Hi-Phi Nation



Punishment Without End (Full Transcript)Chau Tu: From Slate, this is Hi Phi Nation, philosophy in story form. This season: crime and punishment. Recording from Vassar College, here's your host, Barry Lam.Barry Lam: On the ninth floor of the federal courthouse in downtown Brooklyn, just high enough to dampen the sounds of the police sirens below, sits the chambers of a distinguished elderly judge.Judge Block: All right so I'm Frederick Block, that's my full name, people call me at different names. When I was a little kid they would call me Freddy. Frederick is a little bit too formal it makes me sound like a Prussian or something like that. Barry Lam: He's well into his eighties now, having presided over hundreds of cases including several high-profile ones. He sentenced Peter Gotti of the Gambino crime family and Pedro Espada, former Senate majority leader of New York State who was convicted of corruption. He introduces himself with as much rigor, thoroughness, and humility as anyone would when their words are the most consequential ones for another person's life. Judge Block: You know so Judge Block, Fred Block if you know me, you know that's fine with me I'm not a big big fan of formality but at the same time people do respect the fact that you have this label called judge and I find that interesting that people want to call you Judge Block.Barry Lam: If you ask Judge Block about his most impactful achievement over the course of a long career it isn't being appointed to the federal bench in 1994 by President Clinton or helping to put away mob bosses, sex traffickers, or corrupt politicians. It's a decision he issued relatively recently, in 2016, in an otherwise unremarkable case of drug possession involving a 19 year old girl named Chevelle Nesbeth.?Judge Block: It was just another case of some young person getting picked up coming back into the country with drugs in her suitcase. We get a lot of that. We have jurisdiction over the airports- so you know JFK, uh you know people bring drugs in there they get picked up and then they're prosecuted here in the eastern district. And she came and she went to trial and she was going to give it the best efforts that she could give to hopefully pray that the jury would find it not guilty. It didn't happen, and she broke down when the verdict was announced and she cried and she cried and she cried.?Barry Lam: Chevelle Nesbeth declined our invitation for an interview as did her attorney. So what we know about her side of the story comes from the official records. Chevelle had a boyfriend, who gave her cash to take a trip to Jamaica where Chevelle had family. The boyfriend gave Chevelle a suitcase to take to a friend of his. She did that, and was given two new suitcases-- one to replace her broken one, and one to deliver to someone in the United States. When she returned to JFK, a customs agent thought Chevelle's suitcase looked a little suspicious and took it aside. The retractable rail connected to the handle looked odd, and the agent punched a hole in it. It was stuffed full of powdered cocaine-- about sixty thousand dollars worth in retail. The trial was about men's rhea. The prosecution argued that Chevelle had to have known she was transporting drugs. The defense argued that she didn't. Chevelle didn't testify-- the only defense she gave was video of the bust, with the jury being asked to read Chevelle's facial expressions on the video. She looked too surprised, they argued, for someone who knew. The jury wasn't convinced and convicted her. And that's where judge block comes in as the sentencing judge.Judge Block: First thing is that the probation department in each district has the responsibility to prepare what's called a pre-sentence report to aid the judge in sentencing. It gives you the history of the defendant, his family background, to get to know the person who you're sentencing. She had an impeccable record-- she was a college student, she was planning on being a principal, she had high goals, she was a good student, she had no brush with the criminal law before, she was absolutely a perfect citizen. She actually had taught in the summertime helping disadvantaged?children.Barry Lam: The trip to Jamaica was only the first time she had left the country she had no history of drug use or even drug possession. For a crime of this type the sentencing guidelines issued a recommendation of 33 to 41 months in federal prison-- that's about three to three and a half years. Given her spotless record and evidence of good citizenship, the probation department recommended a sentence of 24 months.Judge Block: But we have a lot of discretion we don't have to sentence within the guideline range.Barry Lam: This wasn't always true. If it were a few years earlier, or if Nazbeth had a bit more cocaine in her suitcase, Judge Block wouldn't have had much discretion at all if Nesbeth had five kilos of powdered cocaine,?she would have encountered a mandatory minimum sentence of 10 years imposed on her by an act of congress. An act the judges are powerless to oppose. If it were a decade earlier, judges would have been required to sentence within the guideline range. They couldn't be easier or harsher than the recommendation of the pre-sentence report. A brief history: in 1984, congress