One could say our approach to crime is a failed government program on an epic scale, except for the fact it is not a program at all.
Rachel Barkow contends criminal justice policy is driven primarily by "politicized gut instincts"—a combination of fearmongering appeals to voters’ worst impulses and an aversion to evidence of what actually works. Defined by its severity and unfairness, she says the criminal justice system is counterproductive of the very goal of public safety it claims as its justification. In her new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, the NYU law professor makes a provocative case for “freeing” criminal justice from the political imperative in order to achieve real reform.
In conversation with New Thinking host Matt Watkins, Barkow explains the institutional brakes preventing anything more than "modest" improvements to the criminal justice system. She also offers a politicized reading of recent high-profile legislation such as the federal First Step Act and New York State's overhaul of bail and rules governing the sharing of evidence (the upshot: much to be applauded, but also gaping exclusions motivated by political concerns, not evidence).
"I think Americans have been sold a bill of goods," Barkow concludes, "that 'these are the policies you need to be safe, and if they cause human misery and if they lead to racial disparities, that's just the price we must all pay for safety.' One key goal for me is to make it very clear to people that's not true."
Resources and References
- The criminal justice system is averse to revisiting decisions, even when acknowledging their disproportionate severity: the AP reports on people in prison for life excluded from Washington State's "three strikes" changes (05.19)
- 'Left and Right Agree on Criminal Justice: They Were Both Wrong Before': The New York Times reports on a new, bipartisan collection of essays published by The Brennan Center (05.19)
- The Urban Institute on the "substantial" reforms still to do in the wake of the federal First Step Act (05.19)
- 'A Blueprint for a Safer, Saner Society': Prisoners of Politics reviewed in The American Scholar (04.19)
- Citing Barkow, James Forman Jr. writes in The New York Times that criminal justice reformers should pay more attention to judicial appointments (03.19)
- Barkow discusses 'What Happened to Clemency?' on The Appeal's Justice in America podcast (03.19)
- 'Michael Lewis Wonders Who’s Really Running the Government,' The New York Times reviews The Fifth Risk (10.18)
- 'Can We Wait 75 Years to Cut the Prison Population in Half?' The Sentencing Project on the too modest pace of decarceration (03.18)
The following is a transcript of the podcast:
Matt WATKINS: Welcome to New Thinking from The Center for Court Innovation. I'm Matt Watkins. Our guest today is Rachel Barkow. She is a professor of Law at New York University and the author of the new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration. The book describes a dysfunctional criminal justice system that is damaging individual lives on a mass scale, and for or all the harm it's causing, it's also a system working against the very goal of public safety it claims as its justification. Criminal justice, Barkow says, is a prisoner of politics. She makes a provocative case for the urgency of breaking free of that relationship if it's going to be anything like the root-and-branch transformation of the justice system that so many voices are now advocating for.
Rachel, congratulations on the book and thanks so much for joining us today.
Rachel BARKOW: Thanks for having me.
WATKINS: I thought we could start by setting a context for this discussion, which is the current pace of reforms. It certainly feels, to me anyway, like in recent years there's been a real uptick in the kind of recognition that this country has of there being a mass incarceration crisis. And it feels like there is an increasing number of groups that are working to try to change that situation. How much better is the criminal justice system actually getting in terms of fairness and in terms of its bloated nature?
BARKOW: It's definitely progress, and I don't want to suggest that the advancements that we've seen throughout the country are anything other than really good developments, but the pace that we're seeing them and the kinds of things we're seeing are actually fairly modest when you look at the scope of mass incarceration. There is a study that says it will take us 75 years to reduce the population by 50 percent if we keep going at this pace, and I think it is a very optimistic assumption to assume we could keep going at this pace because what we're doing right now around the country is mostly tackling the low-hanging fruit of criminal justice reform.
The things that you see are addressing marijuana possession, or changing the threshold dollar amount that you would need for a theft to be considered a felony, or we're diverting people that have no violence in their background, no sex offense, no serious charges of any kind, but we're nowhere near tackling the core of what we would have to if we really wanted to make a bigger dent into mass incarceration.
