Emily Bazelon

Americans like to think their criminal justice system is the fairest in the world, that innocents can’t be proven guilty because of all the constitutional protections in the system. Nothing could be further from the truth, as Emily Bazelon found in Charged. Her latest book looks at the justice system at the prosecutor level. It is a family tree of branches, many of them diseased or rotten. Both prosecutors and defendants can find themselves on the wrong one at any time. It’s a show more fascinating tour, aided by Bazelon’s intimate knowledge, involvement and exhaustive contacts.

Bazelon details two tormented cases, of a gun possession in Brooklyn and a murder in Memphis, to help readers live the blind maze that might or might not lead to justice, years after the facts. In between, she describes the offices, officers and environment that the justice system operates in. She finds it not just faulty, but working against its own best interests, the interests of the accused, and the interests of the public. She quotes Erin Murphy, an NYU Law Professor: “We don’t have strong citizen oversight of police, it is highly politicized work, and civil remedies have been totally neutered.”

States have been abandoning diversions, education, retraining and supervision in favor of more and longer sentences. The United States now holds 2.2 million in jail, one quarter of those held in the whole world. In addition, there are nearly five million on parole or control of some sort. It is a nation of criminals, apparently.

That is not only costly, but hopelessly unworkable. In numerous field trials, those alternatives show themselves to be less expensive and lead to less recidivism than locking people up for the slightest infraction. A good half a million are in jail just because they couldn’t pay the fine or make bail. To Bazelon, this sort of debtors’ prison alone costs the country $25 million a day. It’s the system that needs reforming as much as the accused.

There is a special place hell for plea bargaining in Charged. It is a weapon wielded by prosecutors, who threaten sentences three times as long if the accused prefers to take a chance in court. As Judge Jed Rakoff wrote: “In 2012, the average sentence for federal narcotics defendants who entered any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.” After months or years of waiting, most cave – 95% of criminal cases end in a plea-bargain. It wouldn’t be so bad if so many weren’t innocent, or if prosecutors didn’t withhold evidence, or if police didn’t lie (testilying ,they call it) or deny the accused their rights. “Once you get used to it, you don’t even notice the injustice,“ Albert Altschuler, University of Chicago law professor says of plea-bargaining.

Power has shifted to the prosecutors, as judges are now restricted to formularies. Prosecutors forced to go to trial go for crimes with the longest sentences. Judges are forced to go along. This adds greatly to the power of the plea-bargain. Asked in court if they chose the plea voluntarily, all defendants commit perjury by saying yes.

Charged ends powerfully with 21 reasonable, doable recommendations to fix the system. They are listed with clarifications and variations, and then with places where they have been successfully implemented. Because it’s not all bad news. There are innovative, reformers in many jurisdictions, notably Houston, Brooklyn and Philadelphia.
1. Make diversion the rule
2. Charge with restraint and plea-bargain fairly
3. Move toward ending cash bail
4. Encourage the treatment (not criminalization) of mental illness
5. Encourage the treatment (not criminalization) of drug addiction
6. Treat kids like kids
7. Minimize misdemeanors
8. Account for consequences to immigrants
9. Promote restorative justice
10. Shrink probation and parole
11. Change office culture and practice
12. Address racial disparity
13. Create effective conviction review
14. Broaden discovery
15. Hold police accountable
16. End the poverty trap of fines and fees
17. Expunge and seal criminal records
18. Play fair with forensic evidence
19. Work to end the death penalty
20. Calculate cost
21. Employ the language of respect

The problem that Bazelon does not venture into is the near anarchy of the entire system. Rights are spelled out at the federal level, but prosecutors work at the county level. Every county has its own policies and methods. There is no consistency or predictability for someone accused of anything. They never know what they’re up against, until they’re in the vortex. Americans don’t have the same rights from one county to the next.

Possibly worse is that in the USA, prosecutors and district attorneys tend to be elected, not appointed by a commission of judges, who might know their performance records and honesty. The result is the politicization of justice, as people vote along party lines, not fairness, justice or efficiency. Counties get omnipotent little potentates, who run their departments as they alone see fit, often for their own glory. Nothing says re-elected like a lot people behind bars.

Supreme Court Justice Sonia Sotomayor showed she understood in Utah v Strieff: “It says that your body is subject to invasion while the courts excuse the violation of your rights. It implies that you are not a citizen of a democracy, but the subject of a carcereal state, just waiting to be catalogued. We must not pretend that the countless people who are routinely targeted by the police are ‘isolated’. They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”

She said the criminal justice system “accomplishes nothing we think of as its purpose. We think we’re keeping people safe. We’re just making worse criminals.”

