Crime, Justice, and Trump’s DOJ

0:00So it seems to me like that sentencing policy needs to follow the circumstances and the views of the public, which shift over time depending on circumstances. So I think right now, with relatively low crime rates, the public is very open to having rehabilitation be again the focus of sentencing. And that's what's happening.

0:27Pamela Karlan:This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. I like to think sometimes of the advice that my favorite legal philosopher once gave, and that's Yogi Berra. And he says, when you come to a fork in the road, you should take it. And I think my guest today on the show, Jonathan Robluski, took Yogi Berra's advice because he has taken both forks of the road throughout his career.

1:05Pamela Karlan:He was a career lawyer at the Department of Justice after beginning his career as an assistant public defender. He went to the Justice Department Civil Rights Division and he was a prosecutor there. He then worked his way through the Department of Justice into a number of different, very important jobs in the criminal division, particularly as director of the Office of Policy and Legislation, where he was involved in sentencing in particular, as well as being on the Federal Judicial Conference's Advisory Committee on the Criminal Rules. But all throughout this, he's also had an academic career doing things ranging from being a visiting scholar at the University of Cambridge Institute of Criminology to being an adjunct professor at GW's law school, George Mason's law school.

1:52Pamela Karlan:And we've been especially lucky to have him out here at Stanford Law School, where he graduated in 1986 this past fall. So welcome to the show, Jonathan. Thank you so much, Pam, for having me. Just so you know, it's been an absolute joy being here this fall. I've been out here eight weeks. I have two more weeks to go. The school is wonderful, and I've had a great time teaching the two classes that I've taught, one on sentencing and one on AI and criminal justice. Yeah. And I want to get into both of those, but I thought maybe we could start by just kind of talking about your career. So you were both a public defender and a prosecutor, and that's an unusual path, I think, for a lot of folks to take.

2:32Pamela Karlan:I mean, a lot of people are prosecutors and then they go into white collar criminal defense or the like, but you did both. Can you tell us a little bit about sort of how those jobs influenced how you think about criminal justice? Yeah, so it's a wonderful question. But for people who don't remember, way back 40 years ago, it wasn't so unusual for someone to want to be a public defender and to be a prosecutor. There were just fewer divisions. And there was a sense that both of those jobs were noble jobs. And so when I graduated from Stanford Law School in 1986, I applied to every prosecutor and public defender's office within about 100 miles of Stanford.

3:22And I interviewed with both prosecutor and public defender offices. And I got a job offer with the Alameda County Public Defender's Office in Oakland. And I decided to take that job. And I was there for several years. I lived in Oakland and I practiced in mostly municipal courts, but also Superior Court and right around the lake in Oakland, but also municipal courts in Berkeley and Hayward and Fremont and Livermore. And it was a wonderful, wonderful experience.

3:52Pamela Karlan:And what led you to go to the Department of Justice? Well, candidly, my wife came to me after we had both been out here for five years. and she said to me that it wasn't good enough that we were seeing our families that were all on the East Coast, that we would see them twice a year. She said, I think we should move back to the East Coast. And at least the way my memory remembers it, I said, sure, let's go. And we applied for jobs. Her family was in Boston. My family was in New York. And we thought Washington was just about close enough to them. And so we applied for a variety of different jobs.

4:28and I interviewed several different places in the Justice Department. I also interviewed with a variety of different law firms and then took a job with the criminal section of the Civil Rights Division where the office prosecutes hate crimes, police misconduct crimes, what are now called human trafficking crimes, and stayed there for five and a half years, had a wonderful time there. Yeah.

4:50Pamela Karlan:And I noticed actually when I was at the Department of Justice that in the criminal section of the Civil Rights Division, there were a number of people who had been public defenders. before they moved over to the prosecution side, which I think, I wonder why there's now such a division. And there wasn't when you started. I think, honestly, there were, you know, people had very different feelings about the law and about the jobs of prosecutor and public defender. And those views just change over time. I've told people this story that when I was a public Defender, my first job was actually doing mitigation work for a gentleman who committed four homicides and sexual assaults on different women.

5:36And my friends looked at me and said to me, Jonathan, how could you do that job? And then, you know, 30, 40 years later, I was working at the Justice Department. And those same people would come up to me and said, Jonathan, how could you do that job? And I think it's just a reflection of how the culture changes and how views change. Back in 1986, crime rates were peaking. People were quite scared. There were just different views about crime and punishment. And I think now that crime is much, much lower, I think those views have changed. And I think many more concerns about the number of people who are incarcerated have sort of taken the fore.