WATKINS: A good part of the book is taken up with you describing the various brakes, the things that are holding us back from getting more of a root-and-branch reform. Broadly speaking, what is holding us back from going deep enough with reforms in the current institutional setup?
BARKOW: Right now, we are subject to politics, and it's very hard to have a rational conversation about public safety and crime in a sphere of politics where one case can be used to derail entire programs and efforts. Take for example, if you're thinking about bail reform, which we're seeing—we are seeing in some places that there is a reduction in pretrial detention, and that's a good thing, but again, it's mostly taking... most places, when we're seeing it, it's addressing people who have very low-level offenses and changing bail amounts—people who are unable to pay. It's tackling the issue of using poverty as an excuse to detain people.
What we really need to think about with pretrial detention is everybody who's detained pretrial, including people who are arrested and involved with crimes that involve violence. But that is a very hard discussion to have in a political sphere because all a politician has to do, or the bail bonds industry has to do, is highlight one case of somebody who committed, or is alleged to have committed, a particularly heinous crime, and say something like, "You really want this person out on the streets?" That ends up being what the media covers. It ends up being the way in which the public sees the issue, and so it's distorting.
We saw the same thing with the debate among the Democratic candidates over whether or not people who are currently incarcerated should be allowed to vote. Instead of thinking about the entirety of the people who are incarcerated, the way that question was posed was, "Should the Boston Bombers be allowed to vote?" When you phrase it that way, it's very hard to have a conversation that really gets at the whole population of people who are incarcerated.
WATKINS: It's this sort of political fear of the one outlier case—and also I guess the political benefits that can be reaped by engaging in fearmongering, tough-on-crime rhetoric—that is leading to a lot of counterproductive criminal justice policies, I think is the argument in your book. And we can't go through all of the different elements of what's counterproductive in the system, but I thought maybe a good one to focus on to give people a sense of the argument, and that's something you just mentioned, is this issue of pretrial detention.
BARKOW: Sure, I think it's a really good example because, again, if you were to follow this in the media, you’d get the examples of the one person who, maybe they're out on bail and they commit a heinous crime and the coverage of that would be, "Why is this person out? How did the system fail us? These people should be locked up," in a vague, broad-brush kind of way. What you don't see is a story about the dangers of detaining people. In fact, what we know from empirical studies, is that when you detain somebody pretrial—and remember, they're not convicted of anything, so these are people who are awaiting their day in court—when they are detained pretrial, because these are often folks who are living at the margins…
WATKINS: …who can't afford their bail, for example.
BARKOW: Exactly, so even a few days of detention is probably for them going to be really life-altering: losing a job, losing housing, potentially losing custody of their children, losing a childcare arrangement they had worked out. It is a very destabilizing event to have to be detained pretrial for people, even for short periods of time. When scholars have looked at what happens when we detain people pretrial versus releasing them while they're waiting, the group that's detained has a much greater risk of reoffending, both felonies and misdemeanors…
WATKINS: Because we think their lives have been disrupted in this way.
BARKOW: Exactly. It makes sense when you think about it that way. I think maybe the popular perception is, "Detention is this good thing because someone who's locked away is thereby incapacitated and can't hurt you…”
WATKINS: But they're going to get out.
BARKOW: Exactly, and we see that all across the criminal justice system—both pretrial detention and just sentencing after conviction—is this lack of foresight to remember the people that we're putting in are going to come back out again, and the detention itself can be what's called criminogenic. It can create and cause additional criminal behaviors. That's true of pretrial detention, and a rational approach to it would recognize that and really want us to cut back dramatically on the number of people that we detain pretrial to be very, very few people that really need to be locked away before their day in court.
The system that we have now in most places in the United States is the opposite one, precisely because we get these news stories about the one person who offends, and then that becomes the basis on which a jurisdiction will decide, "Hey, let's be just risk averse with everybody. Let's lock everyone away."
