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Summary
In this episode Julia interviews Daniel Epstein, a lawyer and former candidate for the Illinois Supreme Court.
Daniel and Julia discussed a number of the shortcomings of our current criminal justice system – especially in Illinois, but also around the country – as well as specific recommendations for reforming them. They discussed everything from cash bail to the widespread use of private arbitration courts and NDA’s.
As the conversation turned to a discussion of how to implement transformative justice inside of American workplaces, Daniel had a number of interesting recommendations.
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Episode Intro
On today’s episode of Solving #MeToo, I am interviewing Daniel Epstein – a lawyer, and a man who was a candidate for the Illinois Supreme court that election happened on March 17th of 2020. As I’m putting the final touches on this interview today for publication, we are now in mid-April of 2020. But at the time of this interview [in December 2019], Daniel was a candidate for the Illinois Supreme court.
It was a fascinating conversation because Daniel is well known for his progressive ideas about the law and criminal justice system and the judiciary. And the campaign that he was running was anti-racist and anti-corruption in ways that are very exciting. And he has a lot of ideas about how to reform our judiciary and our criminal justice system such that people receive actual justice. Particularly, women who are the victims of workplace sexual discrimination, assault and harassment.
A lot of what our conversation focused on was various ways that the law and the courts are flawed.
One thing we talked about, for example, is cash bail. And here in Chicago we have a State’s Attorney by the name of Kim Foxx, who has done a tremendous amount to reform the cash bail system here in cook County. And it’s made a big positive impact. She recently won her primary race, in March, but she’s got a Republican opponent in the general election in November. So that’s an important race to be watching out for as far as reforming cash bail. And Daniel and I in this interview talk quite a bit about why cash bail is such a problem and why it is really antithetical to justice.
And then we of course transitioned into talking about implementing transformative justice in corporate America. And I asked him, if you had a magic wand, what would we need to change in order that women could receive justice consistently?
His very first answer was about victim opt-in. He said in not so many words, we have to center the victim. That is an important aspect of any conversation about reforming the problems of workplace discrimination, harassment, and assault in corporate America. Or not just in corporate America, all workplaces in America.
But the problem with centering the victim is that, as Daniel himself said, maybe the victims want retribution. I fundamentally therefore question the idea of whether to center the victim.
Yes, of course we need to center the victim insofar as we acknowledge the truth of what happened to her. Or him, sometimes it’s a him. We can’t keep covering it up or insisting that abuse and discrimination isn’t happening. And we can’t continue minimizing the impact or maybe worst of all, blaming the victim for what happened to her. Or, him. we can’t keep saying that she somehow chose to be victimized or allowed it to happen. We absolutely must elevate the harm that is being done.
However, that’s not the same thing in my opinion as saying that we need to give the victims the power to decide what consequences should befall the perpetrator. Why should that be up to the harmed person?
For example, if two different women are murdered by their husbands, let’s say in a domestic violence situation, and the family of one woman finds their way to forgiveness while the other woman’s family demands retribution. Is it fair in that situation that the court in the first example should be more lenient than in the second? Should one murderer get a lighter sentence than the other murderer just because one murderer’s family is less vengeful than the other?
And that’s of course an extreme, but that’s fundamentally what we’re talking about when we say it has to be up to the victim, what does the victim want to get out of this situation? Well, what that leads to is what I just said. We’ll get consequences that are all over the board if it’s left up to individual victims.
And the answer that we often give as to why should it be up to the victim, or the victim’s family, is that the victim needs to feel whole. Right? She’s been harmed. Great injustice has been inflicted upon her. It’s now the highest priority to make her feel whole again.
But is it true that the victim’s healing – or restoration to wholeness – requires that the person who hurt her be punished? That since he hurt her, now he must be hurt? And does that really foster healing for the victim?
And I should acknowledge right at this point that of course, while women rarely see justice in examples of workplace discrimination, harassment, and assault, and also in our criminal justice system where they allege assault and rape and other things, women rarely see justice. And perhaps even more rarely do women see their need for healing be elevated, right? We never talk about bringing forth resources to activate healing – for victims or even for perpetrators, frankly. So for me to sit here and say that we should be focusing on victims’ healing rather than punishment of the perpetrators, I understand that that can sound completely pie in the sky.
And especially for people who have been in the trenches with these issues for years or even decades, what I’m saying can be hard to hear because it sounds so far out of reach. It sounds so in opposition to quote unquote, the real world.
And in fact, that very discussion came up in my interview with Sharmili Majmudar, an EVP at Women Employed, a women’s employment advocacy group. And you can hear that conversation in a future episode of this podcast. In fact, I might even publish it next. She took the position that for so many millions of women over so many years, men have just simply gotten away with the abuse. And so we had a whole conversation about that.
But what I’m suggesting overall with this podcast is, what if men no longer got away with it? What would a system look like that held guilty parties accountable for what they’ve done? One which reformed the systems that allowed him to get away with it in the first place. And then one which fostered healing – of course for victims, but even for perpetrators. What would that system look like?
And that’s one of the questions that I posed to Daniel Epstein, and he had some interesting answers to that question. In what ways would the system need to change?
So I invite you to take a listen to our conversation. I do hope that you enjoyed it every bit as much as I did.
And as always, if you’d like to participate in the conversation, you can email me feedback@SolvingMeToo.com. You can come to the Facebook group and there’s a link in the show notes for that, and you can come to the website, SolvingMeToo.com and make a comment on the blog post for this episode. We’re also on Instagram and Twitter with #TheSMTpodcast and #SolvingMeToo.
Interview
Julia: Daniel, thank you so much for making some time to come on the air.
Daniel: Oh, it’s my honor. Thank you so much for having me.
