FOLKS, MY NEXT GUEST IS A WRITER FOR "THE NEW YORK TIMES"
MAGAZINE, A FELLOW AT YALE LAW SCHOOL, AND CO-HOST OF SLATE'S
"POLITICAL GABFEST," AND A FRIEND OF MINE.
PLEASE WELCOME, EMILY BAZELON!
♪ ♪ ♪
EMILY.
WHAT-- WHAT A TREAT TO HAVE YOU BACK, NOT JUST FOR ME, BUT I'M
SURE FOR MANY OF THE PEOPLE WHO WATCH THE SHOW, WHO USED TO
WATCH THE "COLBERT REPORT," BECAUSE YOU WERE OUR GO-TO LEGAL
EXPERT TO EXPLAIN JUST WHAT THE HELL WAS GOING ON WITH ANY LEGAL
CASE OR WITH THE SUPREME COURT.
SO, JUST FOR OLD TIME'S SAKE, EMILY, WHAT THE HELL IS GOING ON
RIGHT NOW?
>> YOU GOTTA-- YOU GOTTA GIVE ME SOMETHING A LITTLE MORE
SPECIFIC, STEPHEN.
A LITTLE MORE.
>> Stephen: YOU HAVE A NEW BOOK OUT RIGHT NOW "CHARGED:
THE NEW MOVEMENT TO TRANSFORM AMERICAN PROSECUTION AND END
MASS INCARCERATION," THAT WE'LL GET TO IN ONE MOMENT.
>> THANK YOU.
>> Stephen: THAT'S A TEASER.
THAT'S A TEASE.
LET'S TALK ABOUT THE HEARING TODAY WHERE ATTORNEY GENERAL
BILL BARR WAS ON CAPITOL HILL, OSTENSIBLY TO TALK ABOUT THE
BUDGET, BUT OF COURSE EVERYBODY WAS ASKING ABOUT MUELLER.
AND HE SAID YOU'RE GOING TO GET SOMETHING IN ABOUT A WEEK, YOU
KNOW, KIND OF VAGUE ABOUT THAT.
CONGRESS HAS SAID, "GIVE US THE WHOLE THING."
AND HE SAID, "DON'T EXPECT THAT."
IF THEY GET A JUDGE TO SAY, "NO, YOU'VE GOT TO GIVE THEM THE
WHOLE THING," WHAT HAPPENS THEN?
>> WELL, THROUGHOUT AMERICAN HISTORY, WE'VE HAD THESE COURTS,
AND THEY GET TO RESOLVE CONFLICTS LIKE THIS.
>> Stephen: YEAH, BUT TRUMP SAYS COURTS ARE THE PROBLEM.
COURTS ARE THE PROBLEM.
>> RIGHT.
>> Stephen: BAD JUDGES.
>> BUT THROUGHOUT AMERICAN HISTORY, WE'VE HAD SEPARATIONS
OF POWERS CLASHES, AND SOMETIMES THE COURTS STAY OUT OF CONFLICTS
BETWEEN CONGRESS AND THE PRESIDENT.
THEY DON'T REALLY WANT TO INJECT THEMSELVES.
BUT IN YOUR IMAGINED WORLD, WHERE A COURT WERE TO ORDER THE
PRESIDENT TO TURN OVER THE MUELLER REPORT TO CONGRESS, AND
THE PRESIDENT DEIFIED THAT ORDER, WERE THAT TO HAPPEN, THAT
WOULD BE, LIKE, A FIVE-ALARM FIRE CONSTITUTIONAL CRISIS.
THAT'S THE THING THAT EVERYONE WILL TRY REALLY HARD TO PREVENT,
AN ACTUAL DIRECT CONFLICT.
>> Stephen: WHAT IF IT'S NOT TRUMP.
WHAT IF TRUMP JUST GOES, "THE A.G. SAYS NO, IT'S NOT ME."
AND THE COURT SAYS, "A.G., YOU HAVE TO HAND IT OVER."
