Joshua B. Hoe interviews Carissa Byrne Hessick about her book “Punishment Without Trial: Why Plea Bargaining is a Bad Deal”
Full Episode
My Guest: Carissa Byrne Hessick
Carissa Byrne Hessick is the Randall Distinguished Professor of Law at the University of North Carolina School of Law where she also serves as the director of the prosecutors and politics project. Previously she taught at Harvard, Arizona State University, and the University of Utah law schools. She is also the author of the book we are discussing today “Punishment Without Trial: Why Plea Bargaining is a Bad Deal
Watch the Interview on YouTube
You can watch my interview with Carissa on YouTube.
Notes From Episode 120 Carissa Byrne Hessick – Plea Bargains
We discussed Alexandra Natapoff’s book “Punishment Without Crime.” You can also listen to my Decarceration Nation interview with Alexandra.
We discussed John Pfaff’s book “Locked In.” You can also listen to my Decarceration Nation interview with John and also the recent webinar we did about crime trends in the United States.
I made reference to Michelle Alexander’s book “The New Jim Crow.”
Carissa’s book recommendation was James Foreman Jr.’s book “Locking Up Our Own.” You can also listen to my award-winning Decarceration Nation interview with James.
You can get Carissa to sign your book from Flyleaf books.
Full Transcript
Josh Hoe
Hello and welcome to Episode 120 of the Decarceration Nation podcast, a podcast about radically reimagining America’s criminal justice system.
I’m Josh Hoe, and among other things, I’m formerly incarcerated; a freelance writer; a criminal justice reform advocate; a policy analyst; and the author of the book Writing Your Own Best Story: Addiction and Living Hope.
Today’s episode is my interview with Carissa Byrne Hessick about her book Punishment Without Trial: Why Plea Bargaining is a Bad Deal. Carissa Byrne Hessick is the Randall Distinguished Professor of Law at the University of North Carolina School of Law where she also serves as the Director of the Prosecutors and Politics Project. Previously, she taught at Harvard, Arizona State University, and the University of Utah law schools. She is also the author of the book we’re discussing today, Punishment Without Trial: Why Plea Bargaining is a Bad Deal. Welcome to the Decarceration Nation Podcast, Carissa.
Carissa Byrne Hessick
Thank you so much for having me. I’m excited to be here.
Josh Hoe
I always ask the same first question. How did you get from wherever you started in life, to where you were teaching law and writing books about things like plea bargaining?
Carissa Byrne Hessick
You know, it’s gonna be sort of a not very compelling story. I grew up, I didn’t know any lawyers. My parents didn’t know any lawyers. I have a big mouth. And I argue a lot. And so they told me I should be a lawyer. I’m sure they meant it as some sort of put-down. But then when I got to college, I did the debate team at college because I’m that cool. And that’s just sort of the well-worn path. Like most people who do debate, go on to law school. Ted Cruz, for example. He was a debater a few years before I got there. Anyways, so then I went to law school.
Josh Hoe
You know, as a former policy debate coach, I always have to jump in and say that he did not do policy debate.
Carissa Byrne Hessick
That’s right. He did parliamentary, which is the type that I did as well.
Josh Hoe
I don’t mean to . . . there’s always been a long-time tension between the different schools of debating, and so we always needle each other back and forth over stuff.
Carissa Byrne Hessick
I was debating whether I should say I wouldn’t hold the fact that you were a policy guy against you.
Josh Hoe
Yeah, I mean, for those who are listening and don’t know, that is definitely true. It’s like 40 years of basically, disrespect from every quarter, back and forth.
Carissa Byrne Hessick
Entirely, entirely accurate. So I went to law school, and I just, I have to say, I loved law school, I just found all of the ideas exciting, I found the way that they tried to teach us very exciting, it’s all very hands-on, lots of reading lots of thinking, lots of pushing yourself, lots of trying to figure out if you’re wrong, and if so why. And then I became a lawyer, and it was less fun than being in law school. And I was talking to my younger sister, who at the time was a teacher, she taught like junior high school students. And she talked about how fulfilling she found her job. And so I thought I might go into teaching. And that’s when I realized that actually, a big, big part of a law professor’s job is to do research as well. But that matched up well with my personality because I’m kind of like a nerdy geek. And I would get excited about the obscure issues and the cases that we had, when I was a lawyer I would want to spend more time on that. And people would be like, actually, what we need to do here is help the client not just go off on tangents. So it ended up being just sort of a dream job for me in terms of, I get to talk to the students, I get up in the morning, and I get to go into the classroom, and they’re excited, I get excited; that part of it’s really fun. And it’s rewarding on a short-term basis. And then the research. It’s very fulfilling, but it’s a very long-term basis. So you have some days where you have a breakthrough, which is exciting. You have many more days, where it’s just you in front of your computer sort of hitting your head against a sort of metaphorical wall. I had one of those days today. But I still love it. And, I’m glad that this is the path that I chose. And then I’m glad that I had a friend who encouraged me that, you know, the research that we do is, as I said, fulfilling and I really enjoy it. But so few people are going to read what shows up in the legal journals. It’s too specialized, it’s too boring, frankly, it’s too long. It doesn’t seem relevant to people’s lives. And so, you know, she sort of pointed out that when professors take the time to write for a general audience that can really make a difference. And so that’s what I was trying to do here.
Josh Hoe
Yes, as someone who actually does read a lot of law review articles, I’ve often thought that it might be good to have a companion for every law review article that is a summary for the general public, for people who don’t actually want to go through the entire history section. You know, I’ve always thought that would be a good idea.
Carissa Byrne Hessick
Good idea. I should try to market that to someone.
Josh Hoe
So I know this will seem like a very basic question for starting, but at times throughout your book, you seem to take an expansive view of what plea bargaining encompasses. So I’m going to start out with the question of: what is plea bargaining?
Carissa Byrne Hessick
Sure. So plea bargaining – in order to understand what plea bargaining is – you first need to think of the point in a television show or a movie where someone’s been accused of a crime. That person shows up in a courtroom, and they’re asked, do you plead guilty or not guilty? So, defendants have this ability to, instead of going to trial, where a jury or possibly a judge would decide whether to convict or acquit, they can decide to plead guilty in the first instance. And sometimes, pretty often nowadays, rather than just pleading guilty and seeing what the judge would do, a lot of people will either themselves, or if they have a lawyer, negotiate with the prosecutor to see if they can get something in return from the prosecutor for pleading guilty, whether that’s the prosecutor will dismiss some of the charges against the defendant, agree not to bring other charges that they could bring, agree on the sentence that the defendant should serve, and then they get the judge to sign off on that, or even just agree not to make a big stink at sentencing about why the defendant should receive a longer sentence. So these are all the things that a defendant can get in plea bargaining. And in theory, it sounds like something that could work out well for defendants, for prosecutors, for judges even, because if the defendant knows that he or she is guilty, trials take a lot of time, they’re expensive. And this allows the system to move forward without using those resources. But as I’m sure we’ll talk about in a few minutes, that’s not how things end up working out. It’s rarely just this defendant saying, Well, I’m guilty anyways, so let’s see if I can get some small benefit for the decision to forgo a trial that I don’t even want.
