Prosecutorial Indiscretion: A Conversation with Emily Bazelon

August 10, 2019   •   By Travis Lupick

THE UNITED STATES’S MASS-INCARCERATION PROBLEM has reached a scale that is difficult to comprehend. The number of people in jails, prisons, and on parole or probation is so large that it constitutes a notable percentage of the country’s entire population. 

“Between ten million and thirteen million people now churn through America’s state and county jails each year,” Emily Bazelon writes in her new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. “Of the roughly 740,000 held on any given day, about two-thirds are awaiting trial because they can’t afford to post bail.” This carceral regime is expensive: “The cost of locking them up is nearly $25 million a day. The annual total is $9 billion.” In addition, “[m]ore than 4.6 million people in America currently live under court supervision, more than twice the total in jail or prison. Just under 4 million of those are on probation; another 800,000-plus are on parole. It’s a net of social control.”

In Charged, Bazelon — a Truman Capote fellow at Yale Law School and a staff writer for The New York Times Sunday Magazineputs two faces to these stunning statistics. She meticulously details the cases of Noura Jackson, a Memphis teenager accused of murdering her mother, and Kevin (an alias), a twentysomething Brooklyn resident who was caught at a friend’s apartment with a handgun and charged with criminal possession of a weapon in the second degree. Over nearly 400 pages, Bazelon documents their long and winding journeys through the criminal-justice system. The evidence presented against Noura was problematic, and readers are left with the impression that she is very likely innocent. There is no doubt Kevin was caught with a gun, but do the specific circumstances of his transgression justify confinement?

Through an analysis of these two cases and their implications, Bazelon digs into the forces behind mass incarnation in the United States. Is the War on Drugs to blame, or is it mandatory minimums, or perhaps systemic racism? Bazelon concludes that, while all of these are factors, the primary causes are prosecutors and a system that has incrementally given them virtually unchecked power.

“We often think of prosecutors and defense lawyers as points of a triangle on the same plane, with the judge poised above them: equal contest, level playing field, neutral arbiter, et cetera,” Bazelon writes. “That image is entirely out of date. It’s not how the system works anymore. Much of the time, prosecutors, more than judges, control the outcome. They answer to no one else and make most of the key decisions in a case, from choosing the charge to making the bail demand to determining the plea bargain.” As a result, thousands of people have been imprisoned, and their families shattered, without a true application of justice. Even after their incarceration, a criminal record complicates legitimate employment for their rest of their lives. 

Bazelon recently spoke to me about Charged, the scandal of mass incarceration, and her thoughts on how best to reform a broken system.


TRAVIS LUPICK: On television, everyone accused of a crime is tried by a 12-member jury of their peers. Of course, as you explain in Charged, the vast majority of people arrested never go before a jury or even enter a courtroom. What does the general public not know about the justice system and the process by which people end up in prison?

EMILY BAZELON: I think we have this image of American justice that revolves around the trial and that trials are public. People make smart analytical arguments and a judge is the neutral decisionmaker. But the reality is that more than 95 percent of cases never go to trial. What you have instead is a system in which the charge and the offer of a plea deal become the determining factors in a case, and those steps of the process are controlled by a prosecutor.

They also often happen effectively in secret. Lawyers haggle over a plea bargain in the hallway or on the phone. They’re not in open court. And I think, in a way, that’s deliberate. We don’t want to really see how American justice is made and so we’ve preserved this illusion of the trial that actually very seldom happens.

The two individuals you chose to profile, whose cases you use to explain the problems with prosecutorial powers, are people who, in my opinion, are essentially innocent. Noura is very likely completely innocent, and Kevin did not commit a crime that justifies imprisonment. Are you making a statement with these selections? In addition to the problem that is the book’s primary focus — prosecutorial powers absent checks and balances — are you suggesting that many people who are caught up in the judicial system are innocent or for other reasons do not deserve to be there?

A lot of people don’t need to be there. But I guess I see the cases a little differently than you do. Kevin did admit to picking up a gun, for a minute, in a friend’s apartment, when the police were at the door and he was worried about the prison time his friend would do if they pinned the gun on his friend. Whether that is a reason he should face serious violent-felony charges, I wanted my readers to ask that question. But in his case, what I was really interested in is the question of proportional punishment. Not, “Is this person innocent?” But, “Does this person deserve what’s happening to them?” Is the criminal justice system the best way to handle the offense he committed in the eyes of the state? And also, what’s the best thing here for his community? What is going to make things safer and healthier in the longer run?

That was how I thought about that case. I picked someone who was deliberately charged with a serious violent felony that involved a gun because guns are scary, and I felt that a lot of my readers would really follow the punitive aspect of gun control that I think his case reveals. I do think he’s someone who does not need to be going to prison. But to me, it was more complicated than I think you’re suggesting.

