3 Takeaways - Highlight on Law & Justice: Six Experts Share Powerful Ideas on Crime and Punishment (#211)

Episode Date: August 20, 2024

With an election coming up, crime and punishment are a hot topic. Listen to this specially curated episode of 3 Takeaways as some of the sharpest minds on the subject share their insight. Guests include top legal reform expert, Christina Swarns; former Harvard Law School Dean, Martha Minow; Judge Jed Rakoff; founder of the Innocence Project, Barry Scheck; former New York City Police Commissioner, Bill Bratton; and Michael Chertoff, former Secretary of Homeland Security.

Hello, everyone, and welcome to Three Takeaways. Today, I'm delighted to bring you the second of our specially curated highlight episodes. In each of these highlight shows, we will bring you the most compelling moments from the hundreds of episodes of Three Takeaways that we've created over the last several years. Rarely does a year go by without high-profile cases that raise doubt about the fairness of our criminal justice system. In this episode, you will hear from legal scholars who think outside of the typical constraints of law. Their thoughts on crime and punishment are compelling and unconventional.

First, you will hear from Christina Swarnes, a top criminal legal reform expert, on why false confessions happen more often than people realize, because children and other categories of people are vulnerable to manipulation. You'll also hear from former Harvard Law School Dean Martha Minow, who argues that the simple concept of forgiveness can lower crime and reduce incarceration. Find out why the innocent plead guilty and why the innocent no longer have trials from my conversation with Judge Jed Rakoff, who's seen it from all sides as a judge, former prosecutor, and former criminal defense attorney. A different perspective comes from legendary lawyer and

founder of the Innocence Project, Barry Sheck, who shares his beliefs on why wrongful convictions are not an aberration, but a result of the way the system is designed. Former New York City Police Commissioner Bill Bratton shares what he thinks good policing looks like. Finally, former Secretary of Homeland Security Michael Chertoff talks about equality in criminal sentencing and why white-collar criminals should not be treated with kid gloves. You may not agree with everything my guests have to say, but I believe they're all thought-provoking and well worth listening to. I hope you enjoy the show. Hi, everyone. I'm Lynn Thoman, and this is Three Takeaways.

On Three Takeaways, I talk with some of the world's best thinkers, business leaders, writers, politicians, newsmakers, and scientists. Each episode ends with three key takeaways to help us understand the world and maybe even ourselves a little better. Today, I'm excited to be with Christina Swarnes. Christina is a nationally recognized criminal legal reform expert and an attorney who defends people condemned to death. False confessions happen more often than people realize. As I sit here talking to you, right, Lynn, I would say to you, I would never confess to a crime I didn't commit, right?

That's what all of us say. Because we're confident that how is it even possible that those words can come out of your mouth? The reality is innocent people can and do confess to crimes they didn't commit. There are categories of folks that are more vulnerable. Children, we tell our kids, you can go to a police station, right? If you're kind of supposed to do

what the police tell you to do, like there's some baseline of expectation that kids should do what a police officer says. And so they do. People who have intellectual disabilities fall in the same space, right? People who don't have the ability to fold the line in the face of intense questioning. And third, people, of course, who are under the influence of drugs or alcohol, you know, so we learn those things through that process.

And so we've begun the process of making reforms around them. Similarly, the other piece is identification. If I were a victim of a crime, I would do everything in the world to make sure that I would be able to say with certainty who the person is that victimized me. But the science tells us it's not that easy, that memory is more complicated. And memory, especially in the context of trauma, is really complicated. For example, if you or I are confronted by a gun, folks are more inclined to look at a gun or a weapon than they are at the face of a person insulting it. We also know that there's an own race bias in identification. All of us are better

able to identify a person of our own race than we are to identify a person of a different race. We also know that people are incredibly suggestible. So if you're brought into a lineup, police conduct can lead folks to make a choice that may not be accurate on the course of a lineup. So there are a lot of things that we know about identification and identification procedures that we're working hard to bring awareness in the criminal legal system and to create structural changes for those. How do you see the system and how can it be improved? I think the lessons from the last 31 years and us as a country and the world recognizing

the problem of wrongful conviction, there are a lot of ways the system can be improved. I would point you to a real need for qualified, appropriately funded, and appropriately trained defense lawyers to represent the people that go through the system. We have to have a real process for maintaining and ensuring that there's a baseline threshold for the evidence and the types of scientific evidence that come into courthouses. There has to be real and meaningful testing of the reliability and accuracy of that evidence, right? And we need to really, honestly, for the first time, acknowledge and grapple with the ways in which people of color are treated in the criminal legal system differently than other people. Today, I'm excited to be with Harvard

Law School professor and former Harvard Law School Dean Martha Minow. We're going to talk about what the right balance should be between forgiveness and punishment. When can and should a person be forgiven? Every religion, every civilization has developed techniques and thoughts about promoting forgiveness. There's studies of large baboons that have rituals of forgiveness that seem to defuse conflict. But for the individual human being, it's interesting to see that there are very different views among different religious and philosophic traditions. For example, is forgiveness justified without any acknowledgement of the wrongdoing by the offender. Religious groups disagree about that. Some say that apology is necessary. Some say that action by the wrongdoer

is necessary before forgiveness is warranted. Others say, actually, it's more godlike for the survivor of a wrong to forgive without any action on the part of another. We are at this moment living at a time that's produced more incarcerated people per person than just about any society in history. And therefore, I think that forgiveness is a missing ingredient. And how does forgiveness by law differ from forgiveness by individuals? Can you give some examples of forgiveness by law? There are some actual technical methods of forgiving a crime. For example, a pardon erases from someone's record just officially that they ever had a criminal sentence.

