Political Report
How Jody Owens Would Reform Mississippi’s “Truly Broken” Legal System
Mississippi’s largest county will choose its next prosecutor in August. Jody Owens says he is running to “stop mass incarceration.”
Hinds County, Mississippi’s largest county, chooses its next prosecutor in August. Jody Owens says he is running to “stop mass incarceration.”
Daniel Nichanian
Update: Jody Owens won on August 6. Read our overview of Mississippi results.
Mississippi’s criminal legal system is under scrutiny: The U.S. Supreme Court just struck down a death penalty conviction due to prosecutorial misconduct, its prisons are on trial, and it likely now has the country’s highest disenfranchisement rate.
“There truly is a broken criminal justice system in Hinds County and in Mississippi as a whole,” said Jody Owens, managing attorney of the Southern Poverty Law Center’s (SPLC) Mississippi chapter.
Owens is the latest in a wave of candidates running to be “decarceral prosecutors”: He is vying to be district attorney of Hinds County, Mississippi’s most populous (home to Jackson). The county is majority Black, and it votes predominantly Democratic. Incumbent Robert Shuler Smith is not seeking re-election. The Democratic primary, which takes place in August, will decide the election because no Republicans or independents filed to run.
Owens talked to the Political Report last week about how he proposes to reform Hinds County. “Our focus has been ending mass incarceration,” he said of his work at SPLC, where he has litigated cases against Mississippi’s detention conditions and disenfranchisement. He added that he would retain that focus as DA. “There are a lot of individuals who don’t need to be in prison,” he said “And there are certainly a lot of individuals in a state like Mississippi who don’t need to be in prison for the length of time that they are.”
He made the case that decarceration would boost safety by freeing up funds for social services and by breaking generational cycles of marginalization. “In my work as a civil rights lawyer, I was seeing fathers and sons both in prison,” he said, faulting prosecutors for “failing” communities by not creating programs to stop the children “from following the same footsteps.”
Owens called for expanding the use of restorative justice and mediation in cases of crimes that involve victims. Communities should be “more empowered to deal with their own conflicts,” he said, to counter those prosecutors who resort to “more incarceration time” as “the only tool they have.” He took issue with the criminalization of mental illnesses and addiction, with the use of prisons as “de facto” facilities to hold people experiencing such issues, and with the schemes that impose very harsh sentences on people with multiple drug-related convictions. He said he would not prosecute marijuana possession.
But Owens also repeatedly employed the conventional but too limiting distinction between nonviolent and violent crimes when talking about decarceration.
Owens, who wants to be a progressive voice in statewide policymaking, called on prosecutors to use their discretion to limit the state’s harsh disenfranchisement rules. He explained that, when possible, he would file charges that do not carry disenfranchising consequences instead of charges that do. “When we ostracize individuals as we have in Mississippi—tens of thousands of individuals, permanently—you’re creating a class system that district attorneys can do something about,” he said. “If enough people are aware of this, we can circumvent their racist, Jim Crow-era law that continues to punish individuals for decades.”
Two candidates are running besides Owens. They are Stanley Alexander, an assistant state attorney general who also ran in 2015 by faulting the incumbent DA for endangering safety by being too lenient in prosecutions, and Darla Palmer, a defense attorney. The primary is on Aug. 6; if no candidate clears 50 percent, a runoff will be held on Aug. 27.
The interview has been condensed and slightly edited for clarity.
The Supreme Court shone a spotlight on Mississippi’s legal system in June when it overturned the conviction of Curtis Flowers, who was tried six times for the same crime by DA Doug Evans. What lessons do you draw from this case on the power of Mississippi prosecutors, and on the possibilities for abuse that the position contains?
The Curtis Flowers trials are an example of what happens when overzealous prosecutors refuse to pay attention to all the evidence and to do justice as opposed to just trying to get a conviction. As a civil rights lawyer, I followed that case; I’ve spoken to people from the podcast. I can tell you that it’s the type of thing that gives prosecutors everywhere a bad name, the good prosecutors who believe in justice like Scott Colom who was recently elected. I think that it really shows you how dangerous it is, historically, in places like Mississippi with mass incarceration rates and an unjust criminal justice system, if prosecutor power goes unchecked.
