The coronavirus pandemic has seriously impacted the criminal justice system—as prisons experience severe outbreaks, states release nonviolent offenders, trials experience delays, and some jurisdictions halt arrests for misdemeanors to keep jail populations down. On this episode, criminal justice experts Emily Bazelon and Paul Cassell weigh in on those and other changes affecting criminal justice systems around the country, and potential long-term impacts. They also explain defendants’ rights under the Constitution as well as victims’ rights, and detail some recent lawsuits filed, both on behalf of prisoners arguing that being detained in the midst of a pandemic violates the Eighth Amendment’s protection from cruel and unusual punishment, and by victims requesting notification of perpetrators’ release. Bazelon is the author of Charged: The Movement to Transform American Prosecution and End Mass Incarceration and Cassell is a former federal judge who now specializes in victims’ rights and is a law professor at the University of Utah. They join host Jeffrey Rosen.
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PARTICIPANTS
Emily Bazelon is a staff writer at The New York Times Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is also a co-host of the podcast Political Gabfest for Slate, where she was previously a writer and editor. Her most recent book is Charged: The Movement to Transform American Prosecution and End Mass Incarceration, which will be released in paperback in May.
Hon. Paul G. Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law at the University of Utah. Professor Cassell was a U.S. District Court Judge for the District of Utah from 2002 to 2007, and he has argued cases relating to crime victims’ rights before the Supreme Court and various courts around the country
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Speedy Trial Act of 1974
- Charged: The New Movement to Transform American Prosecution and End Mass Incarceration by Emily Bazelon
- "Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois" by Paul G. Cassell and Richard Fowles, University of Utah College of Law Research Paper (Feb. 2020)
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Michael Markus and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan, non-profit chartered by congress to increase awareness and understanding of the constitution among the American people. The coronavirus pandemic has dramatically impacted may aspects of American life including the criminal justice system. Prisons have experienced serous outbreaks. Some states have released non-violent offenders, and some trials have been delayed. On today's episode, we'll explore the constitutional and legal dimensions of challenges to the criminal justice system in light of the coronavirus crisis.
I'm joined by two of America's leading experts on criminal justice and the constitution. Paul Cassell is the Ronald N. Boyce presidential professor of criminal law and university distinguished professor of law at the University of Utah. Professor Cassell was a U.S. district judge for the district of Utah from 2002 to 2007, and he's argued cases relating to crime victims' rights before the U.S. Supreme Courts and many courts around the country. Paul, thank you so much for joining.
Paul Cassell: [00:01:18] It's great to be here, Jeff.
Jeffrey Rosen: [00:01:19] And Emily Bazelon is a staff writer at the New York Times Magazine and the Truman Capote Fellow for creative writing and law at Yale Law School. She's also a cohost of the Slate podcast, Political Gabfest. Her most recent book is Charged: The Movement to Transform American Prosecution and End Mass Incarceration, and it will be released in paperback in May. Emily, congrats on the paperback, and it is wonderful to have you back on the show.
Emily Bazelon: [00:01:47] Thank you. Glad to be here.
Jeffrey Rosen: [00:01:49] Paul, let's begin with you. You are representing victims in, case in Utah arising out of lawsuit that the ACLU has filed against the Utah criminal justice system alleging state law claims including cruel and unusual punishment. Tell us about the ACLU's claims and your counter claims on behalf of victims.
Paul Cassell: [00:02:13] Well, thanks Jeff. Yeah, it's a very interesting case. It's one, I think, that's similar to, a lot of other, litigation that's being brought around the country. Here in Utah, our Utah ACLU has put together information, general information, suggesting that prisoners may be at special risk, of COVID-19 infection, and, and even dying of those kinds of infections. And so they have sought, directly in our Utah supreme court, the appointment of a special master who would have authority to release, both prisoners from the state prisons and also detainees from our county jails; those who are being held a- awaiting trial or serving short sentences. And they've alleged, interestingly you might think, "Oh, okay. Well, the ACLU must be alleging, a cruel and unusual punishment claim under the eighth amendment of our United States Constitution," but the ACLU has decided to make a, a different claim; one that, that's limited to the Utah state constitution.
like many states, Utah has a co- its own costit-... Well, all states have their own state constitutions, and like many states, we have parallel provision for bidding cruel and unusual punishment, and we also have a provision that's, interesting. It's only found in a couple of constitutions. It forbids treating, detainees and prisoners with unnecessary rigor. And so the ACLU has argued that, keeping, prisoners in close quarters with the COVID-19 outbreak violates, Utah's cruel and unusual punishment clause and the unnecessary rigor clause.
In response, our county authorities and state authorities have said that they're doing a good job, in handling the situation. The particular piece of the puzzle that I think I've brought, which is, I think something that is often overlooked is, we have a provision in our Utah constitution that requires noticed crime victims whenever a prisoner is going to be released so that the victim can, take protective steps, and be aware, and be ready for, responding to that release. And so we have argued that this idea of simply releasing prisoners in view of the COVID-19, outbreak would need to take account of crime victim's rights, and indeed, we think the whole lawsuit should be dismissed because, the way it's set up, it hasn't given any consideration at all to the rights of victims.
So those are some of the competing concerns that we're litigating out here, in Utah.
