January 4, 2022 • 23 mins
James Anderson and Jason discuss the shortcomings of public defense, sentencing disparities, and the RAND Corporation's work on racial equity in our criminal legal system.
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Episode Transcript
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Speaker 1 (00:01):
Welcome to Righteous Convictions with Jason Flam the podcast where
I speak with people who see the wrong in the
world and are driven to make it right. Today I
speak with the death penalty lawyer who pivoted to research
in order to affect more change, trading pleading to the
court for policy prescription. It was striking the frequency which
(00:22):
which race played a role in so many of these cases.
In Philadelphia, it was a huge issue in jury selection
and in fact, there was a videotape that was used
to train district attorneys essentially to strike almost all African
Americans off jury panels. And we work on a study
that showed the sort of effect of that in racially
disproportionate death sensing. As the director of the Justice Policy
(00:45):
Program and the Rand Institute of Civil Justice, he seeks
to form a more perfect legal system. James Anderson right
now on Righteous Convictions. Welcome back to Righteous Convictions. By
(01:14):
now you probably know this is a show where I
have the privilege of interviewing some of today's most prominent
and dynamic agents have changed people who are doing good
in the world just because they can. And today it's
going to be a good one. Today we have a
guy with a common name and a very uncommon life
who has been doing this work for about as long
(01:35):
as I have, but came at it from a very
different angle, and I am really excited. So without further ado,
I'm going to introduce James Anderson. James, Welcome to Righteous Convictions. Well,
thank you very much, Jason, and thanks for the very
kind introduction. And I'm gonna now embarrass James a little bit,
just gonna talk about a few of his achievements. He's
(01:56):
currently the director of the Justice Policy Program and the
and Institute for Civil Justice, as well as a senior
behavioral and social scientists at the RAND Corporation. For those
who don't have read, it's arguably the most respected organization
of its kind in the world. It has been so
for a long long time. But here's what blows me away.
Because I'm a college dropouts of the sounds even more amazing.
(02:16):
But Mr Anderson, our guest today, received a b A
and ethics, politics and economics, and a j d from
Yale University at his law school. Pretty good. He spent
a long time as a practicing capital defense lawyer meaning
death penalty pellet and habeas type of things, and is
now a leading change maker in the social justice field.
So how did this all begin? Where did you come from? Yeah, well,
(02:40):
so I went to college and I was interested in
the law and ended up going to law school. And
actually there was fortunate enough to hear Brian Stevenson speak,
and Brian Stevenson, you know, recently published Just Mercy, a
long time Definitely lawyer working in Alabama and Georgia and
a few other places. I didn't know much about definitely
at all, and you know, I wasn't as a quarter,
(03:00):
but really didn't know much about it. And he talked
some about, you know, some of the problems, and particularly said,
you know, there was this one case McClusky v. Kemp
that the United States Supreme Court had decided that essentially
said that, you know, racial discrimination and the administration of
the definitely didn't matter and didn't give rise to a
constitutional claim. And I thought that was truly wrong, right,
(03:21):
I thought he had he was just sort of exaggerating
for rhetorical effect. And so I went up to him
afterwards and said, oh, you know, that was you know,
really interesting talk. I learned a lot, But you know,
you said that there was this case that said that
race didn't matter, and the definitely And I said, surely
that's an exaggeration or you know, and he said, no, no,
you know, look it up. You know, sure enough. Of
course that's more or less what the case said, and
somewhat of confusing case and a lot of different interpretations,
(03:43):
but that's how it's often been interpreted, particularly by the
lower courts. So you know, that was mind blowing to me,
that pretty persuasive evidence of systemic racial discrimination, and the
application of Georgia's definitalty was essentially said to not be
a problem in the United States. And so I got
sort of more involved and worked down in Georgia with
Steve Bright one summer at the Southern Center for Human
(04:06):
Rights on a couple of definitety cases. And you know,
one year became two years, and the work was, of
course incredibly gratifying and quite interesting, and I end up
doing it for about ten years. Okay, so you graduated, Yeah,
you end up in Georgia, but then you end up
in Pennsylvania, where you had this illustrious run, as you know,
one of the few really great talented advocates for the
(04:29):
people on death row. I don't know how else to
say that sort of the Lord's work, right, I mean,
it doesn't get more profound. It was very interesting and
very gratifying, you know, and it was striking how we
would come to these cases after they had been litiged
for some time, and the quality of the trials was
just very poor, and the defense council were just super underprepared.
(04:54):
They didn't have resources, and they often told the judge
on the record, look, I'm I'm not prepared to go forward.
