Juvenile "Justice" with Josie Duffy Rice

This week, criminal justice correspondent Josie Duffy Rice dives into America’s obsession with prosecuting children. From 19th century houses of refuge to modern day detention centers, we comb through the tangled braids of juvenile incarceration, tough on crime fallacies, as well as criminality and its dark shadow of capitalism. Please take care while listening. 

Side bars include ice cream boats, Ronald Reagan, and Leonardo DiCaprio’s dating range.

Here's where to find Josie:

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Unreformed: The Story of the Alabama Industrial School for Negro Childre

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Links:

http://www.josieduffyrice.com/
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https://www.iheartmedia.com/press/iheartpodcasts-and-school-humans-announce-unreformed-story-alabama-industrial-school-negro
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http://maintenancephase.com

Transcript

Sarah: But Amanda, you're forgetting Satan. Some ideas come from Satan.

Welcome to You’re Wrong About, I am as always, Sarah Marshall. Today we are talking about justice, specifically the question, “What even is it?” What do we mean by this word we say? And I am talking about it with Amanda Knox. I was really excited to talk to Amanda about this because she is doing work that I really admire and am excited by about what justice has been and what has passed for justice, and also what it could actually look like. And that's a lot of what we're going to get into here today. 

This episode - not in a super intentional way that was planned out, but in a way that became apparent after the fact - I think, is a lovely companion flavor to Juvenile Justice, our last episode with Josie Duffy Rice. It's a justice month, and we just decided to go with it. So if you enjoyed the last episode, this one hopefully will build on that. If you haven't listened to it yet, they might go well together. Try it out. Have a justice day. 

Before we get to the show though, I wanted to tell you a little bit about my life for the past week. We have been starting off our spring, You're Wrong About tour. And I got to do shows in Detroit, Chicago, and Minneapolis with special guests, Ryan Ken, Jamie Loftus, and of course my producer and personal musical genius friend - everyone gets one - Carolyn Kendrick. It has been an amazing first leg. I'm really excited to do more shows. We are headed to the East Coast next. 

We had a really amazing time doing these shows. All of the audiences were absolutely feral in the best way. If you were one of those audience members, thank you. And if you were in Minneapolis and I hit you with an Easter egg, I'm very sorry. And sue me if you need to. We're very excited to start the East Coast leg of our tour and we sold out our show in Brooklyn, so we've added another date, that's April 28th. And then we have a show in Philadelphia on April 30th, which we still have quite a few seats for. And also Burlington, Vermont May 16th. If you are anywhere near Burlington and would like to see a Bimbo Burlesque of 20th century history, you should come. We'd love to see you there. 

It's been really exciting to get to do more live shows after the four we did last fall. And there's really nothing better than being in a room in front of the people who make this show possible, who allow us to ask these questions and to have these sitting on a park bench type conversations about what our culture is up to and how we can try to be better. And I just appreciate that so much. I appreciate you so much. It has been just the best to get to see you and I'm excited to see more of you. And until then, here's this week's episode. We're talking about justice. It is the conversation of my dreams, and I hope it is the conversation of your dreams too.

Welcome to You’re Wrong About, the podcast where we say, “Hey, dictionary, hold my beer!” And with me today is Amanda Knox. Hello, thank you so much for being here.

Amanda: Thank you for having me. I'm excited. 

Sarah: I am so excited too, because we had a couple conversations about what you might want to talk about here. We talked about potential stories and topics, and ultimately what won the day was my seemingly wasting your time, but a very earnest question, “What even is justice?”

Amanda: Yeah, I'm really glad that you posed that question. Because from my experience, ‘justice’ as a concept, as a word, is something that everybody thinks they know what it means and that we all agree on it, and yet when you actually dig down into the fine details or you go down certain rabbit holes, all of that unravels and suddenly a lot of people are in great disagreement. And also the whole idea, the whole concept itself, seems to be on really shaky ground. Because again, I think it's one of those really big concepts that we all take for granted.

Sarah: And it's one of those big words that I think you almost feel embarrassed to ask for a definition of fairly young. I strongly suspect that as with so many other concepts in American life, it means different things when different people say it, but I'm really bad at getting guests to introduce themselves before the very end of the show. I'm going to try and get better at that starting now. Amanda, who are you? What do you do? 

Amanda: My name is Amanda Knox. I am a journalist, criminal justice reform advocate, and host and producer of the podcast, Labyrinth. I never really anticipated becoming interested in the issue of justice. I was a poetry and language student up until I was wrongly convicted for a crime while I was studying abroad, so I spent time in prison. I spent time in the criminal justice system, and it has left deep impressions on me that have impacted my understanding of what justice means and how it is exercised in our society. 

Sarah: First of all, thank you for coming on the show. Thank you. It's so great to have you. Something that I feel is part of this conversation is this way of life that I certainly feel like I was trained to have, where you just assume everything's going good over there and you hear about occasional scandals, but they tend to be reported, at least when we were growing up with this air of oh my goodness, corruption! In the district attorney's office of all places!

Amanda: How could it be? Yes. 

Sarah: Yeah. It feels like the American way, at least for people who are white and middle class enough or whatever other adjectives that allow them the privilege of being ignored by the legal system, that it's possible to believe for even your entire life that things are going okay over there.

