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'Punishment Without Crime' Highlights The Injustice Of America's Misdemeanor System

Former federal public defender Alexandra Natapoff says 13 million misdemeanors are filed each year in the U.S., trapping the innocent, punishing the poor and making society more unequal.

41:41

Other segments from the episode on January 2, 2019

Fresh Air with Terry Gross, January 2, 2019: Interview with Alexandra Natapoff; Review of CD 'The Soldier's Tale.'

Transcript

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. We're going to talk about a part of the criminal justice system that my guest describes as trapping the innocent and making America more unequal - the massive misdemeanor system. Depending on where you are, some misdemeanors are as minor as jaywalking. But the consequences of being charged with a misdemeanor, whether you are guilty or not, can be life-changing, especially if you are poor. My guest, Alexandra Natapoff, is the author of the new book, "Punishment Without Crime." Critics of how the criminal justice system deals with misdemeanors have described it as assembly line justice or McJustice.

Natapoff is a professor of law at the University of California, Irvine. From 2000 to 2003, she was an assistant federal public defender in Baltimore. She drew on those experiences for the book, but it's also based on extensive data she collected from every state around the country and on interviews with people who've gone through the misdemeanor process, as well as police, prosecutors, public defenders and judges.

Alexandra Natapoff, welcome to FRESH AIR. Let's start with a precedent-setting case from 1997 in which a mother was driving with her 3 and 5-year-old children in the car, and she was arrested for a seatbelt violation. Describe what she was arrested for.

ALEXANDRA NATAPOFF: Gail Atwater and her kids were driving around their local park very slowly - about 15 miles an hour. Her child, Mac, had lost his toy and the kids were looking out the window of their truck to try to find the toy. And they didn't have their seatbelt on. Their mom had told them they could take their seatbelts off in order to see out the windows to look for the toy.

And they were stopped by a police officer, Turek, who pulled them over and hollered at Gail Atwater that she would be arrested for the seatbelt violation for not having her children in the seatbelt restraints. Her children started to cry. Ms. Atwater asked if she could take her kids to the neighbor's house. Officer Turek said, no, they're going to come to jail with you. A neighbor happened to walk by and take care of the kids, but Gail Atwater went to jail.

She was booked, fingerprinted, spent a couple hours in the lockup and eventually pled guilty to and paid the fine for the seatbelt violation. The most she could have been punished for that violation was $50. It's a traffic misdemeanor. She could not have gone to jail for the seatbelt violation, but nevertheless spent time in jail as a result of the arrest.

And she brought a lawsuit. She asked the Supreme Court to hold that it's unreasonable for police officers to effectuate what we call full-fledged custodial arrest - that is, lock someone up, book them, take them to jail for a crime like hers, for which she could not have gone to jail. It was a fine-only traffic offense. And the Supreme Court ruled against her.

The Supreme Court said no matter what the crime, no matter how minor the misdemeanor, no matter what the ultimate punishment is, even if you can't be incarcerated for it, the police have the power to effectuate a full-fledged custodial arrest - that is, take you to jail, book you, lock you up.

And it really - it was such an important case because it opens a gateway into the kinds of arrests and intrusions and jail stays that characterize this low-level world of misdemeanors and minor offenses. And so in many ways, the size and the harshness of the misdemeanor system trace back to Gail Atwater.

GROSS: So how long was she in jail?

NATAPOFF: Gail Atwater spent a few hours that day in jail. She was booked. They took her personal possessions. She was fingerprinted. She spent the time in the lockup as anybody would if they were arrested for any offense in that jurisdiction.

So although I don't know who Gail Atwater spent her afternoon with in the lockup, it's possible that anyone in her situation could have spent the afternoon with people accused of very serious crimes, violent offenders, people with mental health or substance abuse issues. And she had an arrest record, so her information now is in the booking system. And it's an arrest record that will follow her for the rest of her life.

GROSS: When you say she had a record, this is her record. She didn't have one before this.

NATAPOFF: Correct.

GROSS: Yeah. So let's talk more about what a misdemeanor is. Not having your children wear seatbelts - that's a misdemeanor. But there's a wide range of crimes that qualify as misdemeanors. Can you give us a sense of that range?

NATAPOFF: So misdemeanors are minor offenses. Every jurisdiction defines them differently. Typically, they're defined as any criminal offense for which you can do no more than one year incarceration as punishment. But misdemeanors come in all kinds of shapes and sizes. Sometimes we call them petty offenses. Sometimes we call them violations or ordinance violations. In Texas, Gail Atwater's offense - her seatbelt offense - even though she couldn't go to jail for it, was a criminal offense. It was a criminal misdemeanor.

