generational gap occurs in the privacy space. i could see that issue becoming more prevalent in the next 18 to 24 months. you can go and say that you want some people to see the movies you have watched or the books that you have read, but you do not want everyone to be able to see it. . .

friends pay tribute to walter cronkite. later, president obama and house conference vice chairman kathy mcmorris-rutgers on health care legislation. >> sunday, susan jacoby of the ongoing fascination with the espionage trial of alger hiss, whitaker chambers, and the house un-american activities committee. at 8:00 p.m. eastern and pacific on c-span.

>> up next, a discussion on race and the american justice system. the aspen justice system last month look at flaws in the justice system and the high number of african-american men in prison. >> thank you very much. we're going to have a discussion about the american criminal justice system, so there are obviously a lot of things we will talk about. some of the questions the people appear on this panel think are important, and then we will want to spend some time the end of the discussion finding out whether we talked about all the things you think are important. so there will be a time for questions and answers. not speeches, we hope, but -- questions. we have a distinguished group of people here today to help us

with this effort, and i am going to go first to justice sandra day 0 conner. she replaced justice stewart and then was replaced in 2006 by justice samuel alito. she's a stanford graduate. we have a couple of those out here. we also have her husband, a future chief justice, william rehnquist. it is worth mentioning that arizona state changed the name of its law school to the sandra day o'connor school of law, and the other thing we know about her from the session yesterday is that she continues to consider herself an unemployed

cowgirl. i would like to also say that she is a member of a cowgirl hall of fame. [laughter] we also have with us -- you are getting low billing here. bishop a jakes is a televangelist, but before that, he started his own church at the age of 22. he was able to go on television a few years later. his church, even in this city,

where extraordinarily large churches of bound and nearly everyone goes to church. he and his parishioners have worked on hurricane relief, orphanages on south africa, and he offers financial advice to his flock. he has written more than 30 books, including some of what publishers call novels. more like parables. two of which have been made into movies. he talked about the need to rescue hidden deposits of britain's that are covered over by -- greatness covered over by

violence and criminal records. so that is something that is of tremendous interest to him and charles, a professor at harvard university. he is jesse clemenco profess our law at harvard and the founder for the institute for race ends just as there. charles hamilton houston isn't casually known as the man who killed jim-crow. he was the litigation director of the naacp, involved in just about every supervised lawsuits from the early 30's. charles ogle treat founded the

charles hamilton houston institute at harvard. he is a harvard law school graduate, and polished his techniques as a public defender in washington d.c. and went up to the leadership. he has written a number of books and appeared on television lots and lots of times. he is interested in, among other things, interested in the last confirmation hearings we have for the supreme court. he was involved in the confirmation of clarence thomas. this is a very distinguished group of people we have to talk to.

they have to do with crime. what do you think the justice system does right? >> we have a strong right to trial. if you have a good selected jury, it is a strong assurance to the defendant that it can be heard in an appropriate matter. there have been a lot of cases where there is an african-

american on trial and the court has dealt well with that and tried to prevent it from happening. criminal defendants who were convicted in our country have an opportunity to appeal if convicted through the state court system and have a right for a review. pretty impressive, reviewing a comparatively. >> i know in addition to dealing with people who are incarcerated, you have reserved a lot of your activism for people who are the victims of crimes. especially women who have been within the mystery.

>> a voice an advocate for the victim, and to reevaluate their lives in light of whether they are victims of violent families or children. we give them a chance to let their voice be heard. >> do you think that that is working with the american justice system, that justices -- >> we're very important. justice and adjudication of legalism, understanding that it is not totally to trial, because the victim continues to suffer.

there is a revolution, and the family and children and whole environment suffers, and there is an opportunity to work for us to do those things that the courts cannot do and bring about a peaceful resolve in calibrating who that person is. >> rev. j.s is doing a good job with that, and it is a problem. not every state has to resources to do that. he has set up a good program, but i do not know if it is successful. >> we need to arm ourselves to

what is expected. >> this has been denied far too often to women and people of african descent. even though the court has pushed it. the same thing, part of the remarkable thing from the warren court, which criticized the warren court, but they said, you know what, you should have a lawyer. you need to waive your rights to testify, that could be very important. justice scalia has been a surprising voice of clarity in

the sixth amendment right of confrontation. if someone accuses you, you have a right to confront them. they must show up and be subject to cross-examination that is important. justice kennedy, since this service is there, she wrote the number of opinions saying that 18-roles cannot be executed in the u.s. any more. he was saying that sexual orientation cannot be a basis to violation of privacy rights. there cannot beat a penalty for men and men and women and women to do the same thing. it makes a big difference. there are a number of great things the system is doing now.