Amanda: You'd think that the people whose job it is to enforce the rules would be people who would be rule followers. But of course human beings are more complicated than that. Bias comes into play, and so those of us who like me grew up in the suburbs, never had to encounter crime at all, never had to think about it. Just put it on faith to take it for granted that here was a system where its very purpose is to be fair. One of the good things about the rise of interest in true crime of late is exposure to the fact that no, it goes awry all the time. 

Sarah: And awry is the whole thing. Not the whole thing, there are some fair trials out there, but they're really fighting against the odds, I feel like, in the United States, and it's very impressive that they happen at all. But people who listen to this show know that I bring up Law and Order. Honestly, I could bring up Law & Order once per episode and I don't, and I'm proud of that. So I was really raised on Law & Order, and I think that it's such a great example and certainly does not stand alone on the American media diet where you watch a character like McCoy, played by Sam Waterston, who's so passionate about justice that he's doing shady shit all the time. You zoom out and when I watch it now. I'm like, McCoy's not a good lawyer. He's always doing stuff that's borderline unethical or just is unethical, but that he can get away with. And then with every dirty cop on TV as well, we're supposed to be like, but he loves justice, and he has to bend or break the rules in order to serve justice. But then why is it that for the defendants, justice is the rules, among other things. 

Amanda: But you're right. I think the thing that is super interesting about that for me is there's almost this subconscious recognition that human beings are imperfect. And so the people who are enforcing the law are going to be imperfect in their enforcement. But that same kind of empathy doesn't extend, I think, as often to the criminals who are doing the terrible things that we see either in real life or on tv. And that obviously leads to an imbalance of where our sympathies lie when we hear about people breaking the rules because the whole concept of justice, that distinction between right and wrong and the fair consequences for each of those things, it all comes down to what we determine to be the person's intent. The ‘why they broke the rules’. 

And it seems like we allow, and we even enjoy when people break the rules and do the wrong thing if they have the right intentions, but we don't allow, and then we absolutely do not enjoy when people do the wrong thing for what we determine to be the wrong intentions. And then if you start talking about intentionality and unintentionally, then you can go down a very interesting rabbit hole. 

Sarah: Huh. My basic perspective and a lot of people are going to hear this as being really overly sympathetic to murderers and what am I going to say about that? Maybe it is. But basically, I think that in a sense you can argue and I would like to, that nobody really commits murder on purpose with full intentionality, full rational premeditation. Because I think truly there can be no rational premeditation for murder. For the most part I think you're doing it because something is wrong with you, either sort of external circumstances that become internal fairly quickly can either put us in a situation where murder is one of the things, or any kind of killing is the thing that is somehow most within reach at that moment, which I feel like happens with a lot of armed robberies that escalate into shooting someone and them dying. And avoid the passive tense, Sarah. And then you know that if you look at someone who's like, ‘I killed them all and I'll love killing’, you're like, you're not well! Can we agree this person is not thriving? 

Amanda: They're a broken meat robot.

Sarah: Exactly. Yeah. And I feel like that's just that's a weirdly controversial argument. I think America is a culture so built on violence and particularly male violence and male domination and genocide at various points that we have this sense that violence is power, violence is good, violence is necessary. He who does not resort to violence is a sucker. And then I think that just adds to the confusion when we talk about people who kill because it results in this glorification of them where we act like they have more agency than they do, and I think really anyone who kills out of circumstance is closer to us than we think. And anyone who kills because they like it is one sick puppy. 

And that doesn't mean that they can responsibly be free. No one wig shoes being Henry Lee Lucas, which is a bad example because he seems like an underachiever, but whatever, over a life of connection and giving and receiving love. Not to be corny, but it's true. People love to just have relationships and watch a sports game and watch their babies walk in the grass and have a picnic. That's what we want. Nobody would choose violence and mayhem over that. And the people who imply that is what anyone could rationally prefer, that's what worries me. 

Amanda: Totally, and I'm 100% in agreement with you. What does it mean that somebody doesn't have the agency that we think they have when they are doing something antisocial? And what does it mean that no one in their right mind would want to be an antisocial person. And what does that mean? What are the consequences, psychologically and socially, if we start thinking about people as being broken people instead of evil people, right? We're beyond the practice of an eye for an eye, right? 

We all recognize that there are circumstances where an eye for an eye in terms of judgment about a person's wrongdoing and the just consequences for that wrongdoing don't make sense. Maybe it's an accident, maybe someone was accidentally killed because they were driving along, but a kid ran in the street and the kid got hit by a car. Do we then say, the kid died so we're going to go and now kill your kid in order to equal that out. That used to be a form of justice. 

And now I think we recognize that doesn't make any sense, but as soon as we start thinking what are these circumstances that make sense to not delve out the eye for the eye mentality? Is it a child? Maybe it's a child who committed murder. Do we want to give a child the same kind of punishment that we would give to an adult? That's one of those mitigating circumstances. So what counts as mitigation? There's a really famous case of a man, I forget his name, who murdered his wife, I believe, and then went up into a clock tower and just started shooting people at random. I think it was Charles Whitman.

Sarah: Yeah. Yeah. Whitman.