In the judge basically said, you know, too bad. The
level of representation in Pennsylvania, partly because it's still the
only state that doesn't have any state funded public defense,
so it's entirely provided by the counties, and in some
(05:15):
cases they've had sort of go to the lowest bidder,
you know, and pretty much throughout the level of defense
in these cases was just terrible. But from the position
I was taking up the cases post conviction, you know,
sort of ironically that was a good thing because there
were lots of errors that we could identify and you know,
have some hope, you know that the injustice would be
(05:35):
acknowledged and rectified. Right, It is ironic that if you're
going to have a bad lawyer. You're best off having
a really really bad lawyer, right, I mean, you don't
want is somebody in the middle. And what wasn't available
to any of these people was top notch, not just
legal help, but investigative help. And tell me more if
you would, about how it works in Pennsylvania. But I
know there are some states where you get five dollars
(05:59):
or thou and dollars to mount a defense in a
death penalty case for investigative work or whatever else. Of course,
that amount of money is basically useless in terms of
hiring experts are doing anything like that in the state,
of course, has unlimited resources in these cases. Was that
the case in Pennsylvania as well? Yes, now that's exactly right.
(06:19):
Some counties would have public defense systems, but the larger
counties often did, but you know, they were quite small
and quite underfunded, and the investigative resources that they typically
had were again very very limited, and many counties they
just used a court appointed system where a particular lawyer
would be appointed by the court and then that lawyer
would have to petition the judge to receive any kind
(06:42):
of investigative or expert funds, which are absolutely vital, and
so when those funds aren't available, those stories just don't
get told. Now we just go ahead and keep sentencing
people to death. I don't know, it's become like numbingly
routine in too many places. I mean, there's sort of
a again, sort of coming back to so these funny ironies.
(07:02):
I mean, the good thing about being sentenced to death again,
if it seems like an odd sense construction to even
begin a sense that begins that way. But was that,
at least in Pennsylvania, there would be some scrutiny of
both your conviction and sentence, and so there were federal
funds available to examine your sentence and your conviction as well.
(07:23):
That was not true for the thousands of people who
are Pennsylvania prisoners who were convicted of second degree murder
who will have life without parole sentences, and so the
resources for post conviction for those folks are you know,
quite limited, and so those cases just essentially are not
being examined with the scrutiny that the death polty cases were.
(07:44):
So I've certainly heard, you know, some of my clients say,
you know, thank god I got the death sends, because
otherwise all the problems with my conviction never would have
been uncovered. Yeah, I'm glad you brought that up, because
it is well a life sense of difficult of death
sends right, because if you get a die in prison,
it's still in effect, like I said, it's still capital punishment,
(08:06):
and yet you get no access to anything except maybe
a law library that you can go into and try
to figure it out yourself and then sort of good buying,
good luck. It's another undercovered and cruel aspect of our
system where we treat people's lives as totally disposable. The
other thing that was sort of striking was the frequency
(08:28):
which which race played a role in so many of
these cases. In Philadelphia, it was a huge issue in
jury selection, and in fact, there was a training videotape
that was used to train district attorneys essentially to strike
almost all African Americans off the jury panels. And we
worked on a study that showed the sort of effect
(08:49):
of that in terms of racially disproportionate death sensing. But
even in relatively rural parts of Pennsylvan there was one
case I remember where the district attorney argued and a
victim was white, the defendant was white, but the district
attorney argued in closing argument that the jury should convict
the defendant because he had friends who were African American
(09:11):
and he wasn't afraid of African Americans, and this showed
that he somehow was a bad person and therefore guilty
of murder. And it was just again sort of striking here.
You know, there was no obvious racial element of the case,
and yet race entered the process. You know, RAND is
(09:42):
such an interesting thing. You know Rand sounds bland, right,
maybe that's by design? Like what RAND is? Do they
make like paper products? Like like Rand? What is that like?
So can you give us just sort of a quick
overview of what RAND does in general? So, actually it
came out of World War two. And during World War
(10:04):
two there were a bunch of academics and listed for
the war effort. And then you know, the war ended,
and initially they were all going to sort of go
back to the various universities. And then actually the Ford
Foundation originally stepped in and provided some money to say, hey,
you know, we can potentially improve national defense policy if
(10:24):
we keep this group of folks together. And that's what
they did for about the next fifteen twenty years. And
then in the nineteen sixties RAN realized that hey, you know,
our quantitative approach and rigorous, objective, nonpartisan, really fact based
approach to research can be applied and should be applied
to the wide range of domestic issues as well. And
(10:47):
so since the sixties, you know, we've done a ton
of work, and I think it now it's about fifty
fifty pcent being a sort of national defense type work
and fifty being health policy, education policy, labor policy, obviously,
justice policy, you know, public health policy, community health policy,
environmental policy, and just really really incredibly wide range of projects.
