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Stephen Breyer Wants the Supreme Court to Avoid ‘Self-inflicted’ Wounds

The retired justice spoke with The Marshall Project on abortion, the death penalty and the court’s reputation.

A headshot of an older White man wearing glasses, a black suit, striped shirt and red tie.
Stephen Breyer served as a Supreme Court justice for 28 years.
Stephen Breyer served as a Supreme Court justice for 28 years.

Until his retirement from the U.S. Supreme Court last year, Stephen Breyer spent 28 years hearing cases that profoundly shaped American life, including landmark decisions on LGBTQ rights, reproductive rights and criminal justice.

Perhaps more than any of the other justices, Breyer was known as a pragmatist, guided by a belief that good government will outlast any one person or political fad. In his 2021 book, “The Authority of the Court and the Peril of Politics,” he argued that the court only has power when the public shares his faith in the importance of its role in our democracy.

This article was published in partnership with Slate.

The Marshall Project sat down with Breyer in his office at Harvard Law School earlier this year for a wide-ranging discussion about the death penalty, abortion, prisons and how politics do (and do not) affect judges’ decision-making. Here are three key takeaways from the conversation.

1. Breyer disliked the decisions of the Supreme Court’s current conservative supermajority on hot-button cases and issues. But his commitment is to the institution over any one issue.

Breyer said he strongly disagrees with the court’s decision last year in Dobbs v. Jackson Women’s Health, which overturned decades of well-established precedent to rule that there is no constitutional right to abortion. “You think I like Dobbs? There were a few words in that dissent I don't normally use,” he said. “I thought that was wrong. And I wrote my reasons.”

Over his decades on the court, Breyer also came to believe that the death penalty is unreliable and arbitrary, cruel and unusual. He argued that people must be able to thoroughly fight their cases — but allowing for that time creates delays that undermine the very purpose of the penalty. And that makes the system untenable.

“You can't have both, in my opinion: a system that is basically fair, a system that works honestly, a system that tries to treat people equally — and also have a death penalty, as I've seen it over 20 years,” he said.

Breyer was particularly animated about Dzokhar Tsarnaev, the surviving Boston Marathon bomber who, Breyer felt, was denied the opportunity to prove that he had been pressured and intimidated by his older brother into participating in the bombing.

“Jesus, what should you do with this person? Execute him? Please. How is that helping?” Breyer asked.

Breyer stated his opinion about the death penalty forcefully and compellingly in a 2015 dissent and an accompanying book. But ever the institutionalist, in the ensuing years, he often deferred to the court’s majority. “If I lose, I lose,” he said. “And I'm going to go back to following what the law is, in the absence of [the rest of the justices] taking my wise advice and reconsidering.”

2. The Supreme Court’s reputation has suffered blows over its history, but it has always corrected course.

A few months after our interview, the court’s legitimacy took a major hit after revelations that Associate Justice Clarence Thomas received hundreds of thousands of dollars’ worth of undisclosed gifts from a Republican mega-donor. During our talk, Breyer identified several events in the court’s history that are today considered watershed moments that tested the strength of the court — and yet the institution survived.

Former President Andrew Jackson, who forcibly removed the Cherokee Nation from Georgia via the Trail of Tears, in direct defiance of an 1832 Supreme Court ruling, was famously quoted as saying, “[Chief Justice] John Marshall has made his decision; now let him enforce it!” In 1958, the governor of Arkansas closed the Little Rock School District rather than heed the Supreme Court’s unanimous order to integrate. These and other standoffs made it painfully clear that the court can only say what the law is. It’s up to the people, and their elected leaders, to follow it.

“There have been a lot of bad, bad, bad days,” Breyer said.

The 1857 Dred Scott case, for example, in which the Supreme Court ruled that African Americans were not U.S. citizens. Plessy v. Ferguson, the 1896 case that permitted segregation. Or Korematsu, when the court rubber-stamped concentration camps for Japanese Americans during World War II. All those decisions are now regarded as stains on the court’s legitimacy.

“And they couldn't last. It couldn't last because the country had awakened to the problem. And we have our Martin Luther King, and we have Rosa Parks, and we have the Freedom Riders,” Breyer said.

