We’ll Revise Our Views Along the Way: Talking to Emily Bazelon

By Andy Fitch

This conversation focuses on Emily Bazelon’s diversified professional practice, as well as her sustained commitment to constructive public dialogue. Bazelon, staff writer at the New York Times Magazine, co-host of the Slate Political Gabfest, Fellow for Creative Writing and Law at Yale, author of Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy, co-founder of Slate’s DoubleX section, and former law clerk on the U.S. Court of Appeals’ 1st Circuit, is currently working on a book about prosecutors and prospects for criminal-justice reform.

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ANDY FITCH: Could we begin to trace a professional continuum perhaps starting with your most long-range projects? At one end, this continuum might offer you as journalist, as author, seeking out topics that demand a nuanced, complex, diffusively empathic account often lacking in divisive public discussions — on a topic such as bullying, which, by definition, presumes no acknowledgement of a shared humanity within the bullying scene itself, and which, in practice, often replicates these dehumanizing power relations through sensationalized media accounts, or sometimes through how prosecutors treat kids facing bullying accusations. At the other end of this professional continuum, we might find your exemplary public performances of civil, supple, constructive discussion on the Political Gabfest. Between these two poles, of course, your career has presented a wide range of social interventions, examining recently, for instance, how norms shape laws and vice versa, how public discourse shapes public policy and vice versa. So in terms of outlining how you arrived at this impressively diversified professional practice, we could sketch whatever random sequence of personal/educational/occupational circumstances pointed you to your present roles, or whatever cohesive sense of curiosity or perceptual/conceptual/ethical frame has held together such rich and overlapping perspectives from the start, but could we somehow get to you consistently tracking, staging, reframing, refining public dialogue in any number of forms?

EMILY BAZELON: That is all very interesting. That’s often the case when someone else thinks about your work. It can seem more coherent than it seems to yourself. I would say that I have sought out complicated questions that have a legal component, but also, as you’re saying, have some broader social implication, and hopefully a really strong sense of humanity or impact on real people. Going to law school not in the very beginning of my career, but when I already had been a journalist for four years, pushed me toward those kinds of questions, and also gave me some sense of how to start looking for answers. I think of that as having been very important for helping build my confidence. I don’t think that journalists or writers need to go to graduate school or professional school. It just was helpful to me.

The other part of this, in a funny way, comes from a sense of insecurity. I’ve never been interested in traditional beat reporting, especially where you’re part of a pack of reporters. It’s not that I don’t respect people who do that, because I do. It’s that I always had this sense of What would I add? If I’m the 10th person, who needs me? Other people would be doing that better. So, out of this sense of wanting to offer something distinctive, that people would actually care about, I’ve always been interested in stories that weren’t getting told by a lot of other writers. If I have any kind of abstract approach to what I do, that’s it.

And on a more basic level, I really consider my professional identity to be, first and foremost, that I’m a reporter. I try to be fact driven and willing to change my mind a lot. I often will start with something that seems like a controversy. I go in thinking I’m puzzled by this. Or I wonder about this. And then I try to do the kind of reporting that leads me to a story that will illuminate those interests in some way. I also don’t like to back off if it turns out that my narrative doesn’t say exactly what I thought it would say in the beginning.

Your latest New York Times Magazine piece again addresses asymmetries in charged legal conversations — here an informal honor code allowing prosecutors’ personal judgment to determine which evidence they deem relevant to share with defense attorneys. That piece got me thinking about ways in which you take on a role as something like a legal advocate, but perhaps in a non-traditional sense of that phrase, with your distinctive type of intervention occurring through emphatic, ambivalent, personalized, investigative journalism, rather than through adversarial argument, or activist institution-building, or academic theorizing. Those all seem like common ways that people with legal training try to go public. Could you continue to describe your distinctive mode of public intervention through the stories you tell, and for what or for whom you end up advocating?

When lawyers represent clients, they make the strongest argument they can for their client. That often means they’re not including everything that an objective audience (basically someone who doesn’t know about the subject) would want to know. That is okay because our adversarial system allows each side to present its own account. But I’m not an advocate. That’s not what I do as a journalist.

That seems like closing down reflective possibility, rather than opening it.

