Feb. 9, 2018 - Rubin Report - Dave Rubin
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(dramatic music) | |
| As of this recording, almost a million of you watched my chat with Jordan Peterson and Ben Shapiro | ||
| last week on YouTube, and a couple hundred thousand more of you have listened to the audio podcast. | ||
| into the audio podcast. | ||
| While the mainstream media continues to spoon feed the masses soundbite clickbait, we're here doing some real proof of concept work to prove that you guys are a lot smarter than they think. | ||
| While mainstream media focuses on Trump's diet coke habit, we're here talking about the Marxist roots of postmodernism and the secular and religious arguments over where rights come I received a bunch of emails from you guys after the live stream saying that Jordan often says things that go over your head, but you actually go ahead and pause the video and do some research for yourself. | ||
| I'll be totally honest with you, sometimes he says things that fly by me as well, and while I usually try to pause him to clarify, obviously I can't always do that in the midst of a conversation. | ||
| While you're learning through these conversations, know that I'm learning right next to you. | ||
| After the Peterson Shapiro livestream, Jordan got in a well deserved nap and then spoke to a sold out crowd of 2,000 people at the Orpheum Theater here in LA. | ||
| Jordan was nice enough to let me introduce him as a special surprise guest to the audience, and I gotta tell you, it was truly the best reception I've ever received on stage. | ||
| I did a couple minutes of stand up, cracking jokes about lobsters and the importance of cleaning your room, but there was something beyond just the laughs that I could feel on the stage. | ||
| The room felt lit with intellect and curiosity. | ||
| Two thousand strangers coming together to hear a middle aged psychology professor talk about how fixing yourself is the only way to fix the world. | ||
| This simply wouldn't have happened even two years ago because so many of you who dare think differently were silenced by false cries of racism and bigotry. | ||
| People like Jordan and Ben are using their intellect to say what they believe and that in turn is showing millions of people out there that they can do the exact same thing. | ||
| Whether you like or hate Trump, this idea of revolution is directly related to his election. | ||
| Everything is up in the air right now, from our political institutions, to our educational institutions, to our media institutions. | ||
| As Eric Weinstein and I discussed a few months back, perhaps some of us would have preferred less upheaval to get us to address the problems with these institutions, but perhaps that more selective, tactful upheaval never happens. | ||
| As I said to Eric, he wanted a panther in a china shop, but all that was available was the bull. | ||
| As the Rolling Stones taught us, you can't always get what you want, but you get what you need. | ||
| As most of you probably have already seen, we followed up our chat with Peterson and Shapiro with the brothers Weinstein, Eric and Brett. | ||
| It was their first public appearance together ever, and I have to say that my brain is still in recovery mode from taking in so many high level important ideas. | ||
| If the dial of ideas was turned to low for the last few years, it's quickly moving into the hot position. | ||
| The dial is moving because the conversations we're having here are finally starting to leak out into the rest of the world. | ||
| That's why thousands of you are showing up at Jordan Peterson events and at live Sam Harris podcasts. | ||
| And by the way, Sam and Jordan disagree on pretty much everything, especially the most fundamental existential questions that exist. | ||
| Yet we're all on the same side because the only real enemy is the authoritarians who want to control us so that they can have us silenced. | ||
| Once you realize that, you'll suddenly find yourself with many more allies and many less enemies. | ||
| So it probably goes without saying that I'm feeling incredibly positive about the direction things are heading, and I hope that you are too. | ||
| This month we're going to continue having real conversations with people who are truly affecting the world with their thoughts and their actions. | ||
| We've got a five time bank robber who became a Georgetown law professor. | ||
| We've got a former head of FEMA. | ||
| And we've got a nuclear power expert running for governor of California. | ||
| Also, I'm thrilled to share with you that we're doing 5 shows in 5 days with 5 experts on 5 different Presidents of the United States to celebrate Presidents Week. | ||
| From some founders like Jefferson, Adams and Madison to JFK and Lincoln, the stories of our past are as relevant as ever as we fight for the liberty of today. | ||
| Oh, and yes, we'll be doing plenty more of the three-person sit-downs as well. | ||
| Who do you want sitting down across from each other? | ||
| Let us know in the comments right down below. | ||
| After all, there's an idea revolution happening right now, and it may not be televised, | ||
| but it's definitely gonna be streamed. | ||
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(upbeat music) | |
| We're continuing our partnership with Learn Liberty this week, | ||
| and joining me today is an associate professor of law at Georgetown Law School, | ||
| as well as the founder of PrisonProfessors.com. | ||
| Sean Hopwood, welcome to The Rubin Report. | ||
| Hey, thanks for having me. | ||
| So I gotta tell you, man, I have been in partnership with Learn Liberty for about a year and a half or so, and it's a great partnership. | ||
| They send me a list of great professors and academics from all over the country. | ||
| They say if you wanna talk to any of these people, we'll make them available easy enough. | ||
| You have by far the craziest bio of anyone that they have passed along to me. | ||
| I suspect you know that in advance. | ||
| You don't have many public intellectuals who have gone to federal prison for robbing banks. | ||
| You are the first one out of the long... I mean they've given us lists of hundreds of people that we select out of. | ||
| I've gotten used to being in the freak show. | ||
| At one point it used to bother me, but I tend to embrace it now. | ||
| So yes, you spent 12 years in a federal prison for bank robbery. | ||
| We're obviously going to have to hear that story. | ||
| Should I be concerned at all that this is in my house, you've now seen my security system and everything else? | ||
| I think you'll be okay. | ||
| Yeah, when I took a meeting while you were sitting in the green room, I thought maybe he could be doing some stuff. | ||
| Yeah, yeah, probably emailing with students. | ||
| All right. | ||
| That's my new life these days. | ||
| That's your new life. | ||
| You have cleaned up, you're wearing a suit, you've gone legit, as they say. | ||
| I've cleaned up, I brought my First Amendment socks with me. | ||
| Yeah, yeah. | ||
| Oh, giving the finger to the man. | ||
| That's right. | ||
| I'm a big believer in the First Amendment. | ||
| I'm pretty much a First Amendment absolutist. | ||
| Me too. | ||
| All right, well then we're in good company here. | ||
| All right, so here we go. | ||
| So let's just start with the big story. | ||
| You've robbed a bank. | ||
| What are you doing? | ||
| Yeah, robbed five of them. | ||
| What was I doing? | ||
| I was a young 20-year-old man who had no purpose in life and did not weigh out the consequences of my actions on myself. | ||
| So it's not hard to realize that I wasn't really thinking about the consequences of my actions on anyone else. | ||
| And everyone always wants to, what was the big reason why? | ||
| And the reason is I was young and 20 and stupid. | ||
| And part of my redemption out of that was just growing up. | ||
| All right, so just tell me how this even happens. | ||
| When does the idea of I'll rob a bank, like you can be young and misguide and everything else, and do graffiti, you might steal some stuff from the candy store, robbing a bank, different level. | ||
| Yeah, no, that's right. | ||
| A friend of mine invited me to the bar in my hometown, sprawling metropolis of 2,500 people in rural Nebraska, and said, hey, what do you think about robbing a bank? | ||
| And most people would have said, no, you're crazy, laugh, done anything. | ||
| And my response was, that sounds like a great idea. | ||
| And so we discussed it over beers. | ||
| And I don't think either one of us thought we were going to actually do it that night, but we started taking steps. | ||