Amanda: So he goes up this clock tower, starts shooting people at random, and then eventually is either shot or committed suicide. But he left a note prior to killing his wife and doing all of this, saying there's something wrong with me. I have this uncontrollable urge to kill people, and I don't know why. It's beyond me to stop this impulse anymore. Please examine my body. Otherwise, they wouldn't have done it. And lo and behold, they examined the body, and he had this tumor pressing down on his amygdala that was forcing him to feel this impulse to kill that otherwise if he had a perfectly healthy brain, he wouldn't have felt that. 

And I think that anybody who hears that story tends to imagine that this man isn't evil the way that we would assume he would be if he hadn't had that tumor. But then here's the tricky part. What's the difference between a brain where there is a tumor pressing down on the amygdala that causes this person to feel the uncontrollable urge to kill people, and a brain that is just hardwired to make you feel the uncontrollable urge to want to kill people. The only difference is that the tumor itself is an obvious thing that we can pinpoint that says this is what's wrong in the brain. For the other person, we just don't know enough about the brain in order to identify what is going wrong there. 

Sarah: But Amanda, you're forgetting Satan. Some ideas come from Satan!

Amanda: But even that, even if it was Satan whispering in your ear, are you responsible for your actions or is Satan responsible for your actions? 

Sarah: It's true. 

Amanda: So how responsible are you for that? And all of these kinds of conversations make people really uncomfortable. I can't tell you the number of times I've had this conversation with people and they say, okay, Amanda, you have me convinced, but you can't go around telling people that because if you do, our whole society would crumble. 

Sarah: I would love to believe that you have that power. This conversation in the past eight years, that's very loudly like, justice for the innocent! And then quietly if you listen for a while you hear, justice for the guilty. 

Amanda: Very quietly. I'm really immersed in the innocence project world, the Innocence Network. And there is admittedly a kind of split in thinking. There are those within the innocence community who really want to focus only on those that we can prove are innocent. And then there are lots of cases where the evidence no longer exists to prove innocence one way or another. 

But what we can prove is that there was a great amount of misconduct that was influential and ultimately fundamental to a person's conviction. These are the cases that are worth exploring when we can't prove 100% that they're innocent. And then there are even further factions within that group where they say absolutely there's issues where the person was guilty, but they just got an insane sentence. Let's be real. They stole a coffee pot and they got 30 years in prison. Isn't that worth our time? Isn't that justice? The whole question of deserving, in my view, should not be a part of the conversation when it comes to criminal justice. 

For me, the question rather is, how do we have a safer society? How do we deal with the threat of violence instead of how do we try to retroactively do justice to the person who did the wrong thing? Currently we have a retributive justice system where it is fundamentally understood and it is absolutely said, the US Supreme Court has said our criminal justice system is founded upon the principle that everyone has the free will to do right and wrong. And therefore, when we meet out justice, it means that the person who did wrong deserves to suffer. That’s essentially the definition of our criminal justice system. 

Sarah: Doesn't sound great when you put it that way.

Amanda: It doesn't sound great, but it also is totally based upon, even religious concepts. If you think about it, there's ideas of karma, there's ideas of heaven and hell, our religious systems are also based upon this principle that we all are free to be good or bad. Then therefore, there are not just, worldly consequences for our actions, but there are also eternal consequences for our actions. And so all of that is based upon this principle of us of being free, basically being Gods of ourselves. I don't think that any of us truly is a God of ourselves. And even if we were, I don't think that's actually what is for the good of society, addressing the issue retroactively instead of thinking about using a model that looks proactively about how to make society a safer place. 

Because if you're thinking about the retroactive model, it doesn't really matter if there's recidivism. It doesn't matter if people come out and are renewed threats to society. What matters is that you addressed the wrongdoing through punishment. That is what justice looks like. But then of course there are lots of people putting forth other kinds of models, like the restorative model or lesser well known is the quarantine model. 

Sarah: Which is?

Amanda: Okay so I've already described the retributive model, right? The retributive model is, you did bad, so we get to make you suffer. 

Sarah: Justice is suffering.

Amanda: Tit for tat, right? One of the ways that people argue that it's okay is because they're like, okay because it's deterring other people and it's deterring the prisoner from doing it again. But of course we know that's not actually what's happening a lot of the time. In fact, it's way more important, the idea that somebody would get caught, that's more of a deterrent than the severity of the punishment for a crime. Putting aside the retributive model there's a different model called the restorative model. And that's really gaining popularity since Black Lives Matter. We're seeing that practiced a lot in schools, and I know that simply because my mom is a schoolteacher and she's having to explore new ways of dealing with students who interrupt and interfere and potentially do things like come to school with a gun. 

There's a new understanding, there's a mitigating factor, these are children, so they shouldn't just be punished when there is wrongdoing in a school setting. So the restorative model is based upon the principle that when a crime occurs, it's not just a matter of an individual who is responsible for wrongdoing. It recognizes that when there is wrongdoing, there is a sort of rip in the social thread that needs to be repaired socially. It also recognizes the victim much more so than the attributive model because the retributive model is primarily focused on punishing the perpetrator, not on restoring the victim. 

In the restorative model, the victim is not only put in a position of restoring themselves, it's seen as the socially responsible thing to do to help the victim uplift themselves and heal from the harm that was caused them. And part of that healing is being empowered or given the opportunity to have a direct role in rehabilitating the perpetrator. A lot of people are really behind this, especially when, again, when it comes to juveniles because they don't want to resort to automatic punishment as being the way that we deal with threats to the social fabric. And we recognize that children are impulsive, and their brains aren’t as fully developed as adults, so we should be treating them instead of dealing out punishment, we should be attempting to cure the problem, right? Thinking about the little broken human and saying, what can we do to fix the problem? How can we make this person rehabilitated as quickly as possible and remove potential punishment from that equation? 