WATKINS: Right, you're creating risk, but in a hidden way. There's no political price to be paid for somebody who commits a crime after serving their full sentence or after being detained pretrial. You only pay a political price for someone who was released pretrial or gets out quote unquote "early," right?
BARKOW: Exactly, and that's why if you were to look at our current approach to incarceration, it's kind of a big, epic failure. The recidivism rates are enormous. When we put people in prison, within five years, it's like 70 percent of the people are reoffending and committing some levels of crime. You might think, "My gosh, we would be holding all those people who supported that big, bloated government program accountable for this massive failure," but that's just not the way the politics work.
WATKINS: Right, and then another example of this irrational or counterproductive policymaking is what are called collateral consequences, which are the conditions, financial or otherwise, that are put on people after they've served their sentence and after they've gotten out, and there are literally tens of thousands of those that are making it harder for people to restart their lives after this disruptive period. In a sense, again, it feels like we're setting people up to fail?
BARKOW: Absolutely the same dynamic, where you will have a jurisdiction decide, "why should a high-level drug dealer be allowed to be in public housing? Why should someone who commits a homicide ever be able to get food stamps or welfare benefits?" So, these kind of cases of the most serious sorts have been used to justify all kinds of collateral consequences like making people ineligible for public housing, even though many people who come out of prison are immediately homeless and it's really important to have housing to reduce their risk of offending.
Similarly, the idea of giving public benefits or driver's licenses—that's another one where in many states, it's about 18 states now, you lose your driver's license for a drug conviction. Well, in those states, most of those states have very poor systems of public transportation, and so not having a driver's license means these people now can't drive to a job and there's no public transportation. They're faced with this choice: Should they drive on a suspended license and risk getting rearrested for that? Or, no work, which again sets them up for failure.
These policies that are usually in the political sphere and discussion driven by a kind of... I don't want to say revenge, but the idea of, "Let's take away a privilege from somebody. They don't deserve this. Once you commit a crime you don't deserve these things." That discourse ignores the fact that if we're going to do those kinds of things, we're making all of us less safe as a result of that.
WATKINS: It sounds to me like for you there's an ethical imperative here, but then there's also the sort of just straight cost-benefit analysis of it all.
BARKOW: Yeah, I think it's both, and honestly, I think in the politics of this, while I do think you can get a lot of traction and get public sympathy to some of these cases just by the humanity that's at stake and the racial disparities and the fact that it's targeting poor communities—I think there's something to all of that. But honestly, politically speaking, I think an even more persuasive argument for people is it's not making us safe. I think Americans have been sold a false bill of goods here, that “these are the policies you need to be safe, and if they cause human misery and if they lead to racial disparities, that's just the price we must all pay for safety.”
One kind of key goal for me is just to make it very clear to people that's not true. That, in fact, these policies undermine public safety more often than not, and so if you're going to keep pursuing them, then you should at least do it with full knowledge that they're not achieving safety. The only thing you're getting from them, then, is whatever that emotional satisfaction is of putting them in place.
WATKINS: If we look at what's actually going on inside the institutions where people are incarcerated, it seems like a sort of quiet protagonist, if you will, of your story is the concept of rehabilitation and what happens to that notion over the decades that you're writing about. Could you talk a little bit about the kind of vagaries of rehabilitation within the corrections system? Again, how this is just leading to irrational, counterproductive outcomes where we're just not setting people up to reintegrate?
BARKOW: Yes, so unfortunately, I think rehabilitation got a bad rap in the 1970s. There was a famous paper entitled ‘What Works?’ and the conclusion of it was essentially, "Well, nothing is really working to rehabilitate people."
WATKINS: Which was a useful message for people who wanted to make that political case at the time, I would imagine.
BARKOW: Exactly, and I think what was not paid much attention to was, well, those things weren't working because they were underfunded and they were put in place in terrible conditions. There were a variety of caveats that should have been attached to that because, in fact, there are things that work, and there are things that we know that work well, but I think there is a large segment of politicians and the public who think nothing does work, there are some people who are irredeemable, and I think they think it's a large group of people who are. I think there's also a sense of, "Well, why invest in things like that when we should be investing, again, in these law-abiding people?"
