07/10/19 Tyler Broker

Cultural Baggage Radio Show
Emily Bazelon
New York Times

Tyler Broker an attorney has column on Above the Law titled The Case for Legalizing All Drugs Plus NY Times reporter Emily Bazalon has a new book Charged - The New Movement to Transform American Prosecution and End Mass Incarceration

Audio file


JULY 10, 2019


DEAN BECKER: I am Dean Becker, your host. Our goal for this program is to expose the fraud, misdirection, and the liars whose support for drug war empowers our terrorist enemies, enriches barbarous cartels, and gives reason for existence to tens of thousands of violent US gangs who profit by selling contaminated drugs to our children. This is Cultural Baggage.

Indeed, this is Cultural Baggage and I am Dean Becker, the Reverend Most High. Got a great show lined up for you, as always. A bit later, we'll hear from Emily Bazelon, she's the author of a new book, Charged. Here we go.

TYLER BROKER: I am an attorney and yeah, I have a weekly column there at Above The Law. I was -- my specialty, if I have one, is in the First Amendment. I've published a number of law review articles on the First Amendment and I was the Free Expression of Privacy Fellow at the University of Arizona College of Law.

But that fellowship has come and gone, and I'm still just publishing, and going on Above The Law.

DEAN BECKER: Well, fair enough. All right, folks, today we get the chance to speak with an attorney, Tyler Broker. He writes a column for AboveTheLaw.com. His most recent one certainly caught my attention, The Case For Legalizing All Drugs. Tyler, welcome to the show.

TYLER BROKER: Thanks for having me, I appreciate it.

DEAN BECKER: Well, Tyler, The Case For Legalizing All Drugs. I would estimate five years ago, certainly ten years ago, you might have got yourself locked up for even mentioning such a thought.

But things are changing, are they not?

TYLER BROKER: I believe so, yeah. I think that was a big highlight that I tried to make in the piece, is that, you know, thoughts are evolving on this. I mean, for a long time, that's been occurring, but it hasn't really gained a mainstream, what you might call a mainstream acceptance until I think more recently.

DEAN BECKER: Right. The New York Times, Washington Post, the Guardian, the Independent, a lot of major, major papers are starting to really embrace the idea, are they not?

TYLER BROKER: Yes. Absolutely. And I think that it's because, you know, when you look at it, prohibition, I mean, you can, you have to acknowledge that it makes a lot of sense, when you first look at it. I mean, when you look at a substance that causes undeniable harm, I think we would all admit that, you know, heroin and alcohol even, these things are bad for you, you know, even in small amounts.

And so it's kind of an inevitable reaction, almost, to think, hey, if something's bad, and it's causing harm, you might want to prohibit it. But anyone who takes -- anyone who takes a serious look at this, at not only the past, and the implementation, the efficacy of it, I think you have to come to the conclusion that it's just simply not working.

If you look at all the, like, think tanks, like Cato, and organizations like that, have been laying out the evidence of this for decades now, as well. There's also, I mean, what first got me onto the topic, I read Alfred McCoy's book, it was given to me at undergrad, The Politics Of Heroin. I don't know if you're familiar with it.

But it's about CIA complicity and just, it's kind of, not necessarily what, I mean, it's not a conspiracy theory, they weren't selling drugs, but they were, you know, coordinating with major drug dealers to fight the, you know, the communists or the terrorists or whatever.

And it kind of, you know, that opened my eyes. Then, you know, The New Jim Crow and these other books, and it -- the case is laid out, right, for anyone, there that wants to look at it, that, you know, how this is just a big -- not only expensive, but is just a grossly failed policy.

DEAN BECKER: Again, folks, we're speaking with Mister Tyler Broker, he's an attorney, writes a great column on AboveTheLaw.com. Tyler, I don't know if you had a chance to hear it, my district attorney last week came on my show and basically presented credentials that could have got her invited to Law Enforcement Against Prohibition, a group I belong to.

And, it is another example that more and more politician around this country are daring to broach this subject, advance a little bit. The Democratic candidates are all calling for legal weed, and they try to say the end of drug war without any specifics on how to end the whole thing in total. Your thought to that, please.

TYLER BROKER: It's surprising to me that, you know, the -- and this is how I started the piece off, is alcohol is by far the most destructive substance in our society. I mean, it causes -- it is the direct cause of more violence, particularly against women, more destruction of property, more deaths, more disease.

And, that drug is legal. Then you have -- then you compare that a with drug like marijuana, and you see it's illegal, and you just, you kind of blow your mind. So you see, you do see more politicians coming out for legalization of marijuana, but you still don't see, you don't see like, [unintelligible] we call harder drugs.