A lot of people don't like the restorative model because they feel like what it means is there aren't consequences for bad actions. And the restorative model is not as motivated to inflict bad consequences on the perpetrator. And so a lot of people feel uncomfortable. And indeed in practice this often happens where ultimately the restorative model is set up to fail because in order to address harm, you have to have resources and time and energy to interact with the root causes of that harm in the individual. And schoolteachers, like my mom, do not have the time and resources to address the deep existential needs of their problem students. So it's a little bit set up to fail.  

How does that compare to the quarantine model? So the quarantine model is what it sounds like. You treat crime, you treat wrongdoing, you treat criminal behavior, particularly violent behavior as the threat that it is. In the same way that a virus is a threat. So that idea is when we identify an individual who is infected with criminal behavior, we quarantine them until it is possible to rehabilitate or cure them. So this is the model where there absolutely are consequences for bad actions, and those consequences are swift, and those consequences put the needs of the social order and the innocence first. 

However, the difference between the retributive model and the quarantine model is our feeling about the perpetrator, the person infected. It's not your fault that you are infected with criminal behavior. You don't deserve to be punished for criminal behavior. What you deserve is to be rehabilitated and cured and quarantined until you are safe to be around other people. So in this model, and this is the model that I think makes a ton of sense. 

The one thing that arises from that though, is that things like the death penalty or life in prison without parole, all of that is a result of the retributive model no longer makes any sense whatsoever and in fact is a moral outrage. In this model, there are consequences, which I think makes people feel better, but ultimately the person who is the perpetrator is isolated and treated as someone who is in need of treatment and the consequences that are metered out to them are dependent upon how they respond to treatment. So you wouldn't keep a person who recovered from Covid in quarantine indefinitely when they had recovered, and they were clearly no longer spreading. But you would if someone was still exhibiting symptoms of Covid. That is a different model where instead it's not about like we are punishing the Covid by quarantining you for a year. You are addressing the Covid, and you are prescribing treatment that makes sense to the individual case. 

Sarah: And I feel like one of the kind of core ideas at play in all this that often goes unstated and actually, I've been researching the Reagans, so an example I can cite for this is John Hinckley was recently, I think, entirely released from parole supervision and is just he's just out, he's living his life. 

And Hinckley is a good example because the entire country was affected by the president being shot. So if you believe the assessment that he's fine, he's good, he's not dangerous, he just wants to write his folk songs and put them on YouTube, I think there's still a core unstated belief in all this that it is somehow insulting to the Reagans that he's like out, having a white chocolate mocha at Barnes and Noble.

Amanda: Right. Because we want people to fit into these nice little boxes where they are defined by the worst thing they've ever done. 

Sarah: Yeah. And what's that about? 

Amanda: I think this is something that restorative justice is attempting to address is the fact that our society is really bad at acknowledging harm done to victims. And the only way that our retributive model knows how to acknowledge the harm done to victims is by how horrible the consequences are to the individual who perpetrated the harm. That's the only way that our society institutionally officially acknowledges harm to victims. And there is no institutional foundational support that goes to victims. 

And we have this really impoverished social order that doesn't acknowledge the harm done victims or celebrate their survival or grieve together for the loss. It's something that we are really bad at doing and we leave victims to their private grief and don't go out of our way to help them recover. As a result, I feel like victims feel that they need something. The only acknowledgement, the only satisfaction that I get is if this individual who did this harm to me is forever branded with the harm that they did to me. 

Sarah: I really agree. And I hadn't ever thought of it that way before, but you just look at how American society is organized, and you look at how people have to pay for life saving surgery or organ transplants with GoFundMe’s. So you can't just be raising money for a kidney transplant, you need to jooze up your kidney transplant. 

Amanda: Yeah. You have to submit to being in a documentary about it in order to pay for it.

Sarah: Yes. Yeah, you do. I mean, I talked about this in a bonus episode we did recently with Josie Duffy Rice about Serial and how it started this trend. Where on the one hand you could say wow, little old podcasts fixing our legal system. But also you could be like, what has it come to that the best way arguably to get someone exonerated is to make it a viral documentary moment. That's not how a system should work.

Amanda: No, absolutely not. Because not every one of us can be a viral sensation. And yet… 

Sarah: Also, similarly to how there are like amazing people who did commit murder, they were like, “Yeah, I was committing an armed robbery, heat of the moment, I made a terrible choice. I'll regret it forever. I'm a nice person.” Or you're like, “I was in a cult”, or “I had postpartum psychosis” or so many things. There are also so many people who are innocent of the crimes they were convicted of who just suck and they'll never get a podcast about them, or they will but people won't care.

Amanda: Exactly. No, they won't care at all. Yeah. Again, I can't tell you the number of people I met in prison who were absolutely guilty of crimes and absolutely struggling with impulsiveness and bitterness and rage. But where did that rage come from? So many of the women that I was imprisoned with were victims of crime before they ever committed a crime against anyone. And they were victims of abuse and neglect. 