(11:08):
And RAN really prides itself on making a difference in
the world and change policy, and so that part of ransmission,
you know, really appealed to me. So you went from
death Row to well academia right at the University of
Pittsburgh teaching, and now to the RAND they called the
(11:29):
RAMP Corporation. I never knew why with the RAND Research
Policy Group, you know, since joining here, I've gotten to
work on a really wide range of interesting projects, some
sort of coming right out of my work doing death
partly work. One of one of my projects was actually
looking at the effect of lawyers in Philadelphia on the
(11:49):
outcome of homicide cases. And it was sort of interesting.
I mean, everyone sort of assumes that having a good
lawyer makes a difference, but there was actually pretty limited
evidence for that claim, and some people actually sometimes doubted it.
And so we were able to take advantage of a
nice natural experiment in Philadelphia where one out of five
(12:10):
cases was being more or less randomly assigned to the
Public Defender's Office, which in Philadelphia was a very good office,
and four out of five cases were being assigned to
courterpointed lawyers who didn't have many resources, intended to take
on too many cases and were paid in such a
way that they were incentivized actually to take too many
cases to trial. So anyway, so we were able to,
(12:33):
using rigorous econometric tools, measure and show the difference that
that made in the outcome cases and showed that the
group of defendants who had received the better lawyers the
Public Defender's Office, which in Philadelphia was a very good office,
had much better outcomes, lower chances of conviction, much shorter sentences.
And so this led to a change in the policy
(12:55):
in Philadelphia to sort of end that disparity you had
another very interesting article called Measuring inter judge sentencing disparity
before and after the Federal Sentencing Guidelines. That's a topic
again that I think deserves more attention. So Ever, since
certainly the early seventies and even before then a number
of commentators had noted that it seemed awfully unfair that
(13:18):
the sentence you would receive depended quite a bit on
the judge you happen to get. And I've yet to
hear any sort of remotely satisfying theory of punishment or
theory of judging that you know, says that's a good thing.
So the Federal sense of guidelines were passed in actually
(13:40):
on a bipartisan basis, where the folks on the right
tended to think that federal sentencing was too short, and
folks on the left, we're concerned about a racial discrimination
and disparate sentences there, and so the idea was to
reduce federal judges discretion in sentences, and in so doing,
(14:01):
the sentences were also significantly increased as sort of part
of this process. In that particular study, it was interesting
and fund because I teamed up with the law school
professor an economist and measured rigorously for the first time.
I think the extent to which the Federal Sentence Guidelines
reduced inner judge disparity, and they did, in fact substantially
reduced energuge sensing disparity, but you know, at considerable cost
(14:23):
to just sort of generally increasing sentences across the board,
you know, and and also probably perpetuating a lot of
injustices and specific cases where more judicial discretion would be appropriate. Right,
they made a bad situation worse, but basically take away
the bottom, but not taking away the top and then
taking the chance that you would get a good judge
and throwing that out the window. And you know, I've
(14:44):
been on the board of Families Against Mandatory Minimums, which
is f a MM. I encourage people to go to
a m M DOT org. I've been on their board
for over a quarter century now, and it's a lot
of the work that we do. And you're right, it's
it's a horrible thing take judges ability to judge away.
And the other thing that it did that I think
wasn't fully thought through was that it significantly increased the
(15:06):
power of the prosecutors. Right, So if you reduce the
power of the judges, then the prosecutor has a lot
more power in the system, and certainly there was there
was sort of a striking increase in sentence length as
a results of the federal sense of guidelines and mandatory minimums,
and you know, I mean, there were a number of
different things going on in that era of federal criminal
(15:27):
justice and for that matter, in the States as well.
Right all it did really was take the power that
the judges had and give it to the prosecutor. And granted,
over eighty percent of judges are former prosecutors, but we'd
like to hope that once they put those robes on,
they become more impartial, more totally impartial. But now that
the prosecutors have all that power, it creates the trial
penalty and all sorts of other awful consequences. It was
(15:50):
a disastrous mistake that has devastated and not just individuals, families, communities,
and it needs to be done away with. We need
to keep judges back to our judges, and that we
need to like better judges. I saw that one of
(16:15):
the priority projects that ran right now is a project
on racial equity, something that's near and dear to my heart.