The heroin, the crack, and things like that, and it's just -- it's more difficult I think to wrap your head around because people do have, you know, been fed for decades and decades that these drugs, you know, they're just so bad, and they are, to a large extent. But they still don't cause the level of destruction to society that alcohol does.

But it's just a difficult -- it's a difficult hill to get over, to think that, you know, you're going to allow these kinds of drugs. And it is going to have to, I imagine it's going to have to be piecemeal. You're going to start with, you know, cannabis, and then hopefully there's still some momentum that goes beyond that.

DEAN BECKER: You know, last year I was in Switzerland and they have legal heroin for a select group of addicts who say I'm going to use heroin, lock me up if you want to. And they --


DEAN BECKER: -- instead they give them heroin every morning and every evening, and they find that those people, well, they don't die, they don't go out whoring and shoplifting to buy their drugs, they're not spending their time looking for drugs, they're otherwise leading a fairly normal life.

And I guess what I'm leading to is that, in Switzerland, marijuana is illegal, and they are just -- they are just now reconsidering legalizing it over there. It is quasi-legal, nobody really gives a dang.


DEAN BECKER: I'm told that certain potpourris over there are actually cannabis as well, that you can get at the drug store.


DEAN BECKER: But, it's -- it's, where do you want to focus and why? And over here, we wouldn't go after the little pothead and the little dispensary that are not creating international havoc, or that are not just, you know, taking over Guatemala, Honduras, and El Salvador, that are not causing tens of thousands of deaths from the cartels and the gangs here in the United States.

They don't want to face the bigger problem. Your response to that, there, Tyler.

TYLER BROKER: Well, I think, and you're hitting -- you're hitting something that, it goes beyond, you know, beyond just the United States policy, because the fundamental flaw with US prohibition policy is it ignores the fundamental dynamics of the global drug trade. Okeh?

You know, narcotics and cannabis and even alcohol, these are major global commodities that operate on fluid laws of supply and demand, and history shows, you know, over a century of evidence has shown that these, you know, these products are not susceptible to simple prohibition policies. It's not -- it's not going to work.

Every attempt at interdiction has not only failed, you know, to even, not only just eradicate the drug trade, the global drug trade, but even, like, make dents in it. And getting beyond that and recognizing, you know, that this -- these are global commodities, it's going to -- they're going to, you know, the law of supply and demand is going to factor into it here.

I don't know how we get there other than piecemeal and doing it with specific drugs and over time and showing A, you know, we can legalize cannabis, they sky won't fall. Switzerland has legalized heroin, the sky didn't fall. Portugal legalized heroin [sic: Portugal has decriminalized personal possession however their opioid substitution treatment system provides only methadone or buprenorphine, they do not provide heroin], the sky didn't fall.

I don't know how to beat that into people's heads other than to do it piecemeal. But, we -- the problem is where it's -- our policy is failing to recognize the fundamental dynamics of what is this, of globally what this trade is.

DEAN BECKER: Well, sure, I, you know, my main interaction with law writers, with legislators, is with the Texas legislature, and I go there, and I talk to them, and behind closed doors, none of them can defend the policy, none of them can claim it was their authorship, none of them want to own it, behind those closed doors.

But when you put them out there in the legislative hall, they spout the same old BS, they continue not talking just reefer madness but, you know, true insanity, not recognizing that five hundred billion dollars a year flows into the pockets of these terrorists, cartels, and gangs.


DEAN BECKER: They never want to talk about that. They avoid it at all costs. I don't know, I'm ranting here. Your response, Tyler.

TYLER BROKER: Well, I think you have -- what you have to recognize about that is, is the populace is -- isn't, I mean, you could say that it's been a lack of leadership, but also, a lot of the populace doesn't want to hear about this.

And I know with some, you know, professional experience of having to deal, you know, with the electorate, it -- and it doesn't, it's not just a rightwing or leftwing, I think, you know, you'll find that among most general, in any area of this country, they don't want to hear about legalizing heroin, because in their experience, you know, they've seen dealers on -- they want these dealers off the corners.

They want these, you know, these -- these criminal elements gone. And you can -- you can sympathize with that. You can understand that. And I think that, you know, it's counter-intuitive to a large extent, you know, that of getting rid of prohibition.

I think that has to be fundamentally acknowledged by, you know, people like on our side that are arguing these, you know, drugs should be legal. You have to acknowledge from the outset that this is a counter-intuitive concept, and that most people, it's going to be difficult to wrap their minds around.

