Good morning, everyone.
All right, so I am
really excited to be
moderating this panel.
My name is Dehlia Umunna.
I am a clinical
professor of law here
at the Law School and the
faculty deputy director
for the Criminal Justice
Institute, which I always
refer to as the premier criminal
defense clinic in the world.
[LAUGHTER]
I am excited to be
here today moderating
this panel on a topic
that's really, really dear
to my heart.
Before coming to
Harvard 10 years ago,
I was a public defender in DC.
And part of what I loved most
about being a public defender
was really looking to see
how you impact and change
lives of people who
otherwise couldn't
afford excellent advocacy.
So it's been a
driving force for me
in terms of how I practice,
and really, how I live my life.
It's also an honor to
talk about this topic
because I am a mom of
two incredible teenagers,
black teenagers living in
today's world, who happen to be
here early, early this morning.
[APPLAUSE]
And so excited, excited
for them, but also,
given the current political,
and just really the temperament
of how things work in this
country, also anxious for them.
But I will start
off because we have
such talent on this panel--
I am so excited.
I was giddy all
week just because
of the esteemed
panelists that we have.
So let me just tell you
that we're being recorded.
The structure for today will be
I will do brief introductions
about panelists, I
have some questions
that I will ask them that I
hope that they will answer--
that they will answer.
And then I might go--
because I really want us to
have a fulsome conversation
about reforming criminal
justice in America--
is to open it up to you, to the
audience and take questions.
So the stuff that's
on your heart
that you'd like to hear
their perspectives on.
So why don't we get started.
And to my immediate
left is Miss Price.
Miss Cathleen Price,
right next to me.
She's an attorney who's--
she's a cooperating senior
attorney at the Equal Justice
Initiative.
Her work confronts the disasters
of excessive punishment
and over-reliance
on the penal system.
Since 1997, she has worked
on behalf of death sentence
prisoners, other offenders
who have been subject
to excessively
harsh punishments,
and communities marginalized
by poverty and chronic
discrimination.
Following a clerkship
with Justice Fred L.
Banks of the Mississippi Supreme
Court, the bulk of her career
has been spent with the
Equal Justice Initiative.
She continues to litigate
on behalf of individuals,
advocates before legislatures
and other policymakers
and serves as faculty
at training seminars
on the death penalty
and related topics.
In addition to her
direct legal assistance,
Ms. Price provides consultation
and educational assistance
to various stakeholders in
the criminal justice system.
She is a 2014
Harvard Law graduate.
I'm sorry.
I am that young.
[LAUGHTER]
I haven't had my coffee yet.
Oh, dear.
Let me backtrack.
She teaches in the
American Studies Department
of Columbia University in
New York, where she received
her BA in 1992 and in
2004, Harvard Law School
awarded her it's Gary
Bellow Public Service
Award, so welcome.
[APPLAUSE]
And I'm from Denver.
Go Broncos.
Yeah.
OK.
Seated right next to Ms. Price
is the former Attorney General
of these United States.
[APPLAUSE]
And if you ask
me, boy, do I wish
she still was the attorney
general of these United States.
She's the first black female
attorney general in the United
States of America's history.
Think about that.
Loretta Elizabeth Lynch was
sworn in as the 83rd attorney
general of the United
States by Vice President
Biden on April 27, 2015.
Her priorities as
Attorney General
included national
security and terrorism,
combating human
trafficking, cyber security,
and improving the relationship
between law enforcement
and the communities they serve.
Ms. Lynch received her
Bachelor's with distinction
from Harvard College in 1981
and a JD from Harvard Law
School in 1984.
In 1990, after a period
in private practice,
Ms. Lynch joined the United
States Attorney's Office
of the Eastern District
of New York located
in Brooklyn, New York, the city
she considers her adopted home.
There she forged an
impressive career
prosecuting cases
involving narcotics,
violent crimes, public
corruption, and civil rights.
In one notable instance, she
served on the prosecution team
on the high profile
civil rights case
of Abner Louima, the Haitian
immigrant who was sexually
assaulted by uniformed police
officers in Brooklyn police
precinct in 1997.
In 1999, President
Clinton appointed
her to lead the office as
United States Attorney,
a post she held until 2001.
In 2002, she joined Hogan
and Hartson LLP as a partner
in the firm's New York office.
While in private
practice, Ms. Lynch
performed extensive
pro bono work
for the International
Criminal Tribunal for Rwanda,
established to prosecute those
responsible for human rights
violation in the 1994
genocide in that country.
As special counsel
to that tribunal,
she was responsible
for investigating
allegations of witness
tampering and false testimony.
In 2010, President
Obama asked Ms. Lynch
to resume her leadership
of the US Attorney's
Office in Brooklyn.
Under her direction,
the office successfully
prosecuted numerous corrupt
public officials, terrorists,
cyber criminals, and
many human traffickers
among other important cases.
Ms. Lynch, it's an
honor to have you.
Happy to be here.
[APPLAUSE]
Seated next to Ms. Lynch is the
Honorable Patricia B. Saris,
Chief US District Judge.
And might I say that
it's a special honor
because at this very moment,
the Honorable Judge's
daughter-in-law is
expecting a child.
My understanding is she's about
to go into labor anytime soon.
So I promised her that
I will hurry this up.
Apparently she also had another
grandchild who came yesterday.
Yesterday.
I wasn't sure I'd make it today.
So, it is the season for
babies, for healthy babies.
[APPLAUSE]
So United States District
Judge Patti B. Saris
became Chief Judge Chief Judge
of the United States District
Court for the District
of Massachusetts
on January 1, 2013.
She was Chair of the United
States Sentencing Commission
in Washington, DC, from
January, 2011 to January, 2017.