passed the sentencing reform act, aiming to rein in inequity and inconsistency in sentencing, where the same crimes done by different people would get very different sentences. The act created sentencing commissions, whose job is to set ranges of prison time for different crimes. And it mandated that federal judges sentenced within that range. It was supposed to be a victory for blind justice and the rule of law. Then came the Booker Decision in the Supreme Court in 2005. Booker made sentencing guidelines advisory rather than mandatory. Judges could once again sentence below or above the guidelines at their own discretion, as long as they didn't violate a mandatory minimum or maximum. Pre-Booker, Judge Block would have been forced to give Nesbeth between two and three and a half years in federal prison. Post-Booker, he could go above or below as long as he explained his reasoning. The affect of Booker in the last 15 years is that about half of all federal sentences are now below the guidelines provided by the sentencing commissions. Predictably though, the average disparity of sentences between judges has also increased.?Judge Block: There is no uniformity. Sentencing is all done by district court judges, and it varies all over the law.Barry: an increase in judge's discretion means that you're allowing highly contingent factors to determine the outcome of a particular act of sentencing- like whether there were victim impact statements, whether the judge knows anything about the defendant outside of the trial proceedings, right down to the individual temperament and prejudices of particular judges.Judge Block: It makes a big difference as to who the judge is. It really depends upon the demographics the background of the judge the culture of a particular part of the country. You want to get a judge hopefully that has a fair and moral compass, that has a little bit of a sense of humanity, that's not doctrinaire, that doesn't have any philosophical issues to bandy about or any political reasons to render a sentence.Barry: Sentencing can be so chancy now that in the Nesbeth case the final sentence turned on the book that happened to be on Judge Block's nightstand the week of the trial.Judge Block: I happen to be reading Alexander's book the New Jim Crow.Barry: This is Michelle Alexander-- lawyer, writer, and civil rights activist. The New Jim Crow is probably the most important book of criminal justice reform in the last decade.Judge Block: yeah I think everybody should read it actually. And she had this polemic about how mostly African-Americans,? she's writing from that perspective, and when they get out of jail they're still in jail because they have all of these burdens which make it impossible for them to function in society.Barry: These burdens we now call collateral consequences of conviction. There are the informal ones, like social stigma, mental health problems, family problems, but there are also the formal often permanent removal of rights for the convicted that are written into law. Things like the inability to get a student loan, public housing, welfare benefits, and there are sex offender registries, restrictions on where you can live?10:00?Judge Block: Driver's license is suspended for a period of time,?can't vote for a period of time. Some of the states i looked at had ridiculous uh collateral consequences-- you couldn't be a game warden in Utah for example. But i'm sure there are places where you can't be a barber because of thisBarry: Yeah I looked into it. Yeah.Judge Block: Is that true?Barry: Yeah absolutely, something like you can't work with scissors or something.?Judge Block: Well right, right.?Barry: How aware were you of these collateral consequences before?Judge Block: Not at all-- but nobody, not the government, nor any criminal defense lawyer ever came before me and i've been doing this for 25 years now and said judge look at what my client has to face specifically statutorily, because the federal government has hundreds of these statutes. The states-- 50, 000 about a thousand each state-- has all these lawsuits/ Nobody knows about it. This is not a political force here that people care about, they're ex-cons who cares about them right.?Nobody said that to me.Barry: Nobody came up to you and said my client can't be a barber, can't be a teacher. i mean nobody came up to youJudge: and not my colleagues, when I spoke to them nobody ever came to them and said that look you got to consider you know the collateral consequences that the federal and the state governments are statutorily imposed upon my client. Nobody ever said that, so when i read alexander's book i said oh my god.Barry: Judge Block made two decisions. The first is that he ordered both the prosecution and defense to come back before the sentencing hearing with a list of collateral consequences that Chevelle Nesbeth would be facing as a result of federal and state law. How would her life be permanently changed as a result of her conviction alone? Completely independently of how much time she'll spend in prison. And at the macro level, Judge Block wanted a bigger change. What if he could get other judges on the federal bench to consider collateral consequences in sentencing?Judge Block: I came out saying that here in the eastern district, it is obligatory