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2016 Lambeth Lecture: The Hon. Alex Kozinski


(mid tempo music) – I am Ray Farris and
Chair of the Thomas Willis Lambeth Lecture Committee
on Public Policy. On behalf of the
committee I welcome you to the ninth annual
Lambeth Lecture. The lecture was funded
nine years ago autonomously to honor Tom Lambeth,
a visionary leader
for North Carolina. Tom served as an aide to
Governor Terry Sanford and to Congressman Richardson
Preyer in the 1960s and then for more
than two decades as Executive Director of the
Z. Smith Reynolds Foundation. Once described as North
Carolina’s do-gooder in chief, Tom is widely
admired for his personal integrity, his passionate
devotion to education, democracy and civic engagement,
and his wholehearted pursuit of the ideals
of the public good. He is here today, and I am
delighted to recognize him and his wife Donna,
would you please stand. (applause) I should have said,
and will say now, Donna is his an always
sustaining partner. I recognize, we
want to recognize several guests who are with us, former Chancellor James Moeser, Chancellor Moeser, we’re
delighted to have you. (applause) Former senator from
Tennessee, and ambassador to China, James Sasser
and his wife Mary. (applause) The purpose of the
Lambeth Lecture is to bring to the campus
leaders and scholars of public policy,
particularly individuals whose contributions
impact democratic institutions, civic engagement,
education and ethics. Today we are pleased to
offer two such persons, Alex Kozinski, judge and
former chief judge of the United States Court of
Appeals for the Ninth Circuit, and University of North
Carolina President Emeritus Tom Ross, a former judge
himself in a conversation on the timely and important subject
of criminal justice reform. Chancellor Folt was
unable to attend tonight’s meeting,
she is out of town. In her place, I invite
Professor Dan Gitterman, Chair of the Department
of Public Policy and its Thomas Willis Lambeth
Distinguished Professor to welcome you on behalf of
the campus and the department. Following his remarks,
Judith Wagner, Burton Craige, Professor of Law and Dean
Emerita of the law school, who will introduce our speakers. Professor Gitterman. (applause) – Thank you, Ray,
and thank you for all your leadership of
the Lambeth Committee and also to all the
members of the Lambeth Committee who make
up the front row for your collaboration
and friendship. On behalf of my UNC
public policy colleagues who make up most of the
second and third rows, we also extend a
heartfelt welcome to the ninth annual distinguished
Lambeth lecture. Welcome to Carolina, Judge K. There is a Coach
K at a university that we would not welcome here, but you, Judge K are welcome
and welcome to Carolina. President and Mrs.
Ross, welcome home. The committee asked
me to do two things, one, extend a
welcome on behalf of Chancellor Folt,
Provo Stein and Dean of the College Kevin Guskiewicz. Just a note, that
means I was the fourth choice to
offer a welcome. Number two, was keep your
remarks under one minute. So welcome, thank
you and good night. (applause) – Thank you, Dan. I’d add my welcome to
those already expressed. It’s my privilege
to introduce to you our two speakers this afternoon. You may know, those of you
who’ve come to prior lectures, that the format today
is slightly different. We have presented the
topic as a conversation about criminal justice
reform with the understanding that we
need more conversations about this topic in the
country and certainly in our state given
recent developments here. I would say, to add
to Ray’s comments, that the committee
always thinks very hard about what an important
current topic is. We value very much the
students on the committee and we really, I think,
are guided by what we think are important issues to
present to the students because they’re, after
all, why we’re here. The first of our
discussants today is President Emeritus Tom Ross. I think many of you
know him and admire him. He’s my candidate
for recognition in Profiles in Courage
for the current era. He is currently up
in New York City as the President of
the Volcker Alliance. He was, as you know President of the University
system that is all 17 of our campuses in one
of the hardest times in recent memory
because of major changes in the public will,
the higher education universe and many other things. He is someone who’s a
man for all seasons, he continues to
have an affiliation with Duke Sanford
School of Policy and our school of
government here. Indeed he’s been
working actively on new strategies for
legislative redistricting. He was previously President
of Davidson College and I always say,
Stefan Curry took lessons from him at the time. He, prior to that,
had been long time Executive Director of
the, I was gonna say the Lambeth Foundation,
the Z. Smith Reynolds Foundation (laughs)
and before that, he was the very
highly regarded judge as well as the director
of the administrative office of the court,
so you can see he has much to bring himself
to this conversation. He particularly was involved
in sentencing reform, a topic I hope our
discussants may touch on again today and received
recognition from the Kennedy School
of Government for the good work he
did in that regard. He is prepared to
be the moderator and discussion leader
and I hope he’s going to chip in with
his own thoughts. He is now officially
a friend of the other famous K, the one in
the room, Judge Kozinski. I’ve known Judge
Kozinski since we were in law school together at
UCLA and admired him very, very much at the time. He taught me a great
deal about how to write for law reviews, we
had classes together. He was known then as someone
absolutely brilliant. When he graduated,
he went on to clerk for Justice Kennedy
who was then on the ninth circuit and
later, now is one of the most significant voices
on the Supreme Court. He also clerked for the
chief justice at that time, so he’s really seen a
great deal in his youthful years but he probably
more notoriously, if I can say so, next
to William Howard Taft is the youngest federal
court appointment ever. So he was recognized for
his brilliance very early. He has written widely on topics from the first amendment,
something that’s very important in his
earliest writing on the court. He’s also written
a lot of very funny and engaging intellectual
property decisions that are well worth your
review if you’re not familiar with litigation
about Barbie doll or about Vanna White and the
Samsung robot, he’s behind all those secrets so check
him out on Wikipedia later. The format today,
though, is going to be that he who has written
very significant article in the
last few years for Georgetown Law Review on
criminal justice reform, he will be the main
propounder, discussant here. Tom Ross will be bringing
Alex’s thoughts out. Halfway through
our time together, you may notice that
you have index cards on your chairs, we
hope to have collected some of your own
thoughts or questions and comments and we
will put those before our dynamic duo here
and let them try to bring out the conversation
from those of you in the room because,
this is a conversation, one we really need to have. I’d like to invite
our honored guests up on the podium and I’d
ask all of you to please be aware we’ll have students
collecting the cards. If you’re in our overflow
room in Carroll Hall we’ll be collecting
them there as well. Thank you. (applause) – Thank you, Judith. It is truly a
pleasure and an honor for me to be on this campus
and to be back among friends at the University
of North Carolina. It is also a privilege
