Bharara: Steve Martin wrote this: “Preet, just listened to your podcast with Anne on unsafe, unsanitary detention centers. As usual, you two did a wonderful job of framing the issues.” Thanks, Steve. Then he goes onto say, “Having inspected, investigated, hundreds of detention facilities during my 20 years as a retained expert for the Civil Rights Divisions of both the US Department of Justice and Homeland Security, had I ever suggested to these agencies that the absence of basic necessities such as soap, toothbrushes, et cetera could be permitted or justified under any construction of correctional standards, that would have been abrogate without qualification my most basic principles. It is both appalling and frightening that an attorney with the US Department of Justice would stand before a panel of judges and make such an argument. I just wonder if the department took time to consult with nay of their retained experts who routinely inspect facilities for the Civil Rights Division. Be well, Steve.”
Preet Bharara: I thought it was worth hearing not just from people who hae prosecuted cases, and other people who write on these matters, but from Steve Martin, who has lived and breathed the stuff for decades. Thanks, Steve.
Preet Bharara: My guest this week is Rachel Barkow. She’s an NYU law professor and Faculty Director of the Center on the Administration of Criminal Law. Rachel is a passionate advocate for major reforms in America’s incarceration system. We’re friends and colleagues, even though we don’t agree on everything. Rachel and I discuss policy by anecdote versus policy be evidence, the impact of prison programming on public safety, and how the current president is using or abusing the power of the pardon. That’s coming up. Stay tuned.
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Preet Bharara: Rachel Barkow, thank you so much for being on the show.
Rachel Barkow: Thanks so much for having me.
Preet Bharara: I should say Professor Barkow. You are my colleague at NYU.
Rachel Barkow: Yes.
Preet Bharara: It’s a pleasure to have you here. Congratulations on your book Prisoners of Politics: Breaking the Cycle of Mass Incarceration. It’s a great book. It’s an important book. I’m glad you wrote it. I’m glad a lot of people are reading it. A lot more should be reading it once they listen to what you have to say. I also, before we start, wanted to thank you. As a friend and colleague, you read portions of my book Doing Justice, and you provide many instances the sort of smartest edits of anyone. Thank you for helping me make the book tighter and better.
Rachel Barkow: Your book is excellent and needed no help, but thank you.
Preet Bharara: It did. It did. Thanks for providing it. You are a scholar of all things having to do with criminal law. There’s a lot of debate now in the country about how we make things better. I don’t think there’s anyone who thinks, whether you’re a current or former prosecutor, defense lawyer, a judge, an academic, or some combination of those things, who thinks that the current system is wonderful and the status quo is great whether you’re a liberal or a conservative. What was your major reason for writing this book, and what do you think is the major issue that we should be focused on with respect to criminal justice?
Rachel Barkow: If our goal in our criminal justice policies is to achieve public safety, and I really think that’s the common ground, liberals, conservatives, that we all share, we want a system that’s working to make us safer, and so my goal in writing the book was to highlight all the things we’re doing that fail in that objective, that I think people have intuitions that these things work when in fact you look at the data and the evidence, and you find we’re doing a lot of things that are counterproductive. To boot, those are the same things that create racial disparities, a lot of human misery, and make the system palpably unjust. It’s kind of this lose/lose environment that I wanted to draw people’s attention to.
Preet Bharara: What’s interesting is that the first thing you said was that everyone should be focused on public safety as opposed to, and maybe these things are not mutually exclusive, as opposed to justice. How do you think those are different?
Rachel Barkow: I think justice is paramount in what we’re doing, but I have to admit when I talk to people around the country, there’s different conceptions that people have of what justice is. What is a just punishment in a given case? You get wildly different answers from people, but the common ground is everyone could agree what it means to be safe, to not fear that you’re going to face attacks, to have low crime rates in your neighborhood, in your area. That’s the objective that I think is the universal one. I think what’s ironic is we have people peddling these criminal justice policies that, frankly, are unjust by most people’s estimate. Again, people disagree, but they say, “Hey, you need to do these things. That’s the trade off for safety.” What I’m hoping to highlight in the book is that’s just really a false dichotomy. These are policies that are bad from both perspectives.
Preet Bharara: I want to talk about the overall, because you have a lot of interesting points that you make about policy based on evidence as opposed to policy-making by anecdote. I worked for four and a half years in the senate, so I saw some of that. Give us an example of the readily understandable terrible policy that neither provides public safety nor provides justice.
Rachel Barkow: Just one? Okay. I’ll give you-
Preet Bharara: Pick one. I hate to say your favorite one, but I guess the worst one.
Rachel Barkow: I’m not sure if it’s the worst, but I think it’s very common, which is this idea that someone has been charged with a crime, and most people have a sense, “Oh, let’s lock them up immediately, because that’s good for public safety.” As many people in pre-trial detention as we could get.
Preet Bharara: Before the trial?
Rachel Barkow: Before the trial, before they’ve ever been adjudicated guilty-
Preet Bharara: No bail?
Rachel Barkow: … but they’ve been arrested for something, and there is, I think, a fear and a sense among many, many people in our society that this person is a danger, and it’s a great thing to lock them up as soon as possible. Whenever we see news stories about someone who was out released on bail before their trial, and they do go on to commit another crime, there is a sense, “Oh, see. That is exactly what we need to prevent. We need to prevent that kind of thing.” As much detention as possible as the goal.
Rachel Barkow: The misconception there is in fact when you look at all the evidence and the data, detaining people before their trial makes it more likely they’re going to commit crimes. Right? If you kind of stop and you think about it, we are taking people from whatever jobs they have, whatever childcare arrangements they have, housing, whatever their life is, and we’re uprooting them for however long they’re going to be detained pre-trial. What that’ll often mean for them is they lose that job, they lose that housing, that lose that childcare. They often lose custody of their children. This is one of those life-altering moments for them that then makes it that much harder for them later to lead a law-abiding life. All else being equal, no matter what they’re charged with, what they did, it makes them more likely they’re going to commit crimes later if we detain them pre-trial.
Preet Bharara: I’m a little bit confused about that, because we should point out at the outset people sometimes think I speak for all prosecutors. I have a general sense of what prosecutors are about, but I had a very specific experience in the federal system, not in the state and local system, and even within the federal system, a very specific experience in the southern district of New York. It has been pointed out to me that different offices have different cultures, and different places do things differently, whether it’s geographically or state versus federal versus something else. Now, will you agree that some people who are charged with crimes based on the federal test should be locked up pending trial, because they’re deemed a legitimate risk of flight or a danger to the community? You’re not saying that everyone should be out and free pending trial?
Rachel Barkow: Right, but what I am saying is that not everyone should be detained. Where the system errs is in too much detention as opposed to not enough, right? There’s the-
Preet Bharara: Why do you think that is? This doesn’t happen without the participation of a prosecutor, obviously, a defense lawyer, required constitutionally, and a judge. What’s the conspiracy that’s going on? I don’t disagree with you that there’s maybe over-detention pre-trial, particularly in the state system, because they have cash bail in a lot of places. It’s not the test of risk of flight or a danger to the community, but if you can’t pay the thousand bucks. I think that’s wrong, and that’s terrible, and we’ve talked about that on the show. What is happening amongst those three parties in court that causes over-detention?
Rachel Barkow: I think it’s the accountability problem. If someone is released pre-trial, and they do commit a crime while they’re out, that judge, that prosecutor, they will be blamed. We’ll hear about them-
Preet Bharara: In the New York Post.
Rachel Barkow: Of course. We’ll hear about their mistake, but we don’t see a front page story that says, “Man, woman unnecessarily detained who presented no risk.” That just doesn’t get coverage. There’s no blow back for doing that.
Preet Bharara: Unless it’s Paul Manafort. Can I just ask this as an aside? You’re somebody who is incredibly smart and well versed in all of these things, and you teach classes. You’ve written more than one book, and textbooks, and articles, and now over the course of the last year and a half or two years, the entire nation has a little bit been getting an education on criminal justice through the lens of the Mueller Report and the Russian Investigation, and some of what SDNY was doing was back to Michael Cohen. Now you have all these people on television every day talking about bail and talking about solitary confinement and talking about searches that happen, whether you have to knock first or not knock, and whether or not it’s okay for FBI agents to show up at 6:00 a.m. as opposed to noon or during high tea.
