tv Author Discussion on the Legitimacy of Laws Legal Institutions CSPAN November 5, 2022 2:52pm-3:43pm EDT
is that know, what would we do and kim, as an actual organizer so it's like she she brings that organizing ethos to journalism and in a of ways that's what i do as well the kinds of conversations that i have with workers every week are just the kinds of conversations that a million different organizers never get their names on articles or books do every single day, which is a down talk to people listen to what they have to say without, you know, pushing an agenda on them. that is how you get people to start thinking differently about the narratives that are getting blasted at them on tv and radio and so on and so forth. if you want to combat the culture war from the ground up workers, whether they're at a coal in alabama, whether they're on the railroads, whether they're at amazon, whether they are at a dollar store in louisiana, the way to get through to them is to to them and talk to them and actually show that you care about them and keep showing up because then you build those relationships. they start to see, oh, well, if
this person who i like, who cares about me thinks differently from me, maybe like we can actually have a conversation about this. that happens a lot on shows. but again, like we're talking off people, we need all of us doing that work. we need all of us to keep showing up for each other and keep talking to each other with grace. right. and i think that there that way lies the path to salvation. there we go with grace. thank you very much. the books are for sale outside. welcome welcome. welcome. i'm here with two of my brilliant colleagues and a fantastic and fierce post-covid action lawyer and i am so excited to dive into texts and to start this conversation. please note that all the books are available for sale through a greenlight bookstore here at the law school.
so from the u.s. supreme court to the presidential administration from a local criminal courts, state election bureaus, americans of all political leanings are increasingly voicing skepticism about the legitimacy of our laws and our legal institutions. we have today authors william araiza to my immediate right wilfred codrington to in the middle, and then chris fabricant on the far. i guess you're left to discuss the current struggles to contend with, the legitimacy of our constitution, of our courts, and our legal institutions in this highly politically time. i want to spend just a few moments introducing, our authors and giving a quick snapshot of their books, and then we can dive into the conversation. professor arisa is the a august professor of law here, brooklyn law school after law school. he clerked for the ninth circuit and also souter of the u.s. supreme court.
he's the author of numerous scholarly articles and books on constitutional and administrative law today. he's sharing with us his text, rebuilding expertise, creating effective and trustworthy regulation in our age of doubt was published just this year at the nyu press. professor codrington, an assistant professor of law at brooklyn law school, he's also a fellow at, the brennan center of justice, and he is the coauthor of the people's 200 years 27 amendments and the promise of a more perfect union. it was published last year by the new press. the book aligns very much with his teaching here at the law school, which is on constitution, law, constitutional theory and, also election law. he's a first time book author but has published numerous articles in law review articles in journals, in law review articles, and has served as a legal contributor to various media outlets. on my far right your far left, we have chris fabricant is a new york city native and author of
junk and the american criminal justice system. he serves as the innocence projects director of strategic litigation and a former life. when i was a post-conviction capital lawyer, i had the privilege of meeting chris and his fabulous work when he was helping a case in tennessee. he is one of the nation's leading experts on forensic science and the criminal justice system. chris is featured in the netflix the innocence files, and his public commentary has published in virtually every major media outlet chris brings to his writing. over two decades of experience as a criminal defense post-conviction lawyer. so first, to give us a snapshot of rebuilding expertise as arises book it explains how government functions, including regulatory systems administrative law. he provides a history of the weakening faith in government time and encourages to rebuild
our faith in by cultivating administrate of expertise. next, we have the people's constitution. this is by wilfred codrington arrington. it details the evolution american democracy. it explains the amendment process and identify eyes reoccurring cycles that result it in constitutional change and. these are things that have happened reoccurring over time, such as discontent over u.s. supreme court decisions we might be experiencing some of that right now, dramatic political polarization again right now. so i'm excited to visit some of those themes. and then chris fabricant book junk science profiles three extremely compelling of prosecutors who relied on junk science to resolve convict individuals. these were three men that the innocence later helped secure their release. and chris chris profiles reveals the structural and procedural barriers that can prevent
wrongfully convicted people from obtaining post-conviction relief. i'd like to start off with professor. your book reveals, deep seated problems with government functioning. you describe public's loss in faith, government pointing to several reasons. most recently, the problematic response that the government had to the covid pandemic. earlier, u.s. involvement in vietnam, stagflation in the 1970s. you argue that relying on government regulatory system specifically can actually help restore faith. so why? sure. so before i start, me add my thanks to all of you for showing up on such a lousy. it is really heartening to see such a big crowd on such a day and in fact to talk about these topics that my colleagues and i be discussing. so there to to address alexis's question and maybe kind of take the idea more generally, we need