| And then once we got into it, it was kind of took me on a downward spiral. | ||
|
unidentified
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Yeah. | |
| So from that conversation to the first robbery, how long was that? | ||
| Probably six months. | ||
| We had to hype ourselves up to actually do it. | ||
| Yeah, so what were those conversations like? | ||
| I mean, were there multiple plans of how to go about doing this? | ||
| Was this all like the way you see it in Old Western, just showing up at the teller with the mask? | ||
| Yeah, we planned it out. | ||
| We had stolen a car, went to the bank, ran in the bank with guns, yelled at everyone, grabbed as much money as we could. | ||
| We never intended to hurt anyone. | ||
| The guns were there pretty much for show. | ||
| And then we left and dumped the stolen car and got into a grain truck. | ||
| Because this was August in Nebraska and no one's gonna think about bank robbers being in a grain truck. | ||
| And we drove away. | ||
| And you did this five times. | ||
| Yeah, you know, once we started doing it, I had to use drugs and alcohol to kind of Get over the fact that I had a lot of guilt. | ||
| It's not like I didn't know this was wrong. | ||
| And so once we got into it, we started spending money. | ||
| When you make easy money, it's easy to spend it. | ||
| It just was a year of trying to party. | ||
| That's fascinating. | ||
| So you get all this money, and now the guilt of the action is now the financial part that's fueling your need to do it again. | ||
| Yeah, and I was going through depression and some other issues, and I just, I needed somebody to say, what are you doing? | ||
| I never really got that and the guys I were with were all in the same place. | ||
| Early 20s, didn't have a job. | ||
| Didn't know what they wanted to do with their life. | ||
| And we kind of fueled each other for this year-long spree. | ||
| Yeah, putting aside the drugs for a second, I mean, what about the rush of just doing it? | ||
| I would imagine, you know, even though it's a criminal act, obviously, but just like getting away with something that sounds so crazy. | ||
| Yeah, no, it's not really a rush. | ||
| Every time you go on the bank, everything in your body is telling you, do not do this. | ||
| And you kind of have to shut that off. | ||
| And you kind of have to shut rational thought down. Because if it was rational, you would not be doing it. | ||
| If you were thinking rationally, you would not walk into a bank, because you know, at the | ||
| end of the day, I got less than $200,000 for all those banks. I served 11 years in prison | ||
| and ended up having to pay all the money back anyway. And so, rationally, it didn't | ||
| make much sense from a cost-benefit Right, so if you're going to get caught, this maybe isn't the best idea in the world. | ||
| Well, this is one of the big reasons why we impose long sentences on people in this country, is this belief in general deterrence. | ||
| If I give you a 20-year sentence, it's going to deter everyone else. | ||
| All the literature says that that doesn't actually happen. | ||
| The people that commit crimes, or a lot of it, is young men 18 to 25. | ||
| These are not people that weigh out the consequences. | ||
| Drug addiction, alcoholism, mental health issues, again, not people that weigh out the consequences of their actions. | ||
| But even if they did, let's just pretend they did, what would they have to do to find out how long they would be sentenced for a particular crime? | ||
| They would have to find one of 5,000 federal statutes that sets the mandatory minimum and maximum penalties. | ||
| Then they'd have to read a 500 page guideline manual that judges and lawyers misapply every day. | ||
| To think anyone's actually doing that is ludicrous. | ||
| I never met one person 11 years in prison who knew how much time they were facing. | ||
| But this is the primary argument that people like the Attorney General And the tough-on-crime crowd believes we should pose long sentences because it will deter everyone else. | ||
| Yeah, so this is what you've really devoted your life to since, and I wanna get to all that. | ||
| Obviously, and we just briefly spoke about the Attorney General. | ||
| I wanna talk about him, because I'm frustrated about some stuff as well. | ||
| Okay, so how much time took place for those five bank robberies? | ||
| What kind of time frame are we looking at? | ||
| Less than a year. | ||
| Less than a year, so within a year. | ||
| Okay, now you get caught. | ||
| You end up in a federal prison for, I thought it was 12, you said 11, but maybe that's- 12 years, three months was the sentence, but I got good time for behaving in prison. | ||
| So I served less than 11 years. | ||
| Okay, so less than 11 years. | ||
| Just tell me what that process, even just tell me first what that first day of showing up at a federal prison is like. | ||
| It's not what you would think. | ||
| It's not Orange is the New Black? | ||
| It's not Orange is the New Black. | ||
| The first day in prison and the first week in prison felt like freedom. | ||
| And the reason I say that is I was moved around like many people that are pre-trial from county jail to county jail. | ||
| Where you're locked down maybe 20 hours out of the day. | ||
| And when I got to prison, I could actually go outside. | ||
| I hadn't been outside in nine months. | ||
| Wow. | ||
| When I got to prison, I could go outside. | ||
| I could go to the library. | ||
| I could pick out books. | ||
| I could do something to occupy my mind. | ||
| And so the first couple weeks in prison, outside of the part of being scared to death, felt like more freedom. | ||
| Huh. | ||
| What was the scary part beyond just being incarcerated? | ||
| Just all the physical threats? | ||
| Physical threats, threats of sexual assault. | ||
| I watched a lot of people with medical issues die in federal prison because they weren't adequately treated. | ||
| The real punishment is you're cut off from all your family and community ties. | ||
| Which is a problem, because we know that people that are able to maintain community and family ties is key for people coming out of prison. | ||
| Especially if you come out of prison and you get a job, and you lose the job or get fired, if you don't have family or some sort of community to fall back on, that's usually when people go back to committing crimes. | ||
| Right, and that's part of the reason of high rates of recidivism and all of this stuff. | ||
| Yeah, the rates of recidivism in this country are not good. | ||
| They range from 45% to 75%. | ||
| We have some state prison systems that within five years, everyone leaving the prison, 75% of them will come back. | ||
| I mean, that's just mind-blowing. | ||
| Like, putting everything else aside that we're gonna talk about for the next hour, just the idea that you put people here to punish them for this crime, and then more than half, in many cases, and you're saying sometimes significantly more, end up back there, man. | ||
| I mean, what a failure, what a true failure. | ||
| I mean, government programs that fail three out of four times, and no one reevaluates it. | ||
| Is disturbing. | ||
| Yeah. | ||
| You know, anyone who has an outdate and is going to come out of prison, we should be trying to rehabilitate those people for a number of reasons. | ||
| One, public safety. | ||
| We do not want people coming out of prison and committing new crimes, new victims. | ||
| It costs a lot of money to re-prosecute. | ||
| You got to pay for the prosecutor, the judge, the public defender, and then their incarceration. | ||
| So you got that issue, but you also have an issue with, we want people to come back and lead law-abiding, successful lives. | ||
| And if you just warehouse somebody for 10 years, and then you kick them out to the streets with no or little support, and no family or community ties, and then you expect a miracle to happen. | ||
| And then when it doesn't, we say, oh, you were evil, because you were gonna fail and go back to prison, commit a new crime anyway. | ||
| Yeah, now you were truly the aberration in the system, because you have a little bit of a Shawshank kinda story here, because Andy Dufresne took things into his own hands, in a couple different ways, legally and by digging the tunnel, but you started getting into law. | ||
| This is fascinating to me. | ||
| Yeah, I got a job at the Prison Law Library, and for the first couple months, All I did was hand out the books. | ||
| They were big, they were thick, they were intimidating. | ||
| When I did pull one down off the shelves and read it, it felt like it was written in another language. | ||
