Episode 92: Jessica S. Henry
Professor, Legal Commentator, Social Justice Advocate, and Author of Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened
00:56:14
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Show Notes
What exactly are no crime wrongful convictions? In this episode, Jessica S. Henry shares thought-provoking insights from her new book, Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened. Jessica is a professor, legal commentator, social justice advocate, and blogger. Her award-winning book highlights a prevailing yet underlooked issue in the legal justice system that impacts the victims of such phenomena and society at large. Along with host MC Sungaila, the two discuss the various downstream effects of wrongful convictions and how we can remedy the system to help the community instead of punishing already disadvantaged individuals who are innocent. Today’s episode is filled with eye-opening insights that encourage us to ask more questions as to how the legal system works and doesn’t work.
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Relevant episode links:
Jessica S. Henry, Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened, A Man Called Ove, Anxious People, Beartown, Equal Justice Initiative
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About Jessica S. Henry:
Jessica S. Henry
Jessica Henry is an author, legal commentator, blogger and social justice advocate. After obtaining her J.D. from N.Y.U. School of Law, Henry served as a public defender in New York City for nearly a decade. Professor Henry is the author of the award-winning book, Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened (U.C. Press 2020), https://jessicahenryjustice.com/smoke-but-no-fire-convicting-the-innocent-of-crimes-that-never-happened/.
Professor Henry has written numerous articles for academic and mainstream publications. Her research interests include wrongful convictions, severe sentences (including the death penalty and life without parole), and hate crimes. She frequently appears as a commentator on national and local television and radio, and has been widely cited in the mainstream media. Professor Henry was named the 2022 University Distinguished Scholar in recognition of her outstanding scholarship.
In 2015, Henry received the Montclair State University Distinguished Teacher Award for her excellence in teaching. Henry teaches a wide range of classes including Wrongful Convictions, Criminal Law and Procedure, Death Penalty Perspectives, and Hate Crimes. Visit her website at http://jessicahenryjustice.com/.
Transcript
I'm pleased to have joined the show, Jessica S. Henry, who serves in an undergraduate and a professor position at Montclair University. Thank you so much for joining, Jessica.
Thank you so much for having me.
I'm very interested in your career, progression, and work in your position and how you've brought your expertise from your time as a public defender into the academic space and more public policy discussions regarding Criminal Law. How you've done that in the undergraduate teaching context? It's because we have had folks who are law professors, and that's what you would expect would happen if you are going into teaching with a Kaw degree. I want to explore undergraduate and what that looks like if folks might not have considered that as an option after having gone to law school. First, I wanted to start with law school in terms of how you decided and what inspired you to go into law and to law school.
I have wanted to be a lawyer since I was a little girl. I always stood up for people who were being picked on or bullied. All of my teachers would say to me, "You should be a lawyer one day." It seemed to me to be the thing that I was supposed to do, and when I went to college, I got an internship at the local courthouse. Across the street from the courthouse was a bar where I used to wait tables to make some extra money, and the Criminal Defense Bar used to hang out there.
It slowly became clear to me that the thing that I needed to do was 1) Become a lawyer and 2) To become a criminal defense lawyer. I was able to hone that a little bit later with the discovery of what it meant to be a public defender and what it meant to represent poor people or people who have no one in their court except for the lawyer assigned to them. That seemed to me to be the highest calling a lawyer could answer. When I went to law school, it was with the desire and the intention to be a public defender.
That's interesting because I don't know that people generally are that focused and not clear. You don't have that clarity before they go to law school. Second of all, if they have that clarity, it isn't very often that it ends up going all the way through law school and that what it is you thought you wanted to do is your like, and that is something that you enjoy doing. Good thing that there was continuity, and it was what you thought it would be.
To me, Criminal Law is a fascinating area of law. It raises so many fascinating issues that these stories are juicy and compelling and involve real people. When you are serving in the capacity of a public defender, you are on the frontline. You are the sole person preventing or holding up the weight of the state. All of courtroom is against you, and the judges are looking down at you, the prosecutor, assistants, experts, and the police. It's you and your client. There's something powerful about that.
That role of advocacy for the individual against the state and on behalf of the constitution, in many cases, represents an individual that plays an important role in our constitutional system as well. There's a larger purpose too.
Public defense is a civil rights work. You are entering a system or a structure that's biased against poor people. In this country, many poor people, particularly in the urban settings where I worked, are people of color. There's the real structural or political advocacy role that goes beyond the individual case because you are saying, "We need to carefully examine the system in the context of this individual."
