The Compassionate Prosecutor

Professor Mark Osler used to push for heavy sentences for narcotics trafficking as a federal prosecutor. Now he helps prisoners petition for clemency.  How's that for a plot twist? 

In this episode we discuss:
-  Whether the justice system can have an impact on drug use
- Why narcotics should be treated more like white collar crime
- The notion of compassionate prosecution.

Transcript

Cait Macleod:

Professor Mark Osler prosecuted narcotics cases in Detroit during the crack epidemic. Back then he dished out long minimum sentences that have become synonymous with the excess and cruelty of the war on drugs. We're talking five years for five grams. Since then he's successfully challenged drug sentencing laws in the Supreme Court in the US and helped to free more than a hundred prisoners through clemency petitions.

If you ask me, it's a pretty good plot twist.

You're listening to Wood for the Trees. I'm Cait Macleod. And this is episode five, The Compassionate Prosecutor.

In previous episodes, we explored the debates around legalizing drugs and abolishing prisons. This mini episode brings those two topics together. Professor Osler and I had a conversation about whether or not the justice system can have an impact on drug use, why narcotics crimes should be treated more like white collar crime, and the notion of compassionate prosecution. So here we go.

Yeah. So, if you wouldn't mind starting just by introducing yourself and telling me a bit about your background.

Mark Osler:

Sure. My name is Mark Osler. The last name is O-S-L-E-R, and I am professor of law, the University of St. Thomas in Minneapolis, Minnesota. I'm a former federal prosecutor, from Detroit and the bulk of my work has had to do with narcotics policy, with clemency, and with sentencing generally.

Cait Macleod:

As an aside, Osler has also testified as an expert before Congress,  been published in the New York times, The Washington Post and the Harvard Law Journal among many others, published several books and he's also a Christian preacher

And as a prosecutor, did you interact with a lot of drug related crimes?

Mark Osler:

Oh, sure. I mean, I was a federal prosecutor in Detroit from 1995 to 2000, so I had all different kinds of cases. I had a case against Hezbollah.  I had one that involved immigrants smuggling a lot of bank robberies, but you know, the plurality of my cases, the biggest group were drug cases and particularly at that time, cases involving crack cocaine.

Cait Macleod:

And most of those cases that you were seeing users or kind of low level distributors or all levels?

Mark Osler:

Well, it would not be simple possession, so it's all trafficking cases that I prosecuted. There were some higher level, but a lot of lower level street dealers as well.

Cait Macleod:

Okay. And what do you think should be the aims or the goals when the justice system interacts with crime in general and also with narcotic crimes in particular? What's the overall aim?

Mark Osler:

Yeah. Well, one thing that's important to do is distinguish between two types of crime, and that is crimes that are oppositional and those that are cooperative. And what I mean when I say that is that no one wants to be robbed. No one wants to be murdered, or very few people do. And no one wants to be assaulted, but people who sell drugs, they're dealing with people who want that transaction to be completed. The buyers of drugs are seeking them out. So it's  a cooperative effort with the people who are directly affected by the crime. And that makes it fundamentally different than homicides and things like that, which means that different rules apply.

There's a limited number of people in, you know, even in the United States who wanna murder somebody else, but there's a lot of people who want to use drugs. And that means that when we talk about narcotics policy, we make a real mistake if we don't factor into the way we think it the laws of supply and demand.

Now there's no doubt I, you know, I come from a city Detroit that, uh, there were a lot of things that undid it. Racism, certainly racist policing, disappearance of industry, the fact that the economy there was particularly hard hit by the downfall of American automotive manufacturing. But narcotics played a role too.  You know, drug use was not a good thing.

And that means that we have to think hard about, what can we do to restrict drug use. Well, you know, in the end, and I'm sure, uh, people on all sides of this agree, to really change narcotics, you have to affect demand. And that's hard to do. When we talk about the traditional tools of law enforcement, arresting people, seizing drugs, the most that that can do if we think about it in economic terms, is to reduce the price of drugs, or, I'm sorry, increase the price of drugs for a short period of time. Because that's the way supply and demand works. If we restrict supply through interdiction and demand remains constant, then the price should go up.