Jeffrey Rosen: [00:04:28] Emily, can you tell us about other cases across the country raising cruel and unusual punishment claims, and are they also being met in response by claims that victims' rights would be implicated by early release?
Emily Bazelon: [00:04:41] Yeah. It's such an interesting issue that Paul raises. So, yes. There have been a number of suits across the country. I'm familiar with a few of them. Yale Law School has been in involved in bringing a suit in Connecticut against, the Federal Bureau of Prisons for the way they're handling COVID-19 in the Danbury Prison. There ela- has been a successful suit so far in Cook County, which is Chicago, at their jail, where there was a really big COVID outbreak, and the county jail officials said, "We're doing everything we can. We're providing soap and hand sanitizer, and, protective gear," and then in along with the prisoners saying that that was not true, some guards stepped forward to say, "Actually, we don't have those things, and we really need them."
So that seemed like, a judge who was really dismayed at, the record in front of him. And in terms of victims' rights, I think that there's some competing considerations here. So one is this question of basic safety. What can prisons and jails do to make sure that the people they are holding are being held in conditions where they're not subject to a high risk of infection, but they're also not being isolated in their cells for really long time. That is a real, kind of, dilemma, I think.
And then I think there are, kind of, different levels of concern. this isn't so much a, like, confident- constitutional issue so much as just, like, a policy one. But I think a lot of criminal justice advocates had been advocating for not holding people charged with misdemeanors, especially if they haven't been convicted. And there are ways to, make jails, less crowded that probably have f- many fewer implications for victims, right? 'Cause we're talking about people charged with offenses that may have no direct victim involve. that's not always the case in misdemeanors, but it's often the case.
and so, that's another, kind of, contec- piece of context here that you can do some releasing that doesn't necessarily directly implicate victims' rights, I think.
Jeffrey Rosen: [00:06:45] Paul, Emily raises a very interesting issue of the status of misdemeanors. some police departments including the National Police Department have announced that its officers will essentially stop making misdemeanor arrests with the exception of domestic violence or driving under the influence and other jurisdictions, including Washington D.C., have chosen to immediately release almost 100 prisoners convicted of misdemeanors. and ACLU's suit demands that an independent expert be appointed to make decisions about further releases.
So tell us, please, about other cases around the country, but involving the voluntary release of misdemeanant, decision not to arrest them, and suits arguing that holding misdemeanant raise cruel and unusual punishment claims. How are those fairing?
Paul Cassell: [00:07:36] Yeah, it's an interesting question, that, that you raise, and that Emily is raising. I mean, let me just, take a couple of, of, of bites at the apple here. I- it's interesting. You might think, "Okay, well let's just let, folks out who have been charged or convicted of misdemeanors," and that's the, the line we ought to draw, but is, is your question suggest, Jeff, and I think this too is Emily's comments suggest that may not be the best line for deciding where we're going to, to start releasing people.
you mentioned that in Washington D.C, DUIs, obviously, a significant public safety risks, involved with those, but even more significant are the domestic violence cases. That's been the ones that we've been focusing on, here in, in Utah. Couple of my clients, in the, the case in front of the Utah Supreme Court that we were talking about are victims of domestic violence, related, crimes, at least that's the charges that have been filed.
And so you wouldn't want to, I think, simply say, "Well, this, you know, this person has only been charged with a misdemeanor. We can sweep them o- out the door." Domestic violence has a way of escalating, to potentially, homicidal levels if it's not, the cycle of violence isn't interrupted. but in general, I, it's interesting. When we look at what's happened over the last, I don't know, six weeks or so here in, in Utah, some of the jails are down about 50 percent in terms of the number of people who are held there. And I think, I think, frankly, el- our Utah county authorities and state authorities deserve a lot of credit. They've made, an informed, choice about which kinds of, detainees could be released and, and which, need to remain, in, i- in custody. And I think Emily put her finger on, on sort of the, the first, starting point for that dividing line would be is this a victim-related offense or not.
I mean, if we could have a long philosophical debate about what, what is or is not a victim or a victimless crime, or victim-centered crime, but I mean, I think we all have a sense that, "Look, the domestic violence case is quite a bit different from, you know, a bad check case," or something like that, and, and we can start to, to think about, releases, in, in that bite.
Jeffrey Rosen: [00:09:32] Emily, you wrote a piece at the beginning of the crisis on March 13th arguing our courts and jails are putting lives at risks. You began by saying that only a small number of courts and justice systems seem to have significantly adjusted their procedures to guard against the corona pandemic that's putting tens of thousands of people at risk for not good reason. And you say, "It also makes sense to stop arresting and incarcerating people for technical that is non-criminal violations of parole and probation." Tell us more about why you think states are not doing enough and what you think they should do when it comes to lower level offenses.
Emily Bazelon: [00:10:07] Well, when I wrote that in the middle of March, it was really hard to find examples of states or counties doing anything. I sited few of them, as you mentioned. Since then, some states have stepped up, and it's interesting. You see some republican conservative governors making important moves on this front. So in Maryland, Governor Hogan signed an order last week to release about 900 people. Iowa has released twelve hundred people. and in Oklahoma, the governor, Kevin Stitt, has used clemency a lot more than some, governors we usually call liberals like Andrew Cuomo in New York or Gavin Newsom in California.
so it's interesting to see these, maybe, surprising, different, calculations by different politicians. I am glad that you brought up people who are being yanked back in on technical violations. we have four and a half million people in this country who are under what's called supervised release from courts, which means parole or probation. It's just a staggering number, and they can get rearrested for doing things like missing curfew or traveling out of state without permission. These are not crimes, except if you are under court-supervised release. And right now given the risk of COVID, to be sending people back to jail for these technical violations, like I said, it just seems like not the right balance of, of cost and benefit here for people's health.