Josh Hoe
I don’t want to spend too much time retelling the history of plea bargaining. But can you summarize how plea bargaining started? And how has developed, become the dominant form of adjudication in our system, which I think it is now?
Carissa Byrne Hessick
Yes. So this was actually something that I didn’t know before I started doing the research for the book. And when lawyers read the book, this is the part that they say they were surprised by, because, as you said, plea bargaining is the dominant form of resolution in the criminal justice system right now. But that’s a relatively recent phenomenon. In fact, guilty pleas were strongly discouraged. Back in England, so America’s whole justice system sort of got imported from England. So when we’re trying to figure out the history of things we will often look to what they did in England. So in England, they didn’t even really want people to plead guilty. In the United States, people were allowed to plead guilty, but the understanding was they were pleading guilty only because that’s genuinely what they wanted to do. If there was evidence that the prosecutor and the defendant had entered into some sort of agreement, early American judges would actually refuse to enforce those agreements, they would say that’s improper, it’s not permitted. And they did that up until around the Civil War, and maybe even a little bit after as well. And it was only in the early 20th century that it became clear that plea bargaining was actually very widespread, at least in some urban courtrooms. There was this moment in the 1920s, and the 1930s – where I guess you could say – sort of rich civic leaders, or I guess they didn’t all have to be rich. I guess we’d call them the elites now. But that sounds, it sounds like a put-down and I don’t mean it that way. But sort of, you know, the fancy people in town, were trying to figure out what was going on in their court.
Josh Hoe
I think we should stick with fancy people. I like that term, the fancy people. They prance around.
Carissa Byrne Hessick
Well, so in Cleveland, what happened was a prominent judge, I believe he was accused of murder. And he got acquitted at trial. And it came out afterwards that there was bribery and all of this other sort of terrible things. And so the elite in the cities decided that they needed to figure out what was going on in the criminal courts because that was such a scandal. And so they brought in people whose names you might recognize, like, like Felix Frankfurter, who later was on the Supreme Court, they brought in law professors and other legal elites to do these studies. And as they did these studies, they discovered that plea bargaining was rampant. And what’s interesting is nowadays, when we talk about plea bargaining, we almost always tend to talk about it in terms of it being unfair for defendants and giving too much power to prosecutors. When people originally used to talk about plea bargaining back before the Civil War, and when these big reports about the urban criminal courts came out, they thought it was too lenient for defendants, they thought it was corruption. They were concerned because the laws had been written in a way that they thought they were supposed to be enforced. So if somebody stole something, they were supposed to spend 30 days in jail, and if the prosecutor was cutting someone a deal that was less than that, then the system wasn’t working the way it was supposed to, and the person wasn’t getting the punishment that the community had said was appropriate. And so it was, it was sort of interesting to me, that the big outcry about plea bargaining was that it didn’t punish people enough and that it seemed corrupt. And it seems to circumvent good government. But nowadays, it gets sold as good government because it’s efficient. And because the experts are involved in making these decisions, rather than bringing in juries, which are just regular people, and what do they know anyways? That we can’t trust them.
Josh Hoe
I do have to make a couple of comments. One is that I think you just said that you’re a fancy person. You said something about law professors being elite, I just want to add that in there.
Carissa Byrne Hessick
Felix Frankfurter, he is fancy!
Josh Hoe
And secondly, we’re seeing some echoes of that now, with a lot of people speaking in almost that same kind of language. I think you mentioned Taft being one of the people who was very adamant about that in the book. And I think he might be very much at home right now with some of the stuff that’s coming out. And we’ll talk about that a little bit more in a second. But we get to the point where now we have what could be called a plea bargaining system more than it can be called a trial system. It’s quite rare that any cases go to trial. Can you let people know how dominant plea bargaining is now?
Carissa Byrne Hessick
So it’s actually a little difficult to find out information about the criminal justice system, in part because it’s splintered. And it happens all over. And lots of places don’t keep good records. But we know from the federal system, and then I think it’s 22 or 23 states, which keep decent data, but about 97% of defendants who are convicted in this country are convicted because they’ve pleaded guilty, not because they’ve had a trial; only 3% of defendants who get convicted had a trial. And then that percentage has shrunk over time. You know, 10 years ago, 10 or 11 years ago, when I was starting out as a law professor, everybody used the 95% figure. And back in the 1970s, when plea bargaining, you know, first got accepted by the Supreme Court, everybody was using the figure of 90%. So, it’s clear that plea bargaining has become even more dominant over time. And it doesn’t really show much in the way of stopping because we’ve set up our system to encourage the bargain, the Supreme Court says that actually we need to encourage plea bargaining, and lo and behold, we encourage it quite a lot. We give a lot of leverage to prosecutors. In the plea negotiations, judges will be quite open about the fact that if somebody insists on going to trial, that they will give them a longer sentence than if they had pleaded guilty. It’s actually written into the federal sentencing guidelines that you can get a reduction in your sentence if you plead guilty rather than go to trial. If you accept responsibility, they say, rather than if you go to trial, and from time to time, people have expressed concern about this, if we have a law that says you spend more time in jail or in prison, because you insisted on your right to a jury trial. That’s the opposite of what we’re supposed to do [per] Constitutional Rights. The government’s not supposed to be able to punish you for exercising your constitutional rights. That’s the bare minimum of what the Constitution is supposed to stop the government from doing.
Josh Hoe
Yeah, I often suggest that your constitutional rights are most important when they’re most at risk. And that’s an example of taking that and doing something pretty terrible to it. Most famously in that vein, Michelle Alexander apocryphally suggested, and I’m paraphrasing here, that if plea bargaining were to cease, today, the criminal justice system would be so overwhelmed that it would simply implode. Is this the reason courts have allowed and as high as the Supreme Court have allowed plea bargaining to continue to blossom and thrive?
Carissa Byrne Hessick
It’s a fair question, there’s certainly no doubt in my mind that we would have to make radical changes in the criminal justice system. If plea bargaining warrants weren’t an option, one thing that we would have to do is we would have to be more careful about the sorts of cases that we bring. And can I say, though, I think we should probably be more careful, regardless? So there was a book that came out a few years ago, called Punishment without Crime, by a woman named Alexandra Natapoff.
Josh Hoe
She’s been on the podcast to discuss the book.