Now, a couple of things about that. Uh, one is, is that worth it? You know, I mean, is raising the price for a short period of time worth the effort we put into it?

Well, probably there is something to be gained from that if we, if we do it.  Because we know from our experience with tobacco that even highly addictive substances use will go down if it becomes much more expensive.

Now the problem is that our efforts haven't done that. That what we've seen when we monitor the street price of drugs, which is a pretty imprecise task, is that, you know, even, even really serious interdiction efforts don't make much of an impact over the longer term, or even the medium term on the price of narcotics, uh, you know, we've spent a trillion dollars here in the United States on the war on drugs and the price of drugs stayed the same or went down. And that's pretty discouraging.

Cait Macleod:

When I interviewed drug policy expert, Jonathan Caulkins in a previous episode, he also argued that the main purpose of policing drugs is to keep the price high. In fact, he said that law enforcement has successfully kept the price of cocaine and heroin, hundreds of times higher than it would be if it was legal. But the arrival of cheaper synthetics, like fentanyl makes that much more difficult to achieve.  

Right. So is there hope that changing sentences and doing reforms can make any impact?

Mark Osler:

Well, it won't make an impact on  the problems of drug use in the United States or in any other culture. It will lessen the impact of the mistakes we've made fighting narcotics in the United States.  Some of the people that, that I prosecuted, and this is unfortunate, they face sentences that were pretty outlandish that, you know, a five year mandatory minimum sentence in federal prison for just having five grams of crack, which isn't very much. You know, in terms of well, will reforming sentencing impact drug use? No. But will it impact and mitigate to some degree the cost of the way we fought against drug use and drug trafficking? I certainly hope so.

Cait Macleod:

And if it's not actually impacting the problem of drug use, I guess it begs the question, should we be prosecuting people at all for drug crimes? If it makes no impact, what's the point?

Mark Osler:

Well, I mean, I think the point, if you listen to the way it's talked about in legislatures here, it's moral to some degree.  There is a sense that drug traffickers are poisoning their own communities and we wanna punish them for punishment's sake.  I don't think that is a way to give substance to the incredible expense that we've had in terms of money and freedom in pursuing that.

But I think that when I point out, 'listen, this isn't doing any good', it doesn't change the way some people are just angry at people who sell drugs. And of course, to some degree, that's been demonized. And in, in popular conception, there's this idea of the drug pusher, the one who lures people into using drugs or forces them to use drugs. And the truth is that drug traffickers, they just have to make it clear they're selling drugs and people will come to them for the most part. Because it's demand driven.

Cait Macleod:

Okay. I think that's really interesting is that you're describing kind of a social phenomenon of what people want, but I'm curious, do you personally think there's a moral imperative to punish people who are involved in these kind of crimes?

Mark Osler:

Um, it depends on what goes with it. You know that because it is an illegal black market, we do have violence that goes with it. We do have higher levels of pretty much every type of crime when you have a new type of drug come in and really have a substantial impact on a community. So that's, that's all bad.

 You know, when people talk about legalizing narcotics, I see the benefit of that and that you can regulate things. One thing to be careful of though, is that if you're going to have a highly taxed,  legal drug market. You're also going to have a black market that's untaxed, that's gonna arbitrage that difference. And you're gonna have some of the same problems that you had  before you went to legalization.

Cait Macleod:

Okay. So can you talk a little bit more about the kinds of reforms that you'd like to see?

Mark Osler:

Yeah, I mean, I think that the one thing that we need to do Is not so much about sentencing, but it is about how we address narcotics as a problem.

I think marijuana is on its way to being broadly legalized in the United States and in other parts of the world. We talk about things like heroin or methamphetamine. That's a different kind of story. And the way we've traditionally fought against those drugs and its trafficking has been to arrest people and imprison them and, you know, grab up the drugs.

d the problem is that that doesn't stop the business from continuing. And it is a business. These are interlocking businesses that distribute these narcotics, international overlap with most of them. And so, you know, I gave a talk once in Dallas. I won a case in the Supreme Court in 2009  that involved crack. The Supreme Court in the United States ruled that sentencing judges didn't have to follow the especially harsh sentencing guidelines for crack which was good. So I'm speaking to this Republican group in Dallas and there are a lot of business people and I asked them, 'Okay. This is about shutting down a business. How do you shut down a business?'

