Lara Bazelon often tells her young law students, “If you step into the arena, you should expect to get hit.” As a former public defender, she speaks from experience.
I first came across Bazelon’s work in 2018, at a book festival where she spoke about alternatives to imprisonment. When I discovered she was a law professor at my alma mater, the University of San Francisco (USF), I immediately purchased her book Rectify: The Power of Restorative Justice after Wrongful Conviction. “It was the poor and the resourceless who stood to lose the most because the deck was stacked against them and always had been,” she writes in the introduction. “No matter how heinous the accusation, they needed a fighter.”
In the world of the criminal courts, public defenders are the underfunded, underappreciated Davids facing off against the almighty Goliath of the state prosecution. In her book and other writings — she’s been published in The New York Times, The Washington Post, The Atlantic, Slate, Politico, and elsewhere — Bazelon calls out the many problems of our criminal-justice system. For more than three years, she was director of the Loyola Law School’s Project for the Innocent. At USF School of Law, where she is the Barnett Professor of Trial Advocacy, Bazelon directs the Criminal and Juvenile Justice and Racial Justice Clinics.
Bazelon comes from something of a legal dynasty. Her grandfather David L. Bazelon was the chief justice of the United States Court of Appeals for the District of Columbia — the same court where Justices Ruth Bader Ginsburg, Brett Kavanaugh, and Antonin Scalia served before being elevated to the U.S. Supreme Court. “He was very, very interested in protecting the rights of people who had no power,” she says of her grandfather, “especially people that society discriminated against for any number of reasons, including race, intellectual disability, and mental illness. So we kind of grew up with that in our genes.” Her father is an attorney, and her sister Emily is a staff writer at The New York Times Magazine. Another sister, Dana, is a policy adviser for Philadelphia district attorney Larry Krasner.
Bazelon is that rare person who enjoyed law school. “I liked learning about subjects I’d never thought I would be interested in, like contracts,” she says. “But all along I knew that what I really wanted to do was help people who were facing criminal charges.” We chatted over Zoom from our respective homes in the San Francisco Bay Area while California was under shelter-in-place orders due to a spike in COVID-19 cases. At one point her ten-year-old son sat down next to her with his school-issued laptop. Needing space, she got up to “socially distance” from him.
Near the end of the conversation she offered to send me articles about specific court cases she is following. She is tireless and unwavering in her defense of the accused, even when her efforts make her no friends in the legal community, and she has faith that justice is on her side. In addition to Rectify, Bazelon is the author of a novel, A Good Mother, which she describes as a high-stakes thriller featuring a fierce public-defender protagonist. A Good Mother will be published in May by Hanover Square Press.
LARA BAZELON © Richard Gilligan
Moreno: What inspired you to write Rectify?
Bazelon: I had a case that comes along once in a lifetime, representing a man with the very unusual name of Kash Register, who had been wrongfully convicted of the robbery and murder of an elderly white man in 1979. Kash was Black, and the jury that convicted him was all white. The two eyewitnesses, it turned out, had been lying in exchange for favors from the police, and the police had covered up crucial evidence showing Kash was innocent. Kash had been in prison for thirty-four years when the Loyola Law School Project for the Innocent began reinvestigating his case. Once you’ve been found guilty, it’s the job of the defense lawyers to prove there’s no way you could be the person who committed the crime. Basically we were prosecuting a case of innocence with Kash. It was a long, emotionally draining process.
The Los Angeles district attorney’s office, in addition to refusing to concede any error and forcing us to retry the case in court, also encouraged the victim’s family to attend the retrial, perhaps to signal to the judge that they stood behind the conviction. So every day I saw the murder victim’s elderly daughter and her family members in the front row. As the case against Kash unraveled and one witness after another was exposed as a liar, I imagined what this must have been like for the victim’s family. They had been told in 1979, The man who killed your loved one is in prison. And now that was exposed as a lie. It was hard not to see the devastating impact on the people on the opposite side of the courtroom, sitting literally behind the prosecution, who had been told this lie over and over. They were being revictimized.
When the criminal-justice system fails, it fails the victims, it fails the wrongfully accused, and it fails the jurors. What do all these people do in the aftermath of that? This question got me interested in restorative justice. The more I learned about it, the more I saw it as a way of healing the injuries of a wrongful conviction, of rethinking systemic breakdowns in the criminal-justice system, of bringing together crime victims and the wrongfully convicted.
As it turns out, crime victims and exonerees have a lot in common. Both have experienced the fundamental breakdown of a system they were told was there to protect them and provide justice. The crime victims have been victimized twice: once by the actual perpetrator and once by the system. The people who were wrongfully convicted have been locked up for something they didn’t do, which is extremely difficult to bear. For some of them, it helps to connect to someone who can truly understand. It helps in healing and moving on from this massive upheaval.
Moreno: What does the process look like?