expertise we need expertise for the very simple reason that the problems that we confront as a nation and as a society and as a world are simply too complex to be addressed in any other way. the old systems and by old i mean, systems that were in place 50 or 60 or 80 or 100 years ago, simply not work. there has to be a strong, robust competent and also trusted corps of bureaucrats. and i use that word without irony whatsoever because that's what they are bureaucrats, but a core of bureaucrats who know what they're doing and have the resources, including the trust resources to address these really serious problems. now, alexis asked about democracy, how democracy and expertise can coexist and maybe even potentially reinforce each other. i try in the book to make the argument that expertise and democracy can, in end up reinforcing each and the way
simply do that is to insist that bureaucrat gets that the regulatory system more generally be responsive to the public's needs at the time that system needs to incorporate the preferences and the and the literally the expertise of the general public. i give one example in the book of the faa thinking about, you know, what, what sorts of regulatory issues it should prioritize that really something that i think it should go to the public and ask because it is that kind of foundational democratic sort of value choice issue. it's on that kind of issue that the public itself has its own expertise. at the same time, by engaging the public in, these, you know, in this decision making process at that stage where it's most appropriate rather than at a what you might call the more stage where it gets really technical, the public feels like it really has nothing to say.
engaging the public at that stage really can in both increase the agency's, if we define that term broadly, but also increase its or improve its democratic accountability credentials. so i think we can actually square the circle and the book makes an argument for how we can do that. in a very approachable way, i might add. likewise, chris, in your text, you profile specific failings of the criminal adjudication system detailing prosecutors use of junk science and the procedural rules that failed to exclude such such evidence which then leads to wrongfully convicted defendants. can we rely on the rules of evidence? can we rely the rules, existing rules of criminal procedure to protect people accused of crime? no. see, these are the two classes i teach. so i'm very in that. you know, one of the themes that i explore in the book is what i call the poor people's.
and you know what i mean by is that we have to look at when you're talking about rules or, you know, are not kind of core constitutional issues that are being the same way that my other panelists are. but they really rely on your fundamental to be convicted on reliable evidence and. that is, as we know from wrongful conviction has been again and again and again nearly half of all wrongful convictions are attributable, at least in part to the use of junk science. and we've this for a long, long time. and when i was writing the book, i wanted to go back and, take a look at various efforts that have been made to weed out unreliable so-called scientific evidence in the system broadly, because science is science, right? we have to look at both civil side and the criminal to see the way the courts have been handling use of scientific evidence, which of course, gets increasingly more and more part of our legal system every year. so what have been going on? if you look at late in the seventies and the eighties, the legal system in this country
exploded on the civil side was resolved, personal injury litigation towards product liability that became a whole industry and a cottage sprang up to support this type of litigation of experts that no longer actually working in their own fields, but became professional expert witnesses. and the only thing they did was support litigation that had never gone on before. and on the criminal side, after had the end of jim crow era and, the ratcheting up of the war drugs to that led mass incarceration of disproportionately black and brown people. what we was explosion of the legal system on the criminal side at the same time and also an increasing use of so-called scientific evidence evidence that had been used nearly a century. things like fingerprints and you know, probably you would call it ballistics evidence and tire treads and shoe prints and, all the rest of this stuff. corporate america, though, had getting sued successfully by a lot of unreliable evidence that had been being used. civil litigation and plaintiffs
were using a lot of speculative that was being passed off as scientific evidence. and the corporate bar was getting tired of it. and so they teed up a case called daubert to the states supreme court. it was a product liability case. and they what wanted was the supreme court to impose upon the courts their own duty to act as so-called gatekeepers. in other words, the courts were going to have to eat their broccoli. they were going to have to learn a little bit of science and apply a basic principles before they're going to introduce evidence into court. and they. they got a whole new standard that no longer were judges going to defer to the so-called relevant scientific community, but they're going to have to look at things like peer reviews and error rates and testable and basic fundamentals of science. so the criminal bar was very quiet during this litigation. you know, kind of like over the moon. maybe we'll get a good rule about science. that would be good because our clients are getting convicted on junk science every day.