Jeffrey Rosen: [00:11:36] Paul, how would you characterize the very different decision of, that Emily describes by different jurisdictions to treat misdemeanant and lower-level offenders differently? The Marshall Project contrasted Philadelphia, which has decided from the beginning of the crisis, to stop bringing people arrested for non-violent crimes like burglary and vandalism to police stations and jail. With New Orleans, where cases had already as of a few weeks ago reached nine times the per capita rate of Philadelphia. describe how jurisdictions are treating this challenge differently, and where you think the balance should be struck.
Paul Cassell: [00:12:14] That's an interesting question. You know, I think one of the, the things that we need to keep in mind about our criminal justice system is, that's a misnomer. It's actually criminal justice systems as Emily and, and many others have written about. We've got 50 state systems, a federal system, and, and District of Columbia and a variety of other jurisdictions as, as, as well. When we, so when we say, "We should be doing X or Y to, to respond to the, to the problems," we probably need to be multiplying that by 50, because the conditions in Philadelphia may be very different than the conditions in New Orleans.
I think it's gonna be very interesting to go back in, let's say, a year from now and see, "All right. How did things work out in Philadelphia?" You mentioned that they're releasing, you know, suspected burglars, for example. that would seem to me to be a, a, a r- a move that has some significant public safety risks to it. but that's an empirical question. what happened to the world when, when a lot of people were not, arrested that, and, and jailed that where they, would have been before the, the, the pandemic broke out. I know that I think one of the reasons the ACLU and some of the other groups who are concerned about mass incarceration are bringing these lawsuits is that they think the results will be positive, that they will be able to go back after the fact and say, say, "Look, we had all these folks locked up. We let them out, and the world didn't come to an end. see, we are incarcerating too many people."
but they all, there have been, other voices that say, "Well, every, for every benefit, there may be a cost that needs to be considered," and some of these people who have been released have gone on to do other things. I don't want to, to argue my anecdote, but I will have to mention at least one anecdote that I'm familiar with here in Utah. as I mentioned earlier, our, our authorities have been very proactive in releasing people, but one of the first people they released within 48 hours had broken into a home and taken a woman at, at gunpoint and was holding her. Fortunately, the police were able to get there and rescue her, but she believed that if they police had not arrived, she would have been killed.
So there, we're gonna have to go back, I think, I'm hoping researchers, will take a look and see, you know, answer this question. This was either, a good move in terms of saving money and, and exp- reducing exposure to, to, the COVID virus, or this was a, a bad move because it created lots of safety, risks that, that ended up materializing.
Jeffrey Rosen: [00:14:31] Emily, maybe one more beat on that policy question. H- h- how should states balance the urgent threats to the health of detainees with the possible costs of re offense and also reinfection in the case of people who are being released? Have any states or localities struck this balance in a thoughtful way?
Emily Bazelon: [00:14:49] Well, here's one thing to consider about the data, and I agree with Paul, that, not arguing by anecdote and looking that the empirical questions more broadly is really important. So we know that, states like New York have reduced, incarceration by more than 50 percent. Before the pandemic, the Riker's population was way down, and crime continued to decline. We also see significant, reform to pretrial process in New Jersey that has also significantly reduced the jail rates there by 40 percent. Again, crime continues to decline.
So I think that in places like New Orleans that have not had those kinds of reforms, there could be a really good reason to think that a lot of people are in jail who, from a public safety point of view, is safe to release. I also want to note that at one point early in the crisis, the DA in New Orleans said he wanted to hold onto people because it would be better for them to be in jail than potentially out on the street, because he wasn't sure if they had stable addresses.
I mean, that's the kind of paternalism that, I mean, there's nothing in the constitution that says, "You're supposed to be able to hold someone for their own good in a public health crisis." and so I think that's another thing to, kind of, take into account here. Where are these states and counties coming from? and, you know, finally, I mean, the problem with individual thing- cases in which something goes wrong like the one Paul brought up in Utah is that they are real, real things that happen, and sometimes they can be tragic. But they don't take into account the hundreds or thousands of people who get out who's families are joyful to see them, who are better off and their communities are better off for having them there.
I mean, we know a lot, now, about the huge cost of mass incarceration. And so, I just wanna push back on only thinking about the scary cases when, we consider this, when there are so many, actually, very, like, calm and orderly, things that happen as a result of prison and jail releases.
Jeffrey Rosen: [00:16:54] Paul, in addition to the case you described representing victims, you're also involved in cases representing detainees. Tell us about the legal claims of detainees who are arguing for humane release under state and federal law, and whether or not those claims are succeeding.
