[music] I am Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome Nazgol Ghandnoosh to our broadcast today.

She is co-director of research at the Sentencing Project, and she conducts and synthesizes research on justice reform policies.

She's written extensively, including in her report, A Second Look at Injustice, about racial disparities, lengthy sentences, and the scope of reform efforts across the United States.

Nazgol, a pleasure to host you today.

Thanks, Alexander.

Great to be here.

Let me ask you to begin with, what are the essential data points when we talk about the backend of the justice system that are most important for Americans to learn or understand?

Sure.

So I would say that the top line fact to note is that we've had 50 years of mass incarceration in the United States, so actually over 50 years now.

So the prison population in the US started to increase starting in 1973, and it kept growing for over four decades.

And it grew by quite a lot every year until in 2009 when it reached it's peak level.

And since then, the prison population count has been coming down and it's come down by about 25%.

So that means that we've had dramatic growth and we've only just begun to chip away at that growth.

And there are a couple things that are really notable about that.

One of them is that during that period, part of that period, crime rates were increasing in the US in the 1970s, '80s until they hit their peak level in the 1990s.

So prison population levels were growing during that period dramatically.

And the US is unusual compared to other countries and dramatically increasing incarceration levels during the period of crime rates going up.

But what's even more unusual is that the United States kept increasing incarceration levels, even when crime rates started to go down.

And they've actually come down quite a bit by about 50% since they reached their peak in the '90s.

But we've only recently begun to make a dent, and the dent is relatively small in undoing that dramatic wave of growth in the prison population.

Specifically, when we talk about your report A Second Look at Injustice.

What were the most vital in your mind data points from from that report?

A lot of folks, I think, increasingly realized that there's a problem with criminal justice in the US and with mass incarceration, but a lot of times people are oriented towards the war on drugs, which is rightly deserving of attention and outrage.

But what we as an organization would like for folks to realize is that most people in prison were convicted of a violent offense.

So those violent offenses range from robbery to serious assaults to homicide and sexual violence.

And so that means that if we wanna end mass incarceration in the United States, we have to end the drug war.

But we also need to scale back the dramatic increases that have happened in sentence lengths for people serving violent crimes.

So in the United States right now, we have one in seven people in prison is serving a life sentence, that's about 200,000 people.

Now, that ranges from a sentence of life with the possibility of parole or life without the possibility of parole or a sentence of 50 years or longer, which we consider a virtual life sentence.

And so in that report, focusing on second look reforms, I highlight all the research that exists showing that these kinds of extreme sentences, like life sentences are not just not helpful for advancing public safety and community safety, but they're actually counterproductive because they're incarcerating people for extremely long periods of time into old age when they no longer pose a criminal threat, when sometimes family members of victims want them to be released, and they're causing us to look away and move our investments away from more effective policies that can prevent crime from happening in the first place.

So second look reforms that have recently begun to pop up in a couple parts of the country allow for judges to reopen sentences and reconsider whether they're just and effective in light of new evidence, in light of new information about how that person has changed.

That is an eloquent and pragmatic assessment of the danger of mass incarceration and sentences that are not actually going to produce positive growth for society.

And yet, I have to ask you, when it comes to this question of reciprocity, the basic logic, I would surmise and have heard myself from the advocates of what they would consider sentences that are proportionate to the crime, especially when it's a violent crime that ends someone's life, if you wanna call it murder homicide, is that in a sense, the proportionality here, or the reciprocity here is the assailant compromise someone else's life, and now their life should be compromised in effect.

I don't know that the data points that you just mentioned are ever gonna allay or alleviate the particular argument that is suggesting the only equitable or proportionate sentence in the case of murder at least, is for that person to essentially experience a loss of their life.

How do you respond to people who have that point of view, whether they're policymakers or voters or any Americans?

That's a fair question and a valid concern.

My response to that would be for the audience to consider that similar arguments were made about the death penalty.

That if you've taken a life, then it's only fair to take your life.

And we as a country have largely moved away from that kind of thinking, and we think that our government should be more measured in it's response.

And so that's how weve moved towards life without parole sentences.

The trouble is as we've moved away from the death penalty, we've not only changed some of those sentences that would've been capital sentences to life without parole sentences.

We've brought a lot of other people into life without parole sentences that would've never gotten the death penalty previously.

