Preet Bharara:

From CAFE and the Vox Media Podcast network, this is Stay Tuned In Brief. I’m Preet Bharara. Did the Supreme Court lay the legal foundation for mass incarceration? Rachel Barkow explores this question in her new book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. Rachel is a criminal law professor at NYU Law School and a CAFE contributor. Previously, she was a member of the U.S. Sentencing Commission and also the Manhattan DA’s Conviction Integrity Policy Advisory Panel. She joins me today to discuss her book, the Supreme Court, and how the Trump administration could transform our justice system. Rachel, my friend, welcome back to the show.

Rachel Barkow:

Oh, thank you.

Preet Bharara:

I wanted to say a point of privilege right off the top that it is a great regret of mine that even though we both teach at NYU Law School, you as a real professor, me as kind of a pseudo professor, that you can’t be a guest in my class ever because you teach your class at the same time as mine.

Rachel Barkow:

Well, not ever, this semester.

Preet Bharara:

Well, this semester. So it’s a big… So instead I may require all my students to listen to this conversation. So congratulations on the book.

Rachel Barkow:

Thank you.

Preet Bharara:

So what’s sort of interesting is on this issue of mass incarceration, and I want to talk about the scope of it in the United States and how it differs from other countries. Generally speaking, people blame the executive branch, prosecutors in the executive branch, and also at the state and local level for, in the minds of some people, not all people, and you and I don’t agree on everything, over prosecuting, prosecuting certain kinds of crimes more than other kinds of crimes. Also blame the legislative branch for enacting laws that are then enforced by the prosecutors, many with mandatory minimum sentences. And your book is about the third branch of government, the court and in particular the Supreme Court. How in your mind, how much responsibility does the court bear for the mass incarceration issue?

Rachel Barkow:

I mean, it’s a chunk. I would say that I don’t think the court is not the primary driver of it, but I think it’s important to recognize that we wouldn’t have the scope of incarceration we have today if the court had done its job. The movers are definitely the political branches, as you said. It’s the public wants to see action on crime. Legislatures want to show that they care about the issue and they pass ever tougher laws. Prosecutors, same thing. But the framers of our constitution knew that there would be a dynamic like that. And so there’s actually a lot of checks in the constitution.

And what I tried to do in the book is highlight that there’s a fair number of areas where the Supreme Court just ignored those and let the government do what it wanted. And that actually allowed for the acceleration of mass incarceration. So definitely not the only cause could happen anyway, even if the court had done its job, but it would’ve slowed things down dramatically. And honestly, I don’t think we would reach the scope we’re at today if the court had done what was supposed to.

Preet Bharara:

Describe what that scope is for people.

Rachel Barkow:

So America has the distinct honor of being the world’s largest incarcerator. So we incarcerate a bigger chunk of our population than any other country in the world. So we have about 5% of the world’s population and we have almost a quarter of the people who are incarcerated are in the United States. And it’s also historically we’re kind of went off course because it didn’t used to be like that. We used to look like other western democracies for most of our history. And it wasn’t until the 1970s that that rise to those numbers started to begin and get us to this point. So it’s relatively recent. It’s about 50-year-old kind of dynamic and it’s definitely different from certainly any other western democracy, any other country that looks like us in terms of governance and really distinct from other places in the world, just full stop. We just rely on incarceration and criminalization a ton.

Preet Bharara:

What’s the state of the politics on the issue of mass incarceration? Is it really a progressive issue? Who are the constituencies, if any, who think we have the right number of people in prison? Yeah.

Rachel Barkow:

So for a while the constituencies for criminalization and punishment were both Democrats and Republicans and they basically just fought each other to see who could look tougher, be tougher. And that was the dynamic really until starting, and I would say around 2008 when we had our fiscal crisis and there were state governors and legislators that realized, “Wow, this is really expensive.” If you’re going to incarcerate everybody, got to pay for that. And they were running into financial constraints. That was sort of the first shift to maybe we should put some… Like hold back a little bit. And then the other big shift I would say came with the George Floyd protest summer of people really focusing in on the racial injustice and a big progressive swing towards controlling it. And in between there, there were other things that I think happened that helped push back a little bit.