Right. I also don’t think I’m an academic theorizer at all. It’s not something that has ever had much interest to me. Again, I respect other people who do it, but I feel very clear that that’s not what I’m offering. Especially since I teach a writing course at Yale Law School, and I have a fellowship there, I often feel it’s important to make it clear that I’m not an academic in any real sense of the word. With that said, what I try to do is pick through a complicated issue and a complicated case, and then tell the most fair and accurate version of it. Take this latest story that I wrote. Noura Jackson’s case is not a slam-dunk case of innocence. At trial she was found guilty of murdering her mother. The Tennessee Supreme Court reversed her conviction, but she was not formally exonerated. Instead of opting to be tried again, she took (for personal reasons that I can understand) what’s called an Alford plea to voluntary manslaughter. She maintains her innocence, but in the eyes of the law, she’s the person responsible for her mother’s killing. I chose her case deliberately. I was interested in prosecutors withholding evidence, and why that happens, and the organizational culture in an office that leads to that problem. I wanted to look at this issue through a case that was somewhat ambiguous, in terms of innocence, because that’s more often the reality. I wanted to make it a more complicated story that people would react to in different ways. Sometimes what I’m interested in is less a clear-cut injustice (although there are ways in which, when you violate someone’s constitutional rights, that is simply an injustice).

Here’s another way to think about this: if someone’s rights are violated but they weren’t exonerated, do we still care about their rights being violated? In the past, I’ve written a lot about proportionality. It’s OK to punish someone if they did something wrong, but do they deserve the harsh punishment that our legal system is meting out for them? That interests me a lot. This is partly my own predilection, and partly it does have to do with my experience of law school. I want to try to get people to think about the less black-and-white question of justice and injustice that I think are pervasive in our system.

Yeah, I guess I’m using “advocate” in a pretty unprofessional way. I was thinking of your overall work as advocating for meticulous reasoned judgment, both within legal discourses and within the broader civic discourse that ought to help circumscribe those specialized legal discussions. Or perhaps, as you’ve suggested, you often advocate for something like consensus values and procedural transparency setting the parameters for resolving civic conflicts, rather than some self-serving or hyper-partisan combative gamesmanship. And then in terms of the empathic identifications that your writing calls forth in readers, I also think of recent (or do they always exist?) progressive self-critiques of launching legal initiatives that never even attempt to win in the proverbial “court of public opinion.” This comes up, for instance, in various civil-rights contexts, in which we look to the judiciary to limit majoritarian dominance. Obviously with the Trump administration now, we can sense both the importance and the precarity of such court-determined modes of promoting social justice. And here I find especially helpful how you will stage complex, ambivalent responses to a charged social topic, and will implicitly encourage a broad reading public to engage in similar fashion. That’s part of why it seems important to ask you, in particular, about what types of overlap might exist among legal advocacy, journalistic writing, and the types of political gabbing you do. But first, maybe to flesh out this productive overlap a bit, could you describe any exemplary models (attorneys, activists, intellectuals, journalists, authors or artists of whatever sort) who perhaps best anticipated or inspired your own pursuits — specific people, specific public interventions that you most would like to emulate?

When I’m thinking about people who in my wildest dreams I would see as role models, J. Anthony Lukas is really important to me, Kate Boo, Adrian Nicole LeBlanc. These are all people who told through stories complicated truths about our legal system or society. But they are not only telling stories. They’re also telling us something about these broader issues, and really wrestling with them. Or James Foreman is interested in truths that don’t necessarily line up easily with liberal assumptions and ideology. There’s something uncomfortable about his book, and I am happy to have my work in that same line.

There are writers on both sides of the ideological spectrum who do a better job than I do of inspiring people — getting across, in a full-throated way, that something is a terrible injustice, and that we need to change it. I recognize that my way of going about this can be less dramatic and less powerful. Sometimes I wonder about that, and other times I think that’s OK. I’m doing this related but slightly different thing and it’s where I’ve landed, and so be it. I do connect the Gabfest to this, because the Gabfest is my weekly check of making sure that I actually have facts to back up my arguments. John Dickerson and David Plotz and I talk off the cuff, and none of us are always totally on it, in terms of lining up every single fact, but I do try really hard not just to be knee-jerk in the points that I make. What we value about doing the podcast is that it allows us to play with ideas and to ask questions. Because other people are expressing views, you can be more adamant in your own view. You’re bouncing up against someone else. When I’m doing my magazine journalism, it’s all in my voice, but I want to incorporate that same spirit of being inquisitive and airing the best arguments on the other side. I don’t want to seem like I’m hiding the ball. I don’t want to write something, especially something I’ve put a lot of work into, where you get to the end and you think Wait a second — she didn’t tell me this really important thing that would have changed my whole impression of this. And so I error on the side of trying to interrogate my own premise and reasoning.