Julia: So I always like to start by giving our audience a little bit of an idea of who they’re listening to. what can you tell us about what brought you to this place in your life? What is the personal backstory and the professional experiences to the extent that they’re relevant, that have really kind of shaped you and made you be the person who cares about the things that you do today?
Daniel: Yeah. So I’m an attorney like you said, and I was serving clients in the Supreme court of the United States and more than a dozen jurisdictions across the country. I was working at a law firm called Jenner and Block, which handles some of the biggest cases in the world, most complex cases in the world, but more importantly is known as being the number one law firm for pro bono service in the country.
I did an enormous amount of pro bono work while I was there. So much so that I like to say to either had to fire me or give me an award, because I couldn’t have been making them much money. And luckily they chose the latter.
Julia: Yeah. You did get an award, did you not? For your pro bono.
Daniel: Yeah. I got the Jenner pro bono award for exceptional legal service to the vulnerable.
It was from my work in all kinds of courts and all kinds of contexts -helping to earn a man his freedom after 17 years after being found guilty based on a judge’s whim, rather than evidence; getting an emergency order of protection for a woman who was being abused by her boyfriend, and then eventually a plenary order of protection for her; immigration work, all kinds of work.
But it was actually this one case that I had that got me into this campaign. It was defending an individual accused of attempted murder here in cook County. My job was to take on the DNA evidence portion of the case. I had kind of developed a reputation as being someone who could understand and handle science issues, so I was thrown at this part. My job was to learn everything I could about the DNA and to mount his defense. And what I found was that the state was actually using a faulty DNA machine.
Julia: Wow.
Daniel: Pretty heavy. So, DNA evidence is the best evidence we’ve got when it’s done well. it finds people who we wouldn’t have found otherwise, who have committed crimes, and would have gotten away with it had it not been for DNA. It has proven people innocent who were found guilty wrongfully, it’s exonerated them. And it’s also proved that people will plead guilty to things that they didn’t do. DNA evidence, when done well, is amazing.
But the DNA evidence is performed by humans. And humans are fallible. And in this case, the human that was supposed to be calibrating the DNA machine, the DNA analyst for the state, failed to do so properly. And so it was producing false results. Which is pretty disturbing, right? Troubling for my client, but troubling also for who knows how many other people.
But I thought, we’re going to go to trial and I’ll put that DNA analyst on the witness stand and I’ll cross examine him and we’ll expose it. We’ll shine a light on it and after the trial, they’ll have to retrain that analyst. They’ll have to fix the machine. No one else will be hurt by this. That’s how it’s supposed to work.
I did a little bit more research and what I found out was that in Illinois, our forensic labs are entitled to extra funds if they produce an analysis in a case, if it ends in conviction.
Julia: Wow.
Daniel: And I found out that in Illinois, our courts are entitled to extra funds if they convict. Real problem. Real problem, but I thought, we’ll go to trial. I’ll expose that and we’ll make the world a better place, one case at a time. That’s kind of why I became a lawyer. That’s how it’s supposed to work.
But that’s not how it worked. What actually ended up happening was we went back in the judge’s chambers under something called Illinois Supreme Court Rule 402 – and I’ll tell you a little bit more about Supreme court rules in a minute – but these 402 conferences are like a preview of the trial.
So you go back behind the courtroom and the state tells the judge, Hey judge, this is what we’re going to show at trial. And we say, judge, this is what we’re going to show at trial. And then the judge thinks about it and says, all right, based on what you’ve told me, if I were to convict, I think an appropriate sentence would be 70-something years.
And then you back out into the hall and the prosecutor pulls you to the side and says, all right, you heard the man. 70-something years. But if you plead guilty, I’ll ask for 20-something. And so our guy has to decide, do I assert my constitutional right to a trial and defend myself and risk dying in prison, or do I take the plea? And he takes the plea. And that ends the case.
What that means is I don’t get to put the DNA analyst on the witness stand, and I don’t get to expose the bad machine, and I don’t get to expose the systemic funding issues. All that information disappears. And I wondered, how common is it for that to happen? And in Illinois, in 2017, 97.4% of all felony convictions were guilty pleas. 97.4%.That is a lot of disappearing information.
Julia: Yup.
Daniel: But it solved a puzzle for me, which was this: how does John Burge do it for 20 years? John Burge was a Chicago police commander who electrocuted people and tortured people and helped to falsely convict people. And he got away with it for 20 years. Him and his cronies. And I understand how someone gets away with something once or twice, but I never understood how an officer of the law could get away with that for 20 years.
And this is how it happens. Because you can’t expose patterns of misconduct if nothing makes the record. And this relates directly to what we’re going to be talking about a little bit, which is, how do you stop serial abusers?
The first step is figuring out that they’re committing serial abuse. And there are processes in place that can help us do that, and we already do them in some contexts. It’s called discovery. In civil cases, when money is on the line, we do it. Depositions, interrogatories … Depositions are where you get sworn testimony on the record before a trial; interrogatories are where you get written testimony on the record before a trial.
We do that in civil cases when money is on the line. We don’t do it in criminal cases when a human life is on the line. And there’s a huge price to pay because it buries information that we need to improve ourselves as a society. It buries information about bad DNA machines, about DNA analysts who are performing poorly and about serial abusers, whether they wear a badge or they sit in a CEO’s office.
The Illinois Supreme Court writes the rules that determine how discovery works. They write the rules that determine whether we find out information and get it on the public record before a trial. Which is important because we don’t go to trial very much because we do so many guilty pleas.
So the Illinois Supreme court isn’t just a case decider. It’s actually a policy making body. It writes the rules of procedure, the rules of evidence, the rules of ethics. It determines things like design standards of courthouses, data and technological infrastructure that has an impact on access to justice and on and on and on. It actually has a massive policy making power.
And that’s really what brought me to this campaign because I saw that policymaking power being unused or misused in ways that were burying information that we need to protect ourselves from serial abusers like John Burge.
