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Wisconsin’s ‘Constitutional Crisis’ Is Forcing People To Sit in Jail Without a Lawyer

At least two people have killed themselves in jail after waiting for more than a week to be appointed a lawyer.

Illustration by Ariel Davis

Wisconsin’s ‘Constitutional Crisis’ Is Forcing People To Sit in Jail Without a Lawyer

At least two people have killed themselves in jail after waiting for more than a week to be appointed a lawyer.

Trequelle Vann-Marcouex just wanted a lawyer. In the days leading up to his pretrial hearing, in which the 18-year-old stood accused of taking part in an armed home invasion, Vann-Marcouex made repeated calls to the state public defender’s office—desperate phone calls, he said, that even 24 hours before the hearing were met with indifference.  

After waiting 12 days in the Wood County Jail in Wisconsin, no attorney had been appointed. At the hearing, the assistant district attorney told the judge that Vann-Marcouex had been unable to find an attorney.

“I have been calling the public defender’s office every single day, and they make it—I get on the phone with them, and they’d laugh,” Vann-Marcouex said.

Wood County Circuit Court Judge Todd Wolf proceeded anyway.

“Well you will have to deal with them on that. I can only do the hearings that are before me and that’s where I’m at. So—all right? That will be it. He will be remanded back to the custody of the jail,” Wolf said.  

Vann-Marcouex seemed bothered when he returned from his hearing and stayed quiet most of the day, other prisoners later told investigators.

At 11:20 p.m., a corrections officer looked in his cell and saw Vann-Marcouex lying down in his bunk, most likely watching TV, she said.  

At 11:23 p.m., Vann-Marcouex started weaving fabric torn from a sheet that covered his mattress around the cell bars.

At 11:28 p.m., he put a makeshift noose around his neck and hanged himself.

When the officer returned returned, nine minutes later, she saw Vann-Marcouex’s motionless body. She screamed for officers to bring scissors, jail-shorthand for what to do when a prisoner is discovered hanging. Officers started life-saving efforts, and paramedics rushed him to the hospital.

The state public defender’s office finally assigned an attorney to Vann-Marcouex’s case that day.

The two would never meet. Vann-Marcouex, a teenager who loved playing Fortnite and hoped to one day become an accountant, died at the hospital five days later.  

The right to counsel is a core protection for people facing criminal charges, but in Wisconsin, that right is largely theoretical. The state has one of the most underfunded indigent defense systems in the country, but the underlying problem is neither new nor unique to Wisconsin. Half a century after the U.S. Supreme Court established a right to counsel regardless of a person’s ability to pay in Gideon v. Wainwright,  chronically underfunded public defender offices bend under the weight of impossible demands and heavy caseloads across the country.

“The fundamental problem is that while the Supreme Court has said that everybody has the right to an attorney when there’s a possibility of a jail sentence, it’s an unfunded mandate. There’s no uniform system for providing the counsel. It’s left to the states and many states leave it to the counties,” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers.

“And there isn’t a great constituency,” he continued. “There’s no lobby really similar to what law enforcement has going and so many places around the country just woefully underfunded it. And Wisconsin is certainly right up at the top of the list.”

Wisconsin established its state public defender office in 1965. Initially created as a system to provide counsel in post-conviction appeals, the state public defender, or SPD, today operates as a private-public system of staff attorneys stationed at 35 offices across the state, with overflow cases contracted out to private attorneys.

In 2018, private attorneys handled roughly 40 percent of more than 140,000 cases SPD opened, according to Randy Kraft, spokesperson for Wisconsin’s state public defender’s office.

That number also included fixed-fee contracts for private attorneys who are paid per case instead of hourly. Attorneys who accept fixed-fee cases must have a law license in good standing with the Wisconsin Supreme Court and, depending on the case type, may need additional requirements, Kraft said.

Reimer said fixing the problem is more complicated than simply hiring more SPD staff attorneys. An SPD office must outsource some cases; the office cannot, for example, represent co-defendants due to the potential conflict of interest. While 23 states have public defense systems funded primarily by the state, almost all states have some blend of private-public systems for providing defense, according to Reimer.

But because Wisconsin pays just $40 an hour to private attorneys who represent poor clients—lower than any other state in the nation—finding attorneys willing accept cases has become increasingly difficult.

Another defendant hanged herself in the Wood County Jail just eight months before Vann-Marcouex, after the court delayed finding an attorney to take her case.

Many say the hourly fee is too low to cover basic overhead costs. A 2018 report by the Sixth Amendment Center, which advocates for defendants’ right to counsel, calculated the average overhead rate for attorneys in Wisconsin to be $41.79, suggesting private attorneys actually lose money by taking SPD cases.

The report warns that the current system often leaves the least experienced attorneys to deal with the most complex cases, and incentivizes attorneys to prioritize plea deals that may be against their clients’ best interests out of concern for time.

Worse yet are fixed-fee contracts, the report says, which set fees lower than the amount appointed attorneys earn, regardless of the time they spend on cases. The Sixth Amendment Center recommended that Wisconsin scrap fixed-fee contracts. Kraft said fixed-fee contracts are on the decline, but SPD is statutorily required to offer them.

As a result, people accused of crimes wait weeks or months, often in jail, while SPD searches for private attorneys willing to represent poor clients.

A lengthy stay in jail can mean losing work, housing, and, sometimes, lives. Another defendant hanged herself in the Wood County Jail just eight months before Vann-Marcouex, after the court delayed finding an attorney to take her case.

Even if a defense attorney cannot be found, the Wood County court will often move forward with the case. The judge in Vann-Marcouex’s case moved forward with the preliminary hearing despite the fact that Vann-Marcouex qualified for a public defender and wanted one.

The U.S. Supreme Court has ruled that at any critical stage of court proceedings in which a defendant’s liberty at stake—which would include preliminary hearings—a defendant is entitled to an attorney, according to David Carroll, executive director of the Sixth Amendment Center.

“The fact that they moved forward with a preliminary hearing without counsel when the defendant wanted an attorney is a clear constitutional issue,” he said.

Jonathan Barnett, the attorney appointed to Vann-Marcouex’s case on the day he hanged himself, said the practice in Wood County is to schedule unrepresented felony defendants for their preliminary hearing within the statutory time limit of 10 days for those who are in custody. A staff member for Wood County Clerk of Courts confirmed the practice is still in place.

It’s not clear if Vann-Marcouex knew he had been finally appointed attorney before he died. One cellmate told an investigator Vann-Marcouex hadn’t called the public defender’s office the day of his hearing “because he didn’t feel like it would get him anywhere.”

Vann-Marcouex told the same cellmate he “felt tricked into proceeding to his pretrial without representation,” according to investigators.

Kraft said SPD does not track how many people sit in jail awaiting an attorney. But a survey conducted in 2017 found significant delays in appointing counsel across the state.

In Marathon County, at the southern edge of Wisconsin’s Northwoods, it took on average 80 phone calls and 17 days for the public defender’s office to find a private attorney willing to take a case. SPD’s Ashland office made an average of 39 calls and defendants waited 24 days for an attorney.  

SPD legislative liaison Adam Plotkin told Wisconsin Public Radio his office has had to make up to 800 calls for some cases.

And because cases in rural counties draw attorneys from as far away as Madison and Milwaukee, courts in urban areas are starting to see a secondary effect, Kraft said. Urban court calendars get logjammed when attorneys travel to far-flung counties to take cases nobody else will.

In Vann-Marcouex’s case, Kraft said SPD staff members made over 300 calls before they found a private attorney willing to accept it. Because SPD represented one of Vann-Marcouex’s co-defendants, the office had to look for private counsel to represent him.

Illustration by Ariel Davis

There had been plenty of warning signs in Wisconsin before the situation reached this moment.

In 2011, when the Wisconsin Supreme Court denied a petition to raise the rates for court-appointed attorneys, justices cautioned that the state was heading toward a “breaking point.”

“The resources available for the defense of poor people accused of crime has fallen alarmingly, potentially compromising our constitutional responsibility to ensure that every defendant stands equal before the law and is afforded the right to a fair trial guaranteed by our constitution,” justices wrote in their order.

“If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.”

Eight years later, funding has remained stagnant.

Michele LaVigne, a law professor at the University of Wisconsin-Madison who was a public defender when the office created its trial division in 1978, said a constitutional crisis is no longer merely a risk—it’s long been a reality.

“They’re saying, well, this is a brewing constitutional crisis. No. It already is one. It’s been one for a long time,” LaVigne said. “Everybody knew 15 years ago there was trouble in River City on this one and the system was starting to fray.”

LaVigne said she has watched the state public defender’s office request additional funding for decades, only to have it clipped during the budget-making process by lawmakers who sidestepped the politically unpopular notion of giving additional money to attorneys who represented the state’s poorest defendants.

“It’s a monster problem that’s been skirted for all these years,” she said.

Carroll of the Sixth Amendment Center told The Appeal the problem in Wisconsin and across the country has been decades in the making.

“The 1990s saw the ‘tough on crime’ movement explode the number of cases in the criminal justice system, with three-strikes laws and mandatory minimums making each case more difficult to represent,” Carroll said. “Unfortunately, indigent defense funding did not keep pace. Now, the cost to provide adequate funding in one big jump is often more than a state can handle.”

Dysfunctional public defense has sometimes forced the system to grind to a halt. A Massachusetts court ruled in 2004 that poor defendants must be released within seven days—and cases against them dropped within 45 days—if no attorney had been appointed within that time frame. Days after the ruling, the state legislature passed a bill improving compensation for attorneys representing poor clients. Since 2004, the budget for attorneys representing poor clients has tripled. And in New Orleans, during a public defender funding crisis in 2016, a criminal court judge released seven people who were sitting in jail solely because they did not have a lawyer. On May 5, the New Orleans public defense office announced it would once again begin waitlisting clients due to underfunding.

Public defenders in many states are saddled with caseloads far above the amount recommended by the American Bar Association. As a result, they often have only a few minutes to meet with clients before representing them. That tilts the scales against people who can’t afford to pay an attorney.

Carroll noted that paying defense attorneys more won’t solve the problem without addressing the sheer volume of criminal cases moving through the courts.

“There’s more we could do than just throwing money at the public defense system,” he said. “We could create [conflict of interest] offices, decriminalize certain crimes, provide more diversion. But since the ’90s there hasn’t been a tremendous thirst for criminal justice reform. Either way, $40 an hour just isn’t going to cut it.”

If this funding crisis is not addressed, we risk a constitutional crisis that could compromise the integrity of our justice system.Wisconsin Supreme Court, 2011

The situation in Wisconsin has become so dire that prosecutors and judges have also spoken up. Poor clients’ cases are delayed for months until an attorney can be appointed, which affects prosecutors and witnesses as well as defendants, wrote Ruth Kressel, Ashland County’s assistant district attorney.

“This also impacts the rights of victims to have the cases resolved in a timely manner, and lends further frustration in cases involving a child victim,” Kressel wrote in a letter to the court.  

In June 2018, the Wisconsin Supreme Court raised the rate to $100 an hour from $70 for court-appointed attorneys, an option for people who don’t qualify as indigent but are too poor to pay for a private attorney, but said rates for private attorneys accepting SPD cases was a matter for the legislature to decide.  

The Wisconsin Association of Criminal Defense Lawyers has drafted a comprehensive bill, not yet introduced, that would give the division of SPD that assigns attorneys to cases its own budget line and would give private bar lawyers an independent voice in the budget process.

The bill also calls for what the association says are market-appropriate rates of $100 to $140 an hour, depending on the complexity of the case.

“We’re going to look at a couple of decades at least before it’s addressed again, and it’s just going to stagnate and we’re going to have the exact same problem again,” said Milwaukee attorney John Birdsall, who helped craft the comprehensive bill.

Beyond the dispute over hourly rates, the state of public defense in Wisconsin is facing a broader constitutional challenge. On behalf of all indigent defendants in Wisconsin, attorneys Blake Gross and Craig Haukaas of Ashland County filed a class-action lawsuit in February against the state, governor, and state public defender, arguing that Wisconsin has violated their clients’ right to effective counsel and a speedy trial.

“This is a straight up civil rights issue and we’re calling them out on it. And we believe we will prevail at trial. The state has violated the rights of our clients and every other person named and unnamed in the lawsuit,” Gross told The Appeal.

One such client, who Gross is representing but is not yet included in the suit, spent 35 days in jail before the court found Gross to take her case.

According to Gross, R.T., whose full name is being withheld to protect her privacy, was traveling to Northern Wisconsin with a man she had recently met when he and his friend started drinking and became abusive. R.T.’s friend landed in jail, and Gross said that under threat of violence she used a credit card that wasn’t hers to bail her friend out. She was arrested for identity theft and multiple charges of fraudulent use of a credit card.

After 35 days, Gross got R.T. out the day of her hearing on a signature bond—an agreement that sets defendants free without putting up money, with the promise they will return for future court proceedings.

Gross said getting released on signature bond is the exception, not the rule. Without an attorney to argue for bail reduction or a signature bond, people usually await trial behind bars.

Among other requests for relief, the suit is asking a federal court judge to declare that Wisconsin is violating the constitutional rights of defendants, to set a deadline for the state to modify the structure of its public defense system, and to award plaintiffs damages for mental pain and suffering as well as loss of employment.

In the end, R.T. pleaded guilty to a misdemeanor count of fraudulent use of credit card. The judge gave her credit for the time she spent incarcerated waiting for an attorney. She faces no further jail time.

This is a straight up civil rights issue and we're calling them out on it.Blake Gross, Wisconsin attorney

No one knows exactly what was going through Vann-Marcoux’s head when he decided to kill himself. But entering an adversarial system without an advocate to help navigate the byzantine path forward can be terrifying, especially when you’re stuck in jail, Gross said.

“Being thrown into that system without somebody who knows the ropes and knows how it’s going to work and can sit there with you saying ‘this is what’s going to happen, this is what’s going on, this is what we need to do,’ and to get up and advocate for you—it’s certainly not a situation I’d want to be in,” he said. “And I do this for a living.”

Vann-Marcouex’s case is now at the center of a wrongful-death suit, filed in February by attorney Dana Wachs and his partners on behalf of Vann-Marcouex’s family. The suit alleges that Wood County Jail knew Vann-Marcouex was suicidal before his death but failed to monitor him.

The lawsuit does not address a Sixth Amendment violation over Vann-Marcouex’s right to counsel. Wachs declined to speak in detail about the case but said in an interview that his firm was concerned about Vann-Marcouex’s lack of representation at his preliminary hearing.  

“This family has been completely victimized and it’s just a complete tragedy that’s occurred here,” Wachs said.  

It’s the second wrongful-death suit Wachs and his firm have filed in federal court against Wood County Jail.

The firm is also representing the family of Casey Teskoski, who records indicate was taken to jail in early December on a probation hold and received new charges while in custody for allegedly bringing in contraband and attacking an officer.

Barnett, the private attorney, had been appointed to both Vann-Marcouex and Teskoski’s cases more than 10 days after their arrests.

Barnett said he received a frantic call in December 2017 from one Teskoski’s family members informing him she had attempted suicide in jail. He planned to see her the next day, but by the time he arrived, jail staff told him she had been taken to the hospital, he said.

She died at the hospital five days later. She was 28.

“Any number of the people I talk to are in a state of panic,” Barnett said. “I like to think I have a good ability to calm people. In these cases I think about the fact that I could have done something had I been there. I could have talked them through it. I could have told them what was going to happen and given them some sort of comfort or understanding.”

North Carolina Jail Staff Accused Of Beating And Abusing Mentally Ill Veteran

A civil rights lawsuit claims officers pepper sprayed him, stripped him naked, and then surrounded him and beat him to death.

An autopsy report shows the extent of the man's injuries.
Courtesy of Matthew Sullivan

North Carolina Jail Staff Accused Of Beating And Abusing Mentally Ill Veteran

A civil rights lawsuit claims officers pepper sprayed him, stripped him naked, and then surrounded him and beat him to death.

When 54-year-old Army veteran Jerry Parker was admitted to the Wayne County Detention Center in Goldsboro, North Carolina, for breaking a window on his neighbor’s truck in May 2017, he told officers that “God told me to.” During and after his arrest, he was talking quickly and incoherently, signs that he was in the midst of a psychiatric emergency.

Instead of conducting a mental health screening or offering him treatment, detention officers allegedly pepper sprayed him, stripped him naked, and left him alone in a cell. Later, when they brought him to a shower, they surrounded him and beat him, according to a civil rights lawsuit filed in federal court last week. After that, the lawsuit claims, they hogtied him and shocked him with a stun gun. By the time he was brought to a hospital later the same night, he had been suffocated and had cardiac arrest. He was pronounced dead a day after his arrest.

“It’s something that was completely preventable,” said Matthew Sullivan, an attorney representing Parker’s 74-year-old mother, Margaret Jean Kelly. “They didn’t do what they should have done to keep this from happening.”

The lawsuit alleges that Wayne County detention officers, under the direction of Sheriff Lawrence M. Pierce Jr., ignored Parker’s psychiatric issues. Instead, the officers responded to his anger by repeatedly pepper spraying him, kicking him, stomping on him, punching him, and shocking him.

At one point when Parker’s mental state worsened and he grew upset, they decided to “hog-tie” him on his stomach by pulling his arms and legs behind his back and applying handcuffs, leg shackles, and a hobble restraint.

“This man was beaten pretty significantly,” Sullivan said. “Mr. Parker never regained consciousness.”

Sullivan said his office obtained video that showed the extent of the extreme abuse but is barred from releasing the footage at this stage. In photos of Parker’s body at the hospital obtained by The Appeal, he had serious bruising and bleeding across his head. The autopsy report attributed his death to cardiac arrest and traumatic brain injury caused by “blunt force trauma, physical restraint, pepper spray use, and conducted electrical weapon application.”

This man was beaten pretty significantly. Mr. Parker never regained consciousness.Matthew Sullivan, civil rights attorney

The lawsuit alleges that despite the prevalence of mental health issues in North Carolina jails, the Wayne County Detention Center had no mental health resources at the time of Parker’s arrest.

The psychiatric episode Parker experienced during and after his arrest fit a pattern of behavior that he typically treated with medication. Parker frequently had manic episodes where he would have frenetic energy and would not sleep for periods of time. He was also on medications for bipolar disorder and other physical ailments.

“Despite Mr. Parker’s serious medical needs, the detention officers misperceived him as a disruptive inmate or an intoxicated inmate beyond reasonable comprehension levels,” the complaint says.

A representative for the detention center declined to comment on ongoing litigation.

The complaint also names Southern Health Partners, the for-profit corporation that provides  medical and mental health services inside the Wayne County jail, one of more than 200 county and city correctional facilities it contracts with in 15 states. The corporation has been named in other lawsuits over inadequate treatment in jails and wrongful deaths, including a lawsuit filed last week in Putnam County, Tennessee, where it is being accused of “deliberate indifference to medical needs” and the jail is accused of using excessive force.

Parker is not the only person to die recently while being held at the Wayne County Detention Center, a facility designed to hold roughly 200 people. In February, 42-year-old Thomas Jason Hall was found dead in his cell where he was awaiting trial. According to a local news report, no foul play is suspected but the North Carolina State Bureau of Investigation is investigating.

Last year, 44 people died in North Carolina jails—more than any other year since the state began tracking jail deaths in 1997, according to the Raleigh News & Observer. Though a portion could be due to better reporting of deaths, experts also attributed the problem to an increased number of detainees with mental health and drug addiction issues.

Nearly 15 percent of men and 30 percent of women booked into jails have a serious mental health condition, according to the National Alliance on Mental Illness, though many jails are poorly equipped to provide mental health treatment and instead respond to any erratic behavior with violence. In Virginia, for example, officers in the Fairfax County jail shackled 37-year-old Natasha McKenna, wrestled her, shocked her with a stun gun, and attempted to put her in a restraint chair. In response to the outcry over her brutal beating, which was caught on video, the county started a program to provide treatment to arrestees with mental illness who would otherwise be detained in a jail.

Sullivan and his co-counsel, Carlos Mahoney, said that if Wayne County Detention Center had adequate mental health services, Parker’s mother could have celebrated Mother’s Day last weekend with her son. Instead, the day was especially hard for her as she still mourns his absence.

“She relied heavily upon Jerry,” Sullivan said. “Whenever she needed something, Jerry was the one who provided it for her. He was kind of her go-to person to do that, and that’s what she was anticipating he was going to do for the remainder of her life.”

New Orleans Bail Companies Owed Millions In Illegal Fees. Now They May Get To Keep The Money.

The bail bonds industry was caught overcharging 50,000 families $6 million over 14 years, according to SPLC.

Flickr/Paul Sableman

New Orleans Bail Companies Owed Millions In Illegal Fees. Now They May Get To Keep The Money.

The bail bonds industry was caught overcharging 50,000 families $6 million over 14 years, according to SPLC.

In 2014, Jerome Morgan’s murder conviction was overturned after it was proved that the prosecutors in his case withheld evidence and two people admitted they had been coerced into falsely accusing him. Morgan, who spent 20 years in prison from the time he was 17, was looking forward to finally going home to New Orleans.

But, as he recently told a Louisiana state Senate committee, “The nightmare that I endured did not end.” Instead, the Orleans Parish district attorney moved to prosecute him again for the same crime. His friends and family couldn’t afford to pay his $250,000 bail up front to get him out of jail. Even after it was reduced to $25,000, Morgan sat in jail for 18 days while they scraped together enough money to pay the 13 percent bond premium that New Orleans bail companies charged to get someone out of jail.

“I felt ashamed that I had to ask them to raise money for me because they had already gone through enough agony and humiliation,” Morgan told the committee.

Eventually he was released from jail and the district attorney later dropped the charges. Later, because of an order issued in February by the commissioner of the Louisiana Department of Insurance, Morgan found out the bail company that his loved ones had used to get him released had overcharged them by $250.

Louisiana bail bond companies are legally allowed to pocket up to 12 percent of the bond amount when they put up the money to get someone out of jail. But the state insurance commissioner concluded that New Orleans bail bond companies have been overcharging people for years. The companies started tacking on an additional 1 percent fee to cover an increase in licensing fees after 2005. The Southern Poverty Law Center (SPLC), which first alerted the insurance commission to the issue, estimated that bond companies had overcharged about 50,000 families by $6 million total over 14 years. The insurance commissioner ordered the companies to refund these families by June 1.

But on April 23, the state Senate passed legislation that clears the bail bond industry from having to repay any clients for overcharging them. The legislation passed out of the House insurance committee on Tuesday and now awaits a full vote.

This is wrong and it’s cruel. We should be supporting the commission’s effort to hold the bail bond industry accountable.Jerome Morgan, wrongfully convicted New Orleans resident

The decision to allow the bond companies to keep the money undercuts regulators’ authority, Jon Wool, director of justice policy at the Vera Institute of Justice’s New Orleans office, told The Appeal.

“The insurance commissioner did what we expect our regulatory bodies to do, which is ensure the agencies they regulate are following a law, and when they find that they are not following a law, require them to take corrective action,” Wool said. “That’s an incredibly important principle.”

“All I can do is shake my head in disbelief,” Morgan said. “This is wrong and it’s cruel. We should be supporting the commission’s effort to hold the bail bond industry accountable.”

Every year, bail bond companies make millions off of New Orleans residents; the figure was $4.7 million in 2015.

“One percent sounds small, but every year that was about $500,000 in overcharges,” Micah West, a staff attorney at SPLC, pointed out.

West argued that the New Orleans senators who pushed for this legislation are harming their own constituents.

“This is a real opportunity for the New Orleans delegation,” he said. “Are they supporting their constituents or are they supporting the bail bond industry?”

The average family is most likely owed about $100, according to SPLC, which is significant for someone living in poverty. “That is money that the city’s Black families and low-income residents could have been spending on transportation or investing in education and their family’s healthcare and mortgages and stable housing,” West said. “And instead it was money that was being taken from their pockets and being given to these private companies.”

Some families simply couldn’t afford to pay 13 percent of a bond amount up front. For those people, their loved ones faced staying in jail until their hearings instead of returning to their jobs, children, and lives.

The bail bond companies say they never knew they couldn’t pass the extra fee on to consumers. In the hearing where Morgan testified, Senator Troy Carter, a main sponsor of the legislation, argued that companies “may have been erroneously misled,” which “makes them somewhat of a victim.”

It was money that was being taken from their pockets and being given to these private companies.Micah West, staff attorney at SPLC

In 2005, the state legislature began charging New Orleans bail companies an extra 1 percent fee to be diverted into the court budget, essentially increasing the annual licensing fee bondsmen pay to 3 percent. (That scheme, in which a cut of each bail bond was funneled back, in part, to judges setting the bail amounts, was ruled unconstitutional by a federal judge last year.) As a result, their net profit on each bond was expected to drop.

But instead, bondsmen simply started charging New Orleans residents an extra 1 percent of the bail amount. “The increased fee was to be absorbed by the industry, not passed on to consumers,” Commissioner of Insurance James Donelon wrote. Charging 13 percent “is not permissible.”

Carter attributed the problem to a drafting error in the original bill that added the extra 1 percent fee for bail bondsmen, arguing the legislature meant for the fee to be passed on to consumers. Two representatives of the Association of Louisiana Bail Underwriters testified that they, too, believed the fee was meant to be passed on, not absorbed by bond companies. (Carter and the bail underwriters group did not respond to a request for comment.)

At first the senators sought not only to shield the companies from repayment, but to legalize the bail bond industry’s conduct by increasing the amount that companies could legally charge New Orleans residents to 13 percent. That failed, but the Senate kept the provision that denies compensation to overcharged clients.

The issue now moves to the House, where a Republican representative had introduced a version that would increase the amount a bail bond company can charge in New Orleans to 15 percent. That proposal is no longer under consideration. But when an amendment was offered before a committee vote to ensure that bail bond companies still have to compensate those who were overcharged, it failed 8-3.

Wool thinks the courts will ultimately decide the issue. The bail bond industry has already sought an administrative law hearing on the insurance commissioner’s directive.

The courts may also decide whether the legislature has the authority to undo the insurance commissioner’s order. West said the SPLC is prepared to take legal action on that question. “We think [it] violates the separation of powers,” he said, and that it undermines “the rule of law.”

This is not the first time that bail bond companies in New Orleans have been accused of overcharging clients. In a 2017 lawsuit, the SPLC alleged that two bond companies charged hundreds of dollars in extra fees, and sometimes collected those fees through kidnapping and extortion.

But the bail bond industry is powerful in the city’s politics. Blair Boutte, who owns Blair’s Bail Bonds, also owns political consulting firm B3 Consulting, which has run campaigns for local politicians and makes frequent contributions, including $2,500 to Troy Carter in 2015.

Advocates hope that the interests of residents will prevail over those of the bail bond industry. “The legislature should not burden families with the consequences of this overcharging,” Wool said. “They should be freeing New Orleans families from these kinds of financial burdens, rather than bailing out bondsmen.”

‘I Can’t Afford It and I Never Will Be Able To’

Florida is poised to pass a law that imposes a ‘poll tax’ on thousands of formerly incarcerated people.

Lance Wissinger and Neil Volz shake hands after turning in their voter registration forms at the Lee County Supervisor of Elections office on January 08, 2019 in Fort Myers, Florida
Joe Raedle/Getty Images

‘I Can’t Afford It and I Never Will Be Able To’

Florida is poised to pass a law that imposes a ‘poll tax’ on thousands of formerly incarcerated people.

If 31-year-old Florida resident Erica Racz wants to vote, she might have to pay $57,688.

That’s the amount of court costs and fees she owes the state stemming from her felony drug conviction when she was 21 and several misdemeanors she racked up before her time in prison.

“I can’t afford that,” Racz told The Appeal. “I can’t even afford $1,200 of court fees, let alone that huge number. I’m in debt from student loans. I’m a single mother. I completely turned my life around, but I can’t afford it and I never will be able to.”

Racz testified before the Florida House in April as the legislature debated bills that would require people with felony convictions to pay off all fines, fees, court costs, and restitution before they would be eligible to regain their voting rights. On April 24, the House voted 71-45 along party lines its version of the legislation. The Senate is poised to vote on its version of the bill before Friday.

In November 2018, Racz was one of roughly 1.4 million people who call themselves “returning citizens” who regained the right to vote. On Election Day, 65 percent of Floridians approved Amendment 4, a constitutional amendment that restored voting rights to state residents with felony convictions except those convicted of murder or felony sexual assault.

Supporters of the amendment said there was no need for legislative action to enact it. But if the Senate approves the House’s legislation, hundreds of thousands of returning citizens may soon be barred from regaining their voting rights.

The House, the more conservative of the legislative chambers, drafted legislation that would significantly restrict the number of people eligible to regain their right to vote. The Senate meanwhile, proposed a bill that would only require the payment of restitution and not court fines and fees that have been converted to civil liens.

But this week, members of the Senate expressed willingness to adopt the House’s restrictions.

“It’s fair to say it encompasses the ideas by which they proposed this amendment, and publicly supported this amendment,” Senator Jeff Brandes told the Miami Herald about the House’s version of the legislation.

We are setting a bad precedent when it comes to the people of Florida trusting us to do what’s right.Shevrin Jones, Florida House Representative

According to a memo from the Sentencing Project and the American Civil Liberties Union, an estimated 40 percent of individuals who regained their rights had not completed restitution payment and another unknown but potentially large number of formerly disenfranchised people in Florida still owe fines and fees that would prevent them from regaining their right to vote. Almost none of them are expected to ever pay off those fines. As Slate reported, the Florida Court Clerks and Comptrollers, a group that releases annual summaries, said that 83 percent of court fines levied between 2014 and 2018 had “minimal collections expectations.”

Neil Volz, the political director of the Florida Rights Restoration Coalition, said if the bill were to become law, it would undermine the amendment.

“Watching the debate and knowing that we could do better and that we could move our state forward in a more bipartisan way was disappointing to see,” Volz told The Appeal after the House vote.

Volz, a former Republican congressional staffer who worked with Democrats to pass Amendment 4, said it was especially concerning to see the House vote along party lines.

“What was so wonderful about Amendment 4 is that it was people-focused and community-focused and bipartisan, not partisan and ideological,” he said. “To see a debate go from where we were in November to where we were [the night of the House vote] was tough on the heart.”

Racz has felt a mix of emotions watching the passage of the amendment in November and fighting the legislature to preserve her rights.

“For so long, I didn’t feel like I belonged,” she said. “And then this day came that was like, ‘You guys can vote. You can feel normality again. You can make a difference. You have a reason to be here.’ And then it’s just gone. It’s heartbreaking. It’s scary.”

Democratic lawmakers criticized the bill. Senator Perry Thurston told News Service Florida he believes “Florida does not want certain people to vote.” During debate in the House last week, House Minority Leader Kionne McGhee said the legislation “attempts to undermine the people of this great state.” Representative Shevrin Jones also pointed to the more than 5 million Floridians who voted to restore rights.

“We are setting a bad precedent when it comes to the people of Florida trusting us to do what’s right,” he said.

But Republican Representative James Grant, who sponsored the bill, said the measure doesn’t disenfranchise anyone. He said people disenfranchised themselves when they chose to commit crimes.

In addition to the requirement that fines and fees are paid, the House version of the bill broadens the categories of crimes that would exclude someone from rights restoration. While the amendment said people convicted of felony sexual offenses would be excluded, the bill includes dozens of crimes in that category that voting advocates say should not be considered felony sexual offenses, like prostitution or the establishment of an adult entertainment store within 2,500 feet of a school.

The Senate bill could also broaden the definition of murder to include crimes like manslaughter, vehicular homicide, and attempted murder.

All together, the new restrictions on voting will affect a huge number of the 1.4 million people who thought they had regained their civil rights. Advocacy groups and Democrats in the legislature have said they expect to see a court challenge if the strict fines and fees requirement passes.

“I talk to people who are impacted by the fines and fees portion of this bill every day,” Volz said. “There are thousands of people in our state who would be impacted by where these lines are drawn.”

Trans Woman Jailed and Harassed Because She Didn’t Pay A $15 Seatbelt Fine, Lawsuit Says

Sierra Castle alleges she faced discrimination and harassment after being placed in a men’s holding cell in the Cobb County, Georgia, jail.

Getty Images/Stock Photo

Trans Woman Jailed and Harassed Because She Didn’t Pay A $15 Seatbelt Fine, Lawsuit Says

Sierra Castle alleges she faced discrimination and harassment after being placed in a men’s holding cell in the Cobb County, Georgia, jail.

On March 28, 2018, Sierra Castle called the police. She wanted to report to the Cobb County Police Department in Georgia that her car had been damaged a week earlier. When she met an officer in the parking lot where the damage had taken place, the officer ran her name to check for warrants and found a bench warrant because she had failed to pay a $15 seatbelt fine.

She was arrested. Castle recalls telling the arresting officer that she was transgender. But she was brought to a holding cell in the men’s area of the Cobb County Adult Detention Center before being confined in a solitary unit for over 24 hours.

Now, Sierra Castle is suing Cobb County, Sheriff Neil Warren, and Col. Janet Price over her experience at the Cobb County jail. She accuses them of violating her constitutional rights as well as causing intentional emotional distress and discriminating against her in violation of the Americans with Disabilities Act. According to the lawsuit, while going through the intake process, a male correction officer informed her that she would be “considered male while in jail” due to her being transgender, as he gave her a pat-down search. Soon after, she was taken to the holding cell.

COs continued to treat Castle as if she were a male detainee. When she asked to make a phone call, they would allow her to use only the male-designated phones. When she refused, she was not allowed to make a phone call at all, the complaint says. She says she was also harassed by other detainees each time she left her cell or as male detainees would peer into her cell as they were walking by. The lawsuit said Castle had to deal with “sexually-degrading, harassing, abusive and threatening comments.”

Dominique Morgan, national director of Black and Pink, which supports LGBTQ people in prison, said the organization hears stories of similar treatment from trans people all over the country.

“Either these women are having to choose to be in solitary confinement—no matter what the system calls it, administrative segregation, it’s separation from general population—or they’re being put in spaces where their body is inherently in danger,” Morgan told The Appeal.

A male correction officer informed her that she would be “considered male while in jail” due to her being transgender, as he gave her a pat-down search.

Recent lawsuits have exposed and challenged trans discrimination occurring in jails and prisons across the country. In California, Candice Crowder sued the California Department of Corrections and Rehabilitation this year after she says she experienced verbal and physical abuse by both prison staff and other prisoners and was isolated in solitary confinement. In Colorado, after Lindsay Saunders-Velez was sexually harassed and assaulted in a male prison, she sued the state Department of Corrections for failing to protect her from cruel and unusual punishment. The ACLU of Pennsylvania sued the state’s Department of Corrections in 2016 on behalf of Niara Burton, who was transferred to seven male prisons and endured sexual abuse from guards and fellow prisoners. Illinois finally agreed late last year to move Strawberry Hampton, a trans woman who faced abuse and harassment at a men’s prison, to resolve a years-long lawsuit. This month, Illinois also moved Janiah Monroe to a women’s prison after she filed a lawsuit.

When one sympathetic staff member in Cobb County noticed Castle’s treatment, she placed a barrier over Castle’s cell door—but that meant Castle was in complete isolation. The barrier “prevented [Castle] from being able to see anything other than the inside of the holding cell for a number of hours,” according to the lawsuit.

As Castle’s time in jail continued, she tried to get the attention of jail staff by ringing the intercom button. She tried to alert jail staff that she had medication she needed to take each morning. However, according to the lawsuit, Castle alleges she was largely ignored and was not provided medication. Later that day, Castle was released after someone paid her fine.

Most of the treatment that Castle had to endure, according to the lawsuit, is against the sheriff’s own policies and federal standards intended to end sexual abuse in prisons and jails. In 2017, Prison Policy Initiative evaluated these policies regarding trans prisoners in 21 states, including California and Georgia. According to the report, Georgia violated Prison Rape Elimination Act standards by failing to consider trans people’s views when making housing decisions as well as not receiving consent before isolating a trans person in solitary confinement.

Recent deaths at the Cobb County jail have raised questions on the treatment of people incarcerated there. In February, 31-year-old Jessie Myles died after being arrested three days earlier. In March, Bradley Emory was found unresponsive after his father called the prison multiple times to warn about Emory’s suicidal ideations.

The sheriff’s office declined to comment due to pending litigation.

For many trans people behind bars, having outside support can be a life saver, Morgan explained. He said the transphobia that many experience within the criminal legal system is also constant in society as a whole.

“The same atrocities that trans women are experiencing in our community on a daily basis, they’re navigating inside of a prison system without the ability to get up and go, or run away, or create their own self space. They’re at the will of these institutions,” Morgan said.