to consider collateral consequences as part of the responsibility of a judge. And that it's part of the 3553A mix that we ought to consider.Barry: 3553 is the U.S law telling judges what they must consider when rendering a sentence. Things like-- whether the sentence is proportionate to the crime, whether the sentence is in line with other sentences for the same crime, and the history and characteristics of the defendant and so on.?Was there a possibility that your ruling could have been overturned on the grounds--Judge Block: Yeah for sure the government could have appealed. If they did that, we would have gotten a more comprehensive opinion from the second circuit. They chose not to appeal.?Barry: The result is that consideration of collateral consequences in sentencing is not mandatory across the entire federal judiciary. It isn't even mandatory in the second circuit where Judge Block serves. It's voluntary, part of judicial discretion. But collateral consequences are calculated in the Eastern District because of judge Block. For Chevelle Nesbeth, those consequences were substantial. All of her federal and state student aid would be suspended, including pell grants and federal student loans, her driver's license would be revoked, her passport would be seized, she would be ineligible for federal housing and food assistance. And at the state level, her desired career was now impossible. She wanted to be a school principal-- she was now prohibited from getting a teaching credential. This didn't even factor in the number of jobs she couldn't get because of her felony conviction. The government recommended 24 months in prison, the same as the pre-sentence report. The defense argued for no prison time.?Judge Block sentenced Chevelle Nesbeth to six months house arrest, 100 hours of community service, and one year of probation. So right now, for the first time ever in a small but important corner of the federal judiciary, the kind of collateral consequences and individual faces post-conviction is a relevant factor in determining how much official punishment, prison time, they'll receive upon conviction.Judge Block: But you know, nobody volunteered to do this. You know I had to trigger it. Michelle Alexander had to trigger Judge Block and Judge Block had to trigger the U.S. attorney's office. And the federal defenders now they all a little bit more conscious and aware of the fact that-- yeah let's think about what's going to happen to these people after they get out of jail.?15:00?Barry: With Judge Block's ruling the role that collateral consequences are playing in the criminal?justice system just got more complicated. According to Michelle Alexander and Judge Bloch their role thus far has been to keep a class of people the formerly convicted in a state of perpetual civil death. Punished forever on the outside, even after having been punished on the inside. Now, in the Eastern District, with the right judge under the right circumstances, they have the role of lowering a person's time in prison. And this is because judges sentence according to the principle of proportionality-- a punishment must be proportionate to the crime. So suppose the right punishment for Chevelle Nesbeth's crime is 24 months in prison if there were no further state-imposed collateral consequences. Once we factor in these consequences as additional state-imposed punishment, you have to subtract from the 24 months to make the punishment fit the crime. How much you subtract is up to the calculation of the judge-- but this kind of reasoning, Judge Block's reasoning, is highly contentious according to legislators. There's a reason it's unprecedented collateral consequences according to the state aren't punishments at all. Zachary Hoskins: Hi I'm Zach Hoskins, I'm an assistant professor in philosophy at the University of Nottingham. Traditionally, the legal practice and courts have treated these not as part of the punishment but as civil or administrative measures. So it's something else. So the court's position has been legislators you tell us, did you intend this to be a punishment or something else. And have been hugely deferential to legislators. Well, legislators have built in incentives to count these not as forms of punishment but as civil measures because then they get more latitude in how they can impose them, and they can impose them without worrying about some of the due process restrictions. So legislators tend to say no of course these are not part of the punishment these are additional measures.Barry: Legislators make the argument that they have every right to make laws about who gets public housing or driver's licenses, or who gets to stay in the country. And when they exclude people from getting these things, like 14 year olds from driving and voting, they’re not punishing people. So by their logic, they can prohibit ex-felons from getting things other people can get, and those aren't punishments either.?I ran this argument by Judge Block.?Let me read a short passage from from your decision: 'there's a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court imposed sentences.' That's one way of looking at collateral consequences-- I suppose if you're a lawmaker, especially a particularly tough on crime lawmaker, you would respond by saying this is a civil