After graduating
from law school,
she clerked for the
Supreme Judicial Court
and then went into
private practice.
When Senator Edward M. Kennedy
became Chairman of the Senate
Judiciary Committee, she
moved to Washington, DC,
and worked as staff counsel.
She later became an
Assistant United States
Attorney and eventually
Chief of the Civil Division.
In 1986, Judge Saris became a
United States magistrate judge.
And in 1989, she was appointed
as an Associate Justice
of the Massachusetts
Superior Court.
In 1994, she was appointed
to the United States District
Court.
She is a graduate
of Radcliffe College
and Harvard Law School,
all with distinction.
Welcome.
[APPLAUSE]
And finally at the end, we have
Diane Lucas, Diane, we actually
thank you.
She is such a trooper.
We had another panelist who
was impacted by weather.
And Diane just stepped right in.
So thank you so very
much for doing that.
Diane Lucas has recently joined
the Justice Collaborative
as senior counsel where she
works on criminal justice
reform policy nationwide.
Prior to that role, she was
an assistant attorney general
in the civil rights bureau of
the New York State Attorney
General's office.
She handled matters in
a wide range of areas,
including immigration,
criminal justice, education,
consumer racial profiling,
voting rights, and housing
and employment discrimination.
She has organized a number of
political fundraising events
and get out the vote efforts.
She was a co-founder of
11/6/12, an organization which
mobilized voters to re-elect
President Barack Obama
through the use of
fashion and social media.
She serves on the board
of Made in Brownsville,
a nonprofit working to increase
educational and professional
opportunities for
youth in Brownsville
in science, math, and the arts.
She also serves on the
Amber Charter Board
school in Bedford.
She is the social
action co-chair
of the East Kings County Chapter
of Delta Sigma Theta sorority.
I heard some yeas.
Got some sisters
in the audience.
She received her BA from NYU and
her JD from Harvard Law School.
Diane, welcome so very much.
[APPLAUSE]
All right.
Now that we've dispensed
with the introductions,
let's get right into
what we can do to reform
criminal justice in America.
And by the time we're
done here, we're
going to have our mandate.
We're going to make sure
that we accomplish everything
that we're setting out
to do by way of reform.
All right, so let me get
to the very first question
that I have for you.
And actually I intend to start
with the Honorable Judge Saris.
So there's been a
lot of conversation
with regards to whether or
not the system is broken.
On the one hand, you
have conversations
about the criminal
justice system is broken.
And on the other hand, as
you have folks on both sides,
you've heard folks say,
the criminal justice system
works perfectly.
Now, if it's broken,
how is it broken?
How exactly is it broken?
And if it's not broken,
what's working perfectly?
How do you see this issue
through your perspective
as a judge and the chair of
the Sentencing Commission?
All right, wow that's a big
task so early in the morning.
Thank you all for coming and
thank you for inviting me here.
I don't think either is true.
I don't think it's
irreparably broken,
but I sure thinks it
needs a lot of work.
So the good news still is that--
let me just also say, criminal
justice, you can't sort of
say it with a broad sweep.
There's the federal level
and there's the state level.
So they're often similar, but
often very different as well.
Let me just talk
about the good news,
because I'm sort of
a Pollyanna that way.
But compared to the
world and compared
to what we really care about,
we have the rule of law here.
We have independent judges.
You still have a jury system.
And in that sense,
we provide, at least
on the federal level, full
funding for federal defenders.
And in that sense, there's
a lot that's working well.
But there is a lot that
is not working well.
And let me start
off with the area
that I know the best, which
is in the sentencing area.
And I know a lot
of folks here may
have more information about
how criminal fines are used
in the state system
and how bail is not
working in the state system.
But let me start off with
the federal sentencing, which
is, as you know, I was chair
of the federal sentencing
commission in Washington,
DC, where I had the honor
to work with Attorney
General Lynch and Sally Yates
and before, with Eric
Holder and Jim Cole.
So this was some area
where at this point,
I believe there is near
consensus, that many
of the sentences are
too harsh and that too
many people have been captured.
This is not--
I'd like to say this is
bipartisan at this point.
I don't know whether the
current Attorney General agrees
with this or not,
but certainly when
I was working with
the Congress, people
on both sides of the aisle
had come to the conclusion
that the criminal justice
system punishes too harshly
and captures too many people.
And so, there is
widespread disagreement
about whether there should even
be mandatory minimum sentences.
But I think what almost everyone
agrees with in the legislation
that was coming through
the Congress was saying,
was at least reduce them and
don't make them quite so harsh.
And so, I wanted to talk
about criminal justice.
And I just want to
do it in two minutes.
Because it's a big tall order.
And everybody else is going to
have things to say about this.
We're a pendulum.
It's the 30th anniversary of
the sentencing guidelines,
but it's also the 50th
anniversary of President
Johnson's Crime Task
Force Initiative--
if anyone is as old as I am;
I notice I'm the old lady up
here--
chaired by a guy
named Katzenbach.
And crime is a serious
issue for this country.
And you can't talk
about criminal justice
unless you understand
the impact of crime.
And way back then, people talked
a lot about rehabilitation
and that fell off
the radar screen.
It just fell off.
And it became much tougher
in the '80s and '90s.
I think we were freaking out
as a society about murder rates
and drug rates.
And we just kept going up
and up and up, particularly
with respect to
crack sentencing,
which had this horrible
adverse impact particularly
on the minority communities.
And I think we're coming back
down again about, all right,
we really do need to think
about rehabilitation.
We really do need to
think about drug courts.
We need to think
about the collateral
consequences of crime.
And so, you know, we almost--
and I'm curious what Attorney
General Lynch [INAUDIBLE]..
We almost hit legislation
last Congress.
