'Charged' Explains How Prosecutors And Plea Bargains Drive Mass Incarceration

Apr 10, 2019
Originally published on April 11, 2019 12:58 pm

The U.S. prison population is booming. It is estimated nearly 2.2 million people were incarcerated in America in 2016, and as many people in the U.S. have criminal records as have graduated from four-year colleges.

Journalist and Yale Law lecturer Emily Bazelon attributes America's high incarceration rates to prosecutors more than judges. She says that in the 1980s, when crime was on the rise, legislators across the country passed laws with mandatory minimum sentences that have disproportionately affected black and brown communities.

"That set up prosecutors to be able to determine the punishment by the charge they bring in," Bazelon says. "And so we're still living with that change — even though crime has really fallen since that time."

Bazelon notes that the majority of court cases — more than 90 percent — end in a plea bargain rather than a trial, which gives prosecutors even more power.

"You see this kind of haggling over plea bargains in the hallway, not an open court," she says. As for a defendant's guilt and innocence? "Honestly, people don't even really talk about those things."

Bazelon spent 2 1/2 years reporting on the Brooklyn district attorney's office. Her new book, Charged, examines the power of prosecutors and looks at alternatives to bail, plea bargains and incarceration.


Interview Highlights

On why so many cases end in plea bargains

Plea bargains keep the system moving much more quickly. They are far less time-consuming in terms of hours in court than a trial. And so you've really seen them take over the system. Justice Anthony Kennedy several years ago said for the Supreme Court that plea bargains were not an adjunct to the system, they really had become the entire system. When you think about the criminal justice system the founders of our country designed, that's just a sea change. Trial by jury — it's in the Constitution, written into the Sixth Amendment, [but there's] nothing about plea bargains.

On how prosecutors' focus on winning convictions is linked to mass incarceration

We put prosecutors in this arguably difficult position. We tell them that it's their job to win convictions. We also tell them that they are obligated to be ministers of justice. Good prosecutors know how to balance those ethical responsibilities, but it's not always easy to curb your instinct to win. And so I think when prosecutors abuse their power, what we're seeing is a real tension in this dual nature of their role.

On the ways the criminal justice system unfairly targets poor people

We have so many people who've gotten tangled up in the criminal justice system. And for misdemeanor offenses, often we're not talking about jail or prison sentences, but we are talking about other consequences where you have this notation on your record that can really affect the opportunities that you have going out from there.

So I think those costs are leading people in the reform movement to really question why we criminalize certain behavior and not others. So for example, fare beating, turnstile jumping: Those are things people get arrested for. Well, if you're a driver of a car, a more middle-class person, [and] you blow through an E-Z Pass on the highway, you're not going to get arrested. You're going to get a fine. So we have different ways of punishing different classes of people for minor kinds of wrongdoing that have a tremendous impact on people's lives.

On how bail works

Here's how for-profit cash bail works in New York: You go in front of a judge; say he sets bail at $15,000. That's standard for a gun offense. You then can pay it at that moment if you have the cash, but of course most people don't have that amount of cash sitting around. And so then they have to go to a bail bondsman.

Usually, you work out a deal where you pay the bondsman 10 percent. Then the bondsman doesn't actually pay the court anything. They just go to the court and say we'll guarantee that if this person flees we will pay that amount. At the end of the case, if you have come to all your court appearances as almost everyone does, you're supposed to get your money back at the end. But I did not see people getting any more than, like, $60, $50 back when they completed this process. ...

But, in fact, we know from Washington, D.C., which has been doing it differently for years; from the state of Kentucky, which has a different system, that cash bail is not necessary to bring most people back to court. Most people, you just ask them politely to come back to court. You send them reminders, you connect them with support services if necessary and they'll come back, because they know it's going to be bad for them to have a warrant out there for their arrest.

On what happens to defendants who cannot afford bail

If you can't make bail, you go to jail. And we have probably about 6 million people every year in America who are sitting in jail because they can't afford to post bail and get out, sometimes for very minor offenses.

This is just a hidden cost of our system that we've tolerated for a long time. The question I would ask about it is why people are sitting in jail if they don't pose a threat to safety? ... I mean, if you are accused of marijuana possession, for example, and the judge asked you to post bail and you're poor and you can't post it, well you're going to jail where someone who was better off would not go to jail, and that has nothing to do with public safety. ...