matter. Is there any merit to that?Judge Block: I don't think so. I mean labels really are not what you talking about here-- you're talking about the practical consequences of a human life.Barry: So it's just a label that's civil versus criminal punishment thing--Judge Block: Yeah yeah yeah but no no this isn't the criminal world, this is dealing with sentencing people who have committed crimes.Barry: It sounds like we're arguing semantics. What does the word punishment actually mean? Only the repercussions are huge. If the word means what judge block thinks it does, then the more harsh and numerous the collateral consequences, the less prison time people should get by proportionality. If it means what lawmakers say then they can do whatever they want with ex-felons after they're out. A felony conviction amounts to a total and permanent forfeiture of some of your civil rights. So which is it? I'm glad this is a philosophy show where it's okay to argue semantics. When we come back-- what is a punishment? Chau Tu: Hifi nation will return after these messages.Zach Hoskins: Punishment is not only burdensome but punishment is intentionally burdensome.Barry: That's the first part in Zachary Hoskin's account of punishment. A punishment is when the state wants you to hurt, to feel the pain that is a consequence of your crime.Zach Hoskins: There are any number of things that the state does to us that are burdensome in different ways. The state builds an airport near our house, most of us when tax time comes we feel like it's a burden when we have to pay taxes.Barry: But these aren't acts intended by the state to hurt you. The state doesn't want you to hurt when you pay your taxes-- if anything it wants you to feel good about it so you'll keep paying. In contrast, it wants you to hurt when you're in prison, that's why they build them that way. They could just secretly lodge the convicted at a four seasons hotel on a tropical island.?20:00?That would have the same effect for public safety, it might actually be cheaper, but the convicted wouldn't feel the pain the state wants them to feel.Zach Hoskins: It's a distinctive feature a punishment for it to be able to do what it needs to do-- it needs to be burdensome. The state's not merely implementing some measures that it foresees will be burdensome. And i think the other distinctive feature is that punishment also conveys censure.?Barry: The state wants you to hurt, to communicate to you and to everyone that this person did a bad thing. Hoskins thinks the social meaning of punishment is essential to it. Punishment is a public badge of shame that needs to be displayed on the person deserving it. Once we recognize that these are the two essential elements of punishment, we can begin to categorize the collateral consequences into those that are punishments and those that aren't, bypassing what legislators say about them completely.Zach Hoskins: One way in which measures might not be punishment would be if there's a clear risk reduction rationale to the measure.Barry: One example would be prohibiting convicted child abusers from getting a license to work with children like in teaching or child care.?Zach Hoskins: The state could say to that person okay you've paid your debt we're not going to continue to censure you for that thing. However, what you did in the past may be evidence that you might be a risk you might be a danger going forward and so we want to keep the public safe.Barry: However, just because a measure aims to reduce risk doesn't mean it's automatically justified, and it doesn't mean it's not also a punishment. Japanese American internment in World War II was there to reduce risk but it wasn't justified. Prisons are there to reduce risk, but they're also punishments. Hoskins believes that a great deal of collateral consequences, sold as protecting the public, are in fact punishments in disguise.Zach Hoskins: I'll just focus on voting restrictions. There is no plausible risk reductive rationale for voting restrictions--people have tried. Different people have suggested that people with criminal convictions might be more likely to vote for corrupt politicians, they might be more likely to vote for politicians who are going to weaken criminal justice laws, and therefore they shouldn't have a vote. There's just no empirical evidence to show that this is the case, and no real empirical evidence to show that as a class of people, people with criminal records are so much better at banding together to coordinate their votes than everybody else is, that this would ever actually make any difference. And in fact in the states that were more permissive about allowing voting their corruption levels were lower. So that seems to me like a case where when we're looking at what the function of these voting restrictions is, we can't tell a story about well they're just trying to prevent bad things from happening in the future. So now it looks like we fall back on the story that I actually think is more likely for voting restrictions which is they're part of the condemnation for someone who commits a crime. So you typically hear people say well that person just doesn't deserve the vote, or there's something wrong about a person with a criminal conviction having a vote that counts the same as my vote. Well