so what happened is that the rule was phenomenally successful for civil litigators. my one of my bosses, peter neufeld, co-founder of the innocence project, did a study about ten years after the this case, and it showed that nearly 40% more exclusions of so-called expert or so-called scientific testimony on the civil side. but nothing had on the criminal side, nothing. prosecutors are always successful in getting whatever they wanted. defense attorneys almost never successfully able to get in their own expert witnesses. fast forward to 2018. i did a study with professor brandon garrett at duke law school and empirical study to look at what has changed because we now have, you know 30 years of work by the innocence project showing just how unreliable this evidence is and still nothing had and that prosecutors were virtually always successful in introducing forensic techniques known to lead to wrongful that the national academy sciences the most important scientific
entity in the country, has found to be, oh, paraphrase for them, junk science, right? they wouldn't say that. but i did. and nothing still changed. so it really boils down to who we care about and what we care about. and what we care about is money and life and liberty issues are secondary. and that's particularly those that are processed through our legal system. so no, you can't trust it. thank you wilfred. in some ways, your book deals with similar themes that the problems you identify can be fixed. but. but here your answer is little different by existing structural framework. so i think falls close into the camp of professor arise that we can rely on the existing structure more specifically you argue that there were problematic of the constitution as written and as a fix. subsequent framers gradually over time improved upon it by
drafting and later adopting new constitutional amendments, amendments that allow people, like us, to vote. can we continue to rely on the amendment process to advance progressive legal change? well, thank you for the question, and thank everyone here. brooklyn book festival, brooklyn law school for participating today. so i want to reframe your question a little bit and say, can we afford not to rely on progressive legal change? and the answer is no. look, my book really about amending the constitution, how we've taken this document that really half of the who crafted were slaveholders. right. so we have a very different conception about democracy, equality rights than the framers of the constitution and for mostly informed, we've amended the constitution to make it more progressive, more inclusive, more protective of democracy.
and so the broader sort of arc of constitutional change has a progressive one. and i think we've gotten to this point where people feel like it's unachievable, fruitless there's other ways we might go about this. and the fact of the matter is, those are definitely problems. but there are also problems that people faced in the past, past waves before they amended constitutions. so right now i've had professor who raised the idea of political polarization what we political polarization in previous periods right before we've amended the constitution we saw it in the progressive era and there was sort of like a split in both of the political parties and a sort of recalibration that allowed for us to amend the constitution to get for progressive amendments. we saw this in the civil rights era, right? it was southern democrats that were thwarting progressive change at the time and republicans who are helping to push forward constitute changes. now, the fact of the matter is, these are the ways we formally
amend the constitution going through this enormous structure requires us to get two thirds of the house of representatives, both to sign on to this draft a proposal, and then three quarters of the state legislators ratify that. but when we're not the constitution by these formal means, we're still amending the constitution through informal means. right. and most notably through the supreme court in canonical or anti canonical cases, seminal cases that change the structure of the constitution and the whole terrain. and so we can think about we talked about. dobbs right. say what you want it. that really just reframed the way we think about constitution law. say what you want about citizens, pro or con that changed the way we think about the political and participating in our democracy through speech, other forms of forms of action. and so the constitution is going to change. it's just going to change right now with a really conservative supermajority on the supreme
court. it's going to change in a in a conservative way, which is unlike how it's changed in the past, at least formally. and so if we don't do anything about it, that's what we're really going to get. and just to tie this in with the idea of expertise, one of the problems we get with informal constitutional change is we don't get the deliberation that is required and necessary of constitutional change when we change our constitution we really want this to be thoughtful thought through, sort of well vetted and sort of studied, but we're not looking to do that. and instead what we're getting is a supreme court, a super legislator. some would call it, doing these changes without sort of engaging the entire country in democracy as it requires. so really, alexis, i don't think we have an option, but in a time of a need. so the fact that the us supreme court that nowhere in the constitution is there a right to access. and so what do we do in the
short term? do we then turn to sort of state constitutions think it's really easy to forget that? you know, we actually 51 constitutions in this country and i and want to toss this question also to professor risa and to this idea that you know if the federal sort of standard bearer i know not every state has same standard can we rely on some states to provide greater protections to criminal? is there a state sort of regulatory regulatory system that we can rely on to offer the protections that we're not seeing at the federal level? so i'll. yeah. so i think. when we think about constitutionalism, we often get fixated on the idea of a national charter. and as alexis just said, there's 51 charters in this country. 52, i guess if we going to count the district of columbia and then but as i actually start to list those and we think about more of the reasons we need to be amending the constitution to
