i will not call him up, i will tell his story is best i can. there were several people i wanted to talk about, push folks to not just talk about the kids on the corner who got caught with a nickel bag of marijuana and they end up in jail, stories like that. i wanted to push the envelope for people to consider actual violent acts in the community and how we respond as a society. so odell newton as a young person, robbed and killed a taxi driver. he was given life as a juvenile. at that time, he was given, a life with parole. that meant something, that was not a throwaway term, at that time, within your time at jail, you are supposed to rehabilitate yourself and there was a

possibility of you going back into the community. at that point, in the late 1970's and into the 1980's, there was a policy where folks could show that they had rehabbed their lives and be let out. he was recommended to be paroled on three different occasions. at one point, he was any program, waiting to go out and spend time with his family, he had a job on the outside, his employer said if you would let out, i would hire him right away. and as we went through this time in the 1990's, these programs were drawn back and in maryland, it is a very important point that you get this, we ended up with the parole system being abolished. maryland was unique, no matter what the pro-board recommended, it was a political liability for a governor to sign off on a life

sentence, that poses several challenges. understanding on some level of that you cannot reduce this, from doing evil things. even in a state like marilyn, this is a problem. at the same time, these folks, the governors themselves, they had to respond to these within communities. and the way that they deal with it is to completely look away. even at the juvenile level, looking away. that is a real issue, that we actually have to get to. and finally, if points to the fact that our basic institutions stopped working. the parole board did basically not exist. if so -- and so that shows how it actually leaves us with the situation with where our basic institutions stop function in. james: thank you very much, we'll be exploring questions like this to the rest of the morning and afternoon. ta-nehisi: thank you. [applause] [applause] ♪ >> the next conversation, they were already touching on incarceration and i will throw in the mix a figure, the u.s. suspends $80 billion -- spends $80 billion a year on incarceration. it should prompt a reasonable

person to ask, what are we getting with that money? said to help -- so to help us sort through that, let me welcome, the president and general counsel of latinos, a professor at harvard, jason. i will give you some space. from the manhattan institute. and you are also a columnist for the wall street journal and a contributor to fox news. welcome. situation with where our basic institutions stop function in. james: thank you very much, we'll be exploring questions like this to the rest of the morning and afternoon. ta-nehisi: thank you. [applause] >> more enough from the atlantic where two prosecutors any former judge talk about the roles of courts and potential changes to sentencing guidelines. this is a half hour.

>> good morning. a lively conversation from our talks backstage. i have with me a distinguished panel. one, i think many of us would agree, the most significant and least visible has then what happens in the interplay between defendants, prosecutors, and judges. here, twoh me .rosecutors and a 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. we 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? 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 crucial moment and a very dangerous moment because we don't take advantage of this time, i really feel we can go backwards. what we have to do is rebuild and talk about evidence-based practices and think about how we

got here in terms of the causes of crime. know, when i was a kid, you know, the root causes of crime was a liberal mantra. but in fact, we actually know much more about brain architecture, the impact of toxic stress on children. we do know much more and if we focus on that, we can make changes. >> we need to do that by immunizing the public. it is on all of us but particularly the media. like, therechool was not a gun at school today. the only go when it is a gun in school. politicians and legislators idea of safety is not the idea of safety of people in the community. you need to see that and stop using public safety safety as a shield for the real issues. the media is playing a large

force. the free america campaign is one of the things out there bringing the conversations out to immunize the public. >> don't blame the media too loudly. [laughter] >> my question is really to add adam.- to structuralthere is and institutional racism embedded not only in the police department's and prosecutorial court offices, how have you been able to navigate those types of issues in the office in which you find yourself? >> hugh have a right to remain silent. [laughter] i have the luxury of working

in an office where there is a lot of metonymy and discretion. -- a lot of metonymy and discretion -- a lot of automony and discretion. just sort of built up enough capital to continue doing the things that i am doing and saying the things that i am saying today. i hope. [laughter] >> question over here. >> i am here with catholic charities. a mother ofhere as an incarcerated son who is currently in prison. obviously, we can see that this is a national security problem we are talking about. prison, people in 700,000 on perl, and about 7

million in probation. the numbers add up and it is more than just millions. here, a lackblem of accountability in my opinion. so what are we doing at the level of counties and different states? i understand that states have jurisdiction over federal matters. there are some mistakes that are worse than others. for example, i sent is in florida. he was red filed when he was 16. he is 21. if you don't pay restitution, you are back in prison and that kind of cycle. >> focus on accountability. focus on the difference between the state system and the federal system. i have great respect for federal prosecutors, but they are not accountable like elected prosecutors are. in each election cycle, the

people in my community get to decide whether or not i am doing a good job or not. i think that makes for a healthier criminal justice system. i have to go to communities to understand what they care about, to understand stories about their children who they feel should not be incarcerated or are for too long. contrast that with the federal system where i think you have honest, diligent, talented prosecutors, but they are not accountable except through the president. and their boss, the u.s. attorney, who is appointed by the president. that is not a criticism of the federal side but it is a reflection of having accountability at least every four years. >> that can work in one or two directions. you can be accountable for a public that wants laws in a particular area.