Many jurisdictions criminalize their traffic offenses. Even though we don't typically think of speeding as a crime, 25 states define speeding as a misdemeanor. Sometimes people go to jail for these offenses, more often they don't, at least not right away. And so it's a whole world of low-level petty offenses, criminalizing low-level conduct, imposing punishments that are relatively light compared to the kinds of felony sentences that we've become accustomed to.

GROSS: So your book is, in part, about the inequality of the misdemeanor system and how it's racially unequal and there's a class system within the misdemeanor system. So I don't know what kind of income the woman who was arrested for the seatbelt violation had, but what are the differences in how that might've been handled between a person who had money and a person who didn't?

NATAPOFF: One of the startling things about our enormous misdemeanor system is just how unequal it is. It often goes after low income and impoverished individuals. It sweeps in people of color, often disproportionately, for order maintenance and other low-level offenses. One of the particularly burdensome and inegalitarian aspects of low-level offenses is the effect of imposing fines and fees on misdemeanor defendants.

So Gail Atwater, for example, it appears that she didn't have any trouble paying the $50 fine for her seatbelt violation, but many people do. And for many people, they are set bail for low-level offenses - hundreds of dollars which they cannot pay - and therefore languish in jail while their cases are being resolved.

Jurisdictions also impose fees in addition to fines - user fees that fund the criminal system itself. And so there are all kinds of ways that an encounter with the misdemeanor system generates criminal debt. Individuals who come into the system incur all kinds of debt - fines and fees and bail and other kinds of monetary penalties. And for the low-income individuals who typically, you know, represent the average person who encounters the misdemeanor system, that debt can be crushing.

It can be unpayable, so much so that they end up spending time in jail that they otherwise wouldn't have spent. If they do pay those fines, it can cast them into deep debt, ruin their credit. They may end up on probation solely in order to pay off those fines because the fines are so crushing. So now they're under court supervision, not because they committed a particularly terrible offense or because they need supervision, but merely because they cannot pay.

So there is a profoundly regressive quality to the way that the misdemeanor system deploys fines and fees and bail and monetary sanctions. And because the system is heavily funded by those fines and fees and monetary sanctions, the misdemeanor system turns out to be a kind of regressive tax policy. It's stripping the poor and the - and working people in the system of their wealth and their resources in order to fund itself.

GROSS: Let's talk about bail. I mean, what is the purpose of bail, and how do you think it's being misused now?

NATAPOFF: The purpose of bail is supposed to be to ensure that people appear for court when they're charged with an offense. When people are charged with an offense, they're, of course, presumptively innocent. They haven't been convicted of anything. So bail has nothing to do with whether anyone is guilty or innocent. It's essentially a deposit that the court can require of an individual to make sure that they come back to court.

But what has happened in the misdemeanor system is that bail has morphed into a tool for raising money, for extracting fines and fees from individuals and has contributed to a sort of misdemeanor version of mass incarceration. Many jurisdictions have bail schedules, a set list of fees for various low-level offenses.

So if you're charged with trespassing, your bail is automatically $500. If you're charged with marijuana possession, your bail is automatically $1,000. These amounts have nothing to do with whether this particular individual is a flight risk, whether they're dangerous. Rather, they're just set schedules.

And for many people, those bail fees are out of reach. And so they remain incarcerated because they can't pay. And so we've seen around the country - many jails are filled with individuals who are there not because they've done anything particularly wrong or pose any particular threat or even a risk of flight but simply because they can't afford to pay bail.

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Alexandra Natapoff, author of the new book "Punishment Without Crime: How Our Massive Misdemeanor System Traps The Innocent And Makes America More Unequal." We'll be right back. This is FRESH AIR.

(SOUNDBITE OF PAUL SIMON SONG, "HOW CAN YOU LIVE IN THE NORTHEAST?")

GROSS: This is FRESH AIR. And if you're just joining us, my guest is Alexandra Natapoff. She is the author of the new book "Punishment Without Crime: How Our Massive Misdemeanor System Traps The Innocent And Makes America More Unequal." She's also a professor at the University of California, Irvine and a former assistant federal public defender in Baltimore.

You mentioned that fees and fines are used to fund things. And by things, do you mean, like, to fund cities and counties and municipalities - that those funds go into funding the system? So in that sense, kind of like traffic tickets, they're an important part of fundraising for the budget.