For example, if you take something like education for people who are incarcerated, that is a fantastic investment for public safety…
WATKINS: That's an evidence-based, fantastic investment.
BARKOW: Absolutely. It's just no contest there, we just know it. It's a really good thing to provide education for people who are incarcerated. It dramatically lowers their risk of recidivism. It's really the ticket for many, many people to get on a path where they can turn away from any kind of criminality.
Again, I think when you look at the dynamic of prisons, we don't hold our prison officials accountable for anything that happens inside of those prisons. It's not that we ask, "Oh, hey, how did your prison do at rehabilitating people? What's your recidivism rate for people coming out of this facility?" We never do that. We do not hold corrections officials responsible for that, and so it's no surprise that they don't care. That's not what's measured for them.
WATKINS: Do we have a sense of the national picture of how many people in prisons or jails currently have access to programming?
BARKOW: Oh, it's really abysmal. The statistics are kind of frighteningly low. Even with the passage of the First Step Act that recently passed—a federal law that would give people who are incarcerated credit for participating in programming—one of the big black holes of that legislation is the lack of funding for the programming, and it's not currently being offered. It's a big question mark whether or not people will actually be able to obtain those credits because in order to get them, you need to have the programming in the first place. It's just absent at the federal level and it's also absent throughout state facilities as well.
WATKINS: Actually, I wanted to go through a few recent reforms that have been hailed as real progress, and then have you play your role of wet blanket and tell us where they fell short. Why don't we start with the First Step Act, which was greeted rapturously by some quarters of the media as this most sweeping and significant criminal reform legislation at the federal level, but you also see some really significant and telling shortcomings in the legislation.
BARKOW: Yeah, so I'll start by saying I do think it was a positive thing to be enacted, and it's changing real lives. You read about the stories every day, and they're really amazing and wonderful, and there's tireless advocates out there working to get people released from the provisions that allow it in the Act. All of that is great. But I think it's important to be critical of what it doesn't do because I think no one should think that that in any way, shape, or form is a game-changer in the federal system because it's not. Again, it's one of these pieces of legislation that I would put in that category of low-hanging fruit.
What did it do? It, for starters, has one retroactive provision in it, which is when Congress changed the ratio of crack cocaine that you need to trigger various mandatory minimums in 2010. Previously, there was what was known as the 100-to-1 ratio where you needed a hundred times the quantity of powdered cocaine to trigger those same mandatory minimums, and Congress after two decades of seeing racial disparities and really insanely long sentences being handed down to predominantly black men, finally changed that ratio in 2010. Now, you need 18 times the quantity of powder cocaine, so still not one to one, even though they're chemically indistinguishable, but again, still a good compromise, still a positive development.
When Congress made the change, it didn't make it retroactive. The First Step Act put in place a retroactive provision that allows people to go into court and say, "Hey, I'm serving under this old crack sentencing law. I'd like to get the benefit of the new 2010 adjustments." A judge can look, make sure they're not a public safety risk, and give it to them. But that was the only retroactive adjustment in the legislation and it had changed various other mandatory minimum laws.
The problem is we still have people serving those very sentences right now in federal prison. Why were those not made retroactive? That was your classic example of politicians getting up and saying, "You're not going to release these violent drug offenders early are you? There'll be blood on your hands." They said things like that in the legislative debate and it was really impossible in that climate to get the votes to get that kind of retroactive provision. That's a major shortcoming.
WATKINS: Well, it seems like a theme of the book that the system is so reluctant to look back on its decisions and rethink them and maybe admit when mistakes were made, or when people have changed, for example.