Bazelon: When I explain it to people, they are often skeptical. It sounds very kumbaya, hippie-dippy, but it’s not. It’s a rigorous, draining process that can take a variety of forms. And it applies to people who were rightfully convicted as well. Restorative justice has been used by Indigenous peoples for centuries. It can happen with a large group or only a few individuals.
To give you one example, there is an organization, Healing Justice, that brings together exonerees and crime victims with a trained facilitator. Everyone sits in a circle and takes part in different exercises all day long. The idea is to bring buried feelings to the surface and connect with each other in this raw, emotional way. Participants come out the other side feeling like they have allies, people who truly understand, and a way to heal.
Another kind of restorative justice happens in “victim-offender dialogues,” where you bring together individuals on the opposite sides of a single case, and they talk through what happened and share their perspectives. When I was researching my book, I interviewed Janet Connors, whose son Joel was murdered in a home invasion. This wasn’t a case in which anyone was wrongfully convicted. Two young men were found guilty and received relatively short sentences. Janet decided she wanted to talk to them. She contacted the mother of one man. Like Janet, the woman was a single mom, and their sons had similar backgrounds. Janet arranged to meet the woman’s son in prison for a facilitated dialogue. I think she wanted answers and accountability from him, but she also just wanted to tell this man who had killed her son what effect his murder had had on her. She wanted assurance that no other mother would have to go through what she’d gone through. She went on to develop a relationship with both young men, and after they got out of prison, they went with Janet to her son’s grave and promised at the grave site to lead law-abiding lives. Which they have.
Moreno: To research this, you had to sit in on some of these conversations. What was that like?
Bazelon: Yes, I sat in on several Healing Justice circles. They took place over the course of a three-day retreat in North Carolina in a beautiful space with a lot of open fields. The house where it took place had the feel of a rustic resort. There were communal meals and group exercises. At night we built a fire, made s’mores, and sang. But during the day there were these intense circle exercises.
Watching people talk through these hard experiences was moving. It made me think about the broken parts of my own life. I am by default an advocate: I take a position I believe is righteous, and I argue that position. This works well in court, but it is not a recipe for success in personal relationships. When I visited the Healing Justice circle, there were some things in my personal life that had not worked out the way I wanted. I had recently turned forty, I was newly divorced, and I had left my job because the weekly commute from San Francisco to Los Angeles was slowly killing me. So there I was: my marriage was over, my job was over, my thirties were over, and I had two little kids to support. My life plan had not worked out. I had a narrative in my head about what had happened, and in that narrative I was the victim. It was a very one-sided, unforgiving perspective. Clinging to it meant clinging to half-truths and made me angry and self-pitying. It prevented me from taking responsibility for the part I had played. I thought that if these people — who had been violated, incarcerated, deprived of their loved ones or decades of their lives — could do it, then surely I could, too. Because what I was going through seemed fairly petty by comparison.
Moreno: Restorative justice sounds intimate and private. How do you envision it fitting into our legal system?
Bazelon: In all kinds of ways. Restorative justice could play a role after there’s been an offense but before a decision is made to charge the offender. It could help divert people out of the criminal-justice system, with the consent of the victim, who often wants to avoid the stress and retraumatization of a traditional trial.
It could also be used after a person has been found guilty but before sentencing. Offenders could receive a less severe punishment if they’ve gone through a restorative-justice process with the victim.
Sometimes incarcerated people take part in restorative-justice programs long after they’ve been convicted, as a way of trying to grapple with what they’ve done and learn from it, so they won’t reoffend. There are excellent programs in some prisons in the United States, including San Quentin, a men’s prison in Northern California. Restorative practices are hard work, but I think they are the best way to reduce recidivism and, in some cases, give the victim healing.
At San Quentin they have volunteers come in from outside to facilitate, and they sometimes have others observe and even participate, including, I think, some district attorneys. The men who have been inside for a long time take these programs really seriously. I know firsthand because at the clinic we represent clients at parole hearings, which are really like a look into their soul. A lot of our clients talk about the power of restorative justice to change their mindset and behavior. For some I think it’s probably the most therapeutic thing they can do, even if they never come face-to-face with the person they harmed, because oftentimes it’s not allowed. Still, they’re really coming to terms with what they did, admitting it publicly and to themselves, and charting a path forward.
Moreno: You mentioned that restorative justice could play a role before the offender is charged. Can you give me an example of how that works?
Bazelon: The most common use of restorative justice before charges is with kids, to keep them out of the school-to-prison pipeline. There was a kid in Oakland, California, maybe fourteen or fifteen, who brought a loaded gun to school, and it went off in the classroom. He could have been charged and sent through the system, but the school decided to use a restorative-justice approach instead. They brought him and the adults in his life — his mom and his dad and his stepdad, some members of the community, the school psychologist and principal, and his attorney — into a circle, and they talked about what had caused him to do it. And he told them what was going on in his life. Then the adults talked about the sense of responsibility they felt and how they intended to help him moving forward. They came up with a plan for him, so that he would stay out of trouble and not make that kind of mistake again. As far as I know, it was successful.