to be with Judge Kozinski and to have the opportunity
to talk with you all tonight about, I think, a number
of very important issues. We will try to touch
on issues of race in the criminal justice system. We will try to touch
on issues of excessive incarceration, evidentiary
issues and problems that arise, including
forensic, long held beliefs that certain
kinds of forensic evidence was not
only admissible but science at its best
when now we know, perhaps that that’s
not the case. So there’s a lot to talk about. We hope that as the
evening goes along that it will stimulate
questions among many of you, particularly
the students, so we’re glad you’re
here and we hope that you will bring
to us the questions that are on your mind,
’cause I know you have lots to offer in this
area and we’d love to hear from you as
the evening goes along. It is really an honor to
be with Judge Kozinski who is one of the
most respected members of the federal
judiciary in our nation. Long serving on
the ninth circuit and has been a federal
judge, I think, since 1984 and been
on the ninth circuit since 1985, one of
the longest serving, as I said, circuit
judges in the country. He has extensive experience
in many different areas, having set on panels that
reviewed cases of all types, so he brings extensive
wisdom to us. Most recently he was on
a part of a White House panel that reviewed a
number of different kinds of forensic evidence
and I’m gonna be talking with him about
that as we proceed. But first judge, I
would turn to you and ask you, if you
would, to tell us a little about your time
as a ninth circuit judge, particularly as it
relates to criminal cases you’ve reviewed over
the years and how that stimulated your interest
in criminal justice reform. – Well thank you, Tom. It’s really an honor to
be here and I just want to thank the faculty and
the students for the really warm reception
I’ve gotten. I’m really touched. I, as you said, I’ve
been a judge since ’82, actually, and on ninth
circuit for 31 years, and I do a variety of cases. Criminal law is part
of my jurisdiction and part of what we
do is hear criminal appeals in federal cases,
but we also hear state cases. We get death penalty
cases and other serious kindss by way of habeas
from the state courts of the ninth circuit. Ninth circuit is
the western part of the United States, it’s the
biggest thing out there. It covers an area
the size of India, we have 60 million people
and a lot of issues arise. I’m not really a
criminal law specialist as such, it’s one among
the many things I do, but with time I’ve
accumulated a fair amount of experience and I
guess over the years, rather than having my
faith in the criminal justice system
strengthened, it has eroded because various
issues have arisen that have troubled
me that I see in case after case after
case, and I guess I didn’t really know
that was percolating in the back of my mind,
I hadn’t thought about them systemically
but about a year ago I was asked to do a
law review article forward to the
criminal law issue of The Georgetown Law
Review and I said, well, I’ll just throw
together a few pages. I can speak on anything,
sort of a fluff piece. But when I sat down
to write about it I realized I had serious
doubts and serious thoughts about it and
I wound up writing 50 or 60 pages
without, pretty much just living on bread and
water near my keyboard. These are serious doubts
that we have in our country and I think this is
something that most people and even most lawyers and
most judges are not aware but we have the largest prison
population in the world. We have far more prisoners
than any other country. We have more
prisoners than China. China’s 1.6 billion
people, has fewer people behind bars than
the United States with some 300
million some people. We have one, 23%, essentially
one out of four people in prison, is in prison or
jail in the United States. When you compare us to
countries, first world countries, the kind of
countries that we think we are like, Canada,
England, Germany, France, our rate of incarceration
and the amount of time people spend behind bars
in the United States is vastly longer. So it is a bargain we have
struck, and I think we have the impression that by doing
this we have a safer society than others, but turns
out that’s not the case. We have less crime now
than we did 20 years ago, crime has been dropping
but that has also been true in other
Western countries, in fact, that’s
been true in much of the world, particularly
the first world, and it has been
also the case that, if you measure it
by any measure, it does not appear to
me that we are safer or better off than
other countries. It is a system that’s
quite expensive, which is something the
taxpayers should worry about, but it is more expensive
in terms of human suffering and the human loss. If you take somebody
who’s committed a crime and is convicted and
you have a sentence of five or six years,
they may well return to their family, their community and if they made a mistake,
go back to their life. If you put somebody
in prison for 20 years or 30 years, you
don’t get ’em back. Whatever happens to the
family, whatever ties they had are broken,
the children, if there were children, grow up
as orphans essentially. It’s a tragedy that’s
repeated again and again. That’s a policy judgment
we make and we say, well if these people
are in fact guilty, then maybe that’s justified. Unfortunately over the
years I’ve come across many cases, more cases
than I thought was likely, where people have been
innocent and have been proven to be innocent years
later, and been released after 15, 20, 30, sometimes
more years in prison. That is very troubling
because we as Americans pride ourselves on being
the home of the brave and the land of the free. We pride ourselves
on having a criminal justice system that
bends over backwards to give every break
to the defendant, to the accused in
a criminal case the presumption of
innocence, the burden of proof is on the
prosecutor, a jury has to be unanimous
in convicting, and I think we have
the impression, I must say I had that impression when I went to law
school and for many years as a judge that
all of these layers of protection provide
great assurance that if I’m putting away people
for a very long time that these are the right people. We’re not putting away
people who are innocent. Well I must say in
the last few years my confidence in that
system has been shaken. And I fear that, in fact,
there’s a great deal of injustice in our
system and that we are putting away people
for a long time but more often than
we care to admit, to ourselves we’re putting
away the wrong people, and I’ve seen too many
cases of injustice, of people released
years later after having spent their best
years behind bars. This was making
me uncomfortable. I think this is something that
ought to concern all of us. It is not something
you say, well those are the criminals, other
people we shouldn’t worry about them but of
course, they are human beings. They’re our brothers and
sisters, so we should worry about them
regardless but in many ways it could be any of us,
it could be any of us. When there is a
conviction of a wrong, of somebody who’s the
wrongful conviction, somebody who is innocent,
there’s a second injustice that goes
on and that is that the true perpetrator
is then left in the community and can and
does commit other crimes. If we were more careful,
the policemen were careful, if we’re not so quick to
jump at, try to prosecute the first person that the
police or the prosecutor believe is guilty,
if we took more time sometimes you would
find that you’ve got the wrong person and
