judges. so i have with me here this morning two prosecutors and a judge, former judge. to my far right is adam fox, an assistant district attorney for the suffolk county in massachusetts, working primarily with juveniles. also a judge who was the outset when the crime rate began to rise in the 1990's, and cyrus vance, the district attorney for a county in new york. both of our prosecutors come to us with an interesting history. both i believe were defenders at one point. briefly, for adam, i am going to ask, what drew you to the dark side?

i will start with you. >> an easy one to start out with. i wanted to be defender for all the reasons that we are sitting here today. i knew jail was not working, i knew that the people who were in their looked a lot like me, and i thought the way i was going to help that situation was to become a defender. and i learned two things while having worked for a defense attorney to law school and being a certified defender as a student. one is you have a least amount of power in the courtroom. that was the one thing either. the second was i was not fixing any of the ills that brought my client into the system by

absolving them from guilt. i wanted to help those individuals make sure they were not come back to court, not just on that one individual case, but in cases that came along in their path. >> this is what we would expect. cyrus, i believe you said that prosecutors are the stewards of the integrity of the system. you have recently overseen the new york state commission on sentencing and made recommendations where you think things should be changed. implicit in those recommendations is where something power should accrue within the system. where do you think -- >> it accrues to prosecutors differently in different jurisdictions and different than the federal system.

new york state sentencing laws are not like those in washington state. the powers of the prosecutor really rest principally in discretion, whether a prosecutor decides if he or she is going to charge this crime versus another or whether that prosecutor decides a charge not be brought. but where i think sentencing should land is i am comfortable with having judges have the power in broad ranges. in new york we have some of the widest ranges in the country. for nonviolent, judges have the discretion to give one to 25 years, and i think it is important to advocate for that. i was a defense lawyer for 25 years, and i understand the importance of their work. they have to advocate for their

clients, and ultimately the just has to decide, and it rests on the judges' shoulders at the end of the day. they take the weight of the decision, because they have to make it in the end. >> nancy, i will put the question to you. as it stands, we have two different prosecutors, many folks who would agree that prosecutors have a significant role in determining the outcome of cases where defendants' lives -- where do you see the balance of power in the courtroom and where

should be? >> i was in the federal system where the balance of power is in favor of the prosecutor. they have the ability to offer someone six months if you plead guilty and 20 years if you go to trial. it is essentially a system of pleas. i was supposed to be there. i loved the moment when i meet over to a defendant, has anyone coerced you into pleading guilty, and i knew it was a kabuki ritual. of course, they were coerced. hanging in the balance was an extraordinary mandatory minimum. so the source of power overwhelmingly brings power to prosecutors, and when someone gets that minimum, i was a potted plant. i was the last step of doing what was the obvious. i love the notion of judicial discretion. one of the problems of having

been around for a while, we see swings. discretion is not a set thing in policy. it tells you where the location of sentencing policy should be. that is not a policy. i want people to talk about the things that the conference is talking about, which is evidence-based programs, what to do with addicts, what should we do with kids who i sentence were taken out of school in 10th and 11th grade. it was great to give me discretion when i was a judge, want guidance about how to exercise that discretion, guidance about real meaningful programs. >> to step back for a second. reading the mood of the room, i think we have heard broad consensus or agreement from all the speakers this morning, but we may have reached as a country in sentencing and a length of sentences and the nature of some of the sentences and not paying enough attention to potential

alternatives. but there is a sense that is going over this whole conversation that the conversation is quite fragile. what happens if crime goes back up? how does this conversation change? >> let me give you an example of a case in new york, and this is public because the individual is in court. have an individual who has not been indicted for killing a police officer several weeks ago in new york city. that individual had a significant drug record and heads of other conduct that ultimately was not charged, but was relevant. while out on the diversion program, he skips, and while out, he is alleged in the prices to end up killing a police

officer. there is an example of you obviously want to support that version -- diversion, which can be incredibly productive, but if it does not work out, and if the judge does not see in a crystal ball what is going to happen five years from now and something terrible happens, yes, to answer your question, these can snap back frequently, which is why i think following nancy's suggestion, we need to be evidence-based, we need to have risk assessments when we do individuals in sentencing. we have to have a sense of the efficacy of the programs we send people through and have a good sense that the dollars we are investing are good dollars, and from my view, i want to spend my law enforcement dollars for no more days in prison than are absolutely necessary. i want that to be the lowest number it can be to get the maximum amount of safety that we can achieve as well as fairness. but a serious case can flip community sentiment overnight.