Oakland’s Unified School District does this quite a lot, because they don’t want to see these kids, who are overwhelmingly Black and brown, get funneled into a criminal-justice system that’s going to harden them and make it more likely for them to offend as adults.
Moreno: I imagine that, in places that aren’t as progressive, this approach might seem antithetical to what the criminal-justice system is about.
Bazelon: I think it’s something that we’ve been doing for white and privileged kids for decades, although without the restorative-justice part. If they are caught committing a crime at school, those kids are generally not referred to the criminal-justice system. That kind of invidious distinction determines who is able to act out when they’re young and still move on to become a productive adult and who ends up stuck with a criminal record that’s going to stigmatize them for life.
Moreno: You focus mostly on wrongful-conviction cases in your book. How much human error can realistically be eliminated from our legal system?
Bazelon: I don’t believe we can ever get it down to zero, but the rate of error that we have is unacceptably high. By conservative estimates, there are currently enough wrongfully convicted people in prison in the United States to fill a football stadium. There are some commonsense reforms that the U.S. Supreme Court, federal courts, and state appellate courts all have refused to put into place. Prosecutors and police routinely violate the law by not turning over evidence that might exonerate the accused or show that a witness for the prosecution isn’t trustworthy. We need reforms to the way eyewitness testimony is gathered and presented to juries, and to the way people are interrogated, which is currently designed to extract false confessions.
We should require that interrogations be videotaped from start to finish — no conveniently shutting off the tape. With juveniles we could make sure that a parent is present whether the child asks for it or not. I also don’t think prosecutors should be bringing cases based on a single eyewitness unless there’s a compelling reason to do so, such as in a sexual-assault case. We know that eyewitness identification of the accused is often unreliable, yet juries think of it as the gold standard.
We should jettison junk science like bite-mark analysis and other kinds of so-called forensic evidence, such as matching footprints or hair fibers, that’s trotted out to convince juries there’s a scientific basis to convict when actually there’s no science behind it.
I also think no one should ever be convicted solely on the testimony of a jailhouse snitch, and that the jury should be explicitly told to distrust such testimony because of the backroom deals that are usually involved.
When the criminal-justice system fails, it fails the victims, it fails the wrongfully accused, and it fails the jurors. What do all these people do in the aftermath of that?
Moreno: Has the rate of wrongful convictions always been this high, or was there a point at which it changed?
Bazelon: I think it’s always been this bad, if not worse. This isn’t a new phenomenon. As early as the 1930s, a law professor from Yale was writing about documented cases of wrongful conviction. It’s just that people then were unwilling to believe there was any error, much less the staggering amount that we now know exists. The only reason we know about it today is because of DNA evidence. The DNA exonerations have led to more non-DNA exonerations, in part because judges and prosecutors have become more open to the idea that a case might have been built on false testimony, bad defense lawyering, and other errors. Until DNA exonerations really got going in the late 1990s, there was a lot of denial about what many police and prosecutors were willing to do to win.
Moreno: To what extent does race play a role in wrongful convictions, and what is being done about it?
Bazelon: Racial bias plays a major role. To start, people of color are much more likely to be suspected of wrongdoing. They are more likely to be arrested, and, when arrested, they are more likely to be interrogated in a way that produces false confessions. They are much more likely to be prosecuted, and jurors are much more likely to believe they are guilty. So at every single step the deck is stacked against them, even though the laws as written are race neutral. It is hard for some people to believe this, and it is uncomfortable to confront, but the reality is that those in power, who are predominantly white men, view Black and brown lives as having less value than white lives. Because of our history of racial oppression, people of color are less likely to have the resources to fight back.
The USF Racial Justice Clinic is currently representing a young Black man who was convicted of robbery on the testimony of a single eyewitness. He’s innocent, but the jury convicted him because the white victim said he was sure — even though it was dark and the whole encounter lasted less than two minutes. My client was nineteen years old at the time. For an armed robbery with no injury that resulted in the loss of $102, the judge gave my client sixty years in prison with no possibility of parole. That is a death-in-prison sentence, which would be unconscionable even if he were guilty of the robbery. But he wasn’t guilty. He was eight miles away when the crime happened. His lawyers just didn’t present his alibi evidence.
Let me stress that this isn’t a case from the 1970s or the 1980s. My client was convicted in 2013.
Because of the way the system is set up, the worst injustices often occur when the accuser is white and the accused is Black. The kind of mistaken ID in my client’s case happens all the time in sexual-assault cases involving a Black suspect and a white victim who are strangers. The white victim is absolutely convinced that the Black person they accused is the one who attacked them, when in fact DNA shows beyond any doubt that the accused is innocent.