I don't want to jump too far ahead, but I am so fascinated by your academic work and book, which opened my eyes to situations I hadn't thought of. I have familiar with innocence clinic work and certainly the traditional understanding of that work which deals with crimes. There's a crime, but this person didn't do it.
Tweet: Over one-third of all known exonerations in the registry are no crime wrongful convictions; innocent people are wrongly convicted of crimes that simply never happened.
You explore the next frontier of this, which is that there wasn't a crime at all. It isn't just that we got the wrong person. There wasn't a crime. This whole thing is misconceived. What opened my eyes too was the question of misdemeanors, how misdemeanors are so ripe for this type of thing. Do you want to explore a little bit about how did you decide? Was it your work in the Public Defender's Office that led you to this question of no-crime or wrongful convictions?
When I joined the Department of Justice Studies at Montclair State University, I had to come up with a research agenda because it was a tenure-track position. I wasn't allowed to write in law reviews, so that's a background. I had to teach myself how to write as a social scientist or as someone who was a criminologist.
That's a wrinkle in undergraduate teaching.
It was a different skillset. I looked at what I knew, which was the criminal legal system, and that's where I began. I looked at prisoner reentry, which was a big issue for me when I was a practicing public defender, but also issues around excessive sentencing which led me to develop a course on the death penalty. From my course on the death penalty, I fell down the rabbit hole of wrongful convictions because there are so many folks who are on death row who are innocent.
The number of exonerations from death row, like 1 in 9 people who were sentenced to die, is crazy. If you knew your plane was going to crash that frequently, you wouldn't fly, and yet we are very comfortable sentencing people to die, knowing that we have such a high rate of getting it wrong. I developed a course on wrongful convictions.
For anyone who's interested in the question or the subject of wrongful convictions and innocence, there's a wonderful database called the National Registry of Exonerations. It's relatively new, and it has been tracking exonerations since 1998. I use it in my undergraduate class all the time. It's a very friendly database and website. I have my students go there and poke around.
I noticed in preparing for a class that 1/3 of all of the cases listed in the National Registry of Exonerations were for crimes that never happened or no-crime wrongful convictions. I thought, "that's got to be wrong. 1/3 seems crazy. That's high." I asked them, and sure enough, over 1/3 of all known exonerations in the registry are no-crime wrongful convictions. Innocent people are wrongly convicted of crimes that simply never happened.
When I got that confirmation, I knew I had to learn more. I couldn't get my head around that. That's how the book Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened. That's how that came about because I couldn't believe it. I figured if I, who teach about this, study this, and write about it, didn't know how prevalent of an issue it was, nobody did. That was the genesis of the book.
You're right since it's an area that you are like, "I should have encountered this. How come I didn't know this? A lot of other people don't know this." It's for the general public and prosecutors and judges to understand that can happen, so there's a sensitivity to that in adjudicating cases in the first place. I know I was doing work on a brief in a case involving Jeffrey Epstein. I fell down a rabbit hole in that one on behalf of the victims, looking at it and realizing how these things can happen where those who are trafficked have very long criminal records themselves before any trafficking is discovered.
That's what I found in my statistical research. It led me toward, "Why are we prosecuting these people in convicting these people who are victims of larger crimes, to begin with? Couldn't we perhaps, along the way, have discovered the trafficking beforehand? What do we have in place to address this? We may have new laws with regard to the expungement of those crimes, but how do we deal with it on the front end, so people don't have to expunge? Shouldn't we have some more fail-safe efforts in the beginning?" Data statistics can slap you in the face and go, "Why are we doing it this way? What is going on that this can happen with such frequency?"
The no-crime wrongful conviction now that I have written the book and had an opportunity to marinate in is an extension of my work as a public defender. I talk about this in the book. When I was in the South Bronx, a lot of the cases that came through were trespass cases. Police officers got permission from a whole host of low-income housing buildings to go and arrest people who were trespassing. It was under this big project in the city under then-Mayor Giuliani. People were routinely arrested in the lobby of their own buildings or were arrested for visiting a friend, which is not trespassing.
They would get whisked off by the police. They'd be handcuffed and thrown into the back of a patrol car. They'd be brought into the precinct and booked, and then they would have to go through arraignment and sometimes spend the night. I would say to them when I met them, "This isn't trespassing. You weren't trespassing. If you come back to court, we can get this case dismissed."
Invariably, my clients did not want to come back to court. They didn't want to suffer the indignity of having to go through these security lines. They didn't want to miss another day of work. They didn't have childcare. They had all valid reasons for entering pleas to trespasses that never happened, and it used to drive me crazy. It used to make me angry that I was representing people who were pleading guilty and getting convictions on their records for things like trespass, which is a relatively minor offense, but it's an offense nonetheless when they didn't do anything wrong. My big discovery was in the context of more serious crimes. I was struck. This is something that has bothered, fascinated, and troubled my entire career.