And so no politician, I don't care what side, is going to want to, you know, charge ahead and do that. So it's not, it shouldn't be up to the legislative, you know, decision, it should be based on facts, and that's done with research study, and that's all there now.

You have the example of Switzerland, which you touched on, and Portugal, these, they've done these policies for decades. You can compare them with ours, and there's just -- there is no, you know, there is no intellectual argument about which is the superior policy, and that's what has to be stressed.

It can't be, you know, I think it can't be a political argument so much as it has to be an intellectual one.

DEAN BECKER: And a complete one, I think, is really the key to it, that, to include in that discussion you have to bring forward empowering the terrorists, cartels, and gangs, ensuring more overdose deaths.


DEAN BECKER: You know.


DEAN BECKER: And to be ready to defend that with, you know, studies and results and to prove the point.

TYLER BROKER: Absolutely.

DEAN BECKER: And beyond that, there is no one, and I would think that the drug czar himself, that nearly every police chief in America, every district attorney, knows the bulk of what we're talking about right here, and they're all chicken stuff, they cannot speak the truth and somehow we've got to motivate Joe and Jolene citizen to stand up and demand they face this, don't you think?

TYLER BROKER: Absolute -- you're absolutely right. They're not going to -- they're not going to go against the will of their electorate. They're just not. And so it's a matter of changing hearts and minds. I don't think it's, you know, it's not a matter of condemning anyone who still supports it.

I think that this is really important as well. It's not to, because, it can't -- I can't stress this enough, it's counter-intuitive to want to drop prohibition, because these are harmful, you can't then also deny the harm that occurs. I mean, alcohol, I don't know one person that doesn't have, you know, a personal -- personal history of, you know, how alcohol or some drug, whether it be heroin or something, has negatively effected their life or a loved one or something else, you know, something along those lines.

And so you have to -- you have to acknowledge the harm. You have to acknowledge that it's a counter-intuitive idea, and you can't demonize the people that still support it because it's, to an extent, it's logical. I get it. But, you have to just -- you have to lay it out for people, also, and to stress, like, hey, and one of the best examples of this is what I tried to draw in my piece, is alcohol prohibition.

If you look at why alcohol prohibition, you know, came about, it wasn't some evil movement, it was mostly driven by the women's movement, who had very, very, very good reasons for wanting to prohibit alcohol. You know, they didn't have the measure of control that they have today, and so they were dependent on their husbands for a lot, but their husbands a lot of times would go to the saloon, you know, and drink away their paycheck, and come home drunk and, you know, there's a lot of that happens still today.

A lot of domestic violence is tied to alcohol consumption. So one can't deny the harms that come. We just have to stress there are other ways to deal with these harms that are much more effective.

You know, America benefits immensely, immensely, from a network of families and churches and nonprofits and all these things that can mitigate this. I think the issue to put to people is, you know, that are stressed, that are continuing to stress prohibition, is why are you arguing state intervention? Like, why is the state the necessary mechanism here, and not other mechanisms, such as social or, you know, treating it as a health concern, you know, addiction as a health concern.

I think that -- that's the way to approach it. And even, you know, to stress I was actually, I got this from the Dave Chappell standup, but it was, it really kind of moved me. He talked about, you know, apartheid and Doctor Martin Luther King, and how, you know, it's important not to demonize people who are incentivized by an unjust system, or an ineffective system.

You have to look at those people that are incentivized as victims as well of that system. And that's the only way that, you know, that then peacefully these kinds of systems have been taken down. It's not to demonize, not to, you know, unjustly characterize and kind of sympathize with the people that still, you know, that so are incentivized, or still see the positives of it, and to try to -- try to reason with them.

It's difficult but the -- I still, I believe fundamentally that's the best way to go about it.

DEAN BECKER: Well, friends, once again we've been speaking with attorney Tyler Broker, writes a great column at AboveTheLaw.com. As we wrap it up, here, I've got to disagree with you, Tyler. I'm fed up -- I'm fed up with these lying weasels, because they know the truth --


DEAN BECKER: Tyler, I want to thank you for being with us here today on Cultural Baggage.

TYLER BROKER: It was a pleasure. Absolute pleasure.

DEAN BECKER: The winds of prohibition howl as the irrational maelstrom below, pipe dreaming warriors raise their eternal chant, dancing for rain in the deluge of a drug war hurricane. DrugTruth.net.

It's time to play Name That Drug By Its Side Effects! Lightheadedness, difficulty concentrating, changes in sex drive, seizures, hallucinations, memory problems, confusion, problems with speech, thoughts of suicide. Time's up! The answer: Xanax, for anxiety.