AND THE A.G. SAYS, "I'M NOT GOING TO DO IT."
WHAT WILL HAPPEN.
I KNOW IT'S A CRISIS.
BUT YOU AND WHAT ARMY, IN OTHER WORDS, CAN COMPEL THIS TO BE
RELEASED?
>> THE YOU AND WHAT ARMY QUESTION IS WHERE SO UNLIKELY WE
WILL HAVE THIS DIRECT CONFLICT.
THE CONFLICT BETWEEN THE SPREERK AND THE ATTORNEY GENERAL IS THE
SAME AS THE SUPREME COURT AND THE PRESIDENT BECAUSE THE
ATTORNEY GENERAL WORKS FOR THE PRESIDENT.
WE'RE TALKING ABOUT THE EXECUTIVE BRANCH.
BUT THE YOU AND WHAT ARMY HAS ALWAYS BEEN A PROBLEM FOR THE
COURTS.
SO WHEN WE'VE GOT TONE THE BRINK OF THIS THE PAST THE COURTS HAVE
BACKED OFF.
THE MARBURY VERSUS MADISON, 1803, THE COURT ASSERTS ITS
POWER BUT THEN IT BACKS OFF ACTUALLY ORDERING THE PRESIDENT
AT THE TIME TO DO SOMETHING HE DIDN'T WANT TO DO.
SO YOU SEE COURTS KIND OF TRYING TO SAY, "WELL, IN PRINCIPLE WE
COULD DO THIS, BUT IN REALITY WE'RE NOT GOING TO PUSH YOU TO
THE BRINK OF DEFYING US, BECAUSE WE DON'T HAVE AN ARMY.
>> Stephen: AND DID THE PRESIDENT DEFY THE COURT IN
1803?
>> NO, BECAUSE THE SUPREME COURT KIND OF SPARED HIM DOING THAT.
THEY SAID, "YOU DON'T ACTUALLY HAVE TO FULFILL THIS ORDER.
WE'RE NOT GOING TO GIVE YOU A DIRECT ORDER THAT YOU WOULD
DEFY."
>> Stephen: SO IF TRUMP SAYS NO, THERE'S REALLY NOTHING THE
COURT CAN DO ABOUT IT?
>> WELL, I WOULD ARGUE THAT IF TRUMP SAID NO TO A DIRECT ORDER
FROM THE SUPREME COURT, THAT PEOPLE WOULD RESIGN ALL OVER THE
PLACE, THAT CONGRESS WOULD -- >> Stephen: YOU'D THINK.
YOU'D THINK.
>> YES, I WANT THIS -- >> Stephen: IF HE ORDERED
PEOPLE TO CAGE BEARS, YOU'D THINK PEOPLE WOULD RESIGN ALL
OVER THE PLACE.
DON'T YOU THINK?
YES
>> Stephen: OKAY, WELL, SPEAK OF OUR COURTS AND PRISON REFORM,
AS I SAID, THE NEW BOOK IS CALLED "CHARGED."
IT'S ABOUT MASS INCARCERATION.
HOW DOES THE UNITED STATES STACK UP IN TERMS OF MASS
INCARCERATION IN THE WORLD?
>> WELL, IT HAS MANY, MANY MORE PEOPLE IN PRISON-- 2.2 MILLION
PEOPLE IN PRISON AND JAIL RIGHT NOW THAN ANY OTHER COMPARABLE
COUNTRY.
AND OUR RATES ARE JUST OFF THE CHARTS COMPARED TO OTHER
COUNTRIES.
SO IN THE 70s, THIS WAS NOT TRUE.
UP UNTIL THE 70s, THE UNITED STATES HAD THE SAME KIND OF
INCARCERATION RATE AS SCANDINAVIA.
THEY KIND OF STUCK WITH THAT PATTERN, AND WE HAVE-- OUR
INCARCERATION RATE HAS RISEN FIVE TIMES OVER SINCE THEN.
>> Stephen: WHY?
WHAT MADE THE DIFFERENCE?