It was so close to reaching
some sort of consensus
on both sides of the aisle.
Didn't quite happen.
And I'm still hopeful
because I'm a hopeful person
and because I'm having
two new grandchildren.
If you don't have babies
and aren't hopeful,
I'll just give it up.
But I do think it is in fact
true that a lot of momentum
was made under
Attorney General Lynch
and under President Obama.
And I don't think
we've lost it all.
But there was a setback.
But I think we're
still moving forward.
And that's my quick
whirlwind here.
Actually, I think
it's a logical event
to go to you, Attorney
General Lynch,
to follow up and answer
that question as well.
Sure.
Again, I'm going to
agree with Judge Saris
and say that I wouldn't
posit it as either broken
or working perfectly.
Because I think you
have to ask yourself,
what is it designed to
do in the first place,
before you can analyze
whether it's working at all.
And one of the
problems that I have
seen, having been a prosecutor
for a number of years
now at many levels--
I was a line
assistant in the '90s.
I was a supervisor in the
US Attorney's office, a US
attorney, and then had
the privilege of serving
as the attorney general.
But is watching all
the different things
the criminal justice
system has expanded
to cover that aren't
necessarily criminal
but are disruptive in society.
And because we have no other
way to handle certain things,
mental health issues being one,
being the most important one,
it all gets pushed into the
criminal justice system.
So a lot of the issue I
think is defining what
is the criminal justice system?
What does it cover?
What should it cover?
But to the more immediate issues
of criminal justice reform
and the efforts that we were
undertaking several years ago,
Judge Saris is right.
We were very close to
making significant changes
in the statutory framework
that cover narcotics
offenses in the federal system.
That's primarily where the
heaviest sentences lie.
You'll find life
sentences for homicides
at the federal and state
level and people tend
not to disagree with those.
But when it comes to
narcotics offenses, which
have a variety of ways
in which they come about,
you had this
incredibly harsh system
that got set up in
the '80s and '90s
as the judge said, in
large part, a response
to the crack epidemic,
in large part,
a response to the violence that
followed the crack epidemic.
And people seeing that the only
tool they had was a hammer,
they began to use
that for everything.
The benefit of time
that I've always found,
is that you can look back
and see what happened
when you did something.
What happened when we did this?
When we instituted mandatory
minimums for drug crimes
without any differentiation
as to the role of someone
in the offense, as
to their background,
as to how they came to be
involved in the offense, what
you found is that everyone
is swept into this,
in a system that was, if
you'd go back and look
at it in legislative
history, in the '80s,
was designed to deal with what
people call drug kingpins.
No one disagrees
with the view that we
should look at people who
are running large scale drug
operations and deal
with them seriously.
But when everyone falls
under that rubric, when--
everyone can't be a kingpin.
And then those of us who were in
the field in the '90s, I became
a prosecutor in
1990, began to see
that the people who get
caught up in the net
are not really the kingpins.
It takes a lot of
time and effort
to work your way
up to that level.
The people that you catch are
the lower level, the small fry.
Whether they're muling
drugs, carrying it
from one place to another,
driving it someplace,
yes, a serious crime.
But they aren't the leaders.
They aren't the head
of the organization.
You know, sometimes
they're being used.
Many times they do know what
they're doing, but really?
They're not Pablo Escobar who
was the leading Colombian drug
dealer in the '80s.
And so a lot of people saw back
then that we were hitting too
harshly people who
really didn't--
who weren't intended to
be caught up in that.
So you always have
a system I think,
where you have an issue of, how
do you ameliorate or moderate
a system that works in
very broad brush strokes
to deal with the individual
nuances of every case.
So the efforts that were
underway several years ago
had their genesis decades ago.
In the '90s, people
recognized that when
I'm sitting in Brooklyn
and I'm prosecuting someone
who has smuggled drugs in
from Nigeria or Pakistan,
either in their luggage
or in their body,
does it make sense
for me to give them
10 years in a federal prison
when they aren't the leader,
they aren't the organizer?
They might have made $200.
Their life was at risk.
Some of them died
in that process.
Does it make sense?
So the seeds of it
began back then.
And when we looked at the
crack cocaine disparity,
at one point, you look
at the sentence for crack
and the sentence for cocaine,
the disparity was 100 to one
for the same product.
They're manufactured
differently,
but it's the same
product, the same use.
But the distribution network
for crack was primarily urban.
It was inner city.
It was primarily
black and Hispanic.
The distribution
network for cocaine
was, and still remains,
at a slightly higher
socioeconomic level
quite frankly.
There are still
professional people
who use cocaine
on a regular basis
because they have the
funds and the ability
to do so without going into
the underworld that puts them
at risk for being caught.
So you have people who are
doing essentially the same thing
and you saw this
disparity of people
who are committing the same
type of criminal behavior,
yet being treated
wildly differently.
And I will say that no one in
the criminal justice system,
whether you're a prosecutor or
a defense lawyer or a judge,
thought that that was right.
No one thought that
that was appropriate.
No one thought that that's
what they came into the system
to do.
So the seeds that
were planted then,
you know, when Eric Holder
became Attorney General,
he was able to really work
along with President Obama
and many in Congress on reducing
the crack-cocaine ratio.
These were efforts that we were
working on in the 1990s that
sadly went nowhere.
But by the time we had
the Obama Administration,
people had seen the devastation
and the collateral consequences
of over-incarceration,
particularly
in the black community
were visible.
They were all around us.
And people realized
that whatever
they intended in terms
of accountability,
these other things were
not what were intended
or should not have
been what was intended.
Now we were very close.
I will say that having spent
two years in Washington,
and a lot of time sitting
in front of Congress,
explaining either the
Department's policies
and priorities or why we
should change certain things,
there was many a time
when I thought, you know,
I sort of miss the
days of sitting
across the table from
a murderer and having
him explain what he did.