Carissa Byrne Hessick
Brilliant, brilliant woman. And the book is important for a lot of reasons. But one thing that it does is try to find out how many misdemeanor cases there are. So people probably know this, but just in case, you have two different types of criminal charges, you have felonies, which are very serious, and then you have misdemeanors that are far less serious. And it can get confusing sometimes. But those are the two major categories. And Natapoff found that we have about a million felony cases every year in the United States, and we have about 13 million misdemeanor cases. And I bet if you ask the American public which crimes they care about, or what they think about when they hear the word crime, they’re thinking about felonies and they care about felonies. And yet, the vast, vast, vast majority of resources in our system are used to pursue misdemeanors. So I think that would have to change, we would have to change our priorities, we will probably have to spend more money on the criminal justice system. Again, I’m not sure that’s the worst thing in the world. I’d feel a lot more comfortable if public defenders, for example, had much smaller caseloads and more time to investigate their cases. We know that they don’t have that now. And we know that innocent people have been convicted. I also tend to think that if Americans care about certain government services, and to be clear, punishing people is a government service.it’s a service that society provides to other people, we should pay for it. We shouldn’t pretend like we don’t have to pay for it. Because that, again, helps us to set our priorities. So then the last thing that I’ll say is we couldn’t have the system that we have in its current form. But even in its current form, we could have way more trials than we do now. There was a judge in West Virginia who got angry because the federal prosecutors in his district kept bringing these really, really serious indictments, these 13-count indictments. So they charged 13 separate crimes against drug defendants, and then they’d let them come in and plead guilty to a single count. And it was annoying the judge because he knew that the people in his community were sitting on the grand juries and coming up with these indictments. And he felt strange that the prosecutor was saying, this person has committed all of these crimes, and yet, we’re only going to have them plead guilty to this one count. And so he asked the prosecutors about it. And the prosecutor said, Well, we have to do this, we can’t possibly bring these cases to trial. But the judge was a little on the older side, [and said] really? because there’s way fewer trials now than there were when I started practicing, or when I got on the bench. And so he got the data from the Administrative Office of the Courts. And he found something really remarkable. So back in 1990, which is when his data started, he found that there were a little bit less than 8000 trials in the federal system every year. And then in the last year of data he got, which I think was 2015, he found that there were fewer than 2000. So there used to be four times as many trials just 25 years ago, 30 years ago. And in the intervening years, we’ve added a lot more federal prosecutors and a lot more federal judges, we have more capacity, but fewer trials. And yet, if you ask people in the system about plea bargaining, they’ll say, oh, we can’t have more trials. We can’t have more trials. Maybe we can’t try every single case. But we can certainly have more than we have now. And it’s what’s convinced me that we’ve built a system that’s actually too efficient, and it’s too good at pressuring people into pleading guilty because fewer and fewer and fewer people are willing to risk a trial.
Josh Hoe
Your case against plea bargaining seems to have several prongs. You think it is inherently dishonest, incredibly coercive, and enabling of some of the worst impulses of prosecutors and judges. Can you summarize your arguments against plea bargaining?
Carissa Byrne Hessick
Oh, the arguments against plea bargaining. So first of all, it changes the very goal of the criminal justice system from finding out the truth of what happened. And makes it [the goal] instead, processing cases, right? negotiating and processing cases, which are two very different things. But that’s to say, we’ve given up truth in the name of efficiency. So that’s problematic. Second of all, it creates incentives to make things more efficient. And the way we make things more efficient is by making trials too unattractive. So prosecutors can stack on additional charges, there are mandatory minimums for some of those charges, judges will pile on longer sentences and say I’m penalizing you for going to trial. All of this means that going to trial is so unattractive, that even innocent people won’t go to trial, they’ll plead guilty, and I talked about some of them in the book. But there are people who’ve been exonerated who pleaded guilty to serious crimes that they didn’t commit. And there’s reason to believe that a lot of people plead guilty to low-level crimes that they didn’t commit. But even for the people who are guilty, this deprives them of their day in court, which they’re supposed to have. And it deprives the community and the victims of that as well. I mean, if you’re the victim of a crime, and you try to figure out, okay, this was the crime that was committed against me, this is what the state legislature says is the penalty for that crime. You find out later, the defendant pleaded guilty to some completely different crime and served a much less serious sentence. Don’t get me wrong. I think that, as a general matter, the United States probably is too harsh in the way that we treat people. But we’ve told the public that these are the penalties that we need to keep them safe. And most people believe that. If you tell somebody we need to have a 10-year mandatory minimum, to keep guns off our street, and then nobody’s serving the 10-year sentence, they think they’re not safe. And so that then leads to a situation where it’s only the people inside the system who decide what’s going to happen. And there’s no check on that. And there’s no chance for the rest of us to see whether we agree with what they’re doing or not.
Josh Hoe
That’s interesting in that I think for me, there’s a lot of tension between the notion that what we’re looking for in the system is actually deterrence and things like that, because so many of the laws, as I think you point out later, are at least implicitly past because of their attempts to ratchet up the ability to plea bargain. So this notion that they’re rationally attached to deterrence or that sentences are rational seems a little bit . . . it’s hard for me to get my mind around both of those things at the same time. Can you navigate that for me at all?
Carissa Byrne Hessick
So I think, look, I think this is the challenge for anyone who wants to talk about punishment in America, which is we need to figure out what’s the right level of punishment? And the truth is, if you look at that, if you look at that issue, for anything more than just a couple of days, you see how little we actually know about how much we should be punishing people. Different people disagree, there are different reasons to punish people, when it comes to things like oh, what we’re trying to do is prevent crime. We don’t have very good data about how to do that. And then the data that we do have suggests that we do basically everything wrong. But I’ll say this, I think in the United States, where we control so much of our criminal justice policy through popular elections, that’s electing people who sit in the State House, electing our prosecutors in most states, electing our judges in a lot of states, and those are the people who set our criminal justice policy, we have to care about what the public thinks. And the truth is, the public has been fed a series of lies when it comes to the criminal justice system. They are entirely uninformed about how much crime is happening. They constantly think that there’s far more crime than there actually is. They think the crime that does happen is much more severe than it is. There is a study out of, I think it was Illinois, where they asked people, what do you think the sentence should be for burglary and they gave a number. And then they said, Do you think that judges in our state-imposed sentences that are too high, too low, or just right? And they’re like, definitely too low. The average sentence was significantly above what they said it should be. And then when they said, describe what you think is the average burglary, they described an aggravated burglary where somebody broke into an occupied house at night and threatened the people who were inside of it and the typical burglary happens during the day when nobody’s there. Um, so the American public doesn’t, this isn’t just that the American public isn’t well-informed, it’s that the American public has been misled. They’ve been misled in part because of how crime news is reported on. But they’ve been misled also, in part by the people who want to have strict laws, they are lied to about what’s necessary. And then the very officials who say we need the law to do X, instead of using the law to do X, they just use it to make people plea bargain.
Josh Hoe
And you also make the argument, which I haven’t seen very often, but it’s interesting to me, this notion that even as part of the plea bargain, that prosecutors often start bargaining for things that really you wouldn’t ever think are part of that package like to get rid of people’s ability to see evidence in their own case, or their ability to ever challenge the plea bargain through the appellate process, or all kinds of things like that. Could you talk about this some more too?
Carissa Byrne Hessick
Sure. So this argument, this reminds me of my friends who believe in the free market. It’s a deeply held belief for them, they think that the best economic system is one where people can engage in negotiations and buy and sell and the buyers who want things the most will get them. And then the sellers can get the best price and supply and demand and all of these things will allow us to end up at the right place. If you read the defenses of plea bargaining, they really borrow a lot from those concepts of the free market. They talk about it being a negotiation between the parties and then having the ability to bargain over the terms of the agreement. And then they say things like courts shouldn’t put limits on what the defendant can bargain for. Because that’s just going to mean that they’ll get a worse deal from the prosecutor. So if the defendant isn’t allowed to bargain away the right to an appeal, then the prosecutor will insist that they serve more time in jail. This is nonsense, right?