We really have a system that treats people differently based on the amount of money they have — and that seems fundamentally wrong, and yet it drives our whole pretrial system. - Emily Bazelon

We really have a system that treats people differently based on the amount of money they have — and that seems fundamentally wrong, and yet it drives our whole pretrial system.

On the new reform movement to curtail mass incarceration

This is a new movement that has really bubbled up in a bunch of cities since 2016. What you see here are people who want to reduce and end mass incarceration, realizing that they have the power to elect a new kind of prosecutor. These are local elections; voters decide [who the district attorney is], and if you're organized, you can have a big impact on these races.

So then these new DAs have come into office and they answer to a different constituency. It's not the old, you know, drum beating of law and order. The people who voted for them are saying, "We want the system to be more fair, to treat victims and defendants better. We want prison and jail to be a last resort rather than the default all the time."

And so these prosecutors are using their discretion in a different way to try to change the system. They can change the way they charge people. They can stop asking for bail in a lot of circumstances or all circumstances. They can decriminalize certain offenses, like jumping a turnstile or possessing marijuana. So you're seeing the great power that prosecutors have harnessed in a new and different way.

Sam Briger and Seth Kelley produced and edited this interview for broadcast. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the Web.

Copyright 2019 Fresh Air. To see more, visit Fresh Air.

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. American prosecutors have breathtaking power, writes my guest Emily Bazelon. She says, quote, "This has led to disastrous results for millions of people churning through the criminal justice system. Over the last 40 years, prosecutors have amassed more power than our system was designed for, and they've mostly used it to put more people in prison, contributing to the scourge of mass incarceration which continues to rip apart poor communities, especially if they're mostly black or brown," unquote.

But now there's a new movement of prosecutors trying to reform the system. Bazelon's new book, "Charged," is about how prosecutors have come to play a greater role than judges in determining the outcome of many cases. The book is also about prosecutors who are initiating and implementing reforms in charging, setting bail and finding alternatives to jail and prison time. Bazelon is a staff writer for The New York Times Magazine and teaches at Yale Law School.

Emily Bazelon, welcome back to FRESH AIR. So you write that much of the time, prosecutors more than judges control the outcome of cases. How do they do that? How do they have that much power?

EMILY BAZELON: What has happened in the American justice system is that the key decisions have moved to charging the crimes that you're charged with and then to plea bargaining. Almost all cases in which there are convictions end with a plea bargain, not in a trial. Charging and plea bargaining are decisions that are made by prosecutors, not judges.

And what - the sort of origin of this comes out of the 1980s. Lawmakers across the country were responding to rising crime, and they passed a lot of laws with mandatory sentences. That set up prosecutors to be able to determine the punishment by the charge they bring and the plea bargain that they agree to. And so we're still living with that change, even though crime has really fallen since that time.

GROSS: And you write that few cases or comparatively few cases actually reach trial because there's so many plea bargains. Why are there so many?

BAZELON: Well, plea bargains keep the system moving much more quickly. They're far less time-consuming in terms of hours in court than a trial, and so you've really seen them take over the system. Justice Anthony Kennedy several years ago said, for the Supreme Court, that plea bargains were not an adjunct to the system. They really had become the entire system. And when you think about the criminal justice system the founders of our country designed, that's just a sea change, right? I mean, trial by jury - it's in the Constitution, written into the Sixth Amendment - nothing about plea bargains. And yet in most state courts, something like 98 percent of convictions are obtained through plea bargains.

GROSS: And the prosecutor sets the terms of the plea?

BAZELON: Yes, exactly. I mean, the judge has to sign off on the plea. But when the prosecutor charges the crime, they're really setting a baseline, right? And so, you know, often prosecutors have a menu of choices. There's a particular offense that's been committed, but you could charge it maybe as trespassing or you could charge it as breaking and entering. Those different offenses carry very different punishments.

If the prosecutor charges the maximum possible charge, which is often where they start, then they have much more leverage to obtain a plea bargain because you have people facing prison time, and they know that if they go to trial, they will be much more likely to go to prison or go to prison for a longer time than if they agreed to the deal the prosecutor is offering.