Because at least they're
straightforward with you
and you know what
you're dealing with.
But you come into these
different layers of agendas
and layers of issues.
And you realize that in
order to make policy change,
you've got to sort of understand
the different levers that
operate at that level.
And one lever that we
were able to leverage
fairly well was
the economic lever.
The sheer economic cost of
incarcerating individuals,
whether it's for drugs or
murder or white collar crimes,
is incredibly high at the
federal and the state level.
At the federal level, it
was eating up the budget
of the Department of Justice.
The Bureau of
Prisons is probably,
in terms of employees, maybe
10%, 20% of the Department.
The budget, it takes about 40%
of the Department's budget,
because it just costs so much.
And when you look at what
you could do with that money
to prevent people from going
in, and also prevent them
from returning to prison
when they come out,
there are better ways
to use that money.
So on the Republican
side there was
a lot of interest
in the fiscal cost,
and some interest
in the social cost
as well, but mostly
in the fiscal cost.
That's fine with me.
I don't really care how you
get to a particular end,
because there are many, many
different issues in this larger
overall issue.
And so a lot of people
were pushing for it
as a way to better manage
our law enforcement dollars.
And a lot of people again,
by a total bipartisan effort,
recognized that if we
could spend half that money
and keep people out
of prison, we've
won on a variety of levels.
We came close.
And as is often
the case whenever
you're trying to get
legislation passed,
people start adding
things onto it.
People start trying to
use it as a vehicle to get
other policies changed as well.
And people say, well I'll vote
for it if you will add this.
You know, and we had a faction
that said, well you know,
we'll throw our
support behind it
if you add a specific
intent requirement
to every criminal statute.
Which you would
think, they would
say, well, it's a no-brainer.
You have to intend
to commit a crime.
And you say, what
about OSHA violations?
You know what about
statutory rape violations?
You know, so there's
certain things
that we've decided
as a society there
should be criminal liability
for in a strict standard.
You don't want to
unravel all that.
Well, can you resolve that?
Maybe.
Then to be completely
honest with you,
you have your, quote unquote,
"friends" in the Congress,
who say, this is great.
It doesn't go far enough.
We want a perfect bill.
And I will tell you,
that if you try and get
a perfect bill
passed in Congress,
you'll be where we were at
the end of the administration.
And that's not to
criticize or blame anybody
because I think you have
to push for everything,
to raise the issues
and get them included.
But trying to get things passed
has gotten harder and harder
on a variety of levels.
And so we were never
able to really reconcile
what came out of sort
of left field and right
field at the end
of the day to get
a critical majority of that.
Now, the current
attorney general
was a senator at that
time and not a supporter
of criminal justice reform.
He still is not a supporter
of criminal justice reform.
But what's interesting
about that,
and however you think
of the current AG,
look at him as an example of
that mindset from the '80s.
You have to understand
that thought process
if you're going to
deal with this issue
and if you're going to come
up with a solution to change
that mindset or work around it.
And so, I say that
I'm not quite sure
where it's going to go in
the current administration.
There are still pushes for it.
The same people in Congress, at
the Senate and the House level,
both Democrat and
Republican, still
want criminal justice reform,
both for the social issues
and the fiscal issues.
But you come up
against this, as I
said before, this almost 1980s
mentality of, we have to use
a hammer or no one is safe.
And that's the rhetoric
that you see as well.
And it's challenging.
But we were able to get the
crack-cocaine ratio reduced.
It's not 100 to 1.
What is it now?
18 to 1?
18 to 1.
18 to 1.
Completely arbitrary by the way.
Senator Dick Durbin
tells a story
of trying to push this through
to get it down to 1 to 1.
And then Senator Sessions
would not move, would not move.
And Senator Durbin tells
a story of talking to him,
I think, in the Senate
gym and saying, Jeff,
what would it take to
get you to move on this?
And then Senator Sessions said,
well, I could go to 18 to 1,
but not 1 to 1.
Where did he pull out 18 to 1?
So that's you ended up with.
And that's not perfect.
But that is so much
better than what we had.
And so from a policy
point of view,
I would agree with
taking that win.
We then had a whole
massive effort within DOJ
at the federal level
to work to redo
a number of sentences
that had been
imposed under the old system.
And some people were able
to get out, you know,
and then we had a clemency
project and a whole host
of other things as well.
You had about 3,000
people are still there
because it was not
made retroactive.
Because it was not
made retroactive.
So then you have-- so there's
a whole host of issues
and agendas that come through.
You've got the politicization
of this issue, which
is very challenging
and fascinating to see.
When you go to
Washington, having
been in New York,
sort of working
with people on the
practical part of it,
it's a very different world.
But I would not lose hope
for criminal justice reform.
It is something that I think
people are still working on
somewhat under the radar.
Whether or not White
House involvement
is a positive thing for
that or has been positive
remains to be seen.
There's some people in the
White House who still want it.
Some people don't.
But that could change any
minute with this White House.
So I sort of ignore them and
look at people who are actually
working to get things done.
Thank you.
So Ms. Lucas, the same question.
But with the added layer of
your work with young people,
with juveniles, and
how this question
of whether or not
the system is broken
impacts them particularly.
Yes, I have to
respectfully disagree.
The system is broken.
When you look at a
system that is supposed
to rehabilitate
people, it's supposed
to deter criminal activity--
and the idea is that they're
going to return to society,
so that we should be investing
in less prisons and more
things that would help people
to one, not enter prison.
And when they are in prison,
to get out and be members
of society who are able to vote
and who are able to get jobs
and are able to get licensing.
And I think it's
really important
to think about how we are
an outlier in this country.
