“Anyone can be on the receiving end of a prosecutor’s mistakes”: An Interview with Emily Bazelon

By Amanda Knox with Christopher Robinson

Emily Bazelon is a staff writer at The New York Times Magazine, a lecturer at Yale Law School, co-host of the Slate Political Gabfest podcast, and the author of two best-selling works of nonfiction: Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy and Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.

Charged is a deep dive into the prosecutor’s oversized role and influence in the U.S. criminal justice system. Bazelon combines research, analysis, and storytelling to produce a work that is both unflinching in the face of prosecutorial abuses, and optimistic about the forces already at work to improve the way prosecutors imagine and conduct their service to society.  

Amanda Knox 

Today, I’m primarily interested in talking to you about Charged ― how you take a complicated system and approach it narratively. 

Emily Bazelon  

Oh, I’m so excited we’re talking about this. How did I do that? I mean, it was hard. I think it was the primary challenge for my book. I guess I’ll answer two ways. The first thing I did was I looked for stories that I thought would be vehicles for the landscape I wanted to paint, if that makes sense. I had a lot of ideas about the power of prosecutors and how prosecutors have, in many ways, driven mass incarceration for a long time. And then I also wanted to talk about a new movement to elect prosecutors who are doing their jobs differently and trying to reduce incarceration and make the system more fair. That was the analytical part of my book. And I wanted to make people understand those things through stories, because I’m a reader who responds to stories. So I found two cases that I followed for a long time. One of them was the case of Noura Jackson. The other case involved a young man who I called Kevin. He was facing criminal prosecution for gun possession. It was actually not his gun. It was the gun of a friend of his, but he picked it up, and so that was the beginning of his journey through the criminal justice system. And the trajectory of Noura and Kevin’s cases became the spine of the book, and all of the points I wanted to make, I figured out a way to kind of hang them on the story, if that makes sense. 

Amanda Knox  

What was it about the juxtaposition of these stories that really conveyed the points that you wanted to make about prosecutors?

Emily Bazelon 

There are different stories that illustrate different facets of prosecution. Noura’s story is about an abuse of prosecutorial power by a prosecutor in Memphis named Amy Weirich. Noura was charged with the killing of her mother. Her mother was brutally stabbed to death in the middle of the night. Amy Weirich charged Noura with that crime even though the DNA evidence showed that Noura was not present at the crime scene. Noura was convicted, but then her conviction was overturned by the Tennessee Supreme Court because of misconduct on the part of the prosecutors. And so for me, that was a story that allowed me to illustrate what happens when a prosecutor makes an early decision that somebody is guilty and then interprets all the evidence to confirm that initial suspicion. The other interesting thing about Amy Weirich was that after this trial, she was elected the District Attorney in Memphis and Shelby County, and became responsible for a larger pattern of misconduct in that office. The story of Kevin is a much more ordinary story. Gun possession, even if you don’t have a criminal record, is a serious violent felony in New York. It comes with a mandatory prison sentence. But Kevin was prosecuted in Brooklyn and the DA in Brooklyn, whose name is Eric Gonzales, was elected as a reformer, and so Kevin got a second chance. He had an opportunity to be in a diversion program. So he pled guilty, and was sentenced to prison, but then the judge said, “Look, if you can make it through this diversion program, the conviction will be erased, you won’t have to go to prison.” And so I followed him through the year in this diversion program where he was working with a very dedicated social worker who works for the DA’s office. I wanted to see what happened to this 19-year-old when he had this second chance. It was a very different model of prosecution.

Amanda Knox 

What’s interesting also about this juxtaposition is you have a total reversal of the way that prosecutors might handle those cases traditionally. It’s not very common for young women to be accused of heinous stabbing murders, regardless of the fact that Noura and I were both accused of that. Whereas, young men who are in disadvantaged communities, who see violence on a daily basis, they just get plugged into the system and forgotten about. Were you also trying to pursue that opposition by juxtaposing their cases?

Emily Bazelon  

Yeah, I think so. Of course, a disproportionate number of people caught up in the criminal justice system are young black men. And so if you’re gonna write a book about the criminal justice system, I should be telling that story from the point of view of someone in that position. I also, though, wanted to make readers think about the fact that once you are in the sight of a powerful prosecutor, it can stop mattering that you’re this attractive, young, white woman. This is something that both you and Nuora share. Suddenly you’re the object of suspicion and these usual aspects of your life that convey a lot of privilege, they fall away once you’re on the other side. I wanted readers to feel both of those things, to understand the world from Kevin’s point of view, and also to realize that anyone can be on the receiving end of a prosecutor’s mistakes. And that’s a risk we all should think about. I feel like most of the time people block out what jail and court are like in reality. We prefer not to think about what it’s like to be in the criminal justice system, and if you force people to really look up close, they recoil, because a lot of it is unjust and incredibly harsh. And so I felt like it was good to have characters who I could convey that through in quite different ways.