| Right. | ||
| Who was reading the books? | ||
| I mean, was everyone there trying to solve their case? | ||
| Yeah, there were people. | ||
| There weren't a lot, but there were people trying to fight their case, especially in federal prison when a lot of people were getting 20, 30-year mandatory minimums for a handful of crack cocaine. | ||
| So people are trying to fight their cases and I didn't want anything to do with that until June 26 of 2000. | ||
| The Supreme Court handed down a decision called Apprend A.V. | ||
| New Jersey. | ||
| I, like everyone else in federal prison, thought that this might apply to the federal sentencing guidelines. | ||
| So I started learning the law on my own. | ||
| I was never able to get any relief for myself, but what I found was I enjoyed solving this legal puzzle and kind of writing out the solution. | ||
| So I started helping other people in prison. | ||
| Keep going. | ||
| Then what happened after that? | ||
| This is where it gets good that then leads up to your career now and your whole life. | ||
| Yeah, I started writing memos for People, friends of mine, they're lawyers, saying, hey, check out these issues and here's some case law. | ||
| The lawyers oftentimes would be like, yeah, whatever. | ||
| I mean, did people think you were nuts? | ||
| Oh yeah, they did, they did. | ||
| What did the other prisoners think? | ||
| Well, I mean, they don't know good legal work from bad. | ||
| So many of them had bad lawyers to begin with, and they were desperate, so they would help me. | ||
| And I finally started to write a brief or two, and we would file post-conviction motions. | ||
| And the third legal brief I ever prepared was for a friend of mine named John Fellers. | ||
| Who was filing what's called a petition for writ of certiorari to the United States Supreme Court. | ||
| I didn't know a great deal about the Supreme Court, but I knew it was different than filing in other courts. | ||
| That court gets 8,000 petitions, 7,000 petitions a year. | ||
| They grant 70 to 80 cases. | ||
| Got a 1% chance. | ||
| They grant 70 to 80 cases. | ||
|
unidentified
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Wow! | |
| You've got a 1% chance. | ||
| But the 1% is for lawyers filing briefs to the court. | ||
| It is a different matter when you are filing pro se as an indigent prisoner with no lawyer and the prisoner's name is on the front cover. | ||
| The chance of getting one of those heard is about 1% of 1%. | ||
| Wow. | ||
| Do you know how many times that was done before you? | ||
| I think it's been done 20 times. | ||
| Wow. | ||
| 25 times since the 1950s. | ||
| Not a lot. | ||
| Yeah. | ||
| So, you know, I didn't think a great deal about John's case. | ||
| I thought we were right on the issues and I thought the issues were important. | ||
| John transferred to another prison and I forgot about his case until one morning at 6.30 in the morning a friend of mine came running and screaming out of the housing unit, Sean! | ||
| Sean! | ||
| You know, let's be in federal prison, I thought. | ||
| What did I say to him yesterday? | ||
| He wants to come fight me at 6.30 in the morning. | ||
| Usually when people are running and screaming at each other in federal prison, it's not a good sign. | ||
| But you don't normally go to a fight carrying a newspaper in your hand, and what he had was a copy of the USA Today saying that the court had granted John Feller's case. | ||
| How unlikely that was, given John had filed without a lawyer, and it actually quoted from the brief that I had pecked out on a prison typewriter. | ||
| I knew that was a big deal. | ||
| Did I know that it would lead to doing this work long-term? | ||
| No. | ||
| Did I know I was gonna go to law school or become a lawyer? | ||
| No, and I certainly never thought I would end up as a law professor at Georgetown. | ||
| Yeah, so what happened right after that? | ||
| I mean, did the prison administrators go, man, this guy's onto something here. | ||
| The big break for John Fellers and myself was that an attorney took the case over, and not just any attorney. | ||
| His name's Seth Waxman. | ||
| He's the former Solicitor General of the United States and one of the top appellate lawyers in the country. | ||
| He took the case, and I think most people with his background, Harvard undergrad, Yale Law School, clerked for federal judges, worked at the Department of Justice, was the Solicitor General. | ||
| Would have said, hey, good job Mr. Jailhouse Lawyer without a bachelor's degree, great work, we'll take it from here. | ||
| And yet he did the exact opposite. | ||
| They would send in, he and his firm, Wilmer Hale, would send in drafts of the brief, I would mark up it with notes, and I would send it back out. | ||
| One point, I had a conference call in my counselor's office with Seth and three other lawyers the week before oral arguments. | ||
| And Seth asked me, Sean, can you think of any questions that the justices might ask that we haven't thought about? | ||
| And I'm sitting there thinking, I'm like, I have been self-learning the law for 18 months. | ||
| I've never even taken freshman English. | ||
| No, I have no idea what the court's going to ask you, and they started laughing, but it was quite the experience. | ||
| What do you make of, I mean, it's fascinating that Waxman was willing to do this. | ||
| Do you think it was truly he was trying to get your insight as a prisoner? | ||
| I mean, obviously he saw a good legal mind, even if it was a novice at the time. | ||
| Do you think there was also just like a PR element to that as well? | ||
| Like, I'm gonna stick with this guy and there's some value there too? | ||
| I think he was curious. | ||
| I think he was curious that he had looked at this petition that was typed on a prison typewriter and had been granted and he thought it was a really good work product and he was surprised when he discovered that it had been prepared by a federal prisoner with no background in the law whatsoever who had just kind of been picking this up on his own and and i think he thought that there was value there and and you know he became a mentor to me we won the case nine to zero uh... and he has been a good friend | ||
| He introduced me a couple months ago at the D.C. | ||
| Bar Gala as I won Young Lawyer of the Year Award, and Seth walked up there and introduced me to the crowd, and we were just sitting there at the table thinking, things have come full circle for us. | ||
| Yeah, it's so funny, because you're a young guy, the idea of typing this thing up on a typewriter, just that alone, do they have whiteout in the prison? | ||
| Yeah. | ||
| Oh, there's whiteout? | ||
| Yeah. | ||
| You'd think you could trade that, because I feel like there's some value to this. | ||
| There's probably things you can do with Whiteout. | ||
| Oh yeah, yeah, yeah. | ||
| I typed up a lot of things on a prison typewriter. | ||
| Almost all the briefs I prepared. | ||
| I never was allowed to touch a computer while I was incarcerated. | ||
| So when I get out in 2008, I had never been on the internet. | ||
|
unidentified
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Incredible. | |
| Never seen an iPhone, an iPad, an iPod. | ||
| One of the things that I struggled was finding a job. | ||
| It was 2008, it was the height of the recession. | ||
| No one was finding work, let alone the bank robber that just did 11 years in federal prison. | ||
| Yeah, tell me about that day when they officially say, okay, you're getting out a little early, and then what is it like when you're actually putting on, are you literally putting on the clothes that you walked in with that they saved for you? | ||
| That's sort of the image that we have, right? | ||
| Somebody had sent me clothes. | ||
| My brother picked me up to take me to the halfway house. | ||
| I still had six months of custody with the BOP, but I was going to serve it at the halfway house across the river from Nebraska and Council Bluffs, Iowa. | ||
| And my brother picks me up and we drive. | ||
| And we go to a Walmart, and I needed to pick up toothpaste, and I remember just being stuck in the Walmart in an aisle because there was a wall of toothpaste, and I had not had choice for over a decade, and it was overwhelming. | ||
| And I'm not one that stresses or gets a great deal of anxiety, but I can tell you my first 30 days at the halfway house, I was consuming 4,000 to 5,000 calories a day and losing weight. | ||
| Wow. | ||
| Just because of the anxiety of trying to figure out this new world. | ||
| Yeah. | ||