And to look at the statistics
when we talk about the system
is broken.
What does that mean?
So we all talk about
the United States
being the most carceral
country in the world.
And it's the most punitive.
When you look at our neighbors
in the West, in Western Europe,
we incarcerate four times
as many people as they do.
70% of people in
local jails have not
been convicted of a crime.
When you look at
racial disparities,
African Americans are
incarcerated at a rate five
times as many as white people.
And when you look
at who is in prison,
so people of color, blacks
and Latinos specifically,
make up 32% of the
population, but they make up
56% of who are in our
jails and prisons.
So I say all of that to say that
it is important to acknowledge
that the system is broken.
But I also agree that we're
in a very exciting time.
Criminal justice reform
is definitely happening.
There are exciting
things happening
throughout the country.
There are grassroots
movements by Black Lives
Matter, Color of Change.
There's organizations
that have been
around for a very long
time, like NAACP and ACLU,
and then there are prosecutors
and public defenders
and other agencies and
governmental organizations that
are coming together
and realizing
that we need to do something.
So there's movement happening.
But I want to go back
to the system being
broken for a second.
One of the main things
that is highly problematic
and actually leads
to mass incarceration
is the criminalization
of poverty.
So there's been a
lot of discussion
about the dire need
of bail reform.
When you think about the fact
that someone could sit in jail
for years, not
convicted of a crime,
solely because they cannot
pay for it, that is a problem.
When you think of
fines and fees,
there are many jurisdictions
in this country
that are running because of
fines and fees on poor people.
So fines and fees
are costs that occur
when you are
convicted of a crime,
or it could be a civil matter,
and that money is being used
to fund government activities.
And so when you think about
that, that being broken,
it runs the gamut.
I could talk all day
about how it's broken.
But I really wanted to
highlight those things,
because we have a
very serious problem.
And I was watching the
documentary The 13th,
and I remember Bryan
Stevenson from EJI
said that if you looked back
at when slavery was happening
and the law of the
land in this country,
and thought, why didn't
people speak out?
Why didn't people say
something in that moment?
He said, think about
that right now.
This is that moment now
with criminal justice.
And so it's really
important that we do that.
And so what I'm doing now--
I actually don't
work with juveniles.
The Justice Collaborative
is a nonprofit organization
that seeks to dramatically
reduce the incarceration
rate in our country.
And what we do is, it's
pretty unique and bold.
So we do two main things.
The first thing is
in our advocacy role.
So what we do is we put legal
experts in local communities
to work with local
groups, grassroots
and established organizations.
And we look to see what are the
drivers of mass incarceration.
So we do intense research.
We speak with organizations
on the ground,
determine what
those factors are,
whether it be bail or
excessive sentencing.
And we see who are the agents
that have control over that.
And then we lobby for change.
So to give you an
example, there is
one jurisdiction that we are
working with in North Carolina.
And there, in order to get
diversion for a grand larceny
charge, you have to pay to get
into the diversion program.
And just to explain
what diversion is--
so if you complete
this diversion program
through the court system,
which would require
you to go to court periodically,
maybe meet with a counselor,
if you complete that
program, your case
is dismissed so you
avoid a felony record
and you avoid prison time.
In this jurisdiction,
if you could not
pay to enter this diversion
program, you go to prison.
You've got a felony conviction.
That's on your record for
the rest of your life.
So what we did is,
we worked with some
of the organizations
on the ground
there to help elevate
what was going on.
So we highlighted one
particular story at first.
It is this man who,
blue collar, he worked
at a audio recording studio.
He was charged with stealing
equipment from his job.
He had no record.
He could not afford to pay to
enter this diversion program.
We worked with local reporters
to get that story out.
And of course, once the
community learned about it,
they were outraged.
So they raised money to pay
for this individual person's
diversion program entry.
But we realized
obviously the problem
is bigger than this one person.
So we start working
with other reporters.
We start working with academics.
We're continuing to work
with the organizations
on the ground who have
been there for a long time
working on this.
And we amplify the message.
So all of a sudden, you're
getting these stories
about having to pay to play
for diversion from everywhere
you look.
It's on the radio.
It's on the news.
You have advocates
coming into your office
as an elected official
asking you about this.
Gets national media attention.
And then that's how
you push for change.
And so in that case, it was
actually the district attorney
who determines who is eligible
for the diversion program
and recommends them.
And that district attorney
actually reformed the program
and modified it
so that you don't
have to pay to enter into
this diversion program.
And that's just
one example of how
we do this kind of reform work.
It's really, really,
really important
to think about what's
happening on the local level.
Because obviously,
there's a federal system
and there's a state system.
When you look at how many
people are being incarcerated
in the state system,
if we can focus
on what's happening
locally, we can dramatically
reduce incarceration.
So that's the first
thing that we do.
The second thing
that we do is, we
want to change
the narrative when
it comes to criminal
justice reform
and we want to
amplify the narrative.
And that narrative is that
one, yes, the system is broken.
But we can fix it.
And we all are agents of change.
So whether you are a judge or
prosecutor or a public defender
or someone who's not even in
the criminal justice system
that you too can do
something about it.
So we have a national media
outlet called The Appeal.
And we use that to tell
stories about criminal justice
reform happening both
locally and the state level
and nationally.
But then we also
have this podcast
that I hope that you
all download called
Justice in America.
So it is co-hosted by Jessie--
sorry, Josie Duffy Rice,
who I'm replacing-- she's
my colleague-- and Clint Smith.
And this podcast breaks
it all the way down.
It basically are Cliff
Notes on the injustice
in our justice system.
And part of why that was
really important for us to do,
is we want to make sure that
this message is widespread
and people can understand
when we say we need bail
reform, what does that mean?