Julia: So I want to ask you two clarifying questions and then pick up on the thread of where you’re going. The first one is, is Illinois unique in this way or do most States in the country have a Supreme Court that functions as a policy making body as well as a case deciding body?
Daniel: Yeah. So Illinois is unique and not unique. It’s not unique in that it has policy making power. Supreme courts across the country write rules of procedure, evidence and ethics. The Supreme court of the United States does it as well. They write all the federal rules of civil procedure, criminal procedure and evidence and what have you.
But Illinois is unique in one regard, which is that they are really the final word on these rules in many instances. So, let me get a little wonky for a moment. The Supreme court of the United States writes the rules and procedure for the Federal courts, right? But they do that through the authority of Congress. Congress passed a law called the Rules Enabling Act that gives them the power to write those rules. Which means that if Congress passes a law that’s in conflict with the Supreme Court’s rules, Congress’s law wins.
In Illinois, it’s flipped. The Illinois Supreme court has interpreted our own state constitution to give it rule making authority directly from the [state] constitution, as opposed to from the [state] legislature. And what that means is if the [Illinois state] legislature passes a law that’s in conflict with the [Illinois] Supreme court’s rules, the Supreme court’s rules win. So Illinois is unique in that sometimes to get a rule changed, the [Illinois] Supreme court is the only place you can do it.
And this has panned out in real life. So let me give you an example just to kind of bring it to life, which is in Illinois, when a judge convicts and sentences you, they don’t have to provide a reason or an explanation. They say “Guilty. 25 years, next case,” they don’t have to explain how they got 25 years.
That’s a big problem because sentencing is an error prone process. People make mistakes all the time. And if they don’t explain on the record the way that they got the sentence that they did, it’s effectively impossible to get it fixed on appeal.
So the legislature, years ago, passed a law trying to fix that. They said, “all right, if you’re going to sentence someone to a felony, you have to explain on the record how you got the reason or the sentence that you did.” It’s called the statement of reasons. And the Illinois Supreme court said, “No, no, no, no. You don’t get to fix this rule. Only we get to fix this rule.” And they invalidated it. But then they didn’t fix the rule. And so it’s still this way.
So, Illinois is not unique in that it’s high court has policy making authority. It is fairly unique in that it is the final word with respect to much of that authority.
Julia: I want to ask you a follow-up question to that, which gets into your dissenters who are basically saying, who the heck do you think you are to come along and change this? Right? I want to ask that question.
But then another clarifying question, going back to what you were saying before about how in Illinois 97.4%, I think you said was the number?
Daniel: In 2017 97.4% of all felony convictions were guilty pleas. Yeah.
Julia: is Illinois unique in that area too? Or across the country, are the vast majority of felony convictions, plea deals?
Daniel: Basically across the country, it is in that kind of 93 to 97% range. it’s very high. It’s very high.
Julia: Because this issue got quite a bit of exposure a couple of years ago at Rikers, when there was that very high-profile case of the young man who was accused of a crime. And if I’m not mistaken, it comes to find out later that he was completely falsely accused. He had absolutely nothing to do with it. He was totally in prison for the wrong reasons.
And he ended up spending three years in jail, awaiting a trial, because the court system in New York is so backlogged, they couldn’t do anything about it. And because we effectively have debtor’s prison in this country – because the only way that you can get out of jail while you’re awaiting your trial is to pay bond – and a whole lot of poor people, they don’t have $5,000. Some of them don’t have $500 to get out of jail.
And so this young man, because he didn’t have the money to get out of jail, he had not been convicted of anything. He was innocent until proven guilty. And yet he spent three years in Rikers, a big chunk of that in solitary confinement. Because he absolutely refused to take a plea deal. He said, I am not freaking guilty. I am not going to take a plea and have this hanging over my head with the rest of my life. And it did finally get to court. It did finally get thrown out. The young man was released and something like six months later, he killed himself because – presumably, because of all the torment that he had gone through.
So this issue certainly has gotten a lot of exposure. So I wanted to clarify that it is in fact a nationwide problem. And you said that it is.
Daniel: And actually if you get a chance to listen to Robin Steinberg’s Ted talk on the bail project, it’s worth listening to. One of the things she mentioned is she talks about this extraordinarily high rate at which people plead guilty if they’re lingering in jail pending their trial. But when they bail people out, about 50% of their cases end up getting dismissed altogether. So the difference between whether you are out and can participate in your own defense and aren’t being exhausted by lingering in jail pending your trial, it makes a huge difference. It goes directly to the merits in some cases.
And it forces us to reckon with the question of how many of these guilty pleas are merited or not. And how many of them are just the consequence of people being exhausted by sitting in jail. And unable to participate in their own defense?
Julia: Yeah. And of course, institutionalized racism plays a huge factor in that because for all kinds of reasons, unfortunately, African-Americans are more likely to be in poverty on a percentage basis than white Americans are. And because it is poverty that in many cases causes people to be unable to get out of jail, it means that black folks are facing this conundrum at higher rates than white folks are. And so black folks are receiving these guilty convictions, based upon a plea, at far higher rates than white folks are. And so it’s a viciously compounding cycle.
Daniel: Right. Then you have collateral consequences of having something on your record and it makes it more difficult even to participate as a witness in cases down the road. And I mean, it’s a disaster. It’s a disaster. It’s a solvable one. We can end cash bail. Other jurisdictions have already done it.
The Illinois Supreme court plays a role in that. That’s one of the things I’m advocating for. we’re not condemned to this fate. People in jurisdictions where cash bail has been ended, people come to court at the exact same rate. The only difference is less people in jail. We can do it. We can kind of have our cake and eat it too.