“Because we don’t see their womanhood as womanhood, who they are is invalidated.”

New Orleans’s Youth Jail Faces Overcrowding Crisis as D.A. Targets Kids

The Orleans district attorney has said that violent youth are the city’s biggest crime problem.

Orleans Parish District Attorney Leon Cannizzaro Jr.
Orleans DA press release

New Orleans’s Youth Jail Faces Overcrowding Crisis as D.A. Targets Kids

The Orleans district attorney has said that violent youth are the city’s biggest crime problem.

Violent crime rates in New Orleans are the lowest they’ve been in decades, but according to Orleans Parish District Attorney Leon Cannizzaro Jr., the “quality of life in New Orleans is being deeply affected by the scourge of juvenile crime.”

Cannizzaro, who has served in the city since 2009, frequently speaks out about what he sees as an increase in violent youth. “The revolving door we complain about at the adult jail has nothing on the cartoonish speed of the one spinning at Juvenile Court,” he said in February. His office opened 735 juvenile felony cases in 2018.

The district attorney has used this rhetoric to justify his practice of charging an increasing number of juveniles as adults, and despite efforts to end the practice, the city continues to hold kids in adult jail.

City officials told a local reporter that so far in 2019, almost 250 children have been arrested for crimes ranging from car theft to murder. With an increase in arrests of children, the juvenile detention center has become overcrowded, forcing a growing number of children to be detained with adults.

In 2015, the City Council passed and the mayor approved an ordinance to provide 12 beds in the juvenile detention center, known as the Youth Study Center, specifically for juveniles who are under adult jurisdiction. The following year, the city unveiled its expanded juvenile jail. Yet despite an effort to keep kids awaiting trial in a separate facility, the juvenile jail is overwhelmed and understaffed.

These conditions in the jail are extremely harmful to children, said Rachel Gassert, the policy director for the Louisiana Center for Children’s Rights. Even more harmful, she said, is moving children to adult jail.

“It’s very concerning that when the juvenile detention center reaches capacity, instead of asking whether there are children that can be released, the solution is simply to move those who can legally be moved and putting those kids in a dangerous situation,” she said.

While New Orleans is roughly 60 percent Black, the juvenile arrest rate is almost always 100 percent Black, and almost all of the children prosecuted as adults are Black.

In the past, housing children in the adult jail has had disastrous consequences. In October 2016, Jaquin Thomas used a mattress cover in his cell in the New Orleans jail to suffocate himself. The 15-year-old died while awaiting trial on charges of second-degree murder and aggravated burglary.

His family immediately questioned why a child would be held in an adult jail. Research shows that children in adult jails are 36 times more likely to die by suicide than those housed in juvenile facilities.

Gassert said Cannizzaro is “focusing on crime spiking as a means of fearmongering to justify harsher policies and practices.”

Gassert and other advocates for children in New Orleans dispute the allegation that crime among children is spiking. While juvenile arrests and prosecutions of minors for violent crimes have increased in the past three years, Gassert argues that long term trends show juvenile crime has been decreasing in New Orleans and around the country. According to LCCR data, there was an increase in juvenile arrests in the city from 2017 to 2018, but most of the children were charged with nonviolent property offenses, such as car burglary. Violent crimes by children make up just 1.6 percent of all arrests in New Orleans.

“This fearmongering is likely meant to justify the DA’s severe treatment of young people, including his practice of prosecuting children as adults,” Gassert wrote in a letter to The Advocate.

By framing children as predators, Cannizzaro is also playing into racial stereotypes, Gassert said. While New Orleans is roughly 60 percent Black, the juvenile arrest rate is almost always 100 percent Black, and almost all of the children prosecuted as adults are Black.

“It raises the question of how Black children are viewed by the justice system in New Orleans and the question of whether they are considered children,” Gassert said.

If there has been a recent uptick in nonviolent crimes committed by children, advocates say there are methods to address the issue other than locking kids up. Children who have spent time in jail are more likely to commit crimes in the future, so the Louisiana Center for Children’s Rights advocates for alternatives such as restorative justice interventions and other programs aimed at children before they offend.

“Instead of arguing if we’re being too lenient or too harsh on kids, what we should be doing is asking if what we’re doing is effective,” Gassert said. “If the DA is concerned about a revolving door at Juvenile Court, locking kids up only makes it spin faster.”

Alabama Prisoners Say They’ve Been Punished For Trying to Reduce Violence

A wave of hunger strikes hit Alabama prisons as DOJ released a report calling the facilities “unconstitutional.”

Photo illustration by Elizabeth Brown. Photo courtesy of the Alabama Department of Corrections Facebook page.

Alabama Prisoners Say They’ve Been Punished For Trying to Reduce Violence

A wave of hunger strikes hit Alabama prisons as DOJ released a report calling the facilities “unconstitutional.”

The videos are grainy and shot through cell bars, but prisoners can be seen slumped on the ground outside, their arms tied behind their backs, with dark spots that appear to be blood on their white uniforms. One man on the ground appears to be bleeding from his head.

“The riot team, they just beat the folks to death,” someone says in one video. “Man that man is bloody as f–k right there,” a voice says in another video.

The 2015 videos purportedly showed the results of a shakedown in Alabama’s St. Clair prison. They are part of a series of YouTube videos posted under the account Free Alabama Movement by people incarcerated in the state and their supporters. The videos, which began appearing in 2013, reveal the inhumane conditions inside Alabama’s prison system and feature interviews with prisoners about their experiences in the criminal justice system and oversentencing in the state.

Violence in Alabama prisons grabbed national attention earlier this month when the Department of Justice issued a scathing report detailing how overcrowding, dismal conditions, a lack of staff, and deliberate indifference from prison officials contributed to rampant unchecked violence, sexual abuse, and extortion. But prisoners have tried to expose this reality for years.   

“In particular we have reasonable cause to believe that Alabama routinely violates the constitutional rights of prisoners housed in Alabama prisons by failing to protect them from prisoner-on-prisoner violence and prisoner-on-prisoner sexual abuse, and by failing to provide safe conditions,” Assistant Attorney General Eric S. Dreiband and three U.S. attorneys wrote in a letter to Governor Kay Ivey.

This was not news to the people inside the facilities. Many Alabama prisoners say they have been punished for trying to improve these conditions and reduce violence. Dozens of prisoners have organized with the Free Alabama Movement, a prisoners’ rights group that calls for improved conditions, sentencing reforms, and an end to prison slavery, and Convicts Against Violence, a group of incarcerated people who practice peacekeeping and other de-escalation tactics. These organizers work with younger prisoners in their dorms as well as the leaders of the various gangs inside prison to de-escalate tensions and avoid conflict.

Recently, 10 Alabama prisoners involved with Convicts Against Violence or the Free Alabama Movement went on hunger strikes to protest being moved to solitary confinement. The men were put into solitary confinement after a massive raid in February at St. Clair. The raid enlisted 300 law enforcement officers to shake down the prison for contraband. During the raid, about 30 men were moved from St. Clair to Holman prison.

Nine of the 10 hunger strikers were placed in solitary as a result of the raid. None of the men was given a reason for the move, and none had any infractions. The Alabama Department of Corrections said the move was a “preventative measure.”

Many Alabama prisoners say they have been punished for trying to improve prison conditions and reduce violence.

Kinetik Justice, a co-founder of the Free Alabama Movement, was the first prisoner to go on a hunger strike days after being placed in solitary at Holman. His main demand was to return to the general population—which the Corrections Department granted a week later.

Afterward, eight other prisoners who had been moved into solitary at Holman began hunger strikes. They demanded two things: the reasons why they were placed in solitary and to be returned to the general population.

All but three of the hunger strikers are back in the general population. Officials at Limestone Correctional Facility began force-feeding one prisoner, Kenneth Traywick, on April 21, after he refused food for two weeks to protest being moved to solitary confinement. He demands to be moved to the general population, to be transferred out of Limestone, for the Corrections Department to stop his “retaliatory transfers” from prison to prison, and an end to the use of solitary confinement in Limestone’s C block.

“For prisoners who have had all their autonomy and humanity stripped away, all they have is their bodies and spirits, so hunger strikes are one of the only nonviolent tools that they have to expose the system that is oppressing them,” said Mei Azaad, an organizer with Fight Toxic Prisons. Azaad does support work for people incarcerated in Alabama.

Alex (not his real name), who is incarcerated at Holman prison, said he spoke with some of the hunger strikers. He says the conditions they were placed in were unsanitary and lacked necessities.

“They were just put in the cell with no soap, no toiletries, no toothbrush, no nothing—nothing but a mattress. Some of them didn’t even have a sheet or blanket,” Alex told The Appeal. “They were transferred from St. Clair to Holman with nothing. The COs [corrections officers] took all their property. They were left in there for about a week, I think, before DOC even gave them any tissue.”

After the other eight Holman prisoners went on hunger strikes, the Corrections Department cut off the water in their cells. That meant that not only were the prisoners cut off from drinking water when they wanted, they also couldn’t flush the toilets in their cells.

“They was forced to stay in a cell with urine in the commode and defecating in the toilet and leaving it there,” Alex told The Appeal. “When they did cut the water on a day or two later, they tried to flush the toilet, but it overflowed. They didn’t get anything to clean up the cells.”

Members of the Free Alabama Movement and their supporters fear that the moves to solitary confinement are part of a larger strategy by corrections officials to separate well-established, older, respected prisoners from the general population. Supporters say that the Corrections Department will often move peacekeeping organizers to solitary confinement or transfer them to another prison when they see those prisoners start to gain influence.

If you don’t have people in leadership … who those inmates will actually look up to and respect, then you’re going to have nothing but total chaos and destruction.Alex, an organizer for Convicts Against Violence and the Free Alabama Movement

In 2016, Kinetik wrote an essay on the Free Alabama Movement’s website titled “The Holman Project,” in which he wrote that prison officials were moving respected, older prisoners in order to stoke violence.

“For the past several months a ‘swap out’ transfer program has been implemented in which older, mature and responsible, influential and respected prisoners have been sent away from Holman, only to be replaced with younger … and misguided youth,” Kinetik wrote.

“Dormitories have become ‘WAR ZONES’ where there is no security. As a result, many of these children have banded together in groups in order to protect one another from one another—with bloody and tragic results.”

Alex, an organizer for Convicts Against Violence and the Free Alabama Movement who asked to be identified only by his first name, has been transferred to nearly a dozen different prisons in Alabama. He said he thinks this practice of repeated transfers by the Corrections Department destabilizes prisons and contributes to the violence in those facilities.

“When you live in an environment that’s congested with a bunch of men who’s taken away from society for many years, possibly the rest of his life, most people don’t have good attitudes,” Alex said.

“When small things happen, they get blown out of proportion, and that’s when violence breaks out. So if you don’t have people in leadership … who those inmates will actually look up to and respect, then you’re going to have nothing but total chaos and destruction.”

The Alabama Department of Corrections did not respond to requests for comment on questions regarding the hunger strike, water cutoffs, and transferring older prisoners.

At the end of the report, the Department of Justice notified the state that they can file a lawsuit 49 days after releasing the report. The DOJ’s recommendations include hiring 500 additional correction officers, transferring prisoners to facilities outside of the Alabama Corrections Department, revising disciplinary processes so that they do not punish people subjected to and reporting abuse, and implementing cell and prison shakedowns so that 15 percent of all housing units are searched each day. The report also recommended repairing and replacing all broken locks in Alabama prisons within 30 days after being identified and installing cameras throughout the prison system within six months.

Many people say they doubt the DOJ’s recommendations will fix the longtime issues in Alabama’s prisons.

“Having more video cameras doesn’t actually make anyone safer, it just makes it documented,” Azaad said. “But if that is still in the hands of the people who are in power, who already don’t care about the violence right now, or already are instigating violence, just having it on record doesn’t inherently do anything.”

Organizers worry some of the proposals could make life more difficult for prisoners. The DOJ has recommended increasing regular raids like the one that landed organizers in solitary confinement. Ivey has billed the construction of three new megaprisons in Alabama as a solution to the ongoing human rights crisis in the state’s prisons.

Jenny, a mother of an Alabama prisoner who asked to be identified by her first name only, said she was skeptical that the DOJ’s investigation and involvement will actually help the people facing abuse and unsanitary conditions. She said Alabama officials might use the DOJ report to scare residents into supporting more prisons.

“What I want to know is, are you gonna shut these other prisons down?” she asked. “Don’t just build new prisons to build new prisons. The prisons aren’t what’s killing our men and women. COs and the way that everything is set up, the violence, that’s what’s killing them.”

”What are they going to do about it? And how long are they going to sit there? And how many more of our men and women have to be slaughtered in there?”

How Jails Are Replacing Visits With Video

Two sheriffs in Missouri have cut off all in-person visitation in favor of costly video technology.

Prison Policy Initiative

How Jails Are Replacing Visits With Video

Two sheriffs in Missouri have cut off all in-person visitation in favor of costly video technology.

For decades, friends and relatives of incarcerated people have traveled to jails to communicate with their loved ones face-to-face through a glass barrier.

But increasingly, jails across the nation are cutting off these visits. Instead, all communication must take place through a digital screen. On March 18, the Newton County Sheriff’s Office in Missouri announced that, effective immediately, no in-person visits would be permitted. Visitors to the jail would use a video portal in the same area where visitations had always taken place. But the person they came to see would remain in the jail common spaces at a different video portal. Incarcerated people could still meet with one person face-to-face: their attorney.

The move follows a similar decision in nearby Greene County, which encompasses Springfield. James Craigmyle, public information officer for the Greene County Sheriff’s Department, told the Joplin Globe that replacing visits with video creates a safer environment because officers do not have to transfer prisoners to and from the visiting area.

Chris Jennings, Newton County’s sheriff, said that because the jail has to devote fewer resources to such monitoring, it has expanded visitation from three days a week to five.

Newton County’s video platform, called CIDNET, is provided by Encartele, a private company that specializes in prison telecommunications. Although video calls that visitors make inside the jail are free, calls made from outside are not. Video calling from home in Newton County costs 40 cents a minute—more than the 31 cent fee for phone calls. The platform also offers instant messaging for 10 cents a minute.

The option of video calls from home can be financially beneficial for families and friends. In-person visiting is often expensive and onerous—sometimes prohibitively so. Visitors must factor in the costs of lost wages, childcare, food, accomodation, and other travel-related expenses.

But the technology is increasingly used as a justification to eliminate in-person visits. According to a 2015 report, 74 percent of jails that adopted video visitation subsequently banned in-person visits.

Video calling from home in Newton County costs 40 cents a minute—more than the 31 cent fee for phone calls. The platform also offers instant messaging for 10 cents a minute.

Wanda Bertram, a communications strategist at the Prison Policy Initiative, estimates that over 600 jails across the nation have implemented the technology, though not all of them have banned in-person visits. A Department of Justice study noted that state prisons have been slower to adapt to video visits due to the challenges of implementing a new technology in a statewide system.

“It’s very different to talk to somebody through a screen than in person, to be able to see their face and hear their voice,” said Bertram.

Video visits are a noticeably poor substitute. In a 2015 Prison Policy Initiative survey, families complained about the quality of the calls—freezing video, audio lags, and pixelated screens—as well as a lack of privacy during video visitations, as prisoners usually call in from portals placed in the jail’s common areas. A writer for Ars Technica who decided to try the remote service for Knox County Jail in Tennessee  was unimpressed. He found that “the call cost 19 cents per minute and was noticeably worse than a FaceTime or Skype call. It was grainy and jerky, periodically freezing up altogether.”

For jails, the impetus for replacing in-person visitation with video sometimes comes down to money: The facility can cut down on labor costs and get better deals from technology companies.

The technology industry has begun to integrate itself into the carceral system through equipment and software sales, IT support, and phone-and-video revenue sharing contracts. In Newton County, Encartele provides the equipment, installation, and maintenance at no cost to the county. Both the company and the jail get revenue from fees incurred by people using the system from home. In February, Encartele also announced a partnership to eventually incorporate facial recognition technology into the video platform.

Lawmakers across the country have started recognizing the problems with video visits. In 2015, D.C. Mayor Muriel Bowser required the local Department of Corrections to reinstate face-to-face visits at the D.C. Central Detention Facility. In 2017, California’s Board of State and Community Corrections voted to require all new jails to have in-person visitation, though the mandate was not retroactive for jails that already had different policies or for those under construction while the rule was passed. That same year, U.S. Senator Tammy Duckworth introduced the Video Visitation and Inmate Calling in Prisons Act, which would require the Federal Communications Commission to regulate video and phone calls in correctional facilities and mandate the existence of in-person visitation.

Visitation of any sort matters: It helps incarcerated people and those who love them by preserving and even strengthening social ties. A survey by the Vera Institute of Justice found that prisoners who regularly used video chatting services had a 40 percent increase in in-person visits, suggesting that greater access in communication forged stronger bonds. A study from the Minnesota Department of Corrections found that visitation significantly decreases the risk of recidivism.

Bertram believes cutting costs by sacrificing visits will do more harm than good in the long run. “If jails are trying to make an investment,” she said, “they should invest in retaining those visits.”

St. Louis County Jailed a Pregnant Woman For 39 Days Because She Refused a Paternity Test

Adrianna Thurman said she was informed by jail staff after her release that she had ‘slipped through the cracks.’

Gabriele Mammel/EyeEm

St. Louis County Jailed a Pregnant Woman For 39 Days Because She Refused a Paternity Test

Adrianna Thurman said she was informed by jail staff after her release that she had ‘slipped through the cracks.’

Adrianna Thurman was seven months pregnant when she was arrested and booked at the St. Louis County Jail on Oct. 2, 2018. She was not accused of any crime, yet she remained in jail for the next 39 days.

Thurman was being held in contempt of the St. Louis County Family Court, after not submitting her two young children to a court-ordered paternity test requested by her ex-boyfriend, Erwin Rush. She had told a court official that Rush was not the father of her children, and that his request for a test was an attempt to stalk and harass her.

Since Thurman’s case was civil, not criminal, she was not provided with counsel. She did not see a doctor until two weeks after her arrival, according to court documents Thurman filed after her release. During her time in jail, Thurman alleges, jail officials did not provide the limited accommodations typically given to pregnant women, such as an extra mattress and blanket. She says her repeated requests to speak with a caseworker to figure out why she was being held on a civil charge went unfulfilled. And according to her complaint, even when her ex-boyfriend’s attorney repeatedly asked the division clerk of the court to set a hearing before the court commissioner, he refused to do so, incorrectly claiming that hearings must be initiated by jail officials.

When Thurman was released on Nov. 9, she was eight months pregnant, had been separated from her children for 39 days, and had lost her job and housing. She soon gave birth to her daughter prematurely, which she alleges was the “direct result of the wrongful incarceration.” Postnatal testing revealed she was suffering from Stage 4 breast cancer, which had gone undetected during her jail stay. A paternity test showed Rush was not the father of her children, according to the lawsuit.

This month, Thurman filed a civil lawsuit in federal court, alleging that her extended stay in jail over a civil matter violated her rights under the Fourth, Eighth, and 14th Amendments.

In her complaint, Thurman charges that a series of misconduct and errors led to her lengthy incarceration. She says she was not notified that Family Court Commissioner Mary Greaves had ordered a paternity test. And when she refused to submit her children to the test and the opposing attorney filed a motion for contempt, Commissioner Greaves ordered her arrest, even though the contempt motion was never served to Thurman in person, as the law requires.

Thurman also argues that Missouri law dictates she was eligible for $100 bond. Her arrest order, however, stated she would be detained without bond. She was taken to Family Court the day after her arrest, but never brought before Greaves. After that, the court clerk, Michael Young, did not schedule a hearing for 36 days. When Thurman finally went before the commissioner on Nov. 8, according to her complaint, she was lectured about the paternity test and sent back to jail. Greaves’s order that day stated, “This Court will order Respondent be released when Petitioner’s attorney has reported the genetic testing has been completed.”

When Thurman was released, she was eight months pregnant, had been separated from her children for 39 days, and had lost her job and housing.

Alarmed by Thurman’s continued incarceration and late-stage pregnancy, the opposing attorney and the guardian ad litem (appointed by the court to represent the interests of the children) filed an emergency motion for release, notifying Circuit Judge Mary Elizabeth Ott the next day that the paternity test had been completed. Ott ordered Thurman’s immediate release.

Thurman’s suit names St. Louis County, Sheriff Jim Buckles, and Young as defendants. The County Court public information officer said the court cannot comment on pending litigation, and a representative from the jail did not respond to a request for comment. As a judicial officer, Commissioner Greaves has absolute immunity from lawsuits. Thurman’s complaint also expresses concern that “there is no policy or custom in place in the State of Missouri or St. Louis County that causes or requires a person arrested on a civil warrant to be brought promptly before a judge.”

“It’s scary,” said Thurman’s attorney, Chelsea Merta. “One minute you’re just living your life, taking care of your kids and going to work, and then the next minute police are knocking on your door saying that you’re in contempt for something that you didn’t even really know was happening, and being locked up for 39 days and losing everything. And having your entire world flipped upside down.”

Being pregnant in jail or prison can be dangerous and even deadly. About 3.8 percent of newly admitted prisoners were pregnant in a single year, according to a recently published study on pregnancy outcomes in U.S. prisons. In March, Dr. Carolyn Sufrin, the study’s author, told NPR that “pregnant incarcerated people are one of the most marginalized and forgotten groups in our country. People in general don’t often think about what happens to people behind bars. People think even less about the fact that there are pregnant women behind bars, or even consider it as a possibility.”

Incarcerated women are frequently shackled while giving birth, a practice the First Step Act banned for federal prisoners but that persists in many states. When journalist Victoria Law investigated the experience of pregnant incarcerated women for In These Times in 2015, she found that “many received no medical care or experienced long waits. Most were constantly hungry. Others were restrained during labor, delivery or postpartum recovery, even in states that ban the practice.”

Thurman’s suit says she was informed by jail staff after her release that she had “slipped through the cracks” because they were unsure how to handle someone booked on a civil warrant.

After several deaths this year, the St. Louis County Council has launched an investigation into problems with medical care at the county jail. A 20-year-old man, Lamar Catchings, died in his cell on March 1 after a rapid, seemingly unnoticed physical decline from undiagnosed leukemia. In February, John Shy died in the infirmary after crying and screaming for help for hours, prompting an internal investigation into whether jail staff had disabled the call buttons. And in January, after Larry “Jay” Reavis died in the infirmary, another incarcerated man told police that an officer had shrugged off warnings that Reavis was having a seizure.” The jail did not send a representative to a council hearing on Tuesday, where family members and friends spoke about their deceased loved ones and called for answers.

Thurman seeks compensatory and punitive damages, as well as a judgment that detaining people on civil warrants “without prompt access to the judicial system is unconstitutional.”

Her lawyer says she is still suffering from the consequences of her prolonged incarceration.

“Adrianna has a significant amount of medical treatment that needs to be covered, because of the premature birth of her child and due to the undiagnosed cancer that went untreated for a significant amount of time,” said Merta. “She lost her job. She lost her housing. There have been all sorts of things that need to be remedied because of this judicial oversight, police oversight, all of these errors that were made on behalf of a system that’s supposed to protect people’s interests, not infringe upon them.”

“At the end of the day, she is entitled to damages under federal law and state law, with regards to what happened,” Merta added. “But then, she’s also dedicated to ensuring that this doesn’t happen to anyone again.”

New Orleans Wants to Make Its Notorious Jail Bigger

Activists say the sheriff is trying to add jail beds under the guise of mental health treatment.

Activists rally at the New Orleans Criminal District Court

New Orleans Wants to Make Its Notorious Jail Bigger

Activists say the sheriff is trying to add jail beds under the guise of mental health treatment.

In October 2016, a year after New Orleans opened its new jail, Jaquin Thomas, a 15-year-old being held at the adult jail, died by suicide. His family eventually filed a wrongful death lawsuit against the city and the sheriff’s department. Seven months earlier, a 61-year-old man killed himself at the jail. The deaths have persisted since then. And in January and February of this year, there were 28 suicide attempts inside the jail.

The current New Orleans jail, the Orleans Justice Center, opened in 2015 to replace Orleans Parish Prison, which had been partially destroyed during Hurricane Katrina. The old jail was known for deaths, abhorrent conditions, guard abuse, and poor medical care. In 2013, after the Southern Poverty Law Center sued Orleans Parish over poor conditions, the sheriff’s office entered in to a federal consent decree with the Department of Justice to implement certain reforms at its jail.

Now, the city is moving forward with plans to make the Orleans Justice Center even larger. The jail is not in compliance with the consent decree; it lacks basic psychiatric facilities to house and care for people in need of mental health treatment. The sheriff’s office has been detaining men with mental illness in specialized cells at a state prison since 2014, but the state has decided to stop housing them in October due to the “continual increase” of prisoners with mental health needs. As a result, the city is facing a looming problem over where to house them.

In March, Judge Lance Africk, who oversees the consent decree, ordered the city to immediately begin planning and designing the renovation of the Temporary Detention Center, a warehouse-like jail that was supposed to be demolished in 2017, as well as the new jail wing in order to incarcerate people with mental illnesses. But advocates are calling on the city to renovate the existing Orleans Justice Center instead.

The old jail was one of the biggest in the country. The Orleans Parish Prison had more than 7,000 beds before Hurricane Katrina and about 3,500 available beds afterward. The new jail has 1,438 beds. A working group convened by then Mayor Mitch Landrieu in 2010 determined that the bed count was the best size for the new jail after consulting with experts and community members. The group stated at the time that the city should allow the new jail to be opened only if it met certain conditions, which included the facility being able to accommodate prisoners in need of substance use or mental health treatment.

The solution is to care for people with mental illnesses and everyone in the jail, because we see how everyone’s going through trauma in there.Sade Dumas, executive director of OPPRC

In 2011, the City Council passed an ordinance for the smaller jail. Sheriff Marlin Gusman and the jail director opposed the capacity, at one point proposing a jail with 4,300 beds. Gusman had argued that the ordinance would interfere with public safety and that building a 1,438-bed facility that could accommodate all types of detainees was not feasible.

Just a few years after opening the new jail, the Orleans Parish sheriff’s office proposed a new wing to incarcerate people with mental health issues—as well as renovating the Temporary Detention Center as a short-term solution while the wing is being built. The new wing would have 90 beds. Advocates from the Orleans Parish Prison Reform Coalition sued the city and Sheriff Gusman last year over their use of the detention center. They say the sheriff is trying to expand the number of beds in the jail under the guise of treating people with mental illnesses.

“We’re at the 1,438-bed cap legally,” Sade Dumas, executive director of the prison reform coalition, told The Appeal. “And since then, there have been multiple attempts to oppose that bed cap, and to practice in a way that would make someone believe the bed cap doesn’t exist.”

Instead of expanding the jail, Dumas said the sheriff should work on renovating part of the existing jail to accommodate people with mental illnesses.

“The solution is to care for people with mental illnesses and everyone in the jail, because we see how everyone’s going through trauma in there. There are people only out for an hour a day,” Dumas said.

“There is a consensus in the community that you do not associate the care of people with the construction of additional jail beds.”

The sheriff’s office did not respond to multiple requests for comment.

Although the Orleans Parish Justice Center was supposed to help address the poor conditions people lived in at Orleans Parish Prison, many of the issues moved to the Orleans Parish Justice Center, including multiple prisoner deaths from suicide and of those going through drug withdrawal. Since 2016, the jail has had a death rate that’s nearly twice the national average. Details of Jaquin Thomas’s death symbolized the jail’s poor response to people at risk of suicide. According to the New Orleans Advocate, after Jaquin hanged himself, no one noticed his body for 90 minutes. For Dumas, an expansion of the jail means the number of people who may be harmed in the jail expands as well.

People lose their jobs, people lose their families, they lose so much of their lives, simply because they’re stuck in a building.Sade Dumas, executive director of OPPRC

“Treatment for the general population is really poor. People leave more traumatized than they were when they went in,” Dumas said.

Most of the people in the jail are awaiting trial, and many are there solely because they cannot afford bail. According to a 2017 study from the Vera Institute of Justice, nearly a third of people detained on alleged felonies in New Orleans were incarcerated until the end of their case because they couldn’t afford bail. For people accused of misdemeanors in the municipal court, one in five people were incarcerated because they could not afford bail.

“If we just step back and look at the collateral consequences of incarceration, people lose their jobs, people lose their families, they lose so much of their lives, simply because they’re stuck in a building,” she said. “Because they’re usually too poor to pay bail bond or a fee.”

The jail population in New Orleans has decreased significantly, although it is still above the national average. At the same time, the crime rate in New Orleans has steadily gone down.

“We have one of the most dangerous jails in the country,” Dumas said. “People have actually died in there. So we don’t want to build additional jails and increase the capacity for harm to be done against our community members.”

Texas Is Poised to Make It Easier to Jail People For Voting Errors

The legislation is part of a wave of bills across the country meant to criminalize mistakes in the name of voter fraud.

Voters cast their ballots at the Rummel Creek Elementary polling place on November 6, 2018, in Houston.
Loren Elliott/Getty Images

Texas Is Poised to Make It Easier to Jail People For Voting Errors

The legislation is part of a wave of bills across the country meant to criminalize mistakes in the name of voter fraud.

In 2018, 43-year-old Crystal Mason was sentenced to five years in prison in Texas for illegally voting with a criminal record. A few months later, Grand Prairie, Texas, resident Rose Ortega lost her appeal of an eight-year prison sentence for voting as a non-U.S. citizen. When she is released from custody, she will most likely be deported back to Mexico.

Under Senate Bill 9, which is making its way through the Texas legislature, stories like Mason’s and Ortega’s would become more common. The bill would increase criminal penalties for voting and give prosecutors more power to bring charges against voters. And crimes that were previously misdemeanors would become state jail felonies punishable by up to two years in state jail and a fine of up to $10,000. Voting advocates say the anti-democracy provisions—tucked inside SB 9 alongside measures that would strengthen elections—are raising alarms about the future of the right to vote in the state.

Zenén Jaimes Pérez, the advocacy and communications director for the Texas Civil Rights Project, called the bill “another assault on voting rights in Texas.”

“It does that through multiple ways and the main way of doing that is through the broadening of the criminalization of election laws in Texas,” he said. “Things that normally weren’t criminal penalties or didn’t have as high criminal penalties are enhanced under SB 9.”

The lieutenant governor has designated the bill a priority for this legislative session, and it will most likely be put to a vote for the whole Senate in the coming days or weeks.

Under the bill, making a false statement on a voter registration form would be classified as “a state jail felony” instead of a misdemeanor, as it is currently. As written, advocates say that people who vote when they are not eligible can be prosecuted even if they did not intentionally violate election law.

Crimes that were previously misdemeanors would become state jail felonies punishable by up to two years in state jail and a fine of up to $10,000.

The bill also states that people cannot claim as a defense to prosecution that their ballot was not counted, which was the case when Mason cast a ballot in 2016. Mason did not know she was still ineligible to vote, as she was out of prison on a supervised release program. Voters who are unsure if they are eligible often cast provisional ballots which are not counted if the state determines they are not qualified to vote. According to a group of organizations that wrote a letter opposing the bill, last year in the five largest urban counties, 9,608 voters’ provisional ballots were rejected for reasons that would become criminal if the legislation were to become law.

“The bill would undermine the very purpose of having provisional ballots and likely violates the federal Help America Vote Act,” the letter says.

Under the legislation, it would become a misdemeanor to impede walkways, sidewalks, parking lots, or roads within 1,000 feet of a polling place “in a manner that hinders a person from entering the polling place.” Violators could be punished with up to six months in jail and a fine of up to $2,000. The bill would also make it more difficult to assist voters who need help casting a ballot by requiring them to fill out more forms and opening that paperwork to scrutiny to poll workers.

“If I’m going in to help translate for my mom who’s a non-English speaker, I would need to get through further hurdles to be able to do that,” Perez said.

Senator Bryan Hughes, the bill’s Republican sponsor, did not respond to The Appeal’s request for comment.

Voting advocates said they worry about the chilling effects of the bill. If people know that a simple mistake could end up getting them charged with a felony, they are going to be less likely to go cast a ballot.

“There’s red tape, there’s forms, there’s stories of people being prosecuted, there’s cases of people already in jail for simple mistakes that they made, like Crystal Mason, that make you less likely to take that step and go cast a ballot,” Perez said.

If people know that a simple mistake could end up getting them charged with a felony, they are going to be less likely to go cast a ballot.

Perez called the bill “another cog in the long line of voter suppression in Texas” dating back centuries that has intensified as the state’s minority populations grow and start turning out for elections. In 2018, the Texas electorate was larger and more diverse than previous elections.

“Unfortunately what we’re seeing is that instead of rising to that new energy Texas voters brought in 2018,” Perez said, “Texas officials are trying to dampen the participation that’s carrying certain communities or certain populations that are seen as a threat to the power base of the existing leadership in the state.”

This year, the secretary of state attempted to purge almost 100,000 voters from the rolls who he claimed were not eligible U.S. citizens. The effort failed in February when a federal judge ruled against it. But H. Drew Galloway, the executive director of MOVE Texas, a group that works to mobilize young voters, said SB 9 would legalize what the secretary of state was trying to do.

And voting advocates worry that if Texas were to pass this legislation, other states would follow suit.

“Texas is the testing ground for bad voting rights bills,” Galloway said. “That’s why we’re so concerned about this. If SB 9 passes, this is easily picked up and put into Alabama or Wisconsin or Florida or someplace like that.”

Already, other states are proposing laws that would similarly criminalize voters and give prosecutors power to bring charges for voter fraud. In Tennessee, for example, the secretary of state is supporting legislation that would give prosecutors the power to impose steep fines and even imprison members of voter registration groups who submit too many inaccurate or incomplete registrations.

“We understand that this is a moment not only for Texas but for voters across the nation to protect their rights,” Galloway said.

Chicago is Tracking Kids With GPS Monitors That Can Call and Record Them Without Consent

Cook County has a new contract for juvenile ankle monitors that critics say are an invasion of privacy.

Photo illustration by Elizabeth Brown. Photo by Mario Tama/Getty Images

Chicago is Tracking Kids With GPS Monitors That Can Call and Record Them Without Consent

Cook County has a new contract for juvenile ankle monitors that critics say are an invasion of privacy.

This story was co-published with Citylab.

On March 29, court officials in Chicago strapped an ankle monitor onto Shawn, a 15-year-old awaiting trial on charges of armed robbery. They explained that the device would need to be charged for two hours a day and that it would track his movements using GPS technology. He was told he would have to be given permission to leave his house, even to go to school. But he found out that through his monitor, officers wouldn’t just be able to track his location, as most electronic monitors do. They would also be able to speak—and listen—to him.

“I feel like they are listening to what he’s saying,” said Shawn’s mother.  “They can hear everything. We could be here talking about anything.”

Shawn, whose name has been changed to protect his identity, is one of hundreds of children in Chicago whose ankle monitors are now equipped with microphones and speakers. The stated purpose of these devices is to communicate with the children, but they are raising concerns among civil liberties watchers that they are actually a mechanism for surveilling the conversations of these kids and those around them—and potentially for using the recordings in criminal cases.

“I can’t quite even start down the parade of horribles in terms of all the ways this could be a problem,” said Sarah Staudt, senior policy analyst and staff attorney for Chicago Appleseed Fund for Justice and a former juvenile defense attorney in Cook County. “The idea that an adult can turn on a listening device while a child is, say, in the bathroom or in their bedroom is not good.”

In January, Cook County, home of Chicago, awarded a contract to the electronic monitoring company Track Group, which will lease 275 ankle monitors to keep tabs on children awaiting trial. The devices, known as ReliAlert XC3, have two-way communication capabilities that allow both electronic monitoring officers at the criminal court and employees at Track Group’s monitoring center to call an individual wearing a monitor at any time. The wearer can press a button on the device to reach the monitoring center, but there is no way to decline an incoming call.

Cook County officials said juvenile probation began using the new devices in February because of their extended battery life and more secure band. The devices were also selected because of their built-in communication, as some children on probation are difficult to reach by phone. But Pat Milhizer, the director of communications for the office of the chief judge in the Circuit Court of Cook County, said the county would now review concerns about privacy.

To the court’s knowledge, no probation officer has used the device in violation of the law, Milhizer said in an emailed statement, explaining that the communications feature is used “to inform the juvenile if the battery is low or that he or she entered an exclusionary zone where there is somebody or a place they must avoid.”

“These communications allow the juvenile to remain in compliance with court-ordered electronic monitoring to avoid further arrest and/or detention,” he wrote in the email. “The goal of the devices is to support the successful completion of electronic monitoring.”