>> you've talked a lot about how this same justice system imprisoned a large number of people, first of all. why did that happen? is that in justice? >> it is. we have a flaw in our system. if there are not resources, you do not get a just result. many of them are men, and children as well. there's a problem with their justice system. we have report at our website,

saying no more children left behind bars. to many of our children are being denied basic rights. i also testified in support of a non congressional effort to promote justice. senator jim webb, no easy person, is very tough, believing that they should be punished. we do not have a program for people who should be released. in his act of 2009, it is the most refreshing and the i have heard in a long time, that we should fix the system, because we all have some personal responsibility. i think those are examples of flaws in the system, but i am optimistic. be put to much burden on the court. the legislative and executive branches take responsibility -- >> that is important. because what is happening

nationwide is to start enacting mandatory minimum sentences. i used to be a trial judge in arizona, and when i had a felony case, my jurisdiction gave me the right to punish the defendant if it were a guilty verdict, up to life imprisonment. that changed, starting about 1980. legislatures began asking mandatory minimum sentencing, and they initially did it in drug cases, upset about drug use, and they thought the thing to do is to make sure that anybody caught with drugs that could be sold or to get 20 years menem in prison, no excuse, no difference. it has resulted in a huge numbers of people in prison. if you consider it the number of

people in prison in our cities today with other western nations, we beat them by 80% or more. it is just staggering. something like one in a hundred. and these are primarily drug cases. they tend not to be violent crimes. but they are crimes dealing with drugs that could be for sale. that is in it. we just have to make a decision whether we want to continue that pattern or not. other nations are not doing that, and i do not hesitate making drug use legal, but i do hesitate examining our system -- i did not advocate legalization, but i advocate examination of the system to see if we need these long mandatory minimum sentences. >> is not just three strikes. sometimes there are two strikes.

but this touches on an issue that has nothing to do with the courts, but with our legislative and executive branches. it started from inauspicious points. a greek hero of mine, tip o'neill, was there when an african-american player at the university of maryland was selected by the university of maryland, and he died from a drug overdose. powdered cocaine became the conduit, and congress passed a law saying the penalty for crack cocaine would be 100 times more than powder keg -- powder cocaine. today, thank god, congress and the president and attorney general have said powder and

crack cocaine have no pharmacological differences and should be punished the same. that will transform the disparity, treating people evenly. >> it is a huge disparity, with racial undertones that have been difficult for the african- american community. it is important to know that the notion we originally thought, it is not just that we're overpopulated prisons. instead, a drug use and substance abuse -- i am pleased to find that the disparities and prosecution have been rectified.

we want the drug problem treated as a disease. if you move to the other side of the tracts, it is treated as a crime. how we view it, and even have the media presents and, you say these people up problems and need treatment based on their affluence, their race. and at the same person has a problem and is a minority, we treat them like a criminal. that has a lot to do with how americans see people and a lot to do with how we evaluate what works. it is not an effective in diminishing drug use. >> it became a political cause that a lot of people ran on.

>> get tough on crime, partly drug crime. many states have big deficits between in, and budget -- incoming budget, and part of the expense is running prisons. and we're seeing pressure to try and reduced expenses of prisons, which might mean not having as many people in prisons, and in some cases going from three meals a day to two. i do not know what we are going to do. >> they are releasing people. california's budget is staggering. as much as you want to be tough on crime, you cannot afford it. we can save billions by reducing our prison population. but think of a 16-year-old in

washington in 1987, when the laws were 100-14 crack cocaine. no driver's license, you can i get a job, you cannot go back to mama's house. he has to report, all these issues, and he cannot get a job and contribute to society. thank god some local people said, you know what, not everyone who commits a drug crime can be punished for their life. and what we want to do is to restore them. they can be prospective tax payers, law-abiding citizens. and if we do not give them a job, they will do the same thing at a later date.