>> you noticed about massachusetts and massachusetts has this great reputation. the willie horton case from decades ago transformed sentencing. so, in fact, we were regressing in a number of areas. you will say to version may not have worked in this case, will look again at the version. of course, imprisonment never worked. and the response to imprisonment was always, well, you killed, so we must increase the sentencing. with an even worse efficacy than we would have with these types of programs. the public has to know that there are bound to be mistakes. there are mistakes in either end. and the issue is sort of risk

assessment. the issue is risk assessment and what is more efficacious and stopping,. >> and to pick up on nancy's point, it is the great irony of being a progressive person in these roles. you are looked at as if you are crazy, the things that you are suggesting are nuts and super risky. the reality is we know what happens in your send people to public jail. you can't just close down shop and stop trying because the alternative is sending them back to a place we know is bad for public safety. you have to take that risk and get the benefit of all those cases that do succeed. sure, there are going to be costs and there are going to be those costs. we have plan crashes, but people get on planes everyday -- plane crashes, but people get on planes everyday because they have to. mr. thompson: i was curious from

your perspective, you cofounded a program called the rock street choice. you have been doing a lot of work over the years to try to find alternatives to prison for kids, in particular. what to did that work look like? how do you send someone in a different direction? mr. foss: i just want to back up a little bit because we spent a lot of the conversation talking about please and -- police and prison. a lot of the work we do has very little to do with jail. it is actually on the front end, and that is in terms of the awareness. the new scarlet letter out here is "g." that record that follows you around is the real problem and the thing that is driving this whole system. when you talk about sort of how do we reform this, you've got to take it from the very beginning. look at this case. if the result of this case -- is that going to lead to a better outcome of public safety? there is something i can do at that point before this criminal -- person gets a criminal record to help them prevent problems to begin with.

i run a reading program for kindergartners and first graders. is that me being a prosecutor? i think so because there is a direct correlation between the cognitive gap of urban kids and suburban kids. we have to talk about probation. there are people -- mass incarceration is often driven by people who are waiting for our detained or are violated after a probation violation hearing. we have to understand what that is. probation is a service people pay for, and is the only service that if you pay for it and we

don't get the service you are getting, you go to jail. we need to talk about that. we make them pay to get services, and when they fail at what they are doing, we lock them up. so we need to expand the conversation from just a reentry in prison and policing to all of the players along the way that play into and are complacent in this problem. mr. thompson: nancy is smiling. nancy, being a judge, having been a judge in your state would say adam is one of the good guys. he has -- he is thinking about this problem the right way. there is an interesting study that you actually open to our books to the very institute if you years ago and said, in and

look at how race affects outcomes for defendants in our system. and part of what that report found was that race did affect those outcomes at different steps along the way, whether cases where dismissed, from charge offers and sentence offers, to whether people were detained and arraignment -- at arraignment. one of the things that was interesting to me was that actually one of the factors in several of those cases that was more significant than race itself was council type. the type of counsel people had access to. we don't hear the word defenders much in this conversation, but how do we -- how do people get a better defense? mr. vance: you have to resource the defense function. it should be not a last thought issue in who gets funded, but i think the legislature or the municipality has to find the defense function.

that is how the system works well. the courts and the bodies that look over licensing have to make sure that the lawyers who are practicing in these courts are actually up to speed. and i think that is sometimes lacks. that doesn't happen enough. but in the vera report, a not-for-profit criminal justice think tank, bringing vera in to analyze -- analyze bias in our system was a real help to us. and ultimately, it's led me following the report to -- to focus our efforts on appropriate diversion, expanding diversion, particularly for young men and women before they go downtown,

to divert them before they have to go to the criminal justice system, and give them the opportunity to reach that, to make smart judgments on diverting the ones who are arraigned and giving them an opportunity to get out of the system. and also in new york city to change the practice of making arrests for summonses, which are extensively tickets -- are essentially tickets. altogether, you are talking about 25,000 to 30,000 people who we hope will have a different route or alternative route through the criminal justice system. and that is -- vera helps me see this is how we can address issues of who comes into the criminal justice system at the bottom because most people come in young, and you have to do a good job when you come in young. ms. gertner: you are dealing with the system that didn't have the kind of mandatory minimums that the federal system has paid on the federal side, you can give public defenders massive

resources and it will make no difference. no material difference, rather, because no fabulous council will take the risk of going to trial when what tanks in the balance are these kinds of mandatory minimums. but it is also -- the funding issue is very interesting. massachusetts had a role -- rule that said they were going to this favor psychiatric puts at sentencing unless somebody had a mental issue. the kids who came before me were seen as problems before they came to me. not one of them was sent to a shrink. those other cans of things you have to analyze. you have to look at. they didn't speak the language

of psychiatry. people took the social language of discipline to them. mr. vance: i think adam would agree with me that we are capable now of looking at where criminals are involved in their life. it could be that they go to the hospital for some injury. it could be they -- [indiscernible] we have to resource the system as it pertains to crime prevention, as opposed to just crime prosecution. and if we are able to use data and know who is at risk and reach out to that family or that woman, if it is a domestic violence situation and we know she has been to the hospital three times in the last six months, if you had to choose between prosecuting someone or preventing the robbery from occurring, you would choose prevention. but we spoke -- don't spend

money on prevention like we do. ms. gertner: the only prevention was long sentences that would disturb it the people that i was sentencing expected to go to jail. mr. foss: and you add that onto what we do know of people in jail, predominantly between the ages of 18 and 24 years old. the brain is developing in such a way that you can tell them you are going to spend the next 50 years in jail, and that means nothing to them. we need to stop badgering like we are on different silos and we just get to these people as they are coming to a spread the police department takes them to us, we give them a probation, probation gives them to the jail. we are all complacent in this. -- complicit in this. we are all complicit in the creation of the problem, and therefore we are all responsible and figure out the solution.