All calls made through the new devices are recorded, time-stamped, and archived, and are stored on Track Group’s servers for 18 months, according to its contract with Cook County. Officials in Cook County have access to the files and can use them however they choose, including in the course of criminal investigations, AJ Gigler, vice president of marketing and product management at Track Group, told The Appeal.

In response to questions from The Appeal about privacy concerns over the recordings, Milhizer said Friday that “in an abundance of caution,” the Cook County Office of the Chief Judge would be instructing Track Group “to disable the recording capabilities of the system—pending a review to determine if recordings should be used to ensure both quality assurance and that there is a record indicating that all uses of the devices are in compliance with the law.”

The idea that an adult can turn on a listening device while a child is, say, in the bathroom or in their bedroom is not good.Sarah Staudt, senior policy analyst and staff attorney for Chicago Appleseed Fund for Justice

The ReliAlert device is supposed to play an audible, three-note sound when an electronic monitoring official is calling and then play another three notes when the call ends. “There is no way to initiate contact with the juvenile without the sound and vibration,” Milhizer wrote in the email. But outside Chicago, that hasn’t always been reliable. In 2014, a technician for Track Group, which was then called SecureAlert, testified during a hearing in Puerto Rico that although the device is supposed to vibrate and make a noise when it’s activated, the listening and speaking capabilities can be turned on without warning.

Even if children are alerted when they receive a call, attorneys said issues of consent remain. In 2014, Illinois passed a wiretapping law that made it illegal to use an “eavesdropping device” to overhear or record a conversation without the consent of all parties involved.

“It’s an invasion of privacy,” said Greg Gaither, founder of the Illinois African-American Juvenile Justice Institute and the Woodlawn Juvenile Reentry Project in Chicago, calling electronic monitoring an expansion of surveillance that is already concentrated in particular criminalized communities. “The reach of the electronic monitoring has gotten to the point where it goes too deep into communities.”

Attorneys in Chicago said that in February and March, the city transitioned children on electronic monitoring to the new ankle monitors. The previous ankle monitors, provided by Sentinel, had no speaker, microphone, or call button, and the county used telephones to communicate with people being tracked.

Track Group's marketing materials for the ReliAlert XC3
Track Group

The national push to reduce jail and prison populations, coupled with the decline of cash bail, has spurred the growth of electronic monitoring programs across the country. Rather than set money bail or keep them in jail, judges can now choose to release someone if they agree to wear a tracking device until their trial date. Milhizer said that in Chicago, electronic monitoring has reduced the number of children held in a detention center. According to a Pew study, the number of active offender-monitoring devices in the U.S. increased nearly 140 percent from 2005 to 2015, when more than 125,000 people were supervised with the devices.

Cook County has expanded its use of electronic monitoring in recent years as it has implemented bail reforms and as Illinois has worked to reduce its prison population. More than 2,700 people in the county are on electronic monitoring through programs run by the sheriff’s office and the juvenile and adult probation departments.

Track Group, which is based in the Chicago suburbs, released the ReliAlert XC3 in 2014. It is the only company that provides electronic monitoring with patented built-in communication capabilities. In its advertising materials, it says the devices allow for “real-time violation intervention” and reduce “the effort spent by officers attempting to communicate with offenders.” The company also calls the device “the safest and most reliable monitoring device ever made.”

Gigler said the company contracts with several other U.S. jurisdictions and other countries to provide electronic monitoring devices, but would not disclose a list, citing possible competition. Marion County Community Corrections has contracted with Track Group for over 10 years, and the Indianapolis county currently has roughly 4,000 individuals on ReliAlert devices both pretrial and post-conviction, according to the department.

Under the contract with Cook County, Track Group will also provide 350 of these ReliAlert XC3 GPS devices for adult probation and another 90 for use by the sheriff’s office, making up just a small percentage of the ankle monitors used on adults in Cook County. The majority of adults on electronic monitoring wear devices that track their movements with radio frequency. But because juvenile monitoring exclusively uses GPS devices, the new contract will cover all children on probation in Chicago. According to the terms of the contract, Cook County will pay $3.68 a day for each of the 275 devices for children.

With this technology, they have no choice. They have to pick up.AJ Gigler, vice president of marketing and product management at Track Group

Gigler said Cook County was interested in the technology for a number of reasons, including the communication options.

“Absent this technology, officers need to contact an offender through their personal phone number and they have a choice whether to answer the phone,” he said. “With this technology, they have no choice. They have to pick up.”

Attorneys and electronic monitoring experts say that the communication feature potentially violates the U.S. Constitution.

“A million alarm bells go off as a professor of criminal procedure,” said Kate Weisburd, a professor at The George Washington University Law School who researches electronic monitoring across the country. “I think if the police hear something incriminating on one of these, there will be litigation as to the constitutionality of [the use of] those statements.”

She said jurisdictions often assume individuals ordered to wear a device by a judge have given consent to be monitored, but jurisdictions then extend that consent in problematic ways.

“Oftentimes there’s this idea of consent invoked,” she said. “In other words, a young person or an adult has consented to be on a monitor in lieu of being in prison or jail. The problem with that is that consent can’t just be a blanket, carte blanche excuse for any type of privacy invasion. There has to be some limit.”

Third-party storage of such sensitive information poses additional security risks, said Stephanie Lacambra, a criminal defense staff attorney with the Electronic Frontier Foundation.

“This would have the same sort of privacy concerns that we have in any sort of data collection scheme,” Lacambra said.

“We find generally that the speed with which technology develops often isn’t tempered by enough meaningful mindful reflection over what the consequences of the use of the technology will be for the communities,” she added.

You’re really putting a red letter on kids in their own communities in a way that can be really, really damaging.Sarah Staudt, senior policy analyst and staff attorney for Chicago Appleseed Fund for Justice

Lacambra advised that advocates should push for a privacy impact report from Cook County to ensure there are policies in place to protect the privacy of the individuals being monitored. Before jurisdictions acquire new technology like the ReliAlert devices, communities should be able to give feedback about whether they think it’s a good use of government funds and whether policy is needed to regulate it, she said.

Cook County’s juvenile probation department’s electronic monitoring program dates back to June 1996. The original program used landline telephones but transitioned to GPS devices in January 2010. In 2014, after a teenager on electronic monitoring was accused of sexual assault, the county moved from checking in on children wearing monitors periodically to tracking them 24 hours a day.

Cook County considers the monitors an essential part of its pretrial justice program and as an alternative to holding youth in jail before trial. “GPS is the electronic monitoring used so that juveniles may be allowed movement outside of the home to go to school, work, programs and other positive activities that support rehabilitation,” Milhizer wrote.

But advocates argue that there is no evidence to show that electronic monitoring furthers any goals of the court system.

“We’re substituting one ill for another ill,” Weisburd said.

A 2012 study by the Pretrial Justice Institute found that nearly 90 percent of people would return to court with little more than a reminder of their court date. In the last 18 months, Cook County has released more than 24,000 people pretrial. The vast majority have had less-restrictive conditions than electronic monitoring, according to the Chicago Community Bond Fund. Just 0.6 percent of the felony defendants who were released between Oct. 1, 2017, and Dec. 31, 2018, were charged with committing a new violent offense while in the community, according to data from Cook County. Nevertheless, judges are hesitant to release people without restrictions and are using monitoring as a risk mitigation tool.

Juvenile electronic monitoring presents another set of issues that adults don’t encounter, Staudt said. The monitors must be plugged into the wall regularly to charge, which attorneys say is often difficult for children who have trouble sitting still. Children are often forgetful and can face disciplinary action or be sent to a detention center if they do not charge their devices. Ankle monitors also subject them to stigma in school and among their friends.

“You’re really putting a red letter on kids in their own communities in a way that can be really, really damaging,” she said.

Weisburd, who has represented children with ankle monitors in Oakland, California, said her clients were often stigmatized when their devices would beep during the school day when probation officers were trying to contact them or when batteries were low. One client decided to stop going to school to avoid that situation, she said.

By forcing children to stay inside their homes for certain periods of time, jurisdictions are also placing a heavy burden on families who have to rearrange schedules and priorities to make sure their children aren’t violating the terms of their program. One Chicago attorney who defends children on electronic monitoring said she knows of children who live in homes with inadequate food who have set off their monitoring devices just to go to the store to get something to eat.

As a result of all these factors, young people often end up violating the terms of their release.

“The defense of these devices is that the alternative is incarceration, but in reality what’s happening is that most people just bounce back and forth between being incarcerated and being released and oftentimes young people who are on these devices end up incarcerated anyway,” Weisburd said. “Not for new offenses but for some technical violation related to the device.”

Shawn is well aware of that risk. After he was arrested for armed robbery in September, he  spent six months in juvenile detention. He said he is grateful that Cook County let him out on electronic monitoring at the end of March because even home arrest is better than being in custody. Still, he said, electronic monitoring is its own kind of confinement when officers can call you any time without your consent.

“I’m on house arrest,” he said. “You want to put this thing on so you can reach out to me and call me? Why can’t I just call y’all? Why can’t it be simple? It’s kind of like being treated like a slave or something like that. They don’t give us no room to think.”

“They give you all the tools to bury yourself,” he added, “but I’m not going to let that have an effect on my situation.”

Update: On Tuesday, April 9, the Juvenile Probation Department stopped using the communications ability of the devices, pending further review, Milhizer told The Appeal.

‘I Had Nothing’: How Parole Perpetuates a Cycle of Incarceration and Instability

Richard Cannon was making gains after being released from prison. Then one arrest changed the course of his life.

Katal Center website

‘I Had Nothing’: How Parole Perpetuates a Cycle of Incarceration and Instability

Richard Cannon was making gains after being released from prison. Then one arrest changed the course of his life.

Richard Cannon was born into a large family in Harlem. He was the third-eldest of five children. When his stepfather was diagnosed with cancer, Cannon felt pressure to start providing for his family. His stepfather was the sole provider of the household, but now couldn’t work. Just a teenager, Cannon tried to get help, or a job, but came up empty-handed. Desperate, he attempted to take money from a sleeping passenger on the train. He was arrested, pleaded guilty to a robbery charge, and was incarcerated for seven years.

That wouldn’t be Cannon’s last run-in with the criminal legal system. Less than a year after he was released, Cannon was stopped by police on his way home from a party. He later found out he was accused of committing multiple robberies. Cannon, who maintains his innocence, refused to take a plea deal and went to trial. He was convicted and sentenced to 40 years in prison.

In 2016, after Cannon had spent nearly 20 years behind bars, he was released on parole, one of the state’s supervision programs, for five years. While on parole, Cannon has to meet with his parole officer weekly and must be in his residence from 7 p.m. to 8 a.m. Despite following his parole conditions consistently, Cannon soon found himself back in jail, accused of violating parole after he called the police during an altercation in his apartment and was arrested. Even though the charges against him were dismissed both in criminal court and in his parole case, returning to jail changed the course of his life.

Cannon’s story shows how the strict conditions of parole can do more harm than good and lead people back into incarceration for minor reasons. New York’s parole system is widely considered in need of reform. As of November 2017, 16 percent of New York City’s jail population comprised people who were there on state parole violations, according to a report by Columbia University’s Justice Lab, which noted that the total number of people being held on parole violations—1,460—was larger than every jail population in the state besides Rikers Island. The report found that as New York had reduced the number of people detained pretrial by double digits over the last four years, “only one population in the jail has increased, also by double digits: persons held in city jails for state parole violations.”

In New York, people on parole are required to do regular check-ins, and parole officers can search their residences and places of employment at any time. They are also expected to respond promptly to any communication with their parole officer, and cannot be in the company of other people that they know have a criminal record. Some on parole have additional special conditions, such as participating in a substance use program or abiding by a curfew.

Cannon has to meet all of these conditions. He isn’t allowed to get a license or drive a car and he isn’t allowed to leave the state—or even the five boroughs of New York City. Cannon says parole officers also search his electronic devices.  

Cannon had managed to abide by all the conditions of his release, though it was no easy feat. When he left state prison in 2016, most of his family had moved out of the city to different cities in the South, so he couldn’t visit them. He first went into the shelter system when he was released. After about a month, he found an apartment in a supportive housing building run by the Bowery Residents’ Committee (BRC), a nonprofit that runs shelters and supportive housing programs in the city.

The stable housing did wonders for Cannon. He lived with one roommate in a two-bedroom home with furniture and a television; he enjoyed cooking his own food and watching movies. The supportive housing program also connected many of its residents to different programs, including mental health and substance use programs. Cannon began seeing a psychiatrist, taking medication, and seeing a social worker. He continued to make his weekly parole check-ins.

At one point, Cannon said he was offered a job at Planet Fitness to clean up at night. However, because the job would require him to be out after 7 p.m. he was forced to turn it down.

Two years later, in 2018, an altercation occurred in Cannon’s home when, Cannon says, a friend became angry after he refused to give her money for cab fare. The situation escalated to the friend throwing things and breaking lamps.

Cannon spent six months in jail—enough time to upend much of the progress he had made in his life.

At least two people in the building called 911: Cannon and his neighbor. Eventually, NYPD officers knocked on Cannon’s door. Before he could explain what happened, they asked him to turn around. Cannon was arrested and sent to central booking. His bail was set at $1, but he was stuck in jail anyway: An arrest is an automatic parole violation, regardless of the circumstances of arrest or whether the defendant is eventually convicted or acquitted. When Cannon was arrested, the NYPD alerted parole, which immediately placed him on a parole hold.

Cannon spent six months in jail—enough time to upend much of the progress he had made in his life. He lost his apartment and all his personal belongings inside it, except for three bags filled with items that his lawyer was able to save for him.

Gabriel Sayegh, co-director of the Katal Center for Health, Equity and Justice, said New York’s current system incentivizes officers to use incarceration to handle slip-ups since there are few other resources at their disposal.

“The resources that we have made available to deal with some of these issues, we have invested in the carceral state, not in the community programs that these folks need,” Sayegh told The Appeal. “That just limits what the parole officers have available to them in terms of providing resources to these people.”

We have invested in the carceral state, not in the community programs that these folks need.Gabriel Sayegh, co-director of the Katal Center for Health, Equity and Justice

Sayegh is one of the advocates in the Less Is More campaign that announced legislation to reform parole along with New York State Senator Brian Benjamin, the Legal Aid Society, and others. The Less Is More: Community Supervision Revocation Reform Act would add due process protections by adding a recognizance hearing in criminal court before people are detained on a parole hold. The bill, announced in February, would additionally require speedy hearings for allegations of parole violations. Philadelphia enacted a similar change in December to give people the chance to appear at preliminary hearings with the opportunity for release rather than jail them before their parole hearings. So far, the results have been promising: All but 3.6 percent of the people released after the preliminary hearing have returned for their violation-of-probation hearing.

Additionally, the New York legislation would allow parolees to earn time off their supervision for every 30-day period in which they do not violate a condition of supervision. It would also end incarceration as a practice for technical violations like leaving the state or failing a drug test. According to the Columbia report, people returning to prison on technical parole violations were 29.2 percent of all admissions into the Department of Corrections and Community Supervision in 2016. Although other segments of the population in New York City jails are decreasing, from 2014 to 2018, people incarcerated on technical parole violations have increased by 15 percent. By 2015, about a third of the people who had been released from incarceration in New York State three years ago had returned to prison on a technical parole violation.

And the racial differences are staggering: The report found that Black people on parole are 12 times more likely to be detained for a violation than a white person.

The bill is awaiting a committee hearing, but the reform could mark a big change for thousands under supervision in New York if enacted. People on parole and probation have been largely left out of the city’s criminal justice reforms. When the NYPD announced it would stop arresting people for smoking marijuana in public, for example, one of the exceptions to the new policy were people who were on probation or parole.

Thomas Mailey, a spokesperson from the Department of Corrections and Community Supervision declined to comment on parole reform, but disagreed that parole hinders people’s re-entry. He told The Appeal that the Department’s re-entry process begins four months before a person’s release date from prison and includes services like education, job readiness, community resources and substance abuse.

During Cannon’s first two times behind bars, he says he experienced beatdowns by guards and spent multiple years in solitary confinement. The years in solitary gravely affected his mental health and led him to attempt suicide multiple times.

“Then I stay in the box for years. Then maybe after two years, I can’t take it no more,” he said. “So I hang up but they stopped me, cut me down [and] send me to the hospital. ”

When Cannon went back to jail in 2018 for the third time, he couldn’t get these memories out of his head.

“My mind got messed up a lot, a lot, when they put [me in for] six months,” Cannon said. “I get out of [prison], and now they going to put me back in jail again forever—and my mind goes crazy. And I’m not the same person I was before six months.”

Cannon’s lawyer, Deborah Lolai of the Bronx Defenders, said, “When I met him, when he was just arrested, his communication was very different. It deteriorated pretty rapidly when he was incarcerated. I think his mental health deteriorated.”

Due to Cannon’s family’s far distance, he had less support when he was in jail—meaning necessities from commissary were sometimes hard to get.

“I had no food. I had no soap and stuff,” Cannon said. “I had no T-shirt, underwear, socks, shoes. … I had nothing.”

Like everyone who is arrested while on parole, Cannon’s arrest led to two separate cases that simultaneously went through the criminal legal system and the parole board. Both the parole case and the case in the criminal legal system were dismissed after witnesses failed to appear in court multiple times.

When he was released in September, most of the progress Cannon had made had been lost. Cannon lost his psychiatrist and the social worker that has been assigned to him. Without housing, Cannon went back into the shelter system, where he still lives over six months later.

“I lose everything. Even nice building, nice neighbors, and everything. I lose everything that a person have when they have a house, and a community. It all got gone,” Cannon explained.

“I lose everything that was a little bit good in my life. Now I’m homeless, I don’t have no job, no nothing. I don’t get to watch movies, TV, music, take a bath or shower by myself [or] be alone by myself.”

But perhaps the most painful, was when Cannon found out his niece was killed while he was in jail. He hadn’t seen his niece, who was in her 20s, since she was a small child t because he couldn’t leave the state while on parole.

I lose everything that was a little bit good in my life. Now I’m homeless, I don’t have no job, no nothing. Richard Cannon, Bronx resident

During his previous incarcerations, Cannon had experienced the deaths of his nephew and stepfather. He recalled how being entangled in the criminal legal system has affected his family bonds.

“Before police got involved in my life, I had a big family. Everyone’s together. After police got involved in my life, my whole family is tore apart. Nobody’s together,” Cannon said.

Sayegh of the Katal Center said he has heard stories similar to Cannon’s. In practice, parole is often a hindrance to people re-entering society after being released from prison.

“It ends up having all these other impacts. People lose their housing, they lose their jobs, they get taken from their kids. Jail, let alone prison, are these super traumatic institutions, structures to put people inside of,” Sayegh told The Appeal.

“It’s like we’ve created a system that makes it practically impossible for anybody to succeed,” he added.

“What really happened to me happens to a lot of people,” Cannon said. “They ruin people’s lives when you don’t have money, and you poor.”

Today, Cannon is still on parole and meets with his parole officer every Thursday; he has had multiple parole officers and says his current one is the best so far. He continues to have a 7 p.m. to 8 a.m. curfew. He says the threat of jail is held over his head at all times.

They will “search your whole house, talk with everybody in the house, come in any time, day or night,” Cannon told The Appeal.

“And the 7 o’clock [curfew], even if I wanted to go to a movie or go to my friend’s house, if I had a friend, I got to run back at five something o’clock in the afternoon because [the parole officer] might be there. If [it’s] past 7 o’clock, they’re going to put me back in jail.”  

For him, parole is just another prison.

“They say they going to let me go after 20-something years,” he said. “But they don’t let me go. They’re still in control.”

New York Lawmakers Want To Ban Sex Offenders From The Subway. That Won’t Solve Anything.

Banishing people from the subway will only marginalize them without addressing the problem.

Drew Angerer/Getty Images

New York Lawmakers Want To Ban Sex Offenders From The Subway. That Won’t Solve Anything.

Banishing people from the subway will only marginalize them without addressing the problem.

An effort by New York City officials to address subway sexual offenses like nonconsensual touching and public lewdness is gathering momentum, but their proposals miss the mark and won’t solve the problem. City Councilmember Chaim Deutsch’s office told The Appeal that it is in the process of drafting legislation that would impose a lifetime mass transit ban on anyone with a minimum of two convictions for these crimes, likening a lifetime ban from the subway to a store banning shoplifters. Governor Andrew Cuomo and Mayor Bill de Blasio approved of the idea, though they stopped short of expressing support for a lifetime ban and have instead referenced shorter periods of time.

“Two convictions for a sexual assault on a subway, you should be banned,” Cuomo said. “You have people who target victims in the subways and that’s where they go. Many people, crowded areas, certain techniques, that’s where they go.”

Of course, the general problem of sexual harms in our society and the specific problem of assaults such as unwanted groping on the subway are very real, and thus exceedingly important to address. According to the NYPD, there were 866 reported sex crimes on the subway in 2018 alone.

Banishment from mass transit, however, does little to meet this goal, as it reflects a framing of sexual harms that is out of step with reality: Most sex offenses are not attributable to individuals who commit multiple offenses. More than 95 percent of reported and cleared sex offenses in New York State are attributable to first-time offenders. Most people who are held accountable for sexual offenses do not reoffend. In data compiled by the NYPD, most of those arrested in 2016 and 2017 for subway sex offenses had no prior sex offense arrest record, never mind convictions.

Even if one assumes that such a ban could be enforced amid a daily crush of 5.6 million riders, it could not address the vast majority of these offenses. Like our sex offense policies more generally, it gives the public a vague sense that the problem is being addressed, but obfuscates the realities of sexual harms in society and thus undermines efforts to properly address them.

Despite the fact that the majority of people who commit these crimes would not be subject to the ban, a common strain of thinking is that they would nevertheless be deterred by the possibility of its imposition. Ratcheting up penalties as a means to address crime is one of America’s favorite pastimes. New York State Senator Diane Savino, for example, has repeatedly introduced legislation to upgrade nonconsensual touching on a subway to a felony, arguing that we need to “properly punish” these offenses. However, a large body of research demonstrates that is it is not the severity of consequence that deters people, but rather the certainty of that consequence. In this case, consequences are far from certain: the NYPD clears fewer than half of its subway sex offenses and fewer than half of reported rapes within the city generally.

As our society continues to nurse the hangover brought on by mass incarceration, it should be apparent that boosting penalties and proposing banishment are easy “solutions” that carry with them enormous social, constitutional, fiscal, and human costs that may not become clear until years or even decades later. While there is certainly a necessary role for the criminal legal system to play in holding people who cause harm accountable for their actions, viewing it as the sole (or even primary) means through which societal change can be purchased misses opportunities to prevent these harms from occurring.

A public health perspective, for example, has been demonstrated in other contexts to reduce rates of sexual offending with approaches that don’t rely on punitive measures. Sexual assault resistance programs and bystander intervention training, for example, are effective in significantly reducing rates of sexual violence on college campuses. These approaches work by investing in comprehensive and layered perspectives of social problems to address the underlying causes, and therefore prevent them—not merely punish them.

Banishing people does not mean that they cease to exist in our society; it only means that they can now less effectively navigate it.

One piece of a public health approach might look like this: In an area where reports of sexual assault were on the rise, transit budgets were slashed, resulting in more overcrowding. Spending money on addressing overcrowding, as opposed to incarcerating people for longer periods of time, would most likely have a more significant impact on preventing these offenses. Less overcrowding would mean fewer opportunities for surreptitious assaults, a higher likelihood of detection and apprehension (and thus deterrence), and additional opportunities for bystanders to intervene.

Banishing people does not mean that they cease to exist in our society; it only means that they can now less effectively navigate it. Cutting people off from resources, support, and community has the unsurprising effect of making it more likely that someone will commit another offense. In New York City, where millions rely on mass transit, banishment would effectively cripple the ability of those exiting the criminal legal system to reintegrate. If people who commit repeat offenses have high needs—such as the 41-year-old man the New York Post reports is repeatedly arrested for sucking his thumb and masturbating on the subway—then a better approach would be to ensure that those needs are being addressed in meaningful, safe, and effective ways. Casting people into an urban wilderness does little to ensure their success, or the safety of our communities.

Governor Cuomo referenced the precedent for this policy—that New York, and many other states, prohibit people with sex offense convictions from living within proscribed distances of places like schools and parks, which has the de facto effect of banishment from entire neighborhoods. Precedent in this area of law and policy has a knack for rapid expansion. Over the last few decades, sex offense registries have grown rapidly, in both punitiveness and scope. In 2019, there are more people required to register than there are people sitting in America’s jails. What began as relatively simple lists soon became something closer to open-air prisons. Other types of registries have also been rapidly adopted by states: violent offenses, drugs, animal abuse, white collar crime. Cuomo’s precedent-as-justification resembles something of a dark omen: Once a ban is implemented, it only seems a matter of time before it expands.

Draconian and exclusionary policies have traditionally functioned as a way for politicians to exploit sexual harms as an easy way to win votes and boost sagging approval ratings, but have done little to meaningfully address harms (sexual or otherwise) in our society. Just as we hold people who cause harm to account, we ought to hold our officials to account and demand that serious problems be taken seriously.

Guy Padraic Hamilton-Smith is the legal fellow for the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law, and routinely writes about sexual violence prevention, civil rights, and criminal justice for a variety of outlets. His own experiences with the sex offense registry inspired him to go to law school, which he has written about here. You can follow him on Twitter @G_Padraic.

Texas Plans to Execute a Man For A Murder He Didn’t Commit

Patrick Murphy didn’t even learn about the murder until later that day. A controversial law allows him to be executed anyway.

The execution chamber in Huntsville, Texas
Joe Raedle/Newsmakers

Texas Plans to Execute a Man For A Murder He Didn’t Commit

Patrick Murphy didn’t even learn about the murder until later that day. A controversial law allows him to be executed anyway.

In 2000, Patrick Murphy and six others orchestrated the biggest prison escape in Texas history, seizing control of the guard tower and driving a prison truck out the gate of their maximum-security prison southeast of San Antonio. The group robbed two stores near Houston before attempting to steal cash and dozens of guns from a sporting goods store near Dallas on Christmas Eve. Murphy, who each time acted as a lookout from a parked van outside, radioed the others when he heard the robbery reported on the police scanner.

The leader of the group told Murphy to head to their appointed meeting spot, while the six others ran through emergency exits at the back of the store. There, they found police officer Aubrey Hawkins. Several of the men fired, shooting Hawkins 11 times, and running over his body as they escaped the scene.

Murphy is scheduled to die by lethal injection on Thursday evening for the murder. He didn’t pull the trigger; in fact, a co-defendant testified that he did not want to participate in any of the robberies. He didn’t even learn about the shooting until the group reunited later that day.

But none of that matters under Texas’s controversial law of parties.

He didn’t pull the trigger; in fact, a co-defendant testified that he did not want to participate in any of the robberies.

Under the law of parties, if people conspire together to commit a felony (in this case, armed robbery), and one person commits an additional felony in furtherance of the first one that could have been anticipated, “all conspirators are guilty of the felony actually committed, though having no intent to commit it.” In other states, a similar doctrine is known as felony murder. When Murphy and the others were apprehended in Colorado more than one month after the shooting, everyone was charged with murder, except for one member of the group who died by suicide before his arrest.

As Murphy’s execution approaches, state lawmakers are raising concerns about the law. Legislation pending in the Texas Senate and House would limit the death penalty for people convicted under the law of parties. Murphy’s attorneys at the University of Houston Law Center argued in a request for commutation or a 90-day reprieve this month that the bills’ passage “would constitute a new legal basis by which Murphy could seek to have his claim heard by the state courts.”

But on Tuesday afternoon, the Texas Board of Pardons and Paroles denied the petition by a vote of 7 to 0. The courts also denied Murphy’s request this week for injunctive relief in a separate argument that the state is violating his religious rights by not allowing his Buddhist spiritual adviser in the execution chamber. His attorneys appealed that denial to the US Supreme Court on Wednesday. His other remaining hope is his petition to Governor Greg Abbott, requesting a one-time 30-day reprieve (the governor cannot grant commutation unless it is recommended by the board).

If those avenues fail, Murphy will be executed tonight at 6 local time.

Other states are beginning to question the doctrine that allows courts to treat accomplices and getaway drivers the same as those who planned and carried out murder. Last year, California narrowed the scope of its similar “felony murder rule,” making it impossible to be convicted of murder, absent “major” participation in the killing or intent to kill. Since 1980, eight other states (Michigan, Kentucky, Hawaii, Vermont, New Hampshire, New Mexico, Arkansas, and Massachusetts) have eliminated or limited the scope of their felony murder laws.

In Texas, at least six people have been executed under the law of parties, despite not being the actual murderer, since the death penalty was reinstated in 1982. Most recently, Joseph Garcia, one of Murphy’s accomplices, was executed in December.

Like Murphy, Garcia petitioned for commutation, maintaining until his death that he did not shoot during the 2000 murder. Commutation in Texas is extremely rare: Just three people have had death sentences commuted to life imprisonment since 1982, most recently Thomas Whitaker in 2018. In 2007, the governor commuted the sentence of Kenneth Foster, who had acted as a getaway driver in a 1996 robbery-turned-shooting and was convicted of murder under the law of parties.

If Murphy’s execution moves forward, he will be the fifth member of the so-called Texas 7 to be executed for Hawkins’s murder. The final member is on death row.

Murphy’s attorneys wrote in his denied clemency petition: “Carrying out the execution of Patrick Murphy, who neither fired a shot at Officer Hawkins nor had any reason to know others would do so, would not be proper retaliation but would instead simply be vengeance.”

Albany Police Shot a Teen in the Back and Paralyzed Him. The D.A. Said It Was Justified.

Activists suspect the investigation was tainted by the close relationship between the police and prosecutors.

Illustrations by Richard A Chance

Albany Police Shot a Teen in the Back and Paralyzed Him. The D.A. Said It Was Justified.

Activists suspect the investigation was tainted by the close relationship between the police and prosecutors.

The last day Ellazar Williams had full use of his legs was Aug. 20, 2018.

It was an 80-degree day—warm enough that Williams, 19, could walk around without a shirt. That’s how he appeared in surveillance footage captured that afternoon by cameras at R & A Grocery. In the footage released by the Albany County District Attorney’s Office, Williams can be seen entering the market with a male companion. Williams’s companion argued with the store’s owner before they left without incident.

When they returned to the market a few hours later, a minor disturbance ensued, according to the DA’s office. An object was thrown at the storefront. None of the surveillance cameras showed Williams as the thrower. When he was seen again on surveillance, the teenager was no longer shirtless. He wore a dark-colored hooded sweatshirt and jeans.

A store employee phoned police, telling them that a Black man wearing a gray hoodie and blue, faded jeans had flashed a gun and threatened to use it.

“A whole bunch of people came to the front of the store,” the caller told an Albany police dispatcher. “They brought guns, and they threw a water bottle at the door.”

At approximately 4:30 p.m., Albany Police Detective James Olsen, along with Detectives Christopher Cornell and Lawrence Heid, responded to the call. Williams, walking in the area with a group of young men, fit the 911 caller’s description.

“Police, stop!” yelled Heid, who drove Olsen and Cornell in an unmarked vehicle.

Surveillance cameras recorded Williams as he fled on foot, running into a gated courtyard behind a school. Olsen got out of the car to chase Williams. Although neither of them could see Olsen or Williams, according to authorities, Heid and Cornell claimed they heard their colleague command the teenager to “drop it” and get on the ground.

Then two shots rang out.

Olsen later said he opened fire because Williams ran toward him with a shiny object and, suspecting it was a weapon, he feared for his life and the lives of his colleagues. Williams dropped the object, authorities claimed. But surveillance cameras didn’t clearly capture that part. Footage only shows Williams running from the officer, tripping and getting back up, before he continued to flee. Olsen shot Williams in the back.

Albany police didn’t recover a gun from Williams. However, officers found a large hunting knife nearby. At the hospital where Williams was treated, staff removed a knife sheath from Williams’s jeans and gave it to Albany police detectives. The sheath fit the knife.

One of the two bullets Olsen fired at Williams was lodged in the teen’s spine. Just a few hours after he first appeared at the West Hill market, Williams laid paralyzed from the chest down in Albany Medical Center. More than seven months later, Williams’s attorneys say he is permanently paralyzed.

The shooting has frayed the already damaged relationship between Albany residents and law enforcement, community advocates told The Appeal. For years, the city’s police, clergy and activists had worked to build trust through a series of initiatives that kept some people from coming into unnecessary contact with the criminal legal system. But at the same time, the city was grappling with gun violence concentrated in majority-Black neighborhoods (the city is 55 percent white and 29 percent Black).

By August 2018, police recorded at least 43 shootings and 10 homicides for the year, with nearly half of them occurring in the West Hill neighborhood where Williams was shot. Law enforcement responded to the spate of violence by tasking police detectives with removing illegal street guns in an operation that mostly targeted the capital city’s Black, Latinx and poor-to-working-class neighborhoods. The shooting, and the way city leaders have handled the fallout, has worsened tensions with law enforcement, community advocates said.

While activists called for accountability in the wake of the Williams shooting, Albany County District Attorney David Soares quickly brought criminal charges against the paralyzed teenager. Although surveillance cameras did not catch the moment when Olsen said Williams charged at him with a knife, Soares sought Williams’s indictment for felony menacing of a police officer and misdemeanor weapons possession.

Meanwhile, the DA’s office investigated Olsen’s use of force. The parallel investigation was carried out by the office’s investigative unit, which community activists have criticized as blatantly unfair to Williams. Six of the unit’s nine investigators are former Albany police officers, including two detectives who worked with Olsen. Those investigators have a lot of influence over what’s presented to the grand jury, said Paul Grondahl, a weekly columnist for the Albany Times Union.

Illustration by Richard A Chance

“These detectives are practically second-string prosecutors,” Grondahl, who has covered police and crime in the city for over 30 years, told The Appeal. “There’s a weird relationship [between the DA and the investigators], just in general, and that certainly came into play in this case.”

For 16 weeks, the investigative unit compiled the evidence that would be presented to a grand jury. Ultimately, on Dec. 14, 2018, Soares announced that Olsen had been cleared of criminal wrongdoing in the Williams shooting. The grand jury had reviewed the evidence in the case for three weeks, Soares said.

After interviewing witnesses, reviewing numerous statements, consulting with experts and enhancing distorted video footage, the facts were presented to a grand jury that determined the detective’s use of force was reasonable under the circumstances,” Cecilia Walsh, a spokesperson for the DA’s office, said in a statement emailed to The Appeal.

Olsen, a 22-year veteran officer, retired from Albany’s police force Jan. 4.

After weeks of outcry, Soares dropped the criminal charges against Williams, saying in a Jan. 8 statement that there was “nothing to be gained” from prosecuting the teenager.

While activists called for accountability in the wake of the shooting, Albany County District Attorney David Soares quickly brought criminal charges against the paralyzed teenager.

Just days after Olsen was cleared of wrongdoing, on Dec. 16, Williams filed a federal civil rights lawsuit against Albany police. The complaint alleges that, although Williams had not committed a crime, Olsen chased him and used excessive force, violating his Fourth and Fourteenth Amendment rights to due process and against an unreasonable search and seizure. Cornell and Heid also violated Williams’s rights by failing to prevent Olsen from using excessive force, the complaint alleges.

Williams is seeking unspecified damages for “extensive medical attention since the shooting, including hospitalization, wound care, pain management, neurological care, rehabilitative care, physical therapy, [and] psychological care for depression resulting from being chased and shot and from being permanently paralyzed,” according to the complaint.

Through an attorney, Williams declined The Appeal’s request for an interview.

“We look forward to our day in court, where once again, as with the grand jury, the officers involved will be found to have been acting in self-defense from the actions of a young man who had terrorized a convenience store owner and his family prompting a 911 call and threatened the responding officers with an 8-inch Rambo style hunting knife,” Stephen J. Rehfuss, an attorney for Olsen, Cornell and Heid, wrote in an email to The Appeal.

Steven Smith, a spokesperson for the Albany Police Department, declined to comment, citing the pending federal lawsuit.

Local organizers told The Appeal that they had hoped for change under Soares, the first Black Democratic district attorney in Albany County who, 15 years ago, promised to address racial disparities created by the state’s strict narcotic drug laws. Just before unseating an incumbent white Democrat in 2004, Soares ran on a platform promising to help reform the state’s Rockefeller-era drug laws, which after decades on the books led to the disproportionate mass incarceration of African Americans. Soares won re-election in 2008 and 2012. He ran unopposed in 2016.

“People in the progressive community, including me, we thought [Soares] was going to be a breath of fresh air,” Alice Green, a civil rights activist and founder of Albany’s Center for Law and Justice, told The Appeal. “He hasn’t been good when police officers murder or shoot black people.”