I've delved into this topic from a lot of different angles. What is justice for? Who is it for? What is it for? And again, it looks different to each person. I interviewed Samantha Geimer. Are you familiar with her case? 

Sarah: She was assaulted by Roman Polanski in the seventies.

Amanda: Yes. And when she reached out to me to be interviewed for Labyrinths, she very explicitly said, I want to talk about how the criminal justice system used me, a child, after I had already been used and abused by another person. And weirdly, that put me in a position of feeling like I had more in common with my own rapist than I had with the people who were supposed to be meeting out justice for me. 

That kind of experience that can only be lived. It's so hard to imagine and yet it is lived and it is lived time and time again. It calls into question the very foundations that again, we take for granted. 

Sarah: Yeah. I think the legal system maybe functions for a lot of us like that one friend you have who you're like, wow, this person always needs solids from me, but someday I'll need a solid and they'll come through, I just know it. And then nine years later you're like, Hey, could I have a ride to the airport, I really need it? And they're like, no. And you're like, oh, why did I think that? I just felt better living in a world where I thought that would happen. 

But something I thought about a lot in retrospect was the kind of viral moment in the summer of 2016 when the victim impact statement by the woman who we later learned was Chanel Miller went around, it was published on Buzzfeed and became viral online. And I remember talking about it at work, talking about it, with friends. It was one of those things that kind of defined the conversation. And you could see the conversations that we were just learning to have and then the ones that we weren't ready to have, I think.

Amanda: And then of course, how the sentencing played out in that case caused a lot of outrage. Even though I think it's really interesting that at the same time that was happening, we're also having conversations about how the criminal justice system should be less retributive. And so we have a judge who recognizes the humanity of the perpetrator and decides that the quarantine cure model is effective in this case. And then of course, he gets just slammed and people accuse him of racism and all of that. And a lot of people are saying things like, if Brock Turner had been black, he would've been given a much harsher sentence. And yes, that's absolutely true because racism is just a part of the system. But why does that mean that we should meet out the harsh sentence? What we want is to set a precedent for meeting out not harsh sentences that recognize the humanity of the individual. And we should do that more.

Sarah: Right! I felt like that was the thing that felt so hard to articulate in the moment. Because all of these stories, they're about more than literally what's happening. Which I think is why neurodivergent people struggle to understand the news. But you know that this was about America as well, trying to get it through our thick skull, but rape is endemic, campus sexual assault is everywhere, and nobody seems to care. And if this assault hadn't been stopped by… 

Amanda: By two strangers who happened to walk by, yeah, exactly. 

Sarah: And the whole story, that that was so huge that it was. hard within that moment to articulate why are we saying that we need to behave at our worst? Why do we get so upset actually when we see the legal system functioning as it should because the problem is that we're seeing scarcity in action, right? 

I say this a lot about the OJ Simpson trial. It was a pretty fair trial. The defendant had a bajillion lawyers. They could contest everything. They could do their own science. Wouldn't it be great if every defendant was OJ Simpson? Although I realized that would jam up the airwaves. It's not like people watch TV that way anymore anyway. Be like all trials all the time. Because when someone finally has afforded the correct resources, it actually makes us really angry. And that we like lack the sort of cockeyed optimism, but you have to be utopian. I think sometimes to even imagine what could possibly be, because what we have is the result of people's decisions that, what if young black men were treated like swimmers at Stanford, right? Rich, white swimmers at Stanford. 

And the question of are we upset just because this is another example of how white men become so horrible because they are cushioned from any sense of their actions having consequences as they grow up. Or are we also upset because we're seeing a rare instance of someone receiving mercy and we feel like we just know that no one else is going to get it. But it is a good thing.

Amanda: Right? That disparity. Yeah. How do you fix that disparity and recognize the humanity of all individuals who find themselves in circumstances such as one Brock Turner. And is it by being equally harsh or is it advocating for equal mercy or equal, not mercy. 

Sarah: Yeah. And that also, so much of what you could see in that statement was really Chanel Miller talking about how the legal system had used and abused her. And it felt like we weren't ready to talk about that yet. And to be like, hey, maybe as you were saying, there's no support for victims, there's no support institutionally for trauma, unless you're like, yes, I will use my trauma to have an unpaid job working for you trying to put someone in prison.  

Amanda: Yes. Everyone acting like that should bring about your satisfaction and your healing when in a practical way, I would think the vast majority of victims would argue that no, that's not even close to a healing process. What would be nice is if each individual victim was given the resources to discover those healing practices that aren't just being used as pawns in the criminal justice system. 

So say something bad happened to you, maybe you are given some time off of work, paid time off of work so that you could just spend some time working on yourself and healing yourself. One of the things that's absolutely true of being a victim of something, whether it's crime or the criminal justice system, it involves existential crisis. It involves a sudden feeling of loss, not just in whatever it is that was taken from you, say you were raped, it's that feeling of security in your own body. Or if it's your freedom that's taken away from you unjustly, it's that sense of I lost time and I lost the even faith in other people. 

There's so much that is lost from an experience, and you have to grapple and process with those things as a victim. And it takes time, and it takes energy. And to have all of that on top of the burden of being a human being is incredibly difficult. And of course, victims are struggling to heal and struggling to find that practice. Do you have the time, and do you have the resources? And is society recognizing that need in you or are they just saying, tough luck, but the perpetrator got 500 years. So how do you feel about that?