GROSS: You write that a lot of opponents of the system right now, as it stands, see plea bargaining as inherently coercive. How so?

BAZELON: Well, I think we imagine the justice system as one in which the defense and the prosecutor are on an even playing field, and the judge is up above them. Like, if you imagine a triangle, that - those would be the points of the triangle. But in fact, because prosecutors control charging, as well as the whole state's apparatus of investigation, right? I mean, the police work for the prosecutors, so they're the ones who are providing the underlying facts for the case. When you take all of that power, you see that defense lawyers and defendants really have nothing like that kind of equal power, and so that's why there is this concern that plea bargaining can be coercive.

GROSS: And you also offered with this choice, like, plead guilty to something, even - to accept a lesser sentence than you might get if you go to trial. But a lot of people plead, even though they maintain their innocence, because they don't want to stay in jail so long awaiting trial.

BAZELON: That's right. So we have two different issues here. One is proportional punishment - are people taking plea bargains because they're so afraid of a huge sentence that they're agreeing to a deal that, you know, seems like the threat they're facing is just way out of line with the misconduct. And then there's this problem of innocent people pleading guilty. So we know of the wrongful convictions that have been recorded, that 18 percent of them involve people who pled guilty, which suggests that this is real pressure that's being brought to bear. Those are cases in which serious crimes were alleged, right? Wrongful convictions - you're usually talking about a murder.

There also are lots and lots of misdemeanors that go through the system - everyday, ordinary court - you know, quickly, in which we don't know how many people who didn't do what the police are alleging are pleading guilty because they just want to get out of there, and they don't want to sit in jail, just like you said.

GROSS: So you write that over the past 40 years, prosecutors have amassed more power than our system was designed for. What are some of the tools - you've spoken about plea bargaining - but what are some of the tools that prosecutors have now that they didn't have before?

BAZELON: Well, first of all, there's just many more prosecutors than there used to be. So we are talking about an increase in volume. And second of all, I think the mandatory sentences that a lot of lawmakers passed in the '80s and '90s really changed the balance of power. So once you have this menu of charges, if you're a prosecutor, you can choose from, once you have a mandatory sentence that you can charge, you're the one that's really going to determine the outcome of the case.

So for example, I did a lot of reporting in a specialized gun court in Brooklyn. In New York State, possession of a gun - straight up possession; you don't use the gun. You don't have a criminal record - the maximum charge, if the gun is loaded, is 3 1/2 years mandatory minimum prison sentence. That is a hefty sentence to be facing. Now, the prosecutor can also choose a misdemeanor if he or she chooses, but by setting this high baseline, you can see how the prosecutor can really determine the outcome of a case.

So one of the first days I was in gun court, I was watching this 19-year-old guy named Zamir (ph). And the gun in his case, it had been found in his grandmother's apartment. It wasn't actually loaded. But he was still facing a felony charge. And one tactic that defense lawyers do still have is delay. So there'd been about a year that had elapsed between Zamir's arrest and this day in court, and during that time, he had taken a pipe fitting class, he was training for this trade, he's also done other diversion programs to kind of prove that he didn't deserve to go to jail or prison.

So the judge looked at the prosecutor, and she said, you know, basically, I really don't want to send this guy to jail. Can you drop this charge down to a misdemeanor so that I don't have to, so that he's not facing mandatory prison? And the prosecutor looked at her notes, and she just said, nope, sorry - not even sorry, just, no, I'm not going to do that. And so the judge had to sentence Zamir to jail. And you know, I talked to him as he was going off in handcuffs, and he said, look, like, I'm not going to be able to practice the trade I just trained for. I feel like my life has really been ruined here.

GROSS: You suggest that a lot of prosecutors define success as winning, which is understandable, but that has implications for justice.

BAZELON: Absolutely. You know, we put prosecutors in this arguably difficult position. We tell them that it's their job to win convictions. We also tell them that they are obligated to be ministers of justice. Good prosecutors know how to balance those ethical responsibilities, but it's not always easy to curb your instinct to win. And so I think when prosecutors abuse their power, what we're seeing is a real tension in this dual nature of their role.

GROSS: You know, and talking about powers that prosecutors have now that they didn't have before, you also bring up a couple of Supreme Court decisions that have increased the power of prosecutors.