In 2015, Soares angered many in the community when he did not secure a grand jury indictment against four Albany officers accused of using a stun gun on Donald Ivy Jr., an unarmed mentally ill man who died following the encounter, sparking protests and contributing to simmering mistrust of law enforcement. The city ultimately settled with the man’s family for $625,000.

“Justice is blind,” Soares wrote to Albany Mayor Kathy Sheehan in a 17-page letter detailing his office’s investigation. “As leaders, we cannot be blind to problems in our criminal justice system. … Peace for the Ivy family will be achieved only when we have taken all of the steps to ensure that a tragedy like this does not happen again.”

Members of the public are rightly suspicious. They wonder if there can be a full, fair and arms-length investigation that will truly look at whether the officer is at fault.David Harris, law professor at University of Pittsburgh

But Soares’s progressive leanings on other issues have helped establish his profile beyond Albany County. Last year, Soares was elected president of the District Attorneys Association of the State of New York, a lobbying group that represents all 62 of the state’s district attorneys.

Soares supported “Raise the Age” juvenile justice legislation, sponsored a program that diverted youth ages 16 to 24 from the Albany County Correctional Facility and, in December, de-emphasized the prosecution of simple marijuana possession in the county.  However, under his leadership, the DA’s association has lobbied against other progressive criminal justice reforms.

In October 2018, the association sued to block legislation that would have created an independent oversight commission for New York DAs. Their opposition immediately froze the commission in its tracks.

“This flawed and unconstitutional bill will unnecessarily and detrimentally interfere with the fundamental duties of our prosecutors and not bring about any meaningful oversight,” Soares said after state lawmakers voted to establish the New York Prosecutorial Misconduct Commission. “The interference will breed more public corruption and distrust of our public officials.”

Soares’s decision not to charge Olsen is far from unusual. It’s rare for a police officer to face criminal charges for injuring or killing someone while on the job. According to research on police accountability, this is in part due to the close working relationship between prosecutors and police, which creates a conflict of interest for prosecutors investigating shootings. An analysis by The Guardian found that 85 percent of the killings by police ruled justified in 2015 were handled by prosecutors who worked with the same police department.   

More than 18,000 law enforcement agencies in the U.S. work hand in hand with local prosecutors, who rely on officers to bring cases and to serve as witnesses in criminal courts. Even if the prosecutors conduct the most neutral investigation, the institutional relationships are too close to foster broad public confidence in use-of-force investigations, said David Harris, a University of Pittsburgh law professor who specializes in policing issues.

“Members of the public are rightly suspicious. They wonder if there can be a full, fair and arms-length investigation that will truly look at whether the officer is at fault,” Harris said in a phone interview. “It isn’t that an investigation can’t be done well by a DA’s office, or that these former police officers could not or would not give you a straight investigation, but what you want is for the public to believe and trust that it is so.”

After so many high profile missteps, however, it’s hard to imagine that the public will fully trust the unit’s work, Harris said.

Bringing in an independent prosecutor can head off that perceived conflict of interest. In its final report, released in May 2015, President Barack Obama’s Task Force on 21st Century Policing urged communities to embrace “the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.”

Many states and counties have considered changes to their policies on officer-involved shootings, particularly after the 2014 fatal police shooting of Black teenager Michael Brown in Ferguson, Missouri, Harris said. After a secretive grand-jury process, then-St. Louis County prosecutor declined to charge Officer Darren Wilson in Brown’s death, sparking nationwide protests.

Illustration by Richard A Chance

New York requires that the attorney general take over the investigation of an officer-involved shooting only if the shooting results in the death of an unarmed person. Green had called for a special prosecutor to step in to investigate the Williams shooting anyway, but Soares declined to recuse himself. From his perspective, his office had obeyed Governor Andrew Cuomo’s 2015 executive order requiring him to contact the Attorney General’s and get confirmation that Albany County was the appropriate jurisdiction for the investigation.

“The grand jury found that Det. Olsen committed no wrongdoing, therefore Mr. Williams was never legally declared a victim of crime and a legal conflict did not occur for our office to handle the case to a final resolution,” Walsh, the spokesperson for the Albany County DA’s office, wrote in an email to The Appeal.

Soares was not a supporter of Cuomo’s executive order. In 2015, when Soares was 2nd vice president of the state’s district attorneys association, the group blasted the directive as “gravely flawed” and predicted that it would “harm the cause of justice.”

“District attorneys have far more experience—and resources—in dealing with these cases than either the governor or the attorney general,” Gerald Mollen, a former association president, said in a statement about the executive order. “District attorneys have also learned from long, sometimes painful experiences that or legal system cannot always heal the pain a family suffers from the loss of a loved one. But our system of criminal justice, although not perfect, does work.”

The District Attorneys Association of the State of New York did not respond to The Appeal’s request for comment about police-district attorney relationships.

In February, nearly two months after Olsen was cleared of wrongdoing in shooting Williams, the case was still a point of frustration in the community. On a recent evening at the Center for Law and Justice headquarters, area residents trickled in for a monthly meeting of a racial justice discussion group. The group, led by Green, got its start when several residents expressed interest in legal scholar Michelle Alexander’s 2010 book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”

Green had been a key advocate for Albany’s implementation of Law Enforcement Assisted Diversion, a community-based intervention that allows police officers to divert people to a network of harm-reduction services and that chokes the pipeline to incarceration for people struggling with addiction, mental illness, and poverty.

In 2015, Albany police received a $70,000 grant for the program. Coupled with Soares’s commitment to divert youth from the county jail by raising the age of prosecution for certain offenses, LEAD helped reduce the Albany County jail population to historic lows, the DA’s spokesperson said.

Green said she fears Williams’s shooting jeopardizes the progress made under the LEAD program.

We’ve done a lot of work to change the culture,” Green said at the meeting. “We’ve changed the training of police officers. We’ve diverted a fair number of people from the system, even though [LEAD participants are] disproportionately white.”

About a half-dozen meeting attendees, white, Black and much older than Williams, sat around a long wooden table underneath portraits of civil rights icons Martin Luther King Jr. and Malcolm X. Some of the attendees said they had met Williams a few days earlier at a screening of the Marvel film “Black Panther” that Green hosted for Black History Month.

David Walker, 89, of nearby East Greenbush, New York, said he saw that Williams just “wants a chance” to live a productive life. “He could still smile. If we can’t save somebody like this, then we’re doing something wrong,” Walker said at the discussion group.

Community suspicions about the Williams case investigation can’t be swept under the rug, Green said during the discussion group. In a public report that she drafted after the DA’s December press conference, Green called on Soares to clarify what, if any, threat Williams posed to Olsen. Video evidence simply doesn’t support the detective’s claim that the teen charged at him with a weapon, she said. And how is it that investigators tied the weapon conclusively to Williams, Green wondered in the report.

The activist also asked that Albany Police Chief Eric Hawkins—he is the first African American to lead the department in more than 20 years and was confirmed by the City Council one day after Williams was shot—release “a written investigation report to the community that includes all surveillance camera videos, dashcam videos, and or audio recordings in possession of the police department related to the incident.”

Weeks after Green made the requests, Soares responded. “Thank you for inquiring about my public presentation on police use of force,” the DA wrote in a letter dated Jan. 28. “I will be making an announcement regarding the aforementioned subject in the near future.”

In late February, the DA had not followed through, said Green, who concluded that Soares had no intention of opening up about use-of-force investigations. However, in mid-March, Walsh, the spokesperson for the DA’s office, confirmed Soares was making plans for a community event that would be announced “once details are finalized.”

Our office looks forward to the continued conversation about use of force and the evolving role of transparency for prosecutors in the criminal justice system,” Walsh said. “We have done this during and after previous incidents, and maintain our efforts to have an open dialogue with community.”

Green said that without continued dialogue, it’s possible that the area’s Black teenagers will start to believe that they could be the next Ellazar Williams.

“There has always been major concern that, even though we’ve embraced community policing and we’ve done all these things, those kids on the street are saying, ‘Hey, I don’t know anything about community policing. They’ll still stop me and do the same thing.’”

One Simple Way To Hold Bad Prosecutors Accountable

State bar organizations have the power to discipline prosecutors, but they studiously ignore bad behavior.

Peter Calloway and Jeff Adachi
Courtesy of Peter Calloway

One Simple Way To Hold Bad Prosecutors Accountable

State bar organizations have the power to discipline prosecutors, but they studiously ignore bad behavior.

A man is accused of stealing a laptop. On the prosecutor’s desk is a secret DNA report showing that a different man was the culprit. The prosecutor withholds the report from the defense for a year while the man sits in jail.

Another man is convicted of murder. Prosecutors never tell the defense that someone else confessed to the crime. The confession is eventually discovered, and after nearly 14 years in prison, the man is released.

These aren’t outlier cases. They are part of an epidemic of prosecutorial misconduct that plagues our nation’s courts, severely undermining the rights of people accused of crime and driving America’s human caging crisis. It’s an epidemic allowed to thrive because when prosecutors are caught hiding evidence or using other crooked tactics, they’re almost never punished by their own offices or by the bodies that govern professional standards for attorneys. The State Bar of California, like its counterparts across the country, enables the status quo by refusing to take allegations of prosecutorial misconduct seriously.

Protecting the public

The primary duty of state bar organizations, which license and govern conduct by attorneys in their jurisdiction, is to protect the public. They are supposed to hold attorneys accountable when they violate legal and ethical obligations. But when it come to prosecutors, they rarely do so.

One study found that in California, from 1997 to 2009, there were 707 instances where a judge found that a prosecutor committed misconduct. Only six of those—less than 1 percent—resulted in a public sanction by the state bar. And even that number significantly underrepresents the problem: Most instances of prosecutorial misconduct do not result in a judicial finding in the first place, because the misconduct either goes undiscovered or is not taken seriously by the courts.

Other states are no better than ours. In Massachusetts, as of April 2016, only two prosecutors had been publicly disciplined since 1980, despite at least 142 instances over that same period where a judge reversed a guilty verdict or dismissed charges based on a prosecutor’s misconduct. In contrast, over 1,400 non-prosecutors have been disciplined in Massachusetts over roughly the last 15 years. And in Louisiana, the first professional sanction against a prosecutor didn’t occur until 2005.

The primary duty of state bar organizations, which license and govern conduct by attorneys in their jurisdiction, is to protect the public.

Our office confronts this problem regularly. In 2017, we filed a complaint with the State Bar of California about an assistant district attorney, Benjamin Mains. We presented evidence of his misconduct from seven serious cases he prosecuted against our clients. We included transcripts, emails, and other evidence showing, among other things, that Mains failed to disclose exculpatory DNA evidence that, when disclosed later by another prosecutor, led to a burglary charge being dismissed; that he improperly and illegally commented on our client’s invocation of his Fifth Amendment right not to testify at trial, leading a judge to grant our motion for a new trial; and that he failed to disclose exculpatory witness statements that left him without probable cause to prosecute.

Despite our meticulously documented and substantial claims, and the fact that Mains was terminated from his job with the district attorney’s office, the state bar declined to file charges. The bar’s letter informing us that it would not prosecute did not draw on any investigation beyond our submissions and Mains’s response. The bar didn’t interview a single witness, not even the prosecutors who inherited the cases from Mains and ultimately turned over the evidence in question. Instead, the investigators seemed to accept at face value Mains’s claim that he simply wasn’t aware of the existence of exculpatory evidence in multiple cases, blaming his errors in part on a high caseload.

Seeing people, not ‘criminals’

Prosecuting 1 percent of cases is better than prosecuting none of them, and the bar does sometimes take action. In October, it charged Andrew Ganz, an assistant DA in San Francisco, with multiple ethical violations for suppressing evidence in a homicide case in another county. The State Bar Court recommended that Ganz be suspended for 90 days. The bar should be commended for its efforts in prosecuting Ganz, who is still a prosecutor in San Francisco.

But when such an outcome is exceedingly rare, it’s time to rethink the bar’s role in addressing the epidemic of prosecutorial misconduct.

There are many reasons for our state bar’s extremely low rate of prosecution. One is a lack of resources; the bar simply does not have enough staff to fully investigate and prosecute the many instances of prosecutorial misconduct that occur daily across California. This could be resolved through additional funding from the legislature, perhaps starting with 10 new investigators devoted solely to this critical issue.

But another reason relates to systemic issues that infect the criminal legal system more broadly. Because of the racial and socioeconomic biases that pervade American society, poor people and people of color are significantly overrepresented in the criminal legal system. Due in part to these biases, people who become ensnared in that system are routinely dehumanized by it. And when their rights are violated, the wrongdoing is often either ignored or dismissed as a necessary part of the machine’s perpetual grind. The state bar works within this framework.

When people are accused of crime—most of them former victims—they cease to be seen as people by our legal system and become merely “criminals.” If the accused were seen as fully human—people with family and friends, feelings and desires, people with flaws but who are capable of redemption—it would be impossible for the system and the actors in it to so thoughtlessly process our clients’ bodies. Prosecutors might be less likely to hide evidence or misrepresent facts to coerce a plea. Judges might be less tolerant of misconduct, and would privilege justice for people over moving these cases, these numbers, through their courtrooms. And the state bar would take allegations of misconduct by prosecutors as seriously as it takes allegations that a civil attorney mishandled client funds.

By failing to hold prosecutors to basic professional and constitutional standards, the state bar facilitates the mechanical processing of so many Black and brown bodies that has come to characterize modern American criminal “justice.”

Misconduct and mass incarceration

Even when working as designed, our criminal system functions to protect the privileged and harm the disenfranchised. When powerful prosecutors don’t play fair, things become even worse. The ethical rules that bind all attorneys recognize the potential for harm by declaring that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” But too often, instead of seeking justice, prosecutors seek convictions at any cost.

Prosecutorial misconduct undermines the presumption of innocence, a fundamental principle of our criminal system that applies to all people the state accuses of crime. It erodes the constitutional right to a fair trial. And it contributes to some of the most shameful statistics produced by our society: Around 2.3 million people are caged in this country at any given moment, more than in any other country now or in recorded history. And 4.5 million more are on probation or parole. One of two adults in the United States has had a family member in jail or prison. The suffering behind these numbers, the devastation they represent—not just to individuals, but to communities and through generations—is profound.

When people are accused of crime...they cease to be seen as people by our legal system and become merely “criminals.”

How does misconduct help drive these numbers? Mostly through plea bargaining, a coercive process that results in around 97 percent of criminal cases being resolved without a trial.

Imagine you’re charged with a robbery you didn’t commit. The prosecutor’s case is based solely on an eyewitness who says you match the description of the suspect. You’re confused and scared—you’ve heard the stories of innocent people going to prison. The prosecutor doesn’t tell you, but the witness has a history of lying under oath.

If you knew about the witness’s past, you could use that information to show the jury that the witness shouldn’t be trusted. There would be no other evidence against you, and you would most likely be acquitted or the case would be dismissed. But you don’t know about it. All you know is that if you go to trial, the prosecutor will put a witness on the stand who will tell the jury that you definitely committed the robbery. You also know that if you’re found guilty, you could face up to nine years in prison.

The prosecutor offers to let you plead guilty to a lesser charge, one that carries a potential sentence of just two years and will probably result only in probation. What would you do?

Now repeat that process, and variations of it, tens of thousands of times.

Without plea bargaining, our criminal system could not process the nearly 11 million arrests that occur every year; so many trials would cause the system to collapse. And without misconduct, particularly in the form of hidden or late-disclosed evidence, many fewer people would plead guilty.

Prosecutors wield immense power in the plea bargaining process because they decide what charges to bring and when and what evidence to disclose, and their misuse of that power has helped create our mass caging crisis. They won’t face criminal consequences because even when their behavior rises to the level of illegality, their colleagues are unlikely to bring charges against them. And civil liability won’t work because prosecutors are essentially absolutely immune from civil suits. But professional discipline by state bar organizations could help remedy this problem.

Given their capacity for harm, when prosecutors act unethically, state bar organizations should take seriously their duty to protect the public. They should rigorously investigate credible claims of misconduct and impose meaningful penalties on errant prosecutors, using the power we confer upon them for precisely that purpose.

State bars must be for the people. And the people who place faith in the criminal system—the accused, the victims, and the rest of us—deserve better than we’re getting from our prosecutors and from our state bars.


Note: On February 22, 2019, while this piece was in its final editing stages, Jeff passed away unexpectedly. His loss is deeply tragic, for his family, of course, and for our office, but also for San Francisco and the nation. Jeff was a visionary. A warrior for justice unlike any I’ve known. He saw the humanity of all people and fought tirelessly to free them from literal and figurative constraints so they could reach their potential. Jeff’s impact was wide and deep—immeasurable, really—and he has inspired an army of lawyers and activists who are dedicated to carrying on his fight: to bring justice to the criminal system. It is my great honor to have written this with him, and to have worked closely with him over the past year on an issue that we both care so much about. – Peter Calloway

Jeff Adachi was the public defender of the City and County of San Francisco. Peter Calloway is an attorney working with the San Francisco Public Defender’s Office on prosecutorial accountability.

Undercutting reform, Florida moves to ban certain people from ever voting again

Lawmakers are redefining certain crimes in order to carve out broad exceptions to who can regain the right to vote.

Neil Volz and Lance Wissinger prepare to fill out their voter registration forms at the Lee Country Supervisor of Elections office on January 08, 2019 in Fort Myers, Florida.
Joe Raedle/Getty Images

Undercutting reform, Florida moves to ban certain people from ever voting again

Lawmakers are redefining certain crimes in order to carve out broad exceptions to who can regain the right to vote.

When Lance Wissinger was 24, he made the mistake of driving his friend home from a bar after a day at a baseball game. The next thing he knew, he said, his car spun out of control, flipped, and ejected him and his friend onto the road. Wissinger sustained serious injuries and his friend, who rolled under the car, died almost immediately.

Wissinger’s blood alcohol level was above the legal limit, and he was convicted of DUI manslaughter. He spent roughly four-and-a-half years in prison, where he reflected on his mistake and decided to do what he could to help others in his position.

A few years later, while living in Fort Myers, he connected with the Florida Rights Restoration Coalition (FRRC) and helped fight for the restoration of voting rights for more than a million Floridians with felony records. In November, Wissinger, who is now 39, celebrated that he would finally regain his civil rights.

Wissinger now worries that celebration might have been premature. As Florida’s legislature meets this month, some lawmakers are trying to carve out broad exceptions to who can regain the right to vote. The amendment could exclude people who are still paying off fines and fees — and it could bar people convicted of such crimes as manslaughter, vehicular homicide, and attempted murder from ever voting again.

“I didn’t willingly have a gun or an object to create or cause harm, but what I did was make a poor choice,” Wissinger told The Appeal, explaining that he doesn’t believe he should be considered someone “convicted of murder.”

The constitutional amendment approved in November by 65 percent of Florida voters reinstates voting rights to U.S. citizens with felony convictions who have completed their sentences except those “convicted of murder or a felony sexual offense.” But lawmakers are still trying to hammer out what exactly that exception includes.

On Tuesday, the House criminal justice subcommittee debated and advanced a bill that includes a number of restrictions to the voting rights restoration amendment. Though it would not broaden the definition of murder beyond first and second-degree offenses, it would add dozens of sex-related offenses to the list of crimes that constitute “felony sexual offense,” such as trafficking and locating an adult entertainment store within 2,500 feet of a school, according to the Orlando Sentinel.

The bill also would require that court fines, fees, and financial obligations be paid off before someone is eligible to register to vote, even if the fees were not part of someone’s sentence and even if the individual never went to prison. Voting advocates call that stipulation a modern day poll tax. Rep. James Grant, the criminal justice committee’s chairman, disputed that characterization.

We’re going to fight as hard as we can to make sure the intent of the voters is upheld.Neil Volz, political director of the Florida Rights Restoration Coalition (FRRC)

Calling his bill a poll tax “diminishes the atrocity” of historical poll taxes, Grant said during the hearing. “To compare that to this is a slap in the face.”

The state Senate has not yet acted to clarify Amendment 4, and it’s possible that the version of the bill from the upper chamber could expand the definition of murder to include such crimes as manslaughter, vehicular homicide, and attempted murder.

Jeff Brandes, a Republican and one of the key senators drafting clarifying legislation this month, said he believed attempted murder should be a disqualifying offense.

“The question is, ‘What does it include?,’” Brandes said, according to the Tampa Bay Times. “Obviously murder—first degree, second degree—to me, that means attempted murder, because there’s intent.”

Grant and Brandes did not respond to The Appeal’s requests for comment.

Other lawmakers disagreed on which crimes should be included. Michael Gottlieb, a state representative and a former defense attorney, said that individuals convicted of manslaughter should not be included with those convicted of first- and second-degree murder.

“I didn’t think we should muddy the waters putting manslaughter into murder,” he told The Appeal. “One can be a negligent act, and the other is an intentional act.”

Still, he agreed that the Legislature needs to take action to clarify any confusion.

“Unfortunately these amendments, while well-intended, are placed on the ballot by certain groups and they’re not really vetted by the legislative process, where we get into committee and we really talk and try to get rid of these kind of problems and these types of distinctions,” Gottlieb told The Appeal.

According to the News Service of Florida, Grant instructed staff to include all felony sex offenses in the legislation.

“When the Constitution says ‘felony sex offenses,’ and that means nothing legally, the best I can do is propose a list of felonies that are sexual,” Grant said. “The reality is I’m going to do my best effort to maintain what I believe the rule of law now requires in a super-ambiguous constitutional amendment.”

Not everyone agrees that clarifying legislation is necessary. The ACLU of Florida says that the law is clear on what constitutes murder and felony sexual offense and the Legislature does not need to act in order to clarify the terms.

Neil Volz, political director of the FRRC, talks with Davion Hampton, a returning citizen working to help pass Amendment 4 in August 2018.
Kira Lerner

“The language was precise, was specific, and was designed to be self-implementing,” Micah Kubic, executive director of the ACLU of Florida, told The Appeal. “There is no need for additional clarification. The specific offenses that are excluded were spelled out in the language of the constitutional amendment, and they refer to specific things.”

Kirk Bailey, political director for the ACLU of Florida, told the Orlando Sentinel that the House bill is “an affront to Florida voters.”

“This is exactly what we were worried about from the beginning,” he said.

Neil Volz, political director of the FRRC, the group that led the effort to pass Amendment 4, told The Appeal that the drafters of Amendment 4 intended to exclude only those convicted of the “worst instances” of murder and sexual assault. Florida voters adopted the amendment with that intention in mind, he said.

“We’re going to fight as hard as we can to make sure the intent of the voters is upheld,” he said.

Lawmakers and advocates say they are concerned that there will be two negative consequences if the amendment is confusing or is clarified in ways that make it even more confusing.

Some are concerned that people may falsely believe they are eligible to vote when in fact they are not. If those people check the box on their voter registration applications indicating they have had their rights restored, they could be guilty of perjury—a felony that could send them back to jail.

Jack Campbell, a state attorney in the Florida panhandle, said that the bill is written in such away that he would not be able to prosecute anyone for voter fraud.

“Right now, that is ambiguous enough that my opinion is we are not going to be able to prosecute anybody unless it’s pretty blatant examples of fraud,” he told The Appeal. “For instance, if you’re currently incarcerated and you try to register.”

Campbell said that in order for him to be able to prosecute individuals for violating the law, the Legislature would have to clearly delineate which crimes are excluded and what qualifies as murder.

“I can’t exactly expect somebody to follow a law explicitly if I don’t understand what it says because I’m obviously more sophisticated than most people when it comes to criminal laws,” he said.

People who are in fact eligible might believe themselves not to be and decline to register as a result.Micah Kubic, executive director of the ACLU of Florida

“If it’s nebulous, it’s not going to be prosecutable,” he added, explaining that Florida prosecutors are not “interested in prosecuting somebody who didn’t understand where the line is.”

Voting advocates say they are encouraged by Campbell and other prosecutors’ declarations that they do not plan to bring charges against returning citizens for potential voter fraud, but, Kubic noted, there’s no guarantee that all prosecutors will feel the same way.

Kubic said that people have also been prosecuted in Florida in situations where it seemed  as though they lacked intent to violate the law.

“There are a number of offenses that require intent where people have been prosecuted under circumstances that others might describe as lacking intent,” he said. “It really does come down to prosecutorial discretion.”

Campbell, said he had no interest in filing charges against individuals who do not understand the law. In order to achieve that, some lawmakers said that Amendment 4 needs to be clarified.

“We really need to do something to try to uphold the intent of the voters and at the same time, make sure that we’re not recriminalizing people for making mistakes if they register,” Gottlieb said.

But another risk, which worries Kubic of the ACLU more than possible fraud, is that clarifying legislation might have a chilling effect on voter registration. If returning citizens are unsure whether they qualify for rights restoration, they may decide not to register and vote at all.

“The bigger concern that I would have is that people who are in fact eligible might believe themselves not to be and decline to register as a result,” Kubic said. “The misinformation would serve as a block on folks who are in fact eligible, even under this more onerous, more difficult standard.”

Despite data showing an uptick in voter registrations since Amendment 4 went into effect—Kubic said voter registration was up roughly 36 percent in January compared with the same period the two years prior—he still worries that this chilling effect could substantially reduce the number of people casting ballots.

“You could have thousands and thousands and thousands of people in that position who might be unclear on their status and so decline to register.”

Justice in America Episode 20: Mariame Kaba and Prison Abolition

Josie and Clint talk about prison abolition with Mariame Kaba.

Survived and Punished website

Justice in America Episode 20: Mariame Kaba and Prison Abolition

Josie and Clint talk about prison abolition with Mariame Kaba.

On the last episode of Season 2, Josie and Clint discuss prison abolition with Mariame Kaba, one of the leading organizers in the fight against America’s criminal legal system and a contributing editor for The Appeal. Mariame discusses her own journey into this work, provides perspective on the leaders in this space, and helps us reimagine what the future of this system could look like. Mariame’s way of thinking about this system, and the vision of possibilities she provides, is an excellent send-off to our second season.

Additional Resources:

More information on Survived and Punished can be found here.

Here’s the website for Free Marissa Now, which fought to free Marissa Alexander after she was sentenced to 20 years in prison for firing a warning shot to defend herself against her abusive husband. And here’s more information about Nan-Hui Jo, who was arrested for child abduction after she fled the country with her child to escape her abusive husband.

And check out the other organizations Kaba mentioned, including California Coalition for Women Prisoners and Critical Resistance.

Faye Knopp’s 1976 handbook, Instead of Prisons, can be found here.

To learn more about Ruth Wilson Gilmore and her seminal book, Golden Gulag, click here.  

As previous guest Sonya Shah did in episode 19, Kaba mentions Howard Zehr, known as the “grandfather of restorative justice.”

She also mentions INCITE!’s community accountability resources, found here, in particular their Creative Interventions Toolkit


Justice in America is available on iTunes, Soundcloud, Sticher, GooglePlay Music, Spotify, and LibSyn RSS. You can also check us out on Facebook and Twitter.

Our email is



[Begin Clip]

Mariame Kaba: What we’re saying as transformative and restorative justice practitioners is that the prison is actually an outcome of a broader system of violence and harm that has its roots in slavery and before colonization. And here we are in this position where all you then think about is replacing what we currently use prisons for, for the new thing.

[End Clip]

Josie: Hi everybody. I am Josie Duffy Rice.

Clint: And I’m Clint Smith

Josie: And this is Justice in America.  Each show we discuss a topic in the American criminal justice system and we try to explain what it is and how it works.

Clint: Thank you so much to everyone for joining us today. You can find us as always on Twitter at @justice_podcast, like our Facebook page at Justice in America and subscribe and rate us on iTunes, we’d love to hear from you.

Josie: Yes, thank you guys so much. Please email us at We want to hear your feedback, we want to know what topics you’d like for us to cover in the coming seasons or words or phrases connected to criminal justice you’d like us to breakdown. We want to know anything that might be interesting to you that we could teach you a little bit more about here on Justice in America.

Clint: So, today is a big day and a sad day but also a wonderful and triumphant day because it is the last episode of Season 2. We’re 20 episodes in. For me this is such a wonderful and generative process and I’ve learned so much and I feel so lucky to do it with my dear friend and we’re so grateful for all the folks who listen. I think it’s gotten greater listenership than we could have hoped for and we’re so grateful for the teachers who use it in their classrooms, for the people coming to this work for the first time learning about the criminal justice system, people who are sort of coming to refine and clarify their understanding. What you should know is that we are learning right along side you and we’re grateful for that.

Josie: Absolutely. I didn’t realize we were going to learn so much when we were starting this idea of doing this podcast and I’m so grateful to Clint for his partnership in this and just, you know, we’ve just covered so much amazing and interesting stuff this season and I think I’m really excited about today because it is a way to shift the conversation to what is possible.

Clint: Definitely and we’re doing something a little bit different because we are continuing the general topic that we discussed on our last episode in terms of reforms that would fundamentally change the entire system. So, restorative justice, prison abolition and those types of things.

Josie: Yeah, so last week we dug into restorative justice with our guest Sonya Shah, if you haven’t listened to it, please do. Today we want to talk a little bit about abolition to help set up our guest Mariame Kaba, who is the director of Project NIA, the co-founder of Survived + Punished and a researcher in residence at Barnard Center for Research on Women. Restorative justice is just one way to rethink our criminal justice system and one way to rethink accountability. And in that same way abolition is another way to sort of rethink the possibility of our criminal justice system. But before we talk about how restorative justice and abolition are related, let’s outline what prison abolition really is.

Clint: Fifteen years ago, Angela Davis wrote a book called Are prisons Obsolete? and in it she essentially outlines a case for prison abolition. She says, look, even people who care about this issue, who want to see real change to our system, have trouble imagining a world without prisons in it. But why would we assume that prisons are inherently necessary?

Josie: So, we know what you’re thinking. Whenever you kind of say the words “prison abolition” to people, it can sound really extreme right? People tend to think that of course we must have prisons. There are people out there who are dangerous, and who have done some really really bad things. And those people need to be locked up.

Clint: Perhaps you are even willing to concede that we could let 80 or 90 or 95 percent of people out of prison right now, and address wrongdoings other ways and it wouldn’t have any repercussions for public safety. But you also may believe that we still need to have that 5 percent locked away, otherwise we would all be in danger.

Josie: Yeah for most people, it’s difficult to imagine a world without prisons. It’s difficult for me to imagine a world without prisons.

Clint: Yeah. Same for me. I think it takes a lot of proactive work and proactive imagining that isn’t intuitive to the sort of society we live in. And it’s just so foreign and the instinct is to say, ‘this is the only way we can keep people safe, we should reform them and improve them and all of that, but we still have to rely on them.’ And to believe that prisons have no role in society is to be unrealistic or to believe in abstractions and not to be dealing in the real world as it is.

Josie: Yep, exactly. But Angela Davis makes a very good case that this is not true. So, she says in her book, “The most difficult and urgent challenge today is that of creatively exploring new terrains of justice where the prison no longer serves as our major anchor.” And I just, I love that line, because I think it really encompasses what we’re trying to do here.

Clint: And Davis’ argument echoes that of other abolitionists, including Mariame Kaba, who we will talk to in a few minutes. And what prison abolitionists have long argued is that people in America have trouble imagining alternatives to the justice system precisely because ours is so monstrous. “We think of the current system, with its exaggerated dependence on imprisonment, as an unconditional standard,” Davis says, “and thus have great difficulty envisioning any other way of dealing with the more than two million people who are currently being held in the country’s jails, prisons, youth facilities, and immigration detention centers.”

Josie: And she acknowledges that there is not another humane system we could build to replace the current one, right? We could not house as many people as the current system does in any other system. But that’s the point. We actually don’t have to replace the prison system with just one thing. In fact, we don’t have to replace it at all. Instead, abolitionists argue that getting rid of prisons, it would require an array of alternative solutions whose utility depends on the person, the wrongdoing, and the circumstances.

Clint: Those alternatives could include rigorous therapy, targeted treatment, housing, restorative justice, education, employment. There are countless possibilities, all of which could, as Davis phrases it, “crowd out” the criminal justice system. And its important to keep in mind that people who are prison abolitionists have a much larger intellectual and political framework for the way that they imagine prison abolition taking place. So it’s not necessarily, and I can’t speak on behalf of every prison abolitionist obviously, but its not necessarily letting all of the people out of prison right now, in this moment, and destroying the prisons with sledge hammers, although I imagine there are some people who do want that as well. What it’s really about is saying, how can we create a set of social and systemic structures that make it so that we are diminishing the power of the prison, investing in communities where the realities of what put people on trajectory to prisons aren’t the current social realities anymore? And so how can we sort of continuously diminish the need for and the power of this institution that we know continues to cause harm and harm and harm again.

Josie: And I think to that same point, this criminal justice reform community includes a lot of people who advocate for prison abolition. And in the meantime, what they are pushing for, is an end to new prisons, right? They are pushing for decarceration. They are pushing for proactive solutions that prevent people from going to prison in the first place. So, it’s not that its abolition or nothing, right? It’s that we think of abolition as the end goal, that we would really have a healthier society if we did not have to rely on prisons, or choose to rely on prisons.

Clint: And I think a helpful framework for me to remember is always the way that we think of what constitutes as something as radical or realistic and thinking about the sort of historical precedence of that. I always think for myself about slavery and I think about how you know I think in our minds we all think that all of us would be Frederick Douglass if we lived back in 1860 and what we have to remember is that there were very few people, like abolitionists were not at all reflective of the thinking of the sort of larger populous at that moment. Most people is you went and said, “I’m an abolitionists,” they would look at you like you were crazy.  

Josie: Right.

Clint: They would say ‘that’s unrealistic, the United States had never actually existed as an institution without the institution of slavery alongside it.’ I mean, in fact slavery, you know, the US became the US in 1776, slavery has existed since 1619 so even more than 150 years prior to the United States becoming an official independent country we had had slavery here and so for so many people the idea that slavery would be abolished, the thing that was the sort of economic bedrock of not only the South but also the industries of the North, the idea that you would get rid of that seemed ridiculous to people.

Josie: Right.

Clint: And so I think it’s worth remembering that when somebody calls for the abolition of a system that our country has never existed without, it is a difficult thing to wrap your head around our country existing without that institution but it is also important to remember that this is something that we have done before and it is important to remember that now we look back at the people who chose to imagine a different world and who chose to imagine a different system in the most positive sort of way and as reflective of the way that we would imagine ourselves to be. And so that’s just a helpful framework and thing that I think is important to keep in mind as we decide what is ridiculous or what is not a ridiculous sort of policy initiative.

Josie: Yeah I think that is really true and I think part of this is imagining what a perfect world looks like. So often we get caught up in the legislative victory or the small policy victory and the way to see a path forward is to really see the end. And the end is a world without prisons, a world where people are safe without the American prison system. And you know for those who think this sounds absurd and impractical, I think it’s worth keeping in mind that our current system is also impractical and also absurd. You know, people come out of our current criminal justice system worse, not better. And this is a feature of the system, it’s not a bug. In other words, this is not a system built to make anyone better or to really rehabilitate them or to address the harm that they’ve done or focus on repair and healing. And in that way, you know, this is sort of what I think abolition and restorative justice have in common. They’re both focused on not just addressing the situation at hand but really making people, healing them inside, their trauma, their hurt and insuring that they can have consequences for their actions but not in ways that destroy them.

Clint: Abolitionists argue that the system as it currently exists does more harm than good, and that you can’t end violence, harm and destruction through a system designed to subject millions of people to violence, harm and destruction.

Josie: When you really think about it you can see that is really doesn’t make much sense to advocate for maintaining a system that has basically proven itself worthless. And actually, worthless doesn’t even do justice to the problem here. This is a system that causes actual harm to millions of people every single day. So the idea of prison abolition and restorative justice, these are some of the bold alternatives that people are discussing.

Clint: Just like last season, we’re ending the season by interviewing someone that we admire, adore, want to be number in their fan club, me and Josie are fighting for the number one slot. Mariame Kaba, @prisonculture on Twitter, who you heard in the clip at the beginning of the show.  She is brilliant, she is inspiring and she, I think, has pushed me and pushed my thinking over the last several years in following her and listening to her and reading her work in ways that I am deeply grateful for. Again just one of the most important folks working in the world of criminal justice today.

Josie: Right. I just feel that Miriame in particular makes me think about the system in a whole different way. Everytime I talk to her. And honestly this system is pretty much all I think about so that’s kind of a big deal. So I’m excited for you all to hear our conversation with her.

Clint: Mariame, Josie and I spent some time together pretty recently up in New York where we discussed prison abolition, restorative justice, the criminalization of survivors and so much more. So stay tuned for our talk with Mariame Kaba and we hope you enjoy it as much as we did.