Well having not gone to law school, I would assume legal training, at least at its best, would take for granted that a dispute often derives from multiple valid perspectives, that no settled consensus exists now or will exist later, that one ought to resign oneself to the pursuit of a provisional best guess, rather than to any attainment of truth. I have no idea if any of that is accurate.

I don’t know either. Legal training operates in a lot of different ways, but once people become lawyers, they often are much more invested in a particular point of view and conveying that the most effectively. If you’re any kind of litigator, that’s what you’re doing. Of course there are a lot of transactional lawyers, or judges, or academics, who have a different kind of approach. But classic legal training doesn’t always lend itself to the more reflective I’m going to weigh all sides of this, and make sure to include them no matter what. Sometimes it’s really important to do that. Just for an example: I was talking to one of the prosecutors I interviewed for my Noura Jackson story, a prosecutor in North Carolina, and he described the process in his office where, if they have a major case, before they go to trial and sometimes even before they indict someone, they sit down and do what he calls “critical case review.” The lawyer who’s going to prosecute the case sits with some senior people in the office who act as if they’re appellate judges. They’re looking for weak spots. So where are you going to have the most trouble convincing your audience that you made the right call, and that you have the persuasive argument? I really like that image. As a journalist, I should always be doing that. Sometimes you need the help of your editor or someone else you’re working with, who has a little more critical distance from the material. As a journalist, your responsibility is towards your reader, so part of what you’re doing is figuring out which parts of this story will really resonate with people. But you’re also trying to make sure to be fair and accurate, so that, like you said, someone will read this story and be like OK, now I understand the contours of this case and I can wrestle with the same dilemmas or complications that the writer was wrestling with. One example of this, for me, was a story I wrote a couple years ago about a student at Stanford who accused her professional mentor of sexually harassing and assaulting her. That story changed a lot as I was reporting it. I learned things I didn’t know at the beginning, and honestly my perspective on what it all added up to shifted. I wanted some of that process to come across in the piece.

Could you describe ways in which you’ll feel friction amid your work’s investigative, empathic, decisive, argumentative hunches? Or when have your professional capacities felt most fully, most constructively synthesized — let’s say when working on an investigative series for Slate, longform pieces for the New York Times Magazine, book-length public interventions, political gabfesting?

Well, friction I can answer pretty easily. Friction arises when you confound people’s expectations. They were the readers who had thought that you were on their side, and you shake them up. That happened to me when I wrote about the suicide of Phoebe Prince in Massachusetts. People, before I wrote, saw her as this innocent victim of bullying, and were really willing to blame the other kids for bullying her and her death. I was trying to test that assumption and tell the story in a more complete way. That generated all kinds of feedback, some of it positive, and some of it overwhelmingly enraged. People didn’t want to have their assumptions challenged, and also you’re talking about the death of a young girl, which is a terrible tragedy, and so introducing any set of complications to that is risky.

The other time that, in the last few years, I have felt a lot of friction in my work was when I challenged a tenet of feminism — although I would immediately say that there are different strands of feminism. I consider myself a feminist and I care about what other feminists think of my work. I mean, I have a pretty nuanced position on this, but I haven’t been totally in line with the survivor groups on campus sexual assault, and the policy shifts they’ve asked for. I’ve raised some questions about procedural justice along the way, and that has been controversial. I get criticism from people who I think either say things that aren’t true, or just really don’t understand where I’m coming from at all. With readers who essentially I see as people I should be able to persuade, or at least get through to — when they get upset I feel much more worried about it.

This also happened when I wrote about the decriminalization of sex work last year. There was a huge backlash from people who I would call “carceral feminists” — feminists who want to punish men but also see sex work as akin to rape or a form of trafficking, no matter what the circumstances. That response went on for a long time. There were anti-trafficking groups that were really, really angry with me. That bothered me, but it also, in retrospect…first of all, I think it was totally worth it. I’m fine with the fighting, especially when it’s over. [Laughter] Also, I didn’t feel like I had gotten anything wrong. In that case, I think part of what happened was that I was challenging a pretty dominant paradigm, and that took the carceral feminists by surprise. I was pointing out that there was a public-health critique of punishing sex work that seems, to me, a very pragmatic, health-based perspective.