I think Michelle Alexander’s book, The New Jim Crow, was actually a really important kind of step along the way to questioning things because I think she was really the first prominent person to call out the racial justice issues associated with it. And her doing that really led to a lot of racial justice groups saying, “Gosh, she’s right. This is the racial justice issue of our time and maybe we should think about it.” So there was a little bit of a pullback, but I got to say in 2025 where we are now, I think we’ve regressed again and we’re back a little bit more to the, I don’t know that people care as much about it as they did in that kind of peak George Floyd summer. But I still think there’s some interest. And I will say I think it is on the left and the right for very different reasons.

When you hear Trump talk about the deep state and you hear Kash Patel talking about agents going too far. I mean if you didn’t know what they were talking about, you could think that was someone on the left saying, “Yeah, gosh, prosecutors are too aggressive. They come down too hard, things are too harsh.” So there is some instinct I think on even the right to say, “Wow, is this what we do?” Now, I think they only care about it when it applies frankly to them. And I’m not sure they have a global concern with this.

Preet Bharara:

There’s not a lot of coherence. I want to definitely want to get to that. But as you mentioned, Trump administration and we talk about cost, what comes to mind is the DOGE, which is purporting to do lots of things including shut down USAID and all sorts of other stuff. One of the big expenses of the federal government is running these prisons. So maybe I’ve missed it, but have we heard Elon Musk or the DOGE talk about cutting costs and cutting personnel in our prison system?

Rachel Barkow:

I have not seen that. That is a tough one to try to, it’s not like they’re profligate in terms of excess and our federal prisons are actually better than our state prisons are in terms of conditions. But the biggest cost with running a prison is labor. And it’s not like they really have excess labor to deal with because they really run them at the bare minimum as it is. You have people, everyone who performs a function in the Bureau of Prisons who works in a correctional facility also has to be all hands on deck if there was ever a security violation, if they’ve set the alarm off within the facility so they do double duty. And as it is the ratio between incarcerated person to staff, it’s a pretty big ratio right now. So I haven’t seen it. I mean it wouldn’t surprise me if he gets there because it doesn’t look like health, safety, and rationality is necessarily the driver. But it’d be very hard to do that and not risk some serious health and safety concerns. But I should say-

Preet Bharara:

Well, the way to do it is to let people out of prison.

Rachel Barkow:

Yes. If they were willing to do that, that could do it.

Preet Bharara:

Well, only some people, the white collar corruption people, they get to get out.

Rachel Barkow:

That there are just not enough of them to make a dent in the federal prison population. You would absolutely have to think about people who are there for drugs, firearms, immigration, and given everything they have said about their enforcement priorities, I don’t think they want to release at least the drug and immigration folks.

Preet Bharara:

Well, they could go straight from prison to their home countries where they haven’t been in a very long time, I suppose. But that’s all speculation. So you point to six particular… It’s a very organized book, which I love very much.

Rachel Barkow:

Thank you.

Preet Bharara:

Six Supreme Court decisions spanning from about the late ’60s to 1991. We can’t get to each of these, but among the things that you describe as a contributing to mass incarceration are decisions relating to pre-trial detention, plea bargaining, harsh sentences, prison conditions, stop and frisk, and racial bias. Let’s talk about a couple of them. So pre-trial detention, this is not a household name kind of case like some other cases are. United States versus Salerno, maybe even some people who are at a bit of some distance from law school may not know it. How is that decision… How does that bear on the issue we’re talking about?

Rachel Barkow:

Yeah, sure. Pre-trial detention, I don’t have to tell you, Preet, but I’ll tell your listeners. So if you have been just charged with a crime and not convicted, you would think you’re presumed innocent until you are convicted and therefore you don’t get your punishment. You don’t get thrown in a prison until after your conviction. And basically that was the way things worked in America. That’s what everybody understood to be what we were supposed to be doing for most of our country’s history. Until the Nixon administration and Richard Nixon decided that he wanted the ability to detain people before they’d been convicted if they were deemed to be dangerous. And before that, you could detain people because they were a flight risk. We’ve always had that. That’s the whole point of bail, is just making sure someone appears before a judge. So they have their trial, they don’t intimidate witnesses, but you couldn’t just lock somebody up because you thought, “Oh my gosh, I think they committed a crime.”