| You know, one of the places, my big break was getting a job with Cockle Legal Briefs, this company in Omaha that helps lawyers all over the country file briefs to the U.S. | ||
| Supreme Court. | ||
| They had asked me, I told them I had this reference letter from Seth Waxman that really impressed them. | ||
| I didn't tell them the rest of the story. | ||
| Yeah, yeah. | ||
| Don't ask where I was for the last 11 years. | ||
| Yeah, they said, send us a PDF. | ||
| I didn't know what a PDF was. | ||
| No one else in the halfway house did either. | ||
| So when I walk into the interview, I have to pull this reference letter out of my pocket and hand it to them. | ||
| And you know, if that costs me that job, I'm not sitting here today. | ||
| So tell me about that. | ||
| So now you're, oh, you know what? | ||
| Let's just do a little more on prison itself and then we'll move into everything that you're working on now. | ||
| I think when we think of prison, so much of it is just what we see in TV and movies. | ||
| I watched Oz years ago. | ||
| I watch Orange is the New Black now. | ||
| We think of just so much crime actually in prison, which sounds like it should be the reverse of the way it is, but yet there is. | ||
| How much of that did you see in the federal system? | ||
| I saw more drugs in federal prison than I ever saw outside. | ||
| As someone that was doing drugs before you went in. | ||
| Yeah, and there were several guards that were federally indicted during my time in prison. | ||
| It's kind of ironic to me that you have a prison with two fences with razor wire around it and really high security and we can't keep the drugs out of federal prison. | ||
| How are we ever going to do that? | ||
| For an entire country. | ||
| That's why the war on drugs will never be successful. | ||
| Was there a real difference in the type of prisoner that was there for, obviously there's some, well, bank robbery's not considered a white, that's not a white collar crime, right? | ||
| No, it's a violent crime. | ||
| It's a violent crime, right, of course. | ||
| But is there a difference between, okay, so you have someone that's murderers and rapists, and then there's sort of a lesser violent crime, something like a bank robber, versus just the people that, No. | ||
| did drugs, either sold, but I'm really talking about the people who just did drugs. | ||
| Was there a real sort of separation between those two types of people? | ||
| No. | ||
| What I saw in prison was there was a small sliver of people who were dangerous and who would be very | ||
| difficult to reform without a lot of behavioral changes. | ||
| But it's a very small sliver. | ||
| Most of the people I saw, especially people for drug crimes, most of them were doing drugs and selling drugs to support their habit. | ||
| And they just needed a year or two of being clean. | ||
| The problem is they would get clean after two years and realize, oh, I've got 18 more years to do in federal prison. | ||
| I also just saw a lot of guys that, you know, were just regular guys that made bad choices and had amazing talents and had the capacity to get out and lead law-abiding, successful lives, but they needed a little support and they needed some incentives to take rehabilitation programming, and there wasn't a lot of programming at the prison. | ||
| Yeah, all right, now let's shift that. | ||
| So you leave prison, you get your first legit gig. | ||
| So what actually was your job, your first job? | ||
| Yeah, so I consulted with lawyers every day on the phone about filing their briefs in the U.S. | ||
| Supreme Court. | ||
| And that first year was difficult for the people that worked at Cockle. | ||
| It was difficult for my wife. | ||
| I went from an environment with nothing but guys that were in federal prison for 11 years to an office. | ||
| of almost all women, and was with my wife, and I talked like a prisoner, I acted like a prisoner, and they had to really sand off some rough edges that first year. | ||
| Yeah, what's that, I mean, it's just a lot of fucks? | ||
| I mean, is that it? | ||
| Oh, yeah, well, you know, I mean, so I would get frustrated when a lawyer would call me up and say, hey, I've got this petition due in two days, and I would say, well, good, send it here, we'll help get you it filed. | ||
| Well, I haven't written it yet. | ||
| And, you know, they're representing someone who's got a 30-year mandatory minimum. | ||
| That would make me mad. | ||
| And one time I got called in to the office manager and she said, Sean, you know, our whole job here is customer service, so you can't really tell lawyers to get their shit together over the phone. | ||
| Just little things like that that, you know, I had been in a different environment and it took me a while to adapt. | ||
| Yeah, well I think clearly that adaptation is what has led to some of your success. | ||
| How much did you see lawyers that were just part of the machine, that kind of weren't doing anything, wasting a lot of time so they could bill people, where for you it was like, I found this information, now I wanna help as many people as possible and get things to happen in a timely manner, et cetera? | ||
| I see lots of lawyers who their clients are a source of revenue for them. | ||
| Um, you know, that happens every day and in every field, not just criminal law. | ||
|
unidentified
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Sure. | |
| But I also see a lot of lawyers who are very passionate and advocates for their clients who do a lot of things for their clients that they're not getting paid for. | ||
| And, you know, those lawyers I admire because, you know, it's not easy to represent criminal defendants in the American criminal justice system. | ||
| Yeah. | ||
| So when did you get into teaching? | ||
| When did you decide to make that move? | ||
| Well, first I went to law school, and then after that I decided that my first job I'd like to clerk for a federal judge. | ||
| And had a lot of people tell me, that may not be able to happen for you, Sean. | ||
| You've done well in law school, but there may be some people that | ||
| will not think that you should be clerking. | ||
| And I also got some advice from people when I was in law school about, | ||
| if you do apply for a federal clerkship, only apply to Democrat appointees. | ||
| Republican appointees will not give you the time of day, given your background. | ||
| Interesting. | ||
| And yet, almost every judge that interviewed me or was interested in me was a Republican appointee. | ||
| And ultimately it was Judge Janice Rogers Brown who was one of the most conservative judges on the D.C. | ||
| Circuit. | ||
| She's no longer a judge now. | ||
| It was her that hired me. | ||
| Former bank robber to come be her clerk at the second most important court in the country. | ||
| Yeah, so I wanna obviously get into your time there, but what do you make of that? | ||
| That statement that you just said, that people said, well, it'll probably be a Democrat, but it turned out to be a Republican. | ||
| Well, I think people don't realize that. | ||
| I think for a lot of conservatives, they really, redemption stories resonate with them, whether it's the faith aspect or just, You know, they probably view me as a pick-yourself-up-by-the-bootstrap story, which that's not entirely accurate, because if I don't have people like Seth Waxman and my wife, none of this happens. | ||
| But I think that resonated with them, and they, you know, I had lots of judges who wanted to give me an opportunity. | ||
| Yeah, and now basically you are helping a lot of young people get that opportunity. | ||
| Yes, yes. | ||
| I call chambers of federal judges all the time to try and get my students clerkships. | ||
| Yeah. | ||
| And so, you know, I spent a year clerking and I got to see kind of how the sausage is made at an appellate court. | ||
| What was the most mind-blowing part of that? | ||
| Were there things that you saw that you were like, wow, this is really messed up? | ||
| And this will probably lead us to a lot of the issues that you're fighting about all the time. | ||
| Well, I was surprised sometimes at the level of advocacy. | ||
| Even on a court in Washington, D.C. | ||
| that's viewed as the second most important court in the country, a lot of times the advocacy was really bad, especially in criminal cases. | ||
| You mean the public defenders? | ||
| Public defenders, but even privately retained lawyers. | ||
| At least public defenders care, and so they won't just check it in. | ||
| But I saw privately retained lawyers that would file things that were incomprehensible. | ||
| I also saw government agencies that did that. | ||
| So you know, I mean at the DC Supreme Court. | ||