Josh Hoe
Doesn’t it also somewhat ignore that it isn’t a free market in the first place? that it’s highly coercive? I mean, am I crazy here?
Carissa Byrne Hessick
It’s not a market, right? Joshua, if you’re the prosecutor, and I’m the defendant, and you give me an offer, and I don’t like it, I don’t get to go to a different prosecutor and say, give me a better bargain.
Josh Hoe
Having been through the process, I can definitely say that’s correct.
Carissa Byrne Hessick
[It’s] a take it or leave it situation. And once prosecutors realize that there’s something else they can bargain against, they do; they start bargaining about it. I mean, plea bargaining itself was an idea that some social scientists have said spread the same way that a contagious illness might spread. Somebody heard about it, and they’re Oh, that’s a good idea. It’s like these life hacks that we hear about, oh, it’s great. I should put my shoe rack directly next to the door, why don’t I do that, oh, I could run my shoes through the washer machine and get them clean. That’s great. It’s like, once you hear the idea, then everybody starts doing it. It’s the same thing with adding these additional terms into plea bargains; defendants are not getting better deals because these additional things have been added in. Because on top of everything else, prosecutors don’t internalize the costs and benefits of these bargains; prosecutors, they’re not sales representatives who get paid on the basis of how many cases they process, they’re civil servants, they’re state employees. I’m a state employee, I’m given my workload, and I do it. And that’s it, end of the story. If I don’t secure an appeal waiver, as a prosecutor, I’m not going to get paid any more or any less. In fact, in a lot of places, I probably don’t even have to handle that appeal, it goes to a different office. So who cares? They’re doing it because they can do it. And because the defendants can’t really push back.Josh Hoe
So plea bargaining has become so accepted and ubiquitous that you tell the story of a man named Joseph Delgado, whose very competence was challenged because he tried to insist on going to trial, is that correct? Like he was actually no, I really want to, I want to go to trial and they’re like, You must be crazy.
Carissa Byrne Hessick
Three times, three separate competency evaluations because – so Joseph and his father were both arrested because they were growing a bunch of marijuana and when I say a bunch, I mean like a lot of marijuana on their farm, I think it might have been in upstate New York . . .
Josh Hoe
Which now would be legal in a lot of places.
Carissa Byrne Hessick
I don’t know that they’re allowed to grow this much! And the dad took a plea deal and Tigano was sitting in jail because he’s facing a mandatory minimum, and the dad took the plea deal so that he didn’t have to serve the statutory mandatory minimum sentence, and Tigano’s lawyer and the prosecutor and the trial court judge are like, yeah, no, I guess he just doesn’t understand what he’s asking for. And the appellate court ended up throwing out his conviction, by the way, not because they’re [saying] you have to plead guilty because otherwise, you’re crazy. But because they kept him in jail so long for all of these different competency evaluations, before letting him have his trial. And there’s something in the Constitution that says you have to have the right to a speedy trial. And they kept him in jail for like seven years or something crazy like that, before they gave him a trial, where he was convicted immediately.
Josh Hoe
I guess you have the right to be, I’m sure he knew he was gonna be convicted. And that was a choice he was making.
Carissa Byrne Hessick
That’s exactly the point, Joshua, right? We have this right in the Constitution. And yet, if you try to exercise it, people think you must be crazy, literally crazy.
Josh Hoe
Another much more disturbing – I think that’s a disturbing story – but probably the most disturbing story that you tell in the book, at least for me, someone as worldly and cynical as myself, who has done time, was the story of prosecutors who found out someone was innocent of a crime in advance, and still tried to get that defendant to plead guilty to charges that they knew were false. Can you explain that story?
Carissa Byrne Hessick
So you’re talking about the case in West Virginia. I think it’s a little unclear whether they had access to the DNA evidence before, whether they’d seen the DNA that was in the file, but it’s not clear whether they checked the file. Some people might say that sounds implausible, why would a prosecutor not check the file before pleading a case? And I’d say, sadly, that’s consistent with an awful lot of stories that I saw.
Josh Hoe
Maybe I was filling in the lines a little bit, but it sure sounded like they at least had access to the knowledge that this person was innocent of the crime they were trying to get him to plead to.
Carissa Byrne Hessick
So there was DNA evidence that exculpated him, unclear if they’d seen . . . . because by the way, after he pleaded guilty, and managed, his lawyer managed to get ahold of the file and find out that the DNA evidence was in there that said he was innocent, the prosecutors wouldn’t let him out. They had some new theory of the case, it was a really terrible rape case involving an elderly woman. And all of a sudden, their new theory was that there’d been two assailants. And this was his co-defendant that no one ever knew about before and that the victim never said that there were two people. So it’s possible, by the way, that they’d seen the DNA evidence before. And then that’s when they concocted this ridiculous story. But the idea that they wouldn’t even bother to check their evidence before accepting someone’s guilty plea, that’s unfortunately, very consistent with a number of things that I heard while I did interviews for this book.
Josh Hoe
The end result of all of this is, as you put it, if a prosecutor doesn’t have to try cases, and if she can pressure people into giving up other rights, like the right to view the evidence against them, then she can prosecute a lot more people. In essence, you suggest that plea bargain is at least a part of how we ended up with a mass incarceration system. Is that accurate?
Carissa Byrne Hessick
There’s no doubt in my mind. It’s both the actual ability for prosecutors to process more cases, and on top of that, I think it’s the mindset, which is we just assume that everyone who gets arrested is probably guilty. And that’s why I think that mindset might help explain why our pretrial detention rates have gone up as well. We don’t expect any of these people to go to trial, we expect them to plead guilty, who cares that we’re not letting them out before that formality? and I’ll say, I know that some of his research on this point, it’s been contested, but John Pfaff’s book about the power of prosecutors called Locked Up [Locking Up Our Own], suggests that actually, prosecutors bringing charges in a higher proportion of cases is one contributor to mass incarceration. And I would assume that prosecutors can bring a higher proportion of charges in more cases where there’s arrests if they don’t think they’re going to have to try them. So it’s not just that they have fewer trials, but they’re expecting not really to try any of them. So there’s less investigation for them to do. And when I say bring charges in a higher proportion, and just to clarify really quickly. So police officers arrest a lot of people who never get convicted. And the way that works is different in different states. But oftentimes there’s an independent decision that the prosecutor has to make. It’s not enough that you’ve been arrested, the prosecutor has to decide to file charges. And they actually don’t file charges in a lot of cases. So there are lots more arrests than there are cases being charged, and Pfaff found data suggesting that they used to bring charges in a smaller percentage of the cases where people are arrested than they do now.