that's more censuring, that's more condemnatory, and so that starts to me to look more like punishment.Barry: It isn't an argument that we should allow the formerly convicted to vote. It's an argument that when we prohibit them from doing so, it's a punishment, and so we need to see that consequence as part of their criminal sentence. The example of voting provides one test as to whether a measure which claims to reduce risk is just the punishment in disguise. If you find out that the measure in fact doesn't reduce risk and you still want it anyway, then it's a punishment. So many collateral consequences are like this. You take away student loans, public housing, and driver's licenses, and you say it's because you want to reduce the risk of convicted drug dealers selling to law abiding people in schools, streets, and public housing. But then it turns out the measure makes it likelier for the formerly convicted to break the law in order to make ends meet. But you say yeah but still they don't deserve government benefits anyway. Well then that should be your argument. Don't use the risk reduction rationale as a smokescreen. You want the formerly convicted to feel an extra burden as payback for their crimes. You want them punished a little on the outside in addition to the inside. Argue that it's deserved, and we can talk about?25:00??how it should be part of their sentence and subject to proportionality. That's only the first step of the test of the test.?Sometimes a measure really does have the effect of reducing risk, but it's still a punishment, because you're only imposing it on the formerly convicted. I hope this is obvious, but a lot of people who aren't convicted of crimes pose really high risks to public safety.?Zach Hoskins: this is a slightly contrived philosopher's case-- someone who posted videos online of abusing dogs but lives in a jurisdiction that has not yet made animal abuse a crime. Now they move to a new jurisdiction where this is a crime, and people see these videos. I mean that looks like a publicly available fairly compelling piece of evidence that this person is a danger.Barry: Add to the example the high risk that animal abusers have for committing other violent crimes. And that’s such a tiny example. We are confronted with videos of street brawling, police brutality, where the police department itself has a record of the violence some members of their force regularly inflict on the public. And then there's the trove of publicly available evidence about child sexual abuse at the Catholic Church. Lots of people who have not been convicted of anything pose a high risk to public safety, as higher risk as anyone who has been convicted. If your grounds for laws restricting an ex-felon's civil liberties is risk reduction, then those same laws should prohibit the freedoms of these people too. But we don't have laws like that. The threshold for passing a law, restricting an individual's civil liberties, when they haven't been convicted of anything, is very high. For people who have been convicted of felonies, even after they serve their prison term, there is no threshold-- you can just do it. Why the difference? The only answer is that you're still punishing them, they deserve it, they have a lesser moral status. So really, the collateral consequence is a punishment, not risk reduction.Zach Hoskins: I think what sometimes gets lost in discussions of punishment and collateral consequences is when you commit a crime, at least for people who believe that punishment can be justifiable, it must be that somehow you've altered your moral circumstance to make it okay to do to you things that we would normally think are not okay. What sometimes gets lost in that is the moral work that serving the term of punishment does. So that has to do some work as well. So when you serve that term of punishment, what I want to argue is we should take seriously the metaphor of paying your debt. And when you pay your debt, you basically earn your way back to being treated with all the rights and privileges of other members of the community.?I think you're right that effectively what the state is saying to people who have criminal records, even those who have served a term of punishment, is we don't have to respect your autonomy in the way we have to respect other people's autonomy. To do that is to continue to treat the person as though their moral circumstance is still changed. But that pushes us back to the question of-- what were they doing when they served the term of punishment?Barry: The second test as to whether some measure is really risk reductive, as opposed to some punishment in disguise, is whether you'd be willing to impose it on someone who hasn't been convicted but who poses just as high a risk. Given the two tests, it turns out that very few collateral consequences are justified solely on risk reductive grounds. Some of the temporary ones restricting gun possession for violent offenders and some occupational licensing restrictions passed the test. But none of the ones that increased risk of recidivism do, and none of the ones taking away public rights and benefits do/ These consequences are, as Judge Block thought, in fact,? punishments. That doesn't make them unjustified-- it makes them justifiable in a different way, in the