As the managing attorney of the Mississippi chapter of the Southern Poverty Law Center (SPLC), you litigated against the state’s legal system and local law enforcement practices. Now you’re running to be one of the state’s most important law enforcement officials. What explains this transition, and what aspects of your work at SPLC would you bring with you?
Our focus has been ending mass incarceration. We have worked at the state legislature every year; we’ve been appointed to task forces by governors. Most Mississippians, regardless of their political ideology, believe that Mississippians are not bad people. Yet we have one of the highest incarceration rates in the country historically. We can blame Jim Crow, a lack of a statewide-funded funded public defense system, a lack of an indigent defense system that supports the right of individuals to have enough time with their counsel to have a serious defense. There truly is a broken criminal justice system in Hinds County, and in Mississippi as a whole.
The transition is one in which we hope to maintain public safety by realizing that you don’t maintain public safety solely by prosecuting individuals. To stop mass incarceration, one has to work in the community in a way which stops the cycle that feeds into this system. That cycle can be caused by prosecutors in all the ways they’re open to prosecuting people, and in addition when they’re not paying attention to the factors that are feeding mass incarceration.
In my work as a civil rights lawyer, I was seeing fathers and sons both in prison. When you would talk to the children of fathers who are incarcerated, it was clear that prosecutors had failed them and their communities by not putting programs in place—whether it be reentry, social services, counseling, mental health treatment, educational treatment or opportunities for the kids—to stop them from following the same footsteps.
The system was never fair for defendants. It’s also not helping victims because victims are continuing to be victimized because you’re creating a new level of defendants and individuals who will commit crimes. Your job does not stop just by getting a conviction. Your job just begins. When you look at a more holistic view of restorative justice, we have to have district attorneys who understand that making communities whole include victims and the rights of victims, making sure that we stop the cycle of poverty and crime and those things that contribute to crime.
Let’s talk more about this idea of an overeliance on prosecution and incarceration: What aspects of the local criminal legal system that you think are most conducive to Mississippi’s high incarceration rate, and its unequal incarceration rate?
Far too often in Mississippi, we’re treating violent crime and nonviolent crime the same. That’s a must that we stop that. They’re very different and the impact of those crimes should be treated differently.
The usage of bail and bond fees in Mississippi, particularly in Hinds County, is often used to punish individuals who are poor. Their crime continues to be that they are being punished for not having the resources to be released from jail regardless of being convicted or not. That has to stop. We can’t violate the rights of individuals if we want a criminal justice system that works. My extension of my work at SPLC has taught me that those small things to some are major things that impact individuals’ well-being and their ability to function in society. And only will we be our safest when we start looking at the things the criminal justice system is doing wrong that further lead to mass incarceration. If you’re waiting for a year, for more than a year for some instances, just to be indicted, the violation of your constitutional rights are equally as important as the victim, who you may or may not have violated their rights. The system has to work for both victims and defendants. Victims don’t feel safer if they don’t believe individuals are being held accountable as well.
That’s the crux of the extension of my work at SPLC. We’ve worked in the system long enough to identify all the things that are occurring that don’t make people safer. What is an individual being charged for? How long are they being housed without being charged ? Are they given proportionate sentences for the crime? Should they have been charged in the first place? To be safe we have to be smarter about those things and use the limited resources judiciously.
Let’s pause on this bail question: Do you think cash bail should have any role in the legal system? What would you do as DA about pretrial detention?
It’s clear historically and currently that bonds have been used in ways that weren’t intended, Bonds, if at all used, should solely be used for a danger to society or some significant flight risk. We can limit the uses of bonds and make sure that when it is used it’s used for the purposes I just mentioned, not for the purposes of punishing individuals and not letting them fully prepare for trial. I think the district attorney’s office has an obligation to ensure that it’s not being punitive to people who are presumed innocent until proven guilty. We’re not a fan of using cash bonds, unless the circumstances make it necessary to protect public safety, but not across the board as we’ve seen too often in ways that only punish individuals more who have not been found guilty.
Do you identify with the term of ‘decarceral prosecutor’ that some prosecutorial candidates have used elsewhere?