>> i do not think we are spending enough. they get trapped in the system and instead of rehabilitating them, they make it worse than it was before. we are second in the nation only to california, with about 150,000 inmates more in the system from 2000. 44,000 employees spent a lot of money just to incarcerate people. they call the texas offenders reentry. not only conducted a job, many

places will not rent to places who are incarcerated -- to people who were incarcerated. and yet he is expected to contribute to society. when all other doors are closed, you go back to crime. and that is why 30% of people released end up going back into the criminal system again. they have very few options. so we try to get them to assimilate back into society and help their families understand the person coming out is not the same person who went in. >> the question of families, fathers of children who have not very many options as they grow up -- this all adds to the pot. >> and women who are incarcerated who did not have farmers, they did not have the proper support systems.

sometimes gangs have replaced the motion of family in the absence of a support group for those involved, and in order to have a sense of family, they go along with the gang, and then they get in prison, and they get out, and they have no one. so it does not to step to be fate based, it could be anybody. somebody has to be waiting when they get off the bus to say, we will take you. the renters say we will not take it. many of them cannot even read about a fifth grade level. we have not educated them in prison or prepare them to be productive, so they feel like they have no options. >> there is a shocking lack of rehabilitation efforts these days with criminals serving long terms. why is that? >> it is expensive, and many

states feel like they did not return on it anyway because statistics on people getting out and committing crimes again are not encouraging. of course statistics will be higher. i think prisons in other countries, in western nations, are trying to do much more than we are in terms of rehabilitation. we need to work on that. >> let me ask about money. one of the huge contributing factors, minority people to white people -- what about money. is raise more important than money? >> i assume if you have the

money, you can afford a better lawyer. >> maybe, maybe not. people of high income levels of getting away with something. the main thing is whether we will do rehabilitation, whether we will stop this long-term mandatory minimum sentencing, and whether we will change. >> people who cannot afford a lawyer, could not afford the investigation -- we got together and put $5,000 towards

the case and the young men and adopt being released because they were able to get him off the charges and the found that he was not released. so we are starting to see tough attitudes when is visible. but to me they do not get real justice. they do not know where to go, who to talk to, and they're scared of police and do not seek criminal justice as an ally. they shrank back and do not get proper representation. >> we have established public

defenders and every jurisdiction, and these are highly qualified people. i would like to see some jurisdictions pay the bill for public defenders, have those people change, become a public defender and vice versa. >> i embrace the first half of the proposal. she is right about public defenders, and in reality, a lot of people do not have lawyers for sometimes weeks, months,

years. we need to address it. i want to say a word about the wonderful work that the tories are doing at potter's house. it is a great program to meet people, but the reality is that it is too late in this respect, and i applaud the mayor of oakland, and the mayor of york, we have been working with, getting them to be involved with corrections officials six months before release. it did have a drug problem? what skills they have? these women are being released

in december, let's start planning things for them. it is second chance at with too little money. they are coming back. like it or not, they're coming back to your neighborhood, you're perfect store, your schools. you do not want them to have the same problems as they did in the past. >> a wonderful thing to do, encouraging churches to adopt a prison to help facilitate, because you cannot begin a relationship when they get off the bus.

but we want them to get a job in a place to stay and we need mandatory testing for hiv aids before they get out. we will never be able to fight disease in our community when we have people forced into sexual situations, come out of prison, do not know their status. many times they leave not knowing they are hiv-positive and they're walking around shooting people with a gun. so you have a report about rape in prison, the spread of hiv and

aids, and he was a tough prosecutor when he was a prosecutor. there were a lot of victims of the crimes, they were raped, used, and we have a societal goal, it seems to me, of making sure no one is released. there is a reluctance to say, "i have the disease," particularly among black males. many of those incarcerated are young men, teenagers. can you imagine being in that environment -- they will not talk about it, because of their

fear that homophobia is there and it will come out and try and prove that they are ok tests by having as many women as possible. so we have a crisis where black women are disproportionately infected, and as the system contributes to that, we will not spend the dollars. >> are related issue is the question of young people in prison there because they had some sort of gang association. does that need to be changed? would stir the course of justice if somehow we would just change vol all governing when

they can be tried -- >> that would be hard to do. if you can be tried at age 18, the age to vote, it will be hard to get that changed. if you are old enough to vote, you can be prosecuted for a crime. that makes sense. >> i'm worried about 11, 12, 13, 14, 15, 16-year-old prosecutor, spending time in adult prisons. >> but now many are prosecuted is adults -- not many are prosecuted as adults. >> the old idea was that before you could be treated as an adult, there was a waiver process and the government had to show you were no longer able to be rehabilitated. all of that is gone, so there are statutes now, saying that you commit certain crimes,

murder, robbery, kidnapping, and you can automatically be transferred to the adult court, which is problematic. laws against everyone who is young who wears the same clothes or lives in the same neighborhood, that is overreach. we did rehabilitation and intervention, prevention, we could keep these kids out of the adult system. the u.s. promise act was proposed to punish serious gang members. those not in the category should be treated and rehabilitated some meaningful way. that has 220 endorsers in congress now. that kind of prevention and recognizing the difference between a gang-banger and a kid with a real issue, we keep talking about trying to intervene when you're 15 and it is too late.