way any punishment is justifiable. Is it fair to sentence someone to that punishment for that crime??Judge Block hopes to solve one problem with collateral consequences in this country. They weren't subject to judicial review, and they weren't subject to proportionality calculations. They were, in effect, invisible mandatory minimums imposed by legislators that were stacked on top of the official punishment handed out by judges. But the bigger problem we face with collateral consequences is that they exist at all. Most of the burdensome ones are permanent.?30:00??Life sentences of punishment on the outside ensuring that the formerly convicted are forever morally second class.?When is a punishment like that ever proportionate and for what crimes? That's a question I posed to Zachary Hoskins.One of the attempts at justifying permanent punishment would be on proportionality grounds right. So you've permanently wrecked a child, you've permanently affected a family as a result of that, we think it's disproportionate to put you in jail permanently, like you don't permanently lose all of your freedoms. But you can permanently lose a lot of them. You can permanently lose your autonomy. Is that a way of justifying certain collateral consequences in your view?Zachary Hoskins: There are people who say that we should determine proportionality by seeing how much harm was done to the victim. And if effectively you destroy a victim's life then your life should be destroyed. I think that one restriction on punishment that doesn't get talked about a lot but I think we should take it seriously is that the state should take seriously everybody's potential for reform and redemption. And it shouldn't treat people in ways that get in the way of that. It shouldn't to people in ways that tend to undermine the prospects of their reform and redemption Punishing people permanently, especially permanently with no hope of ever redeeming yourself or ever regaining your moral standing, your standing in society. I argue that it conveys a contemptuous message from the state that it says either we don't regard you as redeemable or we just don't care.Barry: A contemptuous message. Hoskins thinks that this is what is at the heart of the American practice of punishments without end. Contempt. There's a theory of moral responsibility. A lot of people who subscribe to retributive justice like it, it's the whole focus of next week's episode, it says that when someone has done something wrong to us and is responsible for it, anger, guilt, and resentment are the human emotions responsible for blame in everyday life. They're what underlie the justification of punishment in ordinary life. When you're rightfully angry at someone, it's rightful to return harm for harm. To make them feel the wrong they've done to you. And in ordinary life, these emotions are remedied by things like atonement, apology, acknowledgement. The theory says that criminal justice should be a reflection, a complete and direct reflection, of these everyday human emotions and human practices of blame and punishment. Hoskins is not a critic of this theory-- the theory of retributive justice. Instead, he thinks that criminal justice has been hijacked by a darker, more insidious human emotion, an emotion that doesn't have a place in the justice system. Contempt.Zachary Hoskins: This is one thing that differentiates contempt from say resentment. Contempt is typically person focused-- I have contempt for you as a person?33:48?contempt tends to pervade all of our interactions with a person. So it's very difficult to have contempt for a person, but then in certain context not to have contempt we tend to if we have contempt it's sort of person focused and pervasive. If I regard someone with contempt, I regard that person as deficient in some sense, as subpar in some fundamental sense, and this is how contempt is distinguished from anger or censure or other kinds of emotions or attitudes toward people, is that contempt involves a withdrawal. It involves a disengagement. So anger is very heated and engaged. Contempt is a sort of I'm done with you. There's no more room for properly blaming and redeeming and making amends and that sort of process is over. I think interpersonally that's troubling, but I think institutionally when it's your your state, your political community that's conveying that message, then I think it's especially troubling.Barry: All of the lifelong punishments that they can impose are contemptuous for Hoskins. Life without parole, the death penalty. And outside of the prison, one of the most contemptuous of collateral consequences for Hoskins is deportation or permanent exile. These are all ways of saying that you're not worth?35:00??any positive attention. You're not allowed a path toward redemption. We don't want you as our problem.?Zachary Hoskins: But i also think even measures that may not be permanent-- I think by taking away just the kind of tools that people who have criminal records need to rebuild their lives, housing, employment, welfare, effectively i think those can also communicate this contemptuous message that the state doesn't take their redemption seriously. doesn't care about their redemption.Barry: So I hear you saying that there are these further constraints on punishment. Not