BAZELON: Yes. One of the Supreme Court decisions that I was really interested in and didn't know about before I started my reporting is called Bordenkircher v. Hayes - not super famous, but it's from 1978 - involves a man named Paul Hayes. He was a horse groom in Kentucky. He was trying to take care of his younger brothers and sisters and his mom, who was ill. And he stole a check and then used the check to buy $88.30 worth of groceries.

So the prosecutor wanted him to do five years in prison. That was the plea bargain offer. Hayes said, I want to go to trial. And the prosecutor said, well, wait a second. You have two prior offenses on your record. So if you make me take this case to trial, I'm going to charge this as a third strike, and you're going to be facing a life sentence.

So Hayes took the gamble, and he lost. He lost at trial. He was sentenced to life. He appealed for mercy to the Supreme Court. And the Supreme Court said, basically, tough - this idea that while you were free to bargain, you are on a level playing field with the prosecutors. And there isn't going to be any kind of limit on plea bargaining, no constitutional limit to what a prosecutor can threaten. So that's a kind of important moment in the development of the power of prosecutors, even though the Supreme Court didn't say in that moment that that's what they were doing.

GROSS: Let me reintroduce you. If you're just joining us, my guest is Emily Bazelon. Her new book is called "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration." We'll be right back after this short break. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Emily Bazelon. She's the author of the new book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration." She's also a staff writer for The New York Times Magazine.

Let's talk about an alternative to what you described. One of the cases you write about involved a young man who was accused of having a loaded gun. He maintains the gun wasn't his, but he didn't want to snitch on the person that it did belong to. And so he ended up in a diversion program. What's that?

BAZELON: A diversion program is a program that diverts people from jail and prison. Often, they're for low-level offenses involving teenagers. The diversion program in Brooklyn that I reported on is really different and perhaps even unique. I couldn't find one like it in another part of the country. And it's for people who've been accused of felonies, and in New York, even violent felonies. Gun possession counts as a violent felony in New York, even though it doesn't actually involve an act of violence.

And so the people eligible for this program - they were all under the age of 23. And if they were admitted and there was a - there is a serious screening process. Lots of people are not admitted. But if you get in, then you plead guilty. That's part of the deal. You have a prison sentence hanging over your head, but instead of going to prison, you work with a social worker for a year. They help you try to get a job or take some classes. You have a curfew. It's a way of trying to provide structure and to try to help people change their lives and also think through why they had a gun. So I talked a lot to young men and teenagers about why they had guns and then what it was like to be at home, living in their normal environment, but also be under the control of this diversion program.

GROSS: Yeah, so a lot of young men said to you that they'd rather have a gun and be caught with the gun than not have a gun and be dead.

BAZELON: Right. So the word I heard over and over in Brooklyn for why people had guns was protection, which, frankly, is a word I think a lot of people elsewhere in America use to explain why they have licensed weapons - right? - a word that the NRA might celebrate in other circumstances. I did not see the NRA in Brooklyn gun court. And I think there are issues of race and class that really play into who we punish for possessing guns.

This idea of protection - you know, there is some threat of violence in some neighborhoods in Brooklyn, and it felt real to people. Now, it's not an impulse that was really going to succeed, right? I never heard of anyone, in a moment where they were physically threatened, pulling out their gun and successfully defending themselves. In fact, one person was telling me, like, I got shot while I had my gun on me. But I can understand the instinct that if you feel threatened, especially people who didn't actually have a lot of power in the neighborhood - right? - maybe they were physically small or in some way not imposing - they didn't want to be prey. And so having a gun made them feel a little tougher and stronger and a little more like a predator, even if they never used it or even, like, carried it around all that much.

GROSS: Now, I want to bring up the second thing that you mentioned, which was, for a lot of young men who take this, you know, alternative diversion program and have to work with a social worker for a year, meet a curfew every night, stay out of trouble or else they'll end up in prison and serve, you know, a pretty long sentence, it can be very difficult to return to your old environment and become a changed person and not - you know, and make curfew and not get into trouble. The person who you write about who was caught with a gun that he said wasn't his - I mean, the gun was in the apartment that he was in, but he said the gun wasn't his. So he had to, like, meet the curfew, stay out of trouble, spend time with a social worker, et cetera. What were some of the problems he ran into, staying out of trouble for the mandated period of time?