that you then save lives and save misery by finding the
right person to incarcerate. I’m not sure we’re
at a crisis point but I do think we’re
at a point where if we’re a fair society,
for a just society, if we’re the kind of
society that we think we are we ought to
take another look. We need to reconsider. – Thank you, so that
raises more issues than we can talk about
in an hour and a half, I tell you, and I’m almost
stumbling around in my head trying to think, well
where should we start. I guess one of the
things I want to be sure that our students and
our audience remember is first the difference between
state and federal courts. We have two really
parallel court systems in the United States and
a lot of criminal court cases are handled
in the state courts but there are federal
criminal laws as well and so they find their
way to the federal courts. There’s a difference
between a trial court and an appellate
court, as you all know. Judge Kozinski’s
an appellate judge. I spent 17 years as a trial
judge at the state level and tried an enormous
number of criminal cases. I think, one of the questions
that we ought to ask is why do we incarcerate
people, what are the reasons that we give and
historically, at least when I was in law school they
taught us there were really four reasons why
we sent people to prison. One was deterrence,
one was rehabilitation, one was restraint, that
is to keep them away and keep us safe and
the fourth, which wasn’t a valid reason,
we were taught, was retribution as a society. I’d be interested,
judge, in your comments about what are those
four justifications you think really
have value in our, in terms of punishment,
sending people to prison? And what is driving the
length of incarceration that we have in
this country versus so many other countries
that the maximum sentences they give
are much, much smaller than ours, so what
do you think is, what of those four
theories works for you as a real reason to punish
through incarceration and what is driving our long sentences
in the United States? – I think all four
are legitimate reasons if they are put in
perspective and they’re not used as exclusive
reason or they don’t have an overly great influence,
for example, take retribution. I realize it’s controversial
and it’s thought to be un-Christian or
uncivilized to want retribution, but retribution
is a genuine instinct. I think we have, there’s
an aspect of retribution that speaks to justice, the
idea that if you’ve done wrong you ought to be
punished for the wrong and there’s a sense of
justice comes with it. I think that’s perfectly
fine so long as we recognize it and we
put it in perspective, we don’t spend too
much, if we don’t give it over amount of weight. I think what happens in our
system is that for historical and cultural reason we
are a retributive society. We’re talking this morning
about what, you were telling me what happens
in Europe where, for some minor crime, or even some
severe crimes they’ll give somebody five, six,
seven years in prison and that’s the most and
very often some people who commit violent crimes
may not commit ’em again because it’s a situation
where it’s unique in their lives and they’re
not particularly in danger. I think in the United
States there is what is considered to
be a light sentence for a violent crime
(mumbles) not enough. Regardless of
retribution, regardless of capistration just
wouldn’t seem just. I think that’s
something that we need to readjust, we need to be
taught, we need to rethink and we need to
appreciate the fact that a greater sentence doesn’t
give us more safety. A greater sentence is
more likely to cause, inflict serious
harm on other people and that is the family
of the perpetrator and that a greater
sentence, longer sentence exposes us to incredible
cost, keeping prisoners behind bars is a, I keep
getting back to this but this is not a trivial cost. It is a significant cost,
cost 30, 35, $40,000 a year to keep one prisoner
behind bars. It’d be cheaper to put
them in the hospital, a hospital bed is cheaper
than a prison bed. – The university’s
even cheaper than that. (laughs) – Send them to college (laughs). Of course as prisoners
have longer sentences and they get older,
the cost skyrockets because they become
geriatric and they have all the illnesses
that everybody else, all of us have as we
get older and as we know it doesn’t get cheaper,
they get all sorts of illnesses, we have
to take care of them because they’re our wards. At the same time
studies have shown that the risk from recidivism
or the risk that people who have
committed violent crimes will keep being violent
goes down with age. After about age 40,
it becomes fairly low. That’s not 100% risk,
you’re gonna have a Willie Horton kind of
situation once in awhile but just as a matter
of looking at the whole spectrum of prisoners
that we have you could easily let
out everybody over 40 in all our prisons at
great savings to us and great relief to
them and their families and you would not have an
uptick in crime, is my position. We are not getting
capacity, really not getting a return on those other
values, the terms, incapacitation, those
values are not being served after a certain age and after
a certain number of years which are not in
the double digits. We are paying money,
we’re inflicting pain, we are, as a society we
are becoming a society of prisoners, where
that’s a major, it should have some
effect on our self image that we have essentially
such a large prison population and I don’t think
we’re getting much in return. I think we are getting
probably diminishing or maybe negative returns. – I remember when we
were doing our sentencing reform work in North
Carolina we had some experts come in from around
the world and it was fascinating to learn
that there’s a lot of studies that show
someone who’s incarcerated more than about six
years, that’s about the break point, the chances
of rehabilitation and reintegration to
society drop significantly after incarceration for
a longer period of time. It’s as if they lose
their soul after a certain period of time and lose hope. So that’s why I think
in a lot of countries they’ve kept the length
of sentences far lower than we have in the United
States and the judge is right, I think if
you look at almost any distribution of
crime, what you see is crime begins at a pretty
young age, actually, 13, 14 years old and
shoots up very high among 18 to 20 year
olds and then drops pretty precipitously
as you get older, and by the time you’re
in your late 30s or 40s there’s very
little crime committed. Those that do commit
it, it’s usually pretty violent and they’re
often repeat offenders but there not many of them. So looking for ways
to identify those that are likely to
be repeat offenders, that are likely to be
at the biggest risk to our public safety
I think is a real key to making a criminal
justice system that is, works better in terms
of tax payer dollars and how you spend
your money because it is hugely expensive
to incarcerate people for long
periods of time and as the judge points out,
there is, in this state and many prisons
around the country now a grade of our prisons,
which is driving costs up even more, so
it is a very significant issue and there are people
that when they look at that crime curve, there
are people who say, well we should just
lock up everybody that’s 18 to 22
and we’ll be fine, they’ll get over
it, right, so maybe that’s not the best
idea but I do think some focus on what
is actually happening using data to solve
problems can be effective. – What do you think
about compulsory draft? – About? – Compulsory draft.