Paul Cassell: [00:17:12] So it's interesting. when I, I was a ju- a judge, as you mentioned, for a few years and, there were frequently would be motions to, to release a prisoner that would, that would come across my desk or the desk of my colleagues. And I, I think just as a statistical matter, everyone would agree that those, those kinds of requests met with very little success historically. There were not, significant legal grounds that, that could be made. Let me be clear, my- I looked at those cases, and my colleagues looked at those cases very carefully, but the, the grounds for, for releasing someone from custody were, were close to non-existent as a matter of law.
One... We've had two changes, I think that are worth, noting, and I'll be focusing here o- on the federal system, but I, I think there are some analogies in the state systems as well. One is that the First Step Act, passed, you know, with the support of President Trump and, and republicans in the congress as well as, obviously, many democrats, not only, reduced some of the mandatory minimum sentencing schemes that were out there, but also created some opportunities for prisoners to obtain release. And the one that I think is attracting, the most attention right now is this notion of compassionate release, that there may be some person's, particularly elderly prisoners, who o- ought to be released, and, and let's remember, when you're incarcerating someone who's very elderly, not only are they at risk of, of COVID infection, but, they also may have other medical needs that can be very expensive for the tax payers to, to attend to. We also know as a statistical matter, that those who are over a certain age are, are much less likely to commit particular crimes than would be, you know, a younger cohort. So the idea was, "Let's see if we can loosen up, the, the opportunities for release there."
And so compassionate release claims are now being brought, by elderly prisoners and other relying on this new provision in the First Step A- First Step Act. And again, I think it's fair to say most of those claims are being denied, but it, what's, I, I think, is a bit of a C-change is, a significant fraction of those cases are being granted. individual judges are looking at particular circumstances and particular cases and saying that, I guess, the taxpayers would be well-served by releasing a particular person, and the, and the prisoner would be, well-served as well. That landscape is evolving rapidly. I mean, we're, we're, what, six weeks in give or take to the, to the, serious effects of the pandemic here. So, you know, what are trends or what are, what's, w- what's happening out there. I think it's fair to say a lot of different things are happening out there. And that's why, when there's a legal oppor- a legal uncertainty, I guess, there's legal opportunity. And that's why I would expect to see, just making a prediction here, more and more claims filed by more and more defendants, because where previously they did not have a shot at winning realistically, now there is a realistic shot, at least for some prisoners to obtain compassionate release.
Jeffrey Rosen: [00:19:55] Emily, are compassionate release claims under the First step Act a meaningful avenue for prisoners to be released? What are you seeing across the country, and do you think additional legal claims like Class Action Suits might be necessary as well?
Emily Bazelon: [00:20:09] Yeah, that's a great question. I mean, com- compassionate release can be really important right now given the situation, especially for elderly prisoners, some of whom have already been in prison for decades, the risk is much greater. And so the idea that you could take into account, the sentences they've already served and the public health conditions and come to this conclusion, as Paul said, that this just doesn't serve the taxpayer interest or, you know, kind of larger moral retributed interest, seems to me like it could be really significant. I do think that it is hard when you are doing these cases one by one for the numbers to grow. On the other hand, when people have committed serious crimes, I think there are reasons that you want to review each case carefully connected to victims' rights as, as Paul might bring up, and also for public safety reasons. So there are some tension there, right, about, you know, how you go about this.
Jeffrey Rosen: [00:21:05] Paul, let's turn now to cases raised on behalf of pretrial detainees and immigrants who are in custody. Joshua Matz in the Atlantic as part of the Atlantic NCC Battle for the Constitution series describes a series of cases under the due process clause of the fifth amendment. He notes the Supreme Court is held, that this provision protects immigrants in ICE or the immigration, authority custody. It also safeguards pretrial detainees who've been charged with a crime but not yet tried. And he said that several lawsuits filed recently including Class Action Lawsuits have tried to force the immigration authorities to comply with the principle that the government can't constitutionally seize and detain people and subject them to substantial risk of exposure to COVID, and then insists that inaction or half measures are acceptable. Can you tell us about any of these, fifth amendment due process claims for ICE detainees or pretrial detainees?
Paul Cassell: [00:22:04] Yeah. It's an interesting point, and I know the listeners of your podcast like the details of some of the constitutional claim. So let's just, unpack that a little bit, and then turn into the details of the, of the COVID litigation. So the eighth amendment, of course, forbids cruel and unusual punishment. So it applies to those who are being, obviously, punished. That is somebody who's been convicted of a crime. But what about someone who is being detained? Well, they should have, I guess, at least that much protection. But wait a minute, they're presumed to be innocent. And as you point out, the U.S. Supreme Court in a series of decisions has said, "Hmm, we're not sure that that's really characterized best as a punishment claim, but a due process claim, that in the course of adjudicating whether or not these people are guilty, they government has to treat them fairly." That turns out to have huge consequences on the ground in terms of what are the likely chances of success. I think the U.S. Supreme Court, i- it's fair to say, has taken a dimmer view of eighth amendment claims, cruel and unusual punishment, because, let's be candid here, every prisoner is gonna, have, some time on his or her hands, and we-, and might, alleged some kind of, allegation as a, as a means of, of perhaps, being released.