Preet Bharara: From where you sit, what do you make of how people are getting their education about criminal law given this distortion of the Mueller investigation?
Rachel Barkow: It’s got good and bad attributes to it. On the one hand, I would say there are a group of people out there who, for the first time, are outraged by practices that are quite common. I think they are only outraged because they are seeing people that they personally find to be sympathetic undergoing this. In some sense, I think that’s a good thing to have some people say, “Hey, really? This happens all the time? That’s kind of outrageous.” If it takes their kind of political ally to be the victim of that to get concerned about it, there’s something to be said about that that’s positive.
Rachel Barkow: On the other hand, there’s attributes of this case, and I don’t need to tell you, all these cases, that are not the typical cases. They become used as if there’s something about that is normal, run of the mill, when there’s really exceptional facts and circumstances at stake. Yes, you should learn about the fact that there are aggressive search tactics. That is something that is not unusual that would take place in a case, or people talking about what is a normal sentence for someone in the federal system and learning about the way guidelines work. I think that can be good to educate people on, but there are so many things about these cases that are unusual and strange that then become used as a broader critique of the criminal justice system that’s not accurate.
Preet Bharara: Speaking of Paul Manafort for another second, the Manhattan DA charged Paul Manafort in a number of counts criminally. The report as of the taping of this podcast is he’s being transferred from where he’s being held to New York to Rikers Island, which is not a good place. I have a whole chapter about Rikers Island in my book.
Rachel Barkow: You do indeed.
Preet Bharara: We did a lot of stuff with Rikers Island, and I saw somebody post on social media, on Twitter, “If you are psyched that Paul Manafort is being sent to Rikers Island, you may not be as progressive as you think you are.” How do you react to that?
Rachel Barkow: They’re right. I think that’s exactly right. I think the reaction to his initial sentencing was very telling. That first sentencing in Virginia, when he got four years, I saw so many people that I normally think of as kind of progressive criminal justice reform types absolutely outraged at that sentence. I thought, “But step back for just a minute.” I understand what the guideline’s range was, but that first batch of stuff was essentially tax fraud, and he was going to have to pay back the money. This was the prison time in addition to that. It was not an insignificant amount of prison time, but the idea was people were saying, “Decades. He should spend decades in prison.” That’s just a little microcosm I think of what I try to point out in the book is how we get mass incarceration.
Rachel Barkow: Everybody has their crime or criminal offender type of person that really gets their anger up. It’s different for different people. For some people it’s sex offenses. For others, it’s the people who engage in financial frauds. For other people, it’s drug dealing, but collectively as a society in the United States, the way we tend to deal with that is, “Well, let’s give everybody long sentences for the things that make people angry.” When you add all that up, you get 2.2 million people who are incarcerated in the United States.
Preet Bharara: Right, because there are some categories of people that so-called progressives think should get the book thrown at them, and who cannot be redeemed. Then there are some categories of people that so-called conservatives think that about. With respect to some, there’s overlap. I want to talk about this issue of politics in making determinations about law and order.
Preet Bharara: Now, obviously the first thing that has to happen is there has to be a law that is prescribed by statute, whether a state law or a federal law, that some body of politicians, by definition politicians, elected people, pass. Then a prosecutor can decide, did so and so, after you’ve conducted an investigation, violate that law, and is it in the interest of justice to pursue, but the first thing is the law whether or not it’s broad, whether or not it’s narrow, whether or not there’s a mandatory minimum sentence associated with it. I think you had made the point the question’s how to do with it that a lot of those laws are passed obviously in a political system, but they’re done based on, as you say it, I want to repeat it because I think it’s a great line, policy making by anecdote as opposed to based on evidence. What are some examples of that?
Rachel Barkow: Take sex offender laws, because I think that’s a good one for people. If you have in your mind if I say sex offender, I think people have in their mind rapists, child molesters, kind of worst type of that category. When you actually look at the laws that are passed around the country that cover sex offenders, they include things like teens sending sexually explicit pictures to each other. Sexting.
Preet Bharara: To other teens?
Rachel Barkow: Yes. Exactly. They’re covered. They qualify for lifetime registration in many, many places. Public urination. Because somebody exposed themselves to go the bathroom outside, that’s a sex offense. Visiting a prostitute. Sex offense. This is multiple states. These aren’t just kind of one off examples. In those kind of places where law makers have said, “Okay, here’s what we want to do with a category of people known as sex offenders,” that’s going to include everything from your child rapist to teenagers consensually sending nude pictures to each other, the punishment is set with the worst person of that category in mind.
Rachel Barkow: You end up with things like lifetime registration requirements. To take another example, if you look at the federal legislation that was passed in the 1980s and 90s for drug traffickers. They kind of had El Chapo in mind. They talked about these high level traffickers putting great quantities of drugs in circulation. Mandatory minimums were set really high for high level of traffickers. They weren’t thinking about a conspiracy that includes your kind of low level person who is the mule who brings drugs over the border or your street courier. They’re all going to get treated the same way based on the quantity no matter where they are in the drug conspiracy, and they all get that sentence that really was, frankly, with El Chapo in mind. That’s a kind of dynamic we see across numerous offenses. It’s definitely a pattern.
Preet Bharara: There’s something that absolutely happens. There’s an event, whether it’s 9/11 or something else, or local crime. It gets some notoriety, and then law makers who have a blunt instrument of passing laws or not passing laws decide based on that anecdote, as you might say, we’ve got to do something. Maybe it’s not a fault of weak law. Maybe it’s a fault of bad discretion being used or bad judgment being used by a particular judge or a particular prosecutor, but they think, “I represent these people. I care about public safety. I also care about justice, and I’ve got to do something,” so they pass some law that may be unnecessary.
Preet Bharara: It mostly works in an upward ratchet, so, in order words, some bad thing happens, you already have pretty tough laws on the books, but to show that something is being done, whether it’s congress or a state legislature, they’ll pass a law, it gets signed by the president or signed by the governor, and then you have to I’ve with that law pretty much forever. It’s very difficult politically to undo some tough law than it is easy to enact the tough law in the first place. Is that always bad? In other circumstances, we might say, we’ll have a mass shooting, and there’s been no movement on particular kinds of sanctions for people who buy certain kinds of guns or taking guns away from folks. Or a hate crime. Matthew Shepard Law was passed after a devastating event. That’s a little bit legislating by anecdote also. How do you differentiate between the two?
Rachel Barkow: I think the key is there’s the impetus for passing legislation. Some problem in society, whether it’s hate crimes, whether it’s drug trafficking, whether it is sex offense, these are real problems, and so you do want a response by your elected representatives. For me the issue is what they then choose to do and what information they use to make their decision.
Rachel Barkow: It would be one thing if after something happens to then say, “Okay, what could we best do to address this problem that we’re now aware of because there was this high profile event that brought our attention to it?” We looked at studies, because there are people study this-
Preet Bharara: There are?
Rachel Barkow: … and say, “What is it that would be a good thing to do in response?” I think the way to think about it would be if we looked at an example from another field that involves, let’s say, science. Let’s say you had an outbreak of measles, and you wanted to figure out what should we do about it. We wouldn’t normally think the best idea would be to just have a bunch of legislators who are generalists and have no specialized information kind of go with their gut and decide what they think is best.
Preet Bharara: No vaccination, because it might be bad, but people are doing that.
Rachel Barkow: Right. That’s a real problem. I think the issue is to get criminal justice and its goals into that same sphere of thinking where we say, “Hey, we actually have some accumulated knowledge and information about things that work and don’t work. Let’s use that when we make the policy.”