And the nuance is important,
as we've seen in California,
I think we're going to
talk about this some.
It's not just bail reform.
It's how are we actually
implementing this reform
and what are the consequences
of this implementation.
Because if you end up completely
eliminating cash bail,
and so it's not about
how much money you
have to determine whether
you'll get out of jail or not,
even if you completely
eliminate that system,
you could still end up being
detained if the government
determines that you are risky.
And you could be detained
up until your trial
and now you can't
even pay to get out.
So if a community bail fund
wanted to raise money for you,
they can't.
And this is all before
you've had a jury determine
your guilt or innocence.
This is all before
any evidence has been
presented by the prosecutor.
And these are the
kinds of things
that we need to focus on,
the details, the nuance.
So I will leave it there.
Because I could talk
about this all day.
This should really
be a half day panel.
I couldn't agree more.
Ms. Price, on the question.
Right.
Hello.
I am going to
answer the question,
but I do want to say I
am so happy to be here.
And I want to thank
you for inviting me.
I was at a very
different Harvard.
This is I-- speechless.
Walking through the
halls, and do you remember
the base of the Hastings?
The public interest people
were like down there trying
to write some briefs.
Yeah, so it's great to be here.
And specifically at
the Celebration 65.
We had Celebration 40
when I was a student here.
And as I was telling
someone, it was not only one
of the most nurturing events
of my time at Harvard,
it was one of the few nurturing
events of my time at Harvard.
So I am glad to pay it
forward as they say.
OK we are here talking
about criminal justice
reform, which I think is--
I'm glad to be
here also because I
think it's really the subject of
our time and really important.
The great bulk of my
work is in the context
of the death penalty.
So I work in very
serious crimes.
Once I had a client
who got bail.
But I will say, without
reservation, that the death
penalty is broken.
I appreciate what
my co-panelists
have said about
the work that we've
done to correct or to
generate sentencing reform
and to correct some of the
perturbations in sentencing.
What we're seeing on
the death penalty side
is a little bit different.
There is-- certainly the
usage of the death penalty
is coming down for
a lot of reasons.
One of them is the
fiscal concern,
which I'm happy with too.
I'll take it.
It's true.
The abstract question
of why we as a society
want to spend money
in this way, I don't
see the engagement of that.
But as long as people
are saying no, no, no.
We should stop doing that,
like I said, I'll take it.
But specifically,
I mean I think,
I'm in a room full of lawyers.
Most of you probably know
sort of the baseline,
the basic problems
with our death penalty.
One is that it's pretty
thoroughly corrupted by racism.
And so, even though
its usage is declining,
we're still seeing
disparities based on race.
And they're typically based
on the race of the victim.
So to sort of break
it all the way down,
the death penalty is
kind of a referendum
on whose death matters.
96% of the studies--
96% of the jurisdictions
that have a death penalty
have been studied for
this specific effect.
And they've all revealed
one degree or another
of a deviance of bias.
The second corruption in
the use of the death penalty
is the way in which it
peculiarly punishes poverty.
There aren't people
who have money
who get the death penalty.
It's really sought
in instances where
the defendant is indigent.
I mean there may be one or
two episodes in the history
the United States,
but generally it
functions with poor defendants.
And poor defendants,
as you know,
rely on the indigent
defense system.
They rely on public
funding for their services.
Our Sixth Amendment
guarantees people
the right to counsel and to
the assistance of counsel.
But when you are dealing with
jurisdictions where there isn't
a lot of funding for what
defense lawyers really
need to do to protect
their clients, what you see
is, for example,
in one of my cases,
which you may have heard about
because the defendant was
released recently,
Anthony Ray Hinton.
He served 30 years on death
row in Alabama for a crime
that he did not commit.
And a lot of the innocence
cases are kind of,
they did something else.
But they didn't actually
commit capital murder.
Anthony Ray Hinton was at work.
And he was at work, you remember
when you had a time card.
I don't know if you all ever
had a job with a time card?
Well, his lawyer never
went and got the time card.
So we went and
got the time card.
At that point, he'd been
on death row for 15 years.
And it still took
another 15 years
to actually get him released,
to get him out of prison.
That's a problem of poverty.
If he had money
to hire a lawyer,
if he had money
to pay the lawyer
to just do some investigation
or to pay an investigator--
that's what some lawyers do.
They hire an investigator--
he wouldn't have been convicted.
All right.
So enough on [INAUDIBLE].
I want to respond to two things.
I just, the point about--
I really appreciate
the point about part
of why we are in a condition
of mass incarceration
is because we've asked
our criminal justice
system to address problems
in our society that
are not really
within the competency
of the criminal justice system.
And I have been saying,
I just appreciate that,
because I've been saying that.
I thought it was just the
defense lawyers who said that.
But this is a social problem.
I mean we are going
to talk about,
I guess, the technical
aspects of the ways
in which the criminal
justice system needs reform.
But I also, I cannot leave here
today without talking about
what we need to
do as a community.
In addition to the war on drugs
and the kind of tough on crime
kind of politicization
of punishment,
well, I'm going
to take that back.
I think the politicization,
if that's a word,
has maybe dovetailed on
a separate social zeal
for punishment.
And that's a problem.
That's a notion of
community, if you're
kind of a communitarian person.
It's a concept of society.
It's a notion of
a social contract.
But we need to engage that.
Because we have been punishing
people for all of our fear,
which is different
than punishing people
where our safety requires it.
And I guess I want
to ask of you--
I should stop talking.
I want to ask of you to
be alert to that question
as you walk through the
world, both as a lawyer but as
a citizen, your
civic engagement.
Like, what is this punishment
designed to accomplish?
That may give you
some reflection.
OK, I'll stop now.
I talk a lot.