Julia: Yeah, that’d be amazing. So that kind of leads me into the next question, which is, what makes you think that we can do it? And what makes you the man to do it? Some of your detractors talk about how you’re this whippersnapper that comes along wanting to tell everybody how they’ve been doing it wrong for so long. Like he’s the only one that knows anything. So speak to that for a moment.
Daniel: Yeah. So for your listeners, I’m 34 years old, I’ll be 35 when the seat changes. There are eight candidates in my race, and I’m the youngest by about 35 years. If I get elected, I’d be the youngest on the court in about 101 years – in exactly 101 years – since Floyd Thompson was on the court. He was a 31-year-old when he joined the bench. And he actually came from the same law firm that I came from. I work down the hall from his great granddaughter.
Julia: Oh wow. Interesting.
Daniel: But here’s the really interesting thing. At 35, which is the age I’d be when the seat changes, I’d be the oldest justice on the bench if this were the first Illinois Supreme court. So things have changed. it used to be that our court was quite young. and over time it’s kind of crept up. So I’m not breaking any records, at my age.
But at the end of the day, this is about ideas, right? The people who criticize me can criticize me based on superficial things like age. But they can’t criticize me based on ideas, because all my cards are on the table there. And nobody has come at me saying that they’re bad or wrong. they just have been completely silent on these issues.
And look, my view is, we know right now that there are people who are sitting in jail who have been deemed safe to return to the community who are presumed innocent, but who linger there because they don’t have enough cash to afford bail. I don’t think silence is acceptable on that issue.
We know that right now we’re vulnerable to conflicts of interest in judicial corruption. I don’t think that silence is responsible on that. We know that right now we’re vulnerable to racist jury selection and biased sentencing. I just don’t think we have the moral right to remain silent on these issues.
And to the extent that people want to criticize me based on superficial things, they can go ahead. But at the end of the day, this is about the ideas for change to make our justice system better. And I’m happy to engage in dialogue with anyone who wants to engage on the ideas.
So if you’re a person who wants a better justice system tomorrow than we have today, I’m dismayed to tell you, you have one choice in this election. I wish it weren’t so, but we’re the only ones who are talking about the policymaking power of the court. And it’s innovative and it’s a cutting-edge kind of campaign. But it shouldn’t be. This should be the norm. If we’re going to give power to the court to do these things – and in many cases, exclusive power – then it’s really important that folks talk about it, and that we get this stuff out front. Because the reason some of these injustices persist is because they’re hiding in the shadows and because people aren’t talking about them.
Julia: So I want to draw a parallel between what you’re talking about and the #MeToo movement because the next push back against what you just said is, yeah well, if it was so easy to make these changes that you’re talking about, how come nobody has done it before you?
And that very question or argument brings to mind, to me, the Harvey Weinstein revelations. Sexual harassment and assault were pretty much just taken as a given in American workplaces until the moment that it was not. And I feel as though in some ways, you are catalyzing a similar moment in the judiciary. Or, your campaign and hopeful election has the potential to catalyze a similar transition. Do you see it at all that way? Do you get the parallel that I’m making here?
Daniel: Absolutely. Absolutely. One of the things I’ve been saying is this isn’t just a political campaign, this is an education campaign. Because one of the really big things that we’re trying to change is people’s expectations of what courts do. People’s understanding of what they can and should be demanding from their judges and their courts.
My view of democratic change and institutional change is one in which the people who are served by the institution have to understand what to be asking for and what to be demanding. If we start to change that, I think that’s not just something that’s about one seat. I think that’s about wholescale sustainable reform, whether it comes to the courts or whether it comes to the workplace.
That’s kind of what’s gone on in the last handful of years in the workplace. People are saying, no, we can expect something better. We’re not condemned to having to put up with this garbage. Look at how big of a change that’s made. It’s really about changing expectations. And It starts with one.
Julia: It is. And it’s also about being able to articulate clearly what we do want. One of the primary goals with this podcast is to explicitly articulate what it is that we do want. How do we want women to be treated in the workplace? How do we want men to view women? How do we want women to recognize and act from their own authentic personal power? How do we want men to recognize and act from their own authentic personal power? Not this false toxic form of masculinity and power that causes some men to exert themselves and force themselves on people in a way that’s not true power. It’s force and it’s manipulation and it’s harm.
And you’re saying the same things as far as what we expect from our court. What do we want? We’re articulating affirmative statements of this is how it should be. Rather than simply complaining about the suckiness that went before, we are articulating affirmative statements about this is how it should be.
Because that’s how change really happens, is people need to be offered something to grow into, something to feel into, to believe into. People need to be able to say, Oh, right. That’s what I expect. Oh, look at this – a human being CAN run a 4-minute mile because we have now seen one happen. Oh, I get it – I can now ask for a $250,000 salary, even though I am only a 33-year-old woman, because the woman before me did so.
We need to have these affirmative examples of what we can live into, not just a whiny, complainy troublemaker stance of what we no longer want to see happen.
Daniel: Yeah, I couldn’t agree more. Setting a, a goal, and a well-defined one, is huge in making people understand what they can and should – and shouldn’t – accept as normal. It’s hard to complain or advocate for change or agitate for change if you’re bathed in this culture of believing that something is normal. Right? And that’s something that I’m experiencing now.
One of the questions you asked is, how is this young whippersnapper gonna make change? Why hasn’t it been done? If it’s so easy, why hasn’t it been done already? And I’d say a number of things.
One is, I’m not saying it’s easy, I’m just saying it’s doable. But there are seven justices on the Illinois Supreme court, and in order to make some of the rule changes that I’m talking about, you need to get four to agree to that change. And many of these rules that I’m trying to change haven’t been changed yet. And so there’s a question, which is, how do you get people to agree to that rule change? You need at least three people to go along with you.