Rachel Barkow: Let’s take an example of one of those policy-making by anecdote examples, which was crack cocaine. You have Len Bias, star basketball recruit. He’s going to go to the Celtics. They’re so excited, and he dies of an overdose. People think he died of a crack cocaine overdose, and the result was that that was the kind of trigger for Congress to say, “This new drug crack has to be dealt with as harshly as possible.” They literally had a bidding war between democrats and republicans in Congress to ratchet up the penalties for crack cocaine. Nowhere did they look at evidence of what’s the chemical composition of crack, how is it different from powder? What do we know about the effects on the human body? It was all by anecdote, so we might say, “Yes, this is a drug that needs to be addressed,” but how Congress chose to do it was essentially to create this bidding war where we got to the point that you would need 100 times the quantity of powder cocaine to get the same sentence you would get for crack cocaine.
Rachel Barkow: It turns out Len Bias died of powder cocaine, a powder cocaine overdose, so even the story that prompted them to do this turned out to be based on factually false information. We now know they’re chemically indistinguishable. There’s no reason for treating the two drugs that way. That would be an example where you might have said, “Hey, Congress. Yes, you recognize there’s this new drug. How about you ask the sentencing commission, you ask other people in the federal government who study these things, to give you some tips on where in the drug hierarchy crack really falls as opposed to just kind of seat of your pants let’s make our best guess?”
Rachel Barkow: We’re seeing the same thing with Fentanyl, with opiate, kind of a range of things where, yes, there’s a real problem, but we don’t always come up with the best solution to that problem, because instead it’s symbolic soundbites, what’ll sound good to the public, what sounds superficially tough.
Preet Bharara: There are other areas where we made decisions and policy decisions and even pass laws based on data and evidence and expertise, from where I sit speaking a little bit more cynically for a moment, I’m seeing the country both in policy making and in law making, actually in a lot of areas move away from that. We talked about vaccination and measles, and you have a lot of people who are spouting off based not on medical evidence or expertise, but based on views that don’t seem to make any sense. You’re seeing it also with respect to climate change and climate science. What gives you hope that in these other things that some people will say pose an existential threat to the planet, that there’s not so much care about evidence and science that we can get somewhere on criminal justice policy?
Rachel Barkow: I’m not really sure I have a ton hope, but the-
Preet Bharara: Don’t say that. This a podcast that tens of millions of people-
Rachel Barkow: It’s not necessarily an optimistic one is it?
Preet Bharara: No. This is a podcast that’s about hope.
Rachel Barkow: A hopeful and sunny outlook?
Preet Bharara: Yes.
Rachel Barkow: To the extent I have it, it comes from the fact that we reach points in our society where people are just hit in the face with how bad their policies are. You can kind of look historically in the United States where we got regulation of certain issues frankly took a lot of tragedies. Shirtwaist fire. People start think, “Hey, maybe we do have to regulate the conditions on factory floors.” In criminal justice, I think that kind of tipping point is harder to identify because it’s a little harder to say, “Oh, the reason we still have high rates of recidivism and crime and places and lots of people cycling in and out of the system.” Sometimes there’s a tendency to just blame that on the individuals themselves. It’s just a lot of people individually making bad choices in their lives as opposed to saying, “Actually, we have this criminal justice policy apparatus that does a terrible job because it’s failing like three quarters of the time as people cycle in and out.”
Rachel Barkow: It’s a little tougher to have people clearly identify that our policies are problematic, but I think the tipping point for that is we now have so many Americans who themselves have personally had involvement with this system that they see it firsthand. You’ve got one in three adults in America with a criminal record. One out of every three, which is really a statistic that’s hard to wrap your mind around.
Rachel Barkow: I think when you start to think of the millions and millions of people who have family members, it’s like one it two people have family members that have some kind of justice involvement. I think when people start to see it firsthand, they get a stronger sense that this is not working. It’s the Brian Stevenson proximity idea, and I think we have a lot more people in America who are proximate to a system that doesn’t work. I think in your book when you talk about Rikers, no one who has proximity to Rikers would say we’re doing a good job detaining people there. That people will come out of that place better and more likely to lead a law abiding life than when they went in. I think as more and more people get close to places like Rikers and jails and prisons and the rest of criminal justice, I think that’s going to be the turning point.
Rachel Barkow: That’s the optimistic take, and I’m not completely convinced even myself that we’re there.
Preet Bharara: I’ll add a note of optimism here. You and I may disagree on some things, and I was a prosecutor most of my adult life, but I still think there’s lots of things wrong. Certainly at Rikers Island and how we incarcerate people, and I do think we incarcerate too many people. As you discussed a minute of go, you had 100 to one ratio between crack cocaine and powder cocaine. It took a lot of years, but after a period of time, that ratio was made not equal but was realigned some.
Preet Bharara: There are people, progressives and you have conservatives, who have joined together in a bunch of different respects to say, I think uniquely because this wasn’t true in 1994, join together based a little bit on different considerations, to say we’re incarcerating too many people. Some progressives might say, Vanita Gupta’s been on the show, a civil rights leader and a friend also, who says, look, she was prepared to join with the Koch Brothers on policy issues, because from her perspective there’s lots of reasons why it’s unfair, unjust, and discriminatory to have so many people locked up. From their perspective a little bit more, their emphasis was on cost. It hurts the economy and it’s bad for the country in slightly different ways. Although there’s overlapping concerns about justice as well.
Preet Bharara: They both come at it from a slightly different perspective, and probably don’t agree on much else on the political table, but they can agree on those things. That’s how you got the first step back, for example, that President Trump takes some credit for. That’s my prompt to you to say if it’s correct that that is a trajectory that’s hopeful and good or will that erode?
Rachel Barkow: I think it does lead us to some place better, and I guess the question is kind of where your ultimate destination is. The reason I stay a little pessimistic, if you think about reducing our prison population let’s say by 50%, a goal of cut50, Van Jones’ organization and others have talked about that, we would need at the current pace that we’re at 75 years to get there. That would assume we keep continuing with these kinds of reforms. I think we’re about to hit a ceiling, because if you look at the actual things that the two sides have agreed on so far, it’s very modest.
Rachel Barkow: These are really incremental, modest changes. I think they’re good. I think the First Step Act is good-
Preet Bharara: It’s just a first step, Rachel.
Rachel Barkow: Right. It’s the most baby step. You could bronze the saddle show and say, “This was a step where then the baby fell right afterwards, but did take that first step.” The question is how long is it going to take to turn into Usain Bolt from that one, and we are really, really far, because the things that people are agreeing on… I read through all of the presidential candidates, many of them had submitted these proposals in this Brennan Center kind of report of kind of what they thought of for criminal justice policy, and it’s all so modest. It’s targeting non-violent, first time, low level drug offenders, which I agree is a really important category to look at, but that’s most of the people who are incarcerated in the United States. That’s the kind of thing we’re going to have to get passed if we want big reform, because most of the people who are incarcerated in the United States are there for some kind of a crime that most people would think of having involved violence.
Rachel Barkow: We have people incarcerated… They’re in there for homicides, for rapes, for robberies, burglary. We can talk about whether that’s really violent or not, but people don’t like burglaries. That’s when you start to get into the offenses that are politically more difficult to try to reduce sentences for. It’s one thing to say that 100 to one ratio for crack powder, yes, they got it 18 to one, which was a good thing, but even then they couldn’t agree to make it retroactive and give a break to all the poor people who were still serving the old hundred to one sentences. That just happened in the First Step Act.
Rachel Barkow: When you think about taking two decades to remedy what was clearly a really flawed 100 to one regime, that’s what makes me worry. If it takes two decades to fix that one, how long is it going to take to fix the much more politically difficult problems?
Preet Bharara: I want to ask you about the 1994 Crime Bill, which is much in the news because lots of folks… I don’t know if you know. Everyone’s running for president on the Democratic side. We’ve come a long way from 1994, and even communities of color, there was a lot of strident push for tough laws. I would presume that you would think there were at least some good things in the 1994 Crime Bill, including the assault weapons ban. Do you agree with that?
Rachel Barkow: Yes.
Preet Bharara: There’s a lot of pushback within the democratic party as these people run. To what extent to you judge people like Joe Biden or others to the extent you have a problem with the 1994 Crime Bill today? To what extent is it fair to judge them for reacting in the way that they did back then?