| Circuit you get a lot of administrative law decisions. | ||
| I felt like I needed an acronym chart. | ||
| EPA and NLRB and the dreaded, the worst was FERC. | ||
| No one wanted FERC cases. | ||
| Should I even ask? | ||
| Federal Energy Regulatory Commission. | ||
| Anytime someone wants to build a pipeline, FERC is involved. | ||
| Anytime someone wants to do nuclear energy or electric energy, FERC is involved and they're constantly being sued. | ||
| And they're not the most exciting cases in the world. | ||
| Right, so to that point though, how much did you see, you're talking about the sausage being made, how much did you see of just sort of like a corroded system, like just a lot of nonsense that didn't need to be there, you know, just like a lot of brush in the way? | ||
| Well, I think the law is way too complex, but... | ||
| I was was astounded at the judges on the DC Circuit. | ||
| These are incredibly smart people who really care and I was impressed by all of them. | ||
| Just their dedication to the work and trying to find right answers and so many of How we think about courts is politically based on divided decisions between conservatives and liberals. | ||
| But for most of those cases we had at the D.C. | ||
| Circuit, it was not a political issue. | ||
| And so it was an issue that basically all the judges were trying to just find the right answer. | ||
| Yeah, after being around this, after being in prison and part of that system and then, you know, working with judges and now teaching and all that, how much do you think politics sort of seeps into all of this? | ||
| Do you think people are, judges, I'm talking about lawyers, everybody, do you think, public defenders, do you think people are able to remove their own political biases? | ||
| No, of course not. | ||
| Of course not. | ||
| I see politics plays a big role in everything, even the courts, and I don't think anyone would disagree with that. | ||
| What I would say is that, again, there's a large number of cases that don't involve that, that are pretty straightforward, and that is the bulk of federal courts' docket. | ||
| It's just we tend to focus on the big case, especially at the Supreme Court, the five to four decisions. | ||
| Sure. | ||
| And we don't realize that there are a whole lot of unanimous decisions and a lot of collegiality on the court. | ||
| Except for in the big political cases. | ||
| Yeah. | ||
| So there are a couple issues that are sort of your pet issues now that are very personal to you, obviously. | ||
| So mandatory minimums. | ||
| You are not a fan, to say the least. | ||
| Awful. | ||
|
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Awful. | |
| Just describe what they are first. | ||
| So mandatory minimums are where Congress sets a particular mandatory floor for the judge has to impose that sentence. | ||
| And I'll give you an example of one of the worst ones. | ||
| There is a statute that says if you use a firearm during a crime of violence or a drug trafficking crime, you get five years. | ||
| Consecutive to whatever else you get, whether it's bank robbery, drug crime, and then every second time you... Wait, wait, it's consecutive, so this is happening at the same time no matter what. | ||
| So if you get three years for the robberies and that's five years for the gun, you're gonna do eight years. | ||
| The second time you use it. | ||
| Oh, that seems not consecutive. | ||
| I would have thought they're sort of built on top of each other, like you're serving both at the same time. | ||
| No, no, you serve one, and then you serve the other. | ||
| And then you get charged with a second use of the firearm. | ||
| It's 25 years. | ||
| Had that played out for me, and had I gone to trial, I would have had five bank robberies and these five gun charges. | ||
| I pled guilty to the five bank robberies and one gun charge. | ||
| My sentence was twelve years three months. | ||
| If I had gone to trial and been convicted of the five gun charges, I would have received a sentence of ninety two years and three months. | ||
| The judge would have had to impose it. | ||
| There's a very well-known case of Weldon Angelos, a man in Utah who had a young family, was selling marijuana to support his young kids and Made three small sales of marijuana while having a gun, and he ends up getting sentenced to 55 years. | ||
| He's now been released. | ||
| I know other people, I've got a good friend who's named Adam Claussen, who did nine robberies, went to trial, and the only difference between his case and my case is, I had a good lawyer, he didn't. | ||
| I had a reasonable prosecutor, he didn't. | ||
| I pled guilty, he exercised his right to a jury trial, and as a result, he got a sentence of 213 years in federal prison. | ||
|
unidentified
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Wow. | |
| Even though no one was physically hurt in the robberies. | ||
| That makes no sense to me. | ||
| Yeah, so for as misguided as, obviously, you would argue these laws are, the counter-argument would be that this is going to deter people. | ||
| I think that's what the counter-argument is, but as you said before, nobody understands this stuff, so have they done studies on that? | ||
| Do they have any sense of what that is? | ||
| Oh yeah, the literature all says that the thing that deters people is whether or not they're gonna get caught. | ||
| Not the length of the sentence. | ||
| No one's thinking about the punishment when they're committing crimes. | ||
| And so you're getting very little deterrent effect. | ||
| And so then the question is, well, why do we impose mandatory minimums? | ||
| And the government would say, well, we need mandatory minimums to get people to plead guilty. | ||
| Well, we have a problem in the federal system with too many people plead guilty. | ||
| Ninety-seven percent. | ||
| And that shouldn't be our primary focus, and what I see... Wait, why is that so high, 97%? | ||
| Because the punishments are so high. | ||
| If you are offered three years, and you might be innocent or have a triable case, and you're offered a plea deal of three years, but if you go to trial you're gonna get 20, what would you do? | ||
| Even if you're innocent, what would you do? | ||
| You'd probably take the three years. | ||
| Because the consequences are so severe. | ||
| So all of these people that got these ridiculously high punishments, at first when I started seeing them I thought maybe there is a connection to race or socioeconomic class. | ||
| But really what I see are people that exercise their constitutional right to a jury trial. | ||
| Get thrown in prison for the rest of their lives. | ||
| Simply because they did that. | ||
| And you know, the jury trial right is the only right that's both contained in the body of the Constitution and in the Bill of Rights. | ||
| Founders thought that this was a pretty important thing. | ||
| Yeah, so basically these laws, the system is sort of forcing you to not use your constitutional rights. | ||
| I mean, that's really fascinating. | ||
| It's what they call a trial penalty. | ||
| If you go to trial, You will get crushed because the Department of Justice has 5,000 federal statutes. | ||
| Many of them contain mandatory minimum punishments. | ||
| Think about that. | ||
| 5,000 things that you could potentially do that would warrant putting you in prison or jail. | ||
| I'd argue that the United States Congress does not value your liberty if there are 5,000 things that they think are so serious that you could go to prison for. | ||
| Yeah, I thought you were going to say there's 5,000 things the United States Congress could be in jail for. | ||
| Well, yeah, I mean, I think most people break federal law all the time and don't know it. | ||
| Like what, for example? | ||
| People that omit something material when they're selling something on Craigslist or eBay. | ||
| That's wire fraud. | ||
| I can tell you the last three presidents of the United States committed a federal felony. | ||
| There's a statute that says if you use or abuse drugs, any drug listed under the Controlled Substance Act, and then possess a firearm, it's like you're a felon in possession of a firearm. | ||
| President Clinton, what did he say? | ||
| I smoked but I didn't inhale. | ||
| President Bush admitted to using drugs and so did President Obama and all three of them have possessed firearms since then. | ||
| They could have been convicted and sentenced up to 10 years in federal prison. | ||
| So we have a Congress that has passed 5,000 things and write these really broad statutes, and when they do that, what they pass is no longer the law, because what is the law is whatever your local United States assistant attorney decides to prosecute. | ||
