recommendations is, i think, an idea of where sentencing power should accrue within the system. i'm curious to hear, where do you think the power that now accrues to prosecution should be? accrues to prosecutors differently in different jurisdictions and different than the federal system. so, new york state and sing laws are not like washington state sentencing laws. that said, the powers of the prosecutor, i think, really rest principally indiscretion. whether a prosecutor decides that she or he is going to charge this crime versus another . and whether that prosecutor decides whether a charge not be brought or should be disposed of. where i think sentencing should land -- i'm very comfortable with having judges have the power, broad latitude and broad ranges, and a new york state, we actually have i think among the

wider sentencing ranges in the country for certain offenses. what are called nonviolent offenses, judges have the power to send in someone from one year to 25 years. in certain cases. i'm very comfortable with that, because i think it is our job to advocate for the result that we want. it is the defense lawyers job, and i was a defense lawyer for 20 years, so i completely understand the importance of their work, they have to advocate for their clients. ultimately, the judge has to decide and i was talking about nancy come outside, it rests on the judge's shoulders at the end of the day. the weights of the decision because they have to make it in the end. >> so, nancy, i will point the question to you. as it stands, we have two defenders to become prosecutors. we have many folks would agree that prosecutors have a significant role in determining the outcome of cases where defenders lives. as a former judge, where do you

see the balance of power in the courtroom and where should it be? >> the balance of power is overwhelmingly in favor of the prosecutor. the prosecutor has the ability to offer someone six -- the prosecutor had the ability to offer someone six months if you plead guilty or 20 years if you go to trial. moment when ias a would lean over and say to a defendant, has anyone could voice -- anyone coerced you into pleading guilty, they would say no. of course it was coerced. hanging in the balance was an extraordinary mandatory minimum. mandatory minimums bring power to prosecutors. when someone gets sentenced to a mandatory minimum, i was a potted plant. i was the last step of doing what was the obvious. i love she rushed -- i love

judicial discretion. one of the problems is that we see swings. discretion, as you know, is not effective policy. it tells you where the location of sentencing policies me. -- policy should be. i want evidence-based programs. what should we do with addicts? most of the kids i sentenced were kids who were kicked out of school in 10th grade or 11th grade. discretionto give me as a judge, but i want guidance about how to exercise that discretion, not just guidance about numbers, guidance about real, meaningful programs. >> reading the mood of the room, we have heard broad consensus

from all the speakers this morning that we may have overreached as a country in sentencing, in the length of sentences, in the nature of some of the sentences, in not paying enough attention to some of the potential alternatives and what have you. but there is a sense that lingers over this whole conversation that the conversation itself is quite fragile. what happens if crime goes back up? how does this conversation change? >> let me give you an example of the current case in new york. this is public because the individual is in court. we have an individual who has been indicted for killing a police officer several weeks ago in new york city. that individual had a significant drug record and had some other conduct that ultimately was not charged, but was relevant. while out on a diversion and, while skipped

out, he was alleged to have killed a police officer. there is an example of -- you obviously want to support diversion and diversion can be incredibly productive, but, if it doesn't work out, and if the judge doesn't see in the crystal ball what is going to happen five years from now and something terrible happens, yes, to answer your question, these -- things 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 deal with individuals and consent -- sentencing. we have to have a sense of the efficacy of the programs we send people to and have a good sense that the dollars we are investing are good dollars, and in my view, from my perspective 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 ask me before we came out here about massachusetts. massachusetts has this great, progressive reputation. the willie horton case from 2, 3 decades ago transformed massachusetts' sentencing. it is a funny kind of conversation. you will say diversion may not work in this situation. of course, imprisonment never worked and the response to imprisonment was always, well, increase the sentences. we had higher and higher sentences with even worse efficacy than we would have for these kinds of programs. but the public has to know that

there are bound to be mistakes. there are mistakes in either end. there was a mistake and incarceration, there were mistaken releases. and the issue is sort of risk assessment. the issue is risk assessment and what is more efficacious and -- in stopping crime. >> and to pick up on nancy's point, it is the great irony of being a progressive person in these roles. because your looked at with this e-eye,, like -- this sidey like you are not, the things you are suggesting our -- are super risky. the reality is we know what happens when you 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 we have to immunize the public to the fact that there are going to be those costs. we have plane crashes, but people get on planes everyday because they have to. there is going to be that one off person that does something crazy, but that doesn't mean you stop flying. mr. thompson: i was curious from your perspective, working in the juvenile division, 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 does that work look like? how do you send someone in a different direction? what does that look like in practice? mr. foss: i just want to back up a little bit because we spent a lot of the conversation talking about police and prison. and there are so many other flashpoints in the system before we get there. a lot of the work we do has very little to do with jail. it is actually on the front end, and that comes with an awareness that the new scarlet letter out here is "g."