This guy stood up and he said, 'Cash flow and credit. That's how you close down a business. If they don't have cash flow and credit, no business can go on for very long.' And there was a broad consensus amongst that group and everybody else I've talked to in the field of economics since then and in business.

 And yet that's the one part that we've never really addressed. If we really went after the cash flow, we could leave the people and even the drugs alone and the business would fail. And we've gotten pretty good at tracking cash flow in the United States by tracking the material support of terrorism.

There have been real experts that have found ways of detecting how cash goes to terrorist groups or groups that have been identified as terrorist groups and grabbing that and if we were to do the same thing in the field of narcotics, that would be a way of getting the good part -that is the street price would go up -without imprisoning a lot of people. And yet we have yet to really try that on a broad scale.

Cait Macleod:

That's really interesting. And what about prosecution reform? Should we be shortening sentences? Should we decriminalize more of the narcotics that are available?  Anything like that?

Mark Osler:

Well, I certainly think that decriminalization is something that should be considered for some drugs.

I think that there's real problems with decriminalization of some of the most harmful drugs. In terms of prosecution in sentencing, certainly we have a lot of too-long sentences. Now, some of those have been changed in the United States but they weren't made retroactive. That means we have a lot of people serving, say, life sentences in cases where they wouldn't receive that sentence today or anything close to it.

And that's where clemency becomes important, because that's one way, under the federal constitution, almost all of the states that we can go back and say, 'Okay, your sentence is too long based on what we know today and what the values of our society are today. And so we're gonna let you outta prison.'

And unfortunately that's not happening as much as it should. So when we talk about sentencing reform, the front end is important that we do have to right size a lot of these sentences and reduce them, and in some cases get rid of them all together. But it's also that we pay attention to the back end, that we look at the people who are already in prison that are doing the time for these narcotics crimes and give them a second look through clemency or another me.

Cait Macleod:

What exactly is clemency and how does it differ from something like parole?

Mark Osler:

Well, parole is built into the system as something where a panel is going to go and see if someone can safely be released into the community before their full term is served. Clemency is different. It is the power of, in the federal system, the president, on his or her own to release someone from prison or to pardon their conviction altogether.

And it's got an incredible history in the United States as it does in England and other places. And of course, we got this institution from the British which is odd because the American constitution rejected the power of kings pretty much across the board, but they left one in there and it's this power of clemency. The pardon power.

And there's a reason for that. It's because most of the other powers of kings were the powers of tyrants, as the framers of the Constitution would've described it. Clemency is not. Tyrants work by putting people in prison, not by letting them out. So that's probably one of the reasons they decided to put this power of clemency in.

And clemency is different than parole because it's the decision of one person and it also, it can operate much more broadly than parole that it can affect…and you know, we saw, and this isn't necessarily a good thing, we saw President Trump, for example, pardon people who hadn't even been convicted yet of crimes.  And he wasn't the first president to do that. So there's been some irresponsible use of clemency, but there's been some very responsible use of clemency too.

We saw President Obama, for example, grant commutations of sentence, or a shortening of their sentence to almost 1700 people who were doing drug time, where their sentence would've been different today. And so they right-sized it. And so there's ways in which clemency has been used in an appropriate way. Just not enough, and they need to be more vigorous in that.

Cait Macleod:

In an ideal world, wouldn't these problems be solved within the system? Is the fact that clemency is used indicates the kind of a miscarriage of justice somewhere else along the line? Is it the appropriate method? Is it a way of kind of overriding the legal system where political wins favor a different direction?

Mark Osler:

Well, you're saying in terms of it correcting things, well, values, ideas change, you know, and take…one common use of clemency in the United States has been after war, and that's because during war you have to force people to go fight. And so you have to have long sentences for people who don't show up for the draft or who walk away from their, their army service. Well, that imperative’s not there after the war is over. And so what we've seen is waves of clemency for people who didn't show up for the army during the time of war after that, that war is done. And so  circumstances change.