That's something that is a thread that I certainly hear from others who've been on the show, but yours is a unique mosaic of your experiences. We end up in places that, in retrospect, look like they make a lot of sense, but moving along, we don't realize how it all fits together. In your case, your experience in the Public Defender's Office, and then in academia that you are more than many people that I have seen immigrating that your experience as an advocate into the academic realm. As a result, the work that you are doing has immediate relevance to the real world and to the work. People who are public defenders or are in the system in other ways in the Criminal Law system would have an immediate resonance to them because you are bringing your real-life experiences into the academic inquiries you do.
There's an interesting loop between all of that. You are integrated into all of this, and you said that you are experienced. You realize, "I was experiencing some of this as a defender. I have had a very strong sense of injustice about it for a while. It bothered me, and now I'm able to address it through academic study." That's partly why it fascinated me to talk to you, too. It's not like you went into academia and left your previous work aside. It's all one piece for you.
I often say I'm an accidental academic. It was never my intention to go into academia. When I was given the opportunity to do so, I felt incredibly blessed because I got to teach about, write about, and talk about the very thing that I love, which is the criminal legal system and all of the tragedies and reforms that go into those conversations.
There are certain things that sparked that along the way, like finding a certain data set that jarred you and then integrating that with your own experiences in representing clients. How was it that you got the opportunity to go? It sounds like you enjoyed being a public defender and doing that work. What made you decide that the next place to be was academia?
I was a public defender for several years. I did both trial work and appellate work, and you are right. I did love it. Sometimes I still miss that direct advocacy. I live close to Montclair State University, and a position opened. A friend told me about the position then I figured I would apply. For a variety of reasons, I want to be the last applicant standing. I was very fortunate that out of over 100 applicants, I was offered this position. It was so close, and it was the time when my children were babies. It all came together nicely for me, and I thought, "Let me give it a try."
Trying to get tenure while you are mothering young children is no easy feat. Because of its proximity and the flexibility it gave me, which was different than what I was doing when I was working as an attorney, it did wind up working out for me. It was something I loved. I teach three classes in a semester. Most of my classes are always full with 35 students. I get to touch so many students and engage with so many students about this stuff that's gorgeous, exciting, provocative, and interesting. We have a great time doing it. It's a lot of fun to engage with 19, 20, and 21-year-olds who are still forming their ideas about, "What is criminal justice? What is this criminal legal system? What role could I play?"
That merges or converges with my interest in this show, too, in terms of opening up avenues of thinking for people who may not even know whether they want to go to law school yet, what role they could play with a Law degree, and opening up people's minds about what that could look like. Maybe something will resonate with them. I have always found that even if you end up not doing what it is you intended to go to law school for, you do work a lot harder and are able to stay through the tough times, especially in the first year in law school, if you have some mission or meaning for why you are there.
The percentage of exonerations that actually involve no crime cases may well be much higher, and that is, in part, because of these police fabrications.
My students tend to be first-generation college students. It's exciting for them to have a mentor, particularly for young women, to see how exciting law school and a Law degree can be. A lot of my students are interested in law enforcement, and for them to hear this perspective can help shape what they may go into and what they do in the field.
That's what I was going to ask you about, too, with your students. Because you are teaching an undergraduate, you may end up working in the criminal legal system, but in a number of different ways. Not necessarily as lawyers, but thinking about the impact you have on their perspectives in that role down the line.
They want to go into law enforcement or government work. Some of them go on to be social workers. I have a lot of students who go into paralegal work so that they can save money to eventually go to law school, and then I have students who go directly to law school. I have got a broad swath of students who are interested in justice and all of its myriad forms. It's up to me to make the academic coursework relevant to them so that they can pull whatever it is that they need for their future.
You have a unique set of experiences in terms of doing the trial work at the Public Defender's Office and then the appellate level work. Maybe you can talk about that a little bit in terms of the difference between that and what different skills in each of those are required.
I started out as an appellate public defender. I did that for three years. When I went to the Bronx Defender's Office, it was funny because I was working very hard to create a record.
That's what I was going to say about the interplay between those two. Somebody I clerked with on the Ninth Circuit has an appellate background like me. Now she runs an innocence clinic. It's a joy to work with her because you can see her thinking about creating the record in a very unusual way for someone who's litigating in the trial court. It's second nature to her to create that record and using that experience in that role.