Rachel Barkow: I think it’s always important to take into account the context that people are making decisions. For me personally, and I’m only answering for me, every voter is different. One I look and see, given what they knew in the 1990s, lawmakers, what were the range of policy positions that were available to them then? Were there people then speaking out that this wasn’t actually going to be very effective, and frankly, there were. That’s kind of one thing we could look at is even at the time, as long as we could identify other people who recognized this was a failed approach, then I think it is fair to criticize and ask questions about, “Well, why did one politician go with approach A, and another went with B?”
Rachel Barkow: To me, what’s more valuable is to ask where are they now, because I believe… This is a big part of my professional career. I believe in clemency. I believe in giving people second chances.
Preet Bharara: Including politicians.
Rachel Barkow: Exactly. That’s another one of those kind of progressive hypocrisies, frankly, because there’s a lot of people who really do believe in rehabilitation and human change in the context of people who commit violent acts against each other who sometimes don’t believe it for people who aren’t engaged in those acts, politicians.
Rachel Barkow: I personally believe in human evolution and thought and progress. I do judge people by what they tell me now they’ve learned about what they did back then. There, I still think some of these folks are going to get some kind of low grade to be honest with you.
Preet Bharara: Like who?
Rachel Barkow: Well, so-
Preet Bharara: Name names.
Rachel Barkow: All right. I’m going to name names. Since I’m not running, here’s where it’s good to have tenure. Take Kamila Harris. THere’s an example of somebody who has a long career in law enforcement, and has made many decisions along the way as attorney general, as district attorney, but who says now says, “Well, I was a progressive prosecutor,” you know what? I really don’t think that’s a fair label for how she behaved while she was, for example, Attorney General, because I was alive and cognizant and in this professional line of work while she was Attorney General. While it was happening, I was outraged at many of the decisions she was making.
Preet Bharara: Give us an example.
Rachel Barkow: She defended some really horrible behavior on the part of the Orange County District Attorney’s office in cases, took positions on appeal that I really think were not positions of justice. Did not represent the highest kinds of positions one would like to see from an Attorney General’s office, and fought cases where there was really, really blatant misconduct by prosecutors in her state. She wouldn’t take a position on reforming three strikes legislation. There were just a few things that she did that at the time I was disappointed, because I thought, “This is a very smart person who I kind of had my eye on as a politician to watch, and those were disappointing moments.”
Rachel Barkow: Because I believe in reform and clemency, I still think today is a new day. What does she say now? There it is mixed. I definitely get it’s the political spin. It’s now, “I’ve always been progressive,” as opposed to, “Actually, I’ve made mistakes. Now, knowing what I know now, I should’ve done this differently.” That’s what I like hearing from people. I haven’t really gotten that from her yet. She has some good positions now. She wants better funding for defense council. She supported legislation in her time in Congress that I think is good. I’d say it’s a mixed bag there. My kind of voter antennae go up whenever I see someone basically, “I’ve been right all along. I’m still right now,” as opposed to just honestly saying, “That was a screw up.”
Rachel Barkow: Joe Biden. We can take our next example.
Preet Bharara: I was going to go to him next.
Rachel Barkow: There’s somebody who has in a very passive voice kind of way said, “Mistakes were made in the 1990s.” Not, “I made them.” He was the leader for a lot of that legislation. He wasn’t just kind of a passing by voter in the senate. He was one of the movers for the 90s legislation. Again, I think it’s possible for him to come out of the box now and say, “Although our heart was in the right place, we were very concerned with drug problems and crime problems, and we took an approach that we thought was tough and effective, but now we recognize was just superficially tough and actually created more problems than it solved.” He hasn’t said that. Instead it’s been similar to what I was saying with Kamila Harris. More of a kind of, “I’m always there for the American people. We did a lot of good things then. Did we overreach in some? Yes.” Then he kind of pivots to some things the Obama Administration did while he was there that, in some sense, remedied some of those, but not really.
Rachel Barkow: For me, it’s a question of what they’re saying now. For those two for example who have kind of a long track record on criminal justice, I’m still concerned about what they’re actually saying today.
Preet Bharara: You have many distinctions in your long career academically and professionally, one of which is the most sought after thing for people who finish law school is to clerk on the United States Supreme Court, and you did for the late Justice Antonin Scalia. Are people ever surprised that’s the justice for whom you clerked?
Rachel Barkow: Sometimes. It sort of depends on whether or not they know my own political views, which tend to lean left and not right. That is not the way that the Justice’s views were. For others, it’s less surprising because his positions in criminal cases, for example, actually very much line up with the kinds of arguments I make in the book. I have given talks at Federalist societies, and with libertarian groups. One of the things that I think is kind of great about how our framers devised our system of government is they knew these kinds of things would happen, and they put in place very good checks in our Constitution to deal with them.
Rachel Barkow: If you are an originalist interpreter of the Constitution, or you value that framing generation’s perspective on these things, you end up being a pretty robust enforcer of defendants’ rights in a lot of areas. Although Justice Scalia was not perfect in that regard for sure, and I disagreed with some of his decisions, he was actually quite good in a whole range of criminal justice matters where it would often be the four more traditional, liberal justices and him as the fifth vote in some really important areas.
Rachel Barkow: I think for people kind of immersed in the Supreme Court docket that way who know that there was this side of him and how important he was to some key defendants’ rights, then it’s a little less odd that I both clerked for him and really enjoyed it.
Preet Bharara: How funny was he in chambers?
Rachel Barkow: Really funny.
Preet Bharara: Was he the funniest one?
Rachel Barkow: Well, hard for me to say, because I didn’t get to hang out with the others as closely.
Preet Bharara: But the clerks talk.
Rachel Barkow: Yeah. I think he probably would be?
Preet Bharara: Who was the second funniest?
Rachel Barkow: Oh, when I was… It’s hard to say if he was actually the funniest, but Justice Thomas has a laugh kind of like if you remember the old Tonight Show and Ed McMahon and that kind of really full throated haha, where Johnny Carson would say something that wasn’t even that funny, but when Ed McMahon gave the laugh, you kind of laughed in spite of yourself.
Preet Bharara: For our younger listeners, Johnny Carson hosted the Tonight Show.
Rachel Barkow: Right. Now my age is really showing.
Preet Bharara: A few people ago, because you’ve got some young-
Rachel Barkow: You may want to just cut that right on out.
Preet Bharara: No, no, no.
Rachel Barkow: He has that laugh Justice Thomas. Kind of creates an aura of humor around him that seems funny as a result. He’s a pretty jovial personality. Justice Stevens very funny and warm. They all have their own unique senses of humor on the court, but I do think that Justice Scalia in particular was a very funny person.
Preet Bharara: What did he teach you?
Rachel Barkow: He taught me some work habits that I think were extraordinary. One thing that he did is before any opinion that he wrote ever left his chambers, he would sit next to the clerk and have the law clerk bring in the reporters, the books, that hold all of the opinions that had been cited in his opinion, and he would look through every one of them to make sure that it had been correctly cited and that there wasn’t something else in that opinion that he didn’t like such that citing it would send a signal that he didn’t want.
Rachel Barkow: The level of care to do that for each and every opinion is something that really has stayed with me. When I use research assistants, or I get help from others, I feel that same sense of obligation to really own it myself and look closely at underlying sources, because I think to myself, “If Justice Scalia could do it, surely I should take the time to do the same thing.”
Preet Bharara: Did you ever win an argument with Justice Scalia legal or otherwise?
Rachel Barkow: I mean, I like to think so.
Preet Bharara: You did?
Rachel Barkow: It seems unfair to be able to say that when he can’t come on here and dispute whether or not that is true.
Preet Bharara: Let me rephrase it. Did you ever persuade him to your point of view, which is not necessarily… It’s slightly different.
Rachel Barkow: Yes. I think that that is something I was able to do. It wasn’t because of my unique skillset actually. I would say that is a testament to the fact that he did have an open mind. He did go out of his way to hire law clerks who had political views different from his own. That was because he wanted to have people question his assumptions and really take him to task if he was doing something that was inconsistent with his usual approach.