Sarah:  So even if he's a vampire, we're good. 

Amanda: Yeah, we're good. 

Sarah: Yeah. And I feel like we have been sold so hard on this idea that the prosecutorial arts are intrinsically healing, that it feels sacrilegious to disagree with it. And this is in America, we're not even going to get into the wig situation in some countries, but in America, where I am famously from, the judges usually sit higher than everybody else. They look down at you and they wear big black robes to convey a sense of authority. And I think that judges should have to wear Tommy Bahama shirts so that we're all reminded of their humanity. Judges should dress like Guy Fieri, who is the most human of us all outwardly. 

And also that so much of what happens in exonerations in America is having to circumvent the state having hurt feelings because you're having to tell them that they did something wrong in the past and it just feels so dad-like, so classic dad to you can't tell him he's driving in the wrong direction. You have to be like, oh, I wonder where that Dairy Queen is. And then allow him to realize that he missed the Dairy Queen.

Amanda: Yeah. To steal man that argument, to steal man why people put so many protections in place and do the whole ritual of being aloft and wearing the robes and all of that, and even legalizing outrageous things like the Alford Plea. I don't know if you're familiar with the Alford Plea.

Sarah:  I am, but I bet not everybody is. I would love you to tell us about it.

Amanda: Okay. So the Alford Plea, I came to understand it through the West Memphis Three case, where there was really compelling evidence that these three young men were wrongly convicted, but of course there wasn't evidence enough for them to 100% prove their innocence, despite the fact that everyone was coming around to the idea that, of course they're innocent, this is outrageous.

Sarah: Because innocence is even harder to prove than guilt, arguably, in many cases. 

Amanda: Absolutely. It's so hard. It's hard to prove a negative. So as the prosecution's case is unraveling, and while there is one of these individuals, one of the West Memphis Three is sitting on death row, potentially facing execution, they offer what's called the Alford plea, which is simply a guilty plea foreign, innocent person. So the state acknowledges that the person is innocent, but the innocent person is pleading guilty so that the state is not found to have been an error in convicting them. And so it's agreed, it's like a settlement, that the state doesn't have to really acknowledge their innocence. But the person who is taking the guilty plea is professing their innocence. And we all agree that they should just be let out of prison. 

Sarah: It's incredible. 

Amanda: That's what it means. That's what it means. And it's all staged to protect the interests of the state so that the individual can't sue for compensation, they can't sue for wrongful imprisonment. They remain officially convicted murderers.

Sarah: It's to foil those get rich quick schemes where you get wrongfully convicted of murdering three children, spend 20 years in prison and then profit.

Amanda: Right. So it's designed to protect the interests of the state. Why, if we're really steel manning that argument, why would that be important? Some people argue that the fundamental reason why those kinds of things are put into place and why there are so many protections for cops, even when they do wrong, is that for society to function, people need to have respect for the law. And if you do not have respect for the law because it is being implemented by imperfect humans, then there's going to be chaos. 

Sarah: And I got news for you guys, there already is chaos. Have you been in a Ross recently? There's nowhere left to go. And I feel like there are people listening who are like, maybe I'm just uneducated and I'm not a lawyer, but that sounds insane. 

Amanda: It does sound insane. But it is absolutely real. 

Sarah: And I think I know that it's real and I also feel that it's insane. Nothing against insanity, that kind of insulting. And many of the people I love most have troubled sanity. It's something else. It's just like willfully counterfactual. 

Amanda: One could also argue that people lose respect for the law when the law gets it wrong and doesn't admit it. So it really depends on transparency. For the sake of emphasizing the correctness or the respect we should have for our legal institution is the idea of closure. That there should be a limit to how many times a person can appeal their conviction simply because there has to be respect for some kind of sense of conclusiveness. And if you treat wrongdoing and you treat criminality as something that needs to be retried against, again, the retributive justice system. 

But again, in the quarantine model, that doesn't make any sense. Because if you have a disease and you try to cure it in one way and it doesn't work, you keep trying to cure it. Or if you've realized that you've made a misdiagnosis, you don't just persist with the treatment that is not going to address the issue. You're going to instead treat it differently or let that poor person out of the hospital who's not actually sick. That sense of conclusiveness for the sake of conclusiveness, out of respect for the legal system flies in the face of moral reason when you look at the criminal justice system from a perspective of being in the service of protecting people and curing people from the virus of criminal behavior.

Sarah: Yeah. I just at this point will have recently put out an episode on juvenile justice with Josie Duffy Rice. I was like, it's funny to me that like you would think people would more want to believe the hopeful thing, which is that you can have juvenile offenders who commit serious violent crimes, and yet that they can mature into lovely people and they can heal and they can receive, the care and the resources that they need to become safe to live in a society and to contribute and to love and be loved and feel connected. And she was like, yeah, but people like certainty more than they like hope, basically. And I was like, ah, fuck. Because I think that's completely true. 

And I think that what you're saying is also really indicative of this. And this idea that we have to protect the reputation of the law because if people know the truth, they won't respect it. And if they don't respect, then there will be anarchy. And certainly based on the events of the last couple years, I think the events of 2020 kind of are reflective of this, which is then if the truth will cause anarchy, then let there be anarchy.