Clint: Our guest on the show today is Mariame Kaba, who is the Director of Project NIA, co-founder of Survived + Punished, and researcher in residence at Barnard Center for Research on Women and just generally is a phenomenal writer, the best person you will follow on twitter and we are so grateful for the range of important work that she does and we’re grateful that she’s here with us on the podcast today. Thank you for coming.

Mariame Kaba: Thanks for having me.

Josie: So we wanted to start just by getting a sense of how you got interested and involved in criminal justice reform broadly and how you came to this work.

Mariame Kaba: Um, sure. So I grew up in New York City and came of age in 1980s. So, um, when I was coming of age in the city, it was kind of the early eighties were a fraught moment for many different kinds of reasons. The tail end of deinstitutionalization. So the first time where we actually started seeing homeless people outside on the streets. Michael Stewart was killed by the police in 1983 which was a very big moment for me. I was 12 years old and that really impacted me. My, um, older siblings were very animated by that fact. Um, crack cocaine is coming into being, this is the time of ACT UP. Um, this is when Reagan comes to power. It was a very tumultuous period and moment of time. So coming of age in that time led me to start organizing for racial justice as a teenager. And I also came of age during the time when there was the Bensonhurst case where a young black man was pursued and then killed by a mob of white young people who were close to my age because he supposedly talked to a white girl in a way that people were not happy about. The Howard Beach incident comes up in 1986. There was a lot happening during my teenagers in the city and I did not have an analysis of the criminal punishment system at that time. I just saw a lot of my friends, I grew up on the Lower East Side, so a lot of my friends ending up in juvie and then in prison and I didn’t, and the cops were always in our neighborhood harassing people and I did not really put all these things together, but I had a frame that was a racial justice frame at a very young age, mainly because of my parents. My mom and my dad. Um, my father, who’d been a socialist in the anti-colonial struggles in Guinea. Like I had a politics at home, but all I understood was like they were coming after black people in multiple different kinds of ways. It wasn’t until I was older and I had come back from college, um, I went to school in Montreal, Canada, came back to the city right after, I was 20 years old when I graduated from college, came back to the city and got a job working in Harlem at the, um, Countee Cullen Library and then ended up teaching in Harlem. And it was there that I found out that all of my students were also getting enmeshed in the criminal punishment system. But I still didn’t have a really, like I didn’t have a politic about it. It wasn’t until a very tragic story that occurred with one of my students who ended up killing another one of my students that I became very clearly aware of the criminal punishment system cause they were going to try to, um, basically try him as an adult. The person who did the killing, he was only 16. And it was that incident that kind of propelled me into trying to learn about what the system was, what it was about. And it concurrently, it was also the time when I started to search for restorative justice because it occurred to me, in watching the family of my student who had been killed react to the situation, that they did not want punishment for the person who killed their daughter. They were, uh, they wanted some accountability and they were also talking about the fact that he did not want him charged as an adult.

Josie: You’re saying this is about the nineties.

Mariame Kaba: This is, yeah, this is in the kind of mid nineties.

Josie: And it feels like restorative justice, this is about the time that it becomes more of a, um, more defined. Is that fair? Do you think that’d be fair to say?

Mariame Kaba: Yes. I would say that it’s defined, um, you know, people are really talking about it as early as the mid eighties, but it’s when people who are doing kind of criminal punishment, criminal justice work get ahold of it is in the mid nineties, the beginning, at that period of time. I went through my first restorative justice training in ‘96 so that was my entry point into understanding and thinking about the system in various ways. I do want to say that before that after I left teaching, I went to work at an organization called Sanctuary For Families, which was a domestic violence organization to try to do education in transforming the minds and the practices of young people around teen dating violence. So I had this kind of move away from a classroom based setting and I was like, I’m going to try to work in a community based setting to raise awareness about these issues. That was my entry point into the formal domestic violence movement. And that’s important because it comes back later as when I realized that that space was not for me either because of the way in which carceral feminism was so prevalent in that space. Um, so carceral feminism being that often feminists who are interested in ending or supposedly addressing violence advocate for the use of a violent system to do that. Um, and so this was kind of the soup that came together for me and I wasn’t really doing organizing around the system of criminal punishment, I was engaged in working with young people directly who were in conflict with the law, which was different. It wasn’t until later in the early two thousands that I officially got involved in actual organizing that would try to shift power and build power.

Josie: So for people who are learning what restorative justice is-

Mariame Kaba: Yeah.

Joise: We have laid out the basics of the idea of a different sort of system that values coming to solutions versus over punishment. But I would like to hear from you more about what it was about restorative justice then and what it continues to be about restorative justice that you find to be such a important intervention for people who could end up like the students that you had or you know, are facing sort of the specter of the system kind of bearing down on them constantly.

Mariame Kaba: Absolutely. Um, so let me say about restorative justice that um, people who are practitioners of restorative justice see restorative justice as a philosophy and ideology, a framework that is much broader than the criminal punishment system. It is about values around how we treat each other in the world. And it’s about an acknowledgement that because we’re human beings, we hurt each other. We cause harm. And what restorative justice proposes is to ask a series of questions. Mostly the three that are kind of advanced by Howard Zehr, who is the person who about 40 years ago popularized the concept of restorative justice in the United States. He talks about since we want to address the violation in the relationships that were broken as a result of violence and harm, that you want to ask a question about who was hurt, that that is important to ask, that you want to ask then what are the obligations? What are the needs that emerge from that hurt? And then you want to ask the question of whose job is it to actually address the harm? And so because of that, those questions of what happened, which in the current adversarial system are incidental really, you know, it’s who did this thing, what rules were broken? How are we going to actually punish the people who broke the rules? And then whose role is it to do that? It’s the state’s. In restorative justice it’s: what happened? Talk about what happened, share what happened, discuss in a, you know, kind of relational sense what happened. And then it’s what are your needs? Would do you need as a result of this? Because harms engender needs that must be met, right? So it asks you to really think that through. And then it says, you know, how do we repair this harm and who needs to be at the table for that to happen. It invites community in. It invites other people who were also harmed because we recognize that the ripples of harm are beyond the two individuals that were involved, it’s also the broader community and the society at large. So that’s what restorative justice, at its base, is really the unit of concern is the broken relationship and the harm. Those are the focus of what we need to be addressing. And through that, that obviously involves the criminal punishment system. In many ways RJ has become co-opted by that system. So people were initially proponents of restorative justice have moved their critique away from using RJ and talking about instead transformative justice. That’s where you see these breakdowns occuring because the system has taken on RJ now as quote unquote “a model for restitution.”

Josie: So just to clarify, you’re, are you? So transformative justice is now seen as part of restorative justice or the other way around?

Mariame Kaba: No. Restorative justice and transformative justice, people say they’re interchangeable sometimes, they are not. Because transformative justice people say that you cannot actually use the current punishing institutions that exist. Whereas RJ now is being run in prisons, is being run in schools. Institutions that are themselves violently punishing institutions are now taking that on and running that there. And what people who are advocates of transformative justice say is RJ, because of its focus on the individual, the intervention is on individuals, not the system. And what transformative justice, you know, people, advocates and people who have kind of begun to be practitioners in that have said is we have to also transform the conditions that make this thing possible. And restoring is restoring to what? For many people, the situation that occurred prior to the harm had lots of harm in it. So what are we restoring people to? We have to transform those conditions and in order to do that we have to organize, to shift the structures and the systems and that will also be very important beyond the interpersonal relationships that need to be mended.

Josie: Right.

Clint: You’ve mentioned that the framework of transformative justice and restorative justice before it becomes sort of co-opted by these systems of violence is not, some people use them as an alternative to punitive measures. An alternative to incarceration. But you reject that premise.

Mariame Kaba: Right. I reject the premise of restorative and transformative justice being alternatives to incarceration. I don’t reject the premise that we should prefigure the world in which we want to live and therefore use multiple different kinds of ways to figure out how to address harm. So here’s what I mean, because people are now saying things like the current criminal punishment system is broken, which it is not. It is actually operating exactly as designed. And that’s what abolition has helped us to understand is that the system is actually relentlessly successful at targeting the people it wants and basically getting the outcomes that wants from that. So if you understand that to be the case, then you are in a position of very much understanding that every time we use the term “alternative to incarceration” what comes to your mind?

Josie: Incarceration. We’re centering the system.

Mariame Kaba: That’s right.

Joise: Right.

Mariame Kaba: You’re centering the punishing system. When I say alternative to prison, all you hear is prison. And what that does is that it conditions your imagination to think about the prison as the center. And what we’re saying as transformative and restorative justice practitioners is that the prison is actually an outcome of a broader system of violence and harm that has its roots in slavery and before colonization. And here we are in this position where all you then think about is replacing what we currently use prisons for, for the new thing. So what I mean by that is when you think of an alternative in this moment and you’re thinking about prison, you just think of transposing all of the things we currently consider crimes into that new world.

Josie: And it has to fit that that sphere.

Mariame Kaba: It has to fit that sphere. But here’s what I, I would like to say lots of crimes are not harmful to anybody.

Clint: It’s not actually reimagining the, the idea of what constitutes as criminal behavior in the first place.

Mariame Kaba: Exactly. And it’s also that we’re in this position where not all crimes are harms and not all harms are actually crimes. And what we are concerned with as people who practice restorative and transformative justice is harm across the board no matter what. So I always tell people when they say like, ‘oh, we’re having an alternative to incarceration or alternative to prison.’ I’m like, okay, what are you decriminalizing first? Do we have a whole list of things? So possession of drugs is a criminal offense right now. I don’t want an alternative to that. I want you to leave people the hell alone.

Clint: Right. There shouldn’t be a transformative justice intervention for-

Mariame Kaba: Drug possession.

Clint: Right.

Mariame Kaba: Exactly. That is not what we’re in for. That is not even close to what we care about. You’ve got to decriminalize a whole lot of stuff and then you got to figure out what are the actual harms that are really harming people and then you’ve got to address and transform those. So that’s why I don’t like this concept of ‘we are having this as an alternative to…’ No. It’s its own vision, it’s its own ideology. It has its own set of premises that are about how we relate to each other as human beings.

Clint: I’m interested in the way, you mentioned harm and that is what these frameworks represent, right?

Mariame Kaba: That’s right.

Clint: They represent a means of moving toward healing.

Mariame Kaba: Yes.

Clint: From very real harm, emotional, physical harm that has been caused. And, and I’m interested in the idea of how one, how practitioners think of inviting those who are harmed, those who have committed harm and the ripple, you know, those who are harmed by nature of their proximity to what has happened, how do you think of inviting people into this space without notions of coercion, without, because people have to come on their own accord and I can imagine a scenario in which someone who feels profoundly harmed rejects the idea that like they should sit across the proverbial table from the person who did that harm to them. So how do you, how do you go about bringing these folks to the table in the first place?

Josie: Can I add onto that question? It’s both, to me, that if have been harmed you might not actually want to engage in a different process, but also if you have harmed, you might not have the skills or language or even interest in addressing it this way.

Mariame Kaba: Absolutely.

Clint: I think that’s a helpful addition.

Mariame Kaba: I think that’s right. So here’s another reason for why this is not an alternative to incarceration is that 100 percent of RJ and TJ is voluntary. You have to choose to get engaged and to be engaged. Under the current culture that we live in right now, what is anybody’s incentive to take accountability for harm? The current system that we have right now, what is the incentive culturally for anybody to take responsibility for what they’ve done? To actually say, ‘I did this and I want to find a way to repair that harm.’ Because if you do this in this current system, you may end up behind bars. You may end up prosecuted. So the incentive is to deny to the nth degree that you harmed people. The adversarial system that we currently have, the punishing system that we currently have encourages people not to take accountability for the actions that they do. In this kind of culture, you could imagine the barriers and the obstacles in the ways encouraging people to take accountability for what they’ve done because they don’t want to be put on blast and then end up potentially having admitted that they did something terrible and find themselves locked up. So this is why right now to engage in this is incredibly courageous on everybody’s part. It’s courageous on the part of the survivors and it’s courageous on the part of the people who caused harm. So I want to say that for me, what I have found is that most people who are harmed in this society don’t turn to anything.

Josie: Right.

Mariame Kaba: So I’m always confused by people who get very mad at me for being a practitioner and holding accountability circles and accountability processes around harm because I’m always like, well, why don’t you work with the 50 percent of people who maybe do report then? Because the vast majority of people I know who are harmed in multiple ways, whether it’s a theft or a physical assault or rape, never report to the system. They don’t go to the current system. They choose nothing over what we currently have. So I’m working with a whole bunch of people who’ve chosen nothing-

Josie: Right.

Mariame Kaba: But still need and want to have the harms that have happened addressed either because they caused it and it feels terrible, because just put yourself in the position, when you’ve hurt somebody, how have you felt about that? If you’re a person with any sort of conscience, you have been troubled by that.

Josie: Right.

Mariame Kaba: And people want a way to make things right to the extent that they can. I believe that because I’ve seen that on more than one occasion. I’ve seen that over and over and over again. So this is why to me, the conversations we’re having about the criminal punishment system are so limited because we don’t actually think about the millions of people who don’t avail themselves of it all. If every single person who was harmed went towards the system, the system would crash. There’d be no way to account for them because it’s not just first reporting to the cops, let’s say law enforcement, it’s the district attorney who decides whether or not to bring charges and file a petition. And then it’s that person deciding whether or not they’re going to go to trial because they’d rather, you know, all the things that happen by the time you get to a trial or a plea bargain, the numbers of people who’ve caused harm, are infinitesimal compared to those people who still exist out in the world who’ve been harmful or been harmed. So that’s, I think we have to be really clear that when we’re talking about RJ and TJ were working overwhelmingly with people who either can’t access the system, don’t want to access the system, have accessed the system before and had horrible experiences in it. So I don’t understand where like the controversy is. There is no controversy. Frankly, without my intervention in some of these situations, people would have been much worse off.

Josie: Right. We talk often about how the criminal legal system is reflected and you know, has the same qualities as many of our other systems. And the cruelty of it is reflected in so many other ways. Right? And so thinking about what you just said about people being accountable for harm they’ve caused reminds me, even what we see talking about race today, which is that it’s very hard for people to think that they can be racist because they think they’re a good person. And part of that is because we have a system that tells you you’re a bad person or you’re a good person.

Mariame Kaba: That’s right.

Josie: So when we think about transformative justice as a way of repairing harm, how does that reframe the way that we think about people?

Mariame Kaba: That’s right. Transformative justice calls on us to shatter binaries of all different types. Most of the people who currently are locked up, for example, in our prisons and jails, are people who are victims of crime first. They’ve been harmed and have harmed other people. The “perpetrator,” quote unquote, “victim” binary only works if you’re looking at one specific incident at a point in time, because usually the very same people who are victimized in one context have perpetrated in another. Transformative justice lives in the messiness of that and says, it isn’t that easy. We can’t just be like, you were victimized and you’re a victim always. You are a perpetrator, you’re a perpetrator always. But that people are constantly in fluidity moving between those kinds of, which are not identities, but the states, the actions, the behaviors that actually focus on that, so we are very much, when you think about a transformative justice approach and philosophy to addressing harm, you’re constantly doing what the carceral state never does. What the carceral state does is it conspires to obfuscate structural and systemic violence and turns all violence into individual failing. Transformative justice says, actually, we need to illuminate the structural and systemic violence and we need to elevate violence beyond, just quote on quote “the individual” because it’s not just about the individual is embedded in how we actually live, that these are mirrors of each other. The the structural and state violence that exists is a mirror of the interpersonal violence that exists. These things are together. That’s what I appreciate about a transformative justice approach to thinking about harm, is that it explodes those things at all levels and allows us to kind of be in the muck of the messiness of how things are in the world for real. So that you don’t have to be a perfect victim to deserve that somebody pay attention to your harm and you are not a monster for having done a bad thing. You’ve done a bad thing. So we have to be able to talk that way and think that way if we’re really going to try to address harms that have happened in particular instances. So that’s what I appreciate about having a philosophy and ideology and a vision and a framework that allows me to be able to live in those kinds of grays because a lot of this stuff is grey.

Josie: Right.

Clint:  And so this is a way of kind of probing into that and also leading into the next sort of questions and thinking about intimate partner violence, sexual violence and, and things that represent, as most acts of violence do, but, and especially in this context, represents far more than the sort of interpersonal, um, instance that took place, right? Like when you are dealing with issues of violence between partners you are understanding the sort of larger systems of patriarchy and misogyny and masculinity that shape often what is, not that it is singularly man to a woman, but often is. And so I’m, I’m curious how we think about transformative justice when let’s say a woman and her child, feel a perpetual sense of fear or threat from an intimate partner who has physically and sexually and emotionally abused them. And how do we think about what, how does one protect a vulnerable group of people, um, in this context? And also reject the idea that the singular solution is to put this man in a cage? Um, so, so I guess this is a way of asking, you know, cause people often bring up public safety, right? Like how we think about public safety. And I think, you know, in many of these cases people aren’t actually in danger even if it is someone who has committed harm because they are not a perpetual threat, but how do you reconcile those two things?

Mariame Kaba: Yes. Well thanks for asking and I, I will say this, I think you should know that the concepts of community accountability and transformative justice as we understand them in the current modern moment were developed by mostly radical women of color and trans people who started trying to think through what can we create for ourselves within our communities to address intimate partner violence, both domestic violence and sexual violence. So your listeners may know or may not have heard of Incite! Women and Trans People of Color Against Violence, which came into existence in the early two thousands and uh, came out of this concept of both abolition movement and also the interpersonal violence around intimate partner and sexual violence movements of folks who had been working at both intersections. I was part of Incite!’s Chicago chapter. And so a lot of the language and the, and the theorizing and all of that stuff comes out of that space. So it’s actually a perfect example of how to think about addressing these issues because there’s a great toolkit online for those people who are interested in this that was, uh, put together after a five year experiment that was done by a group called Creative Interventions that looks at how do we address domestic violence by using community based accountability and non punitive responses? And the reason why that was the case was because those black and brown feminists who were trying to figure out how, it was because we were wanting to take seriously domestic and sexual violence. And because we saw that the current system was not taking these things seriously. And in fact that when you did after many, many times of trying to fix this yourself turn to the law enforcement system, you often found yourself criminalized within that system. So mandatory arrest laws, all this, you know, people didn’t want to figure it out. And if, God forbid, if you were in a same sex relationship, then you were both were, they didn’t want to figure it out. So because of all those things, people were like, we need another thing. And so that’s how these ideas came to be in terms of specifically transformative justice and community accountability to address harm in this of way. So for example, I’ll say I facilitate something that people call a kind of accountability processes for people who mostly are survivors of sexual harm or have perpetrated sexual harm. And one of the things that I’ve learned over the years is that people mostly want a few things from those processes. They want answers. ‘Why are you doing this?’ ‘Why did you do this to me?’ Right? If they’re engaged, if they want to be part of that kind of thing they want, they want recognition of the harm. They want you to admit that you did what you did. That’s so important. The current system, again, we talked about this before, makes it impossible for you to admit that you did harm. Often people want some form of repair. And they want to figure out what that could look like. Sometimes what it is is that folks want some restitution of their agency, which they feel has been taken away from them. And sometimes people want to say like, ‘I want to make sure this doesn’t happen to another person.’ So all of those things are often not possible to get within the current system as it’s set up. So that’s when an accountability process could help. Your question about, um, kind of, you know, how do we protect people? It’s like I always ask the question, what are we doing for people now? Like we can’t have conversations about this stuff without asking what is currently available to people and are they availing themselves of that? And the answer to that is no, no and no for certain populations who are already at the margins, the margins of the margins are already alienated. And those are the people who came up with these other tools to try to actually address the harms that have occurred. So we are not, I don’t, you know, I’m, I’m always also saying to folks like, I’m not an evangelist for TJ or RJ or abolition. They are just practises for me as well as frameworks for how I want to live in the world. It’s the prefiguring of the world in which I want to live. I’m trying through these kinds of frameworks to live in that world. So that’s why I’m also like, again, reminding people that I’m not interested in the alternative conversation. That’s why, because I’m, I’m in the process right now of constantly, right now I’m facilitating a process for somebody who is, uh, with somebody who caused harm, who, who sexually assaulted somebody. And um, we are in our particular design of our accountability process, the survivor is also part of it, but it’s not a given that the survivor always has to be part of accountability processes. You can do processes with just the person who caused harm and no survivor. You can do processes with just a survivor and not the person who caused harm if they won’t take accountability. Like processes work across the board in multiple ways. You can design them according to the needs of the people who are involved, so it’s very much like not a one size fits all. It’s very much tailored to what the situation is, what the harm is, what the people need and want. That is also what I appreciate is that prison is one thing. It’s one solution to every single problem. It’s taking a hammer and everything then is a nail. In this case, we are constantly working out amongst ourselves what it is that is going to hopefully help people. I will also say this, to end on this issue around processes, is that processes are not inherently healing. It often feels really terrible while you’re in it because you’re bringing up all your feelings. You’re telling this person, through other people, cause usually don’t have them sitting at the same table, you have support teams that hold both parties. Sometimes you’re communicating through your support teams like, ‘I am so pissed off. This person still says they’re not doing, they didn’t do what they did.’ They are not inherently healing. What you can hope for in a good process is that you’ve put people on a road so they can begin their journey towards healing. That’s the best we can often hope for. And so, you know, I think that’s really important for us to kind of make sure we have on the line there and because people don’t like complexity and because people want simple solutions to things that are not simple when you talk about these issues, people say, ‘well you, well, you know, how you’re going to make sur?’. It’s like we live in such a society where the punishment mindset has seeped into our hearts, our minds, our spirits. We can’t even begin to imagine a world where people aren’t being coerced into doing things because the system we’ve set up is coercive as hell. This always seems to people fanciful like, ‘oh my god,’ and I’m always like, well actually you do this every day. You’re living this everyday. When shit happens in your family and your group of people, you sit down, you’re all trying to figure out how to do the best you can with it. The minute something happens people don’t just pick up the phone and 9-1-1, contrary to what is portrayed out there. You know, people try to work stuff out all the time.

Josie: I would think the alternative is that people, if you’re not trying to work stuff out, think about how painful it is to not have the tools to try to work stuff out in your personal life or in your family or you know. Um, so you co-founded Survived + Punished.

Mariame Kaba: I did.

Josie: Which I wrote about a couple of months ago because there was a story in New Orleans about a woman who had been abused for many years by her husband. In 2003, shot him, um, in a moment, what people would call self defense, although I think that that is another simplistic framework that doesn’t necessarily reflect the, but she, um, was sentenced to life without parole and she was recently given the opportunity to get a new trial. And when she was released on bail, she has, she has four kids and she finally gets to see her kids and she was released on $1,000 bail and the DA, you know, released a public statement saying ‘we’ve left this violent criminal out.’ And Survived + Punished I think is an organization addressing the wrongs of that situation from beginning to end, um, in a way that reimagines the system. Um, and so in terms of gender violence, which I think is where a lot of people get hung up on the safety thing, like Clint said, can you talk more about Survived + Punished and how you see it in the context of a situation like that?

Mariame Kaba: Absolutely. Absolutely. So Survived + Punished is a national formation that, um, we, uh, organized together in 2015, um, that comes out of several defense campaigns that were launched earlier than that. So it was the Free Marissa Now mobilization campaign, which had been organized around freeing Marissa Alexander who is now free, um, a legal defense campaign for a woman named Nan-Hui Jo, who was, uh, a woman who was an undocumented woman who was married to an American, who was a domestic violence survivor, who took her child out of the country, um, and then when she returned with her child, was separated from that child and put into immigrant detention. So they were working to free Nan-Hui Jo. She’s now free. Um, and then, uh, the other group that was involved with, uh, the Chicago Alliance to Free Marissa Alexander, which I co-founded a, which is now called Love & Protect. And then the other group is the California Coalition for Women Prisoners. Um, and the California Coalition for Women Prisoners who has been around for 25 years. And it’s an inside, outside campaign between incarcerated people and people on the outside who are working to try to free people from the cage. And so our groups came together, mainly because we had been doing these individual defense campaigns. And as you mentioned in the story that you told, I’m sure there weren’t necessarily people who were involved in the defense of that particular survivor.

Josie: Right.

Mariame Kaba:  Because it’s impossible to do, like we’re just putting our fingers in the dike and all this water’s coming all the time because these cases are so, they happen all the time. And they happen for three reasons. The first is because the use of violence in this country is completely misunderstood and also completely um, kind of, it almost makes it impossible for us to have any sort of conversations about anything as soon as violence is involved. And you can tell that from the way that criminal punishment reformers try to constantly throw people who use violence under the bus in any sort of quote unquote “reforms” and movements like we can, all the violent people, we’re not really talking about them. We’re talking about the nonviolent, nonsexual offending non serious crimes, right? Like, so the reason we exist is to say, no, actually lots of people use violence. Lots of people are locked up for violent crimes. In fact, half of the people currently locked up are locked up for violent crimes. And we’re not going to shy away from that because there are times when you need to use violence, not just in self defense, but also because you’re in a position where, yeah, you got to figure out what to do with your life. You use violence sometimes just cause like that’s what’s at your disposal, you don’t know how to deal with, do anything better. You still deserve to be treated with humanity and decency and not to be locked in cages all the time. So, um, we also recognize that gendered violence, particularly racialized gendered violence, if we don’t take that seriously, we’re not going to dismantle the P-IC. And as an abolitionist organization, which Survived + Punished is, we really want people to take that seriously, that the prison is a gendering mechanism, that it enforces gender violently. And that if we don’t actually take the time to make those connections, we’re not going to dismantle anything. We’re not going to be able to. Criminalization itself is sexual violence. We also see that, that clearly think about all the different ways that people are violated who end up in the criminal punishment system. From the arresting officers through to the incarceration and the constant cavity searches and the strip searches. The strip searches of the people who go to visit people. That like this criminalization is itself a form of sexual violence. So Survived + Punished wants people to understand these connections and to understand that without addressing gendered violence, particularly racialized gendered violence, we aren’t going to get to the point where we can transform anything. And then finally, our work is really to say that you have the right to your bodily autonomy. You have a right to defending your life and defending your children, that we don’t believe in the kind of, uh, criminalization of survival. So if you move your child away from your abuser and then all of a sudden you’re being charged with kidnapping. If you are in a position where you are in a domestic violence situation and then you are being coerced by your abuser to do XYZ and then you’re charged as a co-conspirator and you get a harsher sentence than the person who was the abuser. You know, these things happen all the time because historically in our country we actually, while we’ve punished less numbers of women, we’ve often given them harsher sentences then the people who have done the precipitating crime or event.

Josie: Right, right.

Mariame Kaba: So we want to make all of those things really clear and we’ve been very successful over the last few years at making sure to free the survivors we’ve been pushing for, whether it was Marissa or Nan-Hui or Bresha Meadows or like all these people. But we don’t want to let people think about these people as exceptional victims. We want them to understand that they are a proxy for many thousands of others. And that that means that we have to shift and uproot the whole entire system in order to address these kinds of survivors that people may feel sympathetic, um, uh, when they hear the stories.

Clint: So let’s move into that. Let’s think, uh, how do you conceive of abolition and like what is your framework for what that means, what that looks like? Because I think that that’s a word that means a lot of different things to a lot of different people that has a lot of historical significance, but at the same time that’s also misrepresented, very purposefully in a lot of contemporary political discourse. So can you talk a little bit about how you think of what abolition is and how it fits into your sort of larger practice of work?

Mariame Kaba: Yeah. For me, prison-industrial complex abolition, prison-industrial complex meaning all of the interests that come together to imprison, surveil and police people, um, that P-IC abolition, for me, I came to it actually through the work of Critical Resistance, uh, which is a formation and organization that started in the Bay Area in 1998, so exactly 20 years ago, CR is celebrating 20 years this year of existence. And what Critical Resistance started talking about in ‘98 and had built on years of other people’s thinking about this, you know, Nils Christie, um, you know, kind of a lot of the Scandinavian philosophers who had been talking about it in the 1970s. There’s a very important kind of abolitionist, uh, statement and document that came out called Instead of Prisons that was put together in 1976 by Faye Knopp and a bunch of other people who called themselves abolitionists, prison abolitionists at the time, because in the ‘70s, people were talking about the end of prison. People were talking about prisons being over because we had numbers of people that have been in decline at that point. Um, and so there were already people who were talking about, so what’s the system that we’re going to build that will be the prison instead of prisons? At that period of time. But anyway, so what, uh, what you should think about when you’re thinking about P-IC abolition is what Ruthie Gilmore, uh, talks about, Ruth Wilson Gilmore talks about, which is that abolition is really more about presence than it is about absence. Abolition is a positive project that is focused on not just the dismantling of the current punishing systems, but also the building of something else. That abolition, that people who are usually kind of a thinking about P-IC abolition, something else that Ruthie says all the time, is that abolition is not just about changing one thing, everything. So it is like a philosophy, an ideology, a framework and a practical organizing strategy that asks you to think about all the different ways in which the systems that we currently have shorten people’s lives. So it is about kind of reversing premature death ultimately. That what we have currently in our current criminal punishment system is to accelerate people’s death in multiple kinds of ways and that that system is surrounded by many other systems that co-constitute that premature death. So you have to think of capitalism, you have to think about eradicating that. You have to think about the environmental destruction that we are under the climate, you know, destruction that we’re currently dealing with and facing. What if you’re doing work on climate change, you’re doing abolitionist work. If you are working to make sure people have a living wage, you’re doing abolitionist work and organizing. If you are working right now to ensure that people’s education is actually a good one, that people have access to free quality education, you are doing abolitionist organizing. It’s a systemic and structural view of how the world operates. It tells a story about how we came to be and what we need to do in order to be able to actually shift those conditions. So the other thing about abolition that I think people often ask me about is they say, ‘I can’t wrap my brain around the ends of prisons. I don’t, I don’t understand that.’ And I’m always like, I make that sound because it’s usually white people and white men. You do this to me on a regular basis. Um, so that was my white man voice. But um, that was very badly done. Sorry. But it’s like ‘I don’t understand why?’ And I’m always like, well then you can’t wrap your brain around a world without exploitation and dehumanization. How sad is that? How sad is that? If you can’t imagine a world without these things, then you cannot imagine a world devoid of that. And I, and I refuse to succumb to that. I can imagine a world without dehumanization and exploitation. And so therefore that project makes sense to me. And the last thing I’ll say is that, um, the other part of abolition that makes to me a lot of senses, people also say like, ‘how does that work? How could you do that?’ And I’m always like, you practice abolition daily. It’s a daily thing. And there are communities right now that are living in abolitionist present. There really are. There are places where you can travel and I came, I lived for over 20 years in Chicago and you can go to Naperville and you could go around and those kids have the schools they need with no metal detectors. All of them are going to college. They live in homes that are beautiful and have what they need. They have all the food they need to eat. They never see the cops except when the cops are called. They like that they are living an abolitionist present. The question I always have for people is why they can’t see that for my nephew? Why that world is not possible for him when it is possible for many of the children of the people who tell me they can’t imagine living in an abolitionist future? I’m like you’re living an abolitionist present. So I don’t understand what we’re really talking about here. You’re saying that there are some people who are never going to be allowed to have what your kids have. That to me is unacceptable. I refuse to acknowledge that as being something that’s valid. So to me abolition is always present. We’re doing it in so many different ways and the way we’re trying to get there is often through these non reformist reforms that are the ways that give us a track to move towards that horizon. Um, and so for me, my organizing is very much determined by abolition as, as the thing that I want to hold true to. The questions I ask of any sort of policy reform or whatever are guided by that, are guided by an abolitionist framework.

Josie: To me, it feels like the opposite of the way of thinking that you have presented is the Ap-Eds you see from the ADA or the DA when there’s like sentencing reform up, right? And you see the Op-Ed that says, like ‘here was the case where this guy broke into the house and then he raped the woman and he chop her head off.’ And you know, and for me, I find that like the deeper I get into this work and the more comfortable you have to get with stuff that is uncomfortable, right? And you’d have to stop talking about nonviolent and drug offenders and all of these sort of, and talk about people who have done things that have been really harmful.

Mariame Kaba: That’s right.

Josie: This is such a hard fight because the Ted Bundy, right? Like people ask, you know ‘what about Ted Bundy?’ And I’m like, I’ve read Ted Bundy’s Wikipedia page. I hate prisons and I also like don’t want Ted Bundy coming into my house.

Mariame Kaba: That’s right.

Josie: And that strikes me as like-

Mariame Kaba: That’s fair.

Josie: But it strikes me as not reflective, as speaking that framework as if it’s the only one when it’s not the only one.

Mariame Kaba: Right.

Josie: And so I’m wondering what your sort of response is when people say that to you?

Mariame Kaba: ‘What about the rapists?’ All the time.

Josie: Right.

Mariame Kaba:  All the time. ‘What about the rapists?’ And I’m like, well what are we doing with the rapists right now? So I don’t want to like, I don’t, I don’t understand what you’re asking me. Are rapists currently locked up?

Josie: Right. Most of them are not.

Mariame Kaba: Most of them are not. They’re living all over the place. Harvey Weinstein is free. So what are you really asking me? You have a different question.

Josie: Right.

Mariame Kaba: You know, um, and so I do think your question about what about Ted Bundy? I don’t understand why we would build a system based on the exceptional when the vast majority of people are not Ted Bundy. That would be my first response. Why is Ted Bundy the person that we are going to operate a whole entire criminal punishment system to like quote “can capacitate?” Like that makes no sense. Most people are not serial killers. Okay? So that’s number one. Number two, I’m always telling people that because abolition is about changing everything, we aren’t even going to know the world in which we’re going to be living. Like we’re not, our brains are not able to even imagine how our relationships to each other are going to shift in that new world. But we will need to come up with solutions at that point for people who cause inordinate repeated harm to people on a regular basis. I’m just saying it shouldn’t be a prison. I’m just saying the current system that we have right now is not going to address that because you may put Ted Bundy away but you’re putting him, what you’re really doing is sentenced him to death. So why not just say what we really want is the guillotine? Like you caused repeated harm what we want to do is kill you and not have to deal with you anymore. Why isn’t that the argument? People say things like, ‘well, putting people in prison for life is more humane.’ What? Have you been to prisons? Have you seen what’s going on? Do you know anybody who’s been incarcerated for 40 years? That is not better than death. Okay? That is social death. That is civil death. That is death of all different kinds. We just don’t want, we just want to hide people away. We just want to hide the problems, we want to disappear our problems. And that’s what we use prisons for to disappear our problems and to control redundant populations. You know, it is a social control mechanism and that’s what we really want. So I just say to people on a regular basis, yes, what about Ted Bundy? In our transformed world, we’ll have to handle people who cause horrible harms in a repeated way. I’m just saying this current way of doing it is not good and shouldn’t be the thing. And then last thing I’ll say is that I’m a big fan of, uh, a woman named Elizabeth Povinelli who talks all the time about the importance of, uh, every time, you know, one of the things criminal punishment reformers love because they really love to tinker with things and they’re kind of, often by nature, people who aren’t really organizers they’re advocates, so they have no accountability to anybody. They have no base. They can just tinker with playing around. It’s like no one will turn to them when they pass them shit and say, ‘what the hell did you do?’ There’s no one to point to them. Okay, so they have no accountability. Those people often say to you, when you bring up issues of abolition of transforming, ‘well, what’s your solution to the problem?’ You know what? You’re allowed to say, ‘not this,’ and you can shut up right after that.

Josie: Because we do that about everything else. We do that about politics, right.

Mariame Kaba: Okay? You’re allowed to say ‘not this.’ Your critique in and of itself is valid. You’re allowed to say ‘not this,’ and keep it moving. Why? Because we didn’t get into this problem yesterday. We got into it over time. This is a collective problem that lots of people’s hands are involved in. This is bipartisan to the nth degree. So why then is a problem that was formulated by a lot of people over a long period of time expected to be resolved by one person giving the solution to the problem or having to shut up. Because what they’re selling you is not just like ‘you don’t get it,’ it’s ‘you come up with solution are you say nothing’ and I absolutely reject that. I reject that on its face. I think that is a way to silence people with radical critiques. You are allowed to just be like, ‘yeah, this thing we’re doing, not this’ and that’s more than enough and you can keep it moving. You know? I choose to engage in trying to build some stuff along the way, but that’s me. I choose to do that because I want to, not because I feel compelled because of my analysis of the world to offer a quote “fake solution.” I’m not interested in that at all.