[APPLAUSE]
All right, so I want
to ask a question
and ask you to respond
in a minute or less.
Because what I want
to do after this
is open it up to the audience
and take questions from them.
So we know the prevalence
of all sorts of problems
within the criminal
justice system,
whether it's mental
health, whether it's
the school to prison
pipeline issue,
whether as you have described,
sort of issues that don't need
to be within the purview of
the criminal justice system,
whether it's bail reform.
We know California just passed
a bill not too long ago.
If it was left up to you, if you
had that moment when they say,
Ms. Price, you
have three wishes,
what would your top
three initiatives
be to reform the
criminal justice system?
A minute or less
for each of you.
[LAUGHTER]
Well, I would be OK with
abolishing the death penalty.
And I think that what
that would accomplish
for us is, to the extent that
the death penalty kind of skews
all sentencing
for violent crime,
and we would remove that, we
would just remove that skew.
I would-- there are
two ways to frame this.
I wish that all
sentencing, and not just
death penalty
sentencing, required
kind of a full scope
inspection, examination
of why did we have this crime?
What brought the
client to the crime?
And that's a matter
of social history,
economic history, perhaps the
political broad based social
history--
I think of, like,
lead poisoning.
But there are lots of things.
And, we do this,
or we're supposed
to do this in capital
punishment in the context,
but we don't always do
this in other punishment.
So I would wish for that.
And the flip side of that
is, we have to as a system,
be invested in
understanding that, right?
You have to be
invested in taking
in the meaning of
that information
in order to fashion an
appropriate sentence.
The last reform I
think for me would
be a resumption of a
community commitment
to rehabilitation, or to
correction, actual correction.
I think that every
single one of us
is more than the worst
thing we've ever done,
every single one of us.
And I would wish that
we had a system that
wouldn't throw people
away, would stop, would
stop throwing people away.
So yeah.
All right, thank you.
Attorney General Lynch.
So if I only had three
things, and again,
the magic wand, so they
might be impractical.
I would, the first
thing I would try and do
is shift the priority
balance that we
have now from punitive,
a punitive nature,
to a preventive
rehabilitative nature.
Because one of the
main problems with over
incarceration is that
people are on a path
through incarceration
in the first place.
It often starts--
for young black kids,
it often starts in school.
The school to prison
pipeline is real.
It is a reality.
It impacts children of
color incredibly harshly.
And we're starting to
talk now as a society
more about how it impacts
young women of color as well,
the criminalization of
the black female body,
I think is something
that has to be discussed.
So I would I would try and shift
the priority and the focus.
I would obviously have
to have accountability.
But I would try and shift
those resources and the focus
in our thoughts to how
do we prevent someone
from going down this route.
I would try and expand the
focus from just someone who
has done something
that has transgressed
against society to the
fact that we're also trying
to prevent harm to society.
If we prevent someone
from going down
a road of criminal behavior,
we also prevent others
from becoming victims.
And we all have a
vested interest in that.
My second thing
again, if I could do--
have my magic wand,
frankly, I would,
I may surprise you
with this, maybe not,
I would focus on the educational
system in this country.
The number of times I've sat
across the table with someone
when I was a line prosecutor
and put together a case
and whether they
were a defendant
or whether they were
a cooperating witness,
and realized that one of the
main problems I was having
in sort of either assessing
case or something like that,
was because the person in front
of me literally could not read,
was incredible.
And it has struck me ever since
I joined the criminal justice
system is how many people
who slide through it,
have slipped out of
our educational system
before they came to me.
So that is something
that I think,
it's not something
that we typically
put in the criminal
justice reform pot,
but it is essential,
it is vital.
Education is the framework for
how people approach society,
how they interact with
society, whether or not
they are employable
or not, whether or not
they have the ability to
find resources to help them
through their other issues.
It is whether or not--
people's educational
level often is
carried on by their children.
And what we see is that when
we put educational programs
in the prisons, not
only does it help
the inmates who were
there, but it helps them
with their family relations.
Whenever I talk to inmates who
had taken advantage of some
of the programs we were
trying to push through
to get a degree, whether it's
a GED or a college degree,
to a person, to
a man or a woman,
and it was mostly
men I was talking to,
they said, this has also
helped me be a better parent,
and be a better
father or mother,
because now I can talk to my
children in a different way.
And you can break a
cycle that happens
when you incarcerate
parents, because you put
their children at risk as well.
So the educational
system overall,
shifting the priority there.
And I think also, I
would, if I could do this,
I would remove it from
the political agenda.
Because there we get caught up
in these emotional calls that
don't really affect safety.
But they're shorthand
for, a lot of them
are racist dog whistles.
And they make
people feel better,
but they don't really
make them literally safer.
You can lock up a lot of
people in this country
for a lot of things.
And it's not going to
stop the next person
coming around and creating
new victims if you don't
address that earlier issue.
And so sometimes
having it caught up
in the political system means we
spend a lot of heat and energy
and light on that
question and not
on the substance of why
are we in this situation
in the first place.
So those are my
magic wand things.
Excellent.
Thank you.
Judge Saris.
I'm very clear on what
my number one choice is.
I would eliminate all
mandatory minimums
in the federal
sentencing system, state
and federal
mandatory sentencing.
You know, when I was chair
of the sentencing commission,
we reduced drug
penalties by as much
as we could consistent
with a statutory scheme,
and we reduced them by
on average two years,
as a result of which 40,000
people came out early.
We also reduced the
guidelines for crack people.
So 40,000 people got
out two years earlier
as a result of this.
And we followed them
on terms of recidivism,
to see whether there was an
increase in the recidivism
rate.
We did this both for the people
who got out early on crack
as well as what we
call drugs minus two.
And there was no increase
in the recidivism rate.