BAZELON: Yeah. So you're talking about the character in my book I call Kevin. That's a pseudonym. I wanted to make sure to protect his privacy. So one of the problems he had - one night, he was out in the neighborhood, and there was a dice game going on. He knew he wasn't supposed to play dice 'cause one of the rules of this diversion program is no police contact. So he was standing there, smoking a cigarette. Some other people were smoking marijuana, playing dice.

The cops came over. Everybody scattered 'cause they're not supposed to be doing that at the park at night. Marijuana, by the way, is, you know, basically decriminalized in Brooklyn but not entirely. They're still arresting some people for it. So everybody ran. But Kevin was just standing there smoking a cigarette, so he didn't run. And the cops picked him up anyway and brought him down to the station and arrested him.

And he thought, oh, my God. Like, I am going to end up in prison because I violated the terms of this diversion program. But all I was doing was, like, standing around at night, smoking a cigarette. So he did a smart thing. He called his social worker from the diversion program and let him know what had happened, as a way of explaining. And because of that, that really built trust with the social worker. And then the social worker went to bat for him when this came up in court. And he did not end up in prison.

GROSS: And was this the time he had to take a urine drug test and it came back positive, and he said, that's impossible because I haven't smoked anything, and they did a second test and it came up negative?

BAZELON: Yes. That also happened. And that had such a random quality to it, at least, for me. Exactly as you said, Kevin took this drug test, came back positive for marijuana - again, violating the rules of the program - never mind that marijuana is mostly decriminalized in Brooklyn. And he said to his social worker, like, I know I haven't been smoking. This has got to be wrong.

And the social worker, because he trusted Kevin, took Kevin into the bathroom and gave him another drug test. And it was negative. So I really confronted over and over again this sense that there was this - these arbitrary moments in people's lives where they could go one way or the other.

GROSS: Let's talk about bail. And you point out that the U.S. and the Philippines are the only court systems that allow for-profit bail companies to operate. So I think a lot of us don't really understand how bail works and where the profit comes in for the bail bondsmen. So can you explain that a little bit?

BAZELON: I will try. I will say that all of my assumptions about bail turned out to be wrong. As I did my reporting, I realized that I didn't know how this worked at all. So here's how for-profit cash bail works in New York. You go in front of a judge. Say, he sets bail at $15,000 - that's, like, standard for a gun offense. You then can pay it at that moment, if you have the cash.

But of course, most people don't have that amount of cash sitting around. And so then, they have to go to a bail bondsman. Usually, you work out a deal where you pay the bondsman 10 percent. And then the bondsman doesn't actually pay the court anything. They just go to the court and say, we'll guarantee that if this person flees, we will pay that amount.

At the end of the case, if you have come to all your court appearances - as almost everyone does - you're supposed to get your money back at the end. But I did not see people getting any more than, like, 60, 50 bucks back when they completed this process. And all of this yields tremendous profits for the bail industry, which is - the bonds are underwritten by giant, multinational corporations. We're not talking about mom-and-pop shops. They are making about $2 billion a year. That's the estimate.

And all of this is supposed to be necessary. It's supposed to be the only way that we can ensure that people come back to court. You put money down; that means that you won't flee. But in fact, we know from Washington, D.C., which has been doing it differently for years, from the state of Kentucky, which has a different system, that cash bail is not necessary to bring most people back to court.

Most people, you just ask them politely to come back to court. You send them reminders. You connect them with support services, if necessary. And they'll come back because they know it's going to be bad for them to have a warrant out there for their arrest. So this cash bail system really just was completely different than I thought when I started my work for this book.

GROSS: My guest is Emily Bazelon, author of the new book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration." We'll talk more after a break. And Justin Chang will review the new movie "Her Smell" starring Elisabeth Moss as an out-of-control punk rocker. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross, back with Emily Bazelon, author of the new book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration." It's about how the powers of prosecutors have expanded, contributing to mass incarceration. It's also about the new movement of prosecutors initiating reforms in the criminal justice system regarding bail and sentencing and finding ways to give some low-level and first offenders a second chance. Bazelon is a staff writer at The New York Times Magazine and teaches at Yale Law School. When we left off, we were talking about bail.