I mean, the idea is that it is important to
understand the racial and equitable implications of our research. So,
for example, not sort of globally either just sort of
not really discuss these issues at all, or just sort
(16:36):
of globally report cross tabs or are you know, the
statistical findings without really sort of trying to explore the
equitable implications of our findings. So RAND has started a
Center for Racial Equity Policy to sort of improve the
level of analysis, both externally and internally, to make sure
that RAND research is addressing these topics again, both in
(16:58):
terms of projects that are explicitly about race. Right, So
in many cases we're explicitly addressing and documenting, you know,
racial disperities and trying to really understand, well, okay, how
did these, how did these come about, where are these from?
What can we do about them? But also projects that
aren't sort of, on their face necessarily primarily about race.
I mean, the fundamouenttal research questions in the project may
have nothing to do with race, but there may be
(17:21):
important racial and equitable implications of the research that it's
important to look at and understand. At any given time,
there may be fifty or sixty projects ranging from gun
policy to police community relations, trying to improve those in
a bunch of different ways, trying to identify policies to
improve policing. You know, we've got a project that's trying
to use virtual reality to provide de escalation training to
(17:45):
smaller police forces, developing better drug policy, to correctional education.
We did some terrific work that showed how much money
providing education to prisoners ultimately saves states in the federal government.
You know, it's something like a tend to one ratio
for every dollar spent on correctional education, the whole system
and the country saves ten dollars on reduced recidivism costs.
(18:08):
But you know, it certainly is very gratifying for me
to be able to work with such great colleagues doing
such great work on so many important topics. I mean,
just project after project and researcher after researcher. It's it's
just really wonderful to work with such a very accomplished
and dedicated group of people. You love your work, and
it comes through. I can hear it in your voice,
(18:29):
and it's it's nice to hear that I feel the
same way about the work that I do. It's just
I wish we didn't have to do it, but that's
unfortunately not going to be a reality in the foreseeable future.
We're just gonna have to keep fighting together and that's
exactly what we will do. So with that being said,
I have a question that is my favorite question that
(18:51):
I asked each of our guests, which is, if you
had a magic wand and could fix one thing, what
would it be? Uh, well, I mean probably you know
I'm gonna have to ask you know, it's gonna have
a scope question, But well, we'll just kind of set
that aside um. Sure, I mean, making the world a
more equitable place, you know, would be pretty extraordinary, you know,
(19:13):
and and solve a whole bunch of other problems as well. Now, again,
how exactly you do that? I think I'll just put
on that one because it's such a complicated problem. But
in the shorter term, you know, trying to identify and document,
you know, some existing problems in the justice policy area
and try to identify ways that we can fix them,
(19:35):
because there are lots of policies that one can undertake,
is a good first step towards that ultimate goal of
trying to make the world a more equitable place. And
now before we go to our closing, I want to
invite our audience to tune in next week when we
speak with Ebany Underwood and believe me, this woman is
a force of nature. You've got to hear this interview.
Ebany took the experience of having her father locked up
(19:58):
parental incarceration to begin her life's work with We Got
Us Now, an organization that elevates the voices of those
like her to the forefront of the conversations about prison
and legal system reform. And now the closing of our
show is called Words of Wisdom. Were first of all,
of course, I thank you for joining us. Thank you
to the audience as well. This wouldn't be worth doing
without you. And then I'm gonna turn my microphone off,
(20:21):
leave my headphones on, kick back in my chair, and
just listen for anything else he feel is left to
be said. Okay. Um RAN's mission is to make the
world a better place through objective, nonpartisan research. And in
(20:42):
a world where they're sort of increasing political polarization at times,
that seems like a hopeless task, but I really don't
think it is, and I I really have faith, And
partly this comes from my time working in the courts,
where even in highly politicized, definitely cases, you know, if
(21:02):
you brought solid evidence to the right court, you can
get relief. And similarly, I at least like to think
that if you bring solid evidence to the American people,
they will not all the time, but at least some
of the time do the right thing and adopt the
right policy to make the world a better place. And
(21:24):
so I am ultimately optimistic about the ability of careful
policy making and careful research to improve the United States
and the world. This is, you know, this is a long, slow,
painful process, with many steps backwards as well as steps forward,
(21:47):
but I think it is the most reliable way to
make the world a better place. And it's sort of
piece by piece, brick by brick, you know, policy by policy,
and you know, sometimes policies that we think are going
to be wonderful turn out to have some unforeseen side effects.
But that's that's part of the process. Thank you for
(22:16):
listening to Righteous Convictions with Jason plom I'd like to
thank our production team Connor Hall, Jeff Claverne, and Kevin Wardis,
with research by Lava Robinson. The music in this production
was supplied by three time OSCAR nominated composer Jay Ralph.
Follow us on Instagram, Facebook, and Twitter at Lava for Good.
