Charged: “Ep 4: The Escape Hatch”

Emily Bazelon’s careful documentation of a case in New York’s gun court leads the listener to realize there must be a better way.

As someone with a deep interest in criminal justice reform, I patiently awaited Emily Bazelon‘s book Charged, which examines the movement to change how prosecutors work in an attempt to end mass incarceration. Slate, in partnership with The Appeal, has handed the second season of its Slate Presents podcast over to Bazelon to tell a story about New York City’s gun court.

To those familiar with the criminal justice system, it should come as no surprise that gun court primarily impacts young black men. The majority of defendants have no prior criminal record and many never fired a gun, they simply possessed one. Charged focuses on one such defendant named Terari and Brooklyn’s new district attorney, Eric Gonzalez, who has his mind set on reforming the way prosecutors operate.

In “The Escape Hatch,” Terari enters a diversionary program that — if followed with completion — will allow him to avoid a felony conviction. Diversionary dockets, the most common of which are drug courts, require a defendant to plead guilty. When and if she completes the program, prosecutors dismiss the charges.

Terari enters the program because prosecutors wanted him to serve at least two years in prison for the initial gun charge. Defendants routinely enter guilty pleas to charges they may have a defense against to avoid the risk of going to trial. Judges and prosecutors depend on guilty pleas to keep their dockets moving along. They resolve 95 percent of cases nationwide.

To show how this can impact defendants, Bazelon documents a case in which a defendant who didn’t want to serve a multi-year sentence for writing a bad $88 check turned down a guilty plea. Prosecutors upped the charge to make it his third strike, and when a jury found him guilty he received a sentence of life in prison. The state Supreme Court upheld the legality of the prosecutor’s tactics.

In Terari’s case, if he fails to comply with the terms of the program (and many diversionary and probationary programs have borderline byzantine requirements of defendants), the hammer falls, and he will be sentenced for the charge to which he pleaded guilty. The infraction could be as minor as staying out past 10 p.m. At the end of episode 4, we don’t know how things will turn out for Terari.

Bazelon has long covered the criminal justice system and highlighted many of its inequities. Because of prisons criminogenic effects — see episode two — giving young adults who merely possess guns, and profess to possess them for protection, multi-year prison sentences almost ensures they will commit future criminal offenses.

Her careful documentation of Terari’s case leads the listener to realize there must be a better way. Diversionary programs are a positive step, but in Brooklyn, it sounds like too few get the opportunity, and those who fail to meet the program’s terms end up back where they started.

Listen here.

New episodes of Charged appear on Wednesdays.