There’s a British poet who put this pretty well. He’s a guy named GK Chesterton and he said, “The terrible thing about all legal officials, all lawyers, all police, all judges, all detectives, is not that they’re wicked. Many of them are good. It’s not that they’re stupid. Several of them are quite clever. It’s simply that they’ve gotten used to it. They no longer see the prisoner in the dock. They just see the usual man in the usual place.”
I think that’s kind of what’s going on. These changes haven’t been made, not because the people on the court are wicked or unintelligent. On the contrary, I think they’re just very, very used to it. I think it’s important that in all contexts, whether it be our courts or our workplaces, we take stock of what we’ve grown used to. And we take intentional steps to make sure that they’re justifiable or not. And if they’re not, then we need to make change. And sometimes the best folks to be able to make change are outsiders who haven’t grown used to it. And that’s workplace, that’s courts. That’s everywhere.
Julia: So let me ask you this question then. I want to ask you to explicitly describe and paint for us your vision of – and I’d like to ask you to stay focused on the question of how we create greater justice for people bringing forth claims of workplace sexual harassment, discrimination, and assault.
And taking it as a given, as I do, that justice is actually not typical in those situations – that women are so often met with a lack of justice in a whole variety of ways when they bring forth claims of sexual assault and workplace harassment and even workplace discrimination. If you had a magic wand and you could just enact change, what would you describe as the couple of key circumstances or laws or procedures or mindsets or groups of people that need to be changed? In the law, in the criminal justice system, in order to allow justice to prevail 98% of the time.
Daniel: Yeah. Great question. So it’s pretty typical that the kind of claims that you’re talking about end up being civil claims. They actually don’t go through the criminal justice system at all. Let’s start with criminal justice though, because that’s the area where we can make the most progress, I think.
So if we’re talking about —
Julia: I’m sorry let me pause before you do. Some listeners might not really clearly understand the distinction between civil and criminal in this context.
Daniel: In a criminal claim, the victim is no longer a party to the case. The state is the party to the case, and they’re alleging that a crime was committed by the defendant. And the consequence can be jail time sometimes. For example, for a sexual assault, the consequences can be jail time. And it’s the state versus the alleged offender.
In a civil claim, the alleged victim is a party to the case. They are the one bringing the lawsuit. And typically it’s money at stake. It can also be something called an injunction, which requires specific activity or for someone to refrain from specific activity, but there’s no jail time at the end of it.
Julia: Okay, great. Thank you.
Daniel: But the easy way to distinguish it – criminal, typically jail time at the end of it, or punishment along those lines. Civil, typically a payment – money – at the end of it.
So if there’s a sexual assault, and someone is alleging a crime, then the really interesting thing is all of a sudden, there is much less opportunity to get information on the public record prior to the trial. Because our rules of discovery in criminal cases are very narrow. And if it were simply that issue, then it wouldn’t be such a big problem. But that combines with the fact that we actually go to trial very seldom; and in fact, push a lot of cases to guilty pleas such that they never get a trial —
Julia: And so all of this goes back to exactly what you’re describing at the beginning of our conversation. If talking about a break-in – a robbery – the same factors are at play when you’re talking about a sexual assault.
Daniel: Right. And so if you’re not putting information on the public record, you’re not really helping to understand what’s going on. Someone might get a record of a conviction that says they’ve pled guilty to a sexual assault at some point in their life. But it doesn’t necessarily give you details or information about how that happened. And so you’re not bubbling up truth that people can understand and respond to. And you’re not providing information that is really helpful, or as helpful as it could be.
So one of the things that I think we need to do is provide discovery in criminal cases that allows people to understand the underlying conduct at issue and the investigation that followed it. That’s a big important thing.
From a civil standpoint —
Julia: And I’m sorry, before you move into civil, explain again – because I’m having a hard time grasping it, so I’m sure our listeners are as well. Explain what exactly is it that is currently preventing discovery like what you’re talking about. Because we all watch movies, we watch Law and Order and we’re accustomed to like, you go to a deposition, you do discovery. That happens. What are you talking about Daniel Epstein? How is it that discovery isn’t happening? We see on TV that discovery happens all the time. So, what are you talking about?
Daniel: Yeah. So there’s two models for how cases proceed. And the old model was one that relied on this idea of trial by ambush. It says, the best way to achieve truth, to find out what’s going on, is to dump all of your information on the table and all of your arguments on the table at trial.
And the reason you do that – ambush the defendant or ambush the state – with all of your best information and arguments at trial, is that Perry Mason moment. “Aha. But where were you on the night of Friday the 12th?” That’s one model. And the reason that It was designed that way was so that basically people couldn’t plan their lies. The idea was if you put your information, your arguments, on the table before the trial, people are just going to be able to speak to other folks that they can get to give alibis. You can coordinate, you can prepare to lie.
And so that’s the model that essentially we have in our criminal cases where, with few exceptions, information comes to light for the first time just before trial or at trial itself.
In civil cases, it’s different. There’s a long process before you even get to trial, called discovery. And that’s where you get to discover information that relates to the case and put it on the public record in many cases and even interrogate some of that information. If one of the parties says they have a witness to a specific incident – let’s say an incident of sexual harassment – then you might get to depose the individual witness and get their story and probe it and make sure that it’s legit. That’s super important because it gets information on the record and it helps promote the integrity of the proceeding. and the efficiency.
Julia: And so in civil proceedings, do people just come to court filled with lies because they have had access to the deposition ahead of time?
Daniel: [chuckling] No, I don’t think that’s what we’re finding out. I can’t give you a number as to how often it is that people lie, but my sense is that it’s not that people are suddenly organizing their lies for civil cases. it’s a pretty difficult thing to do, especially because you’re going through cross-examination. It is hard to lie in the face of a cross examination and get away with it. I’m not saying it doesn’t happen, but it’s not the thing to be feared of, that I think the original trial by ambush model was designed to prevent.