The underlying problem is something called “own-race bias,” which means that we are very bad at identifying people who are outside of our own racial group. That’s true across the board: Black people are bad at identifying white people, Chinese people are bad at identifying Japanese people, and so on. But because our criminal-justice system is designed to operate in a racially biased manner, the people who tend to get hurt the most are African Americans. Fifty-nine percent of exonerees in sexual-assault cases are African American men, which is wildly disproportionate to the percentage of sexual assaults committed by African American men. Just being a Black man, statistically speaking, makes you far more likely to be wrongfully convicted of sexual assault.
Moreno: What role do gender and class play in wrongful-conviction cases?
Bazelon: The vast majority of people who are wrongfully convicted are men — more than 95 percent. This is in part because men commit crimes far more often than women. But women are overwhelmingly more likely to be wrongly convicted of killing children in so-called shaken-baby cases: these are cases in which the caregiver is convicted of murder when in fact no crime occurred because it was a natural death.
Class plays a big role. One reason people get wrongfully convicted is that they have bad lawyers. Either they have a public defender who is too overworked to focus on their case, or their family raises just enough money to hire a defense lawyer, but not enough for a good one. If you are working-class or poor, you’re just much more likely to be represented by someone who is either incompetent or checked out.
Race, class, and gender also play into jury selection and deliberations. As I mentioned, my client Kash was convicted by an all-white jury. Did racial bias play a role in that verdict? I believe it did. In many U.S. jurisdictions it is difficult to get a racially and ethnically diverse jury. That includes in federal court in the Central District of California in Los Angeles, where I practiced. The jury pool was drawn not just from the city, with its diverse population, but also from the surrounding counties, which are predominantly white. Many states bar people with criminal records from serving on juries, and because people of color are more likely to be convicted of crimes, they are less likely to be on a jury. It’s a vicious cycle. I would say I had fewer than ten black jurors spread out over the seven years I was trying cases.
Moreno: You mentioned that a lot of working-class or poor people end up represented by incompetent lawyers. Do you think states need tougher standards for who can practice law?
Bazelon: I’m not sure what we could do to stop the flow of bad lawyers, but there is an aspect of the problem I do think is correctable: Some public defenders are just overwhelmed. Their caseloads are so staggering that they literally can’t be effective. When I was a federal public defender, I never had more than thirty or forty cases at a time. Some public defenders have two hundred, three hundred, four hundred cases. You can’t competently represent that many people. It’s just not possible.
The chief public defender for New Orleans wrote in an op-ed in The New York Times a couple of years ago about a client charged in a shooting who had ended up getting private counsel. The private lawyer found video footage of the client shopping with his pregnant wife in another state while the crime was being committed. The head of the public defender’s office wrote that if that man had used a public defender, he probably would have been charged and possibly convicted because the office lacked the resources to do that kind of investigation. I think that is correctable. What would cure it is more-robust funding for public-defender offices.
Moreno: Which would come from taxpayers, right?
Bazelon: Yes, just like district attorneys’ salaries. What’s interesting is that, in many places, the DAs make far more money. They’re just valued more, which doesn’t seem right to me. Both sides should be valued equally. And in Pennsylvania there is no state funding for public defenders at all, only county money, which means most counties don’t even have them.
Moreno: For your book you interviewed some jurors who had delivered a verdict in a wrongful conviction. How did they deal with the psychological ramifications of that?
Bazelon: After Kash was exonerated, his case got a lot of national attention. One of the jurors from his trial read about the case and realized he had been a part of this horrible miscarriage of justice. He got in touch with me and told me how upsetting it was to realize he’d been duped. He had been the youngest person on the jury, and one of two people who’d held out for acquittal, because he’d had doubts about the case. Eventually the other ten jurors had pressured the two holdouts to convict. Now he also felt guilty because, if he had stood his ground, there would have been a hung jury. So jurors, too, get sucked into this situation. They try to do the right thing, and then they realize they had a role in convicting the wrong person.
Moreno: You’ve described our legal system as adversarial: defense attorneys and prosecutors are pitted against each other in the courtroom. But you believe the goal of prosecutors shouldn’t be to “win.”
Bazelon: I think people fundamentally misunderstand the role of prosecutor. Defense attorneys do have an obligation to do their best to win. Their job in a trial is to get an acquittal or a hung jury by any legal means. But a prosecutor’s job is “doing justice.” That means that if they come to believe there are holes in their case or that they have the wrong person, they’re supposed to stand down, concede error, and dismiss. Too many prosecutors misunderstand their role, and society rewards them for winning, regardless of whether they have the right person, and regardless of whether they lie, cheat, and steal to get a conviction. Prosecutors stand behind verdicts that are obviously wrong or ill-gotten because they are so invested in winning. Thankfully we are seeing the rise of more and more progressive prosecutors, who are not only willing to admit a mistake; they’re willing to go to court to correct it. There are centrist and conservative prosecutors, too, who will do the right thing.