Amanda: And also what a deep unfaith in human beings. I'm reminded of when Ricky Gervais was at one point asked by some person arguing for religion. If you don't believe in God, what's keeping you from raping and murdering people? And Ricky Gervais was like, I rape and murder people just as often as I feel like it which is never at all. Which again goes back to the sense that I feel like we act like the legal system must be in place or else people are just going to be raping and murdering people like crazy. Or! Or we can educate people from a young age to have love and to be supported by each other. 

The vast majority of us are not raping and murdering and being violent towards each other. And when we do make mistakes, we hope that people recognize that we've made a mistake and we didn't mean to be hurtful. And when we make a mistake, often it's coming from our own place of hurt. I don't know. I don't believe that human beings are antisocial as some people claim them to be, at least I hope not. 

Sarah: Yeah, and it depends on the human, but I think that if I truly weren't afraid of the law and consequences, I would shoplift from Whole Foods a lot. But that's it. That’s all I would want.

Amanda: Yeah. But again, all of these models for justice that aren't based upon retribution, it's not like there aren't consequences. It's just the question of where does the justification for that consequence come from and what does it look like? So prisons themselves are criminogenic. It's not a place where people are learning how to function better in society. 

Sarah: According to at least one statistic I've read, active corrections officers in the United States have similar PTSD rates to active service veterans of Iraq and of course they do. Do we want that? We really look at who this is serving and how. It's not serving victims. It's not serving the people we incarcerate, it's not serving the people in the communities that run the prisons. 

Amanda: Yeah. So who is it serving?  I don't know. 

Sarah: It’s serving a sense of patriarchal pride, certainly. And fear of change, I guess. And like belief in the cleansing power of retribution, I think. 

Amanda: Here's the thing, I don't even know if people who truly believe in retribution actually care about whether or not the person who is experiencing institutional suffering benefits from it. I really, I feel like the people who really believe in retributive justice don't care about the outcome. All they care about is the feeling of inflicting suffering on someone who has caused suffering. And ultimately that's what it comes from. But I really would love for people to, again, it goes back to that question of, here we are in a society where you're a sucker if you don't address violence with violence, if you don't respond to violence, with violence, and we've glorified violence, we've glorified the infliction of suffering on other people. And we've called it just. I don't know about you, but I find that to be a really despicable thing. And I'm just surprised that it's taking so long for other people to see that. 

I think that what's really going to push this forward is just further for and further understanding of how our brains work. I think the more we can pinpoint when and where the impulse to be antisocial comes from, I think the more we're going… It used to be that when a person had a tumor or an epileptic fit in their brain, people just assumed that they were possessed by demons and burned them at the stake. We have certainly arrived at a better place, and we're on a good trajectory, I would think, and knowledge is power, and knowledge is also compassion.

Sarah:  I feel like you've set me up perfectly for the contribution that I wanted to end on, because when we first started talking about this topic, I was like, huh, I would love to get a chance to talk about one of my favorite pieces of legal writing, which is Clarence Darrow's closing address in the Leopold and Loeb trial.

Amanda: Oh, okay. Let's hear it. Yeah. 

Sarah: So Leopold and Loeb was one of our many trials of the century, in the 20th century. This happened in the twenties. It became very famous. It was the inspiration for media properties that have yet to come to an end, including murder by numbers and compulsion. And it was two teenage boys who were both brilliant, who were in a queer relationship, although that wasn't really reported on at the time. Who decided with Lobe being the dominant one of the two, and who called the shots, decided to prove how smart they were by committing the perfect murder. And then of course got caught immediately because they were two rich boys and they fucked up all over the place. 

And so Clarence Darrow came to work for the defense. His job effectively was just to save them from the death penalty, it was a bench trial, which means this is heard by a judge rather than a jury, and it's not, will they walk free, it's will they live. And so he gave, what in total was a 12 hour closing address, and it was what I call the, ‘so you're telling me’ argument where he's basically in this rhetorical feat that builds over time basically saying okay, so you're telling me that this is the most barbaric, inhumane murder ever to happen in Cook County? I mean we say that about most murders in Cook County, right? But whatever. Let's say that this one really is, why not? Let's say that? 

And now you're telling me, because he's summarizing the argument the prosecution has made, that the state has no choice but to show his little compassion for the defendants as they showed for their victim, which is like legal rhetoric that you still see today.  They showed no compassion for their victims, so we show no compassion for them. 

Amanda: Yeah. We should be psychopaths too. 

Sarah: Exactly. Which is like a classic eye for an eye, classic retribution. And Clarence Darrow is like doing what I love. He's naming the unnamed and he's like, why should the state behave like these two murderers who we hate so much? That's who we're supposed to emulate? Are you serious? With respect. So here's Clarence Darrow supporting all the stuff we've been talking about, I would say. “Can your honor, imagine a sane brain doing it. Can you imagine it coming from anything but a diseased mind? Can you imagine it as any part of normality? And yet, your Honor, you asked to hang a boy of his age, abnormal obsessed with dreams and visions, of philosophy that destroyed his life when there is no sort of question in the world as to what caused his downfall. I know, your honor, that every atom of life in all this universe is bound up together. I know that a pebble cannot be thrown into the ocean without disturbing every drop of water in the sea. I know that every life is inextricably mixed and woven with every other life. I know that every influence, conscious and unconscious acts and reacts on every living organism. and that no one can fix the blame. I know that all life is a series of infinite chances, which sometimes result one way and sometimes another. I have not the infinite wisdom that can fathom it. Neither has any other human brain. But I do know that if back of it is a power that made it, that power alone can tell. And if there is no power, then it is an infinite chance which men cannot solve.” 