Friends, today we're going to speak to another author of a great new book called Charged: The New Movement To Transform American Prosecution And End Mass Incarceration. With that I want to welcome the author, Emily Bazelon. Hello, Emily.

EMILY BAZELON: Hi. Thanks so much for having me.

DEAN BECKER: Emily, the book doesn't, you know, normally we deal with the drug war, that's been our constant for the last seventeen and a half years, and this doesn't much dabble into the drug war, but it certainly takes a deep dive into our justice system, does it not?

EMILY BAZELON: I hope so. Thank you for saying that. Yeah, it's a -- the book comes at this problem of mass incarceration by talking about the power that prosecutors have.

DEAN BECKER: Right. And we have, I don't know, it's a constant battle, yin yang, people wanting to be tougher on crime and others who want to make it possible for criminals to, you know, re-salvage their lives after their time behind bars.

And I guess it's just a question of attitude of the prosecutor makes a heck of a difference in what happens to those going to trial, does it not?

EMILY BAZELON: Yes, I think that's true. Starting in the 1980s, we passed sentencing laws in the United States mostly to make punishments harsher in response to rising crime and a lot of fearmongering that politicians were doing.

One of the main ways that we ratcheted up sentences was by passing mandatory minimum sentences. So you get convicted of a particular crime, you have to go to prison for a certain amount of years.

And without really talking about it, when we did that, we transferred a lot of power and discretion from judges to prosecutors, because a mandatory minimum sentence bakes the punishment into the charge and the conviction, and it's prosecutors who decide on charges and prosecutors who make offers for our plea deals.

DEAN BECKER: You are still working with the New York Times, right?

EMILY BAZELON: Yes, I'm on staff at the New York Times Magazine, exactly.

DEAN BECKER: And, your paper, the Washington Post, even my city's Houston Chronicle, have all been delving into this, trying to find a better way, a means to back down from these prior pronouncements and these mandatory minimums and three strikes and asset forfeiture and all the things that have been eating away at our basic god-given [sic] rights.

Do you see more inclination for your paper and or others to continue in that direction?

EMILY BAZELON: I think there is an increasing interest in countering mass incarceration, and an awareness that our punishment system has just ballooned beyond all reason, really. It's just gone so much further than is necessary to prevent crime.

And then I think also you're seeing bipartisan support for reducing the size of the system, and that makes it easier for journalists to really dig in, you know, people like me can feel like we're making a pretty strong argument, presenting a lot of evidence, and that there's bipartisan support for change.

DEAN BECKER: Now, your book deals primarily with two, and I'm going to call them kids, everybody's a kid to me these days, but, who got caught up the rote, in a procedure, in just the everyday happenings of the prosecutors where they were arrested, and it's -- there are so many hoops for people to jump through, you know, the process itself is -- it is so cumbersome, so difficult to get through successfully. Would you agree with that thought?

EMILY BAZELON: Yeah, I think that that's exactly right, that, you know, we really have designed a system that is very tough on the people who are in it.

DEAN BECKER: Let's come back to it, again, it's, you have a hearing, then you've got bail, you've got a, maybe a gun court, as you say in your book on chapter four, and it's -- these hoops are, not just cumbersome, they're expensive, they're, you know, just time consuming and a means to whittle away at that person's credibility and ability to continue down that same road. Your thought there please Emily.

EMILY BAZELON: Yeah, I think that's true, you know, particularly cash bail plays this important and I think for me at least previously misunderstood role in our system.

I mean, I had assumed that we asked people to put money down to get out of jail when they're charged, but before they're convicted, because that was the only way to make sure they get back to court, like, if you put money down you have some skin in the game, you'll come back.

Turns out that's not true. In Kentucky and Washington, DC, those places have been operating criminal justice systems without cash bail for decades, and almost everyone comes back to court.

Meanwhile, you know, the real role of bail in the system is that if you're in jail because you can't afford to make bail, there's more pressure on you to accept a plea bargain because you want to get out of jail.


EMILY BAZELON: And so I think that the role cash bail is playing is really one that just keeps the plea mill operating in a way that benefits prosecutors and judges, and benefits the system processing a lot of cases, but can really do harm to people's lives.

DEAN BECKER: Now, there, let's see, chapter thirteen, the ethics trial. And this is what so much of justice boils down to, is who is to believed, and how much can they be trusted, and what would the future hold given one set of circumstance or a prison sentence. It is, I don't know, a war of morals, I think, is going on in our country as well. Your thought there, Emily.