Amanda Knox  

How did you come into proximity with this system? What was formative about your family, about your value system, and your approach to storytelling around these issues?

Emily Bazelon 

I grew up in a family of lawyers. My grandfather was a judge. These kinds of questions about the law and how alienating and dense it can be, but also how important it is, that was something I grew up with in a very present way. Two of my sisters have been criminal defense lawyers over the years. One of them now works actually for Larry Krasner, who’s the prosecutor in Philadelphia who’s trying to change that system. So I feel like it’s always been a part of me. I was a journalist who went to law school, not because I really wanted to be a lawyer, but mostly because I wanted to have something that I knew about to write about. And that shaped my decisions as a journalist and the kinds of stories that I wanted to pursue. And years ago, I think around 2010, I was working on a story about the Three Strikes Law in California, and I was interviewing a prosecutor who wanted to change the law and make it more merciful. And I was asking him why, and he told me about a homeless man who had been prosecuted for breaking into a food pantry at five in the morning because he was hungry. This prosecutor said, “If that had been my case, I would never have charged this man, Gregory Taylor, with a third strike.” And I thought, “Oh my God, I never thought before that. Who your prosecutor is can determine the whole course of your life.” Because Gregory Taylor did receive a life sentence. And once I noticed that element of the system and the way power functions, I started to see it all over the place in my reporting. 

Amanda Knox 

Today, we’re seeing a lot of focus on police departments and abuses that are perpetrated by law enforcement officers. How much do prosecutors, due to their power, impact the behavior of the police?

Emily Bazelon

That’s a great question. Prosecutors are important to the story in a couple of ways. So the first, most visible one is that they’re the ones who decide whether to bring criminal charges when a police officer uses force. There’s a prosecutor on the other side deciding, “Am I going to charge this cop with manslaughter or murder and how am I going to win this trial?” We’ve seen that with the George Floyd case, in which there was a prosecutor who initially seemed hesitant to bring criminal charges against this officer despite this incredibly disturbing videotape. Then the Governor transferred the case to Keith Ellison, the Attorney General, who brought second degree murder charges. You can see in that decision-making process how important it is the identity of the prosecutor making this call. There is another element of this, which is that there’s lots of activity that the police do all the time that may be a problem. For DA’s offices across the country, the police are their partners, right? The cops investigate, the prosecutors decide how to charge and then how to handle the case. If prosecutors aren’t exercising some oversight and really holding the police to the rules, it makes it much easier for the police to break the rules. I’m talking about things like, if there’s an illegal stop and an arrest, if the prosecutor doesn’t say, “I’m dropping this case because you broke the law,” why does a police officer have any incentive to do it differently the next time? Those are the much more common interactions between prosecutors and police officers that really shape people’s experiences of the police and the court system.

Amanda Knox 

So, one thing that you talked about in your book is how prosecutors’ decisions are political. The fear of political backlash plays a prominent role in decisions prosecutors make about whether to set bail, how to charge people. There are people who espouse the idea that judges and prosecutors shouldn’t be elected because they should be above politics. Do you agree with that? Or do you think that judges and prosecutors should be accountable to the public?

Emily Bazelon  

That’s an excellent question. I do not think judges should be elected. I think that voters very rarely really have a handle on who all the judges are and have a good way of evaluating whether they’re good at their jobs or whether they’re making the kinds of decisions that align with the voters’ own values. I grew up in Pennsylvania where judges are elected and I remember going to the ballot box with a page ripped out of the newspaper with editorial endorsements, but really having no idea exactly who I was voting for. I don’t think that’s a good system. Prosecutors probably also shouldn’t be elected. We are the only country that elect prosecutors, which is like a sign that maybe it’s not a good idea. And there are a few states in which prosecutors are not elected, including Connecticut, where I live, and most interestingly, New Jersey. New Jersey has reduced its jail population by like 40% in the last few years. They don’t elect prosecutors, and actually there’s like a centralized state head prosecutor who really sets policy for all the counties. And I think that takes some of the political sting out of the whole decision-making process. If something goes really wrong, like there’s a news story about someone who gets out of jail and hurts someone, there’s some cover in New Jersey. It’s just more of a kind of bureaucratic system as opposed to one where you have DA’s on the hook for every decision they make. And I think that is probably better. At the same time, it’s not the system that we have in like 46 states, and so whether we would be better off getting rid of them or not, elections for a prosecutor are an incredibly important lever that local communities can pull to change their systems. It doesn’t take that many voters to change who’s the head of the District Attorney’s offices. And in the last few years, that has really been a very important way in which local communities of color have really been able to say, “We want to change what criminal justice looks like in our city.” And that was my favorite thing to report on for my book, watching that movement unfold. 