How is bail set? Like, what are the guidelines you're supposed to use to set bail? And the Supreme Court has weighed in on that a couple of times in the recent past. What does the court have to say?

BAZELON: Well, the court said that you're not allowed to set an unreasonable amount of bail without defining what that really is. And so it looked like a ruling that set limits at the time, but, in fact, we have this bail system that operates without real limits in a lot of states. Judges can set bail at a whim, frankly. Some of them follow the recommendations of a kind of internal pre-trial services agency that looks at people and tries to judge, based on their past record, whether they're likely to come back to court. But there can be just - there's - judges have enormous discretion in most states over how they set bail.

GROSS: And if you can't make bail, what happens to you?

BAZELON: If you can't make bail, you go to jail. And we have probably about 6 million people every year in America who are sitting in jail because they can't afford to post bail and get out, sometimes for very minor offenses. This is just a kind of hidden cost of our system that we've tolerated for a long time. And the question I would ask about it is why people are sitting in jail if they don't pose a threat to safety, right? I mean, if you are accused of marijuana possession, for example, and the judge asked you to post bail, and you're poor and you can't post it, well, you're going to go to jail, where someone who was better off would not go to jail. And that has nothing to do with public safety.

GROSS: And that's where the kind of class system and economic and racial discrepancies come in.

BAZELON: Yes, exactly. I mean, we really have a system that treats people differently based on the amount of money they have. And that seems fundamentally wrong, and yet it drives our whole pre-trial system where there is cash bail. Some states are trying to address this. New Jersey, for example, virtually eliminated cash bail a couple of years ago. And I went and watched some of the hearings that take place where judges are trying to decide to do with people when they don't have bail. And they were letting a lot of people out and then trying to make sure that they would come back to court with reminders, with social services, using these other tools that have been shown to be effective and that don't involve penalizing people if they're poor and they can't pay.

GROSS: I want to get back to the case of Kevin, who you write about in the book. So his mother paid bail to a bail bondsman. How much bail was set for him? How much did she pay the bail bondsman? And what did she get back when he showed up?

BAZELON: She paid a couple of thousand dollars. Kevin went through his whole case. At the end, she got back a couple of hundred dollars, even though he had done everything he was supposed to do. And I think you see this problem of fees and interest payments - the fine print of a contract with the bail agency coming into play here.

GROSS: So let's talk about the reform movement of prosecutors. Why are prosecutors taking on the role of trying to change the criminal justice system? What do they see as their role in reform?

BAZELON: This is a new movement that has really bubbled up in a bunch of cities since 2016. And what you see here are people who want to reduce and end mass incarceration realizing that they have the power to elect a new kind of prosecutor. These are local elections. Voters decide who's DA. And if you're organized, you can have a big impact on these races.

So then these new DAs have come into office, and they answer to a different constituency. It's not the old, you know, drum beating of law and order. The people who voted for them are saying, we want the system to be more fair to treat victims and defendants better. We want prison and jail to be a last resort, rather than the default all the time. And so these prosecutors are using their discretion in a different way to try to change the system. They can change the way they charge people. They can stop asking for bail in a lot of circumstances or all circumstances. They can decriminalize certain offenses, like jumping a turnstile or possessing marijuana. And so you're seeing the great power that prosecutors have harnessed in a new and different way.

GROSS: I guess it's easier for, for instance, a DA on a local level to make change than it is to, like, reform the federal justice system.

BAZELON: Yes, exactly. I mean, I think one of the things this social movement has been so successful is realizing that these are small local elections. You don't have to have the whole national system. You don't have to convince Washington, which feels, I think, so stuck and broken to people on both sides of the aisle. You can start in your local community. And realizing the power of those local elections to determine the shape of the criminal justice system - that is a really powerful organizing tool for people, and it has inspired campaigns really all over the country. And important to say, I think - this is not just, like, a blue state phenomenon at all. Some of these new DAs are getting elected in states like Florida and Texas. There is really a kind of national movement that is bipartisan that sees the criminal justice system is broken.

GROSS: Oh, I'm sorry. I thought I heard you say bipartisan, a word we don't hear much anymore.