some of these people, we've been excluded for so long. even all those territories. exactly. exactly. so, yeah, i think state constitu are an alternative. one thing that's going on and something that's near and dear to my heart is getting rid of the electoral college, write the electoral. this thing that has existed since the beginning. it's failed early on. it fails again in different ways, which is to give presidents who don't win popular from the voters. and in in a job that is increasingly and the framers couldn't imagine how complex and complicated it would be. so one thing i'd like to do is get rid of that. there is a movement in the states right now. it's called national popular vote compact, and they are basically states are changing their laws, their own constitutions, to think about how they award their electors. so the constitution currently, as it's written, allows state legislators to allocate their electors as they see fit. now, most of them do it or all of them do it in some way or another, where based on the popular vote within state, some
have a like a little different play it. but the idea behind the compact that they're going to use their state laws to decide pre commit themselves to awarding their electors to winner of the national popular vote irrespective of who wins their state popular vote. now that's one way where you can get people to pre commit to change things of a constitutional. but there are other ways we can that too. but my, my, my one problem is and my caution here, these are inadequate because impermanent. right. so way or another, we're other. we think about to change the constitution through mega super statutes. well, the voting rights act was considered to be one of these massive constitutional. and now in this, the current supreme court term, we're going to see the third case in a trilogy that's been hacking at the voting rights act. so that we thought was a cure and things that we might think secure, including on the states or super statutes, as you might call them. they're not permanent. so we do need to get to the hard work of amending the constitution to enshrine
protections in our in our in our document so as a constitutional law matter. i tend like federalism. i know that's a very broad statement. and it's easy, you know, find examples of situations where i wouldn't necessarily like like reliance on states but as a as a regulatory law matter i tend to be less optimistic or hopeful about states. and i guess for a few reasons. first of all, frankly, a lot of the issues that have to be dealt with are, in fact, nationally scoped issues. you just can't have climate change regulation at the state level. you just can't have aviation regulation. take a an everyday example at a state level. these are national problems. second of all, this is going to sound snobbish, i guess. i think a lot of these problems are just so difficult that they require a concentrated core of knowledge rather than a dispersed core of knowledge. 51 different jurisdictions, 51
different state, epa is 51 different. state department of securities regulation. i just don't see the kind of robust being able, you know, being in wyoming or north carolina or any particular event on these sorry, i said 51 egos, 51 egos. yes. and also, i think. but but but i think maybe the perhaps the most important reason that i'm not optimistic about states as in in terms of regulation, is politics forward reason. and i can speculate about about the reasons. but for whatever reason at the federal level, there has been at least some pushback attempts to denigrate or de-emphasize expertise or demonstrate procedural how to take, you know, an example has been pretty surprisingly resistant to amendment and. that's, i think, a really good thing at the state level. state epas are amended, i think a fair amount if they're not
there are other statutes that state legislatures that really undermine the basic of administrative expertise. i'll give you one example and then just anything else to add. i'll just to i'll do it quickly. so, you know, there is a doctrine called the chevron doctrine that deals with much deference. an agency enjoys, when it interprets its own organic statute, for example, how much deference epa enjoys when it the clean air act at the state levels. that same level of deference has under serious and sustained attack for a long time and and and successful attack and in a lot of states agencies simply do not enjoy deference when they interpret their own organic statutes. and i think that's really really deeply unfortunate and think there is something about the political economy of state of states or state governments as opposed to the federal government that really me less optimistic about about state
regulatory apparatuses. and maybe i'll just kind of leave it at that for and chris, when i think about some of the greatest changes in the criminal legal system and criminal procedure much of it has started at the state level. and when the us court decided that people with intellectual disability could no longer be subject to capital punishment, they surveyed states and there was a national trend. when the us supreme court said that no longer can we subject under the age of 18 to the death penalty. they surveyed the state. do we have some sort of movement going on in state courts to limit what scientifically describe as junk science. well, i mean, just to zoom out a little bit when, you talk about federalism and the work of state courts, high courts and state constitutions. you know what much of my job at the innocence project is strategically engaging is an effort to change the law around the leading contributing factors are convictions so eyewitness