If you wanted to lock someone up because they were dangerous, you had to go through civil commitment proceedings. It’s actually much more difficult. So Richard Nixon decided, “I don’t like that.” And he set about on a course really to change the law. It’s super fascinating. So he asked lawyers in his administration, including William Rehnquist, who later becomes the chief justice and writes the decision approving this. He has him write a law for the District of Columbia that would allow you to detain people who were arrested if the government could show a substantial probability that they committed the crime and that they were dangerous. So it was a kind of narrow inroads into this idea. And he, at the same time, President Nixon, he had his Attorney General John Mitchell write a law review article, which is a kind of funny strategy in terms of the political climate.

I just thought that was interesting. John Mitchell writes a law review article saying, “Oh yeah, I know you didn’t think we could put people in jail who hadn’t been convicted of anything, but as it turns out, sure you can. Let me give you my new theory of the Constitution.” So he writes this law review article. There’s a response by Larry Tribe that just decimates every argument. I mean, it’s really quite good. But unfortunately in the DC courts that DC law ends up getting upheld. And I think it’s because we are in late 1960s, early 1970s, America is going through massive increases in homicide rates and crime, and there’s all kinds of unrest. People are protesting the protests turn to riots in many cases. So you’re looking a really, a time of, it’s tumultuous and people are very scared.

So the DC Court upholds this, and then the federal government writes a bail law that’s way more sweeping the Federal Bail Reform Act that basically says, “Oh yeah, you could detain anybody who you think is dangerous. And in fact, let’s just presume that to be the case for everyone who has been arrested for a drug offense that has a certain statutory maximum,” which turns out to be almost everybody who’s arrested for a federal drug offense. That law gets to the Supreme Court. It was passed in 1984. It gets to the Supreme Court in this case called Salerno. And some people might know who Salerno is because he was the head of the Genovese crime family. Anthony Salerno, Fat Tony as he was known.

Preet Bharara:

Fat Tony.

Rachel Barkow:

So the government thinks this is the perfect case. If you wanted to think of your test case to get the court to say, of course you got to be able to detain dangerous people, it’s hard to beat two leaders of one of the major crime families because the idea would be if you let them out, they’re going to keep running their crime family. Now interestingly, one more little piece of trivia on that case that I thought was interesting when I was looking into it. It turns out Fat Tony at that point was no longer being detained pre-trial. He’d actually already been convicted of other things. So he was actually serving his sentence. So the case should have been moot as to him. And then his lieutenant, who was also in the case, he was also out. He was no longer in pre-trial detention because the government had signed him up as a cooperator.

So he was out and about. So the case should have never even been heard by the court, but I think the court at that point was eager to give the government the win. Chief Justice Rehnquist was eager to write the opinion to say basically the grandchild of the law he wrote himself was fine. And ever since that case was decided, we’ve just seen a sea change in the number of people who have been put in jails who are supposed to be presumed innocent, that would’ve been put in jails often for really long periods of time, years in some cases, it’s an average of a year these days, and it’s all because they’re arrested of a crime and they’re deemed to be dangerous.

Preet Bharara:

Stay tuned, there’s more coming up after this.

So I, as a prosecutor, under the federal system that I inherited when I became a prosecutor, sought and oversaw the seeking of lots and lots of pre-trial detention. I always thought that was appropriate. So we don’t maybe fully agree, but to understand the scope of what you’re saying, is it your view that the dangerousness should never be a basis for pre-trial detention or it should be exceedingly, exceedingly hard or it should be moderately hard or harder than it is? Because a lot of people will say, “If you’ve been accused of committing certain crimes, it takes a while to get to trial.” But there’s overwhelming proof of it even advance of the trial, which often there is, that it would be lunacy to let that person out, particularly in domestic violence situations. So I just want to understand what the view is on your side.