wear thatthat -- "guilty" for the rest of your life. but that, ,court ends, 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. is the result of this case, the resulting conviction i'm going to get, going to lead to a better outcome of public safety? something ii can -- can do before this person gets a criminal record that can divert them from causing another problem to begin with? everything funnels to public safety, education. 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 gaps between urban kids and suburban kids. from the time they reach the first grade and the projection

to the criminal justice system. we have to talk about probation. it is an option we often leave out of the conversation. there are people -- mass incarceration is often driven by people who are waiting for or 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 -- you don't get the service you are getting, you go to jail. we need to talk about that. we set people up to fail. 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 -- just reentry in prison and policing to all of the players along the way that play into and are complicit 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 is thinking about this problem the right way.

there is an interesting study that you actually open to our -- open your -- opened your books to the institute a few years ago and said, let's 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 were dismissed, from charge offers and sentence offers, to whether people were detained at arraignment. one of the things that was interesting to me, to return to my first question, was that actually one of the factors in several of those cases that was more significant than race itself was council type. was counsel type, the type of counsel people had access to. we don't hear the word defenders

much in this conversation, but how do we help 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 fund 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 -- sometimes lax. that doesn't happen enough. but in the vera report, a not-for-profit criminal justice think tank, bringing vera in to analyze bias in our system was a real help to us.

and ultimately, it led me, following the report, 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 reset, to make smart judgments on diverting the ones who are arraigned and giving them an opportunity to get out of the system hopefully, -- hopefully and also in new , york city to change the practice of making arrests for summons, which 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 helped 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 they come in young. ms. gertner: you are dealing with a system that didn't have the kind of mandatory minimums that the federal system has paid -- had. on the federal side, you can give public defenders massive resources and it will make no difference. no material difference, rather, because no fabulous counsel even will take the risk of going to trial when what tanks in the -- what hangs in the balance are these kinds of mandatory minimums. the funding issue is very interesting. massachusetts had a rule that said they were going to disfavor psychiatric puts at sentencing unless somebody had a mental issue. the black kids who came before me were seen as discipline problems when they were

teenagers. not a one of them was sent to a shrink. to some degree, that constricting of resources has a bias to affect -- a biased effect. those are the kinds of things you have to analyze, you have to look at. they didn't speak the language of psychiatry. people spoke 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 individuals become criminally-justice involved in their life. it could be that they go to the hospital for some injury. it could be that they are true are truantchool -- from school. 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 be more intelligent to 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 for a robbery and preventing the robbery from occurring, you would choose prevention. but we don't spend money on prevention like we should. ms. gertner: the only prevention was long sentences that would deter. but it does not at all. the people that i was sentencing expected to go to jail. absolutely expected to go to jail. mr. foss: and you add that onto what we do know of people in jail, in the juvenile context and people in prison, 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. what matters to them is how am i going to survive until tomorrow and what are my friends doing. we need to stop acting like we are different silos and we just get these people as they come to us. they go to school. the school send them to the