Then there are the prosecutors I call “innocence deniers.” Simply opposing an exoneration does not make a prosecutor an innocence denier. The true innocence deniers will go to extreme lengths. They will appeal and appeal and appeal. They will extract guilty pleas from the innocent in order to uphold a conviction. They will go to lengths that ordinary prosecutors will not to uphold a conviction that any reasonable person would agree is wrong.
An innocence denier is like a Holocaust denier: someone who rejects reality. Confronted with DNA or other evidence that proves a person did not commit the crime, deniers don’t correct the mistake. They deny.
Moreno: And not all innocence-denying prosecutors are white men or conservatives.
Bazelon: This is one of the most surprising things I’ve found: innocence deniers can be Democrats and Republicans; men and women; white, Latino, and African American. They all operate under the same false assumption about what their job is.
Things are shifting. In 2019 voters in San Francisco, where I live, elected Chesa Boudin as district attorney. He is the child of incarcerated parents and a lifelong public defender. [His parents, members of the Weather Underground, were convicted of murder for their role in the deadly robbery of an armored truck when he was fourteen months old. — Ed.] It was his extraordinary vision for reform that won people over.
On almost every issue Chesa is at the cutting edge. He campaigned on a platform of offering restorative justice to any victim who wanted it; of ending cash bail, because it discriminates against the poor and doesn’t keep the public safe; of refusing to cooperate with ICE [U.S. Immigration and Customs Enforcement] in the deportation of people who have been swept up by the net of the criminal-justice system. To me these are all commonsense policies, yet they were seen as so liberal that no one believed he would win.
People think San Francisco is a liberal town, but it’s an old-school, establishment town, and everyone who is part of the establishment, from Governor Gavin Newsom, to Senator Dianne Feinstein, to Congresswoman Nancy Pelosi, to Mayor London Breed, lined up behind another, less progressive, candidate. So Chesa’s victory was against the odds.
Though things are changing in some parts of the country, to get elected chief prosecutor in most places still means being tougher on crime than your opponent. It’s about who can rack up the most guilty verdicts. This is perhaps even more true of Democrats than of Republicans, because the Democrats are so often labeled weak or soft on crime. They are driven to be tough by political pressure and the desire to stay in office.
Some prosecutors fear that if they admit a wrongful conviction, they will lose in the next election. It’s ironic, because usually the opposite happens: prosecutors who correct wrongful convictions are seen as heroes. Letting an innocent person go free is not a sign of weakness but a sign of strength and integrity. Rather than being on the wrong side of the story, these prosecutors are on the right side. They ensured that an innocent person was freed. I think that’s a powerful narrative, and voters respond positively to it. Maybe more prosecutors will stop being innocence deniers if they see that freeing the innocent makes more political sense.
District Attorney Boudin formed a new Innocence Commission in September 2020 to examine problematic cases and recommend relief if there is evidence that the conviction was unjust, unfair, or unconstitutional. I am a member, along with a retired judge, a senior assistant DA, a senior deputy public defender, a neuropsychologist, and an innocence advocate. We don’t want just to normalize DAs admitting to past mistakes but to make righting wrongs something to be proud of.
People of color are much more likely to be suspected of wrongdoing. They are more likely to be arrested, and, when arrested, they are more likely to be interrogated in a way that produces false confessions. They are much more likely to be prosecuted, and jurors are much more likely to believe they are guilty. So at every single step the deck is stacked against them.
Moreno: Why do you think some prosecutors will double down on their mistakes even when evidence clearly shows a person is innocent?
Bazelon: I think they suffer from tunnel vision. Whatever exonerating facts come out, they just explain them away or assign them little value or ignore them. Sometimes it’s just willful blindness. That part of it is truly inexplicable to me. Some will weaponize technicalities as a way of upholding wrongful convictions: “You missed the deadline,” or, “You didn’t check this box, and therefore I don’t have to listen to what you’re saying.” For the prosecutors who look at all the facts and still insist that a wrongfully convicted person is guilty, I have to feel it is a matter of political survival.
Moreno: A lot of time and resources go into doubling down on these prosecutions rather than trying to find the real perpetrator.
Bazelon: That is absolutely true. There’s a case of this right now in Missouri. In 1995 Lamar Johnson was wrongfully convicted of murdering a man named Marcus Boyd. Johnson was sentenced to life in prison, but in 2019 a newly elected progressive prosecutor in St. Louis, Kimberly Gardner, found that the single eyewitness who’d testified against Johnson had, in fact, been paid by the police to lie. He hadn’t seen anything. She presented this evidence to the judge, and the judge’s response was to try to discredit Gardner rather than do the right thing and exonerate Johnson. The judge appointed the attorney general to oversee the case, and the attorney general’s opinion was that the motion for a new trial had been filed too late, and it was inappropriate and an abuse of the prosecutor’s authority to ask for one now. The case is currently before the Missouri Supreme Court, where it has been awaiting a decision for months.