Julia: So we can extrapolate from that, that in a criminal case, if you were to put all of your depositions, all your discovery, on the table ahead of trial in a similar fashion, it would not tend to obscure truth at the trial. Which is why you’re advocating for discovery to happen a lot more in criminal cases.
Daniel: Yeah, that’s exactly right. And this is a policy change that has been made in other States, by the way. Florida, Indiana, Iowa, North Dakota, I know all have depositions in criminal cases. there very well could be more, those are just the ones that I’m aware of.
But it ain’t a disaster there, right? So it’s not to say that because it exists elsewhere that it is justified. But we do it in all of our civil cases. When moneyed interests are on the line, when people with billions and billions of dollars get to choose their forum, they choose forums that provide for discovery often.
And so there’s reason to believe that it is more likely to result in fairness and truth. And that the reason that we don’t have it in criminal cases now is mostly just because the people who are at the end of it are largely disenfranchised individuals.
So that’s a big area where we can improve. There’s a second area, which is in civil cases. even in civil cases where you have discovery, there’s still room for improvement. And actually this is some work that I’ve already done, through the creation of an online court of arbitration.
So courts of arbitration are like private courts. We’re seeing them more and more in civil cases. People are choosing to go to courts of arbitration rather than to our state civil courts or federal civil courts. and there are a number of different reasons for that.
One is just the time and expense of going to a government court. It can take a very, very long time. It can be very, very expensive. And so, sophisticated litigants are oftentimes choosing instead to go to arbitration where they get a little bit more control over the pace and price of the case. So that’s kind of a background.
But there’s a problem with our courts of arbitration, which is that they are private and sometimes have been used to bury information. When you go to a government court, the proceedings are public unless they’re sealed or redacted for certain reasons. But in courts of arbitration, typically the proceedings are private.
So let’s say that an employer and an employee have an employment agreement, a contract. And in that contract, it says that any disputes springing from the employment – including sexual harassment, sexual assault, these kinds of things, sexual discrimination – shall be carried out in a court of arbitration. And typically, the employer is going to give this very long contract and they’re going to be the ones who decide which court of arbitration they’re going to use, because there’s a bunch to choose from.
So one of the things that they are likely to do is send it to a court of arbitration where the proceedings will be private. The result of that is that if someone sues based on sexual harassment or sexual assault, they may be prohibited from talking about it, and the information in the proceedings may never come to light. So that’s a big problem.
Julia: And if I’m not mistaken, the individual who is going through arbitration with the company might herself receive justice, might receive a payment, might receive something that’s beneficial for her. But there is no possibility for the big sweeping changes to be brought in, the way it happens in a public court, because nobody else knows that it’s happening.
And quite frankly, the other women at the same company who are experiencing the same behavior don’t get the benefit of finding out that one of their colleagues is experiencing it too. So every single woman who’s being harassed or assaulted at a given company perpetuates the falsehood that she is the only one. And she continues laboring under that false belief that it’s only happening to her. And it could be that there’s 15 different women going through private arbitration and none of them know about each other.
Daniel: That’s right. That’s right. So there could be patterns of misconduct, patterns of abuse that we’re failing to uncover because there is this kind of structural impediment. So we’re not going to get rid of arbitration. it has too many advantages and it’s come too far to do that.
And so rather than try and get rid of arbitration, what I decided to do with some friends and eventual co-founders was to create our own court of arbitration, one in which you couldn’t bury that information. We created an online dispute resolution platform, and I wrote the rules for that platform. And one of the rules that I wrote is that the court will not accept cases alleging a breach of a nondisclosure agreement, in which people talk about their sexual assault or sexual harassment.
The way that the information gets buried is it combines a nondisclosure agreement or a confidential settlement with the court of arbitration. So the proceedings in the court of arbitration are private, and there’s a provision in the contract that says you can’t talk about it. And what we did is, I wrote rules that said, well, if someone talks about it, you can’t sue them here. and in fact, you have to go to a public court to do it.
Julia: So why would any company choose your court of arbitration then to do their arbitration? Because didn’t you just say a minute ago that the company chooses which court of arbitration to go to?
Daniel: Arbitration agreements are signed by both parties, so I don’t want to say that it’s just the employer that decides. But typically, when you take a new job, you get this big contract. You don’t really have a part in writing it, right?
And so somewhere buried in that contract, or even in your, you know, your iPhone contract or whatever, it’s going to have a little clause in there that says, we agree to arbitrate under the following organization’s rules and the following forum. So both parties opted into it. But in reality, the one who came up with the forum in the first place is the more sophisticated party and the one who is the repeat player, which is typically the employer.
Julia: And the one that holds all the cards. Because as you just said, you’re excited to have gotten this big fancy job and the last thing you’re going to do is turn down the job because there’s an arbitration clause that makes it disadvantageous for you, should it turn out that at this fabulous new job you’re looking forward to, you get sexually harassed and assaulted by your boss.
Daniel: Yeah. And so to answer your question, I think that there are companies out there that strive to be morally responsible. And if we’re talking about corporate social responsibility, I think that this is a part of it. People – to the extent that we can raise awareness of this issue – we can promote companies using arbitration responsibly and choosing arbitral forums that don’t bury information and that make it easier for information of serial abuse and misconduct to come to light and to not be buried.
So, I don’t know where this goes necessarily, but my hope is that in the same way that certain companies have chosen to be green and to have sexual harassment training, that some might say, “well, you know, if you have sexual harassment training, people are more likely to file claims.” Well, yeah, but it’s still the right thing to do. And my hope is that there’ll be companies that will choose moral and responsible forums like this. And so that’s something that we’ve tried to address on the civil side as well.
