2020th election, and more. A full schedule is available on our website. Now were going to go inside for the first conversation. This is live coverage on tv on cspan2. Good morning, everyone. I am michael cahill. It has been my pleasure and privilege to serve as dean here at Brooklyn Law School for just about three months now. Its going really well. [laughter] and, of course, i am happy to welcome all of you here and to welcome those of you watching at home on cspan. We are here, of course, as part of the 14th annual brooklyn book festival which will draw tens of thousands of people to downtown brooklyn over the course of the day, several thousand of those people will be passing through here at Brooklyn Law School where we have been a proud partner of the book festival since 2012. And that has been a wonderful and natural collaboration since the law school and the festival are committed to the free exploration and exchange of ideas in an effort to better understand our world and, ultimately, hopefully to change our world based on that understanding. So pleased to have you, pleased to be part of the festival. And as part of that spirit of inquiry and discussion, i am very pleased to be moderating todays panel and to welcome our three panelists. So very briefly identifying them, each of whom has long and impressive bios, but i will try to keep it brief. On my immediate right, rachel barko, regulatory play and policy at nyu school of law, former member for todays purposes relevantly are of the u. S. Sentencing commission and, more relevantly for the book festival, the author of prisoners of politics breaking the cycle of mass incarceration, which is available for purchase and signing. To her right we have john fass, professor of law at Fordham University school of law who is also sometimes known to teach criminal law here at Brooklyn Law School. He is the author of locked in the true causes of mass incarceration and how to achieve real reform. And last but certainly not least, my colleague, bennett capers, is the stanley a. August professor of law here at Brooklyn Law School, and he is the author of the forthcoming book not yet available in physical form but soon to be available at all major outlet ares the prosecutors turn. So please join me in welcoming all three of our panelists. [applause] so that bought me time to get to the table here. So careful listeners will have noticed that the term mass incarcerate appears in the subtitles of both rachels and ooh johns books, so i thought it might be a good place for us to start there. We can talk in a few moments about the causes of mass incarceration and what we can do about it, but i think first it might be helpful to get a sense of what mass incarceration is, because its, it may seem obvious but, in fact, it isnt. It is true that we imprison a lot of people, that we impress more people both in absolute imprison more people both in absolute terms and as a share of our population than anyone in the world. Leaving those aside, we are the world leader in imprisonment. But that fact does not necessarily mean the same thing as the conclusion or assessment that we imprison too many people. So id like to get a handle on what exactly is the nature of the problem of mass incarceration so that we can get a sense of what it is. And, john, maybe we can start with you because your book begins by asking the question of what massen incarceration is. Why do you take it to be a problem, what are the biggest signs that it is problematic, and how big a problem is it, and how much would we have to do to get a sense that we were meaningfully addressing the problem . Yeah, thats a great question, and i start by saying i dont actually know what the word means. I dont think anyone really does. When you go from small to medium, to large, to mass, i have no idea where those are. We have about 1. 5 Million People in prison, we have about 750,000 people in jail on any given day but about 10 Million People get admitted to jails every year, and a study came out this year that probably about 5 million unique people every year cycling through our jails with about like, what, 4 Million People on probation and parole, 1012 the million arrests a year. In many ways, thats punitive, that we dont pay as much attention to in the past, that giant part underneath. And i think the reason why i think of mass incarceration now is that whatever an optimal size is at least from a Public Safety perspective, we know this size is far too lang. The datas increasingly clear, prison is an ineffective way to deter crime. To the extent that what deters crime is the criminal Justice System, taking that as our first take that, and maybe we shouldnt, but accepting that within that silo are, right, detection is a far bigger role than punishment. Several months ago tom cotton says [inaudible] the rate at which we make arrests is abysmally low. And hes 50 right. Our clearance rate is awful a. For murder, only twothirds of all murders result in arrest. Of thats appalling. The collusion is not to lock more people up. Thats the worst response to that. And so we know that more time in jail, prison increases the risk of reoffending. Theyre not committing crimes while in prison, but [inaudible] and i think we have a really growing understanding of Violent Crimes, there are Better Solutions that work more effectively and that an increasing number of victims would prefer that theyre not prison. I dont know what the right number is. I know the number were at right now is vastly too large, and we have alternatives that we could use and for various clinical and physical and budgetary reasons generally dont. I should point out now that although we all know each other, we have done no collaboration in preparing for this panel. [laughter] and i hope that it will seem spontaneous rather than unplanned. But i am happy to have either of the other panelists sort of share their own gloss, their take on what mass incarceration is or what they find to be the problem. Ill just add a little bit to what john said, give more ways of thinking