But now thinking specifically about in parts of the country where there are really high rates of life without parole or life sentencing, so that includes places like Pennsylvania, California, many parts of the country, we need to think about what the evidence shows.

And what the evidence shows is that after 10, 15 years of incarceration, or even if people are not incarcerated and they're left in the community, if they're engaged in criminal activity, “criminal careers”, as researchers call them, typically end within that period of time.

And for people who have spent the time to, as researchers or as practitioners or people who work in prison facilities, who've spent time getting to know people who've served lengthy sentences, they can corroborate this, which is that people in prison who are considered to be the stabilizing force of these institutions are the people who've served decades behind bars, and oftentimes, have some of the most serious convictions like homicide convictions.

So certainly, we need to keep people behind bars when they're a threat to community safety.

We need to have some measure of justice for victims and their family, but we need to ask how much is enough?

And certainly proportionality matters and a crime like homicide should be punished much more severely than a crime like theft.

But part of the great imbalance in sentencing in the United States is that we send people to prison for 10, 15, 20 years for burglaries, and that completely skews our sense of what's an appropriate sentence for homicide.

So we need to bring down the entire sentencing structure.

And that's something that the American Law Institute, for example, has recommended that by scaling back some of the most extreme sentences and allowing for second look reforms, for example, to allow judges to reconsider sentences after a period of 15, 20 years when there's more information available about how that person has transformed.

Also, when there's more information available about what the victims and their families would like, because oftentimes, the perception and preferences of victims and their families change over time, and they become more supportive of re-sentencing.

So legal experts, criminologists support this kind of scaling back of extreme sentences as well as scaling back sentences for lower level offenses and actually reconsidering incarceration altogether for many lower level crimes.

That's fair.

And I think it also underscores the fact that the sentencing has become really amped up in the last half century.

Would it be fair to say that the project that you're a part of is keen on moving the dial back to where things were considered fairer sentences?

And that that was actually in the body of American history.

It might not have been the 19th century but maybe earlier on in the 20th century.

Is there a precedent actually, going back in American history to say, we didn't give people convicted of theft or burglary 10, 15, 20 year sentences like you're describing in the 1950s?

Is there actually an argument that we should retrace our own history for more equitable sentencing?

Yes, partly, we can look back historically, we can also look back internationally now at what our pure industrialized countries are doing.

And use what's considered a “life sentence” is something that has taken on different meaning historically in the US and when we look internationally.

So in many parts of the world within European countries, for example, a life sentence doesn't mean life.

It means 15, 20 years.

And then a revisit of that sentence.

In the United States, it used to be common for governors to reduce sentences, life sentences and to use their clemency powers to reduce and scale back extreme punishment.

So there's definitely historical precedent for that.

But I would also say that when we look back historically, we know that there was a lot of more violent racial injustice within our country in response to crimes.

And so that's something to take into consideration as well.

And I think part of what we're seeing now is, and there's some research that suggests, some polling research that suggests that white Americans are more punitive the more they associate crime with black Americans and with people of color.

And when we think about who's the most likely victim of violent crime in the US, of serious violent crime, it's actually black Americans who are most likely to be victimized.

This may not be a pop- you know, widespread understanding because a lot of media focus on crime will focus on white victims of crime, but it's actually black Americans are most likely to be victimized.

And polls show that black Americans are against the death penalty, are more supportive of rehabilitation preventative measures to keep their communities safe.

And so I think it's important to think about some of the progress that weve made in terms of moving away from racial violence, but also the way that our criminal justice system is potentially capturing some of the racial animus that we have now as a society because we know that some of the people who've committed the most serious crimes as we go up in sentence lengths, we're more likely to be talking about a disproportionately black population.

And so, given all the widespread research there is on implicit bias is showing that even people who mean well and want to promote racial justice are likely to respond differently to that population that's incarcerated.

We really need to think about how race is coloring our perceptions and our preferences for justice here.

When you think of restorative justice, and I want you to define that for our viewers who are unfamiliar with the term, one of the things that incorporates is actually a more intimate relationship with not just the state, but the victim and learning from one's mistakes.

And I wonder if restorative justice is in fact an avenue for reducing the punitive sentences that you've described, the dysfunctional, destructive sentences that don't help the lives of victims, that don't help the lives of those accused or convicted, that don't help the lives of the broader civil society or the goal of civil society.