Obviously, our ideas about the, about narcotics have changed over time, so it's not necessarily that it was wrong in the first place. It's that it's wrong now by the way we currently conceive of things and so, but that's only part of the picture.

The other one is that not only do societies change, and there are ideas about things like drug use change and drug trafficking, people change. And we see remarkable transformations of people within prison very. It is something I run into all the time that when we think about someone going to prison, it's almost like the cell door closes and that person's life ends. We don't think of them having a life while they are in prison.

But remarkable things happen to people in prison. They start reading books. They find a faith, they lose a faith. They find something they're really passionate about and care about. They learn a trade.  And that person becomes fundamentally somebody different than who they were when they went in. And clemency allows us to reevaluate that person, see that they've changed and let them out to be the citizen they're able to become.

And you know, I have a clinic here at my school where we work with people who are petitioning for clemency. And one of the great things about that is my students get to go to the prison and meet these people, many, many, most of whom, have undergone that kind of transformation.

I mean, we had one client that, that we got out where his story was before he went to prison, he never read a book, never read a book, and then after a while in prison he couldn't stop reading books. You know, he got out, I went out to lunch with him and two of my kids, both were at university at the time and we're sitting there at lunch and the three of them, the recently released person from prison, and my two kids are talking about, Cervantes. It was, it was a remarkable thing.

And we see these people who have changed, thrive in freedom, and it's important to, to find them, to identify them, and to recognize that change in their lives. And clemency can do that.

Cait Macleod:

I love the story. Osler is not my first interviewee to say they've witnessed people change dramatically for the better in prison. It does suggest something meaningful about the value of prison as a rehabilitative tool.  

And yet we know that while some prisoners flourish, others flounder or regress. And I'm not sure we have any way of knowing which is which at the time of sentencing.  

Is there a sophisticated process for identifying these individuals? Because it seems quite unfair to have the king, as it were pick out of a hat someone that's come to their attention through whatever means, when there might be thousands of people that, that fall into that category.

Mark Osler:

Yeah. Unfortunately, the process that we have for evaluating clemency it…I wish it was sophisticated. It's long, it's complicated, it's inefficient. But it's not very sophisticated.

Basically there's seven levels of review, which are sequential to one another, in different parts of the government. And so it's highly bureaucratic and often we see those different officials are bringing a different filter to the cases that they see. And so one of the primary needs in terms of reform here is to change that system, which right now, mostly is within the Department of Justice, the very entity that prosecuted and sought those sentences in the first place.

So you've got this incredible conflict of interest there right from the get go. And then you've got all these layers of bureaucracy and we need to sweep that away and have a much more direct process where, say, there's a bipartisan board that evaluates the petitions and then makes recommendation directly to the president. And that's something that, one of my collaborators, Rachel Barcow at NYU (New York University) and I have proposed  and worked on for years.

Cait Macleod:

I see you've written previously that drugs should be treated more like white collar crime.  Can you explain a bit more what that means?

Mark Osler:

Yeah, it's that when we think about white collar crime, we start with a thesis that this is a crime that's embedded within capitalism within business. And yet when we talk about drug crime, we act like it's an assault. No it's a, it's a business.  And one of the things about white collar crime is that we find that the people who are successful at it have a skill set. They're good at talking people into things, or they're good at hiding money.

And the exact same thing is true with narcotics if you don't have the skill set for it, for business. You're not gonna be a successful drug dealer. People think that, 'Oh, all you need to be a drug dealer is just go out and make yourself available to sell drugs'. And it's not true at all. There's a lot of failed drug dealers out there, and there's a lot who are much more successful than others. And it's because they have a specific skill set.

And like I said, when we look at white collar crime, we really take that into account. When we look at drugs, we act like all of a sudden it's just a bunch of street thugs who're going around knocking each other on the head when actually it's, it's something more sophisticated than that.

Cait Macleod:

And how does that play into, kind of, how we should sentence people for those crimes?

Mark Osler:

Well, one thing is that long sentences in narcotics are usually justified in part by, 'well, it will deter other people from selling drugs. If we give this person a life sentence for selling crack, then other people will not choose to sell crack.'