Well in terms of controversy, and the heated responses your work sometimes generates, maybe we also could consider the intense emotional attachment of Political Gabfest listeners. Your other recent New York Times piece “How Do We Contend With Trump’s Defiance of ‘Norms’?” got me thinking about the Gabfest itself as potentially more of a normative than an informative enterprise. The Gabfest proactively presents a working model for how a constructive conversation might operate today, at least as much as it provides factual news or polemical assertion. Here I think of your Sticks and Stones subtitle, stressing the power of character and empathy. I wonder if you could describe how the Gabfest might extend its participants’ and/or its audience’s ongoing education in character and empathy — specifically in ways that book learning, print media, or the digital-discussion contexts you just described might not.

David, John, and I love doing the show, and we are constantly amazed by the incredible caliber of our audience. We get these amazingly intimate and interesting responses from listeners. Listeners also get mad at us.

I assume it would have to go both ways.

Yeah, I think we’ve been doing the show for 11 years, and the intimacy of regularly listening to people makes you feel like you know them in a way that bylines and writing just doesn’t. So I take it in that spirit of closeness when we hear from listeners. We do feel like we’re having a conversation in which we feel free to try to figure things out. We don’t always have the answers. We sometimes make mistakes or get things entirely wrong, to be honest. We’ll revise our views along the way. Sometimes David especially gets criticized for saying things that are provocative, or seem like they’re out of left field, but I think that David is crucial to why the show works. You have to have someone willing to take risks like that in order for anything interesting to happen.

Also for someone to play the straight-man, the one who articulates the opposed points of view.

It’s really lucky for us that David is very good at that. We all have a contrarian streak. Working at Slate augmented that for all of us. But we trust each other. We basically have never gotten upset or angry about anything that’s been said on the show, and I think that’s important. I also recognize it’s a limited conversation. We are three white journalist professionals from the East Coast. It’s of a particular strata, and I think if we were starting the show today it wouldn’t be so narrow in its personality. I totally accept that critique of it, but I do hope that we’re modeling how to take on difficult issues and have an honest argument. People often assume that I’m getting interrupted more, or that David is being disrespectful of me as the woman on the show, and I deeply don’t feel that. It’s because I have deep and abiding affection for David and John. I think that it’s important to let the conversation unfold without a lot of worry that something sexist is going on just because someone interrupts. David is an interrupter by nature and by culture, but so am I. [Laughter]

Right, I don’t want our earlier discussion to give the false impression that you are unaccomplished in more adversarial modes of exchange. For all of your legitimate concern with bullying, you definitely can duke it out with your Gabfest colleagues. You can smile through a late-night teasing session from Stephen Colbert. But even though you, David, and John all have described, on multiple occasions, the pleasure you take in fighting with each other, does it make sense to describe these particular forums as in some ways the opposite of the bully’s arena — as a social space premised upon the collective shaping of something still fragile, tentative, untested, unfounded, as you seem to have suggested? Or what does the constructively contestatory space stitched together by you, David, and John allow for that a more straightforward journalistic trajectory or a more diffusive social-media exchange or a tense trial by jury never would allow?

I guess it’s the ability to be playful, ask questions, and figure things out aloud, and not worry that one soundbite is going to be taken out of context. That does happen occasionally, but in general I think the show is built on this assumption that we’re all figuring things out as we go, and speaking with a lot of clauses, and a lot of caveats. That means usually our audiences are willing to give us…well sometimes we don’t get the benefit of the doubt. But I feel safe playing with ideas. I just feel like this is a show, a forum, where you’re not always going to be right, and you’re just doing the best you can. You’re reacting to the news. Sometimes in the course of the conversation that becomes clear and someone says “Oh, you’re right, I was wrong, I didn’t think about it.” That has to all be OK. We’re not trying to be right. We’re not trying to out-political-correctness each other. We’re just trying to have an interesting conversation. Honestly it’s much less intellectualized than this. It’s that I will think during the week: Here’s this crazy thing that happened, what are they going to say, and how are we going to process this?