NATAPOFF: And misdemeanors are moneymakers for local jurisdictions. They fund courts. They fund probation offices. They fund public defender offices. They fund prosecutor offices. Some counties and municipalities use them to fund the general budget. It's one of the covert aspects of the misdemeanor system that, in many instances, it's running, not aimed at rounding up dangerous people or solving crimes or protecting public safety but cities and institutions and courts are reliant on the revenue stream that the misdemeanor system produces. It's a real distortion, you know, of what our criminal system is for.

Our criminal system is an extraordinarily important public, democratic institution. We need it to go after dangerous people. We need it for deterrence and for public safety. And yet, the misdemeanor system has quietly converted much of the misdemeanor apparatus into a revenue source. Whatever we think of punishment - whatever we think the purposes of criminal punishment are, raising money is not supposed to be one of them.

GROSS: I think, for some areas, the police are expected to - or may be required to - pull over a certain number of people per month. Like, there's a quota. And I'm wondering if you think that contributes to problems within the misdemeanor system.

NATAPOFF: We've recently learned through lawsuits and through police officers speaking out that many police departments rely on quotas - sometimes formal, more often informal - pressures on police officers to produce a certain number of arrests or citations or summons in order to measure their productivity or in order to support their promotion or their advancement in the department. And we've heard from police officers just how distorting these formal or informal quotas can be. They put pressure on officers to make arrests that they might not otherwise make, to issue summons and citations that otherwise might not be justified.

There have been lawsuits in New York from police officers that, when they are assigned to low-income communities of color, under pressure from these quotas, they feel forced to contribute to the racial disproportion of the criminal system - that in essence, because they've been assigned to communities of color, that they have to issue citations, that they have to engage in arrests, even when some other police action or some other intervention might be more appropriate.

And it is a distortion of the police function. Police discretion is an extraordinarily important resource in the criminal system. We rely on police discretion to advance public safety, to make sure people are treated fairly. And when we put pressure on police officers to produce citations and low-level arrests when they might not otherwise exercise their discretion that way, we're really interfering with a key aspect of the system's integrity.

GROSS: In your book, you write that you were a federal public defender in Baltimore from 2000 to 2003. And one of the things you learned from the people you represented there was that there was a very messy calculation of punishment - trying to decide, like, whether to plead guilty or pay a fine or you know. Give us a sense of what that calculation of punishment is when you're facing a misdemeanor charge and you don't have much money.

NATAPOFF: I learned an enormous amount from the people that I represented in Baltimore - listening to their stories, meeting them and their families and hearing how they grappled with the challenges of facing a low-level misdemeanor charge. And I learned that often the calculus of punishment doesn't necessarily shake out the way you would think.

There might be an assumption, for example, that people would avoid jail at any cost. And yet, for many of my clients, being on probation for a year or two or three years with the burdens and intrusions of probation - having to make appointments and meet with their probation officers monthly, having to be drug tested routinely, giving up their privacy, having the restrictions on their freedom - for many of them, they decided that, for them, going to jail made more sense. Even though they knew that jail was risky, that it was dangerous, that it was painful, the intrusion into their lives and the burdens on their lives of supervision and probation often seemed, in the long run, to be even more disruptive.

Many of my clients lived in dangerous neighborhoods. They were surrounded by dangerous situations. They often felt caught between a rock and a hard place. So I represented individuals, for example, who were charged with misdemeanor gun possession who knew that if they were caught they would be punished. And yet, they felt the pressure from their neighbors - from the people in their neighborhoods that if they did not carry a gun or at the very least were not perceived to be carrying a weapon, that they would be in danger, that they would be seen as a target. It was a heartbreaking calculus that they had to go through.

GROSS: So in terms of lack of resources, among the things you're mentioning is the resource of time, that public defenders don't have enough time to represent all the clients that they're supposed to be representing, and judges don't have time to hear all the cases they're supposed to be hearing. So what are the consequences of that?

NATAPOFF: The lack of resources in the misdemeanor system is one of the great challenges to the integrity of that process. And the reason that there's a lack of time is because the case loads are so enormous. There are so many people coming in to the misdemeanor system. Thirteen million misdemeanor cases are filed every year in this country. That's 80 percent of American criminal dockets.

And so for public defenders - and it's worth noting that every official - every legal official in the misdemeanor system is faced with this crushing case load. Public defenders, prosecutors and judges are all under pressure to move cases along. For public defenders in particular, having hundreds, sometimes thousands of cases that they have to resolve means that they don't have time to talk to their clients.