Rachel Barkow: Now, it wasn’t like the argument you would win would be, “Hey, why are you looking at all those founding era documents? This is a living Constitution. Let’s take a look at here and now,” but if you on his own terms could say, “You are misreading this history,” or, “you’re misreading this statutory text.” Taking his methodology as a given, and on his own terms showing something that wasn’t quite right, he very much would listen and was open minded. Really great work environment.
Rachel Barkow: I have to say the one story I like to tell my students, because this also has stayed with me, is very early on my clerkship I made a mistake in a memo I had circulated. I just didn’t indicate it was a plurality opinion below. Normally in an opinion you assume it’s a majority of the judges voted for it. If it’s not a fully majority, but it’s just a sufficient number, you would say plurality. You would indicate it, and I didn’t in this memo. I didn’t put the parenthetical in. I had already walked it around the building when it hit me that I hadn’t done this.
Rachel Barkow: I was then in front of the door to Justice Scalia’s chambers and walked him and confessed to this error. I think it was my first week at the clerkship, and I said, “Oh gosh, Justice Scalia. I just circulated the memo, and I didn’t indicate it was a plurality.” He dropped the papers that he was working, and he looks at me, and he says, “Well, you know what? If that is the worst mistake you have made, you will be the best law clerk I have ever had. Just circulate another memo.” I thought that is how you get somebody who works for you to want to do… Then I thought, “I could still be the best clerk he ever had. I’m going to double down.”
Preet Bharara: Just don’t do that again.
Rachel Barkow: “I’m never going to make a mistake like that again.” You want to do the best you can for someone who is a boss like that, and that is how I felt the whole time. He was really a terrific person to work for.
Preet Bharara: Let’s talk about prosecutors. You say a lot about them, and one thing that I found really interesting, and I think is very smart, how should we measure the success of a prosecutor? One of the things you say is that it is very common and typical for the metrics used to evaluate the success or effectiveness of prosecutors is how many people did they charge, what percentage of people did they charge did the convict. That seems a standard thing. It’s an easy thing to measure. I think with respect to most offices, those numbers are easily knowable. I will tell you, before you go into how that’s bad, that I don’t disagree with you.
Preet Bharara: I made it a point when I was US Attorney to not pay a lot of attention to those statistics, and I would get the numbers. They would come in. We had a fiscal year that ended, I think, on September 30th. You would get these printouts that said how many narcotics projects, how many robbery charges, how many terrorism chargers, how many public corruption charges. I couldn’t tell you, as I sit here, and I couldn’t tell you during the years I was in the US Attorney’s office what those numbers were. I knew our conviction rate was very high anecdotally because I thought it was actually not a good idea to have people think, “Well, that we’re going to measured is by how many convictions you’re going to get.” We had a culture in the office that I hope is in a lot of places that there’s nothing shameful about losing a case, about getting an acquittal in a case. You have the same privilege of coming and reporting to the US Attorney a case in which there was an acquittal because the jury saw things differently as much as in a case where there was a conviction.
Preet Bharara: By the way, you were celebrated, and I hope this happens most places, if on the eve of trial or during trial or at some point after a charge was made, you came across other evidence that suggested the case was falling apart. Hopefully no one was at fault for that. People sometimes in good faith mistakes, and witnesses make false identifications. If you were the person who was a prosecutor who came forward and sought the dismissal of case because it no longer made sense to bring, there was not only no shame in that. There was pride in that. That’s important.
Preet Bharara: I agree with your premise, my question is, and this was something to struggle with, how then do you measure the success and quality of a prosecutor’s office if you need to be careful not to put too much weight on these easily knowable stats?
Rachel Barkow: I wish we could clone that attitude that you have and have it in all the 2,400 prosecutor’s offices around the country. I don’t think it’s true. I really unfortunately think we have a lot of leaders in these offices who it’s all about the wins. There’s a culture that you celebrate the wins and the losses are a loss like it would be for a sports team. That we’re treating it the same way we treat an NFL season. That’s not what we’re doing in prosecutor’s offices, but I think there’s an attitude that exists, and it’s prevalent throughout the country that is bad. I do think that’s not doing justice. That shouldn’t be the goal, but because it’s so easily measured, it often is. What we can easily measure, and what we focus on, if that’s what counts, that’s what people try to achieve.
Rachel Barkow: The key for a prosecutor’s office is to really think, “What are we doing?” Now, justice is a tough metric. We talked about that. People have different conceptions of it, but I think there’s other things we could look at in the office and ask questions about prosecutors that would tell us. We could look at, “What are the cases that you are diverting in your office that shouldn’t be there?”, because that’s a success.
Preet Bharara: By diverting, just to be clear, what do you mean by that?
Rachel Barkow: Taking cases out of the criminal justice system because you recognize this is actually a person in front of us who has a mental health issue or a drug problem, and really we get a better public safety outcome and a better outcome in their lives in we put them into a treatment program, get at that underlying problem, and keep them out of the criminal justice system, because once we deal with that problem, they will be more likely to lead a law abiding life. We’ll get the public safety benefit, and we will free up our resources for cases that we really need to focus on.
Rachel Barkow: To me, we should measure that. We should measure the successful diversion of cases outside of the system that shouldn’t be there. That should be praised and rewarded. It’s a little different at the federal system and then the state system, but we look through offices all around the country right now. We have states that have prosecutors that are lowering the incarceration rate in their office. Crime is not going up. In most cases, it’s going down. If anything, it’s stable or going down. That’s a successful measure to say, “Hey, we incarcerate too many people. What are we doing to bring that rate down in our office?”, because it’s suggesting better assessments of which cases matter and which ones don’t. We could use that as a metric.
Rachel Barkow: We could ask, “What is this prosecutor’s office doing to make it more likely that when people do stay in the criminal justice system, and go through and get sentenced and get put in prison, that they’re going to come out, and they’re going to be better off for having gone through this? They’re going to be less likely to commit crimes?” What are prosecutors doing to promote reentry? What are they doing in an office?
Rachel Barkow: I know you talk a lot about this in your book, and I’m so grateful that you do, because that’s part of a prosecutor’s job. It has to be if you care about public safety. It can’t just be your job ends when the sentencing is over. You need to ask yourself as a prosector, “When I send someone to a prison, what does that place look like? Are they offering programming?” If they’re not, I think a good leader of an office will tell the public, “Hey, we need to do a better job in our prisons.” That’s a metric too. It’s a metric for me when prosecutors speak publicly to the citizenry about what we should be doing differently about various safety issues. What are the positions they take publicly on reentry or police shootings or any number of other public safety issues between police and community relations? They should be leaders on all these things, and those should be things we value, because we know all that matters for ultimately reducing crime rates.
Preet Bharara: I think those are all great points. Now, I evolved too. As I say in the book, I didn’t think about it. Not because of some bad intention, but because it was sort of out of mind, this idea of what happens to somebody once you’ve done your job as a prosector. In the interest of justice, you bring a case. You proceed to completion, and if there’s a guilty verdict by plea or by trial, then we make a recommendation. The defense lawyer makes a recommendation. The judge sentences, and then that person is off into the custody of the Bureau of Prisons, and we don’t really have a role anymore formally.
Preet Bharara: When people are really busy and have a lot of going on, and they move onto the next case, it’s not unnatural for them to then lose sigh of and not have in front of their mind what happened to that person, because they’re not in the custody of some other subdivision of the government, and they don’t hear a lot about those folks. I became a lot more interested in these issues when we began to investigate Rikers Island and became involved in an organization that cared about what happens when folks are in prison and making sure that as advocates we were in a spot to say, “There should be programming in prison,” because that has a huge impact, as you say and as everyone rightly says, on public safety, because these folks are going to get out one day. If they haven’t been taught, if they haven’t gotten basic skills, if there’s no plan to bring them back into society in a way that welcomes them, and in a way that acknowledges among other things their right to vote, then you’re going to have big problems.