EMILY BAZELON: You know, I think that it's really important to pay attention to this movement to elect a new kind of prosecutor, because these are local officials who hold a tremendous amount of power, and that power is up to local voters. It's really a way in which you can make change in your own community that doesn't rely on Washington, doesn't even rely on the state capitol.

It's your city, and the values of your city are reflected in your local DA or state's attorney, whatever they call it, that person in almost every state serves at the whim of local voters.

So, one of the most exciting things that happened while I was working on my book was that a movement to elect prosecutors started, prosecutors who are interested in reducing mass incarceration and using resources more wisely instead of the kind of single law and order techniques of the past.

And that movement has really gained momentum in the last couple of years in a way that promises real change, and offers the hope that cities with these kinds of prosecutors can be a model for a smaller, better kind of criminal justice system that then maybe will convince state legislators and Congress to make the same kind of changes on a broader scale.

DEAN BECKER: Okeh. Friends, once again we're speaking with Emily Bazelon. She's author of a new book, Charged: The New Movement To Transform American Prosecution And End Mass Incarceration.

Emily, I'm looking at, and I've lost the lady's name, Nora? Is that --

EMILY BAZELON: Nora. That's right, Nora Jackson.

DEAN BECKER: Nora Jackson and the other youngster, Kevin. Where --


DEAN BECKER: Where are they now?

EMILY BAZELON: Nora is her real name, Nora Jackson. She is living in Brooklyn now, going to community college, getting involved in trying to help women who are still incarcerated.

And Kevin is also in Brooklyn. He is working, and doing okeh. He's someone who went through a diversion program instead of going to prison, and I think that really helped him. He got his GED, and he's not dealing with the same kind of problems of having a felony record that he would have had if he had gone to prison.

DEAN BECKER: Right. He fought that long and hard, did he not?


DEAN BECKER: Okeh. Now, you have had, you know, contact and sight on Kamala Harris.

EMILY BAZELON: Well, I think Kamala Harris, you know, there's -- when she was elected district attorney in San Francisco, this is a while ago, this is back in 2000 [sic: 2004]. She called herself smart on crime, and she started a small diversion program at the time. That was pretty innovative.

But now she's calling herself a progressive prosecutor, and I think the problem for a lot of people in the criminal justice reform movement is that compared to what the movement, where it is now, it's gotten so far beyond what Kamala Harris was doing as DA, that it just seems kind of watered down, the idea of a progressive prosecutor for Harris to claim that label for herself.

And then the other thing is that when she was the attorney general in California, she did a lot of things that criminal justice reformers really despaired about. She defended misconduct among prosecutors, she didn't investigate a huge scandal about the sheriff's office and the DA's office in Orange County.

There are kind of a number of things that people were really critical of here when she was attorney general. But I also think it's important to remember about Kamala Harris that she was always hoping for higher office and some of the things she did were trying to kind of thread the needle of being one of the only African American women in the country -- only black women, I should say, who was really trying for statewide office.

It's hard to do that, and so I think it's fair to judge the -- her in context of someone who was really trying to make this big leap, in the -- in this unusual position. But I think that calling herself a progressive prosecutor, you know, that got a lot of feathers ruffled.

DEAN BECKER: Well, and I can understand that. Look, there's good and bad in all of us, ain't none of us perfect I suppose, but, you know, this twenty-two, four, however many candidates in the Democratic run up here is, well, confusing at best, and maddening --


DEAN BECKER: Well, I thank you again for your time, Emily, and, well, the book is extraordinary in the depth, the detail that you provide of these hoops that these people have to jump through, the mechanisms that the district attorneys and others put in play to slow their roll, so to speak.

And it's a good example of a means to better understand what the American justice system is like these days. I want to thank you.

EMILY BAZELON: Well, thank you, I really appreciate that.

DEAN BECKER: Prisoners.
We want them to have self worth so we destroy their self worth.
We want them to be responsible so we take away all responsibility.
To be part of our community so we isolate them from the community.
To be positive and constructive so we degrade them and make them useless.
To be nonviolent so we put them where there is violence all around.
To be kind and loving people so we subject them to hatred and cruelty.
To quit being tough guys so we put them where the tough guy is respected.
To quit hanging around losers so we put all the losers under one roof.
To quit exploiting us so we put them where they exploit each other.
We want them to take control of their own lives, own their own problems, and quit being parasites so we make them totally dependent on us.
By Judge Dennis Challeen.

And still, no one who believes in drug war is willing to come on this show. How long will this evil continue? How long will we embrace this madness? Again I remind you, because of prohibition you don't know what's in that bag. Please, be careful.