David Wineberg show less

I don't have any kids in school, so this isn't a pressing issue for me personally. But it's a national concern, and as such, I wanted to know more about it. I have always had a lot of respect for Emily Bazelon, and for her take on this issue specifically, so I figured I'd give the book a shot.

What I like about Bazelon's approach is the way she carefully, methodically works to get beneath the hype (which inevitably attends any situation where there's even an off-hand accusation of bullying) show more and analyze what's really going on. Over and over again, she identifies the complexities in stories that people on all sides would like to paint as black-and-white. What she finds is that there are few truly sadistic bullies or truly helpless victims, but that these scenarios are often suffused with miscommunication and a disturbing lack of empathy from one or more of the people involved.

I also like her common-sense skewering of Facebook, and their ham-handed way of dealing with this issue.

It was a good read, well worth the time. Someone with a more personal stake in the issue might well find it overly academic, I suppose. show less

If you want to understand criminal justice in the US, and the need for reform, you need to understand the role of prosecutors and the way the system is rigged. In the early 1970s, the northeast, midwest, and western US had incarceration rates comparable to the Nordics. After that, they skyrocketed.

Emily Bazelon explores the roots of our rigged system--and what might be done to change it--partly through the lens of two cases. Kevin (not his real name), was arrested for a gun possession show more charge in the Brownsville section of Brooklyn. Noura Jackson was arrested for the murder of her mother, Jennifer, in 2005. The Kings County and Shelby County DAs take very different approaches.

Prosecutors have enormous power within the system--deciding who to charge, with what offenses, what bail to seek, and how to handle plea agreements. All of these can and are used to increase conviction rates and hence incarceration, and prosecutors leverage them effectively--piling on charges to given them maximum power, keeping people jailed for lack of cash bail, and using prison time to punish people for choosing a trial instead of a plea. Since poor people, especially poor people of color, both experience prejudice at the hands of the system and have few resources to fight it, they're disproportionately impacted by its whims and failures. The political powers involved in our system--electing judges and DAs, giving wide latitude towards people who then need to show they're "tough on crime"--damage the quality of justice on offer. New Jersey's new system of using a scoring tool for bail and removing most cash bail has been successful.

In his book Locked In (which Bazelon references), Fordham professor John Pfaff makes a convincing case that in order to end mass incarceration and its social consequences, we cannot just look at nonviolent crime: we need to consider violent crimes, too. In Kings County (Brooklyn), the new, reform minded DA is doing just that. What crimes need to be considered "violent"? One focus is on guns: gun control, in New York, involves both civil and criminal penalties, pushed heavily by former mayor Michael Bloomberg. Criminal penalties fall predominantly on black people: 87% of people prosecuted in the gun courts were African American, even though Brooklyn is only 1/3 black. Who should be given a second chance and put through a diversion program?

In Shelby County, the approach has been the opposite. Here, DA Amy Weirich commits a Brady violation (withholding evidence) in Noura Jackson's murder trial, and the portrait of her and her office is deeply unflattering. Other figures in the Tennessee justice system also come in for a harsh reckoning.

This is a vivid, narrative focused read, but with a great deal of legal detail packed in. Readers of The New Jim Crow will recognize a lot of the paths Bazelon takes. Our criminal justice system has been focused on the severity of the punishment and the number of people punished, not the effectiveness of punishments or the long term social consequences. The work being done with criminal justice reform today may show us a new path forward for dealing with crime. show less

The American criminal justice system is a mess. This really is an indisputable fact. For nearly a half century we've been fighting a War on Drugs, which has only succeeded in putting more drugs on the streets. We run prisons for profit, filling them with young black males and people too poor to afford bail and/or attorneys. We run a barter system with plea bargains, rather than a justice system with trials by jury. Nothing about what we do is fair.

With 'Charged', Emily Bazelon highlights the show more job of prosecutors, showing us exactly how much power and control they wield over the system and the people caught within it. She lays out this narrative with a focus on two young people; one whose life is destroyed by an uncaring, unjust system, and the other who benefits immensely from the compassion of a different kind of system. We have the ability to wield both types of power, so why are we so quick to destroy?

This book is disturbing, because it should be. But Bazelon also shows us glimmers of hope. In various pockets of our country, justice is becoming a reality rather than a farce. Through these stories, Bazelon shows us that compassion and justice can, in fact, go hand-in-hand.

The reality of our system is nothing like an episode of Law & Order. Money, education, status, race, and religion all weigh heavily in how a person is treated, prosecuted, and punished. There is no such thing as equal rights within our criminal justice system, at least not yet. Maybe if enough people read this book, and enough people demand change, someday we can truly claim a "justice" system.

*I received an advance copy of this book from the publisher.* show less