We are just simply
punishing people
too long for public safety.
It's not necessary.
So the other thing is it does,
it takes some-- all right,
this is sort of me
as judge talking.
It takes the power
out of my hand
and puts it in a
prosecutor's hand
as to who gets five years, who
gets 10 years, who gets doubled
to 20 years, who gets life.
I often-- the ones
I lose sleep over
are the ones where I can't
do anything about it.
And it's just--
I'm not saying that the
guidelines are a perfect thing.
They're not.
But at least right now
the way the Supreme Court
construes them, there's
a lot of latitude
in what a judge can
do, both being anchored
by a certain trying to
eliminate disparity,
but also being able
to take into account
individual characteristics
of an offender.
So I'm very much opposed
to mandatory minimums.
I mean on the commission, we
had a range of views on this.
So I'm speaking now
on myself, but myself,
and what I've seen as a
judge, both state and federal,
that's number one what I'd do.
Number two, what I would do
is I'd eliminate collateral
consequences of sentencing.
One thing I never focused
on, I've seen it now.
The ALI is focusing on it as
well as other reform institutes
as you--
right now, once you get out,
OK, I believe you do the crime,
you do the time.
I'm not-- it should be
shorter time, but still.
But then once you get out, what
I never realized is basically--
and I watch people now on
probation, supervised releases,
they can't go back
to lawful lives,
because they can't get
into subsidized housing.
And they often can't get jobs.
And they can't
get student loans.
And they can't, they
can't, they can't.
And licensing even for a
barber, I don't even know.
So it's, I would
just eliminate them.
Now of course, you
don't want a pedophile--
you can't vote and you
can't hold public office.
I'm not saying I want to put
a pedophile in a preschool.
I don't.
There may be certain
extreme situations
where you don't want to do it.
But in most crimes,
it absolutely
makes no sense at all.
And the third thing
I'm going to just chime
in where everyone
else is as a judge,
both in the state
and federal level
for now, I hate to tell you
since 1986, I've been a judge,
and I always ask the
offender, Christie knows this.
She's my law clerk.
You know, why did you do this?
Almost, I can't tell you how
many majority dropped out
of school early, the majority
of people I'm sentencing
dropped out.
Why'd you leave?
A, I was bored.
B, they threw me out.
C, I couldn't do it.
So, I mean, some had
learning disabilities.
Some were bored.
Some, with the zero tolerance
policy, were bounced out.
Well, once you leave school
with marginal literacy
if any, in the ninth--
I can't tell you how
many people leave school
in the ninth grade,
what is your choice?
You're doing what I'll call
minor league drug trafficking.
The Wire is true.
I mean the TV show.
Minor league drug
trafficking, small amounts
on a street corner
in the housing,
and next thing you m
you're a career offender
or you're being picked up
in a sweep in a housing
with mandatory
minimum sentencing.
I myself have a very
simple solution.
We should not be allowing
children to drop out
of school at the age of 16.
We just should
not be doing that.
Maybe they'll go to, you've ever
heard of the Benjamin Franklin
Institute anybody?
That was actually funded
by Benjamin Franklin.
But I mean there are
schools out there
that don't necessarily-- they're
not necessarily pre-college.
They teach you how to be an
auto mechanic or they teach you
how to be a medical technician
or a beauty salon person.
But they at least teach
you how to earn a living
if the school isn't your thing.
But right now we allow
children, and I'll
say children, to drop out.
And they're the ones ever since
that Johnson report in 1967,
I sort of was sad that you
weren't working with children.
Because I actually think
that's when we should stop this
from happening right away.
And so I'm going to add
number three, education.
OK.
Ms. Lucas, and then
we'll open it up
to the audience for questions.
Sure.
Thank you.
So everything that this
distinguished panel said.
In addition to that,
I would require
that every law enforcement
agency and criminal justice
leader commit to being an
anti-racist organization
or agency.
And what that would translate--
We're really going to need
a magic wand for that one.
We probably need
two magic wands.
So it sounds like something
that could never be done.
But when you really
think about how
you can do that in
a piecemeal fashion,
you can start with doing
racial impact statements
and looking at legislation
that is being considered,
and looking at legislation
that's already been passed
and doing a review
of the racial impact.
And so states like New Jersey,
for example, have this.
They do a racial
impact statement.
And they look to
see what is going
to be the potential
disparities and what
are the consequences on people
of color and communities
of color if we pass
this legislation.
And in looking at that,
and looking at data
and actually seeing
what the harm is,
that informs your decisions.
So at least as an agency that's
committed to being anti-racist,
you can say well, if we continue
to prosecute these low level
marijuana charges, we're going
to continue to have this great
disparity, so
maybe we shouldn't.
And that leads to my
second point, which
echoes what was also said
about the criminalization
of social harms, the
social ills, I should say.
They should be civil.
We should not be
prosecuting drug possession.
We should not be prosecuting,
and I will even say, low level
crimes like theft.
These are crimes of poverty.
These are crimes of addiction.
It is better suited
for the civil realm
to be handling these
cases, not criminal.
I mean we've seen that
the criminal justice
system has not been able
to handle it effectively.
And that is putting it lightly.
And just really
quickly I just want
to add that Rachael
Rollins, who just
won the Democratic primaries
in Suffolk County right here,
she has said, as a
campaign promise,
that she would decline
to prosecute 15 low level
offenses, including drug
possession and petty larceny
and things like that.
Because one, it's just not a
good use of limited resources.
And two, when you look
at the disparities,
that's really where they are.
And so focusing on
those level crimes
and making them civil, either
through legislative reform
or just declining to prosecute.
And then the last thing is
restoring voting rights.
I don't think I need
to explain that.
Please join me in thanking
this very fabulous panel.
[APPLAUSE]