Moreno: Let’s talk about the “Dear Colleague” letter sent to universities by the Office for Civil Rights under the Obama administration in 2011. Its purpose was to encourage schools to enforce federal sexual-assault protections on college campuses. What’s been the impact?
Bazelon: What the “Dear Colleague” letter tried to do — and I think it was well-intentioned — was make sure that people who committed sexual assault were held accountable, because they had not been in the past. Some pretty egregious abuses either had gone undetected or had never been adjudicated. The problem with the letter was that it did away with fundamental due-process protections. The mere allegation of sexual assault — plus a shoddy investigation by one biased person — was enough to get someone expelled. Some of the people who got expelled were Black and brown, and their accusers were not. I found that extremely troubling.
On top of that, the “Dear Colleague” letter threatened the federal funding of schools that did not comply with what it asked for, even though it was “guidance” and not a law. Combined with the #MeToo movement, this led to a climate where a lot of accused people were not getting anything close to a fair hearing — in fact, in a lot of schools they got no hearing at all. My clinic helped represent some of the accused, and I can tell you these college-campus adjudications were kangaroo courts. The way some of these schools treated my clients shocked me, and I am hard to shock.
In my experience, enforcement of the “Dear Colleague” guidelines was racially biased and perpetuated stereotypes of Black men as rapacious predators. So when Secretary of Education Betsy DeVos rolled back the “Dear Colleague” letter in 2019 and eliminated the single-investigator system — where one investigator is the detective, the prosecutor, the judge, the jury, and the executioner — I was supportive of it. My position made me no friends on the Left. People got very angry and accused me of being a “rape apologist.” I’ve gotten death threats — all because I think that everyone deserves due process, including people who have been accused of sexual assault. The attitude that we should crucify anyone based on an unproven accusation is antithetical to the way the system should work. It’s resulted in Black and brown men’s lives being destroyed regardless of what they did or didn’t do.
Moreno: And the colleges feel due process isn’t necessary because the accused won’t receive jail time.
Bazelon: That’s right. The colleges refer to the adjudications as an “educational experience.” There’s nothing educational about getting expelled. And branding someone a Title IX sexual offender means that person will never get a higher education in this country again. That is life-altering.
Moreno: You refer to yourself as a feminist. How do you respond to feminists who disagree with your stance on this?
Bazelon: I think a true feminist believes in due process for everyone. And I don’t think there’s anything feminist about saying due process is fine for someone who is accused of murder or robbery or carjacking, but those accused of sexually assaulting a woman should be railroaded and have their lives destroyed. Inevitably the people most likely to get punished are the people with the fewest resources. A lot of the critics who are hurling accusations at me have never litigated in this arena and don’t understand what it’s like on the ground. I would ask any feminist to imagine their loved one is facing this life-altering accusation and being investigated, prosecuted, judged, and expelled by a single person with little training and a strong incentive to find the accused guilty. Imagine if this were your child.
Moreno: Do you worry that your stance on this subject could be used by conservative groups or pundits with misogynistic intentions?
Bazelon: Yes, it does worry me. It is all too easy for the right-wingers to use people like me. I am not naive. At the same time, it is important to tell the truth. In this one instance the Department of Education — run by someone I do not support and do not think was qualified to have her job and who enacted a lot of terrible policies — did the right thing. It’s an uncomfortable, lonely stance to take. I worry my position will be twisted and misrepresented by people who are not my allies. But the alternative is staying silent and not standing up for what’s right, and I just refuse to do that.
Moreno: Do you think there’s a way of ensuring both the safety of victims of sexual assault who come forward and due process for the accused?
Bazelon: My hope is that it isn’t a zero-sum game. There is a much bigger conversation to be had about how victims are treated by the legal system, which all too often uses them up and casts them aside. They are entitled to have a real voice in the outcome. Not every victim wants the person who hurt them to be locked up forever. Some victims are not healed by eye-for-an-eye accountability. If someone kills your loved one, executing that person will not bring your loved one back. Some victims want a different kind of accountability.
The problem is that the criminal-justice system incentivizes offenders to minimize or deny their actions, whereas some victims would rather hear the offender acknowledge that the crime did happen, and also promise not to do it to anybody else, which is what happens with restorative justice. Sometimes that’s more meaningful than a prison sentence.
Moreno: Is restorative justice more likely to occur on a local or state level than at the federal level?