misidentification, junk science, false confessions, all of these kind of core things that have been used to wrongfully make people. and so i a lot of our amicus practice in the supreme court and five years ago, seven years ago, i would once in a while support a petition to supreme court because i thought maybe on sixth amendment issues. there are a couple you find five votes for an issue that really cared about and for the last five years, anytime people have come to me for you know we want to support this case or that case, you know, and these are innocent people by and large. right. you know, very plainly on the, you know, great facts, perfect facts and used to be good facts make good law. and then the reverse was true. but now, you know, i say is like, show me where you have five votes for this. i don't care how innocent your client is, you know, i mean, show where you got five votes, you know, and they will now take these really bad facts or great facts depending on what side on and not take a position that matters, but will deliberately
gut it and say it doesn't matter. right. if you look at the indecision, innocence matter. right? only process, only a fair trial. and then you look at what the the interpretation of due process in federal courts, and that's where innocent people go to die because of so much deference is given to state courts by the federal and by federal judiciary. as a result, supreme court precedent. so now all of the reform work that i focus on when i'm thinking ahead and designing litigation, state high courts. yeah. and how important every election is is massive right so you know you have a case, you know, or an issue that you really care about, right? so we're talking about trying to get better and the use of scientific. suddenly we have a new governor. we can pass a law like we have in texas where the junk science right which i write lot about in the book where it's the first law in the country where there's a path back into court for people who can demonstrate that
the so-called science that was used at trial has been discredited by the progress it's known now. it's state by state incremental change and further balkanization of the way that we treat people that are subjected to the criminal legal and sadly, i believe that you're right. these require national solutions. but i don't think politically possible anymore. you i mean, and so much of the litigation i do is in the deep, too. so then you're screwed in state court and you're screwed federal court, right? so really it's what do we care about? and the legal system seems to put the highest priority finality. so a case was adjudicated in the state court regardless of what sort of new evidence comes forward subsequently in post-conviction that the court wants to rely. on what the initial trial court found, which was a conviction. exactly. i mean, i devote a chapter on, you know, denying innocence in the age of and the principle of finality in the age of innocence. and really that has been the paramount legal consideration by
our courts for a long time as the jury verdict in and that's it. you know, you're entitled to a fair trial and no more. and this is why the innocence project and other similar organizations have been so disruptive and such a threat to the status quo, because that undermines the legitimacy of our entire criminal legal system when you're convicting innocent people because most used to be anyway people republicans democrats would agree that you shouldn't incarcerate innocent people shouldn't put innocent people to death. i'm not sure that you can really say that anymore. each you in many ways is is relying on the existing structure. and chris, even though you don't have faith and the rules of evidence in criminal procedure, you're you're still filing post-conviction briefs, you're still using the existing tools. and really, our discussion is about how is. it that we can maybe return to
have faith again in our legal institutions and our regulatory systems and each of offers prescriptions about suggestions in your book and and i want to give some hopefulness right to our despite fact that we have a decision like dobbs on abortion. the fact that we have a decision like sean versus martinez and jones which chris mentioned that limits the type of new evidence that a criminal defendant can bring into court after having litigated issues in state court. so if you can talk, about some of the intervention, some of the prescriptions in your book that can allow us to have faith in this system systems. sure. okay. so as i said in my in my first set of remarks, what a lot of the book attempts to find a way to do to harmonize these ideas of expertise and democracy. and so the obvious question, well, how do you do that? how did you then in this context and so i think in the regulatory context are a couple of ways. number one, start with maybe with the most obvious one, success has of buddies. and so i think if you can manage
to create successful regulatory programs, then you will find that those programs and the agencies that that promote end up getting more end up becoming more legitimate. now, that's an obvious one. we'll just do a better job and you know, you'll more support. so you have to think go beyond that. i mean, how do you actually make that happen? and i think one of the ways you make that happen is, you know, you pull some levers kind of at the institutional design level to try to incentivize these these good results that will then lead more to more democratically intimacy. so in the book, i talk about trying to don't attempt presidential control over bureaucratic output kind of leaving job more to oversimplify to leave the job more to the actual experts rather than to the politicians in the white house or even to politicians at the agency headquarters building. i also argue that courts should play a role here by calibrating their judicial review of agency