You can also follow me on TikTok and Instagram at
(22:38):
it's Jason Flom. Righteous Convictions with Jason Flom is a
production of Lava for Good podcasts and association with Say
Look Company Number one
Welcome to Righteous Convictions with Jason Flam the podcast where
I speak with people who see the wrong in the
world and are driven to make it right. Today I
speak with the death penalty lawyer who pivoted to research
in order to affect more change, trading pleading to the
court for policy prescription. It was striking the frequency which
(00:22):
which race played a role in so many of these cases.
In Philadelphia, it was a huge issue in jury selection
and in fact, there was a videotape that was used
to train district attorneys essentially to strike almost all African
Americans off jury panels. And we work on a study
that showed the sort of effect of that in racially
disproportionate death sensing. As the director of the Justice Policy
(00:45):
Program and the Rand Institute of Civil Justice, he seeks
to form a more perfect legal system. James Anderson right
now on Righteous Convictions. Welcome back to Righteous Convictions. By
(01:14):
now you probably know this is a show where I
have the privilege of interviewing some of today's most prominent
and dynamic agents have changed people who are doing good
in the world just because they can. And today it's
going to be a good one. Today we have a
guy with a common name and a very uncommon life
who has been doing this work for about as long
(01:35):
as I have, but came at it from a very
different angle, and I am really excited. So without further ado,
I'm going to introduce James Anderson. James, Welcome to Righteous Convictions. Well,
thank you very much, Jason, and thanks for the very
kind introduction. And I'm gonna now embarrass James a little bit,
just gonna talk about a few of his achievements. He's
(01:56):
currently the director of the Justice Policy Program and the
and Institute for Civil Justice, as well as a senior
behavioral and social scientists at the RAND Corporation. For those
who don't have read, it's arguably the most respected organization
of its kind in the world. It has been so
for a long long time. But here's what blows me away.
Because I'm a college dropouts of the sounds even more amazing.
(02:16):
But Mr Anderson, our guest today, received a b A
and ethics, politics and economics, and a j d from
Yale University at his law school. Pretty good. He spent
a long time as a practicing capital defense lawyer meaning
death penalty pellet and habeas type of things, and is
now a leading change maker in the social justice field.
So how did this all begin? Where did you come from? Yeah, well,
(02:40):
so I went to college and I was interested in
the law and ended up going to law school. And
actually there was fortunate enough to hear Brian Stevenson speak,
and Brian Stevenson, you know, recently published Just Mercy, a
long time Definitely lawyer working in Alabama and Georgia and
a few other places. I didn't know much about definitely
at all, and you know, I wasn't as a quarter,
(03:00):
but really didn't know much about it. And he talked
some about, you know, some of the problems, and particularly said,
you know, there was this one case McClusky v. Kemp
that the United States Supreme Court had decided that essentially
said that, you know, racial discrimination and the administration of
the definitely didn't matter and didn't give rise to a
constitutional claim. And I thought that was truly wrong, right,
(03:21):
I thought he had he was just sort of exaggerating
for rhetorical effect. And so I went up to him
afterwards and said, oh, you know, that was you know,
really interesting talk. I learned a lot, But you know,
you said that there was this case that said that
race didn't matter, and the definitely And I said, surely
that's an exaggeration or you know, and he said, no, no,
you know, look it up. You know, sure enough. Of
course that's more or less what the case said, and
somewhat of confusing case and a lot of different interpretations,
(03:43):
but that's how it's often been interpreted, particularly by the
lower courts. So you know, that was mind blowing to me,
that pretty persuasive evidence of systemic racial discrimination, and the
application of Georgia's definitalty was essentially said to not be
a problem in the United States. And so I got
sort of more involved and worked down in Georgia with
Steve Bright one summer at the Southern Center for Human
(04:06):
Rights on a couple of definitety cases. And you know,
one year became two years, and the work was, of
course incredibly gratifying and quite interesting, and I end up
doing it for about ten years. Okay, so you graduated, Yeah,
you end up in Georgia, but then you end up
in Pennsylvania, where you had this illustrious run, as you know,
one of the few really great talented advocates for the
(04:29):
people on death row. I don't know how else to
say that sort of the Lord's work, right, I mean,
it doesn't get more profound. It was very interesting and
very gratifying, you know, and it was striking how we
would come to these cases after they had been litiged
for some time, and the quality of the trials was
just very poor, and the defense council were just super underprepared.
(04:54):
They didn't have resources, and they often told the judge
on the record, look, I'm I'm not prepared to go forward.