about it and where were at. One in three adults in america has a criminal record, and i think it just kind of defies imagination, comprehension to try to imagine that we really need to treat one out of every three adults in the United States as criminal. Given just thinking about human nature, that that is outrageously high. One in two people have a Family Member who has been incarcerated or is currently incarcerated. So its just affecting that entire sweep of the population, but of course it disproportionately affects communities of color. So just thinking about all those numbers, you know, we have cities in america where one out of two black men are under criminal supervision. One out of every two. So the numbers are stagger thing. Its staggering. Its always hard to figure out how to bring home exactly what were talking about in terms of how big this criminal justice enterprise is in america, but it, you know, its touching almost everybody in very direct ways, and its particularly touching communities of color. And the only thing ill add, because i think one thing that might have been left out is just how this has all changed over time. So to us, sort of a lot are incarceration is natural, seemed natural to me when i was a prosecutor. But if you actually look at graphs of how our cost ratios have increased over time, until we reached the 70s all of a sudden theres a steep the incline. And, you know, if youre a person who grew up in the 80s and 90s, it might look very natural to you. But if you go further back in time, you realize just how much we incarcerate and also how little it is connected to increased levels of crime. So its partially connected to increased levels of crime but not entirely. If i could add one more thing, i think what that touches on is a really important aspect. Rachel talked about policy failures, in the 50s and 40s and 30s, the policies didnt cause mass incarceration. And in many ways, you know, at the end of the day mass incarcerations an ideology. Choices we could or couldnt make. Earlier this week a Police Officer in florida arrested, handcuffed, fingerprinted and booked a 6yearold girl for having a tantrum in school. And earlier in that day he had arrested, handcuffed and booked an 8yearold boy because florida has no minimum age for criminal liability. You can arrest a newborn in florida if you wish, 13 states are that way. Theres no policy compelling that arrest. And as bennett points out, we just kind of internalize this is okay. This is how it is done. And we could change it all tomorrow without a single legal change if we changed our entire political framework in our heads, right in. [laughter] thats all it takes. Thats all it takes. [laughter] i think its important how much of this is an ideological choice more than a set of policies. At the end its really politics and ideology that drive it. Lets take a moment to explore where mass incarceration came from, but maybe at the outset of the conversation its worth pointing out as both of you do in your books that its a bit of a misnomer and misleading term to say there even is an american criminal Justice System. So what were really dealing with is at least 51 jurisdictions, 50 different states as well as the federal system, and perhaps in a more meaningful way, over 3,000 systems in that a lot of criminal Law Enforcement is county by county, and there are 3100 counties in the United States. Having said that, each if you take a very even if you with take a very low incarceration state like maine or massachusetts, that state would be among the most incarcerative countries in the world if it stood alone. So the problem is pretty widespread. Having acknowledged that it is a problem, id like to get all of your thoughts on where that problem came from, because its causes might give us a sense of its possible solutions. And i think, ray cheryl and john rachel and john, in their books offer different senses of where the problem came from. To oversimplify a little bit, i think theres a fox and a hedgehog situation. Rachel points to many, many Different Things each of which individually and all of which collectively contribute to the problem of mass incarceration. John is more focused on one big thing that he identifies as a significant cause. So maybe, rachel, you can start and john can offer his sense and bennett can break the tie. [laughter] im going to offer you [inaudible] so i think, you know, one way to start is just to ask when that shift happens in the 1970s that bennett talks about, it is important to note crime was up. We had an increase in violet crime in america, and it was the noticeable to people in their daily lives. It certainly would have been noticeable to people who lived in new york city and in other place. And, you know, it was a period of social unrest as well. So, you know, you had people protesting, rioting, use whatever terminology you want, and is so it looked like a time in america when there was too much disruption, too much violence, and the public was demanding that something be done about it. And both democrats and republicans responded to that and thought that the current, thencurrent approach to dealing with crime and disorder budget working, and they needed to do something different. And that really kicks off this kind of new way of thinking about how were going to attack and think about problems of crime. And so a whole package of things start to happen. So one thing is instead of giving lots of discretion to judges and parole officers to decide kind of the ultimate release date of a person, that whole mold gets called into question model gets called into question because people start to lose faith in in rehabilitation and the idea of reforming people. Unfortunately, it was based on one marley influential study, and it wasnt even a careful read of the study can and a lot of programs were underfunded and werent working right. But the conclusion that was drawn was nothing works. You know, none of these things work, so we need a new model thats really dealing with this problem. So theres a turn