That was something that was different and funny. I filed a lot of motions because I wanted to make sure I had a paper trail that the future appellate lawyer could look at. Both the offices that I chose to work at are holistic public defender offices. Meaning we try to look at our clients as whole people. Even though clients were incarcerated for serving lengthy sentences, we would meet with their families. We would go to whatever facility they were being housed in.
We tried hard to be as client-centered as we could be and advocate from that perspective. In that sense, they were similar lenses that I brought, some other perspectives. Being in a courtroom on a day-to-day and minute-to-minute basis is much more immediate in that way, and trying to recognize, "How did we get here? What are the factors that contributed to this situation? How can we best address it?"
There were two things in there that struck me. The difference between trial court work and appellate work is different in terms of a faster pace. You are moving quickly in the trial court, especially in criminal proceedings. It's not common to have a lot of motion, so you brought that from the appellate realm into it and also the question of holistic public defenders. Maybe you can describe a little bit about that. You are looking at the whole of the person and their family, but were you also more holistic in the services you provided?
It's a little more than you usually do at the appellate level. We had social workers and investigators on staff. At the Bronx Defender's, I had a social worker on my team, so I could always ask someone to help me with mitigation if I needed it. We had an investigator who would work for hand in hand with you from the outset.
We had lawyers who were doing civil work underneath the same roof, so we had opportunities to say, "This person has a housing issue, and that's greatly contributing to why he or she keeps getting arrested in this context." We could do things like try to identify housing or job opportunities. It helped with the criminal cases because you could go to a judge and say, "We don't need to incarcerate this person. We don't even need to convict this person. Why don't we defer prosecution for a little bit and see if we can't get this all wrapped up in a non-criminal way?" You can do that with a holistic public defender office in a way that you can't when the sole focus or the primary focus has to be churning through those cases and the case numbers.
When you are narrowly focused, "My job is only this," that happens a lot in the law in terms of specialization now. Even lawyers on the civil side are like, "That lie doesn't do. You need somebody else to do that." Your problem might have many prongs and many facets, and you need to have even a holistic view of the problem in that context.
It's even more so in the criminal legal system because if you are trying to address larger questions of recidivism or ongoing threat, you are like, "We might want to look at some of the incentives or other things that are going on." If we address those, we might also address this question of, "Is this person going to offend in some other way in the future?"
There's myopia that comes with anything being labeled a crime. Once something has been labeled a crime, you need to find the offender, and then you need to punish the offender. It becomes a sole cycle, and no one ever lifts their head up. It's hard to get people to lift their heads up and say like, "Hold on a second. Let's back it all the way up and see how we got here and what we can do about it, so we are not throwing so many people in prison because we don't need to be."
It's expensive in terms of human costs, the cost to the families of the incarcerated, the cost to society of housing people in prison, and the cost of folks getting out being traumatized from their years in prison. We can do better. Being in a role where you can say that it's helpful because getting people to pause and take a breath can make a difference in the outcome of a case.
What you said rings true to me. If you haven't had any participation or meaningful participation in how things proceed in a Criminal Law setting, it might seem like, "That couldn't happen," but it does. I have seen it with my friends who are criminal defenders. There's a system. Once you are in the system, the system moves forward exactly along the way you were saying, like, "Somebody's labeled something a crime whether it is a crime or not. We are in this box, and we are going down this track, and this is the track we go down, and here's how it works," without any sense of off-ramps or any sense of like, "Maybe we should take a pause and figure out whether we should be calling this a crime."
That dovetails back to some of the research I have been doing. For instance, a tragedy occurs when a child dies. Often it winds up being mislabeled. There's a misdiagnosis, so instead of accepting that, maybe we don't understand what happened. Maybe it was a sudden infant death, an undiagnosed illness, an unknown accident, or whatever may have happened. "This baby is dead. It must've been in the homicide."
It takes two steps like, "It must be a homicide, so arrest the person closest to them." We see in no-crime cases so many heartbreaking stories of parents devastated by the loss of their child. Can you imagine anything worse? Instead of being allowed to grieve or mourn, they're thrust into the role of a criminal suspect. The criminal defendant is incarcerated and accused of committing this terrible crime. All the while, they want their baby back, and they can't have their baby back because their baby inexplicably died. It's heartbreaking to see those types of stories, and yet they happen.
That's something about gender differences between defendants. There's an innocence clinic in Chicago that became focused on women offenders because their situations were so different. Often in what you are talking about, there are no-crime crimes in many instances for women who are clients of innocence clinics and often in very tight family dynamics. There are different emotionally driven cases involving their children in many instances. It's an interesting question of gender dynamics and the approaches that people take with regard to whether it's a male or female suspect.