| That's the law, not what Congress passes, because Congress has criminalized everything but really decided nothing. | ||
| Okay, so the whole prison and law conversation often is framed around drugs. | ||
| So we talked about this briefly right before we started, but we both have some frustrations with our current Attorney General. | ||
| So basically, a few years ago, Obama's assistant Attorney General passed this memo, or instigated this memo, that said that the feds weren't going to go after states for legalizing marijuana, is that broadly correct? | ||
| Okay, now it appears that Sessions is getting rid of that memo. | ||
| So it's a little unclear, does that mean they're gonna start doing it, or did he just not like the memo, or what? | ||
| I, as a small government guy, want the states to be able to do whatever they want. | ||
| Do you have any insight into what's actually going on here? | ||
| Yeah, and I'm not certain that I disagree with the Attorney General on the memo. | ||
| Federal law says this is illegal, It's really strange for DOJ to then come in with a memo that says we're not going to enforce federal law. | ||
| But what the memo does is just leaves it to the discretion of local U.S. | ||
| attorneys and I would be surprised if any of them decided that they wanted to go after people. | ||
| For marijuana in states where it's legalized. | ||
| But what really needs to happen, like the real solution to this is not a memo from DOJ. | ||
| It's the Congress saying, we're not going to be in this business anymore. | ||
| Let's let states decide this. | ||
| You would think in a Republican Congress that claims to be for states' rights that they would do that. | ||
| I mean, the West Coast has spoken. | ||
| Alaska, Washington, Oregon, California, Nevada. | ||
| Colorado, I mean, there is a movement here of states that have said, we as a policy matter think locking up people for marijuana is not helping the problem. | ||
| So what does this tell you about the way the federal government works? | ||
| Because you're right, a Republican administration, a Republican Congress, everything else, by logic, if logic has anything to do with politics, which I know it often doesn't, they should not be going after states. | ||
| I mean, it's completely the reverse of what they say they are for. | ||
| Now, we don't know he's gonna do it, that's what you're saying. | ||
| There may have just been something in the memo that he didn't like, but this is one of the reasons that people just hate politics, I think. | ||
| Yeah, it's because it's so hard to get movement on these issues, and part of it is the politics of crime. | ||
| No one runs on, I'm gonna be smart about criminal justice issues. | ||
| It's always, we gotta be tough, we gotta be tough, we gotta be tough. | ||
| But, you know, you look and we have spent trillions of dollars on the war on drugs. | ||
| We've locked up hundreds of thousands of our citizens and drug usage rates are pretty steady over an entire 30-year period and it turns out you just can't get around addiction issues by locking people up and the opioid crisis is a good example of that. | ||
| Posing mandatory minimum sentences on people who are in the throes of addiction is not going to work because you could tell someone who's addicted to heroin if you keep doing it I'm gonna put you in prison for 20 years and I'm not certain it would matter. | ||
| What they need is treatment not prison. | ||
| So what happens to that conversation? | ||
| Where are, because you don't hear, I mean, I guess you hear it a little bit maybe, but where are the politicians or the public figures saying, guys, instead of funding all of this money to the prisons, keeping these people here forever, many of them going back, right? | ||
| The day after they get out, all of this stuff. | ||
| Where are the people saying we have to help them break addiction? | ||
| Yeah, I mean. | ||
| One of the problems I see is we focused on back-end solutions. | ||
| And so the Federal Bureau of Prisons is a third of DOJ's budget. | ||
| If we stopped locking up so many people and spent some of that money on treatment or spent the money on more federal law enforcement who actually solve more crimes, that might actually deter people. | ||
| But just punishing people through long sentences is never going to have that deterrent effect that the government wants. | ||
| You also can't say that we are the land of liberty on the one hand and then on the other recognize that we incarcerate our citizens at a greater rate than almost any other country on the planet. | ||
| 2.2 million people in prisons or jail in America today. | ||
| That's Houston. | ||
| Yeah, I was gonna say that's more than some small countries. | ||
| Yeah, that is Houston locked up. | ||
| All around the country. | ||
| And for a country that claims to be the land of the free, those two things are just incompatible and inconsistent with each other. | ||
| Yeah, so I understand the federal level and why there's so much sort of gridlock with that. | ||
| Are there any states that are doing this really much better than other states? | ||
| Yeah, Texas recently closed a bunch of prisons. | ||
| decided that they were going to try and rehabilitate more people, and as they closed prisons and released more prisoners, you know what happened to their crime rate? | ||
| It went down. | ||
| Wow. | ||
| Turns out there's not a great correlation between crime rate and incarceration rate. | ||
| People commit crimes for all sorts of reasons. | ||
| The economy, how the economy is doing, is probably the biggest factor. | ||
| But just locking people up is not going to solve the problem of crime. | ||
| And, you know, we have fairly historic low rates of crime at the moment. | ||
| But you would never know that by our corrections practices and by the number of people we prosecute and put into prisons and jails every day. | ||
| Yeah. | ||
| What are some of your other pet peeve issues? | ||
| I know the mandatory minimum one I know is the big one. | ||
| Prison reform is another one. | ||
| It's just my belief that if we are going to let someone out of prison someday, why would we not want to spend a little bit of money for rehabilitation and job training? | ||
| You spend a little bit of money so that you save a whole lot of money by them getting out of prison and not committing new crimes, not being re-prosecuted, not being re-incarcerated. | ||
| Say, spend a little money to save a lot of money. | ||
| To me, that's good government. | ||
| Is there virtually no job training in federal prison? | ||
| So you were sort of self-training, and I'm sure there are other people that learn shop or learn some other trades, but is there really nothing? | ||
| Well, I mean, they have not allocated a great deal of money towards that, and then the wardens of federal prisons have a lot of discretion. | ||
| I'll give you one example. | ||
| Prison I was at, we had a really great welding program. | ||
| Men were learning this trade, they were getting out, they were getting jobs paying $25 an hour, which, that's the gold standard for people getting out. | ||
| People don't care if you have a felony, if you can weld and do the job. | ||
| $25 an hour if you get out of college is actually pretty decent. | ||
| And a warden came in and thought, well, I can get more money if I change the program. | ||
| So he changed the welding program and put in An associate's degree program in business management. | ||
| Because we know that every person wants to hire a former person from prison to help manage and run their business. | ||
| These are the decisions I saw all the time in the system. | ||
| And most of them just don't make any sense. | ||
| What we need to do is open those prisons up. | ||
| Get more volunteers. | ||
| Get businesses into the prisons. | ||
| Provide job training and basic life skills. | ||
| So many of the men I served time with had never had a bank account. | ||
| And it's the little things. | ||
| When I got out of prison, I got to the halfway house, I was told, you need to get a job before we'll give you a pass to leave. | ||
| And you can't get a job until you get a bank account. | ||
| And I went to the bank, and they said, you haven't banked for 11 years, what's the deal? | ||
| I had to tell them why, and then I find out that the credit agencies had listed me as deceased. | ||
| Jesus. | ||
| And so I go back to the halfway house and I'm like, I can't even get the process started of getting a job because I can't get a bank account. | ||
| And they said, well, you need to hire a lawyer to get this fixed. | ||
|
unidentified