Joise: So one of the things that sticks with me that I’ve heard you talk about that, for someone who does this stuff day in and day out, was very clarifying for me as a way of thinking about this and I was hoping you could just speak about it, is the difference between consequences and punishment and how we think about accountability. And this goes back to transformative justice, abolition and goes back to two to gender violence and how we think about punishment. And I think it’s especially critical in this moment right now of #metoo where there is a reckoning and I am still worried that the reckoning has the potential to mostly be punishment based and not actually a reckoning with harm.

Mariame Kaba: Yeah. I think it is completely and utterly fair if somebody hurts you and harms you, for you to want that person dead. I think that that makes, as a person who myself has been a survivor of violence, I have wanted to kill my rapist, I have one wanted, you know what I mean? Like I have wanted vengeance for that person. It is fair for individuals to want those things. It is not okay for the system to do that.

Josie: Right.

Clint: That is not what should be dictating public policy.

Mariame Kaba: That’s right. I think people completely, I mean I’ve been raped so I’m not like gonna sit around here and say you should have to hold hands with your rapist. That is not what I’m saying. I don’t even think you need to forgive people. Restorative and transformative justice is not about forgiveness. Okay. That’s a misnomer. People think that RJ means you forgive. No, you don’t have to forgive. You do not have to. So I understand that. Here’s what I think is an issue. Punishment means that you are inflicting pain and suffering on people, that you are inflicting pain and suffering on people. I don’t think you can end violence with violence in a sustainable way. You can interrupt violence with violence right? For the time being, but the cycle continues on. Right? And so one of the things that we always talk about in transformative justice is when you have a punishment where you are inflicting pain and suffering on a person, that is a passive thing. People don’t have to do a single thing. They could cross their arms. They are just, it is a passive, uh, thing that you are doing onto people. You are putting that onto people and it usually doesn’t work. We know this, we know punishment often does not work. You know that with your children. It does not work. So it’s not even useful in that kind of sense. Consequences are always things that you have to think about within the context of the harm that occurs. So it shifts. Consequences are also things that I always think about when it’s like, uh, for example, um, you can tell somebody who is an, uh, an abuser to leave their home. That’s a consequence for bad behavior. If you make it so that that person can never have another place to live, that’s a punishment because you are taking away from that person the basic things we need to live, shelter, food, uh, you know, all sorts of other kinds of things that you just need as a human being to survive. If we are depriving people of those things, including their liberty, that’s a punishment. But if we are saying to people, you did this horrible action and you have a, you’re in a position of power, you got to step down from your goddamn job. That is not punishing people. That is saying that you actually have done something that means that you no longer can have the privilege of power. You can’t wield power in that same way. You are sexually assaulted children. Well, you should not be able to work with kids anymore. Do you know what I mean? Like that is not punishment. That is a consequence of the behavior and actions that you took. So if we are not depriving people of their needs that they have to survive, if we are not depriving people of their liberty, these are not punishments to my mind. These are consequences for actions that are proportional to the harm that they caused. So I think about that a lot, um, in terms of when I’m thinking through with people who want, I’m sitting with in a circle or I’m sitting with in a process and just like, what is, what are your wants and what are your needs? We talk about that a lot and I’ll often say your needs we’re going to try to meet, your wants we probably can’t get. Because you may want to kill this person. I can’t help you do that. That’s not what we’re gonna be able to do in this process. You may very much want to follow this person for the rest of their life. That’s not going to be possible. So what are the things that are your baseline needs? And that might be recognition for the harm, answers, things like that that we can work through. But a whole bunch of other things we’re never going to be able to achieve.

Josie: And maybe once you work through your needs in this process, your wants change.

Mariame Kaba: They always do. We know that about life. That our wants and needs change according to when some things are fulfilled and when things are not, you know, and when we feel differently about the situation and relationship to the situation. So that’s, that’s what I would say about punishment and consequences. And it’s always a game of figuring out, you know, what, what is proportionate, what feels like a spectacle versus what feels like actually what we need in order to be able to move forward together in the world. You just have to constantly be playing with those ideas. But that’s what I would say as I kind of, uh, you know, quick summary of that. Yeah.

Josie: So I could really talk to you for the next six hours. I already have like eight  other things I would love to ask you about. We’re both just so grateful that you came on and, you know, what we’re trying to do here is give people tools to assess the systems around them, as accurately frame it the criminal punishment system, and I think being able to imagine something else is so important. Thank you so much for coming on.

Mariame Kaba: Thank you both for having me. I think you all are doing a really amazing job with this podcast which is super informative and educational. I listen to it all the time and learn something new. So thank you for having me.

Josie: Thank you.

Clint: We appreciate that.


Josie: That was Mariame Kaba, she’s the Director of Project NIA, co-founder of Survived + Punished and a leader and advocate in rethinking what our criminal justice system could look like.

Clint: Thanks for listening to the second season of Justice in America. I am Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: You can find us on Twitter at @justice_podcast, like us on Facebook page at Justice in America and subscribe and rate us on iTunes, we appreciate all of your reviews.

Josie: And don’t forget to email us at with feedback or show topics you’d like for us to cover in the coming seasons. Justice in America is produced by Florence Barrau-Adams and the production assistant is Trendel Lightburn.

Clint: We’ll see you soon.


Bronx D.A. Says She Wants to Reduce Overdose Deaths, But Opposes A Program That Can Help

Darcel Clark’s approach to overdose deaths continue the criminalization of drug users and put her on the wrong side of history, advocates say.

Bronx DA's website

Bronx D.A. Says She Wants to Reduce Overdose Deaths, But Opposes A Program That Can Help

Darcel Clark’s approach to overdose deaths continue the criminalization of drug users and put her on the wrong side of history, advocates say.

The Bronx has the highest rate of drug overdose deaths in New York City. If the South Bronx were a state, it would be ranked among the highest in the nation in rates of overdose deaths. The Bronx had 342 such deaths in 2017, and in the first three quarters of 2018 there were 272.

In New York City, as a whole, 2017 was the deadliest year on record for overdoses. City officials have put out multiple plans to halt the crisis. One of those plans calls for opening safe injection sites, government-sanctioned places where people who use drugs can do so under the care of medical staff. The main purpose of these sites, also known as safer consumption spaces or supervised injection sites, is to prevent overdose deaths.

Last year, the mayor’s office published a report on overdose deaths in the city and called for a one-year pilot program of four supervised injection sites in three boroughs: the Bronx, Manhattan, and Brooklyn. To open this program, the city would need permission from state authorities and the borough DAs; the Manhattan and Brooklyn DAs have already pledged their support.

But Bronx District Attorney Darcel Clark doesn’t appear to be on board. On a radio show in January, she came out against the supervised injection sites.

“As a district attorney, as somebody who has to deal with people dying of overdoses every day, I think it’s a little dangerous to set up places where people can say that they can shoot up safely—but you don’t know what it is that they’re taking,” Clark said.

“I think the government should not be involved in taking on that kind of liability. I don’t look forward to anything like that.”

Advocates say her refusal to adopt harm reduction strategies and treat substance use disorders as a public health problem will put her on the wrong side of history. They argue that her office’s everyday prosecution tactics cause harm and her commitment to criminalization makes her one of the leading figures of current drug war practices in the city.

“The failed war on drugs has shown us that we cannot arrest and punish our way out of the opioid crisis,” Avery McNeil, the Alternatives to Incarceration specialist at the Bronx Defenders, told The Appeal. “Safe injection sites are a common sense and practical way to meet people where they are, connect them to the services they need, and hopefully prevent deaths.”

Governor Andrew Cuomo has not yet committed to the city’s proposal, but his office told The Appeal he is open to it.

Safe injection sites are a common sense and practical way to meet people where they are, connect them to the services they need, and hopefully prevent deaths.Avery McNeil, Alternatives to Incarceration specialist at the Bronx Defenders

“Governor Cuomo has long championed a multi-faceted response to the opioid crisis with a focus on prevention, harm reduction, treatment and recovery and we remain committed to exploring all options to reduce opioid deaths,” Hazel Crampton-Hays, a spokesperson for the governor, told The Appeal by email.

Safer consumption sites have opened in multiple countries in Europe as well as in Canada and Australia. There are over 100 sites in 12 countries, according to the Drug Policy Alliance. The sites allow people to use drugs in a safe environment—providing safe needles and supplies, medical assistance if necessary, fentanyl drug testing, and an entryway into treatment. Advocates have pushed a primary fact about safe injection sites: None have ever reported a deadly overdose.

Safe injection sites aren’t expected to solve the opioid epidemic. Rather, they are one tool within a larger harm reduction strategy, which might include helping people get housing and stabilize their lives. Jasmine Budnella, the drug policy coordinator at Vocal-NY, told The Appeal that harm reduction is grounded in the idea that drug users are human beings and should be treated with respect and dignity in a nonjudgmental environment. Advocates argue that harm reduction strategies can save lives, as they have in other areas.

“The basic harm reduction strategies are like condoms, right?” Budnella said.  “Condoms are harm reduction. How do we have safer sex? Well, we know people are going to have sex, how do we make sure it’s safe? Seat belts are another example.”

When it comes to drugs, Budnella pointed to syringe exchange programs as an example. “They reduce the harm, provide people sterile supplies. It’s everything that a safe injection site would do, beyond the fact that we offer places where folks can use openly and be able to get revived if they overdose,” Budnella said.

Fentanyl strip tests, currently provided with the state’s syringe exchange programs, allow people who use drugs to determine whether their drugs include fentanyl. These strips could easily be provided in a safer consumption site as well.

Arresting someone experiencing a personal health crisis only exacerbates the problem.Avery McNeil, Alternatives to Incarceration specialist at the Bronx Defenders

But the Trump administration may try to intimidate cities out of considering safe injection sites to reduce deaths. At the end of January, Philadelphia city officials approved the opening of a safer consumption site, operated and financed through the nonprofit Safehouse. About two weeks later, the Department of Justice and U.S. Attorney William McSwain filed a civil lawsuit against the nonprofit. The lawsuit claims that a safer consumption site would violate the section of the Controlled Substances Act that says maintaining a place for the purpose of using a controlled substance is illegal. Often referred to as the “crack house” statute, it was passed in 1986 under Ronald Reagan during an era known for its harsh drug war tactics.

“We have been actively working with stakeholders and the city on their proposal while working to address the threat of federal legal challenges,” Crampton-Hays said of New York City. “As part of our ongoing review, we are closely evaluating the claims and issues raised in the federal case in Pennsylvania.​”

Though she balked at safe injection sites, Clark said she was concerned with the epidemic of opiate overdoses in the Bronx and the city as a whole.  

“It’s because of the fact that fentanyl is being pushed into the drugs now. And that’s 50 times, 100 times more potent than heroin. … This is not the same old heroin. And it’s killing them,” Clark said on the radio show.

“I want to be at the forefront of turning those [overdose] numbers around in the Bronx. I had a number of programs put in place to really start saving lives.”

Clark’s recent programs mainly consist of drug courts that she opened with Chief Administrative Judge Lawrence Marks in 2018. The Bronx Criminal Court’s Overdose Avoidance and Recovery (OAR) program allows some people charged with criminal possession in the seventh degree to go through “intensive” treatment. The defendants are screened and if they are determined to be at high risk of overdose, they can make the decision to enter the program. For the people who successfully complete the program, their cases will be dismissed and sealed.

However, advocates say continuing to handle substance use disorders through the criminal legal system is a mistake, and one that will cost lives.

“It’s wildly ridiculous to hear a DA say that we cannot arrest our way out of this but proposes nothing but negative war on drug tactics that really do nothing but to accomplish anything but continues to fuel the fire of the opioid crisis,” Budnella told The Appeal.

“We know that the war on drugs failed,” she continued. “It’s a racist, classist war. And doing nothing to actually focus a public health crisis through a public health lens is absolutely harming people.”

The Bronx district attorney’s office did not respond to multiple requests for comment about Clark’s current prosecution efforts, harm reduction strategies, or programs she has implemented to address the overdose crisis.

McNeil pointed out that Clark’s main alternative is bringing people through drug courts, a situation that starts with an arrest.

“The tools of the criminal justice system are simply too blunt, too harsh, and too coercive,” McNeil said. “Arresting someone experiencing a personal health crisis only exacerbates the problem.”

Our clients are presented with an impossible decision: Commit to drug treatment or risk being detained at Rikers Island. It's not really a choice at all.Avery McNeil, Alternatives to Incarceration specialist at the Bronx Defenders

The main problem with drug courts, advocates say, is that people struggling with substance use disorders and other drug users are still being brought into the criminal legal system. For opiate users or people undergoing a treatment program like such as a medication-assisted treatment, spending 24 hours in a jail cell often means going through painful and dangerous withdrawal at least until arraignment, when they might be diverted into the drug court and a treatment program. If the defendant doesn’t complete the treatment— which can require court supervision, random drug and alcohol tests, and hours of programming and community service— the result is often incarceration. The alternative: proceed with the criminal charges and possibly return to jail.

“I don’t think drug courts are beneficial in our process to save lives,” Budnella said. People with substance use disorders who leave incarceration are 40 times more likely to die in the first two weeks of release, according to a study in the American Journal of Public Health.

Often, people with opioid use disorders will come into arraignments visibly in withdrawal.

“When we first meet our clients in court, they have been handcuffed, thrown in a police car, spent a night sleeping on the floor of a holding cell, and are often in active withdrawal. Many are sick and in need of medication,” McNeil said.

“They are anxious about seeing the judge, about their jobs, their children, their housing. It is in this context that our clients are presented with an impossible decision: Commit to drug treatment or risk being detained at Rikers Island. It’s not really a choice at all.”

The impact of Clark’s new drug courts is also limited. While the OAR program does not require people to plead guilty, only people charged with misdemeanors can participate. But people charged with felonies, which include possessing a larger amount of a drug or being arrested in the NYPD’s buy-and-bust campaigns, are not eligible for OAR and have to go through the traditional drug court. In order to enter this drug court, people  must plead guilty to the felony. If they don’t complete the treatment program, they are usually sentenced to two years in prison followed by two years in supervised release (for a first-time felony).

Budnella argues that drug courts, combined with arrests and the threat of jail, help create a stigma that pushes people who use drugs into more dangerous situations.

“People are being forced into the shadows where they are dying. This is a way to bring people in so that they don’t die and [to] make sure they stay alive.”

Justice in America Episode 19: What Justice Could Look Like

Josie and Clint talk to Sonya Shah, an associate professor at the California Institute of Integral Studies, about restorative justice.


Justice in America Episode 19: What Justice Could Look Like

Josie and Clint talk to Sonya Shah, an associate professor at the California Institute of Integral Studies, about restorative justice.

On this episode, we talk about an alternative to the traditional criminal adversarial process: restorative justice. Restorative justice focuses on repairing the harm caused by wrongdoing, and values reconciliation, community-involvement, and accountability over punishment and retribution. We discuss the benefits, limitations, and potential of restorative justice. We also talk to Sonya Shah, an associate professor at the California Institute of Integral Studies and a renowned restorative justice facilitator, trainer, and expert. Sonya is a survivor of child sexual abuse, and has worked extensively with survivors of sexual abuse and people who have committed sexual harm. In 2016 she founded The Ahimsa Collective, which offers non-punitive approaches to addressing and healing harm through the lenses of restorative and transformative justice. This episode also features audio from Danielle Sered, Executive Director of Common Justice.

Additional Resources:

More on Sonya and The Ahimsa Collective can be found here.

Here’s The Appeal piece we mentioned about the Oakland Restorative Justice program that is currently facing the chopping block.

For more on some of the restorative justice programs Sonya mentioned, check out Restorative Response Baltimore and Nashville’s New Restorative Justice Program Allows Youth Offenders.

And here’s more on Howard Zehr, considered the “grandfather of restorative justice” whom Sonya also mentioned.

Danielle’s new book, Until We Reckon, can be found here. The book was also mentioned in a recent New York Times piece by Michelle Alexander, called Reckoning with Violence.

Also check out Impact Justice, a phenomenal organization that does really critical restorative justice work, and Sujatha Baliga is a leader in this field. Here’s a video of Sujatha and Philadelphia District Attorney Larry Krasner talking about their work.

Also check out this piece in Vox about restorative justice, written by Sujatha. has a ton of great resources on restorative justice, including a tutorial and a library full of further reading.

Here’s more information about Pod Mapping, which we highly recommend reading about! It’s a powerful and effective way to conceptualize your interpersonal relationships and your community.

Justice in America is available on iTunes, Soundcloud, Sticher, GooglePlay Music, Spotify, and LibSyn RSS. You can also check us out on Facebook and Twitter.

Our email is



[Begin Clip]

Sonya Shah: Restorative justice is really about being a community based solution to dealing with harm and violence when it occurs. And that’s completely the opposite  of our criminal justice system, a retributive system which is basically a lock them up and throw away the key approach where no one really cares about what happened to the victim, they’re just used for conviction, and no one really cares what happened to the person that did the harm.

[End Clip]

Josie: Hi, I’m Josie Duffy Rice.

Clint: And I’m Clint Smith.

Josie: And this is Justice in America.  Each show we discuss a topic in the American criminal justice system and try to explain what it is and how it works.

Clint: Thank you so much everyone for joining us us today. You can find us on Twitter @justice_podcast, like our Facebook page at Justice in America and subscribe and rate us on iTunes. We’d love to hear from you and it really helps.

Josie: We opened with a clip from our guest, Sonya Shah, an Associate Professor at the California Institute of Integral Studies. Sonya currently works at the intersection of restorative justice and issues like trauma healing, sexual violence and structural oppression. She will be talking to us about our topic for today, which is a little different than what we normally talk about.

Clint: So, usually we talk about problems on this show because understandably there are a lot of them. We talk about what is wrong with the system. And we usually spend pretty much no time on solutions honestly.

Josie: Right. And the reason for that is pretty straight forward. This system is very complicated. There isn’t just one reason that things are this way. You know, you’ll hear people say mass incarceration came from the drug war or mass incarceration is because of stop-and-frisk but the reality is there are a million reason why the system looks the way that it does. One because there isn’t just one problem, there likely isn’t just one solution. We’re not going to pass one law and fix the whole system. We’re going to briefly talk about two very interesting and important ideas that demand a radical rethinking of our whole system.

Clint: But before we get into restorative justice it’s time for our word of the week. And it’s our bad that we have not thought of a better term for word of the week and our bad that our word of the week is often more than one word but we’re trying to do our best.

Josie: We swear that we are actually creative people who should have thought of some good puns. I thought of “crime-time.” (Laughs.)

Clint: Oh man. Okay, so, we’ll keep Josie off the stand upstage but as you may know, every week we spend just a quick minute talking about a word, a phrase or a term related to our criminal justice system that is misused or misunderstood or frankly just useless.

Josie: Yeah and so this week the phrase slash term slash thing we’re talking about is the crime rate. [Bell]

Clint: The crime rate. Politicians and pundits and commentators love to talk about about the crime rate and sometimes like to misrepresent it. It’s a very popular term. And the concept as I said is massively misunderstood, and as a result is basically used to manipulate the public. Politicians use it to score points, local news uses it to make sure you tune in every day for the latest details on the latest crime.

Josie: But what exactly is the crime rate and what does it tell us? More importantly, what does it not tell us and what are its flaws?

Clint: Basically, the crime rate is a per capita number, representing the number of crimes per 100,000 residents. The Department of Justice releases two sets of data every year —  the Uniform Crime Reports, which is released by the FBI and the Bureau of Justice Statistics,’ which I can never pronounce correctly-

Josie: I know it’s so hard.

Clint: And the BJS’ National Crime Victimization Survey. The Uniform Crime Reports, or UCR, is compiled from data from 18,000 different law enforcement agencies. The NCVS is compiled from a survey of about 90,000 households, which asks people 12 and older whether or not they were crime victims. Generally, the UCR’s rate is the most commonly used one.

Josie: But there are other crime rates too that you might hear right? So maybe your local government or your local police department has calculated their own crime rate. Or maybe your state government has done it. And you may wonder why they would need to do that if the FBI is already doing it for them. But the reason is because the FBI’s numbers end up kind of being very general. So 18,000 police departments send data on 28 different crimes to the FBI every year. But of course, each state categorizes crimes differently. So what may be a Category 1 misdemeanor in Massachusetts may be a Level 3 felony in Florida. So the FBI splits everything into just two general categories called Part 1 and Part 2.

Clint:  Part 1 includes the most serious stuff —  murder, rape, robbery, robbery, larceny, car theft, arson. Part 2 is pretty much everything else —  simple assault, public drunkenness, drug possession, embezzlement, DUIs, loitering. Although as an aside, my personal view, there should be questions why things like embezzlement shouldn’t be considered the more serious stuff.

Josie: And why loitering is on there at all but-

Clint: Exactly.

Josie: Yeah. We digress.

Clint: We digress. They separate all crimes just into these two categories. Part 1 is then split into two smaller categories —  violent crime and property crime.

Josie: So basically we have serious violent crimes, serious property crimes and everything else. And in general this Part 1 —  the serious crimes — these are what the FBI gives the most attention. But lumping all these charges together like this makes it hard to tell what crime is really like just by looking at the crime rate. The violent crime rate, for example, as defined by the FBI, includes about half the crimes the FBI categorizes as serious. So that rate includes a woman being murdered, and it also includes a man stealing a pair of sneakers from the store. Those two things are so vastly different, and combining them is at the very least unhelpful and actually it ends up being pretty misleading. But that’s what you’re getting with the typical crime rate.

Clint: Second, the crime rate doesn’t account for geographical specificity. As we’ve mentioned before, overall, crime in America is near record lows, but you would never know it from watching the local news.

Josie: Exactly.

Clint: For a few decades now crime rates across the country have been steadily decreasing, and now America is overall safer than it’s been since the 1970s. But that doesn’t actually tell you or me or anyone what daily life is actually like. Because crime is down in, say, LA, doesn’t mean it is down in St. Louis. And this is why it is important to disaggregate data. Because it is down in one neighborhood doesn’t necessarily tell us anything about what might be very different a few miles away.

Josie: For many people, especially those living in certain suburbs, crime is virtually non-existent. And we say that honestly. The chances of someone robbing your house is close to zero. You know, there are places in America where you could leave your kid outside with a sign that says “please kidnap me” and nobody would touch your kid. But someone would probably call child protective services on you.

Clint: Probably.

Josie: But still, in some neighborhoods there is just no crime at all.

Clint: And for other people, in particular in neighborhoods in cities like Baltimore or Newark or Cincinnati, where the residents are more likely to be poor and minority, crime is actually as high or higher than it’s ever been. There are countless factors that contribute to this, from the lack of resources given to local schools to rising inequality to a housing crisis that has manifested itself for the past several decades that creates hyper segregation in communities where crime and poverty can often be concentrated.

Josie: Right. The concentration, it matters a lot. And that’s why the national crime rate tells us so little. Even state crime rates tell us very little. So what’s happening in Prince George’s County is not what’s happening in Baltimore County which is not what’s happening in Baltimore City. For example, in 2016, St. Louis County’s homicide rate was about 3 per 100,000 people. The city of St. Louis’s homicide rate was around 60 per 100,000 people. So the city’s homicide rate was twenty times that of the immediate surrounding county.

Clint: So here’s another reason why crime rates are basically trash. So like we said earlier, the Uniform Crime Report is measured by data provided by local police departments. Most departments, apparently around 90 percent of departments, return that information. Which given the fact that the federal government can’t exactly compel them to complete these surveys, is pretty good. But oftentimes what they are reporting is really really inaccurate.

Josie: That other big data set we mentioned, the National Crime Victim Survey, has found that less than half of crimes are reported to the police. When they’ve surveyed victims every year, almost 100,000, and they’ve asked them questions about crimes that have been committed against them, only about 42 percent of people surveyed say that they reported their crime to the police. In certain places, like New Orleans, police are so slow to respond to calls— I think 73 minutes is the average wait before police show up if you call them in New Orleans— and so calling the police is kind of pointless anyway. But we’re also talking about communities where distrust of law enforcement is deep rooted and with good reason. So when you read the crime rate, you’re not actually getting the full story.

Clint: And one last thing. Percentages can be, let’s say — misleading. At the Republican National Convention in July 2016, Donald Trump stated, “Homicides last year increased by 17 percent in America’s fifty largest cities.” He said that the 17 percent increase in the homicide rate was quote, “the largest increase in 25 years.”

Josie: You have to imagine Clint saying that in Donald Trump’s voice. That’s a very important part of this.

Clint: (Chuckles.) But that actually depends on how we define increase, and what an increase is. In other words, if we take that 17 percent number to be accurate, it may be the largest percentage increase, but not necessary the largest numerical increase.

Josie: Right, so, because crime rates are already so so low, a really small increase can result in a big percentage change. Let’s say, for example, that a city has eight homicides one year and twelve the next. That four-person increase equals a 50 percent increase in the murder rate.

Clint: Or if a city has one murder and then the next year two people are murdered, the murder rate increased by 100 percent.

Josie: Right. Exactly.

Clint: So just so people can follow and understand, cause I know we have a whole lot of numbers we’re throwing at you, the homicide rate in 2014 was 4.5 homicides per every 100,000 people. And in 2015, it was 4.9 homicides per 100,000 people. So actually only a .4 increase in the number of homicides per 100,000 people, but that’s equivalent to the 17 percent increase that Trump is alluding to. So you can see how the numbers can sort of distort the reality or the raw numbers that we see on the ground because the numbers are so small to begin with.

Josie: Right.

Clint: And so, for example, in 1991, the rate was 9.8 homicides per 100,000 people which was literally twice as high. So, even if we take Trump at his word and the 17 percent statistic at face value, that jump in percentage doesn’t mean that we’re seeing homicides rise nearly as much as they did 25 years ago.

Josie: That’s right. Yes. So these are the reasons you should think twice everytime that you see the crime rate mentioned. [Bell] we’re going to go back to today’s topic. Restorative justice is a term you may have heard of. I think it’s certainly been getting more and more attention over the past few years. And basically, it’s a way of addressing harm that focuses less on punishment and more on healing. And not just healing the person harmed or the person responsible but a more collective healing that includes the community.

Clint: Exactly.

Josie: Here is Danielle Sered, the Executive Director of Common Justice and author of a new book called Until We Reckon, talking to us about the value of restorative justice.

[Begin Clip]

Danielle Sered: Restorative justice is a process in which the people directly impacted by particular harm come together to reach a decision about what to do to make things as right as possible. And so that has a few key elements. It means that the decision makers are the people whose lives are at stake in the outcome: those who’ve caused harm, those who were harmed, the loved ones of both. It means its a decision making process. So it’s not just a process that is about dialogue or conversation but about outlining a course of action that will address the harm that occured. And it’s aim is about repair. That distinguishes it from the criminal justice system in core ways. The key actors in the criminal justice system are not in fact the people most directly impacted. You’ll see in courtrooms that its the prosecutor versus the defendant and the victim is nowhere to be found even though that person sustained the harm for what is being addressed. The decision making process that happens in court is constrained by the law and unrelated to the particular impact that that harm had on someone’s life. And the aim of the criminal justice system is not repair. It’s job is punishment, in some ways its job is containment but it’s job isn’t repair. I’ve said at times it’s as though what the criminal justice system can do is if someone burned down your house it can burn down their house but it can’t rebuild yours. The aim of restorative justice is to do some of that labor of rebuilding and to put the responsibility of some of that rebuilding on precisely the person who caused the harm. At its core, restorative justice believes that the harm to people matters fundamentally, that it is about harm within relationship not just broken rules and that that harm within relationship requires repair.

[End Clip]

Josie: So what does restorative justice actually look like?

Clint: It’s not a trial, but more of a mediation. And it involved the person harmed, the person who committed the harm, and any other community member that may be needed. For example, the process could include other survivors, perhaps or parents of those involved or friends. Also, — and importantly — the restorative justice process requires a facilitator, a person trained to ensure all parties are able to find a way of reaching restitution.

Josie: The process begins with the facilitator asking the person who has been harmed what they want out of this process. And people who work in restorative justice say that what many harmed parties want is just for the person who harmed them to admit their wrongdoing. They want the person responsible to admit that they are telling the truth. To take responsibility. And maybe they also want a clear apology or maybe they want a different type of result. Maybe they want something that requires more time and sustained engagement. Maybe they want that person to admit to their friends and family the harm they caused. Whatever it is, the survivor is naming reparations and identifying possible ways the responsible party can make amends. To be clear these are not punishments. But they are things that may be hard for the responsible party to do. Whatever it is, the restorative justice process focuses on getting all parties to the right solution.

Clint: The restorative justice process is not necessarily just one conversation. It can take many meetings over many days or weeks or months, depending on the harm and the set of circumstances. This gives those harmed the opportunity to talk face to face with the person responsible, and allows them to articulate exactly what the harm has done to them. The entire process centers on the person who is harmed— the survivor— and it concerns itself with both the survivor and the responsible party. Ultimately, the process needs buy-in from both in order to find a real solution and in order for healing to be possible. But, if both parties do choose to engage in the process, both parties can also benefit from it. Here’s Danielle Sered again, talking about the benefits of restorative justice for not only the harmed party, but the person who caused the harm as well.

[Begin Clip]

Danielle Sered: So I think in our culture we have an understanding of healing processes to some degree. We understand that when something happens to us or when we lose someone there are stages that we will have to go through or steps we will have to take to help restore us to a sense of connection, to a sense of dignity, to a sense of self love, to a sense of hope. And I think that because I actually continue to believe, despite all the things we see in the world, that people are fundamentally good. I believe that when we cause harm it damages us in some way and we know it’s wrong and it feels that way. And the best way, the best word I know for that feeling is shame. And I’ve looked for a long time for pathways out of shame other than accountability and I’ve never found a single one. I really have come to believe that the only pathway out of shame is to be accountable. And that just like grief, for those of us who are hurt, restores us to those feelings of self love and connection and dignity and hope. For responsible parties it is the process of making right that helps restore them to feelings of dignity and self love and connection and hope. That I think accountability is the corollary to grief for those of us who have caused harm and I think until we have made things as right as we can we’ll carry that shame in a way that harms us and in a way that increases the likelihood that we will harm others. And so at Common Justice we think of accountability as an act of love. We think of accountability as a pathway to dignity. And we think of accountability as something that often allows those who have been responsible not only to make right with what they’ve done but also to heal through the things that have been done to them. Not in a way that excuses their behavior but in a way that helps them develop insight into it and to transform it.

[End Clip]

Josie: Restorative justice isn’t available to everybody in every situation. And in fact, its footprint is still relatively small. But it has still grown enormously over the past decade or two. It’s being used in schools, involving juveniles accused of wrongdoing, anything from stealing from one student to sexual assault.  It’s been used in prisons — last year, I spent a weekend at a restorative justice retreat in a Massachusetts prisons. Some jurisdictions have restorative justice diversion programs, where the court encourages the people to find healing outside of the courtroom. It’s even been used on a much larger nationwide scale, like in South Africa with the Truth and Reconciliation Commission.

Clint: There are criticisms of restorative justice. To be clear, it’s not perfect. First, the fact that both parties must agree to even take part in the restorative process means it is limited in the situations in which the  responsible party is interested in amends in the first place. That can obviously be limiting into who is participating or not participating in the process. There are also of course situations in which the person who has caused harm is coerced into the process by the looming threat of criminal consequences, but even then they have a stake in the resolution.

Josie: People also criticize restorative justice for keeping professionals out of the process. Not just legal professionals but people like therapists, for example. Another criticism is that restorative justice doesn’t really address the fundamental power structures that often lead to harm. Power dynamics are a concern in the restorative process – things like race and gender and age and class and sexual orientation don’t go away just because the restorative justice process is happening. Nor does social context, especially for kids, which may ultimately lead the harmed party to feel pressured into resolution before they feel ready.

Josie: Restorative justice isn’t perfect, and maybe it’s not for everyone or for every type of harm that’s been done. As we said, there’s no one solution to this disaster of the criminal justice system that we’ve created. But in general, restorative justice does offer a different way to think about harm, healing, restitution and consequences.

Josie: And fundamentally, it does attempt to rethink how we imagine punishment, which is key for any deeply rooted, real change to our criminal justice system. Here’s Danielle Sered talking once more on the difference between punishment and accountability.

[Begin Clip]

Danielle Sered: In our culture when we say accountability we usually mean punishment. But I understand that the two are not only different I actually believe that they’re incompatible. So punishment is passive. Like punishment is something somebody does to us. All we have to do to be punished is to not escape it. It doesn’t require anything in terms of our agency. It doesn’t require us to work. It doesn’t require us to acknowledge anything. It is something that is inflicted upon us by somebody else. Accountability is different. Accountability is active. At Common Justice we believe accountability has a few key elements. It requires that you acknowledge what you have done, that you acknowledge its impact on others, that you express genuine remorse, that you make things right to the degree possible, ideally in a way defined by those who were harmed and that you do the extraordinary hard labor of becoming someone who will never cause that kind of harm again. That kind of accountability is some of the most difficult labor any of us will do. And it’s not only harder than punishment, it’s also more effective, both for the person who caused harm, because it actually animates transformation, but essentially also for the person who was harmed because it actually answers to their pain and their needs. The problem with prison is that it makes almost no room for accountability whatsoever. People are separated from those they’ve harmed, they’re separated from those to whom they owe a debt, their ways of paying that debt, whether through something concrete like restitution or others things like paying forward their responsibility by being agents of positive change, are vastly constrained. And they’re in an environment that discourages honesty about what one has done and that dramatically constraints one’s ability to reflect deeply on the impact one has had on other people’s lives. And so prison not only doesn’t produce accountability, nothing about it does, but it interferes with it in such a way that it guts our ability as a society to actually hold accountability as a core value when something wrong has been done.

[End Clip]

Clint: You may remember from a previous episode this season, where our guest Abd’Allah Lateef, who was sentenced to life without the possibility of parole for a crime he committed as a child, discussed his experience with the restorative justice process when he sat down and talked directly to the family of the person who was killed.

[Begin Clip]

Abd’Allah Lateef: When I had the opportunity to address some of the family members for the first time, I didn’t want to do it in open court… I asked their permission as to whether they would prefer that I do so in open court or privately… and they appreciated that candor and asked that it will be done in private. And I had a wonderful judge who ultimately afforded us his chambers. And a long story short, we had an opportunity to really share and open up and have a moment of honesty, candor, and vulnerability.

Clint: Wow.

Abd’Allah Lateef: And in that moment, everything that I said was exactly what they needed to hear decades earlier. So where they were up to that moment opposed to my resentencing because they didn’t know what my sentiment was, they didn’t know how I felt. Hearing it in the first person, for the first time, 30 something years later changed the entire mood of not just the hearing, but it was healing. A moment of healing for those who were directly impacted and that could have been facilitated decades earlier if it wasn’t for policies, practices and unnecessary adversarial decision making that goes on between district attorneys and defense attorneys and sometimes judges that inhibit that ability to move forward any type of restorative justice practices even when family members are most in need of that.

[End Clip]

Clint: Here to discuss this with us is Sonya Shah, an expert on the process of restorative justice and an Associate Professor at the California Institute of Integral Studies. Stay tuned.


Josie: Thank you so much Sonya for joining us today. We’re so excited to talk to you.

Sonya Shah: Thank for having me.

Josie: So we’re talking today about restorative justice and I wanted you to first just tell us a little bit about what you do and how you got involved in this issue.

Sonya Shah: Yeah so I really got involved in restorative justice first and foremost from a really personal place. When I was young, I grew up in New York, my parents emigrated from India and left everything behind. And when we moved to New York, sort of treated New York like it was a small village even though it was the big town of Manhattan. And in that context of moving from another country and not really knowing the environment very well, I was in a situation of child sexual abuse by a caretaker. And I grew up, sort of my first, you know, 18 years, I didn’t really, I didn’t have a lot of memory about it. I was really scared, pretty terrified kid. And when I got to college, I sort of remembered everything and started a process of really healing and dealing with what had happened in my early childhood. And it was through that process that I had always kind of felt and come to realize that I wouldn’t have wanted a punitive outcome for the person that did the harm, that I would have really wanted to just know why they felt the need to do that and what was going on in their life and what kind of ways that I could have that kind of dialogue and conversation with them about the harm that they caused and the impact that it had. And I knew that because I felt that way, I knew that there were probably other victims and survivors who probably also felt the same way, survivors who don’t necessarily want punitive outcomes or believe in incarceration. And I think that was my personal journey. And then from there, clearly getting really politicized as a person of color, knowing that mass incarceration, incarceration is a very racialized system and not really believing that that is the way that we actually have true healing and accountability. That’s not the way that we’re going to actually transform a world without harm and violence. But we have to do it in a different way.