Rachel Barkow:

Yeah, so I’m telling you what the Constitution says. So what our history and tradition and what-

Preet Bharara:

You’re scapegoating the Constitution yet again?

Rachel Barkow:

No, no, I’m not actually, I agree with it. So I’ll own up to it. So basically you can’t just arrest somebody and then the arrest alone be the basis for putting them behind bars. What you can do, I do think it’s, yes, you can detain dangerous people, but you have to go through the procedure that we use for anyone we think is dangerous. So I think in some cases it’s easy because you have the evidence of the crime that you’re accusing them of, and that’s what you put before the judge when you say, “Yeah, look, I have clear and convincing evidence this person is a danger. Here it is.” What I think the court ended up approving in Salerno though was to create a situation where the government has to show essentially nothing. I mean, it’s kind of incredible. So in the federal system, we are now at the point that 75% of all the people in federal court are detained before they’ve ever been convicted.

And the reason for that is largely driven by the fact that Congress just said, “You know what? Anytime you’re arrested for a drug crime, we’re presuming you’re dangerous.” So your example, Preet, makes sense, right? It’s a domestic violence case. You have a witness testify about the fact that they’re afraid of being harmed again, that’s a whole different ball of wax than just saying, “Yeah, you sold drugs. And you know what? We, Congress, we just think generally people who sell drugs, they’re scary.” So let’s lock them up before they’ve ever had a jury of their peers find them guilty before they ever pleaded guilty, before they ever got any of their constitutional due process. And I think I definitely understand, one of the reasons I wanted to write the book was because I think that everyone has just grown so used to the world we live in now that it’s been for Salerno and it’s been 40 years since the court said this was okay, and it’s been 50 years since that DC law.

And what’s interesting to me is that Nixon achieved exactly what he wanted. He wanted to change what people thought was acceptable because up until that point, no one thought that was acceptable. And now here we are 50 years later saying, “How could you not lock them up before trial?” And I think the issue is something that might be necessary in moderation for safety, which I agree, becomes accepted to the point that you use it routinely and then you overuse it. And that is clearly what we have done when it comes to pre-trial detention. We have people, if you go into facilities around the country and you see who’s there pre-trial, most of those people do not need… They’re not Hannibal Lecter, they’re not people who are in there for domestic violence. These are people who they’re just being detained frankly, because prosecutors figure, “Why not? I’m going to ask for it. I don’t want to be blamed if they get out and they do something bad.”

And judges who are elected in most places, they do the same thing. They just say, “Okay, fine. Let’s just lock them up.” And even in the federal system where the judges have life tenure, they’re very unthinking about just, okay, well there’s these presumptions. You’re presumed dangerous. You were charged with a drug crime. Fine. And so what I’m hoping is to get people to kind of take a step back and say, “Do we really need to do this?” Because that is how you end up the most carceral nation on earth, by the way, is you just kind of do this without thinking about it. It’s necessity in all these cases.

Preet Bharara:

Am I correct that in New York State, one can’t move for pre-trial detention based on dangerousness?

Rachel Barkow:

So New York is the only state that has kept the traditional rule, which by the way-

Preet Bharara:

Right. And that has not been necessarily the most popular position in New York state, correct?

Rachel Barkow:

No, it’s not. Politically, none of this stuff is popular. So the other point of the book is that the court just caves to the pressure of none of the stuff that I am talking about in that book would be politically popular to do. And I think that’s one of the reasons why the court doesn’t want to stop the government. They want to let the government do the thing that’s popular. In New York where it’s just dangerous, I will say, because it’s important to mention, that even when you don’t allow it, which no one ever used to think you could, it was the case that judges and prosecutors found ways to detain people anyway, because you are allowed to detain people for being a flight risk, for witness intimidation, and you can set a bail amount. And I think what you see in New York, for example, is a lot of judges set the bail amount not really based on whether someone is a risk of failure to appear, but because the judge thinks they’re dangerous.