– Compulsory draft. Well, I’ve said
for a long time– – Universal– – Service. – Service. – I think universal
service has tremendous advantages for us
because it does take our highest risk
population and provides some mandatory
commitment to the country either through military service or other kinds of
service and I think could be a real benefit
to us in a lot of ways, but one of the side
benefits probably would be fewer people committing
crimes in that age group. Something we should
perhaps consider. – Well just think
about it, Israel has universal service
even those who, for religious reasons
can participate, do serve and, of course, applies to men and women
equally and they have a cohesion that is, they come out of the service and these are life
long relationships and there’s a certain commitment to society and
your core of people you serve with that
is missing elsewhere. – I want to turn
this a little bit to some of the issues
that you mentioned of unfairness in the system. One of those is, the
panel that you served on, the (mumbles) Group
you served on with the White House it
focused on various kinds of evidence and
as you pointed out in our breakfast
conversation this morning, and as you, also, I
think, pointed out in the Wall Street
Journal recently those of us who watch
CIS and all these shows on television,
CSI, I guess it is. (laughs) I don’t watch it
much, there you go, but it causes us to believe that science solves crime
and that it’s absolutely the best evidence you can have and you shouldn’t question it. Judge, I’d like to hear
about what you learned serving on the advisory
panel of the White House Office of Science and
Technology as they look at these kinds of evidence and what you think
maybe we should do to address this. – Well the study came
out about a week ago, I had seen an advance
copy, it’s called PCAST, President’s Commission on
Science and Technology, I’m not quite sure what
the initials stand for but it’s issued by
the White House, it’s by the President’s
science advisor and I was called in
along with a number of other judges,
colleagues of mine who had reviewed the
report and others, not just judges, law professors and others who are
senior advisors and it’s very thorough,
it is incredibly well documented and
takes a hard look at seven or eight
methods of forensic science that have been
used in criminal trials and it conclude that
some are pretty good and that some are
just complete bunk, for example, bite marks
and there are people now in prison who are put away because of a claim
that the victim had a bite mark that matched
the defendant’s teeth, just pure nonsense,
there’s no signs there. When you actually
have a test with, you know the result and
there’s a blind test they can’t tell the
difference between human bite marks
and dogs bite marks. They can’t, sometimes,
tell the difference between human bite
marks and a flea bite that some how line up
and look like teeth. It is really, hair analysis, for years and years
and years people were put away
based on comparison of hair follicles,
now I make it clear there’s also DNA hair testing,
that’s very different. I’m talking about
comparison of hair which happened before
there was DNA testing, many people were sent to prison based on testimony
by FBI experts, so-called experts saying
these are the same. It turns out they can’t
tell the difference between kinds of
human hair, they sometimes can’t
tell the difference between dogs hair
and human hair. It is that bad. Other kinds of science is good, like DNA testing when
there’s a single source, is pretty good, is
actually very reliable. Multiple source,
like when you have mixed blood or
mixed semen or mixed hair follicles, that
becomes more difficult. That’s more questionable,
but if you have single source DNA
and it’s performed by somebody who’s
competent and who is careful to keep,
avoid contamination and keep the test properly,
is highly reliable. But the if part of
it is not trivial. There have been many
reports since DNA came into use of labs
where contamination has taken place, where
there was carelessness, even falsification,
so one of the recommendations of
reporters, forensic science should be no different
from any other science. It should be science,
it should be a scientific proof and
therefore you ought to have protocols and procedures
that scientists follow. It should be treated
like a scientific experiment, are two
things the same. You remember when you
took chemistry in college? They gave you an unknown
sample and a known sample, you’re supposed to compare ’em and draw conclusions,
they didn’t tell you the answer
ahead of time. So among the recommendations is the forensic scientists are not to be told what
the police suspect. They ought to be
given the evidence and they are supposed
to perform it blind because that’s how
science is done, blind and we have
reasons for that. Science forensic
officer ought to be independent of prosecutors. They ought not to
have their funding or their existence
or promotion, so on decided upon by
the people who have a stake in the controversy. There are other
such recommendations which I think are
entirely common sense, and I think should be followed. I was disappointed
to see that the attorney general of
the United States dismissed the report and said we will not be following
those recommendations. – I think the point
you make about evidence is an important one
and the forensic evidence like fingerprints
and hair follicles, I tried many cases
in which that really was the evidence
that, because it was accepted with such
certainty, that is what oftentimes would lead
juries to conviction. Another area that I
think is important for us to keep in
mind is eyewitness identification testimony, which we relied on in the courts for many, many years and
still do but I think there’s much more skepticism now about that than there once was. I’m not gonna make her
stand up or call her out but there’s somebody
in the audience tonight who was the victim
of a terrible rape and in the process of
the criminal justice system was asked to do an
eyewitness identification. It later proved, with DNA,
some many years later, I think 18, that she
picked out the wrong person and that person
has now been freed, exonerated and she
became a champion for doing it the right way. So in North Carolina,
we now require double blind testing
and that the officer involved in
supervising it can’t be involved in the investigation, so there are protections
that have been put in place for
eyewitness testimony that can make a real difference. I think that’s the
same thing this report is suggesting, is that
the things we could do, this evidence can be
relevant and can be helpful but it’s not
certain, it’s not absolutely accurate
every time and we need to put in place the protections. – I must say North Carolina is in many ways at
the cutting edge, (phone rings) that’s not me, at
the cutting edge of criminal justice reform and North Carolina has
better criminal discovery than any other state
in the country. They have open file
discovery, which means that if the prosecutor
has the evidence, it has to be turned
over to the defendant, and that’s fair
because think about what happens at the crime scene. The police come in and
they mop up everything, as they should and so
the state has a great advantage in gathering evidence, some of it inculpatory
but some which can be quite exculpatory,
and so I think it’s an entirely
fair thing to do and North Carolina
after bitter experience with a number of cases,
I think people here know, where there were
miscarriages of justice, responded to it by
adopting procedures like the ones Tom
mentioned and open file discovery and a number
of other reforms that I think are
really beneficial. Now this is really
highly commendable because it is not
like such experience haven’t happened in other states or with federal
prosecutions, but the difference is
that North Carolina reacted what I
think is rationally and commendably by