Another may be probation. Rather than serving a sentence, someone may be put under a surveillance. And should that decision, the legal decision to forgive, take into account the victim's decision on whether to forgive or not? I do find it helpful myself to distinguish between the wrong done to an individual, which the individual should be the master about whether to forgive, whether to hold resentments and a grudge, as opposed to the wrongs done to the society. On that, the individual victim or survivor is one of many, many, and therefore the view may be relevant, but not determinative. And so,

for example, it's a very difficult question where there are instances of domestic violence, and the victim, usually a woman, very often says, oh, I forgive, and I don't want an arrest, and I don't want a prosecution. But sometimes that's an expression of the actual power relationships in that household. And it's a separate harm to the society that there is that jeopardy. I'm delighted to be here with Judge Jed Rakoff. He's a senior judge for the famed U.S. District Court for the Southern District of New York. He is also a former federal prosecutor and criminal defense attorney. So Jed, why do the innocent plead guilty? In the 1960s, 70s, and 80s, crime rates were increasing dramatically in the United States.

And the reaction to that was to pass laws that impose very severe penalties for criminal activity, even fairly minor criminal activity. These were laws that took away the discretion of the judges and mandated mandatory minimums of 5, 10, 15, 20, in some cases as much as 45 years in prison. Also career offender statutes, which mandated life imprisonment if you were convicted of three felonies, even if they were fairly minor felonies. And sentencing guidelines, which originally were mandatory, now are discretionary, but are still very harsh. The result of all that is that no one can take the risk of going to trial, even innocent people, because if they are convicted, they will face huge amounts of time in prison. They plea bargain. And the statistics are that between 1980 and 2000, the number of cases that were plea bargained

went from 80% to 97%. And it has continued that or even been slightly higher in state courts today where most criminal activity is prosecuted. Cases that go to jury trials are less than 2%. Instead of what the Constitution contemplated, which was a trial by jury, the sort of thing you see still on the media and on TV, the reality is you've got to plead guilty or you will face huge penalties if you lose. Now, of course, if you're innocent, you have a chance of being acquitted. But the system is not so perfect. And we know now that through the work of the Innocence Project, that quite a number of people who go to trial are in fact innocent. And we only learned that many years later. Plus, most defendants, particularly poor people of color, are very cynical about the system. And so they don't have much faith that they will be acquitted, even if they are innocent.

So the bottom line of all this is that the pressure created by these harsh laws is so great that even innocent people plead guilty. And it's roughly about 10% of all criminal defendants presently incarcerated. I'm here with Barry Sheck, co-founder of the Innocence Project. Barry co-founded the Innocence Project to free and get out of prison the wrongfully convicted by using DNA and other evidence. Let's talk about some of the reasons for wrongful convictions. Let's start with misapplication of forensic science or junk science. What can you tell us about that? The misapplication of forensic science and a way of saying there's unvalidated forensic science. These are forensic assays that haven't gone through the kind of rigorous validation that we would all want.

When it came to so many of these forensic assays, there was no scientific approach where you would have those kinds of rigorous studies to show how often they get it right or wrong, which is incredible when you think about it, that life and liberty are at stake. That was what was so unique about DNA. Even things that we all know are going to be very good identifiers, like fingerprints. They had not been adequately validated. We did not know their false positive and false negative rates in the innocence files. The Netflix series, we focused three episodes on bite marks. And what makes bite marks so terrible is that when you go back to see one case really admitting it, right, just based on, oh, experts in the field of bite marks themselves generally agree that it's reliable.

It's generally accepted or reliable among them, the people that are the practitioners of it, not looking at any outside group of scientists in related fields to say, well, this is validated. And so all of a sudden it spreads through the court, five, six, seven, eight, nine different courts say, oh, well, it was admitted in California. So I guess we'll admit it here. And nobody ever really attacked it. So years later, we find ourselves in the situation where the bite mark analysts themselves, when finally doing a study a few years ago of items on skin where they were asked, are these bites? Even a third of them couldn't tell whether they were bites or not. Yet there's still bite mark cases all over. I'm excited to be with Bill Bratton.