Well, I mean that's been proven untrue since lots of people kept selling crack even after we did that. When we think about it, if we wanna deter somebody from doing something, there's two things that have to be true. First of all, they have to know what the threatened act is, what that potential sentence is, and then they have to do a rational cost benefit analysis.

Now we had these long deterrent-focused sentences, in the United States anyways, in cases where neither one of those things are true. The people who are selling drugs usually don't perceive, for example, that federal sentences are that different than state sentences. And they're certainly not doing rational cost benefit analyses. And yet we have these long, expensive sentences that are premised on exactly that existing. Meanwhile, over in white collar crime land, there you've got people who. Are good at assessing costs, who do cost benefit analyses, who often are trained in business, but we don't have those same deterrents affecting long mandatory minimum sentences.

So we kind of got it backwards if what we really care about is deterrents. There should be a mandatory five year sentence for white collar criminals because maybe then they get the message - as proponents of those things say - rather than in narcotics.

Cait Macleod:

Right. That makes sense. I know that you've come from, you've got a religious element to your life and that you're active in a religious community. How does that inform your opinions on justice, if I may ask?

Mark Osler:

Yeah, no, it's an important question. As a Christian, I recognize that I work in a secular field, but it certainly informs the way I look at everyone in the system. And one big thing is that you have to recognize the human dignity of all who are there.

I mean, I remember as a prosecutor, I spent a long time with the Society of Friends, the Quakers, and one of the things that's a real tenet of that sect is the idea that the light of God is the same within each person. And I carried that with me as a prosecutor.

I'd walk into a courtroom and the person who was the defendant, the judge, the family member sitting behind me, me, the victims and their family members, we all had the light of God in us. And that meant that you had to take to heart what the cost was going to be to everyone involved as you're going down this route. It really makes you wanna sand off the roughest edges of the system, to make it less cruel, which in the end I think will give it more legitimacy.

Jesus said, "When you feed the hungry, when you clothe the naked, when you heal the sick, when you visit those in prison, you do that for me." That if I go on a clemency petition to see someone in prison, which I do pretty regularly, that that's a Christian imperative to see that person as they are now, to see them as someone who's capable of change, as a fully formed loved child of God.

And that's a challenge for someone who's been a prosecutor, who's spent part of my life putting those people, putting people in prison. Not necessarily those same people I’m visiting. That, that would be a conflict obviously. But yeah, I think that's something that's, that's very important to, to the way I see this, that there's a duty to have order, but there's also this really important duty to see human dignity in all who are involved.

And that does transform and add a certain caring that otherwise might not be there. And I'll tell you one thing about it, seeing it that way is really tiring because it's all tragedy. Criminal justice is all tragedy and you need to find ways to sustain yourself even while engaging directly with that tragedy.

Cait Macleod:

Yeah, I mean, it's very difficult to reconcile, I think empathy and sort of love for others and wanting to understand people's stories and, and see their dignity with the notion of punishment. Because I think if you acknowledge as, I think one must with the evidence that, that the prison system doesn't really work as a deterrent. It doesn't, most of the time work as a rehabilitative tool or perhaps there's other systems that could be better at that. And although it removes people from the outside world, you know, they can come back and commit more crimes, sometimes be more involved in criminal activity. So if we, if we see the prison system really as a tool of order,  punishment, how do we reconcile that with the notion of dignity and  empathy?

Mark Osler:

I, I do think that for all of us, we've made mistakes and accountability for those mistakes is part of human dignity. That, you know, recognizing the ways that we've hurt other people is a part of our own dignity. And it's hard to carry yourself with dignity if you're in denial of that. So I, I don't think it's necessarily inconsistent.

What I don't think is consistent with human dignity and criminal justice is rooting things in the sense of retribution that we're doing this because we wanna hurt somebody. Um, you know, that, that is profoundly un-Christian. It's against the tenets of most other faiths that I know that that part of what you're supposed to do is hurt other people because they deserve to be hurt.

That takes us to bad places, both in our own lives and, and within systems such as criminal justice. And so I think that's one big differentiator.