BARKOW: I mean, imagine if you lived your own life like that, where you would just never rethink a decision, that you would never say, "Oh, yeah, I'm going to rethink a decision that I made." You'd be wearing moon boots and powder jackets your entire life, if you're of my generation, anyway, because normally you think, "Okay, people change over time." You'd want to reevaluate based on what you learn about crimes, about people, but in criminal law, it's this weird time warp where we just keep in place decisions, and we just don't rethink that, which to me, again, it's just inhumane, but it's also this weird kind of, "Why would you spend money to keep incarcerating somebody for that when you could use that for better things?" It's kind of the dual track in my mind of both inhumane and stupid, I guess is how I would put it…
WATKINS: That's an episode title right there…
BARKOW: …a very sophisticated term that I’ll use to describe it! The other thing I did want to point out about the First Step Act, which has this hallmark again, is there's a whole section that... In addition to these sentencing adjustments that were made going forward, it has this provision in there that we should give people the opportunity to participate in programming and earn time off their sentence, which I think is a good thing. The aspect of it, again, that just defies the empirical evidence is Congress made the decision to make a whole bunch of people ineligible for this programming.
If you have various crimes of violence or terrorism or sex offenses, you just can't participate. What's again not wise I would say about that is the evidence teaches us that's the group that needs it the most. That's exactly who you want to have taking all of these kinds of programs, but instead, it's available for these low-risk categories of people. They don't need it, and you get a lot more for your investment in the programs to make it available to the people who have committed the more serious offenses, but politically, it's hard to justify giving it to those folks. So, Congress made them ineligible, and as a result, we only have the low-level folks who can participate in any of the programming, which gets it completely backward as a public policy and kind of sensible public safety strategy.
WATKINS: Right, because again, those people that we further pushed out into this outer ring of darkness, most of them are going to get out.
BARKOW: Right, exactly. Ninety-five percent of the people who go into prison come back out into society again. We really should be thinking about that and what we're doing to prepare them for that.
WATKINS: How about a similar Rachel Barkow reading of the recent bail reforms in New York State, which were sweeping on some level, right? We have bail taken away as an option for most misdemeanors, low-level felonies… But how do you read, again, the shortcomings of the Act politically?
BARKOW: I'm going to come across as really pessimistic, I can tell.
WATKINS: Well, that's why we brought you in here.
BARKOW: This one is better, I will say, so I'm going to start off by saying this does some really great things. One thing it does is New York went from being one of the worst states in the entire country when it came to discovery, to now being at the forefront of being among the best.
WATKINS: These are the rules governing how prosecutors share evidence with defense attorneys, so defendants can know what it is the state has against them.
BARKOW: Exactly, because before, if you were a defense lawyer and a defendant, you didn't get access to the information that prosecutors had—including exculpatory evidence, including evidence that suggested someone else committed the crime and you didn't do it. You wouldn't get that till the eve of trial.
WATKINS: Right, trial by ambush.
BARKOW: Exactly. If you were trying to decide, "Should I plead guilty? What should I do?" You were just doing it in the dark without really knowing what the case against you looked like, and this legislation now gives defendants and their counsel access to this information early and at a point that they can make sensible decisions about pleas. That's great.
The other big chunk of the legislation was bail reform, so again, making it easier for people to be released pretrial, which as you now know, I'm a big fan of because the evidence points that's a really great thing to do, but it's limited. Again, they really had to end up, to get it passed, they had to limit it to a category of people who didn't commit violent offenses or what's categorized as violent offenses.
WATKINS: Which is very expansive...
BARKOW: Exactly, and that's one of the problems is we also don't have a very nuanced discussion of what is and isn't violent in a given case. It could include taking a package out of a vestibule in one of these New York City apartment buildings, because there might be someone on the sixth floor when somebody dives in there and grabs it.
WATKINS: When a homeless person goes in and takes an Amazon box, that ends up being classed as a violent felony.
BARKOW: Exactly, because occupied structure. I think the bail reform did not go as far as it should have because of things like that. I think one thing that's telling that I've seen other people point out, Scott Hechinger among others, is the Kalief Browder story was one of the impulses behind this movement to have bail reform. He was detained in Rikers Island for allegedly stealing a backpack and couldn't make his bail.