Preet Bharara:

Well, there’s a lot of problems with the setting of bail, extraordinarily high levels, but on this issue of things used to be different and the Supreme Court made decisions of a certain stripe, and then we just get used to it and maybe we shouldn’t. I just was thinking that some of these cases you mentioned, obviously given the theme of your book, are things that have been not protective of defendants rights and have contributed to the mass incarceration problem. No question. During the same period, there were also, I think you acknowledge this, there were a series of seminal Supreme Court decisions that I don’t imagine were super popular at the time that we have grown accustomed to and believe that that’s the way that things should go in the other direction.

For example, Miranda, for example, Mafia Ohio on the exclusionary rule, Gideon V. Wainwright. People are surprised to learn that it wasn’t until the 1960s that you got a lawyer if you couldn’t afford one. So how do you square the decisions you talk about in your book in the one direction and these very monumental protections of defendants in ways that by the way, are also surprising, but in the other direction.

Rachel Barkow:

And I actually think that in part the Supreme Court, it’s the reaction to how the public reacted to cases like Mapp and Miranda in particular is what leads the court to back off on going that direction any further because-

Preet Bharara:

It’s the pendulum.

Rachel Barkow:

Yeah, so the first case chronologically in the list that I’m talking about, that where the court really kind of… And I should just say methodologically, so people know, I’m not just picking six cases I disagree with. There’s way more than six. I would need a multi-volume treatise. But the six-

Preet Bharara:

Well, you got time, you’re young.

Rachel Barkow:

… are selected because if you are a textualist, if you think we just got to go with what the constitution says, if you’re someone who’s into original meaning, so you want to know the history. If you’re someone who’s like, “No, the court just needs to adhere to long-standing precedent,” or if you’re someone who cares about equality and liberty, these are six cases, they fail on all the benchmarks. So that’s why I picked them. And so what’s interesting is in Terry versus Ohio, which is a case that comes to the court in 1968, so the year of 1968 is a presidential election. And in the presidential election, the Supreme Court’s prior decisions of Mapp, the exclusionary rule case where even if evidence had been obtained in violation of the Constitution, you can’t use it in somebody’s case and Miranda, where you give the warnings so that people understand their rights, not popular decisions. In fact, so not popular that in the 1968 election, Richard Nixon and George Wallace basically run against the court.

They say, “This is court is lawless.” There’s Impeach Earl Warren signs on people’s lawns. So you’d have to imagine, it’d be like for us, it would be that instead of just those ubiquitous Trump signs, you would have seen as many Impeach John Robert signs. So the court knows this. And actually if you go back and you read the court’s papers, the justice’s papers in Terry versus Ohio, which is this case against the Supreme Court in 1968, and it asks, can the police stop somebody and then frisk them for weapons even if the police don’t have probable cause? Because under the Constitution, very clear you need probable cause. Everybody assumed you need probable cause for 200 years. No one thought otherwise. You need probable cause. But that case gets to the Supreme Court in 1968 while there are these signs on the lawn that say, “Impeach Earl Warren.”

And you look in the Justice’s papers and it is really clear, they are basically saying to each other, “We can’t go against the police, again.” Like, we got those two. But seriously, they’re really afraid. They’re focused on the politics. They try to figure out how to write this opinion. At first they were going to say, “Well, there is probable cause in that case,” but you can’t under the facts of the case, we can talk about it if you want to. So they struggle to find a way to write the opinion. And it’s really interesting to see how explicit they are about being attentive to the politics of the time that they’re living in.

And so yes, you’re right that we did have these, and I think people tend to think of the Supreme Court because of Mapp and Miranda, like this is the court that cares about defendants rights. And I think what they forget is those are truly outliers. And when you look at, for example, the cases in my book, you realize actually most of the time the court isn’t out there standing up for those rights. They’re actually as fearful as every other American voter who votes for the tough on crime stuff and they cave and they allow these things to happen.

Preet Bharara:

So for a moment, expanding beyond criminal law, do you think the current Supreme Court cares about political blowback when it decides cases like Dobbs? How do you compare the current court to the Warren court in the way that you’ve been talking about as being afraid of public opinion? Doesn’t seem that’s a problem anymore.