And so the Supreme Court, cognizant of those concerns, has created a very high bar for eighth amendment claims and has essentially said, "Look, unless you can prove that the government was deliberately indifferent to your concerns, you don't have a constitutional claim." But when you go back to pretrial detainees and immigrants, those who have not been found guilty of a crime, the balance changes and changes fairly considerably. You cannot say, "Well, well, let's just give the government, the benefit of the doubt here. After all, they've proven someone who's guilty." And so those claims have a much lower bar to clear. the tricky things is, I think, one that was also built into your question. All right, are we gonna litigate this on a case-by-case basis, because it may well be that the government is treating one person very, very well, but then in a adjacent cell, they're treating someone differently. Can that be litigated on a, on a class basis? or does it need to be litigated on an individual basis? I think that's, frankly, one of the things the courts are struggling with right now.
you can see, obviously, the arguments both ways. We would prefer to look at both cases individually, their unique circumstances Emily was pointing to potential public safety risks in a particular case or potential medical needs in a potential case. So if we had the resources, we'd like to have judges to look in each and every case. But realistically given the volume of these cases, if, if you're saying, "Look, thousands of people are being held, in ICE custody in conditions that are, that, particularly in the wake of the pandemic, are, are not proper," that, that's hard to do on a case-by-case, defendant-by-defendant, or detainee-by-detainee basis and may be the kind of thing that justifies class action treatment.
Jeffrey Rosen: [00:24:51] Emily, w- what can you tell us about these fifth amendment cases. Joshua Matz reports that the immigration cases have fared better in court than the pretrial detention cases. He notes that some judges have ordered emergency release for ICE detainees, but these claims have gotten far less traction in challenges brought by pretrial detainees. A federal judge in Chicago, I'm reading from Matz, has ordered improved protocols at the Cook County Jail. A federal judge in Washington has ordered extensive reforms in D.C. jails, but other judges have expressed anxiety about releasing accused criminals without a highly individualized assessment of their flight risk and dangerousness. thoughts on this interesting and complicated fifth amendment question?
Emily Bazelon: [00:25:37] Well, it's interesting that in the ICE context of immigration law, claims would be having greater success. When we usually think of immigration laws, like, kind of lawless, even though that's a sort of paradoxical thing to say, but people have almost zero rights in the immigration law context. So, you know, I think it suggests a real concern about the conditions in ICE facilities and the reasons why people are being held there, especially in light of the, sort of, cancellation of asylum claims that has happened under the Trump administration. so I think, you know, the kind of urgency and, just changing legal picture for immigration in the last couple of years may be informing the decision of the judges in those cases.
Jeffrey Rosen: [00:26:20] Paul, Joshua Matz also notes that in cases where fifth amendment challenges have proved ineffectual for pretrial detainees. Some ar relying on the sixth amendment. you are one of America's leading experts on the sixth amendment as a judge and a scholar, and what do you make of these opinions where detainees are claiming that their right to the assistance of counsel is being denied by detention in the COVID crisis?
Paul Cassell: [00:26:47] So what we're ending up with, here is this problem of volume. When you have something like the, the COVID pandemic that affects so many people, so many detainees, so many defendants, you end up having difficulty trying to provide the kind of individual representation that the sixth amendment requires. The sixth amendment, of course, promises not just a group of people one lawyer, but it promises each and every defendant the right the effective assistance of council. And so how does that, how does that work?
just to circle back to the, the case that we started talking about at the beginning of the hour, my Utah Supreme Court case i- is presenting that very issue. The ACLU has said, "Hey, wait a minute. We cannot, wait for, each and every individual defendant to be able to, to advance through his or her own lawyer of COVID claims. That's just, not realistic," argues the ACLU, "Because of the volume that would be involved. The courts would be overwhelmed. Individual lawyers would be overwhelmed. So it needs to be done on a, on a class basis."
I'm on the other side of that issue in, in that particular case, and the, and the county authorities are as well. And they've said, "No. it is feasible. Our courts here in Utah, while they've, they've shut down, some other non-essential functions with regard to questions of, of detention and, and bail, and, and immediate health risks, the courts remain open and elitigate those individual claims."
So I, I, I think it's, you know, the bigger picture here, it's, you know, what is this gonna look like in another month or two? I think we'll be able to say much more effectively, or, or with much more precision whether these claims are succeeding or failing. But it, it's an interesting example of our constitution having been structured to be flexible enough to deal with not only the routine and day-to-day kinds of claims, but it's designed to be capacious enough to deal with a pandemic and create a court system, that can, consider these claims, and, and, ultimately adjudicate whether the rights of, of individuals are being protected.
Jeffrey Rosen: [00:28:44] Emily, sixth amendment rights that are being raised include not only the assistance of council right, but also the sixth amendment guarantee of a speedy trial, and, many federal or state courts have suspended or postponed criminal jury trials during the crisis including New York, where state courts ordered courts to finish pending criminal and civil trials while delaying new trials, and there have been some suits filed arguing that these delays violate the sixth amendment right to speedy trial. what can you tell us about these cases as well as possible solutions like video conferencing and other technologies that might meet the sixth amendment requirements?
Emily Bazelon: [00:29:24] Right, I mean, the Speedy Trial Act on paper looks like this very powerful tool for getting people speedy trials. In practice, courts often suspend speedy trial rights at the request of the prosecution or, the state. And so that's what you're seeing here. in the aftermath of Katrina in Louisiana, there were enormous speedy trail delays in that system that went on for years and, I think were just egregious violations of people's rights. so that's the kind of fear here is that once you start suspending speedy trial rights, you create this very long queue that prisoners have to stand in, at the end of the crisis.