Josh Hoe
I’ve known John for a long time. He’s a friend of the podcast and also a friend friend. And I don’t know who’s contesting his data, but my experience with him is he’s pretty meticulous about what he’s doing. You also raise concern over this legal distinction between detention and punishment that keeps coming up in the plea bargaining context. We’ve definitely seen this in other areas where, for instance, courts have decided that incarceration is really treatment or something like that. You know, there’s a person in Illinois who never got convicted of a crime who’s been incarcerated in a prison for 30 years, but the courts call it treatment. So he just is literally in a prison but he’s under treatment. He’s been there for 30 years, never convicted of a crime. And it’s under the same kind of weird lingo, legal mumbo jumbo that we see happening here. Can you talk a little bit more about this distinction between detention and punishment?
Carissa Byrne Hessick
So this is actually an issue that matters most in the low-level cases, the misdemeanors that we were talking about, as opposed to the felonies. So in felonies, it’s the leverage that prosecutors have in terms of long sentences that pressures people to plead guilty. In misdemeanor cases, it’s either that they have to keep coming back to court over and over again, or it’s that they weren’t able to get out of jail after they were arrested, either because somebody said that they’re a flight risk because maybe they have another pending charge, or because they’re supposed to, they’re supposed to pay bail money to get out and they don’t have that money. So what happens in those situations? Well, oftentimes, they get offered a plea bargain. And the plea bargain is to what we call time served, that is to say, all of this detention that they have had so far, all this time that they’re sitting in jail, they’re not being punished, because they haven’t been convicted. Once they plead guilty, it’s going to be magically transformed to their punishment. So their punishment will be the amount of time that they’ve already served in jail. And it’s really terrible. I mean, you talk to defense attorneys about this, especially when they have clients who are homeless, the prosecutor will say, I’m not going to, I’m not going to release this person, because they don’t have a fixed address. And I don’t think that they’ll come back to court, blah blah, blah blah, so I won’t allow it, I’ll oppose the judge letting them out. But I’ll give you a sentence of time served, and the defendant, the defense attorney says, So you’re telling me that I need to tell my clients to plead guilty, or you’re going to keep them in jail. But if they plead guilty, you don’t think that they deserve any more punishment, or that there’s any public safety benefit to keeping them in jail for longer? And the prosecutor will be like, Yes, that’s right.
Josh Hoe
And kind of a subtext of all this is this whole notion of pretrial incarceration, cash bail, and things like that. We’re seeing a lot of the January 6th defendants and their supporters really upset about pretrial detention. And for once, I kind of agree with these folks, that’s probably the only area where I have any agreement with them. Having spent some time in jail, our jails are a horror show; one day in jail can be a terrible thing. The idea that it’s somehow, you know, just detention or just treatment or something like that is – if you’ve done any time in jail, even as opposed to prison – you know that most jails in the United States are terrible.
Carissa Byrne Hessick
Can I say? I am obviously not in favor of people trying to, by force, overturn an election. 1
Josh Hoe
Let’s make it very clear that I’m not in favor of January 6th, I’m just saying that the one thing that they’ve said, of all the things they’ve said, that I agree with is that the jails are shockingly bad, because they are.
Carissa Byrne Hessick
Even more than that jails are shockingly bad, pretrial detention is really sort of awful. Some of them are being offered deals that are too good to pass up where they get probation for 60 days.
Josh Hoe
I should say that you know, I wish that they would be making that case for the hundreds of 1000s of people every day who are in pre-trial detention!
Carissa Byrne Hessick
This statute seems, like the law that they’re prosecuting me under, seems really vague and it doesn’t seem like it contemplated my case. And I’m like yeah, guys, this is the criminal justice system and it’s all bad. All these are completely fair arguments. And I think one of the things that the January 6 cases highlight is, these are people who are, as compared to most people who get swept up in the criminal justice system, they have more money. They have, they’re of a different socio-economic class where they have more personal power, where they’re used to being treated with a certain amount of respect where they’re relatively well educated. I think what’s going on is that they’re shocked that they’re being treated like this, in part because they don’t understand that this is how we generally treat people. And that’s what part of the shock is. I mean, don’t get me wrong, I think some of them are also like, Ah, my free speech rights. And there are other arguments that they’re making that I find a lot easier to dismiss. But I think the average American doesn’t understand how terrifying it is to be charged with a crime, how absolutely horrible jail conditions are and how little power and how few rights you’re able to exercise when that happens. And if there’s anything good to come out of January 6, I hope it’s an increased awareness of those things. And that people can start worrying that something like this might happen to them, even though they’re not a poor person who lives in the inner city in an over-policed neighborhood.
Josh Hoe
It would also be nice if they’d have some empathy with those kinds of folks as well. But, you know, I’ll take what I can get in this void, sometimes I have to say that. But do you think bail reform is a possible pathway to reform of plea bargaining? I know that it’s a part of the book; I’m trying to see what your position, as a bridge between the two, is?
Carissa Byrne Hessick
Yeah. So look, at the end of the day, I don’t think we’re going to be able to get rid of plea bargaining, I think our only hope is to try to make the process more fair. And as long as people are being held in pretrial detention and are unable to make bail, I don’t think we’re going to have a fair system. I mean, the ability to get released from prison is just such a huge bargaining chip, to get released from jail is such a huge bargaining chip for prosecutors to have in the plea bargaining process. It just overcomes I think anyone’s willingness to try to fight a case. I also sort of hinted at this in the book, but I’m not an economist like John Pfaff. And I haven’t done the work to back this up. But I’d be surprised if it were a complete coincidence that the explosion that we’ve seen in pretrial detention, since the 1990s, isn’t unrelated to the fact that plea bargaining has increased as well, and that we have even fewer trials. There was, you know, everybody talks about mass incarceration as something that happened starting in the 1970s. But actually, if you look at what we’ve done since the 1990s, it’s pretty bad. And then we’ve managed to decouple, that is, to split apart crime and imprisonment. So when crime starts going down, imprisonment can still go up. And the two of them aren’t linked, as you would hope that they might be. But they’re, but they’re not anymore.
Josh Hoe
So it’s an open secret. We talked about this a little bit earlier, that most statutory maximum and stacked charges, you know, multiple charges for the same behaviors were passed, in many cases legislatively, to help create more leverage for plea bargaining. It seems what we’re seeing over the last couple of months or the last couple of years after reform, when so-called reform prosecutors came on the scene, is traditional prosecutors making the argument that discretion, and legislators and police, and other people making the argument that discretion really shouldn’t exist. And this seems like a bad-faith argument to me, because all of those people use this same discretion to depart from mandatory minimums all the time. What do you think is going on here? And have they just gotten collective amnesia about how the system works every day in their own offices? Or is it something else I’m missing here?
Carissa Byrne Hessick
I think it’s a combination of two things. First of all, I do think that there’s a little bit of – I hesitate to call it bad faith – but there’s a little bit out of both sides of your mouth problem. There are you know, I look at like Boston, for example, where Rachael Rollins when she was elected, people got really upset because she was adopting policies, non-prosecution policy, saying what crimes she wasn’t going to prosecute. And there was a lot of pushback, I can’t believe she’s doing this, and then [we] come to find out the person who was in office before her was barely bringing any of these cases. So all she was really doing was sort of formalizing the informal practice and making sure that a few unlucky people didn’t get tried or didn’t get charged for crimes that everyone else, who was committing them, wasn’t getting charged for.