police. the police department takes them to us, we give them a probation, probation gives them to the jail. we are all complicit in the creation of the problem, and therefore we are all responsible in figuring out the solution to the problem. for the prosecutor's side, that means learning more than how do -- where do i stand at the bail hearing, 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 and brown people, about the effect of trauma on people and how that impacts crime. [applause] mr. foss: and so that, when i am in a courtroom getting a police report, regardless if i have been a prosecutor for a day or 10 years, i look at that report and i see more than just the words on the page, but the individual that is on the other side of the aisle. and if i want to prevent them from committing crime, and using 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 have many more questions i want to ask you, but i'm also going to give any of you an opportunity to ask a question to our panel. before we do, i want to talk one second about solutions. nancy, you had proposed in an op-ed or mentioned last week in "the boston globe," that you have a marshall plan as one of the other forms of addressing the backend of this. what does that look like? ms. gertner: credit where credit is due. david and the sentencing project 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 car several -- the carceral state. 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, and educational problem, an economic problem. we now have to rebuild communities that have been decimated by mass incarceration. it is not just going forward. it really is a rebuilding process. , too, reallyn that we are at a very crucial moment , and a very dangerous moment because if we don't take advantage of this time, i really fear we can go backwards. and less punishment is not a policy, although that is fabulous. likewise, discretion is not a criminal justice policy, although that is fabulous. we have to rebuild. we have to talk about evidence-based practices. we have to think about how we got here in terms of what is the cause of the crime. and that was mocked when i was a kid. the root causes of crime was a sort of liberal mantra.

in fact, we actually do 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 some , changes. mr. foss: and we need to do that by immunizing the public. again, it is on all of us, but particularly the media. you don't see news cameras standing at a high school when there wasn't a gun at the school today. they only go there when a gun was at the school. it is not the same idea of safety. you need to stop using public safety as a shield from the real issues of what we are doing. and the media is playing a large force. john legend is one of the people out there that is just bringing this conversation out and trying to immunize the public. mr. thompson: don't blame the media too loud. mr. foss: i won't. [laughter]

mr. thompson: what questions do we have in the audience? over here i see a hand. right over here. >> yes, i am with the delta society foundation. my question really is to adam foss. first of all, i am very inspired by all of the progressive things you are doing in your prosecutorial office. given that there is structural and institutional racism that is embedded not only in police departments and prosecutorial offices and court processes, how have you been able to navigate, shall we say, those types of issues in the office in which you find yourself? ms. gertner: you have a right to remain silent. [laughter] mr. foss: i have the luxury of working in an office where there is a lot of autonomy and discretion. i have been able to exercise that autonomy and discretion. it wasn't easy early on, but after a while i had taken these reps and given the people who

decide whether or not i have a job, being able to give them nice stories about people we had taken risks and and now are -- and now are thriving in the community, i was able to build up capital and do the things i do and say the things i'm saying today -- i hope. mr. thompson: a question over here. >> yes, good morning. i am here with catholic charities. but today i am here as a mother of an incarcerated son. he is currently in prison. obviously, we can see that this is a national security problem that we are talking about. 2 million people in prison. 700,000 in parole. and about 7 million in probation. the numbers add up. and it is more than just millions like i just said. we have a problem here of lack of accountability, in my opinion.

and 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 states that are worse than others. for example, my son is in florida. he is 21 and he hasn't -- [indiscernible] if you don't pay your restitution, you are back in prison. and that kind of cycle. mr. thompson: focus on accountability. mr. vance: i would like to focus on accountability. the difference between the federal system and the state system. i have a great respect for federal prosecutors, but they are not accountable like elected prosecutors are. and in each election cycle, the people of my community get to decide whether i am doing a good job or not. and i think that makes for a healthier criminal justice system when, as an elected individual, i have to go to

communities to understand what they care about, understand stories about their children who they feel should not be incarcerated or are for too long, and contrast that with the federal system where i think you have honest, diligent, talented prosecutors, but they are really not accountable, except through the president. and their boss, the u.s. attorney, who is appointed by the president. so, that is not a criticism of the federal side, but a reflection that we actually do have accountability, at least every four years. ms. gertner: that can work in one of two directions. you can be accountable to a public that wants blood in, you know, a particular area. we used to kid around about how our criminal justice policy was determined by the crime du jour, whatever hits the newspapers you have to do something about.