We are learning that video conferencing can get a lot of the work of the courts done. There's a really interesting experiment right now in Florida where a federal trail is proceeding despite the pandemic through video conference. people from the public can call in and listen on audio. The judge didn't wanna, like, have the video conferencing crash by letting everybody in, but there is some public access to the proceedings. And it's a trial about a really important ballot measure that passed on Florida a couple years ago that's supposed to give former felons the right to vote, but has been, really in some ways, gutted by the governor and the Florida legislature by requiring people to pay back fees and fines before they can, exercise their right to vote.
So experiments like that.I mean, the Supreme Court, as you know, is going to video conferencing and a live audio stream for the first time ever in May, and I think that what would seem like a kind of common sense solution is that you take the people who's speedy trial rights are... The, you take the people who's clocks are running, f- who've already been held for a long time presumed innocent, and then you try to make those trials happen, using the technology and create al- a kind of line that way so that people don't wind up being in jail for years when they haven't been found guilty.
Jeffrey Rosen: [00:31:22] Thanks for noting the Katrina example, and of course, the Supreme Court live oral arguments. Paul, you are a distinguished former federal judge. What do you make about video and audio technology as a possible solution to the long delays that are resulting from the crisis, and what factors do judges weigh in determining whether or not the sixth amendment right to speedy trial has or has not been violated in times of emergency?
Paul Cassell: [00:31:52] That's a great question, Jeff. the o- the one thought that comes back to, to my mind when I hear the, these overarching questions about how are we gonna do this, I recall Chief Justice, Rehnquist very famously saying, "Look, the constitution is not a suicide pack. You can't say, 'All right, I have a right to a speedy trial, so now I want 50 people in close quarters here coughing on each other and pick a jury.'" I mean, the constitution was never design to do something, like that. It was designed to be interpreted, reasonably in light of, of the circumstances that exist.
And so, I, I do think, the one thing that's come out of, of the pandemic that, you know, there were lots of, obviously, horrific consequences and, and, and, and, and adverse consequences, but I think it has served as a spur to technological innovation. I mean, it is a bit odd that our United States Supreme Court, one of the most renowned judicial institutions in the world, is just now getting up to speed with, the possibility of doing a, a telephone, conference argument. Of course, district court judges all around the country have long had telephone conferences for the convenience of, of litigants. It reduces expense considerably and can increase the speed of the proceedings, considerably.
just to, again, just to tell one small story, to show how this working. I, I do a lot of crime victims' rights litigation in Utah and elsewhere, and two weeks ago, I was a a participant in the first Zoom oral argument by our Utah Supreme Court. And it was interesting. It was exactly the kind of case that you were describing. it's a, a case that involves victims' rights during a preliminary hearing, somebody who was, accused of a serious crime but is presumed to be innocent. So the Utah Supreme Court wanted to move that case along rapidly, but at the same time, hear the victims' and the state's and the defendant's constitutional arguments. And so they arranged for a Zoom argument, and, and, the public could watch live, and the justices were all able to, to ask questions.
And so I, I feel like that's, was a very, efficient way to protect all the interests concerned, and I'm hoping that the courts will, will look, a- at that, more seriously. I do have to say just a concluding note on that, it was, it was a lot of fun as a law professor, because usually, I get to call on my students, when they raise their hand to raise a point, but this is, I think, the, the first time in history that a litigant got to say, "Yes, you, Chief Justice Durrant, I see you in the back of the room there with your hand up. Can I answer a question for you?" And, but, you know, other than that f- minor little, glitch, I mean, the argument took a little bit longer to do, because of the technological, gaps here and there. But, I thought it went, extraordinarily well, and I'm hoping courts will, will think about those kinds of technological responses to what, is a very difficult circumstance out there.
Jeffrey Rosen: [00:34:35] Emily, your recent book Charged: The Movement to Transform American Prosecution and End Mass Incarceration, which is about to be released in paperback, takes a comprehensive look at the costs of over criminalization and makes recommendations for reform. How has the COVID crisis affected your thinking? What are we learning about our ability to release people? A- are crime rates going up and down, and how will the criminal justice system be changed after the crisis is over?
Emily Bazelon: [00:35:08] Well, so far in a lot of places, crime is declining. Now, we don't know whether that's gonna last. People are inside a lot more. social distancing doesn't really lend itself to crime on the street. On the other hand, it's not gone. and so, you know, we'll see whether this is a blip in the data, or whether it's a longer lasting trend. I mean, to return to some of the points about empiricism that Paul was making earlier, in a sense, we're running a big experiment as a country. There are some district attorneys, people who see themselves as progressive prosecutors like Jason Boudin in San Francisco or Dan Satterberg in Seattle, who you mentioned earlier or Larry Krasner in Philadelphia or Eric Gonzalez in Brooklyn, people who have been working to, get misdemeanor defendants out of jail, especially if they haven't been found guilty yet.
and so those experiments are going on because there are lots of other jurisdictions where prosecutors are, and judges are not making those kinds of moves. And it will, you know, I think the lesson that criminal justice reform advocates hope for is that they'll be able to show, "Look, this happened without a cost to public safety," and it proves the argument we've been making all along that so many people are being locked up who really don't need to be locked up from a public safety standpoint, and really, they're in, they're behind bars and the reflection of a drive to, increase punishment in America that dates from the '80s and '90s when crime was much higher, and the pandemic will actually allow us to kind of re correct that balance in a more permanent way.