from the prosecutor said, that means learning more -- side, that means learning more than how do i give a closing argument. it requires that we learn about adolescent brain development, about the history of race in this country and what it has done to black people, about the effect of trauma on people and how that -- how that impacts crime. >> [applause] mr. foss: and so that when i am in a courtroom getting a police record, regardless if i have been a prosecutor for a day or 10 years, i look at that report and see more than just the name of the person who is on the other side of the aisle. and if i want to prevent them from committing crime, and using all that research so we avoid that person ever coming back. mr. vance: and that his

crime-fighting. ms. gertner: public safety issues. that is right. mr. thompson: i am going to want to give any of you and opportunity to ask a question to our panel -- an opportunity to ask a question to our panel. nancy, you had proposed -- or mentioned a proposal last week that you have a marshall plan in your community as one of the other forms of addressing the backend of this. what does that look like? mr. foss: -- ms. gertner: david came up with the idea, but the notion is you can't just do things going forward. there are things you have to do going forward to deal with these issues, but there are consequences to the causal state. and the consequences are communities who have been best the mated -- who have been decimated by whole generations of men absent. there is an intergenerational problem, in economic problem, and educational problem -- an economic problem, an educational problem. we now have to rebuild communities that have been

decimated i mass incarceration. it really is a rebuilding process. it is really -- we are at a very we are at a very crucial moment, a dangerous moment. if we do not take advantage of this time, we can go backwards. less punishment is not a policy. likewise, discretion is not a criminal justice policy. what we have to do is rebuilt, talk about evidence-based practices. think about how we got here. when i was a kid, the root cause of crime was a liberal mantra. but we know much more about brain architecture, the impact

of toxic stress on children. if we focus, we can make some changes. it is on all foss: of us. but particularly the media. news cameras at high schools saying, there was not a gun today. politicians and district attorneys and legislators' idea of safety is not the idea of people in the community. you need to stop using public safety as a shield for the real issues. the media is playing a large force and. -- in that. it is bringing the conversation out to immunize the public. mr. thompson: do not blame the media too loud. [laughter] mr. thompson: icam. i see a hand.

>> first of all, i am very inspired by the progressive things you are doing. my question is, given that there is structural and institutional andsm in police departments in court processes, how have you been able to navigate those types of issues? you have a right to remain silent. mr. foss: i have the luxury of working in an office where there is a lot of discretion. i have been able to exercise that autonomy and discretion. it was not easy early on. peopleer i had given the that decide whether or not i have a job -- being able to give them my stories about people we

had taken risks on build up enough capital to be able to continue doing the things i'm doing today, i hope. mr. thompson: over here. >> good morning. my name is susanna moreno. today, i am here as a mother of son.carcerated this is a we can see national security problem we are talking about. prison, 7people in million in probation. the numbers add up. we have a problem of lack of accountability, in my opinion. what are we doing at the level of counties and states?

i understand states have jurisdiction over federal matters. there are some states that are worse than others. my son is in florida. he is 21. restitution, pay you are back in detention. i would like to focus on the difference between the federal and state system. i have great respect for federal prosecutors. they are not accountable like elected prosecutors. in each election cycle, the people of my community get to decide whether or not i am doing a good job. that makes for a healthier criminal justice system when i have to go to communities to understand what they care about, understand stories mother -- about their

children who they feel should not be incarcerated. ,he federal system is diligent talented prosecutors that are not accountable except for the president. attorney, appointed by the president. that is not a criticism of the federal side, but a reflection of that we have accountability. ms. gertner: that can work in one of two directions. you can be accountable for the public in particular areas. criminal justice is determined whateverime du jour, the newspaper feels you have to do something about. you are accountable, but you need some independents. arguably, the federal system has independents.

second to the mandatory minimum discussion, you need a system in which players balance each other so if a prosecutor comes to me with a charge that is ridiculous and i find out more about the case, i want to be able to say that the charge may be appropriate in the case of a dealer of megatons, but not this kid. that is where judicial discretion is an anecdote. there is a balance. right now, the system is skewed. skewed thisrugs has completely. like ato sentence people column of figures. discretion to enable me to say, i cannot sentence you to that. mr. foss: the problem with accountability is you are

assuming the accountability applies to everyone and everyone has the opportunity to be involved in the process of electing a prosecutor. when you disenfranchise people either through making them , people not system being educated about what a prosecutor does, and let's not forget about the people who are convicted of certain felonies who are excluded from voting, you can get a skewed picture. [applause] of who that person is representing. mr. thompson: any questions? >> quickly. my name is george. to -- there is a lot talking about

constructs as if they are finally -- finite. society is assumed to be good. when we talk about prosecutors and accountability, we look at hillary clinton. she was not talking about box until it was necessary for her to get elected in the system. at so manyre looking people are disenfranchised from the system. how can i realistically expect a system to work morally? how can i realistically expect the system which has created these conditions to be a system that fixes it? we are not going to be able to answer the question.