Julia: And so that gets into another area that I wanted to talk to you about, which is, I’ll say, a severity of consequences or a range of consequences. Because it seems to me that if you’re gonna invite a perpetrator — a company that knows that they’ve had a problem with this in the past, like they know they’ve got 15 people that have gone through arbitration for sexual harassment in the last five years, right? Or 30 or whatever the number is, right? They know they’ve got a problem.
And the only way that you’re going to induce the people who run that company – because there might be just one or three people that are committing the actual abuse. However, there’s potentially dozens who are well aware of what — That’s part of the story of Harvey Weinstein and the Weinstein companies. There were all kinds of people who were complicit in what was going on.
And so if you’re going to get the leadership of a company to essentially open their books and say, “Look, we have been doing it really badly up until now. We have seen the light. We are no longer going to put up with this. We’ve weeded out one or two really atrocious apples, and now the rest of us basically want to make amends.”
We as a society, as a culture, as a legal system, in my opinion, have to create a pathway for people to be able to do that without getting their own nuts in a sling, so to speak. There has to be some sort of a pathway to leniency, at the very least, if not outright — what’s the word, when you let someone off the hook? There’s a word for it.
Daniel: Exoneration?
Julia: Yeah, sure. We can use that. If there isn’t outright exoneration, sure.
It’s a question that I have discussed with a number of other attorneys because it’s my big idea that what companies need to undergo is essentially a truth and reconciliation process, similar to what Nelson Mandela heralded in South Africa to end apartheid.
And there were lots of problems with the truth and reconciliation process. Lots of South Africans today feel as though it was just terrible, the way these horrible human rights violators got off scott-free. And they feel as though that was a real miscarriage of justice that that happened. And also I am not trying to equate workplace sexual harassment with the magnitude of the atrocities that occurred under apartheid. However, I think that there is something to be learned from comparing the two and from suggesting to companies that they undergo a similar process.
Since the first step is for a company to basically throw open the doors of their HR department and say, okay, victims, come forth and tell us everything that’s ever happened to you and there’s definitely going to be no career dings against you. We’re not gonna fail to promote you, we’re not gonna call you a troublemaker, there’ll be no consequences for you for coming forward.
And also perpetrators, and people who are complicit – we want you to come forth too and tell us what you know. Who did you give penis injections to before he met with a new intern? What kinds of private hotel rooms did you arrange and who walked into them? come forth and tell us these things.
And every attorney I’ve ever talked to about this says well, obviously you can’t do that because you’re getting people to walk in and confess to a crime. You know that that’s not going to work.
So. Mr. Epstein, with all your big, fancy ideas about reform, how do we do this? What could happen? Or again, going back to my earlier question about if you had a magic wand and you could just wave a magic wand and make it be so, what would need to happen in order for some kind of a process like this to be workable inside of a corporation? What would need to happen in order to make something like this at all feasible?
Daniel: Yeah. So the good news is that there is kind of a model for this, right here in Cook County actually.
Julia: The restorative justice court of cook county, right?
Daniel: Exactly, exactly. Restorative Justice Community Court. Let me give you the very short answer first, which is the thing that we need is victim opt-in. Whether we want truth and reconciliation is, I think, first and foremost a question for victims, right? It’s not for non-victims to say that they need to accept that. Maybe they want retribution. And that’s for them to decide.
Julia: Maybe victims want retribution.
Daniel: Right. And that’s really for them to decide. Because if we’re talking about a restoration, if we’re talking about reconciliation, that’s something that first and foremost has to be the decision of the victim. If they don’t want to reconcile, then I don’t think that there’s necessarily a path for it. But, to the extent that they do want to reconcile – to the extent that they do want to be restored themselves in ways that our traditional systems don’t allow for – we should create a pathway for them to opt into that path.
So let me give you an example of how this works, in our restorative justice community courts.
And just to give a little bit of background, underlying all this is the idea that sometimes restoration and retribution are at odds. Sometimes, the desire to punish those who did wrong actually makes it harder to be restored – either from the standpoint of the victim, from the standpoint of the community and from the standpoint of the alleged offender as well.
Julia: Yeah, absolutely. Which is why one of the drums that I keep beating in this podcast is the need for all of us to find our way to greater compassion and forgiveness. Whatever it is – and I’m not saying that it’s easy – but whatever it is that creates in a victim, the desire to see their perpetrator harmed, punished, that’s not a useful impulse. It’s a human impulse. It’s an understandable impulse. It’s not an easy impulse to let go of. But it’s not useful, even for the victim, to hold onto that desire for punishment, in my opinion. But please continue.
Daniel: Yeah. There’s research on this. And the research suggests that victims report better outcomes themselves when they engage in a path towards restoration, for all parties involved. But like I said, I think that’s really for victims to decide because that research was based on people who opted in. And I don’t know how it would turn out if someone didn’t opt in, but was kind of funneled into a process that was aimed toward restoration. If you have a retributivist who is funneled into a restorative process, I don’t know whether that works or not. But the good news is for those who opt into restoration, the early research suggests that outcomes are better for all involved.
Not everyone knows what restorative justice looks like. And so let’s talk about that briefly. If you watch law and order, you have kind of a sense of what a traditional court looks like, right? It’s the state versus an alleged offender, and they kind of go to battle.
Restorative justice works very differently. It starts with something called a peace circle. And a peace circle is literally what it sounds like. It is a circle, where people come and sit together, and talk. And that includes the victim who must opt into it. It includes members of the community who are impacted by the alleged offense, who must opt in. And it includes the alleged offender, who must opt in. It also includes what’s called a circle keeper, who manages the process.
And what they do is talk about what happened. The alleged offender talks about what they did. The victim talks about how it impacted them, how it hurt them. The members of the community talk about how it impacted them, how it hurt them.
And then they talk about creating a plan for restoration. First and foremost, to restore the victim. Second, to restore the community. And third, to also restore the offender.
it sounds kumbaya, right? It’s even called the peace circle, right? It sounds like some like summer camp, pipe dream kind of thing, but it just so happens to work. And that’s the bottom line for me, which is if it works, let’s do it. Particularly if it works for victims, and that seems to be the case.