In Noura’s case, I picked someone who has not been exonerated. I wanted to show what that feels like through the eyes of someone who is professing her innocence but who is not believed. Her experience of the world is: She is convicted, she is in prison, and then she pleads guilty. And so she comes out of prison with this very serious felony on her record.

How are the poor punished differently than the rich? How do bail requirements and other judicial mechanisms affect the rich and poor differently?

Every step of the criminal justice system inflicts extra punishment, misery, and prejudice on poor people.

Bail is a very good place to start. We have a system in this country where, almost all the time, the first thing that happens is a judge decides whether or not you have to pay money to get out of jail when you are presumed innocent, and decides how much money you have to pay. Before I started reporting my book, I thought that we do this because it’s the only way to get people to come back to court. If they’ve put down money, they have skin in the game, and then they’ll come back. But that’s just not true. It turns out that Washington, DC, and Kentucky have been running criminal justice systems since the 1990s without cash bail and almost everyone comes back to court.

In other states, however, whether you have wealth and whether you can afford to pay is a big factor in whether you are in jail, and whether you are in jail is a big factor in whether you plead guilty or not. The real role of bail in our system is to induce or coerce people to plead guilty, for the obvious reason that if you’re locked up, you’re going to be desperate to get out. And you might agree to say, “Yeah, I committed that misdemeanor, please just let me go,” without totally thinking through all the long-term implications.

Unfortunately, those are not the only ramifications of being poor. It also means you can’t hire your own lawyer. Some public defenders are great, some are not. And then, after you are incarcerated, you almost always end up with some sort of state supervision: parole or probation. You may have fines and fees that you have to pay related to your crime or related to that supervision. These are all things that affect poor people more than rich people and, in some cases, literally have people going to jail because they cannot afford to pay their fines and fees.

An issue mentioned only briefly in Charged is that a conviction for Kevin would mean he’s no longer eligible for public housing. He also would have a very difficult time finding a decent job. How does the experience of incarceration affect people beyond the term they spend in prison? How do these — what I call “perpetual punishments” — impact people’s odds of future interactions with the justice system?

I call them “forever punishments.” This is how we do not let people ever have a true second chance. If your felony record bars you from public housing or makes it really hard for you to get a job, then we have essentially marked you for life. It is completely at odds with the public-safety goal of helping people become productive citizens when they emerge from prison.

I think this is such short-sightedness. We forget that these are people who live in our communities. They may not be the neighbors of affluent white people, but they are someone’s neighbors and they are part of our world. So the gap between what we expect from people when they come out and the resources we give them is enormous.

I found your epilogue very powerful. It explains the lasting negative consequences of these sorts of interactions with the criminal justice system: the psychological trauma that Noura continues to struggle with, always feeling like a criminal and chronically afraid of authority, and the stigma that’s applied to Kevin and police officers’ focus on him as a person of interest. What are the consequences of these sorts of interactions with the judicial system beyond the obvious of court dates and imprisonment?

Noura is very lucky in that she has a benefactor who is supporting her. And she is attending community college classes and did really well last semester, which is great. And I think she is moving forward with her life. But she also has this serious health condition, endometriosis, which was made worse by her time in prison. That is a very physical manifestation. And then she has this psychological scar from never having been exonerated. The Innocence Project continues to represent her, and I continue to hold out hope that that will change for her. But it’s a huge barrier to living a normal life.

For Kevin, when the police ripped up his apartment that night and assumed he was this deviant, even though he had successfully completed his program and had done everything he was supposed to do — again, how can it be a second chance if the cops have you on a list and are telling you that, if you put one foot wrong, they are going to throw you in jail? I have two teenage boys who are only a few years younger than Kevin, and I would frequently reflect on how different their lives are in terms of the assumptions people make about them as these well-off white kids.

You discuss many partial solutions in the book that could begin to alleviate the problem of mass incarceration. Can you discuss one or two of your favorites or one or two that would have the greatest impact?

The overarching principle here is the idea that mass incarceration is a giant machine that we’ve created, and we need to just shut parts of it down. It should be operating at a much slower speed and at a much lower volume. We created it at a time when crime was higher and when we were collectively frightened. And now it just continues to pump at this enormously high velocity, totally detached from the fact that crime has fallen tremendously.

In terms of specifics, I think the push to create alternatives, like divergent programs or simply declining to prosecute from the beginning — just treating things not as criminal infractions anymore — that’s the most important thing we can do. Jail and prison should be a last resort and the last thing we turn to.

Second, we should think more about the criminalization of poverty, about all the ways in which money is a determining factor with fines and fees and bail. We need to eliminate that unfairness in the system.


Travis Lupick, a journalist based in Vancouver, is the author of Fighting for Space: How a Group of Drug Users Transformed One City’s Struggle with Addiction (2018).


Banner image: "Red Reflection" by Luis Rodero-Merino is licensed under CC BY-SA 2.0.