The court marched on and eventually righted itself.

3. The Supreme Court has no power except its reputation. That’s why it’s the best arbiter of the Constitution, Breyer said.

In his book, and in our conversation, Breyer laid out his argument that the Supreme Court’s power stems, in a way, from its powerlessness. Referring to writings by Alexander Hamilton, he said that Congress cannot have the last word on the Constitution, because its members are elected. And elections are essentially popularity contests.

“The least popular person in this country has the same rights under this document as the most popular person,” Breyer said.

The president can’t be the final authority on the Constitution because he is the commander-in-chief of the armed forces, and when a single person has so much power, it is too easy for ego to get in the way. “We don't want the president to have the last word. He'll say he's always right,” he said.

So Congress has the power of the purse. The president has the power of the sword. “Judges? They’re not perfect,” Breyer argued. “But at least they don’t have that much power.”

Read on for a transcript of our conversation, edited for length and clarity. We organized the conversation into three topics, and start with some brief context on Breyer’s record in those areas.

Stephen Breyer on criminal justice

Breyer was a judge on the U.S. Court of Appeals when he was nominated by President Bill Clinton to the Supreme Court in 1994. Earlier in his career, he worked for Sen. Edward Kennedy and as an administrative law professor at Harvard University. Although he was not a prosecutor or judge in a criminal courtroom, in 1985, President Ronald Reagan tapped him to join the original U.S. Sentencing Commission, which was tasked with reducing sentencing disparities. At the time, federal judges had a wide range of sentencing options, and little guidance on how to choose from within that range. The intended flexibility of the guidelines — judges who saw a compelling reason to depart from them could, with a clear explanation — was undermined by Congress’s introduction of mandatory minimum sentences. Breyer said he drew on his experience on the sentencing commission when considering cases as a Supreme Court justice.

The Marshall Project: In your mind, what is the criminal justice system for?

Breyer: The purpose is to try to prevent crime. And to discourage people from engaging in crimes. The four classical purposes of punishment are to deter: general deterrence and specific deterrence. That is, while the person’s in prison, he is less able to commit crimes. Reformation: improving them, so they don't recidivate, which is not usually the result, but we try. And the fourth, you can call in many different ways. But retribution is one way to call it. Those are the four classical aims of the criminal justice — punishment — system.

Are we any good at it? Are we achieving those goals?

The question is always, compared to what? Of course not.

Once, years ago, I asked Norm Carlson, who was a very distinguished and really well-respected head of the Bureau of Prisons. We worked on the original [Sentencing Commission] guidelines. We were talking about recidivism. And I said, “Well, Norman, you’ve had years of experience. You're very, very respected. If it were up to you, what would you do to reduce recidivism rates?” And he said, as I recall, “To be honest, I don't know.”

And so people have all kinds of ideas, and it's worth trying different ones. But it's hard to do. It's hard — very, very hard — to do. The [federal sentencing] guidelines were an effort — and still are an effort — to have fairer sentences, to allow the judges to understand the sentence they give will be the sentence that’s served, and moreover, [to] try to prevent wide discrepancies for the same crime, same kind of criminal across the country in different places. So how well has that succeeded? Like most things in the criminal law, up to a point. And I think with experience over time, perhaps it will be better.

Are there experiences you've had in being a judge that have given you that kind of insight to make sentencing better?

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It’s my brother who knows. I don't sentence people. My brother is a federal district judge in San Francisco.

The guidelines… they are not rigid. They are not supposed to be. What they're supposed to be is, “Judge, if you have what you consider an ordinary case, this is what judges across the country have done in similar cases. That’s what you should do. And if you think you do not have an ordinary case, and there are reasons for imposing a different sentence, that's what you should do. And it will be reviewed by the Court of Appeals to see if what you've done is reasonable.”

And when the commission, which reviews the courts of appeals and all the sentences, will see what people have thought reasonable and how they've applied the guidelines, over time, they will adjust them. And so it was supposed to be a self-improving system. Well, I would say we have the same experience there with many changes in criminal justice. You hope that they will work, and you think, “Well, it will take a long time.”

Have you ever been to a prison?