Preet Bharara: What can you do other than having a few sort of prosecutors who think about it and talk to their offices about it and they speak publicly about it like I did in the last couple of years I was in office to have prosecutors involved on the back end? Look, some people say prosecutors are too involved in everything to begin with. Here, we’re having a discussion about how maybe prosecutors should be involved after someone is convicted of a crime related to how they’re treated when they’re in prison. How do you square that?
Rachel Barkow: I think it’s part of a prosecutor’s mission to promote public safety, to ask. If you’re going to go into court, and you’re going to ask for someone to be sentenced for some period of time, I think it’s part of your job as a prosector to ask, “Why am I asking for that period of time? What’s going to happen to that person during that length of time that I’m requesting?” If you think that you’re sending someone to a facility where they’re going to be made worse, then it’s perverse to ask for a longer stay in that place that is bad. Presumably it’s part of that sentencing determination and recommendation.
Rachel Barkow: I think the other thing that prosecutors, the public, we should just all be honest about is prosecutors are lobbyists. They’re big time lobbyists actually around the country. They are the leading lobbyist for criminal justice legislation across the board for sentencing, for the definition of crimes. They are out there, and whether it’s their District Attorney Associations or individual prosecutors in places, they are often the leading voice in a state when it comes to criminal justice topics.
Preet Bharara: Police associations also.
Rachel Barkow: Yes, exactly.
Preet Bharara: Even maybe more so.
Rachel Barkow: For sure both of them, but I’m not even sure it’s more so honestly. The prosecutors are really kind of everywhere when it comes to these criminal justice topics, and so the question is why some and not others? Why take such a vested interest in, let’s say, should we have mandatory minimum sentencing reform but not ask questions about prisons? A cynic might say, since I have said this, then you can gather I am one of those cynics-
Preet Bharara: You’re a cynic?
Rachel Barkow: … that there’s one that is in their professional interest, because having longer sentences or mandatory minimums is going to make the job of a prosecutor easier. Prison conditions actually don’t have any direct effect on a prosecutor’s daily professional life, but it is the right thing to do with the goal of public safety. I think the good prosecutor’s, people like you who say, “Hey, this should be part of our job,” we need more people who are out there doing it.
Rachel Barkow: The way I would think about it is when we sentence somebody to prison, they don’t go away forever. 95% of the people that we lock away come back and join our communities, and so prison is this kind of short-term way of dealing with what is some other underlying issue that led to criminal conduct in the first place. It’s kind of like if you blow up your credit cards. Maybe you didn’t have cash on you at the time, so you use your credit card, and you max it out. That’s your short-term solution to whatever your financial problem was. When that bill comes due with all that interest on it, hopefully you have solved the underlying financial problems or you have just made everything worse.
Rachel Barkow: That’s basically what we do with prison. We’ve kind of solved the short-term issue of whatever criminality we were dealing with, but it’s going to come due again later when they come back out. Unless we’ve dealt with the underlying problem while they’re there, we’ve just put it down the road and actually, in many cases, made it worse.
Rachel Barkow: I do think part of what prosecutors should be thinking about is that kind of end goal of public safety. I think they’re one of the few actors who are situated to know what prison conditions are like. They have that perspective on it. There’s not that many people who do. Judges, prosecutors, prison officials. A lot of this, I will say, is because we don’t do a very good job holding prison officials accountable for what happens in their facilities. That’s a whole other set of problems that I talk about in the book.
Preet Bharara: That’s a big problem.
Rachel Barkow: That is really kind of insane when you think about it. We have no accountability measures. That is a space where if you are a prison official, you are not assessed based on whether or not people come out of your facility doing better or worse, and so all of your incentives are to just figure out while they’re with you, what makes your job easier? If you, as a prison official, think solitary confinement makes my job easier right here and now because I can use it as a disciplinary measure, and you’re not thinking, “This person I’ve just put in solitary, when they ultimately get out, is going to have so much mental damage from that experience that they’re going to have a hard time readjusting,” you may not care about that as a prison official, because that’s kind of not your immediate concern. We don’t have any accountability measures for that.
Rachel Barkow: We have prison officials who not only use solitary confinement, but they take away visitation rights. They make phone calls really expensive, because they can make money off of it, but it’s terrible for keeping people connected to their loved ones and reentering later. We have all kinds of policies like that that we definitely need to realign and fix. For sure, they should have accountability. Until they do, or at the same time, I do think prosecutors are well situated to call out some of these things that they’re seeing.
Preet Bharara: There’s a lot of small things. By small, I mean not that expensive, and they’re simple things that I learned when I was working with this organization called Defy. When you get out of prison, in most places, some people don’t have an ID. They don’t have a government issued ID. You know how hard it is to open a bank account or to get a job or even apply for a job if you don’t have an ID? Costs 12 bucks on average as I understand it in most states to just give everyone who’s released from prison that simple thing. It’s a government issued photo ID that makes so many things easier, and the absence of which makes so many things harder. Yet, even something like that doesn’t get done.
Preet Bharara: To further to your point about what happens in prison, it’s not just that some of these harsh techniques and practices make people’s jobs easier, but it goes back to the central premise of your book. The infusion of politics and this desire on the part of some people to be tough. Prison guards, correction officials, don’t necessarily always like it when they see people who’ve committed a crime serving their sentence, and maybe a violent crime even, and they’re getting free class in algebra or they’re learning a trade. They can figure out how to become an electrician. Well, where’s my vocational training? Where’s my entertainment? Where’s my gym? If I go to a gym, I’ve got to pay whatever, 40, 50, 60 bucks a month so I can run on a treadmill. Why are these guys, who are supposed to be being punished, having access to a gym? Not appreciating that as an effectiveness matter those are the kinds of things among others that cause there to be less violence in a prison.
Preet Bharara: Sometimes people are promoting things that are not in the best interests not just of the inmates but also of the corrections officers. Do you find that weird disconnect?
Rachel Barkow: All the time and everywhere. I think that’s the-
Preet Bharara: Why is that?
Rachel Barkow: That’s the weird aspect of what we do. We just do so many things that shoot ourselves in the foot that way. That maybe there’s a short-term emotional satisfaction, whatever it is. Retribution, revenge, anger at someone for committing a crime and then want to take something away from them. Let’s make it so they can’t get a driver’s license when they get out, or no more public housing for them. No more welfare benefits for them. While that may satiate some short-term emotional satisfaction, because people are mad at somebody for something that they’ve done, what I hope people at least recognize is that is coming at an enormous public safety cost because you are setting all of those people up to fail and to commit additional crimes. I really hope that people can at least step back and ask, “At what price do you want to take this thing away from somebody? How much does it mean to you to take that algebra class away from somebody if it turns out that person is going to successfully reenter with it but otherwise will fail if they don’t have it?”
Rachel Barkow: I do think it requires us to ask, “What is our instrumental goal in putting people away in facilities, and how much of it is about public safety, and how much of it is just kind of this retributive desire to publish people?” There too I think it’s worth asking, “Do people even know the kinds of crimes people are committing?” The other thing is often corrections officers don’t always know what someone has done, and the public often doesn’t know. They often just assume the worst Hannibal Lector kind of person is who we have in prisons. When you actually go to them, as you have, as I have, and what you meet are a lot of people who come from really unfortunate circumstances who have had the deck stacked against them. They’ve made poor choices, and I’m not saying there shouldn’t be consequences for those choices, but these are not people who are irredeemable. These are people that have made mistakes but could be put on the right track and could successful contribute to their communities.
Preet Bharara: Agreed. To be clear, there are some Hannibal Lectors also in these [crosstalk 01:00:27].
Rachel Barkow: There are. I think the question is what in people’s minds is the greater proportion of folks. I think there’s a tendency on both sides, frankly, to have kind of a really skewed perception of I don’t think that every single person who we incarcerate can reenter society successfully. I don’t. I would say that percentage is small of the people who can’t be, but there are some, so for that reason, I find it hard to adopt an abolitionist argument that doesn’t account for what are you going to do with those people, because unfortunately they exist. In fact, when you talk to people in prisons, incarcerated people as I have, they will tell you about those people. They will say, “Well, not everyone could be out. What are you out of your mind? There are a certain number of people who can’t.”