so, you are accountable on the one hand, but you also need some independence from a mob. arguably, the federal system has that independence. that gets back really to the mandatory minimum discussion. you need a system in which different players balance each other. so that, 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 charge may be appropriate in the case of a dealer of megatons, but not this kid. so, that is where judicial discretion plays in as an antidote to a prosecutor because -- but judges have to be accountable, too for what they , do. so, i think there is a balance, but right now, the system is , skewed. i am assuming the war on drugs has skewed this completely. i used to sentence people like a column of figures. by the time i got to a number, i go, that cannot be. but there was no discretion to

enable me to say i can't sentence you to that. mr. foss: the problem with the accountability piece with regard to elected prosecutors is that you are assuming that accountability applies to everyone and everybody who has the ability to exercise that power. to be involved in the process of electing a prosecutor. but when you disenfranchise people, either through making them inherently distrust the system and not want to get involved in voting for the prosecutor, people not being educated about what a prosecutor actually does and escape full of doing -- and is capable of doing, and let's not forget to talk about the people who are convicted of certain felonies are excluded from voting, you can get a very skewed picture of what -- >> [applause] mr. foss: of who the person being elected is representing. thompson: we have a very brief question. >> my name is george. i am organizationally

independent, strategically. but there is a lot going on today that is using words that are finite or talking about constructs as if they are finite. we will say society, and society is assumed to be good when it is this very society that has produced the product let us not -- product that is now just a symptom. it's not even what is the problem. it's like we look at hillary , clinton. she wasn't talking about banning the box until it was necessary for her to get elected or run for president in the system. you touch on, adam, at looking at, well, so many people are disenfranchised from the system, but really when i say how can i realistically expect the system -- we look at things like, we use the word "morality" a lot. this is a country that didn't deem the morality in a moral sense simply because i was born black. so, how can i realistically expect the system that created all of these conditions to really be the system that fixes it?

[applause] mr. thompson: we are not going to be able to answer that question in our seconds left, but thank you very much. thank you. ms. gertner: thank you. [applause] >> thank you, nancy, adam, cyrus, matt. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> the council on foreign relations recently held a discussion on the dangers that reporters face. this features sebastian juncker and lara logan -- sebastian sebastian junger and lara logan. >> my daughter asked me if she could come with me. she is five. mommy camera -- mommy, can i come with you? sweetheart, no, i'm working. eventually, i said, well, it is not safe for little kids. there are some bad guys there.

it is not a safe place for children to go. she said, then, why are you going? i said, because there are always good guys. everywhere there are bad guys, there are also good guys. i'm going to be with the good guys. she said, if you don't come back, that means the bad guys got you. and i said, i'm coming back. your mommy always comes back. not just going to war. you try looking at your five-year-old and six-year-old when you are sterilizing every single piece of clothing with you and putting it into waterproof containers. liberia had one of the most regal civil wars -- most brutal civil wars in history. liberians told me over and over that ebola is worse than war, because it is a silent killer. i was teasing sebastian. he was at a high school while we were in afghanistan. he is at that point that

sebastian was at 10 years ago. saying i would have made a different decision at 30. it's a very hard thing to do, but i feel like it is part of my dna. >> the first time that i really was a little deranged by drama was in 2000. i have been in northern afghanistan. the taliban at that point had an air force, tanks, artillery. we really got pretty pounded sometimes. we saw some pretty ugly things. this was before 9/11. the country was at war. no one was really talking about ptsd. i had no idea what it was. me your occurred to could be traumatized in any kind of enduring way. i came from afghanistan, and i'm not particularly neurotic person . i was puzzled when i had panic attacks in situations that

wouldn't normally scare me, like the new york city subway onrush -- in rush hour. i had these full-blown panic attacks, and i didn't understand. i was panicking in small places, small, crowded places. and i was just sure -- very strange feeling. everything i was looking at seemed like a threat. the crowd of people was somehow going to turn and attacked me. the trains were going to fast and they were going to jump the rails and somehow plow into the people on the subway platform and kill everybody. >> you can see the rest of that discussion from the council on foreign relations tomorrow night at 8:00 eastern on c-span. >> tonight on c-span, "q&a" with tyler abell, stepson of drew pearson.

then the bbc takes a look back at events over the last several months in the british parliament. later, reform on race relations and criminal justice, hosted by "the atlantic." >> this week on "q&a," tyler abell, stepson of the late washington merry-go-round drewist dear -- columnist pearson. he talks about the second volume of drew pearson's diaries. intogive an insight washington, d.c., from 1960 to 1969. brian: tyler abell, who was drew pearson in your life? tyler: drew pearson was my stepfather.