In the judge basically said, you know, too bad. The
level of representation in Pennsylvania, partly because it's still the
only state that doesn't have any state funded public defense,
so it's entirely provided by the counties, and in some
(05:15):
cases they've had sort of go to the lowest bidder,
you know, and pretty much throughout the level of defense
in these cases was just terrible. But from the position
I was taking up the cases post conviction, you know,
sort of ironically that was a good thing because there
were lots of errors that we could identify and you know,
have some hope, you know that the injustice would be
(05:35):
acknowledged and rectified. Right, It is ironic that if you're
going to have a bad lawyer. You're best off having
a really really bad lawyer, right, I mean, you don't
want is somebody in the middle. And what wasn't available
to any of these people was top notch, not just
legal help, but investigative help. And tell me more if
you would, about how it works in Pennsylvania. But I
know there are some states where you get five dollars
(05:59):
or thou and dollars to mount a defense in a
death penalty case for investigative work or whatever else. Of course,
that amount of money is basically useless in terms of
hiring experts are doing anything like that in the state,
of course, has unlimited resources in these cases. Was that
the case in Pennsylvania as well? Yes, now that's exactly right.
(06:19):
Some counties would have public defense systems, but the larger
counties often did, but you know, they were quite small
and quite underfunded, and the investigative resources that they typically
had were again very very limited, and many counties they
just used a court appointed system where a particular lawyer
would be appointed by the court and then that lawyer
would have to petition the judge to receive any kind
(06:42):
of investigative or expert funds, which are absolutely vital, and
so when those funds aren't available, those stories just don't
get told. Now we just go ahead and keep sentencing
people to death. I don't know, it's become like numbingly
routine in too many places. I mean, there's sort of
a again, sort of coming back to so these funny ironies.
(07:02):
I mean, the good thing about being sentenced to death again,
if it seems like an odd sense construction to even
begin a sense that begins that way. But was that,
at least in Pennsylvania, there would be some scrutiny of
both your conviction and sentence, and so there were federal
funds available to examine your sentence and your conviction as well.
(07:23):
That was not true for the thousands of people who
are Pennsylvania prisoners who were convicted of second degree murder
who will have life without parole sentences, and so the
resources for post conviction for those folks are you know,
quite limited, and so those cases just essentially are not
being examined with the scrutiny that the death polty cases were.
(07:44):
So I've certainly heard, you know, some of my clients say,
you know, thank god I got the death sends, because
otherwise all the problems with my conviction never would have
been uncovered. Yeah, I'm glad you brought that up, because
it is well a life sense of difficult of death
sends right, because if you get a die in prison,
it's still in effect, like I said, it's still capital punishment,
(08:06):
and yet you get no access to anything except maybe
a law library that you can go into and try
to figure it out yourself and then sort of good buying,
good luck. It's another undercovered and cruel aspect of our
system where we treat people's lives as totally disposable. The
other thing that was sort of striking was the frequency
(08:28):
which which race played a role in so many of
these cases. In Philadelphia, it was a huge issue in
jury selection, and in fact, there was a training videotape
that was used to train district attorneys essentially to strike
almost all African Americans off the jury panels. And we
worked on a study that showed the sort of effect
(08:49):
of that in terms of racially disproportionate death sensing. But
even in relatively rural parts of Pennsylvan there was one
case I remember where the district attorney argued and a
victim was white, the defendant was white, but the district
attorney argued in closing argument that the jury should convict
the defendant because he had friends who were African American
(09:11):
and he wasn't afraid of African Americans, and this showed
that he somehow was a bad person and therefore guilty
of murder. And it was just again sort of striking here.
You know, there was no obvious racial element of the case,
and yet race entered the process. You know, RAND is
(09:42):
such an interesting thing. You know Rand sounds bland, right,
maybe that's by design? Like what RAND is? Do they
make like paper products? Like like Rand? What is that like?
So can you give us just sort of a quick
overview of what RAND does in general? So, actually it
came out of World War two. And during World War
(10:04):
two there were a bunch of academics and listed for
the war effort. And then you know, the war ended,
and initially they were all going to sort of go
back to the various universities. And then actually the Ford
Foundation originally stepped in and provided some money to say, hey,
you know, we can potentially improve national defense policy if
(10:24):
we keep this group of folks together. And that's what
they did for about the next fifteen twenty years. And
then in the nineteen sixties RAN realized that hey, you know,
our quantitative approach and rigorous, objective, nonpartisan, really fact based
approach to research can be applied and should be applied
to the wide range of domestic issues as well. And
(10:47):
so since the sixties, you know, we've done a ton
of work, and I think it now it's about fifty
fifty pcent being a sort of national defense type work
and fifty being health policy, education policy, labor policy, obviously,
justice policy, you know, public health policy, community health policy,
environmental policy, and just really really incredibly wide range of projects.