Bazelon: There is a really great restorative-justice program called RISE in Boston that’s run by a federal judge. At the state and local level some jurisdictions have restorative-justice programs, and some don’t. Where it is available, though, it has a pretty positive track record. There’s this really amazing program in Brooklyn, New York, called Common Justice that’s been around for more than ten years. It applies, I think, to offenders who are between the ages of eighteen and twenty-six and charged with serious violent felonies — we’re talking about attempted murder, stabbing, shooting, maiming. The victims who are offered the option of restorative justice instead of prosecution choose restorative justice 90 percent of the time. These are people who have been badly hurt, often by someone they know. It’s a well-funded, well-run program, and the recidivism rate is only 6 percent, which is a fraction of the recidivism rate for violent crimes in most counties. When people are willing to take the risk and put the money and resources into restorative justice, it can be very effective.
Moreno: I was going to ask about the recidivism rate, because I would imagine that someone running for DA in Boston or Brooklyn who is super tough on crime might characterize restorative justice as going easy on criminals. You’re saying it’s a better outcome for society.
Bazelon: That’s the argument that Common Justice is making, with the full cooperation of Eric Gonzalez, the Brooklyn DA. He’s a longtime prosecutor who came up in the traditional system, so his backing gives it some credibility. But, yes, you’re right. It’s a hard sell for the “tough on crime” crowd because it sounds like letting people go. There’s a real failure to understand just how hard restorative-justice work actually is, and how transformative it can be. We think of prison as the cure, but all prison does is force you to sit there until it’s your turn to get out. And most people do get out. It doesn’t force you to face what you did or ask yourself why you did it, or to look at the person you hurt and see the damage that you’ve done. Restorative justice is incredibly painful, which is probably why people who’ve gone through it think, I don’t really want to be that person anymore.
In law school I was trained to believe that the federal courts were a bastion of civil rights. Then I became a federal public defender and realized this was not true at all.
Moreno: During the San Francisco district-attorney race Chesa Boudin was frequently referred to as a “decarceral” candidate. What does this mean?
Bazelon: “Decarceration” means locking fewer people up and determining whether people who are currently in prison actually need to be there. Is it helping anybody to keep them there? Is it making the victims whole? Is it protecting society? Is it helping rehabilitate the offenders? If the answer to those questions is no, then why are they in there? I supported Chesa because he plans to fundamentally rethink what the office of district attorney does. For example, his response to the pandemic has been to listen to health-care professionals and reduce the jail population by 40 percent, because he doesn’t want people who are in for nonviolent offenses and who have completed most of their sentences to get sick and die.
Moreno: Donald Trump appointed fifty-four U.S. appeals-court judges and upwards of 170 district-court judges. Do you worry that this wave of appointments could effectively roll back the rights of the accused?
Bazelon: I do, but that’s not a new worry. I was worried about that during the Bush administration. Quite frankly, Obama didn’t make much headway in his judicial appointments. The Republicans blocked a number of his picks. The nominees who made it through were moderates who tended to come from big civil firms or to be lifelong prosecutors. His appointments are in no way the mirror image of Trump’s, who are overwhelmingly out-and-proud right-wing conservatives. Increasingly I feel that, if you want to improve the law in a meaningful way, you go to state court. That’s where the big changes are happening. In law school I was trained to believe that the federal courts were a bastion of civil rights. Then I became a federal public defender and realized this was not true at all. It’s not as if the state courts are a progressive’s dream come true, but there’s just far more play there than in federal courts. Some states, like California, are ensuring more protections for the accused than federal courts.
Moreno: So it really matters what state people live in.
Bazelon: Yes, and state judicial elections matter tremendously. If you have a decent state supreme court — such as California does right now — there is hope. Plus we have a progressive governor, and he’s going to get a chance to make judicial appointments.
Moreno: Do you think we will see national criminal-justice reform under a Biden-Harris administration?
Bazelon: I am optimistic, because I think the executive has a lot of power to carry out an agenda without Congress. I hope that Kamala Harris can take a leadership role and really set a national progressive agenda. She’s come to embrace a lot of progressive causes and backed a lot of progressive DA candidates who were up for reelection.
Moreno: How did you feel about her as San Francisco’s district attorney?
Bazelon: Much of what she did in the DA’s office and also in the state attorney general’s office was really disappointing. It’s complicated, because she had a lot of obstacles in her path: as California’s first Black female DA, she had to deal with so much resistance, so much explicit and implicit bias. She had to work very hard to run for state office and win. But she did make a lot of compromises along the way that were disappointing to me and to other progressives.
Moreno: Restorative justice and the issue of wrongful prosecution had a bit of a moment in 2019 with the release of Ava DuVernay’s Netflix series When They See Us, a drama based on the lives of five men, commonly referred to as the Central Park Five, who were wrongfully convicted of rape in 1989. Was the series effective in highlighting the issues of the case?