actually making reforms that have made a difference. The response from other places including, I’m afraid,
the US government has been to resist change. – One of the other
changes that’s been put in effect in North
Carolina, which I believe we’re still the only
state in the nation that has an independent
innocence commission that is set up specifically
to review cases, often times many,
many years later where there’s new
evidence that could exonerate a defendant and
I’ll be honest with you, I was part of the
group that set it up and it’s a very, very hard thing for a case even
to get there, much less to actually be overturned. Yet we’ve had a number
of cases in which defendants have been exonerated through the
Innocence Commission, so it’s not, I
think it’s important when we’re talking
about this issue for no one to immediately say, oh those two guys
up there are soft on crime because
they want reform and they want to
do things right. I don’t think that’s a
fair characterization of people who want reform. People who want reform
are looking for justice and to be sure the
justice system works at its highest level
because that’s what gives people confidence
in the courts. – It’s what we all want. No one here wants
an innocent person languishing in prison, I mean, this is just not
the kind of society we are, that’s not how
we think of ourselves and we certainly
don’t want the guilty guy around the community
doing more harm. So this is exactly
the right, now the Innocence Commission,
I did want to say a couple of words
about it because that’s a very important aspect. As technology changes
we learn more about evidence, it turns
out we can often reconsider cases
and set free people who’ve been wrongly
convicted but there has been very
mixed reactions in most places,
resistance to DNA testing, sometimes
legislatures had to actually pass
statutes saying, if DNA’s available
you must test because prosecutors have been so
adamant about testing. But I think what is, there are a number of places
in the country where the prosecutors
themselves, the DAs themselves
have officers that, innocence units that
reconsider cases. I think those are
certainly a step in the right direction,
the problem is that they’re only as good and as aggressive as the DA
himself is going to be. For example, in New
York the DA there is very aggressive about it and a number of cases
have come out of there where people have been
proven to be innocent. Other places they
have such units and they’re part of
the prosecutorial establishment and
they’re less effective. So I think doing
what Tom helped bring here to North Carolina,
having a state commission that
is independent of the attorney general or district attorneys, that does
not answer to them, I think is a very
good idea and ought to be emulated in other states. – Again, I want to
change our direction a little bit and move
to some overarching issues that I think
exist in our criminal justice system, and I
want to begin with race. Talk a little bit
about where you think judge, if you would,
race plays a role in our criminal
justice system, what different spots of the process. – Well there’s, it is a fact of who
we are as a society that we tend to live
in neighborhoods of people that are like us. And like it or not,
this is how it is. We live, those of us
who are middle class, live with other
middle class people, poor people live in
other parts of town and generally communities
tend to stick together. We have some indication of crime and crime tends to be in
the poor neighborhoods, tends to be, violent
crime tends to be greater in the
poor neighborhoods and in the parts
of town that are occupied by minorities
and that is a important fact that is too often used for one side
or the other to say it gives a complete
answer, but it doesn’t. I mentioned to you when
we talked this morning, I had a case where
I wound up putting somebody in prison for 20 years, it was my choice, I
gave him the least I could under the law, but
here’s how the case arose. This was a case in Los Angeles, it grew out of what
are called projects which means low income housing and as it happened
was everybody in the neighborhood
was black and the parents called and complained to the authorities,
to the police that they could not
send their children to school without
having somebody stop them and try
to sell ’em drugs. The police, with the help of the federal authorities
with Drug Enforcement Administration
sent in a bunch of undercover agents to try
to put a stop to this. This is entirely understandable. People are entitled to
have police protection, they’re entitled
to have, be a safe neighborhood for their
children to go to school, but the result of
it is that because the crime tends to
be concentrated there because there is
much drug activity, you have to send police
in to deal with it. The consequence in
my case are that they happened to
find this one guy, he wasn’t selling
drugs but he knew how to get some and
he was persuaded to provide some
drugs and the next thing we know he’s serving
a 20 year sentence. He goes in and he was
living with his wife and two or three
then little children and he was doing
handywork, he was doing repair work, he had
many occupations but at least he was
there and he was trying to put food on the table and be a father to the children. As a consequence of this, he was taken out of the
community and I saw him, I either, I’ve been
a judge long enough to actually send
somebody to prison for 20 years and
see them come out and was a different person. It was a different guy. He was a shadow of himself. I couldn’t, I had
him on supervised release and that’s
why he came back and it was a greatly
diminished person. I asked him about his
family, about his children, children didn’t know him,
his wife had left him, he was basically a
shadow of a human being. We did that to him as a society and it was a very
sad thing but I understand the need
for doing that, I understand the
need for policing and my concern as
I see the cries of violence in the
minority communities and the reaction against this, I’m afraid the
police will withdraw. I’m afraid the
police will be afraid to go in, not so
much, I mean somewhat fear of getting shot
but also the fear of being prosecuted or
fear of being reviled. And that ultimately
the victims of that will be the law abiding people who have no choice but to live in communities where there’s
a great deal of crime. I think we need
to recognize that it’s a complex and
difficult problem and we don’t solve the
problem by pulling police off the streets and leaving
the communities unprotected. – In that answer you
raised, again, I think several questions, one
is the influence of race in police practices
and we’ve been through a lot of different
approaches in policing in the United States
and probably the one that has tended to
make some difference, at least in my
experience, was community based policing where, instead of doing what we did
in the old days during the war on
drugs, which was place police officers
on the corner where we knew drug activity was, wait for drug activity
and arrest people. We put police officers
out on the street, out in the neighborhood to get to know people and
even if they didn’t arrest somebody,
their presence ran the drugs away,
oftentimes just inside but at least they
weren’t out on the street anymore and it did
result in fewer arrests and I think over
time safer communities. But now we’re in
a situation where we’re having a rash
of police shootings in the United States, oftentimes they’re captured on video which, before cell phones we
didn’t have a chance to capture that
kind of evidence. We do now. It’s heightened our
awareness of this. Do you see solutions? – Well I am not an
expert in policing. I certainly think
there are solutions, I think we must have solutions. I think trying to
develop trust between police and the
community is important but I think it’s also
important to realize that these are not necessarily
interracial issues. They are simply,
lots of the police are minorities