Clint: Did you always have this sense of healing and restoration taking precedent over a more punitive impulse or is it that something that you had to come to over time? Was it a sense, was it, you know, cause part of the thing that I always think about is that we live in and have all been raised in, in uh, not only just as society, but a world that is incredibly punitive and that tells us that when some type of harm, emotional, physical or otherwise is done to us, or done to someone we care about, that the way to achieve justice is through punitive means. And I can, I can speak for myself. I think it took me a long time to unlearn the sense of punitiveness that is a sort of ubiquitous fixture in our society and to move to a space where I thought of the response to harm being restoration rather than punishment. And I’m curious how that happened in relationship to the, the harm that you personally experienced.

Sonya Shah: Thanks for that question. Um, so I think that there’s like always four or five or six like complex really, really, really, why, is the reason that I do this work or believe this way or have a more restorative approach versus a maybe a punitive approach or a question you’d ask anyone, you know, and my first response is kind of a more personal one. I would say another reason for me is really deeply than I come from South Asia, I come from India, we’re first generation Indian Americans and my entire ancestry is from India and all of my immediate family members grew up through the British Raj and grew up through the Gandhian movement. And that movement was all about what does justice look like? Not by necessarily through violence, but through alternative means. It didn’t mean that it wasn’t forceful, it didn’t mean that it wasn’t really politicized and really activated. But what does it mean to actually not do harm while you are trying to get justice? And I think there’s like a deep ideology there that came very much from my familial cultural, ancestral background. And then I think as time progressed along the way and the more that I understood, the more I experienced, the more I felt, the more I got involved in this work, the more, you know, I started doing a lot of work about 15 years ago with people who were, uh, done severe harm and experienced severe harm and it, you know, time and time again, 99% of the time, it wasn’t as though someone who had done harm was ever born to do harm, you know, was born to create such havoc in someone else’s lives. But through a series of circumstances, through a series of traumatic experiences, through a series of just historical experiences, economic social experiences, if there are people of color, you know, found themselves at the bottom of being in the worst place of their lives at the worst time without a lot of opportunity or a lot of people around them to catch them and then created the kind of violence that they created. So how do we understand that and how did I? So it was really, really deeply experiential through the process of just being with folks that did a lot of harm and had experienced a lot of harm that I felt more and more like, this is not the way, this is not the way. Being punitive is not the way, it just hardens the heart. It creates more harm. It doesn’t actually change the system. If we’re talking about truly breaking legacies of violence, we’re not just talking about recidivism, we’re not just talking about emptying beds from prisons, we’re talking about creating an entire culture where we’re actually trying to address, interrupt, eradicate violence, than we have to think about what’s deeply at the, at the center of why it happens.

Josie: You just began talking about your work and working with people who have inflicted harm on others, working with survivors. Can you talk a little bit more about the work that you’ve done in restorative justice, around restorative justice and tell us more about the process?

Sonya Shah: For sure. So restorative justice is really about being a community based solution to dealing with harm and violence when it occurs. And that’s completely the opposite of our criminal justice system, the retributive system, which is basically a lock them up and throw away the key approach where no one really cares about what happened to the victim. They’re just used for conviction and no one really cares about what happened to the person that did the harm. The most traditional adversarial system and district attorney is just out for a conviction. So we’re going from that retributive system to a more restorative system. I will say my experience has been that like why, survivors don’t have to want to do restorative justice. There’s no like, we need to do this, it’s mandatory or even transformative justice, right? The question is really about providing another opportunity for those people that have experienced harm to say, you know, ‘I don’t really believe in this punitive system. That’s not what I wanted. Nobody, that’s actually not my healing, my healing and a part of my healing journey would be to actually sit face to face or sit in a circle with the person that harmed me and actually have a conversation. Come up with a plan, come up with ways that that harm can be addressed and quote unquote “repaired.”’ We know that things never actually get repaired, but the idea of what’s the kind of restoration that could be possible? And that’s really at the heart of different kinds of restorative justice processes from the survivor perspective. And I’ve met all kinds of survivors, survivors that wake up have been knocked unconscious from deep physical attacks who have woken up in spontaneous forgiveness. And I know survivors who’ve advocated for the death penalty. And so there’s no one way, one path for any survivor. We just want to create another option, another avenue, and for people who’ve done harm, you know, it’s really kind of unwinding the really, really deep cause of the cause of the cause of why I got to the point where I was able to commit a murder, a rape, a sexual abuse, a series of robberies, a lifetime of crime that I didn’t get caught for. Why was I able to do that? How did I get to that point? And there’s this process of unwinding, like, you know, childhood trauma, environmental factors, historical oppression, to look at one’s life experience, to be able to connect the dots of one’s own life to get to what was that moment in time and why at that moment in time did I commit that crime? And that journey is a huge journey of healing one’s own really difficult victimized life experiences and at the same time being accountable for the impact of the action that they created and being able to separate the difference between the two and being able to separate the difference between a person and an action so that a person is not the worst thing that they ever did. It’s an action that they did that was pretty horrible and tragic, but that’s not who they are. And I think it’s just like these very long journeys that are really, they are deeply rooted in healing that lead to, for people that did harm, some of the most accountable places that they can go and then the possibility of the dialogue between the two.

Clint: So I can imagine a scenario in which some, I don’t even, I don’t have to imagine it because this is responses that I’ve heard, but thinking about what you’ve laid out and the process of restoration and how the process of restoration is often a long one and a difficult one, and one that involves unpacking layers and layers of both personal micro histories and sort of larger macro histories. And I have heard people say ‘that’s fine, that healing should happen, but that healing should happen while the person is in prison and not in a separate context,’ right? They might say, ‘because there’s always this tension or perceived tension between the process of rehabilitation or restoration and healing and public safety,’ right? And so I’m curious how you would respond to someone who might contend that the processes you have in mind are good, but that those processes should take place in the context of an incarcerated space for someone who may not have gotten to the place of healing yet. And so, so how do you think about the relationship between the physicality of an incarcerated space and the process of healing and does healing necessitate that the person is not in such a space? Or, what is the relationship between the two of those things?

Sonya Shah: That’s like the million dollar question, right? And so I have a million things to say about that. So-

Clint: Yeah say them all.

Sonya Shah: Yeah. So here’s the thing. So firstly, prisons are now a part of our kind of collective consciousness, but we created that, right? If we think about the history of prisons in the United States, and I think California is a really great example to look at, Angela Davis’ Are Prisons Obsolete? is just a beautiful book about the history of the evolution of prisons. And in California there were only nine prisons built in hundreds of years until something like 1980 and from 1980 to now there’s been something like 33 prisons and 30 camps and five, you know, women’s incarcerated with their children facilities and some number close to 70 or 80 correctional facilities. So in 35 years we’ve built 80 facilities. And if we take the history of California, you know, it happened during Reagan’s administration with economic incentive to buy up rural, underappreciated rural land and to say, ‘hey, if we build these supermax or max prisons on this land, we create an industry, we create an economy.’ And from that economy, you know, California will boom and we’ll have these prison towns and etcetera, etcetera. And so then with that we have new prisons, then we have a whole economic system, the prison industrial complex, all the companies that are then benefiting from prison labor that keep it in place. And then we have the moral argument of criminality and equating people of color with being criminals that has to create an industry of prison. So we created all of it in 38 years. We have, in my lifetime, I’m 45 years old, in my lifetime, we created the notion of criminality and incarceration. So if we created it, we have an incredible opportunity to undo it, right? It just takes the unwinding of the collective consciousness to have a new collective consciousness. And with people like, you know, the Michelle Alexander’s of the world and all of the opening up of the penal codes and Supreme Court rulings and Angela Davis’ that’s what, that’s what’s happening. So I think that’s number one is just like really a deep recognition how much prison is a social cultural norm that has only been created in the last 35 years. So number one. Number two is of course when somebody does a harm, there’s like steps, right? It would be a little ridiculous to say that the minute somebody is beating someone else up that we should just like stop and offer everybody a restorative process. Clearly there’s like activation happening. There’s all kinds of things going on for the person who’s the survivor and the person who’s done the harm. So there’s definitely something about a period of time away, right? A time away from each other. That doesn’t have to look like a prison. It doesn’t have to look like a punitive time away. It could look very differently. Norway has the, as as an example of a time away, I’ll give you another example of a small community in Yukon territory in Northern Canada, the Heiltsuk Nation, they have a town of 1,600 people. I met the woman who runs the restorative justice center there, and she said, what they do is they have a cabin in the woods and basically when there’s a harm that happens, they ask the person to go to a cabin in the woods, that cabin in the woods, for one month to nine months, in that time, they’re visited by mentors. And um, what she said is they’re also like really having to heal and be in nature and with themselves. And she said that there’s just something incredible that happens when you have to confront yourself in nature and how that kind of healing and accountability has taken place and the way people have come back from their one month to nine months to then be accountable to the community that they harmed. So that’s an example, right? Um, there’s so, so what would be our version of, what would be the urban version of a cabin in the woods? What would be a version of creating public safety that doesn’t look like isolation and a punitive response?

Clint: Even though I do like this idea of making everyone into a transcendentalist.

Josie: (Laughs.)

Sonya Shah: (Laughs.) Yeah. Exactly. You know, we have to create and be very creative about what our versions look like and I think that that’s definitely, of course there’s time away. Of course there’s removing people from a situation that’s bad for both people. A lot of times I think what people don’t recognize is if someone’s doing harm, they’re also coming from an environment where that’s like kind of what’s going on and to think that they can just go back to their environment and then just be like, ‘yeah, I’ve transformed, I’ve changed,’ but my environment is exactly the same. How can that person live out transformation if they’re back in their same environment sometimes. Right? So like thinking through all of the things that actually need to take place in order for us to truly get to the place where we’re meeting the needs of public safety and meeting the needs of people who have committed an act of violence. I want to give one other example, which I know people kind of use as this weird pie in the sky example, but I also met another, a woman from the Nisga’a Nation, also from Canada, who in their community and their indigenous community, when there’s domestic violence for example, what she said they do is they bring everyone together, all the families together. The elders speak first, actually what she said, what happens first is that they tell the couple everything that is good about them, everything that they remember about them, everything that is, you know, that they’ve ever done, that’s really amazing and positive. And then the elders speak and then the family speaks and then the couple of speak. And I see that because, you know, there is this kind of like example that’s out there about like, ‘oh, there are these tribes that do that,’ but there are actually real people who do that, you know, and that do first start with trying to have us remember what’s good about ourselves. You know what we can be proud of before we get to how we actually hurt and harmed each other. That’s the way that community deals with harm when it happens.

Josie: You know, one of the things that I think is really interesting about your work is that you have been doing this work directly, meaning you’ve actually, you know, this is not just theoretical, right? You’ve seen people go through this process. You yourself has gone through this process and I imagine that when you understood that you wanted some sort of reconciliation for your own harm without it necessarily being punitive, at that time did you have a name for restorative justice or did you just know that you wanted something?

Sonya Shah: You’re totally right. I think most people have some feeling or experience of quote unquote “restorative justice” before they ever come across the term, which is just the impulse towards restoration and reconciliation, right? There’s some like, ‘oh yeah, I’ve experienced something like that. I want to talk to the person. I don’t want other people to be involved. I want to work this out.’ Right? So I definitely feel like I’ve had that. There’s also like really two roots and origins to restorative justice. One is an indigenous one, you know, which is not to pan-indigenize everybody, but there are many different examples from the Maori, from the Yukon folks, from many different places of people who have found ways to sit in circle or to come up with processes that are about dealing with harm when it happens. And then there’s the restorative justice that really kind of got birthed like in the ‘80s through responses to the criminal, a real feeling of a broken criminal legal system that is what I explained before, right? Where we have a criminal legal system that’s retributive that only asks, you know, what law was broken, who broke it and how do we punish them? And what restorative justice asks and this is from Howard Zehr’s work, who was a Mennonite: What happened? Who was harmed? What are the needs of the person that’s harmed? What’s the responsibility to repair the harm? What were the causes and conditions in which those harms happened? So those are kind of the, you know, just to kind of highlight where restorative justice comes from. But when I’ve done trainings and talked, you know, many people who’ve never heard of it, will come up with, ‘oh yeah, when I was, you know, 20 or when we did this or we did that, you know, we used to do circle or restorative justice.’ So I think there’s something about a remembering that we could have in our imagination about not using the state. Right? Like what did it look like before we had so much reliance on institutions and states? And just like almost so much that we think it’s in our blood, you know, to go to the state, you know, as opposed to go to the principal, tell your boss. Right? Any of those are punitive responses as opposed to like taking care of it myself or take care of it in my community. So that’s what I would say to that.

Josie: After doing this for so many years, what are some of the strongest memories you have in this work and in terms of the people that you’ve worked with, the stories you’ve seen, the repair you’ve been part of, or even the times that it was less successful?

Sonya Shah:  So I have had a few situations working with people who’ve done severe harm where folks have done like, not just one crime, but we’ll have said after months and months of working together, ‘yeah, actually I did like a hundred, 200, 300 robberies. I used to break and enter, like I did it for 10 years.’ Right? So we’re talking about like a lifetime of crime, you know, and came into sitting in like a circle with arms crossed and like this is stupid and you know, whatever and like, why should I trust you? And just through the process of, usually it’s time and the depth of relationship that that kind of feeling changes, right? Time, depth of relationship and kind of the depth of work as well as being in a group of people that have also committed similar crimes that are willing to like go there and talk about them and work through shame and trauma and guilt and remorse and, you know, all of the things that need to get worked through. And I have seen more than one time, um, these very gradual softenings, thawings, tears start happening and light bulbs go off and just an incredible sense of like, ‘wow, I did that and I really like don’t really ever want to be there again.’ And think those moments have been the reason why I do this work. You know what I mean? To just sit with somebody in their own process of recognition of like all the horrible things that happened to them and all the horrible things that they might’ve done. And one of the things I would say, two things I would say that her incredibly critical to like creating the conditions for accountability are, one, most people haven’t felt seen or heard or empathized with in their own pain and suffering and trauma. So, so much of this process is just about sitting with somebody in their own pain and suffering and trauma before getting to like why they did the harm. And the second thing is healing really happens in relationship, right? Accountability happens in relationship. So the way in which like in a community based healing modality, watching other people go through sharing really hard, painful things, dealing with their shame is probably one of the number one reasons that people who’ve had the hardest time talking about their crimes have been able to because they’ve said ‘I was going to come in here and I was going to just, you know, blah blah blah my way through but then I was like, I was listening to everybody speak and I have so much respect for X, Y, and Z and there came a point where I just couldn’t do it because I respect this person so much.’ So one thing that people might not realize is that responsibility to others can actually help with accountability and even recidivism. There’s another great example of a woman from the Navajo Nation who’s a peace builder and what she said to me was that when people who have recidivated come to her and she’s working with them, the first thing that she does is she helps to name clanship and kinship. And once you’re naming your relations, ‘so this is my uncle, this is my brother, this is my sister, my nephew, my niece,’ she said it’s like the sense of responsibility and belonging creates accountability and a desire not to harm again. And I want to say, as a personal example, that was true for me when I was in, I grew up in New York, I think I shoplifted from when I was 15 to 21 I went to Brown University, I shoplifted all four years through Brown University and no joke, I went to an ivy league and I was a shoplifter and then I came home and I worked in a junior high school. It was a charter school and I worked for my junior high school history teacher who was the only African American female in the district. And she loved me to death and I loved those kids and they were all having problems. And I remember being at a Duane Reade and like going to shoplift something, I didn’t need to do it, you know, there was no reason. I was just like, it was like this behavior thing that I was doing because I couldn’t deal with my life for most of my teenage hood and my college years and then I remember the day stopped. I thought of those kids, my kids and my seventh and eighth grade class and I was like, ‘I will never live it down if they see me here, you know, doing what I’m doing right now.’ And then since 21 I never shoplifted again.

Josie: Right, right.

Sonya Shah: And I’m 45 so 24 years of shoplifting free. But that’s a very real example of what does it mean? Like we think it’s all like we just have to do it ourselves and it’s all like deep personal healing. No, it’s also about our responsibility to family, to community, to like others that can help accountability happen.

Josie: Yeah. I do think that when people feel responsible for other people, but also just necessary, right? That their presence means something, that they have value, to me, that is such a better deterrent then physically torturing people and hoping that changes them.

Sonya Shah: Yep. Just another story as we’re doing-

Josie: Yeah, please.

Sonya Shah: Yeah. Right now I’m doing a victim offender dialogue with a woman who was sexually abused by her stepfather and over, you know, many, many years and her just incredible tenacity and her desire to just like speak to him directly and know why and like really get to hearing it from him that it was true and feel validated. It’s just such a deep healing experience for that survivor. And I’m, I’m thinking about one of her desires is she’s a parent and how some kids who are, you know, preteens and is terrified of them going outside and being away from the house. And what she really wants for herself as an outcome is to feel safer in her kid’s going out, you know, and going out for sleepovers and stuff like that. And, you know, so it’s just like that kind of, um, being with someone like that, you know, who has a desire to heal so desperately. It’s like the human resiliency of it is unbelievable. And the person that did the harm, who really truly knows that he did it and his wants to participate in that healing journey for, you know, her and of course also for himself is very, very powerful.

Clint: I’m curious what spaces you find yourself doing this work in? What are the sort of different dynamics that shape what the process of restorative justice looks like in each, we talked a little bit about the sort of desire to, to pull it away from operating within the state, but I’m curious like in school, in community organizations, in somebody’s kitchen, whereas a lot of this happening and how does the place that it happens and that sort of way shape what the process looks like?

Sonya Shah: Yeah, so there’s a huge budding restorative justice movement in schools for sure. I think that, so I guess another story is useful, but, and I, and I’ll tell sort of an Oakland based story. So maybe about 10 ago there was a woman named Rita Alfred and she, you know, took a circle process training and she was a disciplinary hearing officer for the Oakland School District and decided after that training, you know, I really want to try something different. So she went into a West Oakland middle school and in the first year in the school, she taught all the principals and staffs how to do circle process RJ-style. And then in the second year she taught all the kids. And in two years, this was studied by the Henderson Center for Social Justice at Berkeley this school that was in West Oakland that was, you know, had high suspension and expulsion rate, lots of kids of color, the expulsion rate went to zero and the suspension rate went down 75 percent.

Clint: Wow.

Sonya Shah: And this is consistent. So this is 10 years ago, right? So boom. So this happens and it’s happening all over. It’s happening in Pennsylvania. It’s happening in Colorado. It’s happening in Minnesota. And slowly and gradually it catches on. And a lot of these school boards in different states have adopted restorative practices as a way to do discipline. Meaning that instead of, you know, having a suspension expulsion kind of punitive system decided by the vice principal, you go to a restorative process, um, which pulls in parents and teachers and principals and kids and all of that kind of stuff. And the statistics across the board in all of these states are the same that somewhere in between, if you offer restorative practices as a process, that expulsion rate and suspension rates have gone down between like 56 to 85 percent depending on what school. Right? And now when we’re talking about kids of color and we’re talking about the school to prison pipeline, we know how important it is to actually bring down suspension and expulsion rates in these particular situations. So the school’s movement is huge. Of course like anything as it gets big, there can be like some processes that get more eroded where, you know, if not trained well, restorative justice becomes another kind of scripted tool that some teacher is slapped with doing and has no idea that it’s really like a paradigm shift of how you think about harm. So when it’s not done well, it’s replicating like something harmful and that has happened and when it is done well it’s because the restorative justice coordinator has internalized a different paradigm. The school is internalizing a different way to think about discipline, to think about like not discipline but even like when harm is happening around you and like the health of kids. Right? So it’s like most of the training that happens around how to do RJ in schools is really about taking a whole school approach and not saying like don’t be just that teacher or that one person out there in the school who’s trying to do it differently. You need the whole school on board. So that’s a big piece on the school’s thing. And the person that I’m close to who runs the Oakland Unified School District program, he has often said like for, we have 33 restorative justice coordinators in the Oakland schools, which are sadly on the chopping block right now, but that’s another story because of the city budget, but anyway, so he has said that basically 90 percent of doing restorative work in schools is community building. 90 percent of the time all you’re doing is being in circle, building, community building relationship and it is so that when the 10 percent of when you know the stuff hits the fan happens, that folks are ready, they’re ready to deal with the harm when it happens. Right? But you have to do that 90 percent of your time is community building and relationship building. So that’s very much how this work is being infused kind of in the schools context. Also, there’s a really large contingent of folks that are trying to do what’s called restorative community conferencing. So it’s like diversion for young people who do harm out of any juvenile justice system. So we know that if a young person, you know, at 16 to 20 touches, you know, the juvenile justice system, is incarcerated, they are like 90 percent likely to go into an adult system. We also know that because of all of the research, all his stats, everything, that like there’s like this spike of crime of like harm that happens at the age of particularly boys between the age of like 16 and 20. So it’s like what do we do to, what do we need to do to get young boys, probably mainly more young boys of color through that age? Right? So how can we divert them out of the juvenile justice system? What restorative community conferences are, are basically working with the whole community, you know, to refer cases to an outside system and then solving it before it ever goes to juvenile justice. Or if they go to the court, working with the DAs to divert the cases to an outside organization and have everybody on board to say, ‘if you go through this restorative community conference process and come up with a plan, you will never, your case is closed.’ You know, ‘if you fulfill the plan, it’s done and you never touch the system.’ So that restorative community conferencing and diversion program is alive and well. It’s something that started in New Zealand and has been happening in Baltimore with a program that Lauren Abramson started and is now rooted in Baltimore, I think it’s Restorative Response Baltimore, with Sujata Baliga’s work, uh, here in Oakland, with, I know folks like Wakumi Douglas in Florida and Travis Claybrook in Tennessee and you know, they’re all these different places that are trying to do the diversion work and it has proven to actually work from the New Zealand context and is proven to now be working here.

Josie: Great. This is so good. I do want to say quickly that for people listening, the story you mentioned about the Oakland restorative justice program in the schools and how it’s on the chopping block, there’s actually a good article about that on The Appeal. So, we’re not talking about it today on the show, but you should check out what’s happening because it is such an important program and to lose it, it would be really tragic. I guess I’d want to understand from you, over all these years of doing this work, what are some of the kind of benefits or the like lessons learned that have surprised you in that you think would surprise people who are listening? Because I think describing restorative justice, people are like, ‘oh, okay, that sounds like good and like it could work,’ right? But then when you actually see it every day, I think it’s just such a deeper, bigger result than you can even imagine or at least that’s been my experience in the little restorative justice work I’ve, I’ve seen personally and so I’d just love to hear from you, as someone who’s doing this day in and day out, what are you taking from this continually as you keep doing this work?

Sonya Shah: Yeah, no, it’s a great question. I mean I think, you know what I said sort of as we ended is that this is really about, in order to do kind of restorative justice work or transformative justice work you have to really internalize a paradigm shift, you have to internalize like that we truly can build a network, build the relationships with each other to actually deal with harm when it happens. Like it is actually possible. And maybe because there’s such a intense sort of Goliath of an adversarial system, of a system that tells you to go punish, what we see is just like these like sparking evidence and these like micro examples of like one on one dialogues or one case that happened or one restorative impulse to do it differently. And so it’s like, you know, this smattering of like the flower that’s coming through the cracks in the sidewalk that’s like just wanting to burst through and it takes a lot of water and belief, you know? And it really takes us to change our collective imagination of what is possible in order to actually bring restorative justice to scale. You actually have to believe it’s true. You know that it’s possible and we can’t convince people that it’s true unless they actually probably experience it. Right? So there’s also something about going into those situations where you’re also like allowing yourself to say like, ‘okay, the next time I am involved with some sort of harm that happens, I’m going to actually try to do this differently whether I did harm, I was in it or I witnessed it,’ you know, and what does that going to look like? How am I going to do that? So I think that that’s a big takeaway for me. Another thing that I’ve been thinking a lot more about is just I think, um, it’s really interesting to look at the work of like transformative justice, particularly the Bay Area Transformative Justice Collective has something called Pod Mapping and they sort of imagine this idea that if we’re actually going to create a world where we do draw on each other, then we need to create a ridiculously strong sense of community. And we need to figure out what they call pods. Like create pods, create community. You know, so many people feel so isolated, like they have no one to draw on both when they’ve been victimized and also when they’ve done harm. But what if we are creating pods of people that are like, ‘okay, if I do something harmful, I’m, these are my people I’m going to call on to hold me accountable and if I need help these are the people I’m going to draw on.’ And this is a very, very deep notion of what does it mean to actually try to not just to move out of the microcase. You know what I mean? Into like the community response. And I think that that’s really, that’s going to take a lot of us kind of believing that it is true. And it’s really hard because we don’t have, you know, we don’t necessarily have the examples sitting right in front of us and there’s so much, there’s so much about this sort of capitalist, patriarchal, modernity, you know, racist system that’s telling us to do it the other way.

Josie: Right.

Clint: Well this has been fantastic and so helpful and so illuminating. We just really want to thank you for taking the time and thank you for the work you do more than anything.

Josie: Yeah. This is so great Sonya. Thank you so much.

Sonya Shah: Thank you. Thank you for the work you do.


Josie: Thank you so much to Sonya Shah for joining us today and we also want to thank you Danielle Sered for her contributions to this episode.

Clint: And thank you all as always for listening to Justice in America. I’m Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: You can find us on Twitter @justice_podcast, like our Facebook page at Justice in America and subscribe and rate us on iTunes, it really helps.

Josie: Justice in America is produced by Florence Barrau-Adams, the production assistant is Trendel Lightburn with location recording by Jon Kalish and Natalie Jones. Hope you Join us next week for our last episode of the season.


New York City Looks To Eliminate Hidden Bail Fees

As they await statewide action to eliminate cash bail, city councilmembers are looking for ways to reduce the financial burden on families of incarcerated people.

Photo by Mario Tama/Getty Images

New York City Looks To Eliminate Hidden Bail Fees

As they await statewide action to eliminate cash bail, city councilmembers are looking for ways to reduce the financial burden on families of incarcerated people.

New York City may soon take an important step toward reducing the burden placed on people entangled in the criminal legal system.

This month, the City Council is expected to vote on a bill that would do away with fees levied on people paying bail with credit cards. After creating an online bail payment system last year, the city has passed on the cost of processing those transactions to people trying to get out of jail and those who help them. Anyone using a card online must pay an additional 2 percent fee, while those paying at jail face a 7.9 percent fee charged by private firm JPay.

The 7.9 percent fee collected by JPay is “outrageous,” said Joanna Weiss, co-director of the Fines & Fees Justice Center. Many families have to stretch their resources to afford the average $5,000 felony bail amount, forgoing bills like rent or utilities, cutting back on necessities like groceries and gas, or dipping into savings and borrowing money. “To then charge extra is of course extra hardship.”

But even the city passing its own cost on to people through the 2 percent fee is “problematic,” she added. “It’s like a tax on the very poorest members of our community, people who have not been found guilty of anything.”

And while the percentage may sound small, it can amount to hundreds of dollars, an impossible sum for many people. “The money we’re talking about is meaningful to people and it does have an impact,” noted Councilmember Keith Powers, who introduced the legislation along with Councilmember Rory Lancman. “We should be looking at reducing the cost … rather than adding in fees.”

Mayor Bill de Blasio supports the legislation, said his deputy press secretary, Raul Contreras, “but our goal is ultimately to eliminate cash bail completely.”

Powers is now determining how best to implement the policy change outlined in his legislation. The city could simply pay the credit card fees or renegotiate its existing contract with JPay to eliminate fees. The bill would also require the Department of Correction to add an option to make online bail payments by direct deposit or electronic check.

We should be looking at reducing the cost … rather than adding in fees.Keith Powers, New York City Councilmember

The legislation is one piece of a larger plan by city lawmakers to reduce the burden of fines and fees on families interacting with the criminal legal system. The credit card fee represents “the last remnants,” Weiss said. In 2016, the City Council voted to get rid of a 3 percent fee that had been automatically attached to every bail (which was put into force in February 2018 by the city’s Department of Finance).

An investigation by City & State New York found that the city received $2.49 million in 2015 from a combination of bail fees and bail forfeitures—a huge amount for families to bear but a fraction of the city’s overall $80 billion budget. That revenue is dwarfed by the cost of incarcerating people who can’t afford their bail amounts: $100 million annually, according to a 2018 city comptroller report.

The city recognized “this is not worth the money to us and it just feels like that 3 percent to people who are putting up bail is far more valuable to them,” said Insha Rahman, program director at the Vera Institute of Justice.

Legislation like eliminating credit card fees is one of the tools lawmakers can wield to “reduce the burden on people,” Powers noted. But the City Council is limited in what it can do without statewide bail reform by the legislature.

That reform may be on the horizon. In his recent budget plan, Governor Andrew Cuomo included a proposal to eliminate cash bail, among other criminal justice reforms, and state lawmakers have put forth their own proposals. “Albany has shown us there is momentum” for getting rid of money bail and the resulting fees, Rahman said.

Eliminating money bail would have a significant effect in the rest of New York, which has a long way to go to catch up to New York City’s recent moves to address fines and fees. The state’s  courts outside New York City charge a “poundage fee” of about 3 percent for every bail amount. That means that if someone in Syracuse or Schenectady is facing a $5,000 bail, she has to either come up with that money or pay a portion to a bail bondsman in order to go free before her trial. If she returns to court, she’s supposed to get all of that money back. But if she’s convicted, the court keeps $150 for the poundage fee. (If the charges are dismissed, she gets the $150 back.)

That’s a huge amount of money for most people. “They’re borrowing from family members, going into debt, not paying rent,” Rahman noted. That $150 represents “a couple of grocery bills, that’s the electricity bill, that’s any number of very basic costs that people often forego because they simply are doing everything they can to scrape together money for bail.”

And while the criminal legal system levies many fines and fees, pretrial fees “are particularly concerning because they are all being imposed on people who are innocent,” Weiss said.

They’re borrowing from family members, going into debt, not paying rent.Insha Rahman, program director at the Vera Institute of Justice

In 2017, all city courts across New York State under the purview of the state Office of Court Administration received a combined $245,387 through poundage fees, with one portion flowing to county budgets and the rest to state coffers, according to data obtained by the Vera Institute of Justice and shared with The Appeal. That comes to an average of around $4,000 charged by each city court per year. (In response to a request for comment on the poundage fees, Lucian Chalfen, director of public information for the New York State Unified Court System, said, “We didn’t promulgate it or profit from it. And any change would have to come from the New York State Legislature.”)

“This is taxation to support government,” Weiss said, “an easy way of adding taxes without facing pressure.”

It’s a common tactic nationwide. As municipal and state budgets have decreased since the 2008 financial crisis, courts have increasingly relied on fines and fees to fund operations or pad general funds. Bail fees are part of “a broader pattern across the country of shrinking court budgets or neglecting to raise taxes in states,” said Mitali Nagrecha, director of Harvard Law School’s Criminal Justice Debt Initiative. “This becomes a really easy way to fill gaps in the budget.”

“I don’t know a single money bail system across the country that doesn’t have some variation on bail fees or surcharges,” Rahman said.

Many bail surcharges are buried in administrative rules and regulations that outline when and how people should be assessed with fines and fees. Alabama charges either a $35 fee plus 3.5 percent of each bail bond, or $100, whichever is greater. Mississippi charges a $25 flat fee with an additional $20 or 2 percent, whichever is greater. Pennsylvania lets courts set bail fees to fund their criminal legal systems. Clerks in West Virginia can charge $25 for each bail bond plus $10 for any services in processing it. Louisiana courts get a 1.8 percent cut of every bail amount set, an arrangement that a federal judge ruled was unconstitutional in New Orleans in August.

Many of these fees appear to create a conflict of interest, especially when they are funneled directly to fund court operations as in Louisiana: The higher judges set bail amounts, the more revenue is generated through the nonrefundable fees. Even if the revenue isn’t as significant as some judges or lawmakers may perceive it to be, “there’s a really clear incentive for the courts to impose bail fines and fees,” Rahman noted.

In some places, like New York, the fee won’t be taken from a bail amount if the charges are eventually dismissed. But that’s not true everywhere. Many courts pocket the extra money even after an acquittal.

In one case in Illinois, Curtis Lovelace managed to come up with $350,000 for a bail bond, showed up to court, and was acquitted. But the state kept $35,000 as a nonrefundable fee. The trial court denied his motion to return the money, noting that circuit clerks used the revenue to fund their office.  

The challenge is getting courts and lawmakers to recognize that these fees do not actually generate a significant source of revenue compared to the cost of putting someone in jail. “The cost benefit argument [in favor of bail revenue] is not there,” Rahman said, “because they’re going to have fewer people in jail.”

But the money saved by jailing fewer people, which bail reform advocates say in the long run will dwarf the revenue from bail fees, is still intangible in the near term. “The problem is that there isn’t an immediate replacement of that revenue source,” pointed out Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute. The savings won’t manifest until, for example, so many fewer people are jailed that an entire wing or facility is shut down. So lawmakers need to take a long view and be patient.

Powers sees his legislation as part of a larger project: to make sure “that people who are incarcerated don’t have additional costs being added to their incarceration and that we have a system that is not about penalizing people through fines and fees.”

It’s meant to set a larger example to the rest of the state and the country. “New York City and states across the country should not be profiting off of people’s misery,” he said. The movement to reform bail isn’t just about changing how it’s used, he said, but also “trying to reduce the cost and impact on the families that are forced to pay bail.”

“Even while we wait to get the big reforms at the federal and state level, we’re going to try to reduce the financial impact on people,” he added.

Woman Faces Life In Prison For Sharing Drugs With Another Woman In Jail

A 22-year-old woman overdosed and died in jail. A 24-year-old faces first-degree murder charges. Did the system fail them both?

Sheriff Billy Woods of Marion County, Florida
Photo illustration by Anagraph. Photo by Gerardo Mora / Stringer

Woman Faces Life In Prison For Sharing Drugs With Another Woman In Jail

A 22-year-old woman overdosed and died in jail. A 24-year-old faces first-degree murder charges. Did the system fail them both?

On Sept. 7, 2018, 24-year old Jeniffer Patrick was riding in a car with her 49-year-old boyfriend when they were pulled over by Marion County sheriff’s deputies, who found drugs and syringes in the car. She was arrested and booked into Marion County Jail in Ocala, Florida, where she was strip searched and placed in a holding facility with other women.

Patrick’s first day in the jail would be 22-year-old Lorraine Gardner’s last. Gardner had been there since July 2, on a probation violation stemming from three drug charges for MDMA, cocaine, and meth.

According to the Marion County sheriff’s department, video showed Patrick handing something to Gardner, who then put it to her face. Soon after, she began to show signs of physical distress. Staff with Ocala Community Care, a nonprofit that provides medical care at the facility, tried to revive her. EMTs arrived at the scene, but they couldn’t save her life either.

Later footage showed something falling out of Patrick’s pants: a small baggie containing a tan mixture, according to detectives. The substance was tested and revealed to be 2.5 grams and to contain fentanyl. Patrick told officers that she had grabbed the bag after it fell out to prevent the other women from getting sick. Patrick did not alert authorities and she tried to throw out the drugs before another strip search, according to the sheriff’s office.

On Nov. 20, Patrick was charged with first-degree murder. News outlets seized on the scandal: “Woman who hid drugs in vagina charged with murder after inmate ODs: cops,” the New York Post headline read.

The murder charges against Patrick are part of a growing push to treat fatal overdoses as homicides. Dozens of states have passed or expanded laws allowing prosecutors to bring murder charges against anyone who gives or sells drugs to a person who dies after taking them. According to the Drug Policy Alliance, a nonprofit that supports science-based drug regulation over criminalization, media mentions of drug-induced homicide prosecutions rose over 300 percent between 2011 and 2016.

In June 2017, Florida joined in and passed a fentanyl trafficking law that increased penalties for dealers, including first-degree murder charges.

Lawmakers argued that the new legislation would protect drug users from greedy dealers.

“We want to send a clear message to drug dealers in Florida, and that is that the Florida House is standing strong and we will not tolerate the way you prey on the weak,” Representative Jim Boyd, a Republican and the bill’s primary sponsor, said when the bill passed the state House.  

Attorney General Pam Bondi seconded the notion that the law would protect Floridians from dangerous drug traffickers. “Taking Fentanyl just one time can kill—and that is why I want to thank each member of the Florida House for voting to give prosecutors the tools to seek stronger sentences against traffickers selling Fentanyl and other deadly drugs in our state,” Bondi said in a statement.

When then-Governor Rick Scott signed the bill, he promised it would save the lives of people struggling with substance use disorder. “I’m proud to sign this important piece of legislation today to help fight this national epidemic, which has taken the lives of too many Floridians,” Scott said. “This legislation provides tools for law enforcement and first responders to save lives.”