Rachel Barkow:

Yeah, well, so I actually think these cases in my book are super interesting test cases for this court because as I said, I go through all the constitutional methodologies, but I do spend a fair amount of time on the originalist points that if the framers came back and saw any of these. They would be like, “Are you kidding me? No way.” And when I say the history is clear in these cases, if you don’t want to buy the book, you just have to trust me then when I tell you these are slam dunk-

Preet Bharara:

Buy the book, folks. Buy the book.

Rachel Barkow:

But these are slam dunk originalist cases. And I’m just going to put my former Scalia hat on here for a minute. So I’ll just tell your listeners, I do know a thing or two about how you do originalist methodology and how conservative justice is. Think about that stuff. I clerked for Justice Scalia, however, I am a Democrat and not a Republican. And one thing that has always interested me is that it’s the Republicans who go on offense in using originalism. They’re always the ones that want to kind of like, “Let’s go back, let’s dig it up, let’s find things.” And I feel like the left has some lost opportunities to find some examples like the ones in my book where if you are a originalist and you mean it, you have to agree these cases are also just as bad, frankly, in many cases worse because the history is so clear here.

So what would be interesting to me is to put these cases to the test before the current Supreme Court and see what they think. Because I think that in the cases where the court has said they’re originalist, and they have to go back to the… It just so coincidentally happens to correspond to beliefs they feel super strongly about personally. So even if there is political blowback, I think you might find the justices saying, “Well, that’s what we do. That is the constitutional government we live under. There’ll be blowback, but we’re supposed to protect against the tyranny of the majority.” And I think these justices see it vividly when it’s a right they care about or it’s an issue they care about. So I think they’re not super sympathetic to abortion rights. So for them, overruling Roe versus Wade just happens to comport with their… Well, lo and behold, it’s also just their personal view of things. These cases are-

Preet Bharara:

Shocking.

Rachel Barkow:

… interesting because I don’t think they are. I don’t think that the justices, a majority of them, feel super strongly about defendants rights. And so the question would be, are they willing to do something that’s unpopular for a cause that’s not also their personal cause? And I have my guess is what the answer might be, but I like to believe that maybe they would be principled. Maybe this would be a way for them to show, yes, it’s actually fealty to this interpretive methodology and I’m not results-oriented. And let me show you by voting this way in a case that produces an outcome that doesn’t actually match up with my politics.

Preet Bharara:

Can you engage in a hypothetical with me?

Rachel Barkow:

Sure.

Preet Bharara:

So now let’s say we’re five years from now and you’re back on the show and you’ve written in another book, and the book is about the Trump administration’s approach to criminal justice. What do you imagine that book would focus on? And just the way I’ve been thinking about it, and we alluded to it earlier, is there doesn’t seem to be a lot of coherence. Pam Bondi says, we’re not going to prosecute or enforce the laws relating to certain white collar crimes like the Foreign Corrupt Practices Act, the Foreign Agents Registration Act, corruption, generally. Violence, yeah, we want to enforce those laws, but unless it was done at the Capitol, then you get to buy both through pardons and otherwise. What’s that book, the Rachel Barkow book going to look like in five years about the Trump administration of justice?

Rachel Barkow:

I don’t know, I might be writing it from Malta because I’ll have left. But I think that book is going to talk about the use of the enforcement apparatus in ways that look authoritarian, because that is what I’m fearful is the common thread of the things that you just talked about. Because otherwise it looks inconsistent like, well, how can you say you want really great enforcement for let’s say drug crimes, but at the same time you’re decimating the FBI and your prosecutor’s offices around the country and you’re laying people off. I think what you’re seeing first and foremost among this administration is a politicization of what it means to enforce crime. And so he would like to have people who work for him throughout the executive branch who are loyalists, people who buy into this idea that what Trump says is the law and is correct.