(11:08):
And RAN really prides itself on making a difference in
the world and change policy, and so that part of ransmission,
you know, really appealed to me. So you went from
death Row to well academia right at the University of
Pittsburgh teaching, and now to the RAND they called the
(11:29):
RAMP Corporation. I never knew why with the RAND Research
Policy Group, you know, since joining here, I've gotten to
work on a really wide range of interesting projects, some
sort of coming right out of my work doing death
partly work. One of one of my projects was actually
looking at the effect of lawyers in Philadelphia on the
(11:49):
outcome of homicide cases. And it was sort of interesting.
I mean, everyone sort of assumes that having a good
lawyer makes a difference, but there was actually pretty limited
evidence for that claim, and some people actually sometimes doubted it.
And so we were able to take advantage of a
nice natural experiment in Philadelphia where one out of five
(12:10):
cases was being more or less randomly assigned to the
Public Defender's Office, which in Philadelphia was a very good office,
and four out of five cases were being assigned to
courterpointed lawyers who didn't have many resources, intended to take
on too many cases and were paid in such a
way that they were incentivized actually to take too many
cases to trial. So anyway, so we were able to,
(12:33):
using rigorous econometric tools, measure and show the difference that
that made in the outcome cases and showed that the
group of defendants who had received the better lawyers the
Public Defender's Office, which in Philadelphia was a very good office,
had much better outcomes, lower chances of conviction, much shorter sentences.
And so this led to a change in the policy
(12:55):
in Philadelphia to sort of end that disparity you had
another very interesting article called Measuring inter judge sentencing disparity
before and after the Federal Sentencing Guidelines. That's a topic
again that I think deserves more attention. So Ever, since
certainly the early seventies and even before then a number
of commentators had noted that it seemed awfully unfair that
(13:18):
the sentence you would receive depended quite a bit on
the judge you happen to get. And I've yet to
hear any sort of remotely satisfying theory of punishment or
theory of judging that you know, says that's a good thing.
So the Federal sense of guidelines were passed in actually
(13:40):
on a bipartisan basis, where the folks on the right
tended to think that federal sentencing was too short, and
folks on the left, we're concerned about a racial discrimination
and disparate sentences there, and so the idea was to
reduce federal judges discretion in sentences, and in so doing,
(14:01):
the sentences were also significantly increased as sort of part
of this process. In that particular study, it was interesting
and fund because I teamed up with the law school
professor an economist and measured rigorously for the first time.
I think the extent to which the Federal Sentence Guidelines
reduced inner judge disparity, and they did, in fact substantially
reduced energuge sensing disparity, but you know, at considerable cost
(14:23):
to just sort of generally increasing sentences across the board,
you know, and and also probably perpetuating a lot of
injustices and specific cases where more judicial discretion would be appropriate. Right,
they made a bad situation worse, but basically take away
the bottom, but not taking away the top and then
taking the chance that you would get a good judge
and throwing that out the window. And you know, I've
(14:44):
been on the board of Families Against Mandatory Minimums, which
is f a MM. I encourage people to go to
a m M DOT org. I've been on their board
for over a quarter century now, and it's a lot
of the work that we do. And you're right, it's
it's a horrible thing take judges ability to judge away.
And the other thing that it did that I think
wasn't fully thought through was that it significantly increased the
(15:06):
power of the prosecutors. Right, So if you reduce the
power of the judges, then the prosecutor has a lot
more power in the system, and certainly there was there
was sort of a striking increase in sentence length as
a results of the federal sense of guidelines and mandatory minimums,
and you know, I mean, there were a number of
different things going on in that era of federal criminal
(15:27):
justice and for that matter, in the States as well.
Right all it did really was take the power that
the judges had and give it to the prosecutor. And granted,
over eighty percent of judges are former prosecutors, but we'd
like to hope that once they put those robes on,
they become more impartial, more totally impartial. But now that
the prosecutors have all that power, it creates the trial
penalty and all sorts of other awful consequences. It was
(15:50):
a disastrous mistake that has devastated and not just individuals, families, communities,
and it needs to be done away with. We need
to keep judges back to our judges, and that we
need to like better judges. I saw that one of
(16:15):
the priority projects that ran right now is a project
on racial equity, something that's near and dear to my heart.
I mean, the idea is that it is important to
understand the racial and equitable implications of our research. So,
for example, not sort of globally either just sort of
not really discuss these issues at all, or just sort
(16:36):
of globally report cross tabs or are you know, the
statistical findings without really sort of trying to explore the
equitable implications of our findings. So RAND has started a
Center for Racial Equity Policy to sort of improve the
level of analysis, both externally and internally, to make sure
that RAND research is addressing these topics again, both in
(16:58):
terms of projects that are explicitly about race. Right, So
in many cases we're explicitly addressing and documenting, you know,
racial disperities and trying to really understand, well, okay, how
did these, how did these come about, where are these from?