WHY ARE WE NO LOCKER NORWAY?
>> WELL, WE HAD A RISE IN CRIME, AND WE HAD POLITICIANS, STARTING
WITH RICHARD NIXON AND LOTS OF OF PEOPLE SINCE THEN, WHO SCARED
A LOT OF VOTERS INTO SUPPORTING MUCH TOUGHER SENTENCING LAWS.
THEN CRIME FELL, BUT WE KIND OF STUCK WITH THOSE SENTENCING
LAWS.
THEY'RE AN ARTIFACT, AND PROSECUTORS, WHO ARE THE MAIN
SUBJECT OF MY BOOK, THE KIND OF STORY OF MY BOOK, THEY ARE, I
WOULD ARGUE, THE MISSING PIECE OF THE INCARCERATION PUZZLE
BECAUSE THEY WERE ABLE TO AMASS A TREMENDOUS AMOUNT OF POWER,
PARTLY JUST BECAUSE THERE ARE MORE OF THEM, AND ALSO BECAUSE
OF MANDATORY SENTENCE, WHICH REALLY GIVE-- GIVE THE
DECISION-MAKING AUTHORITY TO THE ACTOR IN THE IS THE SYSTEMTHAT
BRINGS CHARGES AS OPPOSED TO -- >> Stephen: SO IF YOU BRING
THE CHARGE, THE SENTENCE IS ALREADY BAKED, IN THE JUDGE
CAN'T HAVE ANY LENIENCY THERE.
>> EXACTLY.
>> Stephen: WELL, LAST WEEK TRUMP HOSTED A CELEBRATION OF--
IS IT CALLED THE FIRST STEP ACT?
WHICH IS A-- SORT OF A BABY STEP OF CRIMINAL JUSTICE REFORM.
WHAT IS THE FIRST STEP ACT?
AND IS IT-- IS IT A BIG DEAL?
>> THE FIRST STEP ACT DOES A LITTLE BIT TO REDUCE THE
SENTENCES OF NONVIOLENT DRUG OFFENDERS, AND SOME TO IMPROVE
PRISON CONDITIONS.
IN TERMS OF NUMBERS, IT'S A BABY STEP, JUT LIKE YOU SAID.
IT WON'T AFFECT VERY MANY PEOPLE.
PARTLY BECAUSE FEDERAL PRISONS ARE NOTLET REAL STORY IN
AMERICA.
THE REAL STORY ARE STATE AND LOCAL PRIS PONS THE REAL POWER
OF THE JUSTICE SYSTEM LIES IN CITIES AND COUNTIES.
AND SO THE STORY THAT I GOT THE MOST EXCITED ABOUT TELLING IN MY
BOOK INVOLVES EFFORTS ACROSS THE COUNTRY, A SOCIAL MOVEMENT TO
CHANGE WHO THE DISTRICT ATTORNEY IS, TO ELECT A NEW KIND OF
DISTRICT ATTORNEY, WHO IS PROMISING TO REDUCE
INCARCERATION.
AND WE'RE SEEING THAT MOVEMENT BUBBLE UP AROUND THE COUNTRY.
SO IF YOU'RE ASKING ME WHAT REALLY MATTERS IN THE CRIMINAL
JUSTICE DEBATE, IT'S NOT THE FIRST STEP ACT.
IT'S THIS LOCAL MOVEMENT.
YOU DON'T NEED WASHINGTON FOR THIS.
IN FACT, WASHINGTON'S KIND OF A SIDELINE SHOW.
WHAT'S REALLY HAPPENING IS HAPPENING CITY BY CITY, COUNTY
BY COUNTY ACROSS THE COUNTRY.
>> Stephen: WELL, THANK YOU SO MUCH FOR BEING HERE.
SO GREAT TO SUEY AGAIN.
THANK YOU.
>> Stephen: "CHARGED" IS AVAILABLE NOW.
GO GET IT.
EMILY BAZELON, EVERYBODY!
WE'LL BE RIGHT BACK.