just proportionality but a certain kind of respect that the state should never treat people as having lost. Autonomy is one of them, redeemableness, whatever that is.Zachary Hoskins: Yeah that's exactly right. And in fact debate about collateral consequences has tended to center on things like well what are the effects of these different restrictions on reoffending-- rights, recidivism, we'll look at the racial disparities. I think all those considerations are very important but those reasons, there're contingent factors about the way these things are done. And what I wanted to do is ask would they be justifiable if they didn't have these negative effects. And in many cases I want to say yes they would be impermissible, even if they didn't have racially disparate impacts, even if they didn't have bad effects on reoffending rates, serving a term of punishment should do some moral work it's morally significant outside the context of serving that punishment which is where you pay your debt for your crime. You're entitled to the same rights and protections under the law that everybody else is entitled to.Barry: I think we as a society have had a healthy moral dialogue about permanent and irreversible criminal punishments. Things like the death penalty, life without the possibility of parole. We haven't come to a resolution, but everyone who is in the system, and all of us called to serve on juries are at least aware of the moral considerations. Somehow along the way though, we as a society have come to subject everyone who has committed a felony to a sentence they can never work off. We've done this through the law and we've done this through who we hire and who we prevent from being our neighbors. Even if you're not Zachary Hoskins, who believes that no crimes deserve lifelong punishment, I doubt you're someone who believes that all crimes do. When we come back, the side effects of having too many unjust collateral consequences. What happens when everyone in the system, prosecutors, defense attorneys, even judges, all decide to use their discretion to skirt the laws for moral reasons. The effect is a shadow justice system, unaccountable to the truth.?Chau: We'll return to the rest of Hi Phi nation after these messages.?Barry: I'm sure it wasn't the intent of lawmakers for collateral consequences to yield shorter prison sentences for the convicted, but here we are. Any judge with a fair moral compass is pretty much forced to that conclusion based on the arguments from double punishment and proportionality. But one researcher found another unintended side effect of the proliferation of collateral consequences. This one is system wide in criminal justice Thea Johnson: I'm Thea Johnson, I am an associate professor of law at the University of Maine School of Law.Barry: The moral qualms people have with collateral consequences hit a lot sooner than judges at sentencing. They hit prosecutors and defense attorneys also. When that happens, everyone in the system looks for a way to bypass the laws.Thea Johnson: A fictional plea is a plea of guilty to a crime that the defendant did not actually commit, for the purposes of avoiding a particular collateral consequence, like sex offender registration, federal immigration consequences, like deportation. I'm talking about defendants, not innocent defendants, but defendants who have committed some crime but for whatever reason they don't want to plead guilty to the crime that would match their actions. Instead, they want to plead guilty to something else that won't trigger in these additional penalties.Barry: fictional pleas are pervasive.?40:00?Every defense attorney I talk to says they happen so much they just call them pleas. It's not even worth naming. They're the norm, not the exception.Thea Johnson: So here's a real example from my research. Defendant is charged with a marijuana sale. Most drug cases will automatically trigger immigration consequences. And it's in those cases where defendants really need to figure out how to scrub the record of the drugs; they need to figure out how to make the drugs disappear. So the defense attorney and the prosecutor arrange a plea bargain to inhaling toxic vapors. Essentially huffing. Now huffing will not have immigration consequences. Another example, defendant is charged with a felony sex crime. That felony sex crime will carry sex offender registration. Because the defendant is living in homeless shelters and has a somewhat stable housing situation, he will lose his shelter housing. So in order to avoid sex offender registration, the parties get together and they decide to let him plead guilty to three misdemeanor sex offenses. And by pleading to the misdemeanors, he then avoids sex offender registration. But the prosecutor can then stack or run consecutive those sentences and so get a fairly serious sentence for the defendant. To be a fictional plea, according to Thea Johnson, there has to be a wide enough gap between the facts of the crime and the crime to which the defendant is pleading guilty. Two really common pleas are solicitation and misprision. They're kind of a go-to fiction for people arrested on felony drug crimes that carry heavy collateral consequences. Solicitation is when you get someone else to commit a crime, and misprision is failing to