What can we do about them? But also projects that
aren't sort of, on their face necessarily primarily about race.
I mean, the fundamouenttal research questions in the project may
have nothing to do with race, but there may be
(17:21):
important racial and equitable implications of the research that it's
important to look at and understand. At any given time,
there may be fifty or sixty projects ranging from gun
policy to police community relations, trying to improve those in
a bunch of different ways, trying to identify policies to
improve policing. You know, we've got a project that's trying
to use virtual reality to provide de escalation training to
(17:45):
smaller police forces, developing better drug policy, to correctional education.
We did some terrific work that showed how much money
providing education to prisoners ultimately saves states in the federal government.
You know, it's something like a tend to one ratio
for every dollar spent on correctional education, the whole system
and the country saves ten dollars on reduced recidivism costs.
(18:08):
But you know, it certainly is very gratifying for me
to be able to work with such great colleagues doing
such great work on so many important topics. I mean,
just project after project and researcher after researcher. It's it's
just really wonderful to work with such a very accomplished
and dedicated group of people. You love your work, and
it comes through. I can hear it in your voice,
(18:29):
and it's it's nice to hear that I feel the
same way about the work that I do. It's just
I wish we didn't have to do it, but that's
unfortunately not going to be a reality in the foreseeable future.
We're just gonna have to keep fighting together and that's
exactly what we will do. So with that being said,
I have a question that is my favorite question that
(18:51):
I asked each of our guests, which is, if you
had a magic wand and could fix one thing, what
would it be? Uh, well, I mean probably you know
I'm gonna have to ask you know, it's gonna have
a scope question, But well, we'll just kind of set
that aside um. Sure, I mean, making the world a
more equitable place, you know, would be pretty extraordinary, you know,
(19:13):
and and solve a whole bunch of other problems as well. Now, again,
how exactly you do that? I think I'll just put
on that one because it's such a complicated problem. But
in the shorter term, you know, trying to identify and document,
you know, some existing problems in the justice policy area
and try to identify ways that we can fix them,
(19:35):
because there are lots of policies that one can undertake,
is a good first step towards that ultimate goal of
trying to make the world a more equitable place. And
now before we go to our closing, I want to
invite our audience to tune in next week when we
speak with Ebany Underwood and believe me, this woman is
a force of nature. You've got to hear this interview.
Ebany took the experience of having her father locked up
(19:58):
parental incarceration to begin her life's work with We Got
Us Now, an organization that elevates the voices of those
like her to the forefront of the conversations about prison
and legal system reform. And now the closing of our
show is called Words of Wisdom. Were first of all,
of course, I thank you for joining us. Thank you
to the audience as well. This wouldn't be worth doing
without you. And then I'm gonna turn my microphone off,
(20:21):
leave my headphones on, kick back in my chair, and
just listen for anything else he feel is left to
be said. Okay. Um RAN's mission is to make the
world a better place through objective, nonpartisan research. And in
(20:42):
a world where they're sort of increasing political polarization at times,
that seems like a hopeless task, but I really don't
think it is, and I I really have faith, And
partly this comes from my time working in the courts,
where even in highly politicized, definitely cases, you know, if
(21:02):
you brought solid evidence to the right court, you can
get relief. And similarly, I at least like to think
that if you bring solid evidence to the American people,
they will not all the time, but at least some
of the time do the right thing and adopt the
right policy to make the world a better place. And
(21:24):
so I am ultimately optimistic about the ability of careful
policy making and careful research to improve the United States
and the world. This is, you know, this is a long, slow,
painful process, with many steps backwards as well as steps forward,
(21:47):
but I think it is the most reliable way to
make the world a better place. And it's sort of
piece by piece, brick by brick, you know, policy by policy,
and you know, sometimes policies that we think are going
to be wonderful turn out to have some unforeseen side effects.
But that's that's part of the process. Thank you for
(22:16):
listening to Righteous Convictions with Jason plom I'd like to
thank our production team Connor Hall, Jeff Claverne, and Kevin Wardis,
with research by Lava Robinson. The music in this production
was supplied by three time OSCAR nominated composer Jay Ralph.
Follow us on Instagram, Facebook, and Twitter at Lava for Good.
You can also follow me on TikTok and Instagram at
(22:38):
it's Jason Flom. Righteous Convictions with Jason Flom is a
production of Lava for Good podcasts and association with Say
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