themselves and really only want what the public wants and that is a safe environment. And we have to make
it possible for them to, in fact, walk those streets or make themselves a
member of the community without being attacked,
without being, fearing for their lives. I think technology
brings changes, not always for the best. We are seeing things,
which is good. Things are recorded,
which is good but they’re also given
great prominence, perhaps greater prominence than they deserve and
selective prominence. They may well be a lot
of incidents involving, other kinds of incidents
where nothing bad happens and those
are not recorded, nobody puts them up
and I’m just wondering to what extent these
incidents we’ve had are really typical. When you have a
dangerous environment, when you have police
having to go in and deal with a
dangerous environment you will have
occasional violence and sometimes there
will be mistakes made, which are not defensible
and not commendable. Certainly better training
of police is important. Better pay of
police is important and an effort to
bring the police into the community when
they’re not being called in emergency
is important. The problem is when
you get a 911 call, when you get a
domestic violence call, when you get a
call with somebody with a gun, police are
not going to be polite. This is not a time
for the police to be gentle and
polite and if that’s the only time the
community sees the police that’s, I think,
a skewed picture. I do think it’s very
important to have them be there at times when
emergencies are not going on, unfortunately
that means more police. If you want them
there just being there when there’s no
emergency going on, deterring by their
presence you have to provide enough
funding to put police on the spot so they
have a visible presence in a non-emergency situation. – You’ll see people
wandering around Dean Wagner and Dean Brinkley
picking up index cards. It makes me a little
suspicious that the current and former
dean of the law school are the ones that are
picking up the cards. You can’t cross examine
judges in this setting, it’s not appropriate, I just want
to make that clear to you. So we will begin to take
some questions in a minute but I want to ask a little
further on the question of the influence of
race or racial bias. Once you get past the
policing part and you’ve got somebody who’s
now been charged or now been arrested,
let’s start there, are there pressure
points in the system where you think we have to pay particular attention to the
possibility of racial bias? – Well you mentioned,
and we say bias, bias has sort of a
negative connotation, like prejudice but I
think you don’t mean it that way, I think
you mean bias in the sense that the
system is so skewed by its nature,
and so we have to, one of the realities
is, you mentioned, you mentioned eyewitness
identifications. I think cross racial
identifications are particularly difficult
and often prone to error. It’s just the way
we are, I mean, we can’t change
who we are but it tends to be that we,
if we are Caucasians we see a lot of Asians
who all look alike, we see all blacks
or many blacks, thinking in emergency situation, the recollection
is in cross racial identification sometimes
tends to be weak. I think that needs to
be taken into account in making charging
decisions rather than, and it’s particularly important at that point to have
lineups or selections that are not in any way
influenced by the police. That’s one of the ways
of untilting the system. I think making sure
that prosecutorial officers reflect the
community in terms of racial, gender, ethnicity
makeup is important, that they bring
that point of view, that the police
force is not one race and the community
a different race. I think that is important. Again, that takes
outreach and takes money and it takes commitment. I think having prosecutors
officers and I think that may be the most
difficult thing of all. I once commented on a
case that in many ways all of us judges are the same. There’s now been
an effort to have difference in gender,
have more female judges and minorities and diversity of all sorts but I don’t have any
colleagues who are poor. I don’t have any
colleagues who grew up in, I didn’t, I’m not
claiming anything for myself, but there are large,
and that’s to lawyers in general, I said prosecutors. That’s to lawyers in general. Many prosecutors,
most prosecutors come out of our law
schools and they don’t look like
America, they look like middle class
America and I think it is important for
prosecutors in particular, who then often go
on to become judges and often defense lawyers,
to be like America, to be reflective
of the community where they prosecute
because there are many perspectives
that you can bring from having come from
that community that will inform the prosecution
decisions that you make. People can be very
much of good will and trying to do a good
job but if you don’t have experience, you don’t have
anybody you can talk to who’s had experience
or who’s lived in the community, it
becomes very difficult to see things from
the perspective of the person you’re
thinking of charging. – I remember when I was
engaged in this world much more than I am now
that one of the things we tried to do, I
worked with a group in New York called the
Vera Institute of Justice to try to get them
interested in looking at prosecutors offices
and particularly looking at the charging practice because there are a
lot of people who think that there is, there are
differences in the way people are charged, sometimes
based on their race. We actually got three
prosecutors from different large communities
around the country to look at that very issue,
to open up their offices, allow researchers
to come in and watch that charging practice
to see if it was true that somebody who
had some cocaine and was arrested,
if they were white they sometimes got charged
just with possession of cocaine, if they
were African American often they got charged
with possession, possession with intent
to sell and deliver, possession with drug
paraphernalia and on and on. The number of charges
one has when you show up for sentencing matters
in terms of the outcome of the case and the
length of the sentence. The reason I got
interested in that was judges were the ones
that often get blamed for the differential
in sentencing that is, if you do an analysis
of length of sentences oftentimes in some
jurisdictions those sentences are longer for African
Americans and judges tended to get the blame
for it and oftentimes it might have been the
underlying charging practice. I think all of these
are areas that we need to do more research,
we need to look at more frequently than we
have in the past. Now I’ll let you
comment on that, judge, and then I have enough
cards to make up a deck of 52, I think, so we
got a lot of questions and I want to turn to those,
but you have comments about– – I agree about the
charging practices and the significance of that
but it starts in earlier. You saw it when you
came to sentencing. The overcharging
has greatest effects at plea bargaining
because if a defendant is charged with
multiple crimes and is looking to go into
trial, he may feel innocent, he may think
he’s innocent of most of the crimes, he may
think and actually prove that he’s innocent but
juries aren’t predictable, trials aren’t predictable
and the prosecutor will say, well you take a plea, you can spend four
years and if you don’t you will never see
your baby again. You got children at home,
by the time you get out you’ll be an old man
and they’ll be adults with children of their own. That is a proposition
that many people simply can’t accept and
so they see the litany of charges and they
say, look, there is some chance, some jury’s
gonna convict me of something and could
convict me of everything, in that case my life is lost. So overcharging winds
up being a huge problem. Now that one I lay, in part,
at the feet of the legislature. I assume North Carolina