report a crime. There are handbooks on how to get felony drug crimes pled down to offenses like these. And then there are plea bargains that are so fictional the crimes aren't even real.Thea Johnson: A different type of fictional plea is defendants pleading guilty to non-existent crimes. Crimes for which they could not be convicted of in front of a jury because the crime doesn't exist. It does not exist in the statute book.Barry Lam: You're going to have to explain what that is how that is even possible.Thea: So let's say, for instance, defendant is charged with an intentional assault, and the parties decide that for whatever reason, to avoid a mandatory minimum, to avoid collateral consequences, to avoid immigration consequences, they want the defendant to plead guilty to an attempted reckless assault. Well there's no such thing as an attempted reckless assault in the law. You can't attempt to be reckless. And yet you can find many examples of courts accepting pleas to attempted reckless assault or attempted manslaughter, which carries a recklessness mens rea or mindset. They allow that because the parties come to some conclusion that that will benefit the defendant and it will benefit the prosecutor by ending the case in a favorable way. And they'll allow the defendant to plead to a crime which does not exist.Barry Lam: You might be wondering-- of course a defendant and a defense attorney would want a fictional plea if they can get it. But why would prosecutors and judges stand for it?Thea Johnson: They really don't believe that some of these punishments are appropriate. In the case of the prosecutor who agrees to plead one felony sex offense to three misdemeanor sex offenses the prosecutor really was concerned about all the consequences of sex offender registration that would flow for that particular defendant. Snother reason might be that it's efficient. They want to get the case done, defense wants to get the case done. Plea bargaining is very much a negotiation, it's about getting to yes, and this is a way to get to yes.Barry Lam: It's also a reason these things don't tend to go high up to appellate courts or the Supreme Court. Who's going to appeal a fictional plea, when everyone ends up feeling like they got what they wanted.Thea Johnson: I think with judges, they have very full dockets,?45:00?and to the extent that they can help facilitate pleas that will clear up their dockets and resolve cases in ways that we should remember, the defendant thinks is beneficial, the prosecutor thinks is beneficial, that's a net positive for the system.Barry: It's a win-win for everyone. Fictional pleas?yield happy judges, prosecutors, and many defendants don't have to carry the burden of lifetime punishments, skirting the moral problems we've been talking about all episode. Ehat's the cost then?The Johnson: Current fictional pleas become future truth. There's no way to say in the future that wasn't really what I did. That becomes the truth of what you did and what you committed and it follows you wherever you go if you're the defendant.Barry: And if you're a prosecutor or a judge or a legislator or citizen you should have no trust at all that the criminal justice system is giving you an accurate picture of crime in your community. You can't trust the official record to be a record of the truth.Thea Johnson: We're in a moment where we are turning to data to make decisions about the criminal justice system. If we don't have any sense that a conviction corresponds to truth, then how can we rely on that data to make decisions about the system and about how to reform the system.Barry: Just how many sexual assaults are there when you can plead from one act to three misdemeanors, or if you can plea solicitation? Just how much drug crime is there really when conviction rates are not reliable because of fictional pleas. And what about the bigger issues-- like whether there is any institution left in America whose aim is evidence and fact-finding.?Thea Johnson: I will say that I am concerned if the criminal justice system becomes a place where truth doesn't have value, or where we don't have as a foundational aim getting at the truth. If we just sort of let the system continue to function the way it is, fictional pleas is getting us closer to this idea that we're just going to give up on trials and we're going to give up on sort of truth-seeking. The criminal system has become both a black box that we can't really get access to and also a place where truth doesn't matter that much anymore. And I suppose I'm concerned about accepting that.Barry: Hi Phi Nation is written produced and edited by Barry Lam, associate professor of philosophy at Vassar College. Editorial Director for Slate podcasts is Gabriel Roth, senior managing producer for Slate podcasts is June Thomas, operations manager for Slate podcast is Asha Saluja editor for Slate Plus is me, Chau, our new executive producer for slate podcasts is Alicia Montgomery production assistance this season provided by Noa Mendoza-Goot. Visit for complete show notes soundtrack and reading list for every episode that's h-i-p-h-i nation dot org follow hi-fi nation on facebook and twitter and at the website for updates on stories and ideas. ................
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