Yes. Two. We went to federal prisons when I was on the commission. One looks like a law school. I can’t remember which one it was. The other was overcrowded. But it was for non-dangerous, probably people who've committed crimes of a more technical nature.

The overall impression I had there? Shame. The people were ashamed.

Did you come away thinking, ‘This is an important piece of our system? I'm glad this is here’?

Well, I'm not glad that any prison is there. But that it is an important piece of the system? Yes, I do think that. And it's very hard to get people to agree. We worked a long time on sentencing that was supposed to be non-incarcerative. Don't incarcerate the people, particularly if they're young. Try to produce an atmosphere where they will in fact learn and will not simply be punished. Of course, that's a good idea. But to try to get that system is very tough.

Congress would get all kinds of ideas which would be popular in their district.

They were going to do mandatory minimum sentencing. Mandatory minimum sentencing, is like, ‘It's cold today, let's put on our overcoat. Now let's turn on the heat. Now let's build a fire.’ You don't need to do everything. And it won't work if you do everything. And gradually Congress is coming to that understanding.

An older White man wearing glasses, a black suit, striped shirt and red tie, sits on a bench in the corner of his office.

After his retirement in 2022, Breyer returned to Harvard Law School to teach as the Byrne Professor of Administrative Law and Process.

Breyer on politics and the institution of the court

Court rulings on abortion, perhaps more than any issue in recent years, have tested the public’s perception that the court makes decisions without regard to politics. After the Supreme Court ruled in Roe v. Wade in 1973 that the Constitution confers a right to choose abortion (via a “right to privacy” inherent in the due process clause of the Fourteenth Amendment), the court reaffirmed this principle several times, including in Planned Parenthood v. Casey in 1992, Stenberg v. Carhart, in 2000, and Whole Woman's Health v. Jackson in 2021. Breyer himself consistently voted to preserve the constitutional right to abortion. Then, last year, the court overturned them all in Dobbs v. Jackson Women's Health Organization, ruling that abortion was not protected.

One of the things that everybody says about your career is that you have an abiding belief in the power of institutions. If you build it right, then it will outlive any one person.

Well, Chief Justice Marshall — and probably your namesake for this thing — he believed it too. Both Marshalls. What we're trying to do is build a country of 331 million people of different races, religions, points of view. We’ll live together in a reasonable degree of peace and prosperity and decency. And that's all in that Constitution. And both of those Marshalls thought that the point is that [the] Constitution has to work. And it has to extend long beyond the lives of any of us.

The direction the Supreme Court has been going in, in the last year or two, really kind of undermines that idea, or at least it seems to. I wanted to ask you about that.

Well, I dissented. Obviously not in every case. I dissented in some cases. Or I joined dissents in other cases. And so what I really think is written down there.

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Since our readers probably haven't read all of your dissents —

What a pity!

Can you walk me through — in your recent book, you argued that the court doesn't have the power of the purse. It doesn't have the power of the sword —

I didn't say that, by the way. That was Alexander Hamilton.

Of course. But [you wrote that] all the court has is its legitimacy in the eyes of the people. At what point do you fear that they are undermining their own legitimacy?

Well, I've written in some opinions — or joined in the Dobbs case, and before, in Bush v. Gore — they shouldn’t have taken it. It’s going to be a self-inflicted wound.

But remember, people tend to think of the court, good or bad — and good usually means ‘We agree with the result,’ and bad usually means ‘We don't agree with the result.’

And by the way, if you want politics, the appointment process is nothing but! The confirmation process, because of the people who are the political group, people will look for a judge who will have a way of deciding cases that they think will lead to more decisions that they like politically. But the judge doesn't think it's political. The judge thinks that he's deciding it the right way.

You make the argument that the Supreme Court has to not just be apolitical, but appear apolitical in order to maintain its legitimacy.

I'm not elected. My job is to do the best I can to get a correct, i.e., a legally correct, decision under the law. And law is not computer science. So in my view, not always, but I'm trying to do this properly under law, not under politics or not under what the majority think. That’s Congress, the majority. But if you do it correctly, law will sort of evolve in a fairer direction, because that is what law is about.