They may meet them literally in the lockup in the courtroom 10 minutes before a hearing with no time to discuss the case, the facts, the file. This is sometimes referred to derogatorily as meet-them-and-plead-them lawyering, that essentially your public defender meets you. They tell you what the government's deal is, and they engage in the process of you pleading guilty immediately.

The lack of resources also means that public defenders lack the ability to investigate cases. So there are very few, if any, investigators and public defender offices available for misdemeanors, so if an individual is innocent or if there are witnesses or if there are facts about the encounter with the police or the crime that could be uncovered, that public defender office may simply be unable to unearth that information.

The lack of resources means also that in many ways, the law itself is put aside. Misdemeanor cases can be legally very complicated. They may involve unconstitutional searches and seizures. They may involve unconstitutional statutes. They may involve complicated factual issues. But without the time and resources to engage those questions, there's very little litigation. Motions are not filed. Issues are not aired both because public defenders lack the resources but also because there's enormous pressure on them from prosecutors and judges not to litigate.

We've seen around the country examples of judges who actually punish public defenders when they try to litigate issues on behalf of their clients when they want to go to trial, when they want to file a motion. Judges have been known to hold public defenders in contempt or threaten to hold them in contempt because they're holding up the docket.

And so it's not the way that we think a judicial system is supposed to work. There's little room for law. There's little room for investigation. There's little room to have the adversarial conversation that we rely on to produce valid cases and valid convictions.

GROSS: My guest is Alexandra Natapoff, author of the new book "Punishment Without Crime: How Our Massive Misdemeanor System Traps The Innocent And Makes America More Unequal." We'll talk more after a break, and Lloyd Schwartz will review a new recording of Stravinsky's "The Soldier's Tale" made by Roger Waters, co-founder of the rock band Pink Floyd. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF ANTONIO SANCHEZ AND BRAD MEHLDAU AND MATT BREWER'S "NAR-THIS")

GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Alexandra Natapoff, author of the new book "Punishment Without Crime: How Our Massive Misdemeanor System Traps The Innocent And Makes America More Unequal." She's a professor of law at the University of California Irvine and, before that, was an assistant federal public defender in Baltimore. When we left off, she was describing how people accused of misdemeanors who don't have extra cash on hand face a backlogged justice system with public defenders who don't have adequate time or resources to properly defend their clients, so the clients are often encouraged to take a plea whether or not they're guilty.

You mentioned that part of the misdemeanor system is often referred to as meet them and plead them, so, you know, lawyers encourage - often encourage their clients to just like plead guilty and get it done with. So if you decide to take the conviction and you take the plea, what are the consequences of that? Now you have a record.

NATAPOFF: So one of the great fallacies of the misdemeanor universe is that getting a misdemeanor is no big deal, that it's just a misdemeanor, that it won't dog you for your life. And that has come to be, you know, profoundly untrue. A misdemeanor conviction, although of course not as serious as a felony conviction, still imposes enormous burdens on the people who carry them.

First and foremost, a conviction is accompanied by punishment. It can be crushing fines and fees. They may be on supervision, on probation for long periods of time. They may be incarcerated. If they're not incarcerated upfront, they may be incarcerated if they violate their probation or fail to pay their fines and fees. And then that conviction will - is a permanent conviction that follows them for the rest of their lives.

We know that it interferes with employment. It can mean that they lose welfare benefits, become ineligible for financial aid for education. They can lose their housing. It can threaten their immigration status. It can disqualify them for all kinds of jobs and licenses.

So the consequences of a misdemeanor conviction are far from petty, even though the conversation around misdemeanors, you know, really doesn't appreciate the impact that they impose.

GROSS: So we've talked a little bit about how the misdemeanor system penalizes the poor more than people who have money because the poor can't afford to pay bail or fines or fees. What are the fees that you're referring to?

NATAPOFF: So fees are different than fines. A fine is a punishment. It's punishment for whatever offense you are guilty of. It's typically set by statute. The judge decides how severe your fine will be as punishment for your crime. But fees are not punishment. They are user charges, in effect, that the criminal system imposes on people who go through it for all kinds of functions. They're essentially money-raising mechanisms that, for decades now, have been growing and growing as municipalities, counties and states rely more and more heavily on the revenue stream from the misdemeanor system.

So their fees can include jail fees, supervision fees, fees for applying for the public defender, fees for using the public defender, fees for drug testing, fees when they swab your cheek to put your DNA in the database. They'll charge you a fee if you don't show up to court, and they issue a warrant, they'll issue a fee. If you're late paying your fees, they'll charge you a fee.