He has led the Boston, Los Angeles, and New York City police departments. He is the only person ever to lead the police departments of America's two largest cities. Throughout your career, Bill, you've rejected the idea that crime rates are driven up or down by larger societal and economic forces. Police, you have said, are the deciding factor. And after years of declines, violent crime is rising again in New York, Los Angeles, and elsewhere. Why do you think that is? That's the subject of great debate among politicians on the left and the right, among police leaders, among academics, union leaders, many representatives from the many movements in the

country. My own perspective is that some of it is coronavirus-related. Court system effectively shut down throughout the country for a year. Criminal justice system, which had been fraying in the year before that in terms of a significant number of progressive district attorneys coming into office who were seemingly at times working against the police instead of with them. Legislatures in many states and communities that were passing a lot of criminal justice reform laws, some of which were intended to reform the behavior of police, some which were intended to reform bail reform systems that needed to be reformed. Those were factors. We also have the behavior of police. Some were intended to reform bail reform systems that needed to be reformed. Those were factors. We also have the history of this country and its love of guns.

400 million guns, which are getting easier to acquire rather than more difficult to acquire. We just cannot seem to get our act together on how to control the gun problem in the United States. And in this past year, those guns have oftentimes been in the hands, no matter how they've been acquired, in the hands of gang members. So, so much of the violence you're seeing in the United States at the moment is primarily in minority communities, which unfortunately have so many of the major gang problems in our country. Most of the victims are minorities also.

So in addition to so many other problems that minority communities, particularly our African American and Latin communities are dealing with poverty, racism, bias issues, systemic racism, they're also dealing with ingrowing crime problems, particularly around the issue of shootings and murders. What does good policing look like? Good policing is something that I know in my 50 years in the profession, I've always been striving for. To me, good policing is the idea that the communities we police, that we work with and for, trust us. By that, I mean they will work with us to help prevent crime, because police alone cannot prevent it. They will work with us as witnesses. They will work with us politically to support appropriate funding of police, appropriate oversight. crime and disorder. And several of his other principles speak to, if we do that correctly,

we will be judged not so much by visibility in reducing crime, but in the absence of our visibility in reducing crime, because we're doing it correctly. We're not doing it with too much use of force, too much intrusion upon the lives of the average citizen. I'm here with Michael Chernoff. He has a remarkably broad background. He's been Secretary of Homeland Security, a judge on the U.S. Court of Appeals for the Third Circuit, a federal prosecutor for the famed Southern District of New York, and Assistant U.S. Attorney General. As a former federal prosecutor, Assistant USAG judge, and former Secretary of Homeland Security, you have a unique perspective. How do you see sentencing and criminal justice in the United

States? Well, I've watched over the years, the pendulum swing back and forth. Sometimes it's been, we don't want to have heavy sentencing. We want to focus on rehabilitation and root causes. And then at times, particularly when there's been a spike in violence, there's been a very strong emphasis on heavy sentencing, mandatory minimums, some of which can be quite harsh. I think the truth is you want to have balance. You do have to recognize there are some people who are committing violent crimes again and again and they need to be incapacitated if they're let out they're going to commit more crimes on the other hand there are non-violent crimes which can probably dealt with be dealt

with with a less custodial response and also giving people the opportunity to redeem themselves and enter back into normal life with a clean record or at least having your record closed behind them. One thing I will say is very important is equal justice. And when I was a prosecutor, we were very tough on white collar criminals. People committed bank fraud, securities fraud, political corruption. And sometimes I would hear people say, well, why do they have to go to jail? These are nonviolent crimes. And I'd say, well, if you're willing to send a young kid to jail for burglarizing a candy

store and a guy who steals a million times as much money gets a slap on the wrist then the message you're sending is unequal justice and i will tell you after that sings their own crisis in the last century and after we had enron and uh you know all those white crimes i thought it was very important that the people who committed these big crimes and hurt a lot of people be sent to jail in the same way we would send someone who robbed them back. I hope you've enjoyed this Law and Justice Highlights episode. This is our second highlight episode. The first was Highlight on education, which was episode 203. Stay tuned for more highlight episodes. If you'd like to listen to any of the full law and justice episodes,

top criminal legal reform expert Christina Swarnes is episode 176. Former Harvard Law School Dean Martha Minow on When Should Law Forgive is episode 90. Judge Jed Rakoff, who's seen it from all sides as a judge, former prosecutor, and former criminal defense attorney, on how the pressure created by harsh laws is so great that even innocent people plead guilty. That's episode 29. Legendary lawyer and founder of the Innocence Project, Barry Sheck, on why wrongful convictions are a result of the way the system is designed is episode number one. Former New York City and LA Police Commissioner Bill Bratton on what he thinks good policing looks like is episode 58. And finally, former Secretary of Homeland Security, Michael Chertoff is episode number six.

If you enjoyed today's episode, you can sign up for the Three Takeaways newsletter at threetakeaways.com, where you can also listen to previous episodes. You can also follow us on LinkedIn, X, Instagram, and Facebook. And if you're enjoying the podcast, and I really hope you are, please review us in Apple Podcasts or wherever you get your podcasts. It really helps get the word out. I'm Lynn Toman. This is Three Takeaways.

And thanks so much for listening.