Josh Hoe
I understand what you’re saying. But we’ve got people who the day before were probably signing a plea deal that was a departure from the mandatory minimum, not the mandatory minimum, the maximum of whatever the statute was, the next day saying, This person who’s departing from . . . it just seems very wildly inconsistent to me.
Carissa Byrne Hessick
Yeah. So I think so first of all, I think that part of it is, they don’t want to say the quiet part out loud. They don’t want people to know what the real rules are. They don’t want people to know there’s a mandatory minimum, there’s a five-year mandatory minimum and the going deal is 18 months. They don’t want people to know that because they’ve convinced themselves of the deterrence argument, which the social science evidence strongly suggests is false. So that’s part of it, right? They don’t want Rollins telling people that this is what’s going to happen in her office because they think it will embolden criminals to commit more crimes. This is what we hear in California right now. Like, oh, all of this retail theft that we’re seeing is because Chesa Boudin’s office is not charging these cases. It’s the claim. It’s intuitive. It resonates with people, even though the evidence doesn’t support it. So I think that’s a piece of it.
Josh Hoe
People also have a real big problem with correlation and causation. 2
Carissa Byrne Hessick
I think the other thing aside, saying the quiet part out loud, is I think that people are willing to say, Oh, you had to do this for resources, as opposed to, oh, your sense of justice is different from my sense of justice. That first one is hard for non-insiders to critique because we don’t know what their caseload is, and what other things they had to prioritize; the sense of justice, we all have our own independent senses of justice. But I think there’s one other thing here at play that I think most people don’t recognize, which is I actually do think things are different in these cities than they are in lots of other places. So I was talking to a prosecutor recently, from a rural county in Indiana, and he ran for reelection on the platform that he doesn’t use the state’s habitual offender law, so that repeat offender law, he doesn’t use it to secure plea bargains, he just makes people serve those sentences. And he thinks it’s wrong that his colleagues in the city use them as plea bargaining leverage. He’s like, That’s what the legislature told us the sentences should be. And that’s what we should impose. And if you look more generally, you can see that it’s actually these small population areas that send so many more of their people to prison, the people in the cities, the prosecutors in the city, they’ve been doing triage for a long time, they’ve been using their discretion for a long time, and giving out lenient plea deals. Right? This is to bring us back to our early, our early sort of, we’re back to the fancy folks, and they’re like, oh it’s corruption! The folks outside of those big cities, don’t have the same crime rates, they don’t have the same absolute numbers of crime, they are not processing cases at the same level of volume. And so I do think they don’t take the same approach, is my understanding, I haven’t been able to fully back that up empirically, I really want to, but the data that I’ve seen on prison admissions suggests to me that there’s a different approach in these rural districts than there are in these big urban districts.
Josh Hoe
You spend some time, and this is probably one of the toughest parts, as someone who is . . . I firmly believe that I believe in accountability. I believe that people need to . . . one of the problems I had with the justice system when I was going through it, was there was never a time where I was asked to be accountable until really right before I was paroled; that was the first time anyone asked me to be accountable for anything. It was just a process of bargaining that I wasn’t even a part of, and then just saying yes to a bunch of questions and then going and sitting in a cell for several years. I didn’t feel like it was a process of accountability, or learning or growth or any of those things or rehabilitation or any of that. And so I kind of understand this, but I also deeply believe after watching an awful lot of people, and lot of bad things happen, that we are way too addicted to punishment. And we ask for way too long sentences. We have way too many people that we’re putting away for way too many reasons. One of the arguments you make is that the problem with plea bargaining is that people don’t get their just desserts, or at least a certain segment of people don’t get their just desserts. That’s a tough one for me to process. I’m sure it’s true. I’m still trying to . . . I’m sure there are some people who totally don’t get impact, I mean that they totally get let off from there, from whatever they did do. But is your argument that we don’t use the system to punish enough? Or something else? Or is there a way to put this in a bow that maybe I can digest better or that people who are watching who are anti-carceral or anti-punishment, can swallow a little bit better? I understand where you’re coming from because I definitely do believe people should be accountable for the wrongs that they do.
Carissa Byrne Hessick
Sure, I appreciate that. And I’m sure you can tell because you’ve read the book. I’m not an abolitionist.
Josh Hoe
I’m not either.
Carissa Byrne Hessick
I think punishment has a role to play in our society. I don’t think it’s playing the appropriate role now. Um, I think that’s in part because we’ve set up a system that, for example, is more interested in, you know, processing 13 million misdemeanors a year than it is on solving, I don’t know, 40% of homicides that go unsolved, like a lot of it is those problems. But I think the piece of the book that you’re referring to I use on purpose because everybody gets outraged about it, the Jeffrey Epstein case and the plea bargain that he got down in Florida from Alex Acosta.
Josh Hoe
Yeah, that plea bargain was pretty crazy.
Carissa Byrne Hessick
It’s a plea bargain that I think most people can look at and say, that seems wrong. Right. I’m making a difficult point with a case that everyone could agree on. And I’m avoiding the tough argument, which is, well, when the person who has the gun isn’t serving the five-year mandatory minimum, and they’re serving the 18-month plea deal, is that too little punishment? I don’t think it necessarily is. But again, I think that what we need to do is to say 18 months is what people should serve for that crime. And then, that should be largely what most people serve for that crime.
Josh Hoe
Let’s dig into that for a second. So we talked about this a little bit earlier, this notion that sentences are rational, and that they communicate something important to the public. I understand that that’s at the core of our justice system. I do an awful lot of reading for a non-lawyer of legal stuff, and I have yet to see any rational basis for sentencing decisions. They seem largely made up to me. Why, you know, 10 years, 20 years, 30 years, 60 years, 140 years, 360 years, you know, they all seem like it’s almost like a pinball machine. And they’ve all just rolled the dice. And those are the numbers that they come up with, I have never seen any research that suggests that those are rationally created or any legislative record that suggests that those are rationally created numbers. And I’m actually delving into the Michigan sentencing code right now for a sentencing reform report we’re putting out and I just don’t . . . how can you convey . . your argument seemed to be earlier that we need to send a strong signal to people, that people can see as rational? How do we do that when the system itself and the way that we’ve set it up, is not seemingly rational? How can those two things come together?
Carissa Byrne Hessick
Yeah, so look, you’re asking, you’re asking an excellent question, and I’m gonna go all academic for a second. There’s a piece of sentencing policy that can be rational in that people can largely agree on it. So there’s this huge study conducted, or this really sophisticated study conducted by a law professor and a sociologist, I think, working together, Paul Robinson and John Darley. And they did all of these surveys with these different vignettes and asked people to say how much the different people should be punished. And you know what they found? They found, first of all, most people agree with obscure criminal law doctrines that they probably don’t know about, right? Like the weird stuff that I teach my students in the first year of criminal law, they agree with it. They agree that if you kill in the heat of passion, you should get less punishment than if you premeditate. Right. Like those things. We have a shared moral code. And if you compared them, everybody was saying, premeditated murder as compared to heat of passion. Same thing with like, they’re like, oh, kidnapping, more than robbery; robbery more than theft, less than rape, right? All of these things. There was tons of agreement. But do you know how they had to find that agreement? They had to, they couldn’t look at the actual numbers that people put down for how much punishment they should get. Because it was insane. Everybody was all over the map. They can all agree premeditation should get more than heat of passion. But a bunch of people are like death penalty! And other people are like 20 years! They had to look at the difference between what they were doing.