But it seems to me that restorative justice could be a vehicle through which you can make the most persuasive case for sentence reform.

Yeah, I think that restorative justice has, there are many elements of restorative justice that if our criminal legal system leaned more in that direction, it would be tremendously helpful in scaling back excessive sentences and helping victims and their families to recover.

And that's one of the major points of restorative justice is to restore some of what victims of crime have lost and to give greater deference to what their preference is.

They may not want incarceration, they may want community service, they may want a letter, they may want the person to undergo some kind of training or therapy or drug rehabilitation program so that they can feel like they've done what they could to prevent others from becoming victims of crime.

And so I think there, when it comes to second look laws, it's really notable for me to living in Washington DC where there's a really robust second look law that allows for people to be re-sentenced after they've served 15 years for a crime that they committed under the age of 25.

This law has allowed about 200 people to be re-sentenced.

In certain situations, the victim's family, if it's a homicide, have supported the re-sentencing and release of individuals.

And in other situations, people who have been impacted by the crime do no support re-sentencing.

And we see similar dynamics in parole where sometimes some family members or even families can be divided.

But what we can see in instances where victims and their survivors are opposed to parole or re-sentencing, is that they've been offered close to zero services to help them recover and heal from what they've gone through.

And that's a real gap in our system because we shouldn't just be seeking punishment, but we should also try to do what we can to help victims and their family members to recover from the serious harms that they've experienced.

So in your work at the sentencing project, what do you think can be most prescriptive in 2025, in reforms to the system?

And you've outlined the compelling case for sentencing reduction of excessive sentences but your approach would be looking at the 50 states we live in and the American system as a whole.

How would you approach the most constructive form of legislative change if it's legislative or if it's actually just pressuring offices in the various municipalities to levy and prosecute not according to the most extremes?

So I guess in both non-legislative and legislative vehicles that you're considering, what would be most constructive to embark on in 2025?

Well, I think we can build on some of the precedent in scaling back extreme sentence that's been established by the Supreme Court.

So the Supreme Court has ruled that juvenile life without parole sentences are unconstitutional for non homicide crimes, and they can't be mandatory for for homicides.

And so that's really changed the landscape of extreme sentencing for young people in recognition of the possibility of change and mature and the level of immaturity and cognitive development that still needs to take place for young people.

Then one next step is to realize that people don't suddenly become full grown capable adults at age 18.

And certainly, the research on neuroscience supports that.

So one next step is to extend those reforms to emerging adults, to people up to age 25, 26, so that we're getting rid of life without parole sentences for that population so that they when they've committed even a serious crime, have the possibility of showing that they've rehabilitated and redeemed themselves in order to be released from prison.

That would be one major next step.

And then I think the second step is to realize that for everybody behind bars, that a life without parole sentences are sentences that even the the Pope has come out against, because it precludes the possibility of rehabilitation.

And we can have a system that says, we believe that if you are incarcerated, we are providing you with enough services to help you rehabilitate.

Even if we're not doing that, we believe that just aging works certain magic for people in that it moves them away from the criminal thinking and criminal activity and groups that they were involved with when they were young people.

And by the time people reach the ages of 50, 60 and beyond, we should have a second look mechanism so that we're looking at elderly populations and we're looking at people who've served sentences of beyond 20 years and reconsidering whether they still need to be incarcerated.

So those are some of the shifts that I would recommend in terms of legislation and court decisions, in terms of prosecutorial discretion.

I think there are a number of prosecutors' offices that have begun to move in this direction of really reconsidering bringing the heaviest charges.

This has happened at the federal level, even with drug crimes, to not necessarily bring a charge that carries a mandatory sentence to allow for judges to use their discretion when it comes to other more serious offenses.

Again, to use that same level of discretion to consider the specifics of the case and to prevent people from going away and getting sent away from decades on end, given that the harms that that can bring to their community, and given that it means that they're incarcerated when they've “aged out” of criminal activity, so that there isn't any kind of benefit that we're getting as a society from that $30,000, $40,000, $50,000 investment annually in keeping them behind bars.

In your mind, would it be an effective strategy to, in the states where feasible propose referenda to end life sentences without parole?

Is that something that you would consider as a starting point in the same way capital punishment has been abolished by many states?

That's an interesting question.

One thing I know about the abolition movement with respect to capital punishment has been that in many parts of the world in many countries, and I think this is true for some US states, our political leaders were ahead of popular sentiment.