WATKINS: And refused to take a plea.
WATKINS: And consistently denied the charges.
BARKOW: Yeah, and ultimately, the experience was so deteriorating on his mental health, he ended up killing himself and it was really…
WATKINS: After three years of detention.
BARKOW: …a horrible story about just the awful atmosphere on Rikers and the way in which we detain people because they can't afford to pay and how it's hard to assert your innocence because of the pretrial detention threat. It really encapsulated so many of the problems with the system, and I think was one of the catalysts for reform. I really think it helped, but the irony is he may not have been eligible even after this Act passed for pretrial release because of the way they categorize the offenses.
Again, I think it's a good thing and it should be celebrated, but I think we still need to do more. I guess that's what I would put as the key takeaway. It's kind of like, if you're on a diet and you lose that first quarter of a pound and you're like, "Yes, okay, it's working, I'm doing something right," but if your goal was to lose 50 pounds, you can't exactly celebrate and stop. The hard work is really to come, and I think that's where we are with criminal justice reform.
WATKINS: You have this fear that the criminal justice system, and a pretty well-grounded fear with all the evidence that you present, that the criminal justice system has been captured by politics, and to the detriment of everybody who ends up being captured by the criminal justice system. But your fear or distrust of politicians also extends somewhat to voters. Can we talk a little bit… I don't know if I'm being unfair to you to portray it as a fear of voters, but could we get into that sort of package of misgivings?
BARKOW: Yes, so not necessarily a fear of voters any more than I would say the framers of our government had a fear of voters. We do not have a pure, direct democracy where people vote on anything and everything because the framers recognized that that does not lead to great outcomes. And oftentimes, when we're trying to pursue policies to achieve public safety, I think it is not always the case that the public writ large, and just a direct vote, is best positioned to make decisions about that because they can be easily misled by what might be a gut reaction or instinct to something, or these outlier cases that politicians bring up, can really lead them to support policies that really won't actually be best for public safety.
I think the ideal way to set up criminal justice policy-making is at least to make very clear what would be the policy that would be best if our goal was public safety, and then if the public decides it does not want to do that, it would rather pursue a different policy because there are other interests at stake that it cares about more, then fine. That is the government we live in and I think that's a good thing. I just don't think people are given that choice right now. I think they are falsely misled to believe that whatever satisfies a retributive impulse that they might have is also great for public safety, and no one is talking to them about the trade-offs.
No one is explaining that actually this thing that you might want to do right now because you're thinking about the case that you just saw on the news that was really heinous and awful... You want to take away some kind of program for somebody because you're thinking about that case you just saw on the news, no one is explaining that actually that program is going to be made available to hundreds of thousands of other people who have committed far less serious offenses and will really benefit from that program and, in fact, will commit fewer crimes later if we let them participate. That's just a discussion we don't have.
WATKINS: Well, so how do we set up a mechanism for making criminal justice decisions that is insulated from politics? And what is the evidence that that could actually work?
BARKOW: I think we could take some examples from places where it's already working in states. Sentencing commissions get a very bad rap in the United States, largely because the Federal Sentencing Commission—which full disclosure, I was on there for a few years— basically after Congress set up the U.S. Sentencing Commission, federal sentences went way up, they became more severe. And so people blamed the Sentencing Commission for that as opposed to looking and saying, "Well, wait a minute, how did that happen?" Oh, because Congress, before the initial Sentencing Commission could even act, passed a bunch of laws in the 1980s increasing sentences and ordered that initial Sentencing Commission to increase sentences for drug and white-collar offenses. What people have ignored is that there are states that use sentencing commissions and the story there looks nothing like that federal experience.
The story there is much more positive. We have states like Minnesota, North Carolina, Washington, that have created sentencing commissions, and when they were established, the legislature said to those through their legislation, said, "Hey, we would like you to take into account the evidence and data and also our existing prison capacity. We'd like you to help us keep costs down, incarceration rates down. Work within the capacity we have. If it turns out that later we'll need to authorize more money to build more prisons, we'll cross that bridge when we get there, but we want you, agency, to work within the existing capacity that we have."
