How To Reduce The Ballooning U.S. Prison Population? Start With Prosecutors, Author Says

The number of people incarcerated in the U.S. has quintupled since the 1980s. In 2016, it was about 2.2 million people, a figure cited in the new book "Charged: The New Movement to Transform American Prosecution and End Mass Incarceration."

The U.S. imprisons people at nine times the rate of Germany. Author Emily Bazelon writes America's embrace of mass incarceration may soon "come to seem nearly as shameful as slavery does now."

Bazelon levels several charges at those who charge people: prosecutors.

"Most people go into this work thinking they are good people with high ethical standards, trying to do the best they can," she tells Here & Now's Robin Young. "It's just that a lot of them are operating in offices where the way you get rewarded is by winning big convictions and winning long sentences. So it's a systemic problem."

Bazelon, also a staff writer for The New York Times Magazine and a fellow at Yale Law School, writes many prosecutors have "tunnel vision." They see the job as a stepping stone to higher political office, which causes them to prosecute more aggressively.

"That conception is that in order to be the [district attorney], you have to be tough on crime," she says. "If that's our conception of the district attorney, then the way in which this then becomes a stepping stone to higher office is going to lead to more incarceration, rather than a system that's fairer and that can start to cut back on these huge jail and prison numbers that we've amassed."

On a case she describes in the book involving a young black man who winds up being prosecuted after trying to hide a gun to protect his friend

"I think that what's unusual about this case, nationally speaking, is that New York has heavy mandatory minimum prison sentences for possessing a gun. If you possess a loaded, illegal gun, you are supposed to go to prison for 3 1/2 years. That's the most serious charge. And that kind of charge gives an enormous amount of power to prosecutors. They are able to force a lot of guilty pleas by threatening people with prison, and there is almost no discussion about why young men — almost all the people prosecuted in New York City are young black men — [would possess a gun.]

"Because there's such a heavy penalty and this crime is assumed to be a violent felony, even though having a gun doesn't mean that you actually used it, those things mean we never talk about why people have guns, whether they don't feel safe and whether they're looking for some form of protection — even if that's a bad call. We're treating them as violent criminals, as opposed to people who have life circumstances that explain some of the choices they're making."

"A lot of [prosecutors] are operating in offices where the way you get rewarded is by winning big convictions and winning long sentences. So it's a systemic problem."

Emily Bazelon

On prosecutors who might be offended by Bazelon's characterization of their work

"I'm sure there are people who I've offended. One always does. I have not heard from any offended prosecutor since my book was released. And I think the reason is that I'm not painting with a broad brush. I want prosecutors to see how much power and responsibility they have."

On those who fear the possible dangers of incarcerating fewer people

"I think those voices are just many fewer than they have been in the past. Crime is dropping in America. That has opened a window for rethinking our system. And there's a crucial insight here borne out by research, which is that when you send people to jail and prison, you're making them more likely in the longer run to commit more crimes afterward — because people come out of jail and prison with more trouble getting a job, or housing, and in more desperate circumstances. And so the idea that you could improve safety by making the system more fair, as opposed to more punitive, and increase people's faith in law enforcement, those are ways to make communities safer that we have really way underutilized in American society."

On a checklist in the book for changing the way things are done, which includes more jury trials, fewer plea deals and less difficulty getting bail

"Reforming the cash bail system is a huge part of this picture. Two-thirds of the people held in jail right now across the country are there because they can't afford bail. That's 6 million people every year. So just thinking about reforming the pretrial process — these are people who are assumed innocent — that could have a big impact.

"And then there's also the other side. After you get out of prison and jail, we have these very long terms across the country of parole and probation. We put a lot of people back in jail for what are called 'technical violations,' like you break your curfew, or you leave the state without permission. These are not crimes. They're only infractions in the context of these five-year supervision periods that we're demanding."

by Emily Bazelon

The gun was an offering.