is just like every other legislature in the
country and not (mumbles) for Congress, but Congress
passes a lot of laws that are quite fabulous and that
gives wide discretion to prosecutors to charge. Time and time again
the US Supreme Court has come out years later
and said, no, this is not a crime, this is not a
crime, this is not a crime. You saw it last term with
the governor of Virginia, McDonnell, right,
Governor McDonnell, where he was charged, he was
tried, he was convicted, not a crime. Well, at least he’s a
governor of Virginia, he had the fortitude and
the resources to fight back. For everyone like
that, there are dozens and scores of people who
just can’t take the risk and don’t have the
resources to fight back. So legislatures have
to be more careful in passing criminal laws. Criminal laws ought not
to be something that you find out what they mean
after you are convicted. There should be clear
notice for anybody, this is prohibited
and this is forbidden. We live in a free society and
can only be free if the line between what is punishable
by going to prison and what is lawful is
clear for every citizen. If it’s not clear, then
something has to be (mumbles) by a
prosecutor and eventually they’ll find out about
it ’til years later, the Supreme Court or the
highest court in the state says, oh, this is not a
crime, that’s no bargain and that’s not the way we do it. – You raise the question of
overcharging and its impact on plea bargaining, what about
mandatory minimum sentences? – Well I’m against mandatory
minimums just as I am against elected judges
(mumbles) say that. I can say that– – We agree on both counts. – Okay, because, life to me is a wonderful thing but
mandatory minimums, I have had to impose mandatory minimums and
I’ve spoken out in court and not just the
one case I mentioned but there have been other cases
and I haven’t always found that the mandatory minimum
was the wrong sentence. There have been cases
where mandatory minimum was 10 years and I
thought, I probably would have given
about 10 years anyway because it was pretty bad. But they only come
into affect when, or they only matter when
you are in a situation where the judge, who
is on the scene, who is able to judge the defendant,
the crime, the conduct, remorse, all the
circumstances, thinks the punishment ought to be less. By definition you have a
situation where the judge thinks this is way too much
punishment and we’re gonna tie the judge’s hands. I think we ought to
have more respect for the system, or more
respect for the judges to have them assess the
situation and make a fair and just determination
for the punishment, rather than having somebody in
the abstract, who doesn’t know the facts of
this case, who, the case hasn’t happened
yet when the law is passed, I’ve personally
never seen a minimum that I thought was
necessary and I’ve seen many that I thought were unfair. – I think that certainly
during the past decades we’ve had a
number of laws enacted around the country,
three strikes you’re out, those kind of laws
that have added significantly, as have
many mandatory minimums to our problems
with incarceration. One of our questions
is for you to address, if you would, the
question of both are our courts overburdened, I can certainly speak
to state courts, if you want, but are
they overburdened? What is the state
of public defense in the United States,
that is whether, do we have enough public
defenders, are they provided adequate resources to
really put on a defense? And how do these
pressures of overburdened courts system and
potentially, not enough resources put into the
public defense system, how does that affect
pleas of guilty, incarceration, justice overall? – We certainly are overburdened
in the federal courts. It varies to some extent. Some courts are far more
overburdened than others. Fortunately, in the federal
system we can shuttle judges back and forth,
certainly within the circuit. I used to do that a great deal. Ninth circuit is huge
so I was able to, I didn’t have to
ask permission from the chief justice
from Washington to shuttle judges from one
state in the ninth circuit to another and that
was a great benefit. Across the country, you
actually have to get approval of the chief justice
and it’s more difficult. But I don’t think we
are nearly as open as in the federal system
as in the state courts but I assume that
the dynamic we see in the federal system
is much the same as in the state court
because you can’t try every case,
there’s a great deal of pressure to
bargain and I think there’s some pressure
on defense lawyers, of course, public
defender’s office is understaffed and
there’s some pressure not to take too
many cases to trial because they can’t be
handled by the system and you may be
viewed as a bad sport or as being non-cooperative. So there’s a great
pressure, because the system simply cannot try
anything like the number of cases we have,
there’s a great deal of pressure to settle, and so
we’ve had dwindling trials. We had dwindling
civil trials but we’ve also had a dwindling
number of criminal trials. Some cases still
got to trial but for a variety of
reasons, understaffing and overcharging being
the two main ones, we’ve had fewer and
fewer criminal trials. Doesn’t mean that means
fewer people going to prison, they do go
to prison, it’s just not after a trial. – That’s been the experience in
state courts where we’ve seen, I don’t know what
the percentage is but it felt like 95 or
more percent of the cases that we dealt with
in criminal court were handled by plea bargain. Very few cases
actually get tried, other than those
most serious ones. Talk a little bit, if you would, about the role of
the eighth amendment, cruel and unusual
punishment and how it might apply to
the state of prisons in the United States,
they’re overcrowded nature in many states and
what your view of that is. – First of all, there’s
a great deal of law from the Supreme Court,
so lengthy sentences, by and large seldom wind
up violating the eighth amendment, the cruel and
unusual punishment clause. We had a case involving,
very extreme case involving a bad
check and (mumbles) and that was held to
be cruel and unusual but that’s a very
extreme, extreme case. So that avenue is
closed, at least on the current Supreme
Court jurisprudence. The view of prisons, prison litigation actually is
quite a bit more promising. We had a case out
of California where it was a charge of
overcrowding and the district court,
it was three judge district court
imposed a monitor who then did a report
and recommended that quite a few,
a large percentage of, well he didn’t
say release but essentially the
prison population had to be reduced
significantly or the number of prisons, or beds
had to be increased. It was appealed to
the US Supreme Court and Supreme Court
upheld it, so it’s pending by Justice
Kennedy and I recommend reading and that is an
avenue of (mumbles). I now don’t remember,
I read the case when it came out
and I read it since and I now don’t
remember whether it was an eighth amendment theory
or some other theory. I just don’t have it in my mind but it is possible to get relief and if, in fact,
prison conditions are so bad that the
amount of cruelty, there is an avenue
of relief but there’s a long ways between
the place where you’d want to be in a
civilized society and to have reasonable
accommodations where prisoners get
exercise on a regular basis, where they have
space in their cells, where they have
humane conditions between that situation
and a situation where you actually
get (mumbles) 11 violation or your some basis for the federal courts to intervene. You have to have highly
extreme conditions and all that in between
space, you might not be able to
get relief at all. Yet we should be doing better. – As we see more
and more controversy around prisoners in
isolation, around women who may be forced
to deliver babies in prison, those
kinds of situations, do you see the eighth
amendment expanding in the future to deal