And they also buy into this theory that the president controls the whole executive branch and gets to tell them what to do, including the prosecutors and this particular president because this particular president believes that there’s a deep state that has weaponized the government against him and people like him. The claim is that, so the people who work for him now need to kind of go about charging the people who engaged in the weaponization. Now it’s total doublespeak, and actually it’s Trump who looks like he’s getting ready to prosecute people who are his enemies and that he doesn’t like. But I think it’s turning the federal criminal enforcement structure into basically a group of loyalists who just does what he wants. And of course, if that sounds familiar to you, it’s certainly not an American tradition, but it is what you would see in authoritarian countries.

Preet Bharara:

I can’t let you go, Rachel, obviously without talking about another area of expertise you have within criminal law, and that is the pardon power. I channel you in my class from time to time because you can’t be there. So we had a series of pardons and commutations granted by Joe Biden, a whole slew of which were granted by President Trump relating to the January 6th activities. Quickly, your thoughts on either or both?

Rachel Barkow:

Oh, yeah. The thoughts are… It’s so awful.

Preet Bharara:

We created a transcript. How are we going to transcribe?

Rachel Barkow:

Yeah, I know. You need a facial expression of complete despair. I was not surprised by the Trump pardons because he said he was going to do it. He did it. And I will say though, that I am surprised at the sweep because he never fully committed that it was going to be everybody. And he certainly didn’t say that he would have his Department of Justice willing to say not just what you did on January 6th, but had you been investigated for other things. The pardon includes that too. It’s like a complete pardon for anything you might need us for a pardon.

Preet Bharara:

But you’re pro pardon, Rachel. Aren’t you?

Rachel Barkow:

I am pro pardon. And that’s why this is so depressing, because the pardon power is a power that is really only checked by politics. You check that by electing people with the good sense and judgment, who exercise it in ways that make it equally available to all who deserve it. And they don’t just give it to their friends and their cronies, and both the Biden administration and the Trump administration, the reason that both of them give me worries is that they did show favoritism to people in their lives. And even Biden, Biden had positive recommendations from his pardon attorney. There’s an article in the Wall Street Journal about this. She had vetted them. It’s so hard to get a positive recommendation from the pardon attorney. Those people filed their applications, they did everything they were supposed to. There were hundreds of them, and he just shut the door behind him when he left office and didn’t grant any of them.

And that to me is disgusting. So he should be faulted for that. And the Trump administration as it’s underway, they’re right back to where they left off. And Trump 1.0 where it’s cronies, it’s people who on Fox News are telling you, you should grant things. They’re trying to send out a message, “If you’re loyal to me, then I’ll have your back in federal prosecutions.” So it’s a bad time for the pardon power. It really is. Because my worry is that people are going to think that’s just what it’s for, when in fact, it’s a really important power for error correction. We do not have a justice system that is error free. We make mistakes and we have people serving sentences that are too long. And in the federal system, there really is no other corrective than the president, which is kind of ridiculous. But that’s true.

We don’t have parole. Compassionate release is very narrow. It depends on the judge that you get. And so you really need to have the president have a review process in place that has a check on your sentence. And so I think you’re seeing with Biden at the end, and what we’re looking at now in the Trump administration does not give me a lot of cause of hope that people are going to say, “Oh yes, I see this is a really important thing and I want to support it.” I think they’re going to think, “Why do we even have this power at all?” And so I guess what I would just say is, in this case, you just have to remember it’s who’s exercising it that matters, not the power itself that’s the problem.

Preet Bharara:

So thank you for your time, Rachel. Congratulations on the book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. And I’ll say, there’s only one other point of scholarship of yours that I take issue with, and I don’t want to debate it because it’s my show. And that is you favor pleaded when you should favor pled.

Rachel Barkow:

Oh, yeah. I do favor pleaded.

Preet Bharara:

Yeah. Okay. We’ll debate that another time. Thanks so much.

Rachel Barkow:

Yeah, that’ll be a good episode.

Preet Bharara:

Thanks, Rachel.

Rachel Barkow:

Thank you.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former U.S. Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet.

You can also now reach me on Bluesky, or you can call and leave me a message at 833-997-7338. That’s 833-99-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner, and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.