Using the National Registry of Exonerations database, I encourage everybody to go and poke around. It's fun for me. This is my idea of fun. You'll see that women make up a very small percentage of all exonerees. It's less than 10%. Of the women exonerees, over 70% were convicted and no-crime cases. That's astonishing, and the vast majority of those do involve some injury, harm, or death to a family member. It's interesting and important for us to think about.
Lots of people plead guilty to crimes they didn't commit because they've got to go home.
I always think about the innocence project work, which started classically with DNA and scientific evidence casting doubt on the original jury findings. With the person where you say 1/3 of the registry involved no-crime situations, that's not something DNA addresses. DNA addresses whether you got the wrong person, not whether there was a crime or not. What struck me in your book was this question of, "If you are talking about such a high level of no-crime and wrongful convictions that cannot be answered or solved by DNA testing, what causes this?" You like to think that this is so rare. You like to think that the system generally works, especially for lawyers. We want to believe that because we believe in the system. We want to believe that it works.
You want to think that something spectacular confluence of events caused a miscarriage of justice in a particular case. Thank goodness. Otherwise, everything should be working fine. The no-crime, especially in the misdemeanor context and the other context in your book, shows that it could be a confluence of events that are much more ordinary, which is a little scarier, like something happening on the confluence of the police side versus witness having an incentive to lie. Putting that together is enough to result in a charge. It's mind-boggling that there are more pedestrian things that somehow converge and create this much higher percentage than we'd like in terms of no-crime convictions.
Whether it's a medical misdiagnosis or forensic error like what we were talking about, where an injury, an error, or death is misattributed to crime as opposed to an accident or illness, we also have false accusations, this notion of people lying, and they do. People lie for all reasons. That was a little tricky for me to talk about because you don't want to invalidate the very regular experiences of people who have survived all sexual abuse and sexual assault, have come forward, and maybe not been believed. There's this truth that sometimes people lie, and the consequences are dire.
You mentioned the police. Police sometimes plant evidence. They sometimes manufacture crimes that never occurred in the first place. Here's one of the things I will say which is interesting for those people who are following along with the statistical part of this conversation. One-third of all known exonerations involve no-crime wrongful convictions, but that does not count, all of the "group exonerations in the National Registry of Exonerations."
There are a whole host of police scandals where the police ripped apart whole communities. In Rampart, Los Angeles, there was a huge scandal there. Tulia, Texas, and Chicago, those cases aren't counted because it's very hard to determine when 100 cases get dismissed if all of those folks were factually innocent or whether some of them had some involvement.
The National Registry of Exonerations has created a separate group database. If you counted those cases, they would swallow the registry whole. The percentage of exonerations that involve no-crime cases may well be much higher. That is because of part of these police fabrications. Those are some of the sources of these no-crime cases. They can be heartbreaking.
That struck me like, "You want to believe that there's some amazingly difficult set of circumstances that shouldn't happen that often." It only takes a couple of things to converge and something as pedestrian as somebody, for whatever reason, was not a reliable witness.
It takes something very simple, like in an arson case. We have an issue with older arson cases where the fire investigator or the fire scientist is also part of the police team. They show up predisposed to looking for what they are looking for. If they designate something as arson, it is difficult to unpack that, even when it's not rooted in valid scientific evidence. People have been executed for arson murders, where, in retrospect, the evidence suggests they were innocent. Once that designation of crime has been brought to bear, the system seems to work overtime to find the person and do what they need to do to get convictions.
Despite our constitution, innocent until proven guilty and all of that. We are all human too. There's a significant level of confirmation bias as it goes through the process and how early that can happen. As you were saying, the arson investigator says, "Yes, it's arson." From that point forward, that impacts everybody else down the line in the process, from the prosecutor to the police prosecutor or the court. Everything flows from that.
You said this earlier. No one ever pauses and says, "Did we label this right in the first place?" It's hard to prove a negative.
That's the challenge too. When you are talking about the no-crime cases, the way you would be able to change that narrative is you have to go out and prove your own innocence in that way, and it's crazy.
It's super hard to because you are not saying, "I didn't do it. John did it." You are saying, "I didn't do it because this didn't happen," and then you are up against everybody else saying, "You did." It's a very difficult position to be in. That excludes all the other pressures on people. Lots of people plead guilty to crimes they didn't commit because they got to go home.
That was the other thing that shocked me that I'm like, "People pled guilty to it and all of the factors that would go towards pleading guilty." Especially when you are talking about misdemeanors, people think, "It's a misdemeanor," but there are a lot of collateral consequences from that.