with this kind of, what many consider
to be less than humane treatment of prisoners? – It certainly could
and there are other avenues, due process,
a due process claim is another possibility. I certainly think that
solitary confinement is highly ripe for review
and Justice Kennedy spoke out on the subject
in one of his opinions. It’s not a majority
opinion but I believe in a concurrence
and he lamented the prevalence of
solitary confinement, of prisoners in
solitary confinement. I do believe that is going to be the next cutting edge of attack. There are countless
prisoners in what they call SA2s, I forget
what that stands for, but security units
in prisons where they’re essentially solitary
confinement or sometimes there are two prisoners
but they’re not let out, maybe one
hour of exercise every couple of days
and there is evidence that long term solitary
confinement can have permanent, cause
permanent brain damage, permanent psychosis
in prisoners. I do believe this is going to be the next cutting
edge of litigation. – We talked earlier
about trying to better identify who
are the offenders that were really at risk
to our public safety and using incarceration
to restrain them and to incapacitate
them so that we were in a better position
to have a safe society. In some states, and
I don’t know this about the federal courts,
use different kinds of assessments to try to
predict risk in offenders. Is that something you
see as being both used but also potentially
challenged in the courts? – There’s a huge
amount of power given to prosecutors, what
to prosecute for, how hard to bargain
and what to charge with and how much to charge
with and how much to insist for a
punishment and I saw a piece recently which
showed that for the same crime one prisoner,
I think it was Kansas, got something like 20
years, if it happened in New York City it would
have been six months. If it’d been in other
parts of the country it would of been
two or three years, but the difference was
not in the substance of the law, the difference
was in the practices of charging and what
judges were accepting by way of plea bargains. This guy just committed his
crime in the wrong place. If he had just done
it somewhere else he would have still
been punished if caught but the punishment would
have been drastically less. That in itself
creates an unfairness, the idea that you do the
same conduct in one place in the country and you
get punished, you get essentially a slap on the wrist or a mild punishment
and if you do it someplace else, depending
on who the prosecutor is, even sometimes in
different counties of the same state because
different prosecutors have different practices,
so you do the cross the line over there you
might get six months in jail, if you do it over here
you get 10 years in prison. The terrible
unfairness about that to think that the
accident of who your prosecutor happens to
be will make that much difference in your life. – I have a couple of questions. – [Man] We have
one more question. – [Man] One more question. – Well I have–
– Or two. – I just wanted to
make, yeah, sure. – [Man] Be happy to have two. (laughs) – (mumbles) plea bargain. How ’bout 50? – I do want to point
out that we have a couple of questions
that are asking the judge to give an opinion
about things like the death penalty,
stop and frisk, issues like that
which potentially could and sometimes
have come before him, so he may feel less
than comfortable stating a position about that. I will tell you that
on the stop and frisk question that there’s
been an awful lot in print of late
about that issue, including a number of
reports of findings about its effectiveness
or really lack of effectiveness and
why it was actually given up by police because
of its ineffectiveness. So I won’t ask him to
comment on those issues. – Yeah, I pass, thank you. – Just really wants to but I
don’t think he would want to– – I think it’s fine. – Because I think that
would be inappropriate so we won’t ask. Let me see if I find one last
scintillating question here. Let me just take this
one for you and that is the role of drugs and
the role they play in the criminal justice
system and the impact they have on what’s
happened to incarceration in this country is, as we all
know, extremely significant. Talk to us a little
bit about how you think our society and our court system ought to deal with
the drugs that we see, both addiction issues
but also those that are in it clearly for the money. – I am old enough
to remember a time before the war on drugs. The war on drugs,
I think it started the time of President
Nixon, I know it was back there some time
but I’m pretty sure it was the Nixon era
and this was going to be a great boon, we’re
gonna rid America of drugs by putting
all these people in prison, having
these harsh sentences. It hasn’t worked. We have more people
in prison but we’re not a drug free
society by any means. If anything the problem
has gotten worse. At the same time you
have decriminalization in many countries, Portugal,
I believe, Holland, I believe, many drugs
are legal and they are worth looking at. They don’t seem to
have problems that are worse than ours and
I’m not at the point of advocating decriminalization
but I do think as I said when I was in college, one definition of
insanity is you keep doing the same thing
when it doesn’t work. You just keep doing the
same thing and escalating. What we have been doing
is we start the war on drugs, it’s now
been long enough, it’s been 40 years so
we say, we’ve given the experiment a chance to work. I think it’s well worth
taking another look and saying, is
another way better? Are we now better off
than we were 40 years ago now that we’ve put 2.2
million people in prison? Not all of them for
drugs but a very large percentage of them
on account of drugs. Maybe we ought to treat
it more as a public health problem than
a police problem and the drug laws skew
all manner of things, police searches,
automobile stops, it has all sorts of
collateral effect on the way our laws develop. Much of our criminal
law, much of our criminal procedure law
over the last 40 years has been drug law, has been
things having to do with something involving
drugs, not all of it but much more than
you would expect. Have we gotten
our money’s worth? Is the effort we’re
putting into it, is the harm that
we are inflicting on people who get
caught worth it? Are we getting equal
or more out of it in terms of harm
avoided to the public? I’m not sure and I think we
need to seriously consider it. At the same time, it’s very hard if you are running
for office to come out in favor of lowering punishments or even
decriminalizing drugs. It’s a good way to get
defeated in the polls. – We’re winding to
the end and as we do, I want to tell you that
there are some issues that I’m sure both of us
would love to talk about that we’re not gonna
get to and they range from the influence
on prison unions, of prison unions
on incarceration. I could talk about
that from my experience in consulting with
California where they have a huge prison union
that was against reform for a long time, I think
came around eventually. We have questions about
the federalization of crimes, are we now bringing
more and more crimes into federal court
than we once did? Somebody asked
whether we’re publicly endorsing a candidate
for governor. (laughs) That’s the same kind
of question about when the judge asked if our
legislature was like all the others and I didn’t
want to take a vote on that. (laughs) We have lots of really,
really interesting questions. That means that these
are important issues and this conversation
should continue in the classrooms
at this university, out near the old
well and among people who can make a
difference in creating a land in which
we’re all equal under the law and that
we are a country that believes in
justice for all. Thank you for allowing
us to be with you and let’s thank Judge Kozinski. (applause)

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