Bazelon: I thought it was very effective — so effective that Netflix and DuVernay are being sued by the actual prosecutor for defamation, even though the series isn’t purported to be a documentary. It’s a drama that took some license to drive home just how terrible the prosecution was from start to finish. It illustrated what happens when you take a group of fourteen-, fifteen-, and sixteen-year-old boys, separate them from their parents, and interrogate them for many hours with no food and no access to lawyers, all with the presumption that they’re guilty. The so-called confessions obtained were the main weapon used to convict them. When They See Us made people understand in a fundamental way the lengths to which prosecutors and the police are willing to go to win in high-profile cases that involve privileged white victims.
Moreno: Have due-process laws progressed much since that case in 1989?
Bazelon: Unfortunately no. The Supreme Court’s jurisprudence around eyewitness identifications has remained the same since the sixties. When I teach it to my Criminal Procedure students, I say, “I have to teach this to you, because it is going to be on the bar exam and is the law, but I am telling you that it is trash.” There are no cautionary instructions about the perils of cross-racial identification. There are no cautionary instructions about identifications involving only one suspect, which is much more likely to result in a false positive than an identification from a lineup. The jury hears the victim say, I am 100 percent positive. But a victim, faced with only one suspect and asked for an up-or-down vote, is going to think: Why would the police bring me in to ID this single person if they didn’t do it?
There are very few parameters to rein in how much the police can lie to obtain false confessions. Many of the techniques that the NYPD used on the Central Park Five are still legal and used every day. We saw this with the Netflix docuseries Making a Murderer, about Brendan Dassey. In 2005, when he was sixteen, detectives in Wisconsin interrogated Dassey with no legal defender, parent, or other adult present. They fed him information, basically telling him what he needed to say to confess. They implied that if he did confess, he could go home. We are talking about a naive teenager who was in special-ed classes. That’s how they extracted the confession that Dassey later recanted.
Moreno: With all the lawyers in your family, I’m curious what family life was like for you growing up, what conversations were like at the dinner table.
Bazelon: They were never boring, that’s for sure. They were almost always about law, medicine, politics, and history. It was a boisterous and somewhat combative Jewish family, so there was plenty of arguing, but it wasn’t mean-spirited. Everyone talked fast and sometimes over each other, and it could be hard to keep up. I remember friends would come over and be amazed by the things we were talking about at dinner. It was good training for me, because it made me feel OK with being outspoken. In the legal profession there is a fair amount of bias against female lawyers. People assume we are too argumentative but reward the same passion in men. Growing up in my house gave me the confidence to push back.
My family also taught me that inevitably I would be proven wrong about something. It’s important to realize that you’re fallible and can always learn from other people and embrace new ways of thinking. You can’t just fall in love with your own ideas and think you’re the smartest person in the room. I wasn’t even the sixth-smartest person in my family. So it taught me some humility.
Moreno: What are some ideas that you, as a law professor, try to instill in your students?
Bazelon: I tell students that change is possible. If you had told me, when I had just graduated from law school and started working as a federal public defender in 2001, that San Francisco would elect a DA who had been a public defender and whose parents had been incarcerated for murder — much less that we would be instituting policies like restorative justice for any victim who wants it and that I would be a member of an Innocence Commission — I would have thought you were insane. And that’s just one jurisdiction. We’re electing progressive prosecutors all over the country: in St. Louis, Chicago, Philadelphia, and Durham, North Carolina, to name just a few.
I also impress upon students that they shouldn’t “wait their turn.” On March 3, 2020, we had an election in San Francisco, and two public defenders ran for open seats for judgeships. Both were women of color. They didn’t have any establishment backing whatsoever. All of the sitting judges endorsed their opponents, who were prosecutors. But the public defenders won. I believe they ran because they knew they were never going to get appointed through the traditional process. That’s an important lesson: Don’t stand in line and wait for your turn. If you see an opportunity, seize it.
Moreno: There are many people outside of the legal system who are passionate about restorative justice and ensuring due process. What do you recommend those folks do to help change our criminal-justice system?
Bazelon: The most important thing people can do is vote in down-ballot elections and nonpresidential elections. It matters who the judges are. It matters who the district attorney is. The majority of criminal justice is meted out at the state and local level. You can help by educating yourself about the candidates, by giving progressive candidates ten or twenty dollars or whatever you can afford, and by turning out to vote for them. It will make an enormous difference in your life — more so than who the United States attorney general is.
The other thing I tell people is that they should absolutely take jury duty seriously. They should not throw those summonses away. If they get picked, and the evidence isn’t there, they should hold out for a hung jury to prevent a potential miscarriage of justice. Those are the two main things you can do to be part of the solution.
And one final thought. Plenty of people of color and women think: The law is not for me. Lawyers and judges are white, male, privileged. Statistically that is true, but it is changing. For the change to continue, people who don’t fit that mold need to believe they have a right to claim that space. I am thankful and proud that USF is a majority-minority, majority-female law school. The legal profession should be representative of the communities it is serving.