based on the extent to which the agency has used procedures that may well incent, that may well promote expertise. right. so if the agency of falls down on using the right procedures to promote to use expertise, then maybe the judicial review should be a little more skeptical, more stringent, and the reverse be true of the agency does something else. i also argue that there need to be reforms with regard to the use of information in administrative agencies or information should be a lot freer. in other words and not subject to the political pencil. that is to say to political. so some of you may remember i've never remember 14 years ago, james hansen, famous climate scientist at columbia, went to capitol hill and said, i disavow the testimony that is now being entered in the record because that testimony, in fact, cooked by my bosses at epa orbit,
nasa's wherever he happened to be. so i think there really need to be reforms with regard to information, how information is created and how it's disseminated. and then finally and this is maybe the best. well, second to last, agencies have to have their their staffing up. we are operating under a very, very thin civil service or with a very thin civil service. and there absolutely needs to be reformed. we need more bureaucrats and we need fewer contractors and outsourced jobs. finally, and this really is kind of the big one, you know, need to change the process by which agencies interact with the public the way the system runs. and this is, again, a big oversimplification but the way the process runs now is. agencies make some decisions about what they want to do. they embark on a technically very complex rulemaking. and at that point they ask the public, do you have anything
interesting add here? and of course, most members of the public don't because these are really issues. however, if the agency had sought out public input at earlier stages, maybe stages that are more politically fraught in terms of kind of making decision ins about which initiatives we should prioritize here. so i think i use the faa. i'm not sure i even gave you the example that i was talking that i had in mind. so how this how about the faa going to the public saying the following things? we have time and space for one big rulemaking this year about passenger rights. let's have a citizen jury convene and let's talk about whether you'd a rulemaking on tarmac versus a rulemaking on for baggage loss. now that's a very simple example but if can involve the public in making sorts of politically fraught decisions politically, fraught because they involve value choices, then basically the is in fact able to
participate in the process by which the agency makes its decision. as opposed to what? well, as opposed to starting a process kind of getting into the technical weeds and only then asking public if they have anything interesting to add which of course they likely want. and then, you know, the public walks away of feeling what that really wasn't much a process. and everyone sort of walks away dissatisfied. so i think if you can do these sorts of things, these sorts, these sorts of reforms, maybe you have a way of of squaring that circle that definitely would increase. and even the credibility of some of these agencies will or. chris yeah sure. so just quickly highlight three things which are several solutions we should be looking to, but i'm highlighting these three in particular because they with each other in a way to show how we can actually get to sustainable change. so one, the history has shown that social have been the leading sort of driver of constitutional change.
so we look at abolitionist movement, right that long preexisted the point when we got to the 13th amendment that outlawed slavery immediately and universally right the movements for suffrage whether it's black suffrage or women's suffrage that was very much part of a movement. right? women in several states were trying to the right to vote, but they were. and it actually continued push at the national level to get the 19th amendment secured. the movement for temperance. we ended up getting the prohibition amendment, the 18th amendment ill fated ill probably not the best example things but it did have a really long sustainable temperance movement was driving it and sort of led to like you're sort of like scorecards that they sort of movement behind it. the institutions that were working with it led to the score cards that we kind of of today that members of congress are checked against in terms of advocacy organizations. so social movements and obviously we to the civil rights era. and then you have like robust social movements on on looking
to change on several dimensions. so social movements and then relatedly civil society and the engagement, these sort of organizations. right. and so i mentioned the idea of the scorecard that was sort of developed around the temperance movement and the amendment, but you can think of all the great organizations that engaged with society and and led these sort of movements the naacp comes to mind sort of first and foremost in terms of the civil rights right with their district in to what they were doing in terms of strategic litigation and trying to find these test cases throughout the country that they could bring these amazing cases to challenge the status quo. was they i mean, they were also lobbying they had a district who might as well have been living on capitol hill. right. testifying for the range constitutional change, formal or sub constitutional are the informal ways to try to push this forward. so then you have social
movements, you have the engagement, civil society and then really is the academy honestly is a role for academics in this. right. we're not going to have these unless we have general ideas being generated in the academy. people who have the time, the privilege, honor and i argue the duty to think about what is ailing our democ and how we can sort of turn these big ideas or like one, come up with the big ideas what it could look like in our current constitutional sort of framework or we need to get out of our current constitutional framework into what that might look like in practice. so the implementation of these things and one person who comes to mind for me is murray. and we would not talking about the equal rights amendment if it weren't for pauli murray. she's talked the idea she wrote a seminal law review article called describing crow. right. so playing on the idea of jim crow, which was denying the rights to black americans throughout the country but particularly in the south, this idea of crow, which also existed