to mandatory sentencing, mandatory minimums, theres a term to longer sentences. Theres a buildup of the number of people who do the jobs of criminal Law Enforcement in america, more police, more prosecutors, more prisons. And so that kicks off the kind of creation of whats going to then become an Interest Group for keeping things exactly as they are. So theres kind of the initial impulse which is crime is rising, kind of sensible til you want to respond to that, think about what to do. And the strategy is kind of an all hands on deck, lets really go all in on Law Enforcement. And i should just say that is a choice. As john says, that was a choice that was made. Instead of saying, hey, why are people so upset, should we be thinking about urban development and investment, maybe we need to do more with schools and job programming and health care and Mental Health care and the kinds of things these communities were also asking for, but instead of kind of thinking about preventing crime by offering more resources to communities that were really underfunded and really suffering, the response was were going to deal with crime by getting just tougher in our response to it as it happens with Law Enforcement. So theres a big buildup of Law Enforcement. And what happens is, you know, crime was rising, theres this response. When crime starts to fall, you might have expected as bennett pointed out that we would say, oh, okay, now crimes falling, lets reduce that, or we dont need to do things quite the same way. But instead, the buildup continues and, in fact, we incarcerate more and more people. We build up more and more facilities to house people, more prisons, more jails. And i think kind of one thing to keep in mind is is how that then becomes its kind of like closing military bases where its very hard to do that once they exist, right . The politics of that is just really hard. They become financially important to communities. That is true of this whole setup that we have in criminal justice. Prisons can be really important employers in certain rural communities, and a lot of them are placed there. And even though there are studies that say they dont help the economy of these places, the perception is that they do, and they certainly employ a lot of people. So its really hard to close them once theyre there. How are you going to get rid of these thousands of prosecutors that youve hired around the country . Theyre going to find things to do to justify their existence, and thatll segway into some of the things that john will say. I think its kind of it makes sense when you think of the initial buildup is about crime, but then it takes on a life of its own, and we have long since lost any connection to any of these things effectively working to tabling crime. And if anything, theyre now really counterproductive and cause crime. Now we have people who the immediate reflexive response is a punitive approach, longer and longer sentences. We make it so much harder when people come out of their time, and 95 of all people who are incarcerated come back out again, they rejoin our communities. We should want them all to succeed. We should kind of want that as a matter of shared humanity, but even if you dont buy into the shared humanity, you should want it for your own Public Safety, right . So that theyre on the right track. And the system that we have doesnt do a good job of that. And kind of a last footnote ill add to that is when all this is created, you might have thought thats a Big Government buildup. Big government in the most kind of prototypical way. Like, were going to get the state to come in and expand and solve your problems. Like surely we would want accountability. We want to measure that its working. We want to know, you know, this prisons doing a particularly good job of programming when people come out. We dont measure a single one of these actors for effectiveness to make sure theyre actually reducing crime. No one is held accountable in this system, and i mean nobody. And so its able to kind of keep existing and growing in this kind of statistics factory universe because we actually dont hold any of those folks accountable for results. Thats how you can have cities with clearance rates for homicide that are 20 . That show, how to get away with murder, i tell my students just commit one [laughter] because the clearance rate is so low, no ones going to catch you. Theres no accountability. All those actors just use rhetoric, oh, were going to get tougher. But no one holds them accountable. Theres more to say, but i want to make sure so i guess my hedgehog take [laughter] burrows into one thing and digs into it, i spend most of my time blaming prosecutors. Lets be clear, looking only at the 90s and 2000s because remarkably shoddy, staggeringly bad criminal justice. I dont think anyone can understand just how profoundly horrific in quality our criminal justice data is. Its amazing. As we fight over whose data is worse, and for a really long time people are really depressed because mines even worse than yours, and were all right. [laughter] and so data from the 90s [inaudible] as crime goes down, prison goes up. Crime goes down over the 930s, arrests 90s, arrests go down. Prison admissions keep going up and up and up in a weird way that ill talk about in a second. And what we see thats really driving that increase is not the risk of being sent to prison, its the risk of a prosecutor filing felony charges against you. That goes up even as arrests go down. The chance of going to prison doesnt change that much, its a all little noisy and crazy, and in the 90s and 2000 doesnt really change, and its not that listening, right . The median time for release is one year. Violent crime is four years. And the only Violent Crime thats seen a dramatic increase in time served, and we should cut this back, is homicide. Everything else is fairly short. Longer than europe. In the netherlands, 90 of people are out in four years. Were still off the charts compared to the rest of the world but not nearly as long as we actually