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GROSS: So how is it that this criminal justice reform system has become a bipartisan issue? And we saw that on a federal level with the First Step Act, a federal criminal justice reform bill that was passed by Congress, signed by the president, advocated by Jared Kushner, advocated, I think, by the Koch brothers, who are, you know, very conservative. So what is it about that aspect of the First Step Act that brought people together?

BAZELON: You know, I think you can see people with very different political ideologies coming together. They have their own reasons, right? So civil rights leaders have been pushing for criminal justice reform for a long time. They see the racial disparity. They see the cost that it inflicts - the human cost on communities. And they've been wanting to address these issues. You have the Black Lives Matter movement also seeing these kinds of reforms as something they can deliver their constituents that is not quite the same as police reform, but is related to it. Then among conservatives, you have libertarians, who are concerned about government overreach. They look at these criminal codes we have in America that have expanded so much. There's so much conduct that is now illegal. Libertarians look at that and are concerned.

And then you have fiscal conservatives, who look at the enormous, ballooning costs of incarceration, of our whole prison industrial complex. They look at that and they say, what is the return on investment here? And it's a good question to ask, especially when people are so likely to cycle in and out of jail and prison. It's not like jail and prison are preventing new crimes. In fact, there is this word people use in criminal justice systems - criminogenic, like carcinogenic - the idea that jail and prison really cause more crime because people's lives get desperate.

And so there are all these different motivations that people have for getting behind criminal justice reform - helps explain the First Step Act and the interest Congress had in passing it. And it also helps explain why we're seeing new DAs making progressive, forward-thinking promises get elected in cities all over the country.

GROSS: How far does the First Step Act - the federal legislation - go?

BAZELON: It doesn't go very far. It's bite-sized. The federal prison system has a small fraction - 186,000 people in it - compared to the 2.2 million who are incarcerated across the country. And also, the First Step Act will only affect a small fraction of those cases - really, drug offenders who are not - who have no kind of act of violence in their offense. So we're talking about a relatively small move. If it is indeed a first step and it could lead somewhere else, then it could prove to have more significance.

I think the way it's mattered so far is it's changing the narrative. I was really struck at President Trump's State of the Union address. One of his honored guests was the first drug offender who'd been released for the First Step Act. And Trump was celebrating this man. This is the same president who, in his inaugural speech, talked about American carnage and has painted this sort of grim picture of criminality. So to have a kind of drug offender celebrated from being released, that's a very different image of crime - an idea of second chances that we have not seen before from law-and-order politicians like Trump.

GROSS: Let's take another short break here, and then we'll talk some more. If you're just joining us, my guest is Emily Bazelon, author of the new book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration." She's also a staff writer at The New York Times magazine, and she teaches at Yale Law School. We'll be right back. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Emily Bazelon. She's the author of the new book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration." She teaches at Yale Law School and is a staff writer for The New York Times Magazine.

It seems to me you are often in, you know, ethically complex situations on both sides - defense and prosecution - 'cause you might end up prosecuting somebody who you think, you know, really might not have done it. But also as a defense attorney, everybody has the right to a defense. And you might be defending people who you think are really guilty, but it's your job to defend them.

BAZELON: That's right. We...

GROSS: Oh, and I want to add one more thing - that...

BAZELON: Oh, sorry.

GROSS: ...You know, we've been talking about the reform movement of prosecutors. But prosecutors really need to prosecute people who are guilty. I mean, there are people who really do belong in prison and really are a risk to society. And I don't want to forget that in this conversation about the reform movement.

BAZELON: Yes, I understand why you would say that. I think most people would agree with you. I agree with you. We are so far away from a world in which it is only the dangerous people who go to jail and prison. There is so much room for change and so much bipartisan support for it that, you know, for me, all these things can exist and be true at the same time.

It is also, for sure, true that, you know, our adversarial system relies on the idea that prosecutors make the best argument for guilt, defense lawyers make the best argument for innocence, and then judges make the decision. That's the ideal. That's the way it's supposed to work. In fact, the way it works every day in ordinary court is you see this kind of haggling over plea bargains in the hallway - not in open court, hidden process - that in which, guilt and innocence - honestly, like, people don't even really talk about those things. They talk about, you know, what kind of deal someone will take so that they don't have the threat of jail or a longer jail sentence hanging over their head.