We don’t come with our talking-points written down. Sometimes I wish I had written down something [Laughter]. Someone will say “You left out this major thing,” and I’ll think: Oh yeah I should have mentioned that. But I generally think it’s really good that it’s discursive.

You personally seem so careful in selecting the specific social circumstances you want to write about. And then with podcasts, and from your own lived experience of the show: on which topics, for which audiences, does the emotive, receptive, relational exchange of a Gabfest-style dialogue seem most useful? And when does it not seem like the right kind of discussion to have?

For the Gabfest I’m definitely more willing to go with whatever’s going to happen. It’s just driven by the news. We do try to stay away from topics where none of us knows anything at all. If one person knows a lot you can get into the weeds, in a good way, because the others can ask intelligent questions and follow along. But if nobody knows enough, then you’re stuck in the bluster of conventional wisdom and whatever happens on cable TV. Whenever I feel we’re having a few minutes like that, I get antsy. None of us likes that very much. So we are limited by subject matter — that this is of enough interest to the three of us that we’re following along. John knows more about foreign policy because he is often interviewing people about it, but I am not an expert on really any foreign-policy questions, and so I get worried in those conversations that I am not adding enough.

Just so you know, you three always sound knowledgeable. It always impresses me that any one person may have to field the first question, regardless of topic, and fields it smoothly.

Yeah, David’s pretty good at who he asks to help do that. And say for me with legal issues, David and John will ask great questions, and then that will get me to say hopefully the things that are the most interesting about that topic.

You also had mentioned a narrowness of personality on the show. I myself wouldn’t frame it that way, but I get your point, and that brings me back to your recent piece about norms. Obviously in this compact New York Times “First Words” section, you can’t do everything. [Laughter] I totally understand that. But it did interest me that both this piece and Sticks and Stones never address classical accounts of norms (from a variety of intellectual approaches, though with Pierre Bourdieu’s sociological investigations certainly standing out) as a (or in a bourgeois society such as ours, perhaps the) tool of class dominance. Within that context, a dialogue that seems to me rational, democratic, argumentatively transparent…I recognize that it might elicit alienation or resentment or stubborn-seeming recalcitrance in somebody else. In fact, if I imagine the opposite of a paranoid, factually dubious Fox News format, I picture less some equivalent progressive pile-on than the type of civic exchange you model on the Gabfest. And before the Trump election, your Gabfest partner David Plotz and I discussed the extent to which an ostensibly open-ended, meritocratic consideration of perspectives across prevailing political divides ought to leave room for what might feel to progressives like irrational claims, unfair fights. Then after the election, of course, an emergent podcast culture came under critique for failing to note the insularity or homogeneity even among its apparent plurality of voices. To what extent, or in what ways, have you since felt compelled to hear out, to avoid, to combat, to engage and/or redirect modes of conversation that you don’t find on a typical Gabfest episode — basically those that don’t fight (according to our norms, at least) fairly?

What comes to mind when I hear you talk is: what if people are making arguments based on unreliable news sources? Or what if they’re making very emotional arguments — for example We need to be afraid of immigrants? You can’t present them any detail that’s going to change their mind. So what do we do about that? Obviously it’s important to be able to talk across those divides.

Right, and as someone very good at talking across divides, how might you personally seek to initiate a constructive conversation with people who aren’t constructive conversationalists?

So I mostly encounter that through my reporting, when I talk to people who don’t share my views. In that moment, I’m trying to understand where they are coming from. I’m trying really hard to tear down the walls that prevent empathy, to borrow Arlie Hochschild’s phrase from Strangers in Their Own Land. I’m trying to get past those barriers. As a reporter I’m doing a disservice to someone, I’m really just not doing my job, if I get so irritated or blocked by what someone says that I can’t understand it. And one thing I do in those situations is a lot of repeating back to someone what they’ve just said — more as a way of internalizing and absorbing their point of view, than as a way of furthering the conversation. It’s important to absorb somebody’s perspective in that way. And of course we’re living in an incredibly polarized moment, more than I can remember in my lifetime. Some kinds of news coverage in the right-wing media feel to me like they do a disservice to the audience because they’re not honest. So I think it’s fine to call all of that out, but I think you can do this without making the people who are listening to these shows feel like it’s all their fault. I try hard to stay away from that.