Cait Macleod:

It makes sense to me that we should call people out for bad behavior. I can even see how standing before a court as an accused might make someone feel like a part of society. Like someone who ought to know better and is therefore capable of more. But I think the reality of being arrested, arraigned and locked up is often far from dignified. I certainly don't see how this is an argument that justifies a long sentence or cruel and restrictive prison environment. 

On top of that, just because a court is recognizing that somebody has done wrong, it doesn't necessarily mean that that individual is going to recognize that they've done wrong and hold themselves accountable.

I also wonder how we can address the needs of the victims of crime if we remove retribution as a goal of the criminal justice system. Reformers often call for a more victim-focused approach but victims sometimes call for the people who hurt them to suffer. It’s not clear how much we should heed those calls.                                                     

That being said I do think there are ways the system can incorporate more compassion.                                                                                                                     

How can prosecutors bear this in mind? They're in a difficult position where they have to punish others who've done wrong, and they're making huge decisions about people's lives. And from what I understand in the US there's quite a lot of discretion involved. How can they manage that discretion when they're making decisions?

Mark Osler:

Well, I, one thing is to engage with the emotions of it. I mean, one thing I see in prosecutors and in judges is they shut themselves off and the system abets them in doing that.

 I mean, you look at the sentencing guidelines that we have in the United States, it's this  complicated system of numbers that gives you this sentence that's almost spit out of a computer. In fact, at one point they sent out a computer disc that did spit the number out of a computer.

 And that allows us not to see the person. And too often I think we succumb to that.  More than anything, when I see things going wrong, I see that the people with discretion to shape outcomes  have almost, you know, as a result of having taken in that much tragedy, have shut themselves off from the humanity of all who are involved. It's understandable that people do that.  

One thing that's changed is that, 40 years ago people didn't become prosecutors as a career. It was something that you did for four or five years and then you went and moved on to something else, and that's flipped around. Now you have a lot of people who work for a law firm in the United States for four or five years, and then they become a prosecutor and then they do that for the rest of their career.

Probably one thing we've lost by moving to career prosecutors is that there's more of a tendency to find emotional safeguards to stop you engaging from that tragedy when really engaging with that tragedy would shape your discretion in a more humane way.

Cait Macleod:

The idea that prosecutors should exercise compassion it's not unlike the idea of cultural reform in policing. We're asking people who wield guns or the prospect of prison who control and punish to do so while respecting the people they're doing it to. I don't know if your average overworked cough or lawyer can manage that nuance day in and day out.

I'm sure you can, for example, tackle someone to the ground and disarm them in a respectful way to send them to prison for life in a respectful way. But I don't know how easy it is.

What do you think the climate is like at the moment for reform? Are there changes in the works?  Do people have an appetite for change or, or do you think they'll be more of the same?

Mark Osler:

It's hard to assess right now because of course right now in the, the past couple years, we've had an uptick in some kinds of crime in the United States and in other parts of the world, and that of course leads people to say, 'Oh, we need to imprison many more people'.

But I do get the sense that that has been tempered compared to some past episodes. For example, in the 1980s, you had a, you know, increase in crime and a huge increase in the prison population. And I don't see that same response happening this time around. I think there is gonna be a more nuanced reaction, one that takes into account costs, that we did learn something from the failure and the ongoing failure of the war on drugs.

And while you certainly do have some people in pretty much every country saying, ‘We need longer sentences, we need to lock more people up’, I don't see that having the bipartisan support in a place like the United States that it has had in the past and in the long run, that's gonna be a good thing.

Cait Macleod:

Is there anything I'm missing that's important, do you think?

Mark Osler:

Well, one thing is that we need to distinguish between broad strokes and the individual case. Too often the debate over criminal justice when we talk about a reform, the counter is, "I heard about this one thing that happened", you know, and some horrible crime, and, and that is a terrible thing and is, you know, obviously something that's problematic.

But for too long the debate over criminal justice policy has been driven by anecdotes instead of by data and by thinking holistically about the problem. We hear a lot about the one person who was robbed. We don't hear anything about the 150 people who weren't robbed on a, on a given day. And because of that, we too often shape our actions according to one or a few incidents as opposed to what's really going on in this society.