The words “the freedom of speech” — they don't explain themselves. [You as a judge have to interpret them.] Your background, who you are, you as a person. Of course, it affects the decision. In not all — and maybe not even many — but in a few cases. And that's important. And I used to think, “What a pity. Not everyone agrees with me.” But hey, it's a big country. And so it’s not surprising, with every view possible in this country, that there are different views in terms of people being raised differently, having different experiences. That was Thurgood Marshall! He brought to the court experience that others didn't have. Very valuable.

There are changes over time, which are very important.

And will we see change again?

It sounds like you're saying that it's all part of a natural kind of — maybe pendulum is the wrong metaphor, but — a natural progression. That the court is going to move to the left, it's going to move to the right.

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And we don't know. You know who else, in my opinion, doesn't know? The judges who are there. Because it takes three, four, five years before you get used to that place. [Former Supreme Court Justice] Harry Blackmun told me when I first was appointed, “It's an unusual assignment.” And it sure is. It's a very unusual institution. And it's very hard to sum it up. And of course, it's not like the court of appeals, which is not like the district court. And law is not computer science.

How is the Supreme Court different?

It’s part of one of the major institutions that Americans have under the Constitution to govern themselves. And you say, “Well, then why don't they do what's popular?” Why? Because this document, it's written for everybody. The least popular person in this country has the same rights under this document as the most popular person. And if you let Congress on its own — maybe they should have the last word! They do in many countries, the parliamentarians. But believe me, they are experts on popularity. And so Hamilton writes, he says that’s the reason they don't have the power of the purse or the sword: We don't want the president to have the last word. He’ll say he's always right. He might not, but he might. And Congress? Popularity! Judges, well, they're not perfect, but at least they don't have that much power. And they don't, really, because you can get a few cases that are pretty awful. But it's different, the power is different.

In your decision in Stenberg, the “partial-birth abortion” case, you said that different members of this society sincerely hold directly opposing views.

Right.

How does a court reconcile that? You went one way in Stenberg, the court went another way in Dobbs. What do you do when you have these sincerely held views that are in direct opposition?

I think the question is not “Who's right?” The question is: “What kind of rule of law do you have in a country that has a lot of people who believe both opposites?” That's the question. It was not Roe. It was Roe [in the] beginning, but it was really Casey and Whole Women's Health and Stenberg and various others [that consistently found there is a right to abortions]. And they developed a lot of cases there for 40 years or 50 years. Let sleeping dogs lie. The country will survive. Don't overturn so many cases.

Justice [Sonia] Sotomayor's comment comes to mind during the Dobbs oral arguments. “Will the institution survive the stench,” if we overturn 40 years of precedent? Are you saying that you're not worried about that?

Of course, you should always be worried. Every high school student, when he doesn't go to his class on civics — because there is no class on civics. There used to be! I would say that high school student should be worried, and his parents double. Because you have to know how this country works, and you have to participate.

And that's what I tell the high school students. It's not now up to me. It's up to you. And what are you going to do? I hope you find someone to love. I hope that you have a good job, and I hope you participate in public life. At least vote.

And what did I learn from Sen. [Edward] Kennedy? When you dealt with people who disagreed with our approach to a particular bill — and Kennedy wanted us to do that — suppose the thing does go through, take it! If it's 40% of what you want? Fabulous! 30%? Take it! Do you take what the opponents propose when it's 30% of what you want? Or do you sit there and say, “No, I want 100%” and thereby be a hero to your natural supporters? That isn't a close question. You take what you can get.

The difference is that on the Supreme Court right now, the conservative bloc doesn't have to compromise.

No one has to compromise! Hey, in the Senate, you don't have to compromise. You're going to be [there] six years. You have to get reelected.

But [with] the 6-3 makeup right now, the six can just make decisions without having to compromise with anyone.

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No, they can’t. Because they’re judges. They’re lawyers. That’s what Learned Hand said. “Who controls you?” Someone asked him.

[Pointing at his bookshelves.] Those books.

Really. Please. If you are not interested in law, if you are not interested in trying to get this right, if you are not interested in trying to do a better decision rather than a worse decision, there are a lot of other good jobs that pay a lot more, so please don't do it. Why would you do it?

And you say, “Oh, because we become so important.” That lasts about a year. President Bill Clinton, I think, was talking about himself. I heard him say at some point to a judge, “You better like the job. The applause dies away after a year or so, and then you're left with the job. So you’d better like it.”