When I talk to people, I also sometimes do a little bit of responding to factual errors along the way, not because I think it’s going to change their thinking, but just because it might lead to a more productive line of inquiry.

For Sticks and Stones, or for something like your new piece centered in Memphis, you depict traveling a lot, and you seem to showcase localized instances, hinting at a lack of national norms, at glaring disparities. If I come under criminal prosecution in Memphis, versus in some more transparent municipality, my experience of the law and its consequences for my life might vary widely. Needless to say, categorizations of race, class, gender also prove the lie to any sense of universal legal norms, but could you describe the role right now of travel and actually talking to people as you seek to speak across cultural and political divides?

I think it’s really important. Just to pick up on what you’re saying: because of American federalism, the criminal-justice system is by nature state and local. You really can’t say almost anything that’s national about it. And to the extent that elite writing and scholarship tends to focus on the federal system, that’s a misdirection in terms of what most people experience. So I totally believe in going to the places that I write about.

Still unless you really live somewhere, or go back over and over and over again, you can fool yourself about how much you understand a place. So I try to have some humility about how much I really am imbued in the local culture. I went to Memphis for that piece at least half a dozen times. I talked to lots and lots of people from Memphis, but I’ve never lived in Memphis. I don’t in my bones understand what it’s like to be from Memphis or from the South. So I want to try my best, but also to recognize that there is some distance there, and there is some usefulness about being an outside observer and parachuting in, and then you’re going to have blind spots.

And then returning to the more intimate, familiar confines of the Gabfest: you also had brought up questions of gender dynamics on the show, and how your audience hears those dynamics. Personally, I love the tonalities of your three supposedly fighting voices, and the recurrent tonal shifts that will happen.

Like my voice going screechy in some upper octave that nobody should ever have to have in their ears? Because that does happen.

I would say, off the record, that yours is not necessarily the screechiest voice of the three. And overall, that collective harmonizing definitely helps to make the show. Gabfest listening provides the perfect soprano, alto, bass, whatever. I don’t understand pitch.

As an accident, right? A serendipitous harmony.

And that sonic blend is part of where gender plays its part. But also on a more intentional level, to what extent do you three self-consciously consider the show to exemplify this rare, fluid, hopefully non-patriarchal cajoling across genders? I think of you three as providing, if this doesn’t sounds too dumb, the co-ed equivalent of the Obama/Biden bromance — with those two guys showing how they can be sweet with each other in public, and with the added cultural factor of one being black and one being white, and the baggage of Biden having made those awkward comments about race at the start of the 2008 campaign. Has the Gabfest always deliberately offered, or does the Gabfest now deliberately offer, a model for women and men to initiate animated, non-threatening, non-self-censoring conversations (that do get playful and resemble something like fights), and then to move on with everybody happier for having had the exchange?

We don’t really think about it consciously. The show was born out of our friendship, and, honestly, walking to get lunch together. When we all worked in Slate’s D.C. office, we rarely actually sat and ate lunch, but a lot of days we would pick a place to get salad or a sandwich, and the walk over and the walk back were when we would discuss the day’s happenings. That was a really vibrant conversation, and that’s the underpinning of the show, to this day, and it’s something that I miss when we’re not in the same room. I mean, honestly, I think if it had been self-conscious I probably would have gotten self-conscious about it in a bad way. I just feel like David and John essentially respect what I have to say, and value it enough that they’re sitting and talking to me, and then I don’t have to think beyond that. We’ve done this for a while. Also something that matters to me is that we have nice relationships with each other’s spouses, so whenever we’re in the same city the six of us try to have dinner. It’s super fun and lovely, and to me that matters, too. It feels like there’s this whole group of really thoughtful people who appreciate this relationship and find it to be something that adds to everyone’s life.

So the Gabfest just offers snippets from a bigger conversation including other people.

Exactly.

To close, could you describe your current book project and how it speaks to broader public conversations?

My new book is about prosecutors, how much power they have, and how they have the power to impose very harsh punishments. Sometimes that means they are a source of injustice, and they’ve been a driver of mass incarceration. But prosecutors also have the power to do a lot of good, and to improve the criminal justice system. I’m really interested in the reform movement happening right now within different district attorneys’ offices.

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