Misdemeanors matter. If it were my child being asked to plead guilty to a misdemeanor, I'd say, "Absolutely not." You don't want that criminal justice fingerprint, and they can have dire consequences depending on the type of misdemeanor conviction. They can even interfere with your ability to get certain financial assistance or housing. In misdemeanors, you have lots of people pleading guilty in felony cases because they are panicked about what could happen if they go to trial.
There's the question of compounding on that. People are doing their job as prosecutors. They are going to charge a lot of things and then say, "We'll plead to less than that, I could add charges, or you could plead to this." There's a lot of pressure, as you indicated. That's completely mind-boggling and eye-opening to me. From your research in this, lending awareness to these issues, and the various factors that go into them, what next steps in that regard do you think in having some influence in your book and academic studies of how people approach things in the criminal legal system, or how public defenders, police, or district attorneys operate? Now that you've identified issues and some problems and factors to that, what do you think is next?
One of the things I have been keeping an eye on is around the country, and I don't want to overstate this, but reform prosecutors have taken office. The things coming out of those reform offices are exciting, whether in Austin, Texas, Chicago or even in San Antonio, Texas. Not to keep talking about Texas, but when they do something good, I feel like I should shout it from the rafters.
In Philadelphia, there are lots of good things happening there. Prosecutors are saying, "We don't have to charge people with certain crimes. We need to look more carefully. When we charge people with certain crimes, we need to hold the police accountable when they engage in unacceptable behavior, plant evidence, or fabricate charges." We are seeing a little bit of a higher level of accountability for prosecutor offices. All of that are positive steps towards reclaiming the justice that seems to have gotten a little bit lost in our criminal legal system.
There are some prosecutor offices that have innocence commissions that advise them or work with them in looking at prior convictions or things like that. It's not entirely separate like the innocence projects themselves are.
They have got second-look clinics. There are some exciting things happening at prosecutor's offices that can be very impactful and positive.
There's always pushback on the more progressive prosecutors and people being concerned about certain charges not being filed and things like that. There's the other side of the coin in terms of the innocence work and things like that.
Misdemeanors matter.
There should be more pushback on prosecutors who zealously prosecute cases without taking a step and saying, "What are we doing and why? How are we contributing to a situation where we are harming so many of our poorest citizens without making our communities safer?" That needs to be part of the conversation as well. I'd love to see some more pushback in areas that don't have progressive prosecutors because business as usual does not work. The vast number of people who've been exonerated and innocent people who have not been exonerated tell a scary, frightening, and disturbing story about our criminal legal system and how broken it is.
The numbers that you've been talking about are concerning because those are the numbers we know about. That seems extraordinarily high even for the ones that we are aware of in terms of the crime situation. What is your next work or next area of study? Are you continuing to dig into some of the things you wrote about in your book? Are there other aspects of the system that you are studying?
What I have been working on is an extension of the book a little bit. I have been looking at the question of accountability. What would it mean to hold, for instance, the prosecutor accountable for wrongdoing done in their prosecutor's office? We know that the prosecutors have absolute immunity. We know that the rationale for that, as offered by the Supreme Court, is, "They can be professionally disciplined, or they could be criminally prosecuted," but what does that translate into on the ground? Is anything happening to prosecutors, for instance? Should more be done? What standards should we use? What could that look like? That's what I have been looking at. I have two different research projects going on about that.
That is an offshoot of the work you've been doing already.
One of the things that often gets lost is we like to say, "That's a one-off. That was a bad actor." One of the things I tried to show in the book is it's not a one-off. There are systems, office dynamics, and professional dynamics in place that allow for almost encouraged injustices to occur at every stage. We need to start thinking a little bit better and a little bit more outside of the box, but ways that we can say, "Hang on a minute. Your job isn't to get convictions. It's to get a conviction of the right person, or perhaps it's to do justice, whatever that might mean in an individual case." Asking those questions a little bit differently could produce a very different looking and feeling system.
That's an interesting point that cuts across a lot of any workplace. What are you rewarding? What is rewarded is what happens. If you are rewarding off a straight number of convictions, records, or what have you, then that's going to yield a different way of operating. If you are talking about something else or have a different framework for things, that will reward a different behavior, and that behavior will prevail.
I'm talking about prosecutors so much. That's what I'm researching. There's a prosecutor's office that has almost baseball statistics about who's getting the most convictions in a month. That's going to encourage getting convictions. If you've got a prosecutor who's saying, "Sally dismissed the case because she didn't have the evidence she needed," and everyone clapped, that will produce a different mentality within an office. We see that a lot in the police culture with the blue wall of silence, but that is not the only legal culture that endorses, encourages, or allows for injustices to happen.