That capacity constraint has worked wonders for these jurisdictions because what it means is that when agencies look at the data and evidence and they come back to their legislative body saying, "Hey, look, you may want to increase the sentence for, 'insert crime of the day here,' but if you do, we'll go over our existing capacity, so you will need to reduce sentences for something else. You're going to need to make a tradeoff." It has that rationalizing effect, so instead of thinking you have unlimited funds to spend, now, you have to work within your existing resources. The result of that has been that states with commissions are able to lower their incarceration rates and lower their incarceration expenditures while keeping crime down, by the way. It's not the case that in states that have done this we've seen an increase in crime, we haven't.
WATKINS: A lot of the concern, then, is creating these buffers, insulating decisions from political control, but then in some ways, the most exciting recent reform movement has been about activating voters and educating them about their power in terms of changing the criminal justice system, and I'm referring to this so-called "progressive prosecutor movement,” where we have seen voters... we've seen active campaigning and then voters electing people who have control somewhat over local criminal justice systems making real changes. There it feels like the effort is not so much to insulate things from politics, but to actually shift the political discussion somewhat and shift the cost-benefit analysis of making these kinds of decisions from politicians.
I realize it's not an either-or for you in terms of insulating versus shifting the politics, but what's your take on the significance of this progressive prosecutor voter mobilization movement?
BARKOW: Right, and I think it's really important your point that it's not either-or. As criminal justice reformers, we can walk and chew gum at the same time…
WATKINS: In our moon boots and our powder…
BARKOW: …in our moon boots and our powder jackets! I think we should be, for sure, trying to change the politics, trying to educate people, trying to get other stories out there so that the discourse looks different. I think, frankly, we won't get the other insulating reforms unless we do that because that requires political effort and legislative changes anyway. Absolutely it should be, I would say, the kind of two-prong strategy where you try to improve the politics, but I really think it's important when you do that to focus on institutional changes. Use that political mobilization and grassroots activity to ask for the kinds of things that are likely to be more durable. I would say this progressive prosecutor movement is a great example of that.
So, if you take someone like Larry Krasner, he points out that his mobilized base of people who got him elected, he really credits in particular black women, and he says that's because they've seen this problem from all of the dimensions. They probably have a loved one who is incarcerated. They probably have a loved one who has been a victim of crime, and a loved one who is a police officer. They kind of see the whole range of things, and so they know what we're currently doing isn't working well and they want to do something different, and so they've really helped support and get out a voter base to have him elected.
You can see that around the country in these elections. I would put it at around two dozen maybe, where we've seen these prosecutors come in on these platforms of change with varying degrees of ambition as to how much change they want to put in place.
Here is where the cautionary note comes in, so the wet blanket is coming on, which is I think it's really important that these prosecutors be supporting the kinds of changes that are, again, these kinds of durable improvements…
WATKINS: More structural change, which is really your concern.
BARKOW: Exactly. Not just what they themselves, while they hold the office, they'll say, "While I'm in this office, I'm not going to charge shoplifting cases," or, "I'm not going to charge people for marijuana possession," because as soon as that prosecutor loses the next election, that policy can go away with the next person who's elected. Even while they're there, frankly, it might not even be implemented by their line attorneys because they have to have really good chains of command and supervision.
Instead, the kinds of things I think are more durable... so, still could do all those things, but I think the kinds of things I look for from these folks is: what are they doing to really change underlying structures? Are they supporting the massive reduction in pretrial detention? Are they out there saying, "We should no longer have cash bail?" Because we shouldn't and there's really no reason for them to support it if they are looking at the data and the evidence on public safety, but very often prosecutors don't come out in favor of reducing pretrial detention or eliminating cash bail because, frankly, those things make their job easier. People who are detained plead guilty just to get out of there.