6:17And I think views generally have changed. But even back then, there was a sense that both prosecution and defense were just more noble. It was all part of this more noble profession, something which I'm afraid has sort of dissipated some over time. Yeah.

6:36Pamela Karlan:And you spent 35 years at the Department of Justice and really became the kind of sentencing guru inside the department. How did that come about? Well, candidly, it came about in a case, it started with a case that I prosecuted down in the middle district of Georgia. There was a young woman named Mae Jo Lester, and she was living in this town called Cordille, which is about an hour and a half or so, two hours south of Atlanta. And she was taking care of foster children. That was her, the way she earned a living. and she decided to move out of a double wide trailer home and into a frame home. And when she did, soon thereafter, a couple of men came and decided they would burn a cross in front of her home.

7:20And then a little while later, two other men decided they would burn her home down. And we went down there and investigated the case. We identified the people. And the first sentencing we had was one of the men who was involved in the cross burning. And I ask this of students all the time. It's like, how do you know what the appropriate sentence is for someone who's never committed a crime before in his life, or at least never convicted of a crime before in his life, and now he's convicted of a federal crime of burning a cross in front of a woman's home? Well, lawyers know what to do to answer that question.

7:52They open up the book, and the book was the U.S. Sentencing Guidelines Manual. And we opened up the book, and the book said that this person should go to prison for 18 months. And as a young lawyer, that's what I argued. There was also the policy of the Justice Department. The judge didn't want to give this man imprisonment. He decided to sentence this person to teach young black children how to do auto mechanics. He was an auto mechanic at a local car dealership. We decided to appeal the case. We did. We appealed to the 11th Circuit Court of Appeals. About a year later, they came down with their decision saying, no, we were right.

8:32The guidelines required at that time an 18-month prison sentence. And we went back down to Cordille. Now, of course, the 11th Circuit took about a year or so to make its decision. So by the time we got down there, this person had been teaching young Black children how to do auto mechanics and had done a phenomenal job. And the judge pleaded with us about having him remain on probation. And we decided not to oppose that. But it got me just fascinated with the whole issue of sentencing and sentencing guidelines and discretion and who actually makes the decision. And from then on, I sort of just became just very interested in it.

9:11Eventually, when my son was born, I decided I needed to get off the road. And so I went over and worked at the Sentencing Commission for four years and then came back to the department and I've been working on it ever since.

9:21Pamela Karlan:When I think about the huge shifts and the ideas behind sentencing just over the course of your career and my career. I mean, there was the point at which federal law announced that rehabilitation was no longer part of the aims of sentencing. We seem to swing back and forth between determinate and indeterminate sentencing. We have a whole bunch of mandatory minimums. We had the Booker case and the question about how binding should the guidelines be. Do you have a sense of if you were starting from scratch, what your ideal way of doing this would be? So I don't believe sentencing is a science, and I don't believe there's one ideal way to do it.

10:03I think that it changes with circumstances. And in the 1960s and 70s, when crime was rising to levels that the country hadn't seen before, when we were in the midst of various social movements that were happening, when drug use, illegal drug use was getting out of hand, and a lot of people were being harmed, It's not surprising to me that at that moment, sentencing changed from indeterminate to determinant. And crime peaked, though, in 1991. It's been falling pretty much ever since, with the exception of a couple of blips around the time of the pandemic. So it seems to me like that sentencing policy needs to follow the circumstances and the views of the public, which shift over time, depending on circumstances.

10:49So I think right now, with relatively low crime rates, the public is very open to having rehabilitation be again the focus of sentencing. And that's what's happening. I think the determinate sentencing movement, which started in the 70s, is slowly dissipating. It's happening in the federal system. The First Step Act, which was signed by President Trump, is all about rehabilitation and encouraging recidivism reduction programming in federal prisons. here in California. There have been a lot of changes, a lot of them by proposition, some through the legislature, again, moving away from determinate to indeterminate sentencing.

11:30We had a conference here at Stanford last week about second look sentencing.

11:35Pamela Karlan:Yeah. What is second look sentencing? So, determinate sentencing is based on the idea that at the time of sentencing, a sentence is issued and it's not reviewed again. You serve 85 % of that sentence, And that's the end of the story. Second look sentencing is the idea that at some point in a long sentence, long prison sentence, there would be a review, whether that's by a parole authority or by the sentencing judge, and have a chance to sort of look on how this case is moving, whether there are any changed circumstances, whether the person has been rehabilitated or has been participating in rehabilitation programming, whether it's just time to rethink the sentence that was issued.