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I said, I just did 11 years in prison. | |
| I need a lawyer that I can't afford to get the bank account to get the job, to get the money. | ||
| That doesn't compute. | ||
| And for a lot of people, when they hit those roadblocks, they don't know how to cope with them. | ||
| And what they do is they revert back to the things they do know. | ||
| Yeah, I mean, I mentioned Shawshank before, but it's like, it reminds me of both. | ||
| You know, there was Red and the old guy with the bird, I'm blanking on his name. | ||
| But, you know, Red sees a gun in the window and he's thinking, maybe I should get back in there. | ||
| And the old guy, it's like he ends up killing himself because they can't function. | ||
| They just can't function. | ||
| Institutional. | ||
| When you are taken from a system where everything is controlled, and you're in a system that says, you are a piece of garbage, everyone in there, that is the message you get every day in prison. | ||
| That you are a piece of garbage, you're here to suffer punishment, and you're not going to get out and lead a successful life. | ||
| That has an impact on people. | ||
| You know, I got out and wasn't aware of what I could do. | ||
| I had, but I had a woman who was intelligent and beautiful and who loved me who said, you can go to law school. | ||
| And I had a former Solicitor General of the United States tell me I could go to law school. | ||
| That had a profound impact on me and my own self-worth and whether I thought I could do some of these things. | ||
| Had I not had that, I don't think I would have even tried to go to law school. | ||
| Yeah, so on that note, let's talk about some of the good stuff. | ||
| So you're teaching law now. | ||
| What are kids excited by right now? | ||
| What do you see them caring about? | ||
| Criminal justice reform is a big topic. | ||
| It's big everywhere I go. | ||
| I see more People writing about it, people talking about it. | ||
| Pew just put out a study yesterday saying an overwhelming number of Americans support criminal justice reform. | ||
| And I think people get it. | ||
| Like, we're sending people to prison, too many people to prison for too long. | ||
| We use incarceration as a first response rather than a last resort. | ||
| And it doesn't work. | ||
| The irony is, the longer you send someone to prison, the less likely they are to come out and be law-abiding, successful citizens. | ||
| And so why are we doing it? | ||
| Tell me a little bit about teaching in general. | ||
| I mean, it must be pretty freaking rewarding for you to be doing this right now. | ||
| It is, and it's fun when I'm teaching Fourth Amendment to students or Fifth Amendment Miranda issues. | ||
| And now I'm teaching a prison law and policy class where we are diving into both legal doctrine about what are the constitutional rights that prisoners retain, why they're incarcerated, and getting into the policy aspects of why do we impose solitary confinement on people. | ||
| We know that it makes people who have mental illness, it exacerbates their mental illness, and we know that people without mental illness, it causes it. | ||
| So why would you want to impose long terms of solitary confinement on people that are eventually going to be released from prison? | ||
| Why are we putting sex offenders in prison and not trying to rehabilitate them before we kick them to the outside world and before the neighbors for me and my young kids? | ||
| Anyone that has an outdate, we should be trying to reform and rehabilitate. | ||
| And I think with a little bit of resources and opening prisons up to more volunteers, we can make a big impact on the recidivism rate. | ||
| So you would basically want, so it sounds like you basically want sort of less laws in general, perhaps even less funding, or at least you'd wanna shift the funding to some other things. | ||
| And then you think volunteers and things like that could actually help? | ||
|
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Like just these programs? | |
| Yeah, I do, I do. | ||
| I think people would come in and teach courses. | ||
| I've seen it in prisons. | ||
| I went to a private prison in Texas in December, and this prison had allowed a company to come in and build an assembly line. | ||
| And this woman I spoke to at this women's prison said, I'm making $9 an hour in prison. | ||
| Now, she said, the state takes $3 of that an hour, but I make enough money where I can send $600 or $700 to my daughter who is at Baylor University for her rent. | ||
| She said, I can't tell you how great it feels to contribute to my daughter's life and be able to do it from here. | ||
| And she said, I'm going to be able to take these skills that I'm learning and go get a job with this company or a similar company when I get out of prison. | ||
| Why would we not want to do more of that? | ||
| Yeah, I think it's kind of amazing that twice now you've used Texas as an example of a state that's doing this right. | ||
| I think if you would have asked me before we sat down what state probably has the most backwards legal laws and prison laws, I probably would have said Texas, which is probably just a terrible stereotype. | ||
| But that's really interesting. | ||
| Well, Texas has its issues too. | ||
| I mean, there's no state that's doing it well. | ||
| But there are states that are ramping down Punishments and realizing that if we do put people in prison, we need to incentivize them. | ||
| People that are in prison respond to incentives just like anyone else. | ||
| California recently passed a bill that incentivizes prisoners by cutting their sentence short if they take rehabilitation programming. | ||
| And that's something that we at my company, Prison Professors, are talking with correctional associations all over the country about. | ||
| This is what you should be doing. | ||
| You incentivize excellence. | ||
| When I was in prison, all of the things I did, the legal briefs, I won two Supreme Court cases, court cases all over the country, it was clear to people in the prison that I was on a different trajectory than a lot of people, and that I was not going to be a safety risk when I got out. | ||
| And yet, no matter what I did, it didn't shorten my sentence by one day. | ||
| And I tell you that, you know, the first five years in prison, I deserved to be there. | ||
| But I grew up and I found the law and got responsibility and the last five years I wasn't a danger to anyone else. | ||
| I had grown up and I was just warehoused. | ||
| Yeah, so I know you focus obviously mostly on criminal law. | ||
| It's the most personal thing to you and it's what you're teaching and everything else. | ||
| What are the other parts of the law that we're not paying enough attention to? | ||
| For example, you just mentioned the Fourth Amendment, right to privacy. | ||
| I feel like people don't even understand that we have a right to privacy. | ||
| Yeah, yeah, I mean the Fourth Amendment is a really tough area of law because there aren't any hard and fast rules. | ||
| And because of the exclusionary rule, courts are very reticent to say there's a Fourth Amendment violation because the consequence is all of the evidence is thrown out and the person may go, may, the case gets dismissed. | ||
| Right, it's an interesting catch-22. | ||
| Yeah, and so, you know, what you see is courts, I mean, the Supreme Court's slowly starting to get more concerned about technology and privacy. | ||
| There's a big case pending up there about whether your cell phone metadata requires a warrant for the government to go get a warrant before they can look at that data. | ||
| And you know, with GPS technology these days, they can get your data from your cell phone and tell exactly what you've been doing, where you've gone. | ||
| If you've visited a doctor, they'll know you may have an illness if they see you've done it several times. | ||
| So in effect, has the ship sailed on that then? | ||
| I mean, how do we have a right to privacy? | ||
| We don't in the digital age. | ||
| It's really difficult. | ||
| That's one of the reasons why it's so hard for people coming out of prison, because there | ||
| are so many collateral consequences. | ||
| You can be discriminated against in housing and employment, you can lose your voting rights, | ||
| and you can't really hide it anymore. | ||
| So we have all these initiatives to ban the box, ban the question on the application. | ||
| But if employers can just run a Google search and find out that you committed a felony, | ||
| I'm not certain that just pushing that information to the interview is going to lead to more | ||