So, countries and states have abolished capital punishment when it was still preferred and favored by a majority of their residents.

So I'm not sure if this is something that it would require a lot of education.

And one thing that it would require is helping people to get to know people who have served decades behind bars.

I think there's a real gap right now where we have a lot of news coverage on when crime happens, on what the person looks like at the time that they've hurt, seriously hurt sometimes irrevocably members of their community.

We don't really have a lot of media attention on what that person looks like 20, 30 years down the line.

And that's who we're talking about, not the person at the time of the crime.

And so I think there's a real...

In order to have get to the point where we can have an effective referendum, we need to have a lot more information to the public on really what we're talking about here and the risk levels that we're talking about.

And the fact that my proposal to end life without parole sentences and my organization's work to cap prison terms at 20 years, it comes from a shared goal of advancing public safety.

That's our objective.

We want to move towards more effective and humane policies to achieve safety in our communities.

So I think we have a long way to go still before we can have widespread support in the form of a referendum.

And in the meantime, we really need our political leaders and criminal justice practitioners who've thought about these issues closely and have a deeper understanding of these issues, to have courage and show political leadership and to have confidence that as has happened in the past, if they move away from these forms of extreme sentences, the polls will follow.

Public sentiment follows and shifts in that direction because people see the sky hasn't fallen.

There are no negative consequences to speak of in terms of impact on community safety.

And then it begins to make sense.

Obviously, one could argue that the single most important act to shrink the system so that people are living happy lives, there's public safety and there's not an overrun monetized prison complex is parole and probation reform and specifically rehabilitative pathways so that people exit the system with an opportunity for their livelihood to be restored in their communities.

Is that the single most important reform that we ought to be thinking about?

Or is it in fact just the single act of ending life without parole?

I could make the argument for both that either one is the single most important focus, or should be.

Would you argue that the single most important focus to shrinking the system would be ending life without parole?

Well, I would argue that would create a paradigm shift in the sentencing structure, and it would really lead to the meaningful conversations that we need to be having about what's an appropriate sentence.

And if we get rid of life without parole, if we cap prison terms to 20, 30 years, let's say, then we can start to talk about for lower level offenses.

With respect to the proportionality issue that you mentioned, what's an appropriate sentence for a burglary?

How long should someone go away for?

What are the appropriate interventions that we need to make so that this person doesn't commit this crime again?

I think there is with respect to criminal justice, we have to understand that there are changes that happen in terms of crime rates, and there are changes that happen in terms of sentencing policy.

And as I mentioned, crime rates went up significantly in the '70s, '80s until the mid '90s, and they've come down tremendously.

But during that time, we've significantly changed our criminal justice policies.

We've really made them much more punitive.

We've dramatically increased the likelihood of incarceration and the duration of incarceration.

And so really it's just a...

In order to, if we wanna move away from being one of the lead incarcerators in the world, incarcerating people at five to eight times of our peer countries, it's not just a crime problem that we need to fix.

We need to fix the problem that we've created with respect to sentencing.

We're just about outta time, but would you support that measure, those referenda, even if they had an exception for homicide?

In other words, basically ending life without parole except for homicide?

That's a good question.

I would prefer that we not have exclusions because just in terms of the way that the political process works, coming back and addressing that later is tricky.

It's gonna be very difficult to get legislators to just support rationalizing sentences for homicide rather than as part of a big package.

So I think that it would be better to do it as a package.

And I think that some of these, yeah, some of these second look reforms that allow for re-sentencing to happen after a significant period of time has passed are in some ways more politically feasible because it's not about thinking about what's the appropriate sentence at the time of the crime.

If we are shifting from the acceptance of eye for an eye mentality, what is the mentality that we should be embracing if not eye for an eye?

The mentality that we should be embracing is thinking realistically about how do we prevent future victimization and how do we achieve a measure of justice for the harm that's been done without going over the top.

The full saying is that eye for an eye leaves everyone blind.

It's a cautionary expression.

And that instead of eye for an eye, and instead of being oriented towards just vengeance and retribution, we should be oriented towards eye health.

I don't know how to put it better, but... No, that's fair.

As a republic, the United States made up with Great Britain.

So there's one strategy.

[laughs] The Western world is considered the United States and the UK.

Nazgol, Thank you so much for your insight today.

Thank you.

Great to be with you.

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