Rachel Barkow: I think it’s the percentages. I think whereas the public might think that’s like 70% of the people in prison, I would couch the number at about 3%. It’s like 3% of the bad apples in almost any organization, whether you’re talking about a police force, a corporation, prisons, there’s a certain small-
Preet Bharara: Don’t say NYU Law School. Then I’d get really mad.
Rachel Barkow: Right. You know there’s a group of people that unfortunately for whatever reason causes a lot of the problems. The vast, vast majority we could be doing a much better job with. The hope is to get more people with that as the prototype that they have in mind, and that’s the optimistic note, which is, I do think now as more people have personal experience with criminal justice, either themselves or with loved ones, they see that, because that is their brother, their sister, their father, and they can say, “I know this person. I know this person in a way that they’re more than what they’ve done wrong.”
Rachel Barkow: You write about them in your book about cooperators and how you kind of get to see them for everything they’ve done. That’s truth of people who aren’t cooperating too, that whole gamut of people who have committed crimes. We could successfully reintegrate most of them, and that’s what we should be trying to do.
Preet Bharara: I want to talk about pardons and clemency, because you spend a lot of time in the book talking about it, and it’s much in the news also as well. First, start with this. Explain in a pithy way why it should be that an executive, a single man or woman, either a president or a governor, but an executive, duly elected let’s suppose, why should that person by able to unwind prosecutions at his or her whim essentially and have the power of the pardon, have the power of clemency?
Rachel Barkow: Clemency is critical because our system makes mistakes. Our system will tend towards too much severity and will over-punish people. That’s something the framer’s recognized when they put the clemency power in our constitution. It’s way up there. It’s right next to the Commander in Chief power. It was something they really thought was important, and when you look it’s because, as they say in the Federalist Papers, you know what? Society is going to be partake in laws that are too severe, and we need to have a check on them. They knew that from the experience in England with the Bloody Code that you had to have some kind of a mechanism, there it was the king, which could grant someone relief from those bloody codes, those laws that are too harsh.
Preet Bharara: May I just interrupt you?
Rachel Barkow: Yes. It’s your show.
Preet Bharara: Well, I try not to interrupt, but I do sometimes. The constitution doesn’t say, “Clemency in cases of mistake,” right?
Rachel Barkow: Right. No, of course not, but the question is when you try to pinpoint why you’re giving relief, that is what law is for. I think it’s the limit to be able to in advance to specify when you need it. It’s precisely for the reason. If we could say in advance all the ways that things could go wrong, we wouldn’t need it. I think you’re right, but it’s the limits of law. It’s the limits of law in advance to say, “Here’s when things will get too severe, or here’s when mistakes will be made,” because I think you can’t always foresee or specify in a written word exactly when you need it. The idea is you have this discretion, but you have it in an elected official. Frankly, if you don’t like the way that elected official is exercising that power, you can remove that official. I mean, that’s how the framers envisioned it. It wasn’t as if this was unlimited powers, because they did also envision that you could get rid of that person.
Preet Bharara: To give such limitless power, and I’m not disagreeing with you, but I have problems with how this can unfold. We’ve seen some of that in recent times. The pardon power, clemency power, can be abused. It could be abused by a president. It could be abused by a governor. Do you think that Donald Trump has abused the pardon power?
Rachel Barkow: Yes, but I don’t think it’s a reason to get rid of the pardon all together. I would also highlight it’s not the only area in our legal system in our set of laws where we have that kind of power. Juries have the un-reviewable power to acquit for any reason. Prosecutors have essentially an un-reviewable power to decide not to charge somebody. When they decide not to charge somebody, that’s it. We have these mechanisms built into our system in favor of leniency. I think they’re important because, frankly, all the other political dynamics point towards severity. For me, the key is to say, “There’s a value to the power, but it’s just as important to pay attention to how the person vested with it is exercising it.” In the case of Trump, I think it’s fair to criticize many instances of his use of the pardon power since he’s taken office.
Preet Bharara: What was the worst one?
Rachel Barkow: Oh gosh. They’re all so bad. Not all of them. I shouldn’t say they’re all so bad. Alice Marie Johnson was a great instance of clemency.
Preet Bharara: Just remind us who Alice Marie Johnson was.
Rachel Barkow: She was an individual who had been sentenced to life in prison as a first time offender for drug trafficking and money laundering, and had served 21 years by the time she was given a clemency grant by President Trump. She had applied for clemency during President Obama’s term in office, and many of had thought she was an ideal candidate for President Obama’s clemency initiative where he was targeting people in situations like hers for grants. She was inexplicably denied. Her case caught the attention of many, many people including Kim Kardashian. It was Kim Kardashian who really got it in front of President Trump and really urged him to give the grant, and he did. I was grateful.
Rachel Barkow: I’m going to say that the Arpaio pardon right off the bat-
Preet Bharara: Sheriff Joe Arpaio.
Rachel Barkow: … because it was number one particularly horrible.
Preet Bharara: Can you just remind us who he is?
Rachel Barkow: Yes. He was the sheriff in Maricopa County, Arizona who had been held in contempt of court for violating the constitutional rights of people in his county, particularly immigrants in his community, for abusing them and violating their constitutional rights. To give a pardon in a case like that right off the bat as your first one I think sends a message that this is not someone, this is not a president, who cares about the rule of law. It was given to a political crony and supporter. The way that that ends up reflecting on the president is that there’s going to be favoritism in the granting of these pardons, which we’ve seen because that was just the first of many that went to people who wrote a nice book about him, said nice things about him.
Preet Bharara: Conrad Black.
Rachel Barkow: Exactly. Dinesh D’Souza. You’ve have a whole range of people, people who have been political supporters in one way or another, and that is a bad use of the pardon power. It’s not supposed to be for that. It is supposed to be for cases that were unjust that are remedied. If you’re only giving it to your friends, that’s the definition of injustice. I do worry about some of the grants we have seen. I hope we see more like the Alice Marie Johnson type, regular people who did get disproportionately long sentences. There are thousands of people like her out there, and so we need to see more grants in cases like that.
Preet Bharara: We’ve been talking about how broad the power is for an executive, in this case we’ve been talking about the president mostly, to grant a pardon. It has been the case traditionally that the president doesn’t make the choice by himself, and there’s a process, and there are criteria, and there are guidelines. Now, a president, as we have seen, can throw all those out the window and do whatever he wants, and you at least have this process. I’ve been critical of the president for bypassing that process. Again, at the end of the day, he can choose to do what he wants. That seems not to make a ton of sense because it’s the very institution, the Department of Justice, that engaged in the underlying prosecutions themselves who’s now making the decision looking back. It may not be the same human beings, because it may have been some time in the past, but the same institution is now being asked to recommend either for or against clemency petitions or pardon petitions. Your view is it should be taken out of the Department of Justice.
Preet Bharara: As an initial matter, I presume you agree that there should be some intelligent neutral body, not withstanding the broad power of the pardon, who advises the president and general speaking the president should abide those recommendations. What’s your proposal?
Rachel Barkow: Exactly. I think there are should be a process in place, I just don’t think the people who brought the case initially are well positioned to take that objective second look. Going back to what we talked about with after you’ve sentenced somebody and kind of thinking as the prosecutor’s role as ending there, it is kind of strange to then go back the prosecutor, whether we’re asking questions about clemency or parole or compassionate release, there’s an oddity to going back to that person. If the prosecutor hasn’t stayed in touch with this person, hasn’t been kept abreast of their rehabilitation progress, they’re not really giving you any information on what’s happened from that date of sentencing.
Preet Bharara: But they do have information, because we went through the clemency program, and I sat around the table in lots and lots of meetings where prosecutors in my office were asked to give their view to the pardon attorney. Yes, they had not necessarily kept in touch, but they knew information about the nature of the crime and about other facts related to the crime, and also were able to point out falsehoods or misrepresentations made by the lawyer for the person seeking the pardon or clemency. I presume that you believe that the underlying prosecutor should be consulted and have some role in providing information, just that they maybe should not be the ultimate institution that gives the recommendation?