| people getting jobs. | ||
| Right. | ||
| And so I would like to see more groups just go to employers, go to big companies and say, affirmatively hire people coming out of prison. | ||
| Try it. | ||
| Maybe give them a tax break or some sort of incentive to get them to employ these people because there are a whole lot of people coming out. | ||
| The primary reason why they go back to committing crimes is they can't find employment and a place to live. | ||
| Yeah. | ||
| You mentioned to me briefly in the Green Room that you're trying to work on some stuff with the White House right now. | ||
| Yeah, so I sat at the table a couple weeks ago as the President said that we need prison reform and they're trying to push a bill in the House, it's going to start in the House, that would provide incentives to prisoners to take rehabilitation programs so that we can reduce the recidivism rate. | ||
| And I'm a big believer that we can if we structure things in the appropriate manner. | ||
| Yeah, so on this case, this sounds like something good that Trump's trying to push through, which usually isn't prison reform usually thought of as a lefty or a progressive idea? | ||
| It is, but there are more and more conservative groups who understand that the criminal justice system has gotten too big. | ||
| It encompasses too much law, too many things are criminalized, and we are over-relying on incarceration. | ||
| And it's funny, I go around to every single group in D.C. | ||
| The Heritage Foundation, Cato, the Koch Institute, ACLU, NAACP. | ||
| These people can agree on nothing, but they all agree that the criminal justice system is a mess and that it needs to be fixed. | ||
| Yeah. | ||
| What do you see as their giant differences, though, in the solution? | ||
| So I would imagine some of the ones on the right you just mentioned, they just want the government to do less or get rid of some regulations or get rid of some laws. | ||
| Ones on the left want the government probably to do more. | ||
| Yeah, I mean, I think everyone realizes we need to reevaluate sentences and the lengths of sentences. | ||
| I think there's disagreement with how various crimes are prosecuted, like environmental crimes. | ||
| Congress likes to pass statutes without what they call mens rea requirements, that you knowingly violated the law, and people on the left would say, It's really hard to get CEOs and companies that do this to be prosecuted if you have the mens rea. | ||
| Whereas on the right, they're a big believer that mens rea is a necessary part. | ||
| If we're going to send you to prison, it's because you knowingly violated the law. | ||
| Or knowingly committed an act that violated the law. | ||
| Right, but as you were saying before, there are so many laws at this point that really nobody knows. | ||
| Nobody knows. | ||
| You have 5,000 statutes, over 5,000, no one has an accurate count, that carry criminal penalties. | ||
| Now administrative agencies can sometimes create regulations with criminal penalties. | ||
| And you have, in California, you probably have another two or three thousand statutes. | ||
| So there are eight, nine, ten thousand things that you can do wrong that may lead to you going to jail or prison. | ||
| I would say that state legislatures and the Congress does not value individual liberty if that's the case. | ||
| We went for the majority of this country's founding, we went and used civil penalties Fines, money damages to solve a lot of these problems and somewhere along the way in the 70s and 80s we thought we needed to fix everything with prison sentences. | ||
| Yeah, I mean, it's just, it's so backwards, you know what I mean? | ||
| Like, I think a lot of my audience watching this is going, like, intuitively you just know this, that there's something so, just wrong with this system, and yet it just keeps chugging along. | ||
| So maybe, look, if Trump's passing something that you're involved in and it gets to the House, maybe something will move now. | ||
| Yeah, I'm greatly encouraged by the White House's passion for this issue. | ||
| Jared Kushner is incredibly passionate about it. | ||
| His dad went to federal prison in 2002. | ||
| He's been directly impacted. | ||
| Most people I know don't understand the criminal justice system until a family member gets caught up and then they realize, oh my gosh, this is a mess and a huge problem. | ||
| And you know, I think conservatives in the House and in the Senate will get on board with prison reform. | ||
| And my hope is that it will be a piece of bipartisan legislation because this is one of the few bipartisan issues that we have in the country. | ||
| Yeah. | ||
| I'm curious, do you ever coach any inmates now? | ||
| Do you ever go to a prison and find somebody and be like, you know, let me tell you my story. | ||
| I have a lot of people I stay in contact with prisons. | ||
| I go into prisons and give talks all the time. | ||
| My recent thing has been mentoring people that have committed serious felonies who are now On their way to currently in or recently graduated from law school. | ||
| And a lot of them are now getting law licenses this summer. | ||
|
unidentified
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Wow. | |
| And it's been interesting to see because I probably had several hundred lawyers tell me, you can never go to law school, even if you do graduate from law school, no state bar association is ever going to let you become an attorney. | ||
| And they were just wrong. | ||
| And so I got to argue a case for one of my friends in the Washington State Supreme Court this past fall. | ||
| It was the first time the court had taken what they call a character and fitness case, whether you have the character and fitness necessary to practice law. | ||
| First time they had taken a case in 37 years, argued the case, On the way home on the plane, I get a text saying that the court ruled unanimously two hours after the oral argument in favor of my client. | ||
|
unidentified
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Wow. | |
| And she's now going to take the bar exam in February, and she'll probably be a lawyer by May. | ||
| So the counter-argument was simply that she had been in jail, basically, so she wouldn't have to count her tickets? | ||
| She had been in jail, and she had had drug addiction issues, although she'd been clean for six years. | ||
| And she had had extraordinary success in law school, graduated with honors, had won all of these awards. | ||
| had been appointed to commissions by the governor of Washington | ||
| and supported by a huge amount of licensed attorneys, and the bar still denied her six to three. | ||
| So then we have to waste all this time and money and energy and resources to allow her to go ahead and-- | ||
| What do we do to get rid of all of that? | ||
| Because a lot of what you're talking about is just generally I think what people are frustrated by with government. | ||
| Just like this mid-level bloat. | ||
| Nobody really knows what's going on. | ||
| There are either a zillion laws or a zillion regulations. | ||
| Half of them conflict with each other. | ||
| Just all of that. | ||
| What do you really do to remove that? | ||
| I don't know. | ||
| The occupational licensing schemes are really impactful for people coming out of prison. | ||
| Because many of them say, if you have a felony, we're just not letting you do these professions. | ||
|
unidentified
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Right. | |
| So if you want to clean a pool or something, you need a pool license. | ||
| I don't think that we need people coming out who have committed sex offenses, teaching Junior high schools? | ||
| I get that sometimes there are offenses that apply to a particular job, but most of these things aren't looking at the crime the person committed. | ||
| It's just a cross-the-board policy of you're not going to be allowed in the profession. | ||
| And when you lock people coming out of prison from all of these professions, you make it very difficult for them to ever get back to having a real life. | ||
| Yeah, well, your story is obviously inspiring, so this is, I've really enjoyed this. | ||
| Did we miss anything major on the legal front that we should absolutely knock out? | ||
| I feel like we hit your majors. | ||
|
unidentified
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No. | |
| Feel good? | ||
| Yeah. | ||
| We did our whole Star Wars talk already in the green room, so I think we're good. | ||
| Well, it was a pleasure chatting with you, and for more on Sean, you can follow him on Twitter. |
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