Yeah, absolutely. To end mass incarceration is the way that you make people feel safer and incarcerate fewer people. We know in Mississippi and in a lot of Southern states that mass incarceration has not made us safer. Mississippi incarcerates the third or fourth largest population per capita in the country, and we know that the United States incarcerates the most people in the world. That is not something that makes us safe. It’s also not something that makes our state a better place to live.
To focus on ending mass incarceration while maintaining public safety means that we work on what we call a two-tier track: a two-tier track is recognizing that violent offenders have to be incarcerated for public safety’s sake, but there’s a whole other population that we cannot forget. That deals with our drug courts, our mental health courts, our veteran courts.
We see far too often that the jail system and prison system is used as a de facto mental health system. We cannot let that continue to occur. That has led to mass incarceration in places like Mississippi. I actually brought a lawsuit against a private prison in Mississippi on behalf of SPLC. What I’ve seen is that serious mental illnesses were treated as a criminal safety issues and not a medical issue. In addition, we’ve seen that addiction is treated as a criminal justice issue and not as a medical issue. If we are able to tackle those things as medical issues, I think we will be able to limit the number of people who are incarcerated, and therefore use the services of a state like Mississippi that is poor and that spends hundreds of millions of dollars on mass incarceration, to revert those funds for reentry programs.
I’d like to hear more about addiction and drug offenses, which are a major cause of incarceration in Mississippi. You’ve talked of support the county’s existing drug court, but how specifically would you change prevailing approaches to drug cases to make a substantial cut in incarceration? Are there categories of cases that you would not prosecute at all, or where you would look to avoid either conviction or incarceration?
My administration is going to focus on the treatment of mental illness and the treatment of drug addiction, not the criminalization. That’s several different factors.
My work in school systems and with law enforcement show an inability to deescalate situations with regard to mental health illnesses. That’s significant that we work with people who bring those charges to us, which is the law enforcement agencies, to make sure they know that we are focusing on not criminalizing mental health issues. We have to make sure that our prosecutors are aware of the impact of that. In my work as a civil rights lawyer, I’ve worked extensively on secondary trauma on communities and families. The trauma can largely impact who is going into the criminal justice system.
An individual who is addicted is not themselves. If we criminalize that behavior, we will continue to see a large movement toward mass incarceration. We have to make sure we get people the treatment they need.
Another thing that I focused on at SPLC is how we treat kids: what we prosecute kids for, when we charge them as adults. In Mississippi, you can be charged as an adult regardless of your chronological age, and we’ve seen a line of Supreme Court cases focus on kids are different and the evolving science of brain development. When we prosecute kids as adults, we can unknowingly be penalizing kids at a different developmental stage than where they are.
Our goal is not to push people in the prison system. Our goal is to be safe, and we are not safe simply by incarcerating people. We are actually safest when we are able to divert people from the system and give them opportunities to be productive citizens.
So are there categories of cases that you would consider not prosecuting at all, for instance when it comes to marijuana possession?
We would not look to prosecute low-level marijuana possession. We recognize the changes in the country where marijuana is legal. My district attorney office would not prosecute low-level marijuana possession. Again, to my other point, prosecuting in itself does not make us safer. The war on drugs didn’t make us safer. It just has not. It has failed that way. In fact it made us, I think, less safe. We wouldn’t see ourselves seeking mandatory minimums or habitual sentences based on low-level drug possession charges, which could have been years if not decades previously.
I want to return to the point you made about kids who are treated as adults. How would you approach this as a DA? Are there circumstances in which you think minors should be treated as though they were adults? How much do you intend to curb that practice?
I want to redefine the way we look at minors and adults, and minors who commit crimes. In Mississippi, SPLC spearheaded the raise the age campaign for adults from 16 to 17. There’s no uniformity of kids being charged as adults in Mississippi. You really need more specialized courts to focus on the needs of kids and young adults and seek alternatives when necessary.
I don’t think that kids should be prosecuted for particular actions and behaviors: disorderly conduct, school fights. Currently we’re seeing kids arrested for school fights. One of the things that we focused on is that the juvenile detention centers the kids were being held at were increasing the likelihood that they would find themselves in the legal system. If you believe that the system has to punish and to rehabilitate—and most people understand that the juvenile system should look to rehabilitate individuals—we have to put in place the things to make sure that it doesn’t hurt.