Amanda: Yeah. It a little bit reminds me of this recent essay that I wrote where I talked about how we talk about psychopathy. We condemn people who commit evil deeds as evil, and we call them psychopaths. And then we gleefully sentence them to decades in prison or to the death penalty. And we gleefully rejoice in what ultimately is horror. And then we feel so superior. And I think what's interesting about that is reflecting upon what this attorney that you're quoting here is saying is he's like, also our psychopathy is part of the ripple effect of how we are all interconnected. We too are acting in evil ways. We are all interconnected, and we are all influenced by each other. 

First of all the harm that is done to us changes us, but also the harm that we inflict, the punishment we inflict, changes us. Also the thing that is a result of us being interconnected and having the brains that we have is that we get to be conscious of these kinds of things. We can be aware of how the things we do influence us and the things that we do to others can influence them. And so for me, the question is not who deserves what, it's what is the outcome that you want? What can I individually and us collectively do to arrive at a place that is not what we deserve but is what we hope for. 

And I think that the only way to do that is to recognize people are not gods of themselves. And everyone's worst actions are a process of both unconscious and conscious things that are not entirely within their control and are a lot left up to chance and luck. On the flip side of that, treat these problems as problems to be solved, not problems to condemn.  

Sarah: Yeah. And I love that you emphasize this idea that to me is so central to this piece of legal rhetoric that we are all connected. Because I think the idea of a retributive justice system is based on an implied belief that we're not connected, that we can separate each other into groups, that I can look at someone and think, I'd never be like that. 

Amanda: Individuality. 

Sarah: Exactly. Our national myth. The individual is king. And we hate weakness. The way the legal system functions now allows us to have various classes of people who were allowed to wish harm on and feel comfortable kind of feeling aggressive towards feeling hate, towards wishing violence upon, believing in the magic of execution as if the world has made a better place when they die. Because really it feels like more of a system of culture than a system of governance, that we have a system that tells us like, it's okay to hate these people. You have these thoughts within you, but they don't make you bad. You're a good law-abiding person and the only people you hate are criminals and therefore you're fine and you're one of the good ones. But don't become one of the bad ones because then we're going to have to swat you like a fly.

Amanda: Then we get to hate you. Yeah. 

Sarah: Maybe the existential anxiety driving a lot of this would go away if we could be like, I have bad thoughts and that's okay. 

Amanda: We all do.

Sarah: Yeah. And that we're all people together.

Amanda: And I'm lucky that my bad thoughts don't turn into impulses that I can't control.

Sarah: Yeah. And to be able to say and if they did then I deserve to be able to like, get help for that. I don't think there's really the resources people need for that even if we had that kind of self-awareness. 

Amanda: Re-imagining what the criminal justice system is for and what it's supposed to do, what's the ideal outcome, is honestly, I feel like it's an inevitable thing that is going to happen. But right now it's still pretty controversial to say this kind of thing. So we're in an interesting space. 

Sarah: We are, we're in an absolutely wild moment in every way, including this one. And I love that we've just spent a couple hours saying a lot of the most inflammatory things we can think of. And for the most part they're very nice things. 

Amanda: Yeah, I know. How dare you care about people that we don't want to care about. Yeah. 

Sarah: Yeah. And I guess, I don't know. And my final thought to add to this is just that like connection feels good, love feels good. It feels better to love people than to hate people. And it feels scary to connect and I get that it feels scary to witness all the complexity that is within yourself and just how we have all been trained in our own ways to open up to ourselves and react and in fear and discipline and unlearning that is really hard. But I don't know, this conversation felt really good. It just feels good to open that door, that painted shut door a crack and look into this world that can be where we actually try to address problems by trying to see more of people's humanity rather than having a culture that shows us that it's dangerous to think about it at all.

Amanda: It's heresy to consider that someone is more than the worst thing they've ever done. Yeah. 

Sarah: Yeah. So thank you.

Amanda: Thank you. And I was so honored to be on the podcast, so it's so refreshing to find someone who's open to these ideas instead of just vehemently opposed just for the principle of the thing. Yeah. No, I really appreciate that.

Sarah: It's like living in a culture where people don't believe in jogging. Not that I like jogging, I hate jogging. But imagine I liked jogging, right? And you're always looking for people to jog with and they're like, oh, I guess we could walk. But then and one day you're like, no, we can jog together.

Amanda: They’re like, no, that is impossible. 

Sarah: What would happen if people started moving this quickly? 

Amanda: You’re a bad person if you jog.

Sarah: And that was our episode. Thank you for listening. Thank you for making it through another winter. We love to see you out there. Thank you so much to Amanda Knox for being our guest on this episode and taking us on this journey. You can find more of her on her podcast Labyrinth Getting Lost with Amanda Knox, and I really recommend the experience. 

Thank you so much to Miranda Zickler, light of my life for editing help on this episode. And thank you as always to Carolyn Kendrick, producer extraordinaire. We'll see you in two weeks.