Julia: Speaking of it being kumbaya, and also to me it sounds an awful lot – I personally have had no experiences with addiction for myself personally or anybody who I love, but from what I know about 12 step programs, what you’re describing sounds an awful lot like the basic process that you go through when you’re recovering from addiction, right? Same basic process, which we also, we know works, right?
Daniel: Yeah, this is a process that’s being put into place here in cook County for nonviolent offenders who are 26 or younger who are from the North Lawndale community. This is already in place and it’s having good outcomes. It’s expanding into Englewood and hopefully beyond. It’s potentially a process that could work in our corporate environments too. I think we need to figure that out.
I will say that there is a role for the Illinois Supreme court in this process. And it relates actually to this workplace part too.
So, those peace circles rely on open and forthcoming communication. The communications within those peace circles are not privileged. And what that means is, things that people say within the peace circle can be used against them in court. As a result, there’s reason for people to not be open and forthcoming.
And, my concern is that if someone says something in one of these courts – and not even necessarily the offender, it could be the victim or members of the community – that the thing that they said could be used against them in court. And if it is, then people will stop opting into the process. Or if they opt in, they won’t be open and forthcoming and that lawyers will actually start telling them, Hey, don’t go to this because it’s a trap. Or if you go, just be really careful about what you say. Or let me be over your shoulder while you do it.
That’s not really in the spirit of the process. And my concern is that if someone ends up getting convicted based on something they said in these peace circles, that it will in fact reel back all the progress we’ve made on advancing restorative justice courts.
So a coalition of groups proposed a rule change to the Illinois Supreme court saying, Hey, let’s make communications within the peace circles privileged. And the Illinois Supreme court rejected the rule without explanation. So that’s one of the things that I want to revisit.
It relates back to the workplace thing for exactly the reason that you mentioned, which is lawyers are going to tell companies or employees, “Don’t participate in this process if it means that you have to talk about what you are alleged to have done, because it could be used against you.”
And so that’s a critical piece that we need to solve in order to make it work in the corporate environment. And what it might mean is, kind of agreeing to some sort of privilege arrangement or something along those lines to make it so that people can communicate in an open and forthcoming way. I think it’s possible. We have some work to do in that regard, but the positive news is there is a model where this could work.
Julia: So what I also want to get from you, if you can speak to, is, some of the ingredients in the restoration plan. Because I think that’s another piece to making it work on a larger scale. Going back to this whole idea of telling people what we want, explaining this is what you’re going to get. You know, these are some of the things you can ask for if you’re participating in this process and you’re saying, I want to be restored, here is some of what that could look like.
And I wonder if you can speak to it first in terms of the restorative justice court, which is mostly talking about, if I’m not mistaken, not workplace sexual harassment situations.
But if we could talk to, what is part of the process in that context and then extrapolate it to what could be part of the process if a company was to do this? If somebody was to bring a sexual harassment or assault claim, and asked to do basically a restorative justice process with her boss that did it to her, what could be possible?
Daniel: In terms of restorative justice plans, I think the most unique thing is that they tend to include a plan for changing the conditions, the underlying conditions, that contributed to the offense in the first place. So, if addiction is part of what contributed to the offense, then it involves a plan to undergo addiction treatment. If unemployment was part of the underlying circumstances that led to the offense, then gainful employment becomes part of the process.
And that’s why it’s important to have members of the community there too, right? Because members of the community might be the ones who offer the offender a job to prevent them from graffitiing their establishment or what have you. So that’s why it’s really a community process, where everyone has to be engaged in changing the circumstances that led to the offense in the first place.
And in a corporate environment, I think that that could look really similar, right? If you’re talking about a pattern of abuse or a pattern of harassment or an unhealthy or unsafe work environment, that’s more than just about one incident. That’s about changing underlying circumstances.
And so a restorative justice plan might be, what are we going to do to make sure that this person gets the treatment or goes through the education that they need in order to understand what’s appropriate and what’s not? what do we need to do, in order to make sure that there’s a pathway to not re-offend? And to make sure that if they do, that it can’t be kind of swept under the rug. that’s a community plan. and a plan for restoration that I think could apply in a number of different circumstances.
instead of saying, “you did this bad thing, you’re going to jail,” or you did this bad thing, you’re paying a fine. It’s saying, “you did this bad thing. What are we going to do to make sure you don’t do it again?” And you might also pay, right? you might still have to compensate someone, but we’re also going to make sure that you’re involved in a community process that changes the underlying circumstances that led to the problem in the first place.
Julia: Wow. That just opens up so many additional avenues for conversation right there. I noticed that we are well over an hour at this point.
Daniel: When you’re having fun, right?
Julia: Yeah, this has been a really, really good conversation. Would it be asking too much to have you consider coming back to talk to me a second time at some point in the future?
Daniel: Anytime you’d have me, I’m happy to join. This was really nice and also important. And so it’s a conversation, I think we all get better by talking about it more. And so anytime you’re willing to have me on, I’m happy to join you.
Episode Conclusion
So that just about wraps it up for this week’s episode with Daniel Epstein. I hope that you enjoyed it as much as I did, and found it to be illuminating and thought provoking.
And I do hope you check out our episode with Sharmili Majmudar, who is an executive vice president with Women Employed. She and I talked about this very same issue of restorative justice within corporations. And she brings sort of the opposite perspective, of, decades of experience in the real world of watching and experiencing men just getting away with bad behavior. And if you want to find out about all of our season one guests – we are less than halfway through with the first season, there’s information about all of them on the website.
You can check that all out at solvingmetoo.com and that’s also where you can make a financial contribution if you enjoy having these conversations going on.