if you do not look at kids in fourth and fifth grade, with mentors that say come with me, i will give you money, shelter, and protection -- we did not have a community out there with kids in middle school before high school join gangs because there is no one in the community. so they are on the streets. we focus on 9:00 curfew, but it happens between 3:00 and 6:00. they are in the community, and if we want to be smart about crime we will think about ways of making sure that these kids have something to do. >> something we have related to this is the jury system. is the jury system meeting out justice, and does it work? >> i think that it does.

i sat as a judge in many criminal cases for some years and had many cases go to a jury, and i only remember two, possibly three in all of those years where i thought the jury just plain got it wrong. i think they have been very responsible in seeing their obligations. i have been impressed. maybe it depends partly on having a judge that carefully instructs the jury, making them understand their roles, but i think it can be very effective and in my experience it is. >> do you think that juries appreciate the lack of discretion a judge has? >> no. they do not consider the sentence. their job is to determine the facts, killed, or innocence. >> i grant you, i have a movie

of the week view of this. but one gets the impression that jury nullification, standing between defendants -- >> i do not agree. there are definitely some cases where the sentence goes back to the jury, asked if there is a determination of guilt or innocence, and they put a role in for the jury in the sentencing at that level to make sure that it is not arbitrarily imposed by a judge. but really, i think the jury system works. >> it depends where you sit. justice o'connor controls the system that works. the cauchy can monitor efforts like prosecutors to remove jurors on a basis other than the merits of the case and control evidence coming through, of

making sure. that is important. that is not the problem. the problem is that the court never sees. we have remarkable problem now with nothing to do with race or gender or class. it is the blogging, tweaking, texting jurors who want to figure out for themselves why the person is charged, doing their own research, and you only find out after the fact. judges give instructions, but you do not know what they do after 5:00 when they get home. it is not original. around the country, more and more jurors wonder what it is about. that is a frightening idea that jurors are taking it among themselves to figure out what the case is really about. no one is going home with them.

and there were nine jurors on a chat in one case going back and forth about the evidence. you cannot discover, because people will never tell you. but that is what they're doing, and that undermines the system for both sides. the race problem is that we have virtually but not totally eliminated -- there are still prosecutors that believe that winning is more important than justice. you want to win to put a bad guy or girl behind bars, but reality is that when you start striking people because of your assumptions about their race or gender or ethnicity, that is very problematic. a white woman was killed in georgia and he was convicted and sentenced to death.

the supreme court wrote the case and he wrote an opinion reversing the death sentence, saying there are things you cannot do. the same thing with the case in texas where the evidence was strong from the government point of view, but you could not continue to exercise practices to convict somebody of the process is not right. it is whether the procedures have been full of. -- followed. let's look back, and maybe the fact that they're recommending prosecutors is making them think more carefully about what they are doing. >> thank you very much. it is no longer limited to what we're watching. you can independently right now send out information and get informations, whether it be accurate or inaccurate, there are guidelines to control this,

and it is a scary thing, particularly when it relates to the judicial system. >> we have had a few trials stopped because somebody has told the judge that they got a tweaked from a juror during the course of the trial. not very many, but it makes the kind of wonder -- if you know about this, how many do you not know about? >> well, there is no way of really controlling it. if people ask if you have read anything, people will say no. but there's a flaw in the system that has to be addressed, and i think it will require changing jury instructions to add much that you cannot discuss at any

level, electronically or otherwise, but they do it anyway. >> one thing that happened recently in terms of prosecution is that the population of young women is going up in prisons. why is that? what do we think about that? >> we think women can do all kinds of things. they can commit crimes, too. and if they do, they ought to get caught. i do not think that is a negative, that there are more women in prison. if there are more using drugs or doing whatever it is, they need to suffer the consequences, too, i suppose. >> not a negative, but a complicated issue. we're a woman incarcerated as a

result of domestic violence and abuse. >> we can talk about that. this is huge. >> incidentally, it is going up at alarming rates. and it exacerbates probably even more this whole woman being pregnant in prison or having given birth in prison -- these are issues men did not have to deal with and the abandonment of the mother from the home is complicated. it is not really an equal playing field. also, when you see incarcerated women, it opens up a plethora of issues, and i think we will see scars on the family for many, many generations to come. >> with the status crimes, there are women who are sex workers and prosecutors sent to prison, and you rarely ever prosecute either the defendants, the johns. they're not visible to the symptoms -- system, and it

becomes a revolving door. i would have to stay with the judge from texas, professor dill more -- he has come up with a code for the children sitting in the court room, seeing their mothers or fathers go to jail for 20 years. she teaches the children to write and contribute to the relationship. the family continues. one judge is trying to do this. she has to follow guidelines. she can do something else to not be the recidivist.