where women were not thought of anything but extend of their husbands and sort of male family. right. and she used this to help not only sort of propel ruth bader strategic litigation to use the 14th amendment for constitutional change to protect such sex discrimination against sex discrimination, but also push for the equal rights amendment, which we're still talking about today, something that is being debated at the d.c. circuit right now. right. so these ideas are interrelated social movements, engagement by civil society, and then the academy. and i think that that is one idea or one sort of a panoply of ideas that can help us get out of the malaise we're in now. thank you for. uplifting pauli murray, who is getting renewed attention. i think there is a great profile in the new yorker on within the last few years. that's probably with an eye if anyone's interested chris you know i always struggle for optimism in these types of talks that give something. yeah. one of the things though that i
think becoming much more part of mainstream thought. that the criminal legal system is and needs reform and that's become know for different reasons. you know on the right it's of a financial matter. it doesn't make financial sense. and on the left, you know, i think you know, these the arguments are i'm going to assume that you do the mass incarceration is a bad thing. right. we have you know 2.3 million people in this country in various forms of incarceration at any given time. by far the greatest in the world. and yet we're not a particularly safe. so locking up all these people is not working. plainly, the one of the things that i was heartened before the actual result of the 2016 election was that hillary clinton was forced apologize for her husband. criminal justice policies, which have led to a lot of what we've been talking about today. and so a lot of this goes down to the antiterrorism and effective death penalty act called adverse. this was passed during the clinton years. what it effectively did was sort of relief in or the ability to
get federal courts to review state court convictions. the overwhelming majority of crimes and particularly violent crimes are prosecuted in state court. that's also where overwhelming majority of wrongful convictions occur. many of those would have and could have been corrected by federal judges who have lifetime tenure, and they're more arm's length from the facts of those cases. and what the apa did was give all this power to the supreme court to define this statute and what is now today the law is that you can point to something that is clearly established supreme court precedent that was violated in your client's case, you can't get into federal court at all. and the way that that's been interpreted, it's been so restrictive now we talked about this other opinion that that you can't bring in new evidence in federal court to demonstrate your innocence of the way the supreme court is interpreting this law. so i think in light of this and i went back to where were
talking about the importance of elections. so if we have a and 2024 a blue wave crests and then there may be political momentum to doing away with that bar and epa is really the thing prevents so much injustice from being corrected at the federal level and the politics and i a chapter to this in my book if you're trying to overturn a conviction you have to bring in new evidence and you have to present that evidence in front of the same judge and the same prosecute her who wrongfully convicted you in the first place. right. so the confirmation bias on the, you know, whether or not this new evidence would altered the outcome is and in wait and it all the more difficult to get it overturned state court and because of epa. it's almost impossible to it overturned in federal court and these are really good factual cases. so my comes from maybe a political will depending on the
tide that will at least amend if not abolish at who. and i think it's also laypeople are becoming increasingly more aware of all the injustice that exist, the criminal legal system. and it's through uplifting stories like those of your clients when i think about, you know, the of serial and podcasts and the shift that we see in sort of true crime depictions on television, it's not just sort of law and order special victims unit as dominant sort of narrative of what a criminal legal system looks like and the fact that you can have that are wrongfully convicted, the fact that you have people may have engaged in criminal conduct, but we don't write them off. and people are worth more than the worst thing that they've ever done. and and those kind of shifting, i think, are critically important as people are thinking about what judges elect, what local prosecutors to elect. and i think that dovetails well with bill and wilfred's work about public engagement sharing expertise among people that can actively then participate in in
our legal systems and regulatory systems. so later afternoon, i'm somewhat biased here in addition to teaching evidence and crim pro, i'll teach a class in abolition in the spring and at 5 p.m. in this room we'll have a discussion on. abolition from thinkers and activists and it calls for as a theoretical framework calls for a different social and economic order in which police prisons no longer exist. so in many ways, abolition seeks dismantle existing legal and regulatory power structures, advance economic and racial inequality. and how do some of the inner some of the writings your book square with an abolitionist approach to social change. i'm happy to it's a little bit more difficult to think constitutional law and the way that the think about their movement because you know we're guided by a constitution it's not easy to just overthrow an