A Jody Owens administration would not look to prosecute kids as adults unless crimes specifically involved those crimes that were more heinous in nature.
You also denounced the “school-to-prison pipeline,” and how it disproportionately affects Black children, in a 2015 op-ed in Politico. But as you wrote then, addressing this pattern also demands systemic changes beyond law enforcement practices, such as increased education funding. What powers would you have as DA to push for more systemic changes than what your office could do?
One of the things that’s missing in the larger decrease incarceration movement is progressive prosecutors who don’t mind being called progressive who are visible and active in policy-making. What I’ve seen, as someone who has lobbied the State Capitol in Mississippi, and worked in state capitols throughout the Deep South (in my role as the chief policy counsel I was coordinating efforts in Louisiana, Florida, Alabama, and Mississippi) is that the prosecutors’ association has been the voice of policy-making historically in this country. In doing so, they have looked to put more laws in the book to incarcerate more people. I feel it’s my obligation to continue to be involved in that conversation to propose alternatives to putting more people in prison.
I have spent time in every Mississippi prison, public and private. I’ve seen the behavior that’s happening. You don’t take a bunch of people who committed bad offenses at different levels, and put them all in the same place together, and underfund that system by not giving them resources and programming to be successful, and in many instances understaff those prisons as we have seen so often in Mississippi, and purposefully allow (as private prisons do) prisons to be run by gangs, and expect that when these individuals exit they will be better. If anything, you are creating a group of individuals who needed more help but you gave them less and put them in a place where they came out worse.
As a person who has been involved in the policy-making process, I think it’s important that we work with the prosecutors’ association to present an alternative view of being safer, without putting in more traps to continually unbalance a system that is already very unbalanced.
You were just speaking about Mississippi prisons. You have participated in lawsuits against detention conditions in the state. You said last year that “Mississippi is failing in its obligation to provide constitutional, safe prisons.” How do you think about the fact that as DA you would be playing, as part of your job description, a major role in placing some people in conditions you have denounced?
I think that having understood the conditions of Mississippi prisons, I am aware of what we are sending individuals to, and will therefore be more judicious in those sentences. That being said, I believe that prisons are necessary and there are people who have to go. Let’s say it like this. We have an imperfect system, which is the criminal justice system. We certainly have experience in litigating against one of those stages of imperfection, which is the prison system itself; individuals are not getting better. But while it’s not a perfect system, it’s the best system that we currently have, and when we have to use prisons, we will, and we have to use prisons for individuals and communities to be safe.
But I do think that there are a lot of individuals who don’t need to be in prison, whether it be for the reasons we previously discussed, for health issues or addiction. And there are certainly a lot of individuals in a state like Mississippi who don’t need to be in prison for the length of time that they are. We will work to make sure that in all instances justice is done relating to that, and hopefully be able to be impactful in turning that wheel back toward justice.
You mentioned restorative justice earlier, and as part of your campaign, you have proposed expanding its use as well as the use of what your website calls forms of “intervention outside the ‘traditional’ criminal justice system.” What interventions do you have in mind, and in what sort of cases do you think their use, and restorative justice programs, are most appropriate?
One of the laws that we worked on previously that was very effective was the juvenile restorative justice program, when you target the youthful offenders and you bring in the community. We’ve often found that while our prosecutors represent the state and the communities, that often times, for the non-major crimes, victims feel differently than prosecutors about what is justice and what we should use. I think we have to use the components of the mediation program. I was a mediator in Jackson, Mississippi when I first started practicing law, and I found individuals were much more willing to work out differences when they were brought together in different circumstances, and reason was applied. Teen courts, impact panels, I think that those are both things in which you look at what the restitution programs look like. Those are all factors that could be applied into a larger system of: is the punishment being effective, or are there things that will make communities more empowered to deal with their own conflicts?