And the enemy there in the court? It's easy to say. It's one word: ego. That's the enemy in human life. And you never get rid of it, but you try. And so the job is a fabulous job because you have to do your best in every case. You have to give what you have. And you understand that after about a year or two, and you do it. There is no payoff. There is no payoff to thinking you're a clique. You do have different views of some cases because of the way you approach the problem. And I will spend a lot of time trying to say to other people, ‘I want to see how you approach it.’ And I'm honest about that. And this is why I don't necessarily accept that. And that's what you're writing in a dissent. And sometimes you get them to move. And when you're sitting around that table, you listen to what people say.

Even in the current Supreme Court?

Of course! My God! That’s not phony! It's true!

Nobody believes me. But it's true…

You think I like Dobbs? There were a few words in that dissent I don't normally use, or join. But no, I thought that was wrong. And I wrote my reasons.

But you're saying that doesn't change all the other things [that give the court staying power].

You can't change an institution that's been around for 100 to 200 years. You can over time. And there have been some terrible days. What do you think about Dred Scott? What about Plessy v. Ferguson? There have been a lot of bad, bad, bad days. What about Korematsu? Even the good ones. I wrote in a different book, you're certainly free to read, about Cooper v. Aaron. Little Rock. The Little Rock Nine. And sending in the troops. And Cooper v. Aaron the court said after, you have to keep integrating. Do it. All nine signed it. You know what? The governor told the city: Close the schools.

A road sign reads, “Save our republic. Impeach Earl Warren.”

A sign posted beside U.S. Highway 10 in Appleton, Wisconsin, requests the impeachment of liberal Supreme Court Justice Earl Warren, in December 1966. The sign was erected without a permit and was expected to be removed.

And they couldn't last. It couldn't last. Because the country had awakened to the problem. And we have Martin Luther King, and we have Rosa Parks, and we have the Freedom Riders.

No one knows exactly what will work and what will not. Of course, when there have been major changes, the public is generally going along, but not all the public. Remember the “Impeach Earl Warren” signs? They were all over the South! What do you think? You think every decision has been popular?

It's far too soon. Far too soon. This is an important institution, and the people who are there know, as I knew. And it takes time. And they've only been there a short time. You begin to learn the mores, and you begin to see you have a bigger job than just getting what you happen to think is the nicest thing at the moment.

Breyer on the death penalty

Almost every time a state (or the federal government) plans to execute someone, the person facing the death chamber appeals to the Supreme Court to intervene. The justices weigh in more routinely on the details of this aspect of the criminal justice system than almost any other. And over the course of his quarter-century evaluating these cases, Breyer became increasingly skeptical of the practice. He issued a famous dissent in the 2015 case Glossip v. Gross where he argued it was time for the court to reconsider whether the death penalty was constitutional (Richard Glossip, the man at the center of that case, is still fighting his death sentence, which has now been rescheduled eight times). Breyer pointed to data that underscores the death penalty’s unreliability, arbitrariness and cruelty. He published the dissent as a book called “Against the Death Penalty.” In doing so, he followed in the footsteps of his predecessor on the court, Harry Blackmun. Before his retirement, Blackmun in a 1994 dissent called the death penalty a failed institution and famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.”

It seems, from reading some of your writings about the death penalty pre-Glossip, you were never its biggest fan. But it wasn't until Glossip that you came out so forcefully and said, ‘It is unconstitutional.’

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I didn't say that. I said we should reconsider [whether it was constitutional].

What led you to that conclusion?

I was careful, because I was asked by the Senate Judiciary Committee was I going to try to get the death penalty overruled, at my confirmation. “What do you think of the death penalty?” I said, “I am not going there to have it overruled.” They decided cases, and I will follow the case law that they decided. I’d better stick to that because I said it.

But over 28 years, 26 years, 20 years, what do I see? It isn’t that I had a deeply laid plot. I didn’t. But my God, what you see, is what I wrote in that opinion. It is so unfairly administered. There's neither rhyme nor reason. The whole point of this criminal justice system is fairness. Is justice. That's why it's called “criminal justice.” And that is not an oxymoron, at least in theory. So when I see that time after time, after time — I'm not saying “You're all innocent.” But there are a couple of cases where I really wonder.