they will find themselves in the system and look like everyone else. they have a drug problem, a behavior problem. one thing that is remarkable is that there is a remarkable class connection. you do not see a bunch of rich people who are really going to jail. there is this class-race issue that is prevalent. we need to find ways to reduce it. we're talking to a largely white male and female audience. you are part of the mentors that can make a difference. you can not think that mentor ship is either racial or gender- based.

people can make an enormous difference, so do not count yourself out. you have the ability and compassion to solve the problem. do not wait. >> we are supposed to talk about that during the course of this conversation. i wonder, what do you think is an idea that work? >> i know women in my home state of arizona involved in a program to help women who were incarcerated and women who have families in particular, and make

contact. i applaud programs of that kind. you can do it as a volunteer. >> to talk about your community, trying to receive it. i wonder if you think any of these are particularly worth passing on or trying to reach out to people? >> i know you say about mentoring -- we're trying to get a program ready, because both young boys and adult men

have never been fishing. their world is so small, their exposure is so limited. so people called to make decisions for them but lived in different worlds altogether. my church is 44% male, unusually high. and we just came out of the men's conference before it came here. the ratio of men who has never been fishing is amazingly high. they could be 40 years old. we are breathing the same air, but having a different experience. experience, exposure, and family. we have to get to the point

where we cross pollinate of beyond race and language and bring each other into the same world of opportunity so we can count on people to bring them up for a better day. i also want to mention that this might be slightly political and controversial, but we also have an obligation as people in the media, with heroes and people to admire. we're changing the topography, and we have to make it possible to be smart. they cannot do that for themselves.

some of the things we develop are focusing on that. >> now it is your turn. there in the back? there are microphones wandering around the room. you stand up and indicate you want one of the microphones and we will get one to you. >> a couple of you mentioned the economic costs. we might have to cut back on costs. i wonder what you think is the most effective messaging for how to confront the problem. is it talking about economic terms, investing in education,

or more about value? >> they are trying to make a budget. this is in terms of the budget and economy. >> you have to talk about moral responsibility. >> when you talk about just punishment, you talked about economics california is an example.

you have to pay the cost of incarcerating people and you could be more productive. >> if we do not to what we do with the mental health system, we've released them to become homeless people. and you have people who need mental health care and are either victimizing themselves or us. so you cut it out. >> down here in front. this will set a track record, all the way down to the front.

>> you want to check and see if they have hiv before released. as they come in and segregate them? i am sure there will lead to that. but do you mean to do that so it does not spread to the whole population? >> well, this is an essay too long to give now, but officials have a lot of authority and quarantine people. there are other diseases that need to be addressed. it would not increase costs, because everyone is tested on a

rival. when you say isolated, people can still be members of the community. what you are concerned about is the spread. judge walton and his committee. >> i am hoping for not just segregating said they did not spread it -- i am an advocate for testing as they go back to society so they have knowledge. if you do not know your status, you could innocently damage someone you love and they die. what i'm saying is that those

people need to know, not so much so they are segregated but so they can modify behavior is according to the situation create >> i mentored both the obamas at harvard, and they mentioned a point that has been omitted. it should test everyone for aids. it eliminates the stigma. everyone has to do it in school, so you are not isolated. the stigmatization is very, very powerful and the black community, whether it is here, haiti, jamaica, or anywhere in the world. we could make this a routine checkup. everyone gets a private medical checkup, and that is better off. >> justice o'connor and i the only ones who remember when everyone was tested for

tuberculosis. [laughter] >> no, you are not the only one. [laughter] >> ok. right there. yes. >> one clarification, then a question. going back to discussion of rehabilitation while incarcerated, my concern is that recidivism rates return on the investment of prisons that provide degrees, particularly looking at the york -- new york. i want to look more at modification of policies. if we could hear this --

>> you are absolutely right about the value of having people focus on something aspiration of. if you go to school and get a degree in prison, you can get a job. lorton prison in virginia had thousands of d.c. inmates who were sentenced, and they get an education. what a difference will may happen if you go in when you are a teenager and come out in your 30's. but laws that said we could not have libraries and education were the first one to go, and it had a collateral consequence. it is likely to be recidivist, because they can do