One of the things we are finding lately is that individuals don’t know how to deal with conflict. Victim and offender dialogue has to be used to address the interests and needs of communities. Until you’re bringing those two things together, it goes back into the larger cycle — the larger cycle of individuals not talking, and prosecutors talking for victims and only using the proverbial hammer and nail, and more incarceration time because that’s the only tool they have. If we continue to see more programs in place, we will better develop the victim-offender relationship and increase the ability to use conflict resolution moving forward.
In discussing decarceration, you have focused some responses on “nonviolent crime,” as opposed to “violent offenders.” But this distinction is often overdrawn, and reformers also criticize sentencing guidelines for higher-level crimes as excessive. Are there ways you think ending mass incarceration should involve modifying some prosecutorial approaches for higher-level offenses?
Yes, in Mississippi, we should revisit the violent crimes that do not have a violent intent. For example, currently, the burglaries of an occupied dwelling and an unoccupied dwelling fall under the same offense with a range of up to twenty-five years, both are classified as violent crimes although one does involve a dwelling where no one is present.
How can a DA specifically target racial disparities and make sure reforms are implemented equitably? Mississippi has a racially unequal criminal legal system, and we know that criminal justice reforms that cut the incarceration rate don’t necessarily shrink racial disparities.
I’ve always thought that transparency is the key. If you look at the facts that people of races are committing crimes and drugs at the same rate but the inequities of what the incarceration population looks like is reflective of a bias of the system, we owe it to Mississippians as lawmakers to own our facts. My goal would be to highlight those disparities. You don’t have to be racist, you can just have a bias or prejudice that you don’t know is there. Or you can look at the results of the system and what’s occurring, and say “Wow, that’s happening and I’m contributing to it.” I think that’s how we get there: I think we show the transparency and publish the data, that our system is unjust and creates inequities. If we know that it’s creating inequities, we as prosecutors and as all policy-makers have an obligation to fix that inequity.
The DA is an elected position, of course. But approximately 10 percent of the state’s voting-age population cannot vote for its DAs because of the state’s harsh felony disenfranchisement laws. The rate is much higher still among African Americans in Mississippi. How do you think these rules impact the shape and legitimacy of the criminal legal system, and what would you want to see done about them?
That’s a great question. It’s a question that’s so significant and near and dear to me. As you may know, I brought a class-action lawsuit in Mississippi challenging the permanent disenfranchisement of individuals’ right to vote after they’ve served their sentence, and we have drafted and got sponsored legislation. When you permanently take away someone’s voting rights, you create a different class system. That also doesn’t make us safer because you take individuals and tell them they will never be whole in society, so how would you look at them to be whole?
One of the things we would do is that we would make sure that when we choose to charge an individual with an offense, that we’re looking at ensuring public safety but we’re also looking to ensure they reenter society with their voting rights. So if there are similar offenses, and one would not disenfranchise them, that’s the one we would use.
I have seen too often, as I’ve been working with individuals who have permanently lost the right to vote, they feel subhuman. I have clients now who say, “Mr Owens, I did it 20 years ago but I feel like I don’t matter in society because I can’t even vote.” I have clients who tell me they feel less of a man because they cannot vote. I think that we have an obligation as prosecutor to right some wrongs in places like Mississippi. I think among voters in Hinds County is a recognition that people shouldn’t permanently not be allowed to vote. At least in this county, if I’m elected district attorney we will certainly put a stop to that as a practice whenever possible.
Mississippi has a list of offenses that cause someone to lose the right to vote. So you are saying that when possible you would use an equivalent offense that is not on the list?
Absolutely. It’s a must. Voting rights are human dignity rights, to be a functioning part of society. I think there’s enough laws in the books where we can look at it. Look at Mississippi’s process, you have to have a pardon from the governor—and this governor has pardoned no one in his eight years— or you have to go through both chambers and multiple committees. It’s just not possible for lay people to go through that process. I think district attorneys have an obligation.
Justice is not just about conviction, because we realize that when individuals are engaged in society, they are more inclined to be productive individuals. When we ostracize individuals as we have in Mississippi—tens of thousands of individuals, permanently—you’re creating a class system that district attorneys can do something about. That will be one of my initiatives, with district attorneys who feel the same way. If enough people are aware of this, we can circumvent their racist, Jim Crow-era law that continues to punish individuals for decades.