12:20And it's happening all over the country in various mechanisms. There are plenty of states that still have parole boards and parole authority. Here in California, there have been many, many opportunities, again, through proposition and through legislative action to revisit sentencing. So, for example, in 1994 here in California, it seemed quite sensible that someone who committed three felonies be sentenced to life imprisonment. Now in 2025, that doesn't quite seem so sensible, especially if some of those convictions are for nonviolent crimes.

12:54Pamela Karlan:Yeah, I mean, it was kind of famously the guy who stole the tapes from Walmart, the guy who stole the pizza slice and the like. And I think it's interesting that we've had some success at the polls with initiatives that have changed the three strikes law here. Yeah. And it's made a big difference. A lot of those cases have been reviewed. A lot of people have had those life sentences reduced to time served. The recidivism rates of those who have gone out, have come out, have been pretty low. Of course, a lot of this work has been spearheaded by Mike Romano here at Stanford Law School with the Three Strikes Project that he leads.

13:40So there's just been a lot of really, really interesting work. But I think much of that is made possible by the fact that crime rates have decreased and the public is just less concerned with crime as a top issue. Now, again, during the pandemic, crime spiked, violent crime spiked, and the public's interest peaked again. And it's no surprise to me that last year there was an initiative here to increase penalties from misdemeanors to felonies for certain crimes. It's not a big surprise that progressive district attorneys like Chesa Boudin and George Gascon were recalled from office. But I think that's temporary.

14:18And I think we're back to crime rates falling. And I think changes to public concern about crime.

14:25Pamela Karlan:Yeah, it's interesting also because it seems like there's always this kind of weird time lag between when crime spikes and it takes a while for people to realize it's spiking or when crime drops and takes a while for people to realize that. And then there's also this weird kind of – there are kind of serious crime statistics and then there are what we think of as kind of quality of life crimes. And I take it that people in San Francisco with the Chesa Boudin example weren't so much thinking that they were going to be shot to death on the street, but it was a lot of folks with mental health issues and the like.

15:06Pamela Karlan:And I just kind of wonder whether we've ended up sentencing lots of people at the same time we had this kind of deinstitutionalization and a lack of mental health services. Yeah, I think it sounds like you were in my class the other day. No, no, no, no. We were discussing what are all of the influences that led to this huge increase, excuse me, this huge increase in imprisonment in the United States. We started with around 150 per 100 ,000, which was not that dissimilar from Western democracies around the world. And then we spiked. We went up five times to, in 2008, we were imprisoning 750 per 100 ,000.

15:46And we've talked about in class, like, why did that happen? And I think part of it is the spike in crime. Part of it is the cycle of illegal drug use, which was peaking in the late 1960s and early 1970s. And then there are a number of other things that we talk about in class, including social movements, the civil rights and the women's rights movement, which caused a backlash with a lot of people and I think led to large changes to imprisonment policy. And then mental health and the deinstitutionalization, which was really happening in the 1970s and 80s. You know, the hope, of course, was that there were going to be community health, mental health centers.

16:27The promise of all of that, I don't think quite panned out. And there were an awful lot of people with mental health issues that ended up on the street and some of them involved in some criminal activity. So I think a lot of that combination of a lot of those factors led to this spike in imprisonment. And oddly enough, part of it was also it happened to coincide with the law reform movement, which led to changes from indeterminate to determinate sentencing, the creation of sentencing guidelines and all the rest.

16:59Pamela Karlan:And then there's also, of course, every time in like in a state in California that has direct democracy, you end up with initiatives that seem to be almost for a long period of time, one-way ratchets. So it's not just we imprison more individuals, we also imprison them for much longer than our kind of peer nations. Yeah. So it's very easy for, politically easy to create a mandatory minimum, to increase a mandatory minimum, to create a life without possibility of parole statute. We experienced that in the 70s, 80s, and into the 90s. And if you go back and look at the votes in Congress, in state legislatures, they're overwhelming and bipartisan.