Kevin heard about it around midnight on a May evening. He’d gone to the corner store to buy a single cigarette and was heading back to his high-rise in a housing project in Brownsville, a neighborhood in the middle of Brooklyn. The people he’d grown up with were often out at night, and he saw a knot of them, young men around his age, twenty, hanging out by a pair of green benches in a grassy spot near his building. As they swapped greetings, Kevin’s friend Mason flicked his eyes at a plastic shopping bag on the ground, lying there like a piece of trash.

We got the jawn, he said.

Jawn could stand for a lot of things—a pair of shoes, a person— but Kevin knew exactly what Mason meant: there was a gun in that bag.

I know things are crazy for y’all here, Mason said, so I got this for you.

The police were a frequent presence around the projects, so no one picked up the bag or asked to see the gun. Kevin said his goodbyes and started walking away in the alert and fluid way he had, shoulders back and arms swinging, tall and lean and young, his hair pulled back in a ponytail and his gray hoodie sweatshirt zipped, always aware of where he was but trying not to look over his shoulder. It was important not to look skittish, not around his friends and not if the police were watching, but Kevin also didn’t want to hang around with a weapon lying at his feet. He didn’t want the trouble a gun brought.

Kevin’s housing project, a cluster of brick buildings, was one of eighteen in Brownsville, making the neighborhood one of the densest concentrations of public housing in the country, with more than sixty thousand people packed into 1.2 square miles. The project could feel like a small town, in an old-fashioned way. It had its own recreation center and known personalities and raffish identity. Kevin got a laugh out of the nicknames for the loudmouths or tough guys: Koolaid and Lil Head and OgLoc. He’d lived there his whole life, with his older sister and her two-year-old daughter, his younger brother, and his mother, who’d raised her kids mostly on her own, working retail jobs and caring for the elderly and disabled. The average rent in the Brownsville projects was $430 a month. Families tended to stay for years once they got off the waiting list for an apartment. “We stick together,” Kevin said. “We went to school together. Your apartment might be on top of mine. Your mom might have babysat me.”

On a good day, the project’s residents would come outside to play music and catch up. You knew it was spring when older people brought small towels to sit on and raised their faces to the sun. “That kind of day, I’m going to be where everyone is, the girls, the mamas, the babies,” Kevin said, thinking on it. “That kind of day, it’s perfect.”

But Brownsville was also one of New York’s most disadvantaged communities, measured by health as well as economic insecurity, and one of its most dangerous. The year Kevin was twelve, more than a hundred people were shot in and around Brownsville and another thirty were killed, about half the number in all of Manhattan. Guns were a fact of life. “I could find someone with a gun before I could find someone with a diploma,” Kevin told me. Over the years, he’d lost people he knew, including close friends. The beefing wasn’t mainly between the gangs with well-known names, like the Bloods or the Crips. They existed, but their presence in the neighborhood was fading. More trouble came from menacing rivalries that pitted groups in the projects against their peers in other projects. The conflicts and alliances shifted, but there was one other project in particular that was the main foe of Kevin and his friends.

Kevin’s father lived in the rival development. He’d moved back in with Kevin’s grandmother when he and Kevin’s mother split up, back when their children were young. Kevin’s dad paid child support regularly, and they talked once in a while, but Kevin hadn’t gone over to see him in years. One day, standing on the street outside his building, he gestured toward the windows of his grandmother’s apartment, visible a couple of blocks away, above the trees. “I can’t remember what the inside of my nana’s crib looks like,” he said.

The battle lines between the projects were drawn when Kevin’s father was growing up, when established gangs fought over territory so they could sell drugs. Kevin didn’t know why—and it didn’t really matter how the trouble started back in the day. Fresh insults piled on top of old grudges. The reason for a fight or even a shooting could be minor—disrespecting someone on social media, or flirting with his girlfriend. Kevin found it disturbing. Most people he knew did. But that wasn’t the same as knowing how to end it. There was too much bad blood. He’d learned you could defend a place, and your people in it, yet at the same time wish you were anywhere else.