In many jurisdictions, the list of fees, ranging from a few dollars here to $10, $20, $30 or a hundred dollars there, can add up to hundreds, even thousands of dollars on top of whatever punitive fine the court decides to impose.

GROSS: So wait a minute. You're charged a fee for paying - paying for your own incarceration in jail. And you're charged a fee to have a public defender and - when the whole idea of having a public defender is that it's a free lawyer to represent you.

NATAPOFF: I think it's hard for people to really fathom just how unfairly the misdemeanor system strips poor people of their wealth, or more accurately, wealth that they don't have. One of the most infamous is fees charged for the application for the public defender. Of course, by definition, you're only eligible for a public defender if you can't afford a lawyer. And yet, nevertheless, many jurisdictions charge a fee - say, a $50 fee - to apply just to get a public defender assigned. And many people forgo a public defender because the fee is prohibitive.

The Supreme Court has upheld the use of what they sometimes called recoupment fees. So if you use a public defender, the state can come after you and ask for money to pay for that even though, again, by definition, you would only be eligible for a public defender because you can't afford a lawyer in the first place.

Jail fees are particularly egregious and ironic for individuals who are being incarcerated precisely because they couldn't pay their fines and fees. Once they go to jail, in many jurisdictions, the jail will then charge them a fee for having been in the jail. There are fees for the use of health care in jails, so many people forgo health care. They forgo their medication because they can't afford the fee in the jail to get access to their medication. It's really this enormous underground wealth-stripping, regressive mechanism that is only just starting to come to light.

GROSS: So I just want to make sure - I know a lot of our listeners are probably thinking, is this person arguing that misdemeanors should not be punished or that there shouldn't be misdemeanors or that everybody should just be left alone - no jail, no fees or fines or bail? So what are you arguing for? I mean, you want reform, but you're not arguing to do away with the misdemeanor system.

NATAPOFF: No, I'm not arguing to do away with the misdemeanor system. We need to be able to respond to low-level crimes, to low-level harms. It's not OK to take other people's stuff. It's not OK to engage in low-level violence. It's not OK to drive drunk. And so in many ways mirroring the mass incarceration debate, we need to dial it back.

We need to dial back this enormous, bloated misdemeanor system. We need to dial back arrests. We need to dial back incarceration. We need to dial back the penalties and the use of debtors' prison so that the misdemeanor system can do its job, so that it can go after crime and low-level offenses in a meaningful way and impose punishments that are not so wildly disproportionate to the crime.

GROSS: Let me reintroduce you here. If you're just joining us, my guest is Alexandra Natapoff. She's the author of the new book, "Punishment Without Crime: How Our Massive Misdemeanor System Traps The Innocent And Makes America More Unequal." We're going to take a short break and then we'll be right back. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR. And if you're just joining us, my guest is Alexandra Natapoff. She's the author of the new book, "Punishment Without Crime: How Our Massive Misdemeanor System Traps The Innocent And Makes America More Unequal." She's also a professor at the University of California, Irvine and a former assistant federal public defender in Baltimore.

What are a couple of the reforms you would like to see in the misdemeanor system?

NATAPOFF: So many of the problems of the misdemeanor system flow from its sheer enormity. And there are things that we can do about that. Police could arrest fewer people. We could put less pressure on police officers to arrest and to issue summons when it's unnecessary. Prosecutors can decline more cases. When police officers arrest, prosecutors then have to decide whether that arrest is going to convert into a criminal case or whether it's going to be declined and remain merely an arrest.

And prosecutors could shrink the pipeline by declining more low-level cases in which an arrest is enough. It was enough of an intervention and enough of a punishment - decriminalization, reduced use of jail, the reduced use of bail, as we're starting to see in jurisdictions across the country. There are any number of points along the misdemeanor pipeline which we could meaningfully and sensibly shrink it so that it can - so that the cases that are left can get our full attention.

GROSS: Are you convinced that that would not encourage people to break laws because there wouldn't be consequences or at least there wouldn't be consequences as great as there are today.

NATAPOFF: So many of the reasons that people are incarcerated in the misdemeanor system have nothing to do with their wrongdoing. When individuals are locked up because they can't pay a fine or a fee, it's not because they're scofflaws. It's because they're poor. When individuals are arrested for loitering or trespassing because the police are under pressure to clear a corner or make a quota, it's not because they're scofflaws. It's not because they're dangerous.