The perspective is that the criminal defense lawyer or the public defender is the one that focuses on the individual, the more holistic view of the individual client, and what's justice in their particular case, or what's In their particular case. The prosecuting attorney doesn't necessarily look at it that way as being their job. The job of the individual is the defense lawyer, not mine. Some of the courts that we have now involve some diversion or more holistic treatment like our drug courts or veterans courts, things like that. Everybody is encouraged to look at the whole situation and to try and get this person back on their feet and a contributing member of society.
I have seen that from the perspective of sitting on the bench pro tem in those courts. It's a vastly different situation because everybody is aligned toward the same goal of getting this individual moving forward. The ripple effect of that on society, their family, neighbors, or everyone touching them is so impactful. Having that different view instead of being purely adversarial with each other makes a difference. In those courts, I see this perspective of everyone looking at the individual.
That different lens in the courtroom from the prosecutor and the judge is transformative. One of the interesting things is the prosecutor's job, if you think about it, is to represent the people. The people aren't the people who are "law-abiding." The people include the defendant and the defendant's family because they are the people too. That often also gets lost in translation.
From what I have seen, those who overcome their addiction and are no longer engaged in criminal activity as a result of that impact the people and the community more generally because you are talking about this person, their immediate family, and their employer are impacted. It's more than this person. It is the people in the vicinity of this person who is positively impacted.
You could say that the role of the prosecutor is to represent the people, the people who are alleged victims, and the people we want to have public safety for, but thinking about this in terms of it isn't one person. That one person has so many ripple effects. The positive impacts of having someone who is a contributing member of society, and they are able to be there for their kids, their wife, and all of this stuff. It has such a positive downstream effect that it was more than I fully recognized until I was involved in those courts. I'm like, "This is neat, giving so many positive things down the line to a range of people."
You've identified all the positive ways that a prosecutor can do by engaging with an individual in a reformative way and the downstream effect on the community. Wouldn't it be powerful if prosecutors thought about the negative downstream effect of over prosecuting or overzealously prosecuting an individual? Their families and income levels are directly impacted. It would be amazing if all of that became part of the conversation because it shouldn't be part of the conversation.
A lot of the diversion or collaborative courts, or however you call them, around the country are largely driven by the judges themselves who create these courts. They see impacts that they think maybe shouldn't happen in a regular way in their courtroom. They say, "There's got to be a better way to handle these non-violent offenses, and where there are a lot of other factors at play, whether it's homelessness, drug addiction, or PTSD from veteran service or military service. There's a lot going on. Can we please look at this more holistically?"
I wonder what downstream impact those courts in a particular region, county, or whatever might have on those prosecuting attorneys or defense attorneys who work in other parts of the system. I don't know if they turn off that perspective or whether it might slowly have a larger impact on how they deal with this, more generally, even when they are not in the diversion or collaborative courts.
That's a fascinating question. I would love to see some research on that. That would be interesting to see.
They do operate so differently because they are in a collaborative effort together. Even some criminal defense attorneys in those collaborative courts come in, wanting to battle and do this and that. I'm like, "No. That's not how this works. We all sit around the table." All the different stakeholders have some input into what needs to happen next.
Sometimes that means if there's a slip-up along the way, we need to do something. That's maybe a little not great for the defendant at this point in time, but it's all in service of a larger effort to make sure that they remain drug-free and all of this stuff. It is interesting that you have to switch on and off and adjust for that setting. I wonder whether from that, over time that there's some osmosis that might impact or open people's eyes to different ways of operating both on the criminal defense side and on the prosecution side.
I wonder if you have any advice for those who might either be considering public defender work or even might be thinking about, "I could teach an undergrad with my Law degree." Do you have any advice for those who might be considering either of those paths in terms of either preparing for them or determining whether that's something they would enjoy?
If you're serious about teaching, then you need to be serious about publishing.
In terms of the question about being a public defender, if you want an exciting and fast-paced career where you are making a difference every day, stand up, and even when you lose, know that if you treat your client with respect, were prepared, and did what you needed to that you can count that as a win, I don't think there's any job that's more fun or rewarding. It's a great legal job. You don't get wealthy. My husband used to have every job I took. I was making less than the job before. It's incredibly rewarding in other ways. Depending on your law school, they might pay back your loans for doing that work. That's something to think about.
In terms of academia, one of the things that made me stand out as a candidate for undergraduate, but because most of my colleagues have PhDs, is that I had published. Having a record of publication when you apply for these positions is helpful because one of the things you are going to have to convince whoever's hiring you is that you have a research agenda that you can produce and publish. If you are serious about teaching, then you need to be serious about publishing.