I thought, “What can I do?” It's not a big deal for the world that I would go out and announce I'm against the death penalty. I want to do something, if I'm going to do this, that really explains what I've seen. And that's what I tried to do in Glossip. And it tries to explain to other people, who can explain it to state legislatures. And all it is, is what I've seen over a couple of decades. And by the way, it's going to get awful expensive. Why reconsider it? Because you can't have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I've seen it over 20 years.

You took Justice Blackmun's seat on the court and on his way out, essentially, he basically did the same thing.

He said he was against. He didn't want to participate. I didn't want to do the same thing because it's just one more person in 331 million people, you have one more against the death penalty. I wasn’t going to do it. What is it I can do? What I can do is, I can explain. And that's what I tried to do.

Can you talk a little bit about when these last-minute appeals come before the Supreme Court? I can't imagine a more profound decision for a human being to make.

No, it’s not so difficult. A last-minute [petition to stay the execution] comes. If the lower court has stayed it, I'll probably vote to stay it. The amount of time they've been in prison — 15 years, 18 years, 20 years, 25 years they've been on death row. Please. They can have a few more months in that lower court if there's a stay. Now, if there’s no stay, and he wants the stay, normally, there isn't much to the argument, because they've been to the Supreme Court three or four times already, probably.

So we have a system. The first part of it is that there are staff members in the court who follow what's going on with the death cases. So they are in touch with the lawyers, and they know when the execution is taking place, and they know pretty well what the argument is…. Each of us is responsible for one, sometimes two circuits. Now, I was responsible for the First Circuit and then before that the 10th. Very rarely was there a death case in the First Circuit. Virtually never. Almost never. There was one, the bomber.

Tsarnaev.

Yeah. I wrote a dissent in that. Read that. You'll see. Jesus, what should you do with this person? Execute him? Please. How is that helping?

So I'll know through the staff and then my law clerk will, because if he's coming from the First Circuit or previously the 10th, my law clerk will start maybe a week ahead of the execution, to write a long memo about what this is about. And very rarely is it going to be something that we will take. But sometimes it is something that maybe we would take. So if we think there’s a chance that there's a real issue here, the next thing to do is that I will write a memo. My law clerk will do a draft, I’ll then revise it. We take it very seriously. And circulate it, and people vote.

The reason we do it that way is because if I just said no, or I said yes, it wouldn't matter. Because either side could go to the whole court immediately. So I might as well send it to the whole court, if it's something that's a serious possibility. And so I do. And then the others consider it, there might be a dissent, etc.

An older White man wearing glasses, a black suit, striped shirt and red tie, sitting in front of his office desk.

Breyer in his office at Harvard Law School.

It used to be that if you had four votes for cert — you need five votes for the stay — but somebody would give you the fifth, as a courtesy. And often if four people wanted the stay, it would be a courtesy fifth. But that happens less. But most of the emergency stay matters were death cases. And that's another reason why this last year was so complicated. Because it was Covid. And politics. These three new people who have just been appointed, aren’t used to that.

Thurgood Marshall made a point to vote to grant every stay of execution. Or, in cases where the stay was not granted, to dissent, every time.

I didn’t.

Can you talk about why?

Because I said when I wrote Glossip, “I think we should take it.” If I lose, I lose. And I'm going to go back to following what the law is, in the absence of your taking my wise advice and reconsidering. And I did, pretty much.

Every so often I would write something to remind people of Glossip. And I would say, this person has been on death row for 35 years. Is that going to make a difference to general deterrence? To specific deterrence? To reforming his character? Or even to vengeance, if you want to call it that, or retribution. I don't think so. I would write something and say, “What is going on? It's very expensive. What’s happening here? And look at this case.” So I do that occasionally because I don't want people to forget. The legislatures, too. They can read very well.

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Beth Schwartzapfel Twitter Email is a staff writer who often covers addiction and health, probation and parole, and LGBTQ+ issues. She is the reporter and host of Violation, a podcast examining an unthinkable crime, second chances, and who pulls the levers of power in the justice system.