Cait Macleod:

Yeah. I was reading that New York, which is obviously very much a blue area and they had one of the closest elections for governor that they've had since the eighties or nineties. The Democrats won, but the Republicans were not far behind. And that was really by the sounds of it because they're the tough on crime party. And that's a big issue for people at the moment. Um but it's only really based on a couple of highly publicized incidents of crime as opposed to an actual trend

Mark Osler:

And the truth is that violent crime is down in New York City this year. So, you know, it's actually going the right way. But that's not gonna be a headline. ‘Man is murdered’ is news. You know, ‘Man goes and has dinner, isn't murdered,’ isn't gonna be reported

Cait Macleod:

No.

Mark Osler:

A hundred thousand people going and having dinner and not being murdered isn't gonna be reported. And, and in a way that's unfortunate. Uh, you know, here in Minneapolis, I was just looking at some of the, the data we've got on crimes and we've had a problem with carjacking where there's armed robberies of, of cars and looking at the past 28 days compared to the same period last year, that's down over 60%. That's a huge drop. Something's going right, but no one's gonna report that because it's things that didn't happen other than things that do happen.

Cait Macleod:

Yeah. Interesting. I did actually read that you prefer to speak at conservative churches, although that's not necessarily your own background, because you like to speak to people who have different thoughts from you, is that the case? And do you have advice for how to speak to people who think differently from you?

Mark Osler:

Yeah. I mean, the way I always think of it is, I wanna start out by drawing a circle. That goes around both me and the audience, something that we have in common. And start from there. I mean, it's, it's, it's so easy to, to start from, ‘Well, I disagree with you about this’. It's much better to say ‘I agree with you about this’ and you were saying that, you know, I, I, especially in the death penalty, for example, I've done a lot of work in conservative churches and church organizations.

And that's because there I can start out and say, "Here's what we've got in common. We both believe that the gospels matter, that these are stories that are supposed to direct us towards action and teach us how to think about things. And right there in the middle of it, we've got Jesus coming up on an execution  in John eight of a woman who was caught in adultery. It's an execution that was justified under the law, but he stops it and that should tell us something. Let's talk about what that tells us". And it's a good discussion . And sometimes when you start in that same place, people will walk with you from that place.

Cait Macleod:

Interesting. Start with something you have in common.

Mark Osler:

Yeah. Yeah. And especially if it's a principle or a source of wisdom. Yeah. Yeah.

Cait Macleod:

I think that's interesting. I think as far as crime goes, pretty much everyone agrees that less crime is better.

Mark Osler:

Yes. Yes, that's absolutely true.

Cait Macleod:

The rest is more complicated. But…

Mark Osler:

I mean, I'll give you another example, which is that about 10 years ago here in Minnesota had a a movement to basically bar same-sex marriage. I'm for same sex marriage and I dealt with people who were Christian who would say, "Oh, I think that's wrong. I think that's wrong morally." And I'd, I'd ask them, “So what is wrong? What is the, what is the problem with same sex marriage?” And they'd say, "Well, it's bad for children" very often.

And that gave me something to go on because I care about kids too. I want children to be well. And so my response to that could be, once I knew that could be, "well, people who are gay are gonna have kids, so don't you want those kids to have two parents? Isn't that better if they can have two parents who are committed to each other in marriage? Isn't that what's best for this kid who exists in real life, who goes to school, who has a locker with her name over her locker for her to go home and have her two parents be married to one another and have the stability that goes with that?"

 So there's a lot of ways that I think that if we start with common principles and that people in good faith want things that are legitimate, it's easier to get to a place that's better.

I think I left to put that as a quote on the Wood for the Trees website.  

You've been listening to Wood for the Trees with me, Cait Macleod. Thank you so much to my guest Professor Mark Osler. If you'd like more information about this episode it's available at cantseethewood.com.Or you can email me at cait@cantseethewood.com. I'm also looking for a sponsor or investor. So you like the show and you believe in getting people thinking about things that matter, do get in touch. Thanks for listening