Josh Hoe
At the end of the day, doesn’t that still have to be tied to some kind of rational connection between the amount of time served and a good public benefit? That’s the part, I understand people are totally misled or not misled, or just have totally different ideas of what’s appropriate. But at the end of the day, this is public policy.
Carissa Byrne Hessick
I’m getting there, I’m taking a long time because . . .
Josh Hoe
No problem. It’s okay. I’m just, I’m just fired up.
Carissa Byrne Hessick
I think that we can agree about the stuff that should matter at sentencing, we just can’t agree on the numbers. So then what do we do? I have to say, one of the people that I spoke for in the book, she said – and I thought this is really brilliant – she’s like, what we really need to do is we need to pick a high number, and then we need to work backward, we need to say, What’s the longest we should be able to have someone in prison for? And not because it makes us feel good. And not because we want to throw the book at them. But as a society, we need to come up with a number, and maybe not as a society? Maybe the legal elites need to do this like I don’t know, right? But the number shouldn’t be Life, it should be like 20 years or 10 years, right? It should be a number like that, where most people have a hope of getting out. And then that’s what the highest number should be. And then we fill everything in from there. I think that’s if this is just I get to pick the policy, I think that’s a pretty good approach. If we look at some countries – and everybody’s outraged because the guy who killed all those people in Scandinavia is up for his first parole hearing – he shouldn’t be. We should look at people again and . . .
Josh Hoe
We don’t have to go to Scandinavia. We’ve got a guy in California who’s been down for 53 years. And the governor just said he wasn’t going to pardon him. Sirhan Sirhan.
Carissa Byrne Hessick
But this isn’t pardoning; this is more like old-school parole hearings. Right?
Josh Hoe
Sure, whatever the version.
Carissa Byrne Hessick
Yeah. I think we should come up with a number. To tell you the truth, I personally would be comfortable with 20 years. I think for a lot of people, the number is a lot lower, and for a lot of other people, the number is a lot higher. If I had to pick, I’d pick 20. And I’d say [for the] premeditated killing of somebody else, you get 20 years. And then we have to figure out Okay, if it’s 20 years for first-degree murder, what’s robbery? It’s not 19. Even the worst robbery in the world at that point, maybe five? Right.
Josh Hoe
I mean, that’s again, that seems like rolling the dice to me because it’s not tied to. . .I don’t know if there’s a way to ever do this. But it seems to me that, you know, there’s pretty good research that suggests that even counting for incapacitation, the way we have prisons now actually creates more crime than they solve. At the end of the day, if the point is to make our community safer, there should be some relationship between the sentences that we give people and how they come back, and if prison is criminogenic or problematic, you know, that should weigh into it, you know, or we should change? I don’t know, I’m just saying that there has to be some rational connection between the sentence lengths that we come up with, and the outcomes we’re trying to get if it’s going to be effective policy.
Carissa Byrne Hessick
I agree with you. And I don’t know how anyone can look at the prison system that we have now and say, that’s where we should a) keep human beings, or b)put human beings if what we want them to do is not commit crimes when they come out. And the fact that we haven’t changed that I think says horrible things about what we as a civilization are willing to endure here in the United States.
Josh Hoe
Well, one thing that I have to say . . . there’s really a lot of books recently that I’ve run into where I’m reading them, and it feels like ‘old home’ week because you’re talking to a ton of people I know; we already talked about John Pfaff you already talked about Rachael Rollins, who’s been on the show, and you even talked to my friend Shon Hopwood. Yeah, he’s a great, one of my favorite people. But you don’t seem to share his optimism for a lot of this getting fixed through traditional means. Am I reading you right?
Carissa Byrne Hessick
I have my good days and my bad days about whether I think traditional means we’ll do much. I mean, the truth is, I think it was a lot of small decisions that got us where we are and there are gonna have to be a lot of small decisions to step off this path. So I think that individual prosecutors have a lot that they could do. I think individual judges have a lot that they could do. When I wrote the book, I wasn’t very optimistic that there was a lot that defense attorneys could do. But since the book came out, I’ve talked to a lot more defense attorneys. And I think I’m wrong. I think that there’s a lot more than individual defenses can do, but I also think there’s a lot that individual Americans can do. I think we can ask the hard questions of district attorneys when they’re running for office, I think that we can tell our elected officials that we think the mandatory minimums need to be changed, I think we can ask questions like, why is so much of the state budget going to the state prison as opposed to social services when it’s pretty clear that if people didn’t live in poverty, that our crime rate would be significantly less? And I think, frankly, that’s one of the biggest things that we have to do is we have to tell each other that if we really care about preventing crime, the way to spend our money is not on punishing people, the way to spend our money is in creating the conditions that make that crime less likely. And some of that is having some police on the streets? Probably some of it, but a lot more of it than that is social safety nets, and making sure that people have genuine opportunities to better themselves in life, and that they don’t have to go hungry, if they don’t steal something, for example, and to make their life not so unpleasant. that if they have a rude interaction with someone on the bus, their reaction to that is to pull out a knife and stab that person. We’ve done very little in this country to create a situation where leading a life without crime is the best alternative. But a lot of people have.
Josh Hoe
At the very beginning of the book, you asked the question, Why does our system pressure innocent people to plead guilty? Have you come to a conclusion to that question?
Carissa Byrne Hessick
I believe that the system is designed to make everyone plead guilty. And it isn’t particularly interested in sorting out the guilty from the innocent. And so we shouldn’t be surprised when innocent people plead guilty as well.
Josh Hoe
One question I’m asking this year, and in some ways this interview has all been about it, is this tough on crime narrative that’s sort of been dominating this year. How do you think people should respond to both parties doubling and tripling down on tough on crime solutions in a political sense? You at least delved into politics a little bit at the end of the book.
Carissa Byrne Hessick
Yeah, I think that people need to be more precise about what’s happening in the country. And I think for folks who don’t support punitive policies, I think that includes saying things like, it’s true that shootings have gone up across the country, I think that needs to be acknowledged. And then the next question has to be, what would be the best way to prevent something like that from happening, right, that I think sort of can help change the narrative and it also, I think, indicates that the person is speaking in good faith. For the folks who are trying to push up more punitive policies, because of the uptick that we’ve seen in shootings and homicides, I would say your policies stink, and they’re not designed to address the problem. And this shouldn’t be about rhetoric, it should be about solving problems. And so often what I’ve seen in the research that I’ve done, for example, on state criminal law and policy, [is that] rhetoric takes a front seat, and how we can actually fix the problems that we care about rarely gets mentioned. And that’s, that’s just, it’s terrible. And I don’t know that there are many other areas in life where we would accept that, right? I mean, when we’re having supply chain problems, people are saying things like, Okay, well, should we change this law, or this law, or blah blah blah blah. When it comes to criminal law and crime, it’s too easy to just bang the table and say, put them in jail, even though anyone who’s looked at this for more than just a little while knows that that’s far from the best solution.