In law schools, the currency is law review articles. In undergraduate institutions where they hire most of the PhDs, you are going to have to be prepared to perhaps write things that are not produced in law reviews. That is a different skill and certainly not one that you can't figure out, but it is something you are going to have to figure out. It's not intuitive, but it's doable. That is a way to distinguish yourself if you are applying to these positions. Be aware that a lot of undergraduate institutions do require a PhD.
It is interesting what you were saying about publishing. In publishing, we always think of, "The apex of that is law review. That's the most detailed publication." That's certainly true for law schools, but it's not true in the undergraduate context. I have served on an advisory board at RAND for several years. They have all mainly PhDs and a lot of high-level think tank work, but they had to adjust their thinking. With wanting to influence legal thinking, they are like, "We are going to have to publish law reviews because that's what lawyers and judges read," so they had to adjust.
Yes, we produce more media public-friendly work and deeper studies. We publish in other places that PhDs would publish. In order to move the needle in the law when we are doing work in that area, we need to also publish in law reviews because that's what's influential there. It's this idea of being aware of what each discipline values, but you are very good ammunition in terms of writing because that's the currency of academia.
I have written both. I have written law reviews and social science journals. It is doable, but they are different skillsets.
You are one of those players that can play many different roles on the team. There are a few people I know who would do and find equally interesting the public defender trial work and the appellate work, as you are able to adapt. They call it a utility player. You are able to adapt and do a lot of different work. People need to be prepared for that and be flexible in that regard if they want to think outside the box and be undergraduate professors.
That's 100% right, and it helps if you love what you are talking about.
Think of it as new avenues of sharing that knowledge. When you are representing the individual client, you can make a difference in their individual case, which is impactful. Now that you are studying at a broader level, you are able to say, "I can step back and look at these larger systemic issues or concerns, study them, and perhaps provide some prescriptions for addressing them in a way that I wasn't able to do when I'm drinking out of a fire hose and addressing each of my client's cases as they come in." Normally, I close with a few little lightning-round questions. I'm going to ask you a couple of them. Which talent would you most like to have but don't have?
I'm a bad guitar player, and I'd love to be a better one. I have been trying since law school and haven't gotten any better.
One of my friends many years ago had a great birthday celebration, which I want to replicate at some point in time. There was this nonprofit that would bring young girls in to play in a rock band. They'd play different roles and instruments. It gave them confidence, new skills, and all this stuff. They would occasionally do it for us adult folks who were interested in maybe having rock band dreams or whatever.
My friend, we did this over one weekend. We got to try out three different instruments. We wrote a song and then performed at a club all in one day because we were working and didn't have that much time. I played the drums which were fun, and I have always wanted to continue to do that. It is fun to get outside your zone and do new things. Maybe you will go ratchet up on the guitar. You never know. It could happen. In one day, it could all come together.
I'm not shy about it. I will go out and play and sing, but my guitar playing is bad. It's good for a campfire. If anyone needs a campfire singer and guitar player, I'm your person.
Who are your favorite writers?
Who I'm into now is the man who wrote A Man Called Ove, Fredrik Backman. He has written some extraordinary books, like Anxious People and Beartown. He's amazing, and I would highly recommend him. He's a fun, well-written fiction writer, but he's amazing.
Who is your hero in real life?
Bryan Stevenson. Hands down. He is the Founder of the Equal Justice Initiative, but I knew him before he got super famous. He was my law school professor who was famous then, but now he's super famous. He was my hero before the movie. I so admire him and his vision. He's able to contextualize these individual capital cases, place them in a historical, societal, and structural context, and call out the fact that our criminal legal system is biased against the poor and people of color and how we all need to own that. We need to own our history and how we have gotten here in order to make it better. He's amazing.
He's highly effective. Given the choice of anyone in the world, who would you invite to a dinner party? It might be Bryan.
It might be, but do you know who I'd like to talk to? I'd love to talk to Michelle Obama. I'd like to find out why or what we could do to get her to run for president because wouldn't she be amazing? She would be amazing. Any time, it's Michelle Obama. I'd be like, "You should run for president. We could use a strong woman leader, and you could be my bet."
Last question. What is your motto, if you have one?
"You will regret in life the things you don't do rather than the things you do." I try to say yes to most things, not everything, and embrace the opportunities that come your way because you never know what they could lead to.
That's a great way to end. Being open to new things and to avenues you haven't considered, but maybe you should. That's a great inspirational way to conclude. Professor Jessica Henry, thank you so much for joining the show.
Thank you so much for having me. This was a great conversation. It's a lot of fun.
Thank you so much.