They're caught up in a system that's using misdemeanor arrest and using misdemeanor processing in unfair and dysfunctional ways. And I think there is a lot of room in our misdemeanor system to scale back those practices so that we can concentrate on misdemeanors that cause real harm - the drunk driving and the assaults and the domestic violence that require our attention and make our misdemeanor system more truly effective and a better deterrent.

GROSS: I want to switch topics to an earlier book that you wrote, a 2009 book called "Snitching: Criminal Informants And The Erosion Of American Justice." And this book was about the government's use of criminal suspects and criminal defendants to get information in exchange for deals to get, you know, somebody to talk or to, you know, name another person who is guilty of something in return for leniency for the informant's crimes. What do you think is the problem with that kind of approach?

NATAPOFF: The problem with snitching, with the use of criminal informants, is that it is the most extreme version of a basic truth about the American criminal system, which is that ours is a system of negotiation. It's essentially a market. Ninety-five percent of all the convictions in this country, felony and misdemeanor, are the result of a plea. They're not a result of a trial. We almost never litigate guilt anymore.

And so within this market, we've created a kind of a black market, if you will, of cooperation, of deals between the government and individuals who are suspect or who have committed a crime in which guilt and information and cooperation are traded, often off the record, informally, without constraint.

And so this kind of black market of trading guilt and information has really undermined a lot of the integrity of the criminal system. Criminals are getting away with very serious offenses. Often, individual - vulnerable individuals are pressured into becoming informants at great risk to their lives. The government can launder a lot of its mistakes through cooperation and through the plea-bargaining process. So it's an opaque, under-regulated aspect of a market that is all - that hasn't gotten enough attention.

GROSS: I know you're also concerned that somebody who is bargaining for leniency in return for information isn't necessarily telling the truth.

NATAPOFF: So there's some big, famous problems with the use of criminal informants. One is wrongful conviction. Informants often lie in order to get a deal. Informants also often continue to commit their own crimes. They get a kind of impunity from cooperating with the government. A lot of it is very secretive, so it's a kind of off-the-record aspect - big off-the-record aspect of the criminal justice system.

And all these things work in tandem to create troubling cases and troubling outcomes. It's not that the government should never be able to cut a deal. It's that for such an important public policy, we should know more about it. The government should be more accountable. These cases should be better scrutinized.

GROSS: So in light of what you just told us about what you describe as snitching, what do you think of the use of giving information in return for a more lenient sentence as is being done by the Mueller investigation and the Southern District of New York in investigating the Trump administration?

NATAPOFF: So in some ways, those deals and deals like them - by which I mean deals cut by wealthy, powerful, well-represented individuals in a highly scrutinized, transparent environment - are the best version of snitching. White-collar crimes, political crimes like these, where the government has very few options to get information about conspiracies or wrongdoing by powerful, insulated individuals, it's - in my view, it's probably the best version of the informant deal.

The kinds of informant deals I think we should be worried about are the ones that are not scrutinized, where people - where defendants, for example, are not represented by counsel, where it takes place off the record where no one ever learns about it, where the informant gets to go on and commit additional crimes because the government finds them so useful. But at the top of the pyramid, if you will, in the highly scrutinized, highly resourced environment of these political crimes and the Mueller investigation, that's about as good as we get in terms of the integrity of these kinds of deals.

GROSS: As good as we get, but do you think it's justified?

NATAPOFF: I think time always will tell whether a particular criminal deal is justified or not. And that's a matter for democratic debate. We will know, eventually, what the government learned as a result of these deals. And then the American public can decide whether it made sense to let people who committed serious crimes against our democracy off or gave them more lenient sentences.

I'm not against the use of criminal informant deals in a system where we have already made the decision to negotiate. We live in a world of plea bargaining. And sometimes, it's worth cutting a deal with a terrible person in order to advance public safety and advance justice.

GROSS: Alexandra Natapoff, thank you so much for talking with us.

NATAPOFF: Thanks so much for having me.

GROSS: Alexandra Natapoff is the author of the new book "Punishment Without Crime." She's a professor of law at the University of California, Irvine.

Here's something surprising in the music world. Roger Waters, co-founder of the rock band Pink Floyd, has made a new recording of Stravinsky's "The Soldier's Tale." Lloyd Schwartz will review it after a break. This is FRESH AIR.

(SOUNDBITE OF GILAD HEKSELMAN'S "DO RE MI FA SOL") Transcript provided by NPR, Copyright NPR.

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