They'd have to fight against some of the pressures of the job itself and really recognize these broader concerns, so to my mind, they should still be leading the way on that. They should not want to see mandatory minimums in their jurisdictions anymore.
That's the kind of thing I look for. More of that than just rhetoric like, "Hey, I'm really progressive. I'm progressive and I won this election because I'm not going to give you the same tough on crime, I'm going to be smart on crime." Well, I do think we have to look at, when you say smart on crime, what do you mean specifically?
WATKINS: The book I think has a real ethical core running through it. As I said in the introduction, the book is about how this irrational system is really destroying a lot of lives and you and I talked before the recording started about how you're hoping that your book comes out in paperback, really so that people in prison can access the book, because hardcovers are not allowed into prison and you've had a lot of requests from people wanting this kind of information. That ethical core really comes through, but it's also, of course, a book about the power of randomized control trials and cost-benefit analyses, and in some ways... I mean, a hymn is too strong a word, but to sort of the power of expertise and coolly rational decision-making.
But in the midst of you researching and preparing this book, you have the election of Donald Trump, which is in many ways an attack on the very notion of expertise. Michael Lewis has written a whole book about how the Trump administration is just trying to systematically dismantle any form of expertise in the federal government. I don't know how that erupted into your writing process, if it erupted at all, I don't know.
BARKOW: It's depressing, I will say. I just think it's sad for there to ever be a contestation over whether knowledge is a good thing. I think when you get to a point in a civilization where there's an actual debate over whether or not it's a good or a bad thing to look at science and evidence, you're in a pretty bad space in terms of cultural development.
And it did strike me as I was writing this. The irony was not lost on me, that I'm trying to make the claim that all the benefits that we've gotten from knowledge and studies, let's use it in the space we haven't used it before, while at the same time it seems like we're ceasing to want to use it in spaces where previously it's made our lives so much better. I think sometimes people just need to be reminded of the horror that comes from not looking at the information.
As a kind of paranoid personality type, I do really well with worst-case scenario thinking, so I can sort of play out in my mind, "Well, of course you'd want to avoid this bad outcome here if that's what the information tells us." I think there are other ways that people think about things that sometimes they really need to be reminded of what the world looked like before we used better information and knowledge. We're living in that world sadly now for criminal justice, and my hope is decades from now, people will look back and say, "Can you believe it? Can you believe that there was a time when people just decided these policies based on nothing more than gut instinct and never bothered to look at information about what works?"
The other kind of... I'll end on a happier note—the slightly damp blanket as opposed to the sopping wet one—is that I do think as you start to do some of these things, they do make the case for themselves. The Federal Sentencing Commission, before it reduced all drug sentences—previously it had done it just for crack cocaine offenses—had some reductions there. And we could look at five years of data to see, "Oh, look, recidivism rates did not go up." It didn't mean the end of pleas, it didn't meant the end of cooperations, there was just no cost to doing this, just benefit. I think that enabled the Commission to then vote for the changes for all drugs. I think that'll then create a record for the next retroactive change that comes in.
I think Texas and North Carolina using broader discovery rules paved the way for New York, which will pave the way for other places. I do think there's a way in which knowledge makes the case for itself, it's just sometimes hard in a political environment that tries to suffocate that information.
WATKINS: Well, I do think that if people decades from now look back and want to get a sense of so much of the folly of criminal justice decision-making right now, your book would be a really valuable guide for doing that. Congratulations again on the book, and thanks for making the time to come in here today.
BARKOW: Oh, thank you so much.
WATKINS: I've been speaking with Rachel Barkow. Rachel is a Professor of Law at New York University and the author of the new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration. For more information about this episode and Rachel's work, visit our website.
Technical support today from the perspicacious Bill Harkins. Samiha Meah is our Director of Design. Emma Dayton is our VP of Outreach. Our theme and incidental music is by Michael Aharon at quivernyc.com, and our show's founder is Rob Wolf. This has been New Thinking from the Center for Court Innovation. I'm Matt Watkins, thanks for listening.