If crime rises a great deal and those, assumptions start to look flawed and faulty, well then that will be a different kind of lesson, and I think, you know, from the point of view of criminal justice reform, a real problem, perhaps. But so far, that's not what we're seeing. So in this very, I would say still early moment, it looks pretty hopeful.
Jeffrey Rosen: [00:37:09] Paul, you called earlier on the show for data. What questions should we be looking at as we make decisions about reform and over-incarceration after the pandemic is over?
Paul Cassell: [00:37:22] That's a great question, and, and, i- it's interesting. I think Emily and I agree, and I think a lot of people around the country agree that this is something of a giant experiment. Let's take a look and, and see what, what, happens here. Let me be clear, I, I've, I'm probably a bit more skeptical than some people are that we can let, folks out of prison or jails and, and not see, bad things happen. But I'm, I'm hopeful that that will be the case. I mean, clearly if we could reduce our, our prison in jail populations, that would be, that would be a good thing for the taxpayers, good thing for, as it's been mentioned, the, the people involved both inside and outside of, of jail and prison walls.
I, I think, let me just predict where I see this going. I, I, I think what's going to happen in a year, we'll run the numbers, and we're going to find, that things did not work our perfectly, but that the sky didn't fall, and it wasn't as though there were unprecedented crime waves out there. It's going to be, sadly I predict, somewhere in the middle, and then the hard question becomes, "All right. So we were able to release, 1,000 people in New York, but the cost for that was three murders," or whatever it's gon-... I predict it will not be zero murders. It will not be zero serious crimes that have been committed. And then we, we'll have a very difficult debate about, "All right, what were the costs and benefits?"
I mean, this is... I, I'll take a little bit of, a page out of, of the critics of Governor Cuomo, here, who has become known, I guess, as the even one governor. He has said that the, I maybe I'm misquoting him slightly, here, but the gist of it has been, "Look, if even one person is saved because we have closed down businesses or other economic activities, i- it's worth while." I think the interesting question for him and, and others who, will be looking at this in a year is, "All right, would it be worth getting rid of bail reform if it saves even one life on the streets of Chicago, for example, because we've now released, a large number of dangerous people?" I mention Chicago because my latest law review article here, if I can offer a small plug, i- is to look at, the data in Chicago, where, reformers there have, significantly expanded pretrial releases. before the reform, I think about 80 percent of people in Chicago were released, and after the reform, it was something like 90 percent.
Well, there were consequences that. the research that I've done along with one of my colleagues was able to show some increase in, in violent crimes, but the really hard question, then, is, "All right, there certainly are benefits to letting people out early, but there are costs, and how are we going to balance those two things?" I think that's gonna be the debate we'll be having, about a year from now.
Jeffrey Rosen: [00:39:56] Thank you for that, and always great to plug [inaudible 00:41:36] articles on We The People. Emily, I don't want our conversation to end without noting that a recent, WBUR investigation counted 15,000 cases in U.S. jails and prison so far, that's COVID cases, and 130 deaths. Some have noted that according to this count, we have more coronavirus cases in U.S. prisons and jails than many countries have in total, including populous countries like Japan, South Korea, Ukraine, and Pakistan. do you agree or not with those who said that what's happening in U.S. corrections is a massive tragedy, and in addition to all we've discussed, what more should we be doing to deal with it?
Emily Bazelon: [00:40:40] Well, I mean, I certainly agree that 130 people dying is a huge tragedy. I would also note that when a jail turns into a real hotspot for the virus, which we've seen, there's a huge danger to the community, because staff, correctional officers who work in the jail or prison are also infected, and then can bring that unwittingly home to their families and their towns. So it's not only for the sake of the people inside, that we should be worrying and thinking about this. And I think that, thinking about the public safety calculus, in s- somewhat different terms because of the virus makes a lot of sense.
you know, one of the hardest questions always is, "Well, if, you know, one more violent crime occurs, does that throw a wrench into any efforts to let people out?" And, you know, it's an impossible test if that is the standard, but it has been one that's imposed, because I think a lot of times when you hear one terrible story of someone getting killed, it seems like there's no way to justify that cost.
I was writing about this very issue a couple months ago, because Dan Satterberg, the DA we've been talking about in Seattle, advocated for the release of a few dozen lifers in Washington. And I was about to write this up, and then I was looking ar- doing some research, and I realized that one of the people he'd released had killed someone afterward. And I though to myself, like, "Well, that must be the end of this effort that Satterberg is making, but I wanna call and see what he has to say." And what he said was, "Look, like, that was a terrible tragedy that happened. Of course, I regret that, but when I look at this group of people who were released as a whole, they actually have a lower rate of re offending than other long-time offenders. And so no, I'm not deterred. I'm gonna keep moving in this direction."
and I just put that out there as trying to give a different way of thinking about this question that allows us to take into account other kinds of values, and other kinds of ways of valuing life and thinking about communities. It's very hard, you know, to ever justify someone else's death, but there are lots of factors that contribute to the crime rate, and we need to sometimes look beyond these, kind of, cause and effect mechanism. Sometimes they're not really clear at all, and there are larger ways in which the cost of incarcerating people is something that we also need to be keeping in the front of our minds.