I think, often, prosecutors assume that everyone is guilty or, at least, that almost everyone is guilty. And that can kind of warp the conversation from the beginning because, often, the state - most of the time, the state doesn't actually have to prove its case.

GROSS: So you have two conflicting philosophies when it comes to what to do about low-level crimes. The broken windows philosophy became very popular as a way to, like, cut down on crime in - I guess it was the 1980s. And the philosophy was, like, you should punish low-level - what was called, like, lifestyle crimes, you know, like jumping turnstiles or, you know, breaking windows. I think, like, small amounts of marijuana would fit into that - because if you don't punish crime on the smallest level, you're going to be encouraging it to grow to larger levels. So you have to stop those small crimes.

The reform side now is saying, you have to decriminalize those crimes or at least give alternatives to prison sentences and not do bail and punish people who don't have money because it's just going to make the lives of these people more difficult and perhaps lead them into - lead them more into a life of crime, as opposed to leading them away from it. So can you talk about these two - how these two philosophies come into conflict?

BAZELON: Yeah, sure. So broken windows policing - punishing people for these quality of life offenses - and then stop and frisk - right? - which was this very invasive policy particularly in New York that involved stopping and frisking. At its peak, they were stopping and frisking fully four out of five of the young black men in the city. Just stop and think about that for a minute. All these tactics, you know, when people have come in and studied them afterwards, they have not been able to prove that these tactics significantly contributed to the drop in crime. Now, that doesn't mean they had zero impact, but as you were saying, they also have a cost.

And it is striking that in New York, for example, broken windows policing and stop and frisk have almost ended, not entirely in some neighborhoods, but they've certainly been far, far reduced, and crime is continuing to drop. So nobody expected that to happen, but it suggests that these tactics are not necessary. When we look at what the reformers are advocating for, you know, we have so many people who've gotten tangled up in the criminal justice system. And for misdemeanor offenses, often we're not talking about jail or prison sentences, but we are talking about other consequences, where you have this notation on your record that can really affect the opportunities that you have going out from there.

And so I think those costs are leading people in the reform movement to really question why we criminalize certain behavior and not others. So for example, fare beating, turnstile jumping - those are things people get arrested for. Well, if you're a driver of a car, a more middle-class person, you blow through an E-ZPass on the highway, you're not going to get arrested. You're going to get a fine. And so we have different ways of punishing different classes of people for minor kinds of wrongdoing that have a tremendous impact on people's lives.

GROSS: You write that the country's embrace of mass incarceration may come to seem nearly as shameful as slavery does now.

BAZELON: Yeah, that was a big statement, and I thought a lot about making it.

GROSS: Yeah, that's why I brought it up. That it is a very big statement.

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BAZELON: Here's my argument for it - you know, mass incarceration takes a tremendous toll. There are 10 million children in the country who will experience having a parent incarcerated during their childhood. When you think of that, when you think of all the people who've been taken out of communities, the weakening of the social fabric that causes. The way that when people come out of jail and prison with a felony record, they're less employable, they have trouble finding housing.

There are so many human costs. You want to think all those costs are necessary, right? That they're serving a purpose, that there's a reason that were inflicting all of this on particular communities. And I think that the American criminal justice system is so out of whack, it's ballooned to be so large in its punishment of people that we can't justify it anymore, and so that's one reason I compared it to slavery. Another reason is that it's so racialized.

I mean, the numbers of young black men who are going to jail and prison instead of being able to go to college, when you just think of that effect that the system is having, it does feel like the new Jim Crow, the term that Michelle Alexander used in her book. And I felt like I was seeing that over and over again in Brooklyn; just these small assumptions people made about the young, black men and teenagers I was following that just affected so many things about their lives. The way that they could conceive of their own futures was partly shaped by people just suspecting them all the time, that they were doing something wrong just by walking down the street.

GROSS: Emily Bazelon, it's been great to talk with you again. Thank you so much.

BAZELON: Thanks so much for having me.

GROSS: Emily Bazelon is the author of the new book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration." After we take a short break, Justin Chang will review the new film, "Her Smell," starring Elisabeth Moss. He says it's her best performance yet in a movie. This is FRESH AIR.

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