Amanda Knox  

As a millennial who was born in the late ‘80s, I continually find myself observing the consequences of a tough-on-crime mindset from the generations that preceded me. I simply don’t remember what it was like to live through crime in the ‘80s and ‘90s, so it’s hard for me to relate. The political question sort of begs the question, why is it that, in practice, elected judges and prosecutors have been rewarded for tough-on-crime, punitive decisions, as opposed to restorative decisions?

Emily Bazelon 

That is such a great distinction you’re making. So I’m older than you and I do remember the ‘80s and the ‘90s. Crime was worse. There’s always been more crime in poor neighborhoods, but what we have now in a lot of cities is a situation where, if you’re a white person walking around an affluent suburb, the chances you’re going to be a victim about a crime are really small. Not true if you’re a black or Latino person or a white person in a poor area of town, but it used to be that crime felt more present. I think that there’s a kind of hangover that the country is still waking up from. When crime was high in the ‘80s and ‘90s, we built this very powerful machine of punishment to put people away because we convinced ourselves that the way to decrease crime was to just put all these people behind bars. And that turned out to be very destructive for a lot of communities because you’re just ripping away a lot of people, especially young men, and usually when they get out they’re not in better shape to be productive citizens. They’re in worse shape because it’s harder for them to get a job or find housing and maybe they’ve disconnected from their families. But we ran that experiment for a very long time and in a lot of ways, we are still running it. We just send people to prison for longer periods of time and more people than any other country in the world. And yet, people who are your age and younger have grown up in a world where it doesn’t even from their daily experience really make a whole lot of sense. As a country, we just have a lot of catching up to do. And this moment of protest and activism is part of that. 

Amanda Knox  

Do you have any take on calls to abolish police, abolish prisons, abolish court systems?

Emily Bazelon 

I think abolishing prison and abolishing the police are different. I also take abolition as a kind of aspiration. I don’t understand it literally. If you’re talking about abolishing prison, I think most people think there needs to still be a place where people who commit terrible violent crimes go to be separated from society for some amount of time. It’s just that we could do so much less of it. Maybe we could do 75 to 80  less of it. We could have a prison system like the one in Germany or Denmark, where the whole idea is that you’re supposed to be better equipped to contribute to society when you get out. It’s not about retribution. It’s about deterrence and rehabilitation. That is a vision that is entirely possible without harming public safety. We would actually be safer with more mercy, because we wouldn’t be damaging people’s lives by putting them away for no good reason. Abolishing the police I find harder to see in quite the same terms, because there’s so many guns in this country. This is a country with 400 million estimated guns owned by civilians. That makes us really different from company countries like Germany and Denmark that have smaller police forces. I don’t know how we get the police to completely disarm because that’s the signature feature of a police officer in America when we have all these guns out there. I do think there’s still tremendous room for changing how we conceive of public safety and the many, many instances where we call 911 and expect an armed officer to arrive, but actually nobody with a gun needs to come. A lot of offenses, or claimed offenses, involving homeless people, or family disputes, people call the cops on each other I think way too much, and often what we need is someone who could be a mediator or de-escalate the conflict. Maybe sometimes you need a cop there as backup, but the main response should be about fixing a problem, not about arresting somebody.

Amanda Knox  

Are there questions that you think are being overlooked?

Emily Bazelon

That is a great question. I’m very interested in writing about the November election, making sure that it is a free and fair election and that problems we’ve had of suppressing the vote, especially for people of color, are things that we’re making sure don’t happen this time and in particular that the pandemic doesn’t take away people’s right to vote. I also have a criminal justice story that I’m interested in pursuing. It actually involves someone who’s in prison in Louisiana who wrote me a letter a year ago after he heard me talking about my book on the radio. So I’m kind of thinking about how to tell his story and what that could contribute to this larger effort to change things.

Amanda Knox  

What kinds of storytelling questions are you asking yourself?

Emily Bazelon 

I try to think, “How can I move the ball forward?” I try to look for things that I think just haven’t gotten enough exposure yet. I’m always hoping that if I can get people to pay attention, they’ll see that there’s something wrong here. And maybe that will help create some momentum for change.

Amanda Knox  

Any final thoughts?

Emily Bazelon

I think what we’re all trying to figure out right now is like what’s possible, and actually, what’s possible seems to be larger, more exciting than it has been in a long time. At the same time, there are still a lot of powerful forces arrayed against it. And so I think, when people ask me, “What can they do?” I say, “You can lift up this issue,” right? People are elected in this country, there are so many things competing for their attention. When they actually focus on criminal justice, often there’s a lot of bipartisan agreement that the system’s too harsh, and we should make it better, but it doesn’t always get to the top of the agenda. And I think the most important thing you can do is make it front and center. Ask politicians about it. If you’re talking to them, tell people that this is something you care about. Make it something that matters in the world.