When Kevin was thirteen, he went to the store for his mother and got jumped. All he knew was that the people who beat him up and took his money were from another project, and that now he and his friends would have a problem with them. Months later, one of his eighth-grade classmates was killed in a shooting. Kevin didn’t know why that happened, either.

At fifteen, he got jumped again and was slashed in the face with a razor blade. Conflict built until trauma begot trauma in Brownsville. In a focus group of young men of color coming home from Rikers Island, nine out of ten said they’d been robbed, jumped, or “seriously hurt in a fight they didn’t start,” though none of them identified as victims of crime. Writing up the results, the Vera Institute of Justice pointed out that if they don’t sufficiently recover, people who are victimized, especially when they’re young, are more likely to gravitate toward peers they think can protect them and to commit retaliatory violence themselves. After Kevin was jumped, he couldn’t afford to look like an easy target. He and some of his friends found one of the boys who had assaulted him and beat him up.

Kevin got arrested for the first time just after he turned sixteen, when a friend who’d already graduated from his high school came to campus with a car. Kevin asked to drive it. “At the time, I didn’t think it was a serious thing to drive without a license. He hands me the keys, and I’m like, ‘Lemme put my book bag in your car.’ I snuck out at lunch, ran to the car quick, opened the door to the backseat, and put my book bag inside, and as soon as I closed the door, officers are swarming me, guns out.” The car was stolen. Kevin didn’t tell the police about his friend and he was charged with possession of stolen property. He got five hundred hours of community service, which he worked off by cleaning the piers near the Brooklyn Bridge.

Kevin’s father tried to step in after he was arrested. “He tried to come play the father figure. I told him, ‘These words don’t mean nothing.’ I made an example to him like this: ‘If something happens to me right now, who you think I’m gonna go get, you or my mans?’ ” Kevin meant an older friend who had his back in the beefing. “My pops is looking at me with a dumb face. I’m like, ‘It’s not supposed to be like that. You supposed to be protecting me.’ We had a fight. He swung at me and I swung at him. ‘Look, all you do is give my mom money. You weren’t here. You don’t know me. My mom takes care of me. She sees me every day. She has the right to put her hands on me but she don’t. You, I speak to you on the phone and you pop up once in a blue.’ ”

Kevin went to Rikers Island for the first time two years later, spending a couple of nights in the jail after another fight between the projects. He didn’t start it but he didn’t back away, either. He and his friend pummeled two boys, and they ran off, their iPhones falling to the ground in the melee. Kevin picked the phones up. He considered them trophies for a fight that had remained in-bounds, with no one seriously injured.

But the parents of one of the kids he’d fought went to the police, and Kevin and a couple of his friends were charged with robbery. In exchange for pleading guilty, Kevin got a break that benefits a lot of teenagers in the state of New York: he qualified for a one-time get-out-of-jail-free card called youthful offender eligibility. The judge sent him to a year-long program offered by CASES (the Center for Alternative Sentencing and Employment Services), with group sessions and volunteer assignments at his local recreation center. Kevin liked the work, which was a mix of playing with younger kids and cleaning up. He got to go on a trip to Ohio. He met a girl in the program who became his long-term, on-again/off-again girlfriend. Over the next few years, Kevin lived on the edge of trouble. He had friends at the center: “I sometimes chilled with people who did wild shit,” he said. When they got into fights, he tried to set limits without leaving anyone in the lurch or risking his status. He had a personal code: he fought with his fists, not with weapons. Kevin knew people who were doing twenty-five to life. He wanted no part of that.

Excerpted from the book CHARGED by Emily Bazelon. Copyright © 2019 by Emily Bazelon. Republished with permission of Random House.

Jill Ryan produced this interview and edited it for broadcast with Todd Mundt. Jack Mitchell adapted it for the web.