Rachel Barkow: Exactly right. You would want to go to them for any information you needed about that initial case and exactly the kinds of things you’re talking about, but because these decisions are really about what has changed in this person’s life since they’ve been sentenced, they’re not well-suited to answer those kinds of questions, and certainly not to be the ultimate decision maker, which effectively is how the federal system currently has it set up, because if you apply for clemency and go through the Department of Justice, and the pardon attorney or the deputy attorney General, who’s also kind of in that decision-making hierarchy decides that you don’t have a meritorious petition, it doesn’t even go to the White House. It just dies there.
Rachel Barkow: The idea would be to create a structure that advises the president that doesn’t have that bias, but, as you say, creates a process that is not who happens to be a crony of the president or Fox News happens to raise the case, but instead you have a real process with decision makers that advise the president, because the decision is still ultimately going to be his or hers to make. It’s in the Constitution that it goes to the president. We could have set up a group of people who, because I do believe in people that have knowledge of these kinds of cases, it would be good to make that a group of people who know something about rehabilitation, who know something about going through the prison process, formerly incarcerated people, criminologists, you could have psychologists on there, you could have law enforcement, you could have all the range of kinds of professional perspectives on it who create a commission of sorts that then would say to the president, “Hey, we think this person does deserve a grant.”
Rachel Barkow: Honestly, it would serve another benefit because it could create some political insulation too. It’s not an easy thing to grant clemency in many cases because of that same anecdotal you want to appear superficially tough. To be able to say, “Hey, look. I gave it to this blue ribbon panel, and they all agreed from all their different perspectives that we should give a grant.” Just for the sake of everybody understanding this system where we put it in the hands of prosecutors, that is not one we see anywhere else in the country. That is a kind of uniquely odd federal experience to put that decision into the hands of prosecutors.
Preet Bharara: Most things that we talk about today, we talk about federal system is best, I appreciate the oddity of this. Now I need to think about that more. While I have you professor, because you are indeed a professor, are you not?
Rachel Barkow: I am.
Preet Bharara: I want to ask you two legal questions about pardons. One, can a pardon constitute obstruction of justice?
Rachel Barkow: I believe that it can, just because you have the ability to grant a pardon doesn’t mean that you can’t do it for unlawful reasons in the same way that you could have the lawful ability to engage in any other number of government tasks, but it could amount to bribery or corruption of your office. I see no reason why it would be outside of the way we approach all those other issues.
Preet Bharara: Second question. Can a president lawfully pardon himself?
Rachel Barkow: That is another one of those questions that… I’m just giving you my opinion on this as opposed to…
Preet Bharara: Yes. Your opinion. You’re here. You’re the only professor here. Well, no. The only tenured professor here.
Rachel Barkow: I have to admit, I would want to go back and look at some more of the foundational documents on this one, but-
Preet Bharara: What’s your hunch? What’s your hunch?
Rachel Barkow: My hunch is no because of the inherent conflict of interest in granting a pardon to oneself. The trick or the issue that comes up in this is that it is tangled up in the idea of whether or not a president can be charged in the first place, as opposed to whether or not you need to use impeachment as the exclusive method to remove that person. You certainly can’t pardon your way out of an impeachment. It is tangled up with that particular topic.
Preet Bharara: Tangled up.
Rachel Barkow: Hopefully it won’t come to the issue that we really have to give a definitive answer to that question because it actually happened.
Preet Bharara: Yeah. Professor Rachel Barkow, thank you again for being with me and us. The book, it’s great. It’s very important. If you’re interested in the kinds of things that we talked about here and want to learn more, you need to pick up this book. Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Rachel, thanks again.
Rachel Barkow: Thanks so much for having me.
Preet Bharara: The conversation continues for members of the CAFE Insider community. Join me in this special bonus where I ask Rachel Barkow more about her days clerking for the late Justice Antonin Scalia and why she believes cameras should not be in the Supreme Court. To hear that and get the exclusive weekly CAFE Insider podcast, sign up today at CAFE.com/insider.
Preet Bharara: This week at the end of the show, while everyone is talking about elections upcoming in the US, I thought I’d talk about an election in Turkey. There was a local election for who would become the mayor of Istanbul, the largest city in Turkey. That election was held on March 31st. The president of Turkey, President Erdoğan, we’ve talked about a bunch on the show how there had been disintegrating freedoms in that country, how he has gone about becoming a little bit more authoritarian has time has gone by, and how he’s consolidated power for himself and his party, the AKP Party.
Preet Bharara: In that local election for mayor of Istanbul, President Erdoğan heavily supported one candidate from his party, but that’s not the candidate who won on March 31st. It was the opposition candidate from the Republican People’s Party, or CHP Ekrem Imamoglu. He won according to reports by the thinnest of margins, about 14,000 votes. 0.2%. That wasn’t the end of the story, because President Erdoğan didn’t like that result very much. What did he do? He used his power and effectively had that legitimate election annulled. Then they called a new one so that he and his party and his preferred candidate would win.
Preet Bharara: That second election occurred just this past Sunday on June 23rd. Guess what? The voters of Istanbul didn’t like what President Erdoğan did very much either. They voted, again, for Imamoglu. This time, instead of it being close, they delivered him 54.2% of the vote. That was a landslide. The New York Times called it, “The biggest defeat of the governing party in close to two decades.”
Preet Bharara: Why is that important? It’s important for a number of reason. Imamoglu’s victory ends Erdoğan’s 25 year dominance in the city where he rose to power as its mayor in 1994 some people say has used power from that city to fund all sorts of things that he wants to do in the country. Erdoğan has said himself, “Whoever wins Instabul, wins Turkey. Whoever loses Instabul, loses Turkey.” The victory of the opposing party has raised questions about Erdoğan’s political future and has, to a significant degree based on some of the visuals from Istanbul, renewed hopes for democracy in a country where suppression has escalated over time.
Preet Bharara: As I mentioned, Erdoğan has cracked down on basic freedoms, jailing hundreds of journalists and prosecuting his political opponents. Now, as the Washington Post, in an echo of what the New York Times said reports that the election as pierced Erdoğan’s, “Aura of invincibility.” Now people who want democracy and people who watch Turkey all are saying it’s a major blow to President Erdoğan, leaving his party weaker than it’s been since it came to power in 2002. A cautionary note, as the celebrations rage on, we need to maybe be a little careful. Not just us, but the people of Istanbul as well. There are a lot of challenges that remain ahead for the new mayor who faces hurdles both translating his victory into effective governance and also you never know what Erdoğan might have planned next. He doesn’t like to lose, and he certainly doesn’t like to lose power. For now, as we all keep a cautious eye on something going on in a country thousands of miles away, we can view it as a victory for democracy and for hope. The pendulum swings. May it swing other places too.
Preet Bharara: That’s it for this episode of Stay Tuned. Thanks again to my guest, Professor Rachel Barkow. Tweet your questions @PreetBharara with the hashtag #askPreet, or you can call 669-247-7338 and leave me a message. That’s 669-24-PREET, or you can send an email to firstname.lastname@example.org. If you like what we do, rate and review the show on Apple Podcast. Your reviews help new listeners find the show. Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton, and the CAFE team is Carla Pierini, Julie Doyle, Calvin Lord, Vinay Basti and Geoff Isenman. Our music is by Andrew Dost.
Preet Bharara: I’m Preet Bharara. Stay Tuned.
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Preet Bharara: Hey Stay Tuned listeners. It turns out the next episode of Stay Tuned drops on Thursday, July 4th, so we’re planning a special episode, and we need your help. Instead of asking me questions, I have a question for all of you. In 15 seconds or less, tell me what does patriotism mean to you? Record a voice memo right on your phone, and email it to StayTuned@cafe.com, or you can call and leave us a message at 669-247-7338. We will feature some of your answers, and I’ll share my thoughts next week. Stay tuned.