Jeffrey Rosen: [00:43:07] Paul, does that constitution or the legal system have a way of evaluating how many cases is too many and how many people should be released, many less were struck to learn to learn that Iran has temporarily freed more than 85,000 prisoners. The U.S. with more than 2 million inmates, has the highest prison population in the world. They're including more than 540,000 incarcerated people who haven't been convicted or sentenced, but remain in detention. How, as a legal matter, do you make sense of these numbers and have a sense of whether or not they're acceptable?
Paul Cassell: [00:43:46] So that's, obviously, a very challenging question, and one that courts are wrestling with all over this country, it's, and as you pointed out, even all over the world. the, what does the constitution have to say about this? Again, I, I, I made use the word earlier, but I, I think it's fair to say our constitution is capacious enough to deal with those kinds of challenges. So the cruel and unusual punishment clause doesn't tell us exactly what the cost benefit equation is. the due process clause doesn't tell us exactly how many lives on one side or the other of equation that, we have to accept. instead, we've created a system where we have judges appointed in both the federal and state system designed to be wise people, publicly accountable in some indirect way, but at the same time, having the, the freedom and flexibility, to make the right decisions. And they're going to have to, consider both sides of the equation.
I, I, I don't think that this is, you know, a unique problem to criminal justice, right? I mean, our country is in the grips of a huge debate right now about, "Are we shutting down too many, businesses, at the, in order to preserve, the lives that, might, be taken from exposure to the virus." And I, and I will say, though, that, I've tried to be sort of encouraging on a lot of the things we've talked about. I don't think that our country is very good at those kinds of costs benefit, analysis. I think Emily, was making a good point there. I'm sure that, the governor in, in, what was it, Washington, if that's the right place, is running into a, a lot of, people that are, are saying, "Wait a minute. Even one life, lost from a release is too many."
I don't subscribe to that point of view, but on the other hand, I, I think that you have to give very significant, weight to the fact that someone, lost their life as a result of, of a changing criminal justice policy. So, I, I, I guess the best... I know I, I haven't answered your question directly other than to say the debate will continue. The discussion will continue. I do think these, that emperistist, this is probably a point where Emily and I, I think, are probably strongly aligned, these are ultimately empirical questions. I mean, how many people die? Did anybody die as a result of these greater releases? Maybe the answer is zero and we can all be happy. I suspect it won't be zero, though, that there will be some additional homicides, some additional sexual assaults and other serious crimes, and then we're gonna have to grapple with, with both sides of the equation.
I do think she's right in suggesting that, "Look, just because you can point to, to one horror story shouldn't mean the end of any reform effort." That cannot be the, the standard that we measure these reform efforts by. But at the same time, it can't be the case that those costs are, are swept under the rug and we say, "Well, everything's hunky-dory, because by and large, most of the folks did well." We, we know these are dangerous populations that are, that are behind bars, at least to some degree, and, and so that has to be, factored into the cost benefit calculation.
Jeffrey Rosen: [00:46:33] Emily, the last word is to you in this fascinating and rich discussion. what reforms do you hope will emerge from this crisis, constitutionally, legally as a policy matter. What are you looking for in the U.S. and globally, and what do you hope we'll see in the criminal justice system at the end of the crisis?
Emily Bazelon: [00:46:52] I hope that we'll see the eighth amendment, have more heff to it when there are dangerous conditions in prison. Often, prison officials get wide deference from judges, and it's hard to meet the standard indifference, but, terrible things happen to people in prison, and so creating a body of law that's more responsive to that, I think, would be really, an amazing gain. I think being really wise about how we spend our money to lock people up when they're charged with minor crimes in particular, but also thinking about the length of sentences for people charged with violent crimes. That's a harder ask, but one we should be considering right now, and some of the compassionate release cases speak to that issue.
and then I think we wanna also, as voters, as the American public, have a, a better sense of what we want from the people we elect as our criminal justice ambassadors, so to speak. So I'm talking about district attorney elections, in some states, people elect judges. And thinking about these questions of justice and mercy and, careful stewarding of public funds, when you are at the ballot box and you're facing these choices, that is a, a really important aspect of American democracy.
Jeffrey Rosen: [00:48:06] Thank you so much Emily Bazelon and Paul Cassell for a rich, informed and illuminating discussion of the criminal justice system and c- the coronavirus. Emily, Paul, thank you so much for joining.
Emily Bazelon: [00:48:19] Thank you.
Paul Cassell: [00:48:20] Thanks very much.
Jeffrey Rosen: [00:48:21] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich. Please rate, review and subscribe to We the People on Apple Podcasts and recommend our show to friends, colleagues, or anyone anywhere who is hungry for weekly constitutional illumination and debate. And always remember that the National Constitution Center is a private non-profit. These are such challenging times for all of us, and my colleagues and I at the center are so grateful to those of you who have written and sent donations of any amount to support our work, including this podcast. You can support the mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount to allow this wonderfully important work and all of my great colleges who make it possible to keep doing it. and that's at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