17:43It's much, much more difficult to decrease penalties, even when crime is lower. And I think part of that is just normal politics. Part of it is the fact we live in this social media age where the loudest, shrillest voices, the ones that are the most melodramatic, have the biggest voice in social media. So it's difficult, but it's still happening. There are changes going on right now. Some of that is within the second look world, but some of it not so much. So in the First Step Act, President Trump signed a law that changed the penalties for using a firearm in the commission of violent crime from an astronomical 25 plus years, if you did it more than once, now down to five years.

18:29Now, it's still a long prison sentence, but it can be done. And it's being done in various places around the country, including in California and including by initiative.

18:40Pamela Karlan:So, you know, if I think about the First Step Act and President Trump signing the First Step Act and the like, it seems so different than where he is now on crime. I mean, the claims that he's making in order to send National Guard into various cities are claims that, you know, it's more dangerous to be on the streets of Chicago than the streets of Fallujah and the like. What happened to change how we're talking about crime at the national level in that way? So I think the story of the First Step Act is a really interesting one. The administration back in 2017 and 18, the first Trump administration, was not unified about changes to sentencing policy.

19:27If you recall back then, Jared Kushner, the president's son-in-law, had a major position in the White House. And his father had been prosecuted by U.S. attorney Chris Christie and had spent some time in federal prison. And that led to Jared Kushner being a sentencing reformer. And it was, you know, top of mind for him. And he was spending his time in Washington going around trying to push for sentencing and criminal justice reform. But at the same time, the Attorney General of the United States at that point was Jeff Sessions. And Jeff Sessions was not a criminal justice reformer, and he was not a sentencing reformer.

20:07He was very happy with long mandatory minimum sentencing, and he was pushing back pretty hard. And there was this give and take for two years, for the first two years of the Trump administration, over criminal justice and sentencing reform. And if you recall, right after the midterm elections in 2018, the president fired Jeff Sessions. It had nothing to do with criminal justice reform. It had to do with the fact that he had his recusal. Oh, his recusing himself. Yeah. Yes. And he led to the appointment of Bob Mueller as special counsel. But as soon as he left, literally within two or three weeks, Kushner was able to win the battle over criminal justice and sentencing reform.

20:51It was December of 2018, literally weeks after Sessions was fired, that President Trump stood up in the Roosevelt Room with a whole bunch of reformers and also police agencies and said, I'm for this. And the First Step Act was signed weeks later. So I think that dynamic was absolutely fascinating. Of course, crime did end up spiking during the pandemic. And I think the president both has an instinct to talk about American carnage. He did it in his inaugural address. He's done it a number of times, and he's pushed pretty hard. And of course, Jared Kushner is not to be found within the second Trump administration.

21:37Pamela Karlan:Yeah. And I want to turn now to kind of the second Trump administration and the Department of Justice, because you spent 35 years there and you left. What led to your decision to leave? Well, I left before President Trump was reelected, and it really had to do with things unrelated to him. And in many ways, I was very, very fortunate. But it was just, it was time for me to go. The job was becoming less interesting. There's a book out now by a couple of Washington Post reporters about the Justice Department during the Biden administration And the role that I personally played and that others in my position played were to a great extent diminished, smaller.

22:20The Justice Department during the Biden administration was not really a huge, huge advocate for reform. just candidly, it was just getting a little less interesting. And my role was lessened to a great extent. And so I thought it was just time for me personally to go. But what's happening now is, of course, much, much more important. And I'm happy to talk about that some more. I lived through many, many transitions. And of course, this one is highly unusual.

22:53Pamela Karlan:Yeah. I mean, my experience when I went to the Justice Department, I was there as a political appointee, as you know, in the Civil Rights Division was that the career lawyers were the absolute backbone of the department. And I mean, not to be too anatomical, they were the backbone and they were the heart and they were the brains in some ways as well. And, you know, I worked on a couple of prosecutions while I was there. And it was clear to me that they were driven by line level attorneys and career managers in the sections. And what seems to have happened in this administration is that there has been a move away from relying on career prosecutors to make decisions about whether to prosecute people, if you're prosecuting them for what are you going to prosecute them.

23:44Pamela Karlan:I mean, we had serious discussions in some of the hate crimes cases that I was reviewing on whether it was appropriate to charge this as a hate crime or not. And those seem to have disappeared. Is that distinctive to the Trump administration? Or has there been this kind of hands-on political decision-making since Watergate? I sort of had the impression that since Watergate, it was really thought that the president could say something like, I want you to do more street crime, or I want you to do more drug crime, or I want you to look at more white collar issues or look at, you know, cyber crime or whatever, but that there was no real hands on White House or political involvement in individual cases.