Josh Hoe
So this year, I’m asking again, if there are any criminal justice-related books that you might recommend to others; are there any particular favorites for you, aside from the obvious one that you wrote? 2
Carissa Byrne Hessick
Oh, I’ll mention one that came out several years ago, and I imagine that your listeners have probably read it, but I’ll just plug it because I think it’s beautifully written. And that’s Locking Up Our Own by James Forman. I think it’s the best book that I’ve ever read about the criminal justice system. It talks about crime, and it puts a very human face on it. And I think it challenges all of us who keep saying things like the criminal justice system is too harsh, to remember that it got there, it got that way for a reason, and that communities were plagued by crime, and they weren’t given a lot of other options. And it’s also, as I said, just a beautifully beautifully written book. I was crying on the airplane as I read it.
Josh Hoe
I totally agree. The one award that this podcast has ever won was for my interview with James Forman, Jr.
Carissa Byrne Hessick
Congratulations. It’s such a beautiful book, and it’s so wonderfully told. 1
Josh Hoe
He was like my first big guest, way back five years ago, or something like that.
Carissa Byrne Hessick
He’s amazing. The next book, this is, I guess I’m just previewing who you’re going to need to have on as a guest in a couple of years. I’m reading the manuscript right now so that I can write a blurb for it.
Josh Hoe
Well, I can’t have already had that person on if you’re writing . . .
Carissa Byrne Hessick
His name is Jeffrey Bell, and he’s a law professor at the William and Mary Law School. He was a prosecutor for a short period of time. And he’s written a book about mass incarceration, and about how we have these twin problems in America, where we’re both too harsh and we really don’t care enough about serious crime. So the idea that we don’t even really bother to solve so many serious crimes, and yet, we’re processing people who have public urination cases.
Josh Hoe
And one of the things I often say, when you know, people get on my case about being anti-police, I’m not really anti-police. I just think that it’s odd that they use all their resources on misdemeanors, and, you know, so comparatively little on serious crimes, not because I want people necessarily be more punished, but because, if someone isn’t currently a danger to society, it would be nice for the police actually, I don’t know, I’m sure people get mad at me for saying that. But the research that suggests that the clearance rates are, you know, anywhere from 5-25% on most major crimes – pretty solid research from what I’ve seen . . .
Carissa Byrne Hessick
It’s true, and I’ll say this, I was listening to a talk by some social scientist who watched all of these recordings for these community policing initiatives where the police would go out into the community and meet with community members and hear their concerns. And depressingly enough, he pointed out that, you know, he kept track of them. He did a content analysis so that he could, he could actually have the numbers of what people were all talking about, like noise complaints, and homeless people, all of the quality of life stuff where we’re like, I can’t believe that that’s where police spend their time. It’s the residents that they’re hearing from who are telling them to do this. And I’ll say this, the message back to them is not, oh, well, we’re not enforcing the public urination laws, because we’re trying to solve murders. They just say, Okay, thank you, we’ll do our best. And then they have pressure from the community. So again, I think part of this comes back to the American public; we’ve never been forced to try to prioritize the things that we care about. The people in power have lied to us and made it seem as though we can have it all. We can have a cheap system that sorts the innocent from the guilty, that pursues all of these, ‘quality of life’ crimes and also takes serious crime seriously. And in reality, we don’t, we don’t really get any of those things, or at least we don’t get them well.
Josh Hoe
I always ask the same last question. What did I mess up? What questions should I have asked, but did not?
Carissa Byrne Hessick
Oh, you should ask me What’s the next book?
Josh Hoe
Oh, what’s the next book?
I guess that’s the second from the last question.
Carissa Byrne Hessick
I want to write a book about sentencing. I’m working with the American Bar Association right now. I’m on their sentencing Task Force. We’re trying really hard to do exactly what you said, which is to try to come up with some rational way to talk about punishment and to structure punishment. And I actually think that there’s a lot we could learn from, from some of our other common law countries. You know, I told you, our legal system is descended from the English legal system. So we can learn a lot from the English legal system, but so is the Canadian system and the Australian system. And I’ve been doing some research, and what they do looks very different. And it does look a lot more sensible. And so I think that there’s, I think there’s a lot of room for improvement. And I think part of it is about trying to think outside the box, and not letting ourselves get bogged down in the really punitive politics that we’ve had for the last half-century or so.
Josh Hoe
And where can people, where would you like for people to find your book?
Carissa Byrne Hessick
The Punishment Without Trial book? You guys can get it wherever you want to get it. If you want to get it online, at a bookstore. That’s great. If you’d like me to sign a copy, I have an arrangement with my local bookstore here called Flyleaf Books. And if you order, you go to their local author’s page and you can click a link there, and I can personalize it and sign it for you and everything like that, and they’ll ship it out to you.
Josh Hoe
Oh, that’s pretty cool. Well, thanks so much for doing this. I mean, we’ve known each other for a long time on Twitter, and this is the first time we’ve ever been face-to-face. So it’s really nice to get to talk to you for a little bit.
Carissa Byrne Hessick
I know, our first conversation, I hope we can meet in person someday.
Josh Hoe
Absolutely. Thanks so much.
Carissa Byrne Hessick
Great to talk to you.
Josh Hoe
And now, my take.
Look, I took the plea bargain, mostly because A, I did most of what they charged me with, and B, they were threatening me with the trial penalty. And most of what I got charged with overall was a bunch of different charges for more or less the exact same behavior. A part of me wanted to be accountable. But a part of me didn’t want to risk doing decades when the deal would get me at worse two or three years of time. And this, to some extent, highlights many of the problems with the plea bargaining system. I do think it’s really problematic that our system has changed from a trial system to a plea bargaining system, and a world in which courts allow unlimited plea bargaining, who really knows what anyone really did, or what anyone is really being held accountable for.
One of the reasons I’m such a big proponent for alternative ideas, like using restorative practices, is because these alternatives emphasize accountability, more than punishment for punishment’s sake, or convictions for conviction’s sake. And as we mentioned in the interview, so often, the deterrent signals that are being sent are not clear. And the reason why sentences are set up the way they are is not clear. And so none of the messaging that’s going on really has any impact on society in any way except for negative impact. Look, if somebody tells you that the answer to crime is simply making more arrests, locking more people up, and enabling more and more pleas, and less and less accountability, I have to ask if they’ve been paying any attention to all the ongoing disasters our criminal justice system has represented over the last five decades. Unfortunately, the forces of tough on crime are rising yet again. And here we are. Just like always, we find ourselves with a problem that is arguably at the core of mass incarceration, and without any easy solution, or any path to doing anything positive to fix it. Folks, we all have been working pretty hard. And we’ve all been really committed to change. But I have to conclude that sadly, we have a lot more work left to do, and a lot more organizing still in front of us.
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