entire regime although that's how we our original constitution. right. it's michael klarman who wrote a book calling it the framers coup. but so, you know in constitutional law we're at least stuck that we have this existing old texts that people really kind of have idolatry. so at a certain point they venerated the point where like there's no problems here. and so we think so one of the things we need to do is sort of reframe that debate, right? the idea that this document is like sent down on stone tablet. it's this veneration has gotten to a point where it's helped get us stuck at this point where we won't want to change it because we think these people are too wise who did it or they might be repercussions if we open the door to amending the constitution and i think we need to sort of as people think about this to change that, say that maybe it is worth it maybe looking in light of history which is what my book tries to present it is a we're starting to see these things that tell us
it's time for constituted all change so there's that but i do want to just reiterate the importance of social movements because abolitionism for the criminal system. i was going to say criminal justice but it sort of beat my tongue a little bit for that system is very much in with the idea of social movements taking the lead on these things. right it does require broad participation from everyday people, people like you and me, people in here see the injustice and act upon it to pressure political leaders to try to engage broadly, to make sure that we get the solutions that are we deserve today. so i won't belabor point, because i think that they'll talk more about that at the of the event tonight. but i do think both social movements and of changing the way we think about the constitution as a sacred text is important to that sort of approach. it, you know, i you know, i wrote a book in oh five about the drug wars, satirical book, you know, i mean, and and at that time, i would not have believed that you could walk
right out front here and blow up the big fatty and walk around outside and nobody's going to bother you, right? i mean, that's that's incredible. you know, i mean, and and that's really like was in arraignments. i just took a bunch of people from the innocence project to arraignments to watch the other and i was struck by how much it changed. i was at the bronx defenders, you know, i mean, it to be like tens and 20, 30, 40 wrongful arrests every day. nonsense charges, you know, you saw bail reform. there were no marijuana arrests. it was really remarkable and it was totally, you know, falsified my hypothesis to everybody who had was thing. i was like, wow, this seems not as grossly just as it usually is. the and so you know when i first heard about abolitionism you know i mean as you know i think i probably had the same response that a lot of us have. you know, as i ask, what are we going do with all the rapists and murderers, right. you know, i mean, and kind of thinking, you know, i mean, and so even as you know, consider myself kind of left of ho chi minh still is like grappling with like know that concept.
but increasingly i find it having a you know if you really at the legitimacy of the criminal legal system you talk about the constitution they had all of these they built into the constitution slavery. right. you know, i mean, it's just like so that's not a legitimate document. right. know, i mean, plainly and so, you know, if you think about who were being cast waiting and why and what force, then abolition makes a lot of a lot of sense, you know, and i've represented really thousands of people in my career, thousands. and i would say of those thousands people very, very serious cases. right. and tiny handful, three or four, where i would say this person probably should be segregated from society. right. that this person is very likely to re-offend and really is antisocial in a way that really can't be contained. so that's based on a lot of training experience, you know, mean that. so i think it's a important conversation and. i think it's really important to push reform in this.
so if you dismantle the drug war, you know how much reduce capacity you would have in the criminal legal system. right. and if you stop poverty, right so there are many ways, you know, i think that people like me and the meet and then we have a much, much smaller footprint, you know, i mean and that's really what's important. i think from my perspective, the carceral would have a smaller footprint. yes mm hmm. yeah. so just think, i think relatively briefly, you know, it's easy, i guess as a first cut. as a first cut answer to question, to say, well, that just doesn't apply to the regulatory system. and in some ways that's right because, i mean, if you want a regulatory, then you're going to have a regulatory system and it does it means you're not going to abolish it. but i think it's a matter of degree. and what i would suggest is maybe thinking about the abolition frame in terms of the regulatory system, maybe we can think about it in terms of returning to a regulatory system. maybe maybe we once had that
maybe was, you know, closer to ideal than what we have now. and that doesn't abolishing it by means maybe it means restoring it in some ways. we used to have a regulatory system that actually worked pretty well and that americans had a great deal of confidence. and in 1964, i think was 78% of americans polled said they had either some or a great deal of trust in the federal government to do the right thing least most of the time. obviously not the case today. and so it wouldn't take you know, it wouldn't be a london skills revolution, but it would certainly be to scales of a pretty large scale of a lot of happened over the last several decades to get to i think you know would, be in a, you know, the kind of place that in the criminal system, abolitionists aspired to to so. but but i but i wouldn't call it abolition. yeah.