The law created mandatory minimums for fentanyl possession, including a minimum of three years for four grams, 15 years for 14 grams and 25 years for 28 or more grams. It also cemented first-degree murder as a charge in cases where a homicide results from a drug transaction. In Florida, first-degree murder means an automatic sentence of life without parole or the death penalty.

Amy Berndt, the lead prosecutor in Patrick’s case, told The Appeal that she won’t seek the death penalty. But she’s also not planning to use the threat of a life sentence to get Patrick to plead guilty to lesser charges, as prosecutors often do. She says she’s committed to putting Patrick in prison for the rest of her life.

The new law “definitely helped us,” Berndt said. “Basically as long as we can prove that the person delivered the drug that caused the death—fentanyl—it’s first-degree murder. So with the changes in legislation it makes it easier to prove a first-degree murder.”

Asked if she thought it was appropriate to apply legislation promoted as a way to target large-scale traffickers to one woman sharing drugs with another, Berndt said small-time dealers are the problem.

“I would say that these people are dying as a direct result of the street-level people selling the drug,” she said. Asked if Patrick had sold Gardner the drug, Berndt acknowledged that she had not, but she nevertheless believes life without parole is the right penalty. “She did give it to her.”

Drug policy experts caution that harsher penalties do not save lives—in fact, the threat of more time in prison might increase the likelihood of a fatal overdose if family members, friends, or other users hesitate to call authorities. “There’s not evidence that ramping up criminal penalties in the form of drug-induced homicide laws creates a deterrent and prevents overdose deaths,” Lindsay LaSalle of the Drug Policy Alliance told The Appeal. “And criminalization adds up to a number of adverse impacts. It’s a deterrent to calling 911. People are not going to feel comfortable calling emergency medical services if they think they’re going to be on the hook for murder.”

Although Gardner’s death was the most recent fatal overdose, it was not the only death at the Marion County Jail in the past year. Four people died by suicide in just five months, prompting Sheriff Billy Woods to bring in outside experts to figure out why people kept killing themselves. (Woods declined to comment on any of the five deaths in the jail, citing an ongoing investigation.)

In separate cases, two women died by suicide after being arrested for stealing from a local Walmart.  Diana Lynn Eldredge, 49, was found dead with a bed sheet around her neck last May. She had complained to her boyfriend and brother about the jail staff and conditions and was distraught that she couldn’t make bail. Mary Elizabeth Moody-Lazabeck—who suffered from PTSD, according to her mother, and had been in an out of jail for drug possession, theft, and burglary—killed herself in July at the age of 34. The month after Lorraine Gardner died, 55-year-old Steven Schmitt killed himself in the jail. Just seven days later, Daniel Vanhorn, 35, also died by suicide.

Sheriff Woods, who had pledged to “seek justice, love, mercy and walk humbly” when he was sworn into office in 2017, told the Ocala Star-Banner that the string of deaths “doesn’t mean there’s any major problem,” adding that he’s merely being “proactive” by bringing in outside experts. He said all jails in the country have problems with suicide and deadly contraband.

But overdoses in jail don’t have to be fatal. A month after Scott signed the trafficking legislation, Ocala Community Care, the Marion County jail’s medical and mental health services provider, began to carry naloxone, a medication that can rapidly reverse the effects of an opioid overdose. But the provider’s staff didn’t get to Gardner in time. According to Berndt, Gardner had been dead for hours before medical personnel reached her. They never tried to use naloxone to revive her. Naloxone has no effects on people without opioids in their system, but if administered in time it has success rates approaching 100 percent, according to 11 studies.

Ocala Community Care CEO Loretha Tolbert-Rich told The Appeal that she assumes the staff didn’t think to give Gardner naloxone because she had been in the jail for months, presumably without access to drugs. If an inmate comes into jail and starts exhibiting these symptoms, perhaps it’s related to opioid overdose. If they’ve been in jail for a substantial period of time, it’s not your thought,” Tolbert-Rich said. “It wasn’t suspected because she had been in here. Since the incident, we pay closer attention to that regardless of how long an inmate has been in.”

Naloxone shocks the system out of the deadly effects of an overdose. But there are also preventive medications, like methadone, that can deter an overdose in the first place, or lessen the likelihood that it will be fatal. Last November, the National Commission on Correctional Health Care and the National Sheriffs’ Association called on jails to introduce medication-assisted treatment, or MAT.

“Jails are on the front lines of this epidemic, and they also are in a unique position to initiate treatment in a controlled, safe environment,” they wrote in a joint report. “Pharmacotherapy—i.e., medication-assisted treatment—is a cornerstone of best practice for recovery from substance abuse. Treatment using MAT, particularly when coupled with evidence-based behavioral therapy, improves medical and mental health outcomes and reduces relapses and recidivism.”

In the report they suggest the Food and Drug Administration-approved medications methadone, buprenorphine, and naltrexone. Buprenorphine and methadone activate the opioid receptors. Both quell cravings and prevent the negative effects of withdrawal, with a few differences: Buprenorphine produces fewer euphoric effects and is less likely to lead to overdose. Methadone is a Schedule II drug, which means it can’t be sold without a Drug Enforcement Administration license, while buprenorphine can be prescribed by a doctor. Naltrexone, an opioid antagonist, prevents the feelings of euphoria and pain relief associated with drug use.

“Most important, MAT can help rebuild and save the lives of those with substance use disorders,” the guidelines note.

Marion County Jail provides very limited MAT.

“We do not give suboxone,” Tolbert-Rich told The Appeal. “There’s methadone for pregnant females. That’s what we do for pregnant females because detox in a pregnant female can hurt the baby.”

A spokeswoman for the sheriff’s office said they had begun to administer naltrexone, in the form of Vivitrol, a shot that’s supposed to block the effects of opioids for a month. The shot needs to be administered monthly for about a year.

The Trump administration has boosted the use of Vivitrol over other therapies. The administration’s action plan to combat the opioid crisis—released in March, at the same time that President Trump called on the death penalty for dealers—seemed to favor Vivitrol over buprenorphine and methadone. Alkermes, the pharmaceutical company that produces Vivitrol, has come under scrutiny for aggressively selling the shots—which can cost $1,000—to prisons and jails.

And the drug has flaws. A ProPublica investigation found that people are at higher risk of overdose if they stopped using it early. And, unlike buprenorphine and methadone, Vivitrol requires drug users go through painful withdrawals.

“Methadone and buprenorphine have been shown on a variety of metrics to be far superior to Vivitrol—that includes safety, effectiveness, and cost,” Leo Beletsky, a professor of law and public health at Northeastern University who focuses on drug policy, told Stat News. “The reason Vivitrol is preferred is that it’s a medical version of forced abstinence. That is why it’s been the darling of those who rhetorically support medication assisted treatment.”

Meanwhile, treating prisoners’ opioid use disorders with methadone or suboxone could cut down on the contraband problem. “There’s less for people to be smuggling drugs if they have access to evidence based treatment and care they need while in the facility,” LaSalle said. And MAT might have a prophylactic effect, so opioid users who overdose are less likely to die. A National Institutes of Health-funded study analyzing data from 17,568 adults in Massachusetts who survived an overdose found that opioid overdose deaths dropped by 59 percent for those receiving methadone and 38 percent for those receiving buprenorphine over the next year.

LaSalle thinks this type of program could have made a difference for Gardner and Patrick.

“Had MAT policy been in place, there may have been a different result,” she said. “It illustrates how are we actually pinpointing the blame instead of looking at broader policies of what works.”

Justice in America Episode 18: What Happened to Clemency?

Josie and Clint talk to NYU law professor Rachel Barkow about presidential pardon powers.

President Trump grants a posthumous pardon to former heavyweight champion Jack Johnson in the Oval Office of the White House on May 24, 2018.
Olivier Douliery / Pool/Getty Images

Justice in America Episode 18: What Happened to Clemency?

Josie and Clint talk to NYU law professor Rachel Barkow about presidential pardon powers.

The pardon power is one of the strongest presidential powers in our constitution. The president alone has the ability to pardon or commute the sentence of any person convicted of a federal offense. (For those convicted of a state offense, usually it’s the governor who has that power.) But despite the fact that we imprison more people than ever, over the last few decades, presidents have been increasingly less likely to pardon people or commute sentences. On this episode, Clint and Josie discuss pardons and commutations, including some of the bizarre and fascinating decisions of presidents past. They also talk to clemency expert and NYU Law Professor Rachel Barkow about where Obama failed on this issue and the potential for a restructured process.

Additional Resources:

Here’s a link to Professor Barkow’s new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration

Professor Barkow has written about clemency extensively. Here’s an article she wrote for the Washington Post with Mark Osler.

And here’s her paper, Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal.

For more on the racial disparity in pardons and commutations, read the ProPublica study.

Another good piece: Pardons Have Changed A Lot (And We’re Not Just Talking About Arpaio), FiveThirtyEight

For an interesting look at the state level process, here’s a PSMag piece on California’s Governor, Jerry Brown, and his pardon and commutation legacy.

And check out New Thinking, a great podcast by Matt Watkins. We included a clip from his conversation with Bruce Western.

Justice in America is available on iTunes, Soundcloud, Sticher, GooglePlay Music, Spotify, and LibSyn RSS. You can also check us out on Facebook and Twitter.

Our email is



[Begin Clip]

Rachel Barkow: We give really long sentences in the United States to people. And the idea that you could sentence somebody who is, you know, 21, 22 years old for 50 years and never look again so see whether that makes sense, either because that person has changed dramatically or because we as a society have changed. You know, we’ve changed our views on whatever the underlying criminal conduct was. Or we’ve just changed our views on the social circumstances surrounding that person’s commission of the crime. You know, to me that’s just messed up.

[End Clip]

Josie: Hi, I’m Josie Duffy Rice.

Clint: And I’m Clint Smith.

Josie: And this is Justice in America.  Each show we discuss a topic in the American criminal justice system and try to explain what it is and how it works.

Clint: Thank you everyone for joining us today. You can find us on Twitter at @justice_podcast, like us on our Facebook page at Justice in America and subscribe and rate us on iTunes, or wherever you listen, we’d really love to hear from you.

Josie: We opened the show with a clip from our guest, NYU Law Professor Rachel Barkow, whose book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, was released early this March.

Clint: She’s going to talk to us about our topic today, which has been in the news lately, if you’ve been paying attention to criminal justice news. Or anything related to Donald Trump.

Josie: Or if you’ve been following any news about Kim Kardashian.

Clint: Also true. And that is the power of clemency. Pardons, commutations, what they are, who can do them, who gets them, all that.

Josie: And we’re going to talk to Professor Barkow, who has done a ton of work on this issue. She’s going to tell us all the hoops a person has to jump through in order to even be considered for a commutation or pardon. She is also going to talk to us about Obama’s successes and failures on this issue, and even about her experience clerking for Justice Scalia. But before we start on commutations and pardons, we are going to do our very favorite word of the day.

Clint:  So, as many of you know, every week we spend just a quick minute talking about a word, or phrase, or term related to our criminal justice system that we think is misused or misunderstood, or frankly, just kinda useless. And today that word is, as sometimes is the case, actually two words: victim and offender. [Bell.] Now, to be clear, these words are certainly not useless. But they are far more complicated than we tend to think of them. Or, more specifically, far more complicated than the criminal legal system tends to employ them.

Josie: When we talk about the criminal justice system, as we’ve said tons of times before, we’re talking about a lot of different processes and situations and actors. But very very generally, on this particular point, we can think of things along two axis. On one, there is the actual alleged crime. So, the robbery or the drug sale or the incident, in other words.

Clint: And on the other axis, are the actual people involved. And in the way our criminal justice system talks about those people, in particular when we’re talking about the notion of violent crime, and what people consider to be violent or not violent, the people tend to be split into two groups: the victim and the offender.

Josie: Now, in any given situation, in any given incident, those words may totally apply. If I break into Clint’s house and steal all of his stuff, it is totally reasonable to call him the victim and me the offender, unless Clint deserved it.

Clint: (Chuckles.)

Josie: The problem with these terms tends to arise when we’re talking about people as a whole, their entire selves, rather than an individual incident.

Clint: So what we’re getting at here is something that we talk about a lot on this show which is our system’s tendency to flatten people, so sort of render them two dimensional, to categorize them, to put them in a box. And, in many situations, this betrays a fundamental misunderstanding of who people are and what they’ve experienced. Bruce Western, a mentor of mine, a brilliant criminal justice expert, former professor at Harvard, current professor at Columbia University, leader of their Justice Lab, he is someone that we would love to have on at some point, Bruce if you’re listening, please come on. He has talked about this extensively. And his recent book, Homeward, which is phenomenal and we highly recommend it, it is a book rooted in a reentry study that he did of people returning from prison in Boston. Here he is on the Center for Court Innovations podcast, a podcast called New Thinking, which is great, talking to Matt Watkins about the limits of this dichotomy between victim and offender and how it often creates a sort of false binary that, again, flattens people in ways that aren’t really reflective of the complicated nature of their circumstances. The conversation begins with Watkins here.

[Begin Clip]

Matt Watkins: In a sense this portrait that you’re offering of the people that you studied is making how we think about criminal offenses much more complex. You’re really complicating the simple binary between good and evil, guilty and innocent.

If we look for a moment specifically at the question of violence and people experiencing and witnessing violence in their early years, I was really struck by the statistic of 40 percent of people in your survey had witnessed someone being killed.

Bruce Western: Yeah it’s extraordinary.

Matt Watkins: I mean, that’s just an extraordinary number. So how do you think your findings complicate how we think about people who have been convicted of violent offenses?

Bruce Western: Yeah. I mean for me this was one of the really eye-opening aspects of the research. I felt through this work we had gained some window onto a world that was just shot through with ethical ambiguity. And because of the different kinds of material hardship that people were dealing with, they’re very often put in situations where they had to make choices that in many cases those choices were never very good. Violence in some cases became functional, became a way of dealing with problems, very difficult problems.

And I think this is very different from the moral universe that is contemplated by our criminal justice system, which tends to divide the world into innocent victims and guilty offenders. Guilty offenders prey on innocent victims, and the job of the system is to mete out punishment and separate offenders from victims.

But in the world of the Boston reentry study, that our respondents were sharing with us, you couldn’t divide the world into victims and offenders because people, who in some cases committed acts of serious violence, for example, and had gone to prison for them, had very serious histories of victimization themselves, had witnessed a lot of violence themselves. And I think the violence we observed in many cases was of a very contextual kind, which meant that people were growing up in chaotic homes, they were living in neighborhoods that were very high crime areas. And tt makes me think if you had grown up in that family, or if I had grown up in that family, we would have been exposed to a lot of violence in our lives too, and we may have well have become quite seriously involved in violence as well.

[End Clip]

Josie: At the beginning of that clip, Watkins references Western’s finding that 40 percent of the people he studied had witnessed someone being killed. Just think about that. Think about that number. In many situations, people who do terrible things have had terrible things done to them and they are victims of this deep deep trauma.

Clint: To be clear, this is not to discount any individual incident. We’re not saying that it’s acceptable to assault somebody because you’ve been assaulted and we’re not trying to strip people of their agency. But what we’re trying to do here is illuminate the ways in which people are often products of their experiences and the trajectories that their lives take can’t be disentangled from the circumstances that they’re coming from. On a previous episode this season, we talked about the word “violence” and how imprecise it is. But it’s not just that the categorization of violence is far more complicated than we often tend to use it, it’s the offender one as well.

Josie: And, like Watkins says in that clip, this is related to other ways we think and other ways we categorize people in this system. So good or evil, guilty people or innocent people. Things are complicated, but even more, people are complicated. Again, that doesn’t mean they shouldn’t be held responsible but it does mean that they cannot be easily categorized. As Professor Western said in a piece that he wrote, “The complex reality of their lives — and the lives of so many other men and women like them — as both violent perpetrator and violence victim is one the U.S. justice system is ill-prepared to acknowledge or treat.” So that is our word of the day, or words of the day. [Bell.] Now we are moving on to Clemency.

Clint: So, what is clemency? In the criminal justice context, clemency is the power given to the executive branch of a government that allows them to reduce the punishment a defendant has received. And when we say the executive branch of government, what we mean is that only the president has the power to make a final decision on a federal level. On the state level, the Governor or in some cases a Board, are the ones that has clemency power. Sometimes they both have power together. But ultimately, the point is, the clemency power is only granted to very few people, by very few people.

Josie: Clemency really takes two different forms. So the first is a pardon. The Department of Justice website describes a pardon as quote, “an expression of the President’s forgiveness.” This basically allows the government to absolve a person of guilt for a crime. To be clear, that means legal guilt. It basically makes it as if the person’s arrest and conviction and sentence had never happened. But it doesn’t mean they’re actually innocent. In fact, historically, it’s basically been a requirement that a person accept full responsibility for their wrongdoing in order to even be considered for a pardon. Now people can be pardoned while they’re serving their sentence or after its over. They can even be pardoned after they die actually.

Clint: The other primary type of clemency is a commutation, and that’s where a penalty is reduced. So perhaps you’ve been convicted of a crime, and you’ve served ten years of your thirty year sentence, and the governor decides to commute your sentence to ten years instead of thirty. That means that you no longer have to serve those last twenty years. But it doesn’t mean you’re now considered innocent, or that the criminal sentence is erased in it’s entirely. It is a reduction, not an elimination.  

Josie: Now, we did not invent clemency in America. In fact, it goes back centuries and even millennia to the British Monarchy and seventh century kings and even further to Ancient Greece and Rome. In fact, they talk about clemency in the Bible. But even though we didn’t create it, it is very deeply enshrined in our government and our country. The Presidential power to pardon is actually in Article II of the Constitution. As The Washington Post called it, it’s one of the quote, “strongest unilateral authorities of the presidency.” A pardon doesn’t have to be approved by Congress. It can’t be vetoed. It is, on the federal level, a presidential power. On the federal level there are just two limitations to the president’s power to pardon. Presidents can’t pardon people who have been convicted under state law, just federal law. People convicted under state law have to go to their state authority, either the governor or the board. And presidential pardons cannot quote, “derail or overrule the impeachment process.”

Clint: Yeah, and that one feels particularly relevant, given the time period that we’re occupying.

Josie: The question is whether presidents can pardon themselves but we’ll figure that out with time surely.

Clint: What’s interesting is that the people who founded the United States put the power in our Constitution with the expectation that it would be used pretty regularly. They realized that the justice system isn’t always fair, and they expected it to be a sort of fail safe. And for a long time, it pretty much was. It used to be that judges and prosecutors would actually come to the president with cases where they thought the law was way too harsh. Apparently, Thomas Jefferson received requests on behalf of two different people convicted of goose thievery within a two week period. Imagine a judge just being able to go to the president and being like, ‘yo we got another goose thief. Can you pardon this guy really quick? We got a lot going on, appreciate it.’ If only things were so simple.

Josie: (Laughs.) Back in the day. There used to be a lot of presidential pardons. Thomas Jefferson pardoned everyone who had been convicted under the Sedition Act. Lincoln was big on pardons, too, and he actually pardoned 264 of the 303 Native Americans, members of the Dakota Tribe, who had been sentenced to death for attacking and killing a number of white Americans who tried to take their land. But, before you give him too much credit, he also allowed the other 38 to hang to death, which remains the largest one-day mass execution in American history. And we’re not even talking about the 1,000 Dakota women, men, and children who were taken hostage by the US military during that time, but, I digress.

Clint: After Lincoln, Andrew Johnson — yes, Johnson, not Jackson — pardoned a bunch of people, almost all of whom were ex-Confederates. Usually, he’s at the bottom of my listen when we talk about the worst presidents of all time, he has some competition now, but, I digress. In 1865, he offered to pardon Confederate soldiers, offering them amnesty if they’d sign an oath of loyalty to the US. But there were fourteen exceptions to that offer, including Confederate office holders. Also, people with property worth over $20,000, which must mean, I’m not an economist but I imagine that’s a bajillion dollars right now, were not eligible, which is pretty interesting. Johnson was not okay with the big plantation owners getting pardoned. But by 1868, Johnson issued a full pardon to everyone who had been loyal to the confederacy, which was, of course, thousands and thousands of people and thousands and thousands of white supremacists, treasonists-

Josie: Yes. Correct.

Clint: Now US citizens who get to keep all their stuff.

Josie: Precisely. So, there are some other famous examples of clemency worth mentioning. In 1927, Calvin Coolidge commuted Marcus Garvey’s sentence, which I didn’t know, before recently. But then of course deported Garvey, so, not all good.

Clint: Gerald Ford, of course, pardoned Richard Nixon, which may have lost him re-election.

Josie: Gerald Ford also pardoned Robert E. Lee. Posthumously pardoned. Granted him his full citizenship rights, a full century later, which is weird.

Clint: And, also weird, Jimmy Carter, yes Jimmy-peanut-farmer-solar panel-on-the-White-House-Carter, liberal darling, posthumously pardoned Jefferson Davis. Yes, Jefferson Davis, who was the President of the Confederacy, and he had already basically ben pardoned by Andrew Johnson.

Josie: That’s true. Jimmy Carter also pardoned Patty Hearst, the kidnapping victim who was later convicted of bank robbery. Reagan pardoned George Steinbrenner, the former Yankees manager, for illegal contributions to Nixon.

Clint: Clinton pardoned his own brother, Roger Clinton, who had been convicted of a cocaine charge. George Bush commuted Scooter Libby’s sentence, who was the Chief of Staff to Dick Cheney and had been convicted of perjury because of that whole CIA leak scandal thing.  

Josie: And Obama, you may remember, commuted the sentence of Chelsea Manning. And our current president Trump, pardoned Dinesh D’Souza and Sheriff Joe Arpaio. True freedom fighters. He also pardoned Scooter Libby, who had already had his sentence commuted by George W. Bush. But he also commuted the sentence of Alice Marie Johnson, a first-time drug offender who was sentenced to life without parole in 1996. Now, in true Trump fashion, it was kind of a bizarre situation that included Kim Kardashian of all people, as we said earlier. Here she is talking about Ms. Johnson.

[Begin Clip]

Kim Kardashian: And you know I just really strongly believe that that she is someone that has completely rehabilitated herself and will continue to do so outside of prison. You know, she’s done her time. I mean she’s done almost twenty two years. You know, I think in life everyone makes mistakes and she really deserves a second chance.

[End Clip]

Josie: But despite the celebrity aspect, granting clemency to Alice Marie Johnson was really important and Johnson could have never seen the light of day again for a drug charge.

Clint: And the fact that no one had commuted her sentence before Trump highlights the kind of disturbing trend we see in clemency today. Basically, exercising executive clemency was fairly common until a few decades ago. Then, for reasons Professor Barkow will outline for us, it begins to become less and less common. Now, it is basically rarer than ever. And even presidents that have commuted or pardoned a lot of sentences compared to their predecessors, like Obama, for example, they are still exercising the power much less often relative to former presidents beyond a few decades ago.

Josie: Right. From Woodrow Wilson, who became president in 1913, all the way through Lyndon Johnson’s presidency, almost every president pardoned or commuted the sentence of over 1,000 people. There were only two exceptions, Warren Harding, who died 2 years and 4 months into his presidency and John F. Kennedy, who was assassinated 2 years and 10 months into his. Even Nixon, who also, you may remember, had his presidency cut short, granted clemency to over 900 people. But then, from Gerald Ford through now basically, the numbers were reduced significantly.

Clint: Now, Obama is the exception. He granted clemency to about 2000 people, many more than his recent predecessors. But there are a lot of complications with that record, as Professor Barkow will talk about. And he’s the exception in the past 40 years. Reagan granted only about 400 people clemency. George W. Bush only about 200. And George Bush Sr. granted just 77. So far, Trump has pardoned seven people and commuted just two sentences. One of the people he pardoned, boxer Jack Johnson, died in 1946.

Josie: That sharp downturn is even more pronounced when you remember the simultaneous increase in the prison population. So in 1915, when Woodrow Wilson was president, there were just about 4,000 people in federal prison total. And like we said he granted clemency to over 1,000. By 1940, there were about 24,000 people in federal prison. And then for decades, literally decades, that number stayed relatively steady. By 1980, the number of people in federal facilities was still about 24,000. To commute or pardon thousands of people made a much bigger impact back then.

Clint: By 1990 though, the prison population had more than doubled, to about 60,000 prisoners. By 2000, it had more than doubled again, to about 145,000. In 2007, the average daily population reached 200,000. And yet, the president at the time, George W., granted clemency to a measly 200 people over 8 years. And one of them was his vice president’s chief of staff.

Josie: Yea, it’s really wild. So,  A few things to note before we talk to Professor Barkow. First,  over the years we’ve seen incidents of prosecutors and law enforcement officials trying to limit the ability for sentences to be commuted. And this happens on the state level. In Oklahoma and Arkansas, for example, there is a board that advises the governor on who should be granted clemency. In the past, prosecutors have lobbied the state legislatures, trying to make it harder for the boards in those states to recommend people for clemency.

Clint:  It’s just another way that prosecutors wield their power, even in an area that is expressly out of their authority. They’re also a big impediment to clemency on a federal level, which Professor Barkow will discuss.  

Josie:  Another thing is that we mentioned George W. Bush’s decision to commute Scooter Libby’s sentence and we mentioned Trump’s decision to pardon Joe Arpaio, who was one of the country’s most brutal and racist sheriffs. These are two examples of how the clemency power can be used to really depraved ends. Presidents and most governors have the power to pardon their friends, their political allies, if you’re Clinton you can pardon your brother, even when these people have not been subject to injustice. So when we think about the potential power of clemency, it truly can be used as a mechanism for justice. But it can also, potentially, be used for the opposite. Of course, though, presidents and governors want to be re-elected and pardoning their buddies isn’t necessarily the way to do that. Just ask Gerald Ford.

Clint: Didn’t work out too well for him

Josie: Did not.  

Clint: So we haven’t talked a lot about state level clemency, since it’s kind of harder and more difficult to identify bigger clemency trends across all the states, of course, because there are many more moving parts. But here’s a story worth noting. In 2003, the governor of Illinois, Governor Homer Ryan, commuted the entirety of death row. All 167 people who were facing execution. Here he is talking about it.

[Begin Clip]

Homer Ryan: I stand before you to explain my frustrations and deep concerns about both the administration and the penalty of death. I’m commuting the sentence of all death row inmates. [Applause] …I realize that my decision will draw ridicule and scorn and anger from many who oppose this decision. And they’ll say that I’m usurping the decisions of judges and juries and state legislatures. But as I have said the people of our state have vested in me the power to act in the interest of justice. [Applause] It’s the only place in the Constitution done that way. And even if the exercise of my power becomes my burden  I’ll bear it… You know, Abraham Lincoln was a hell of a guy… and he said once, “I have always found that mercy bears richer fruits than strict justice.”

[End Clip]

Josie: This was an incredibly important moment and it’s really tragic that it hasn’t happened more often. This was a governor correcting what he saw as an extreme injustice using the power of clemency and the fact that he identified the importance of mercy is another really important part about it. The fact that our prison population has skyrocketed as executive clemency has gotten more and more rare is not a coincidence. Professor Barkow has actually written about this before and we’ll link to her article on this episode’s page on The Appeal. The point is that our criminal justice system values mercy less now than it ever has before. And this is a distressing theme we see across all issues, including clemency.

Clint: Joining us to talk about this is Rachel Barkow, a professor of Administrative, Constitutional, and of course, Criminal Law at New York University. Much of Professor Barkow’s scholarship has been on sentencing and clemency, and in 2013, the Senate appointed her to the United States Sentencing Commission, where she served until last January. Her new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, was just released in March.


Josie: Rachel thank you so much for joining us today. We’re really excited to talk to you.

Rachel Barkow: Thanks for having me.

Josie: So today we’re talking about clemency, about commutations and pardons and that’s been such a huge part of the work that you’ve done and I was hoping you could start by telling us a bit about why you’ve focused so heavily on the power of clemency in your work.

Rachel Barkow: Sure, you know, it’s really a natural outgrowth for working on sentencing so I’ve done a lot on criminal punishment and sentences. And when you do that, you pretty quickly run into really long sentences that people are given and no ability for those folks to get relief from them if you’re in a jurisdiction that doesn’t have parole or any other second look mechanism other than seeking some kind of commutation or clemency grant from either the governor, or if it’s a federal sentence, from the president. So my interest in this came really from working on federal sentencing and seeing so many of those long sentences without the ability of these people to get parole and wondering what kind of correction might be out there and thinking about using the presidential clemency power as one of the key correctives.

Clint: So presidents used to pardon and commute far more sentences than they have in recent years. Can you talk about the trends that have existed in clemency? Sort of what has clemency looked like on a federal level from Carter, Reagan, Clinton, Bush, Obama and sort of give us a sense of how different presidents have thought about the process of clemency. And if you have a sense what that has kind of looked like nationally and on a state by state level over the most sort of recent history.

Rachel Barkow: Absolutely. So just to give you some historical context, clemency grants were very common throughout most of the nation’s history, both by presidents and by governors. They would be a routine part of the criminal justice system’s operations. So the idea that people would ask for relief from sentences and get reductions or to get pardons and clear their record was something that was done pretty routinely. And really we don’t see a big drop off in that. There’s kind of two big things that happen. So one is when parole comes on the scene, it replaces clemency to some extent because there’s this other mechanism you could go to to get your sentence reduced.

Josie: About when was that?

Rachel Barkow: That would have been hundreds of years, you know, like about a hundred years ago, 1900 ish, thereabouts, at least at the federal level. So when we see parole come along, the idea that you could go seek relief from a parole board, takes some of the pressure off of governors, and you’ll still see in some states today they have a board that both does parole and clemency, which just shows you the unity between those two things. But when parole starts to fall out of favor, you know, in the 1970s and gets eliminated at the federal system in the mid 1980s what we don’t see is clemency come back. You know, at that point parole is off the table, but you don’t see a corresponding increase in clemency and it really corresponds with a drop off in clemency grants more broadly. I’d say that’s the kind of the second big movement in terms of seeing the decline in clemency. So the first one is this idea that there’s an alternative mechanism, so we’re still gonna recognize that you need to get relief over time from sentences but the second period I would say is really that rise in tough on crime politics that we see in the 1980s and that’s the next kind of big cliff in giving clemency grants. So you see that across states and at the federal level as well. Just a really big dip in the numbers of grants. And it’s the same political climate that causes politicians to worry about having a furlough program like the one that involved Willie Horton. It’s the same kind of dynamic where there’s a worry that if you were to give commutation, if you were to reduce somebody’s sentence and then they were to be released and commit some high profile crime, that blame would ultimately be cast upon the governor or the president that gave the grant. So there’s this political climate that makes it riskier or perceived to be riskier to give people clemency. And as a result of that, you see this decline nationwide because I think that political dynamic exists nationwide, but there is something specific to the federal system that also leads to a decline in the federal numbers that doesn’t necessarily apply, you know, in other states and that would be that around that same time, the authority for clemency had been in the Department of Justice, but it was the attorney general who was responsible for it. And what happens is that shifts to the deputy attorney general. And the reason that some people think that matters is because the deputy attorney general at the Department of Justice is the person who’s basically the head criminal prosecutor, supervises the criminal prosecutions around the country. And so putting clemency within the same portfolio as the person who’s in charge of all criminal prosecutions doesn’t create an ideal climate for having that person be very pro-clemency. You know, they would have effectively supervised all those prosecutions. So the idea that they’re in a good position to then say, actually that sentence is too long and it needs to be reduced, you know, that’s not a great institutional setup. So I think that institutional shift is another reason why some people have said the federal system numbers decline right around the presidency of Reagan and thereafter. But you know, it’s probably more a political dynamic. And I think that’s why we see it at the state level. But it’s worth mentioning that there was this institutional change at DoJ as well.

Josie: That’s so interesting.

Clint: You mentioned that parole was abandoned on the federal level. Can you talk a little bit about that and what the sort of catalyst to that decision was? Is that tied to the sort of larger political paradigm at that moment in which tough on crime and Willie Horton is at the forefront of the political discourse?

Rachel Barkow: Yeah, so we’re in the mid 1980s and there’s the tough on crime politics and this idea that we need sentencing reform and we need truth in sentencing. And the idea of truth in sentencing is that with parole you don’t really know what kind of sentence somebody is going to get. You might hear that someone, oh that person got, you know, three to five years. Well which is it? Is it three, is it five?

Josie: Right.

Rachel Barkow: And so there’s a push to get transparent, clear sentencing and the Sentencing Reform Act, which passes in 1984, has both the creation of a sentencing commission that’s ultimately going to produce sentencing guidelines that are going to be quite tough and it eliminates parole in the federal system. But the impetus for doing that would have been the same kinds of things that promoted tougher and longer sentences. So there’s a sense that people should serve real time, that we should know exactly what sentence they’re getting from the outset. And there was some concern on the left about discriminatory parole grants, just like we saw with the creation of the sentencing commission and the idea that guidelines might create more equitable sentences and we wouldn’t see as much disparity among judges, there was this sense that the parole board and parole grants also were discriminatory in application. So you had that same kind of combination of the left worried about the discrimination and application and the right concerned about sentences being too light coming together to create a bigger reform package. But that package would ultimately lead to more severe sentences for pretty much everybody.

Clint: It sounds like that’s the same, sort of similar interest convergence that happened around mandatory minimums.

Rachel Barkow: Yes. And that’s all happening in the 1980s as well. So at the same time that Congress is contemplating this big overhaul of federal criminal justice creating a sentencing commission, abolishing parole, and it’s supposed to be that the sentencing commission is going to be the expert body that’s going to set all the sentences. At the same time that that’s happening, before the commission even gets to pass their first set of guidelines, Congress goes ahead and passes mandatory minimums on its own. So without even waiting to see what would be the right sentence for certain things, they just decide to usurp that authority right off the bat and set mandatory minimums and then that in turn affects what the Sentencing Commission will do later. So it’s, it’s all part of that same political climate that is very much seeking to respond to public concerns with crime or perceived concerns with crime, media attention to high profile crime, the war on drugs, you know, it’s all part of that same kind of cauldron in the 1980s. President Reagan’s commitment to being tough. We see all that happening at one point in time.

Josie: Wow, that’s such great context. I didn’t realize that about them passing the mandatory minimums before Sentencing Commission could even make a recommendation. So I wanted to talk about, because I’ve heard you talk about this before, just about how difficult it is to get pardoned, to get your sentence commuted and what kind of a process looks like. If I’m a defendant in federal, so, you know, serving time in the federal system, what typically happens between the point of me being sentenced and the president actually commuting my sentence or pardoning me?

Rachel Barkow: Yeah, it’s a doozy. So you’re going to go through seven layers of review. So the first thing you’re going to do is you’re going to file your petition with the Office of the Pardon Attorney and your petition will go to a line assistant in that office to review it. And if they aren’t favorable toward a grant, you know, it will probably die at that stage of the review. But, you know, if they see something there that makes them think it should go forward, it would then go to the pardon attorney. And then if the pardon attorney thinks there’s something to it and again could decide, ‘yeah, no, not really, this is a no,’ and again, at each stage of the process, if the person who’s reviewing it says no, that probably means the end of your chances. So you’re going to have to run the gauntlet seven times to get all the way through to the president.

Josie: And all of these people are within the Department of Justice?

Rachel Barkow: Yes. So the Office of the Pardon Attorney is within the Department of Justice. Oftentimes they are people who may have prosecution experience themselves, but they are certainly within the rubric of the Department of Justice. So the nations office of prosecutors. So you will seek your petition from them and then you’d have to get through that first level line attorney and then the pardon attorney and assuming you make it through that process and in the course of doing that, by the way, if they were inclined to be favorable to you and think about a grant, before they did that, they would go and request the views of the prosecutor who brought your case. So they would go to the US Attorney’s Office where your case had been brought and say, ‘hey, what do you think?’ And now remember that’s the prosecutor who thought it was a good idea to prosecute and seek whatever sentence it was. So, you know, built into this process from the get go is a request for information from the very person who brought the case and you know, it would really take a kind of Herculean ability to disassociate yourself from having brought the case to then reflect on it later objectively. But that’s what they do. They ask this prosecutor and then they, if for some reason, and it’s rare, it is really rare for a prosecutor to say ‘yes, I think this person should get a reduced sentence,’ you know, it’s usually they say ‘absolutely not.’ You know, ‘that’s why we sought the sentence we did is because this person is involved in you know, serious drug trafficking or they had a serious arrest record’ or whatever it is they say. They often just say no, but if you somehow make it through that stage, the next place you would go would be to a lawyer in the Deputy Attorney General’s Office. So you’re still within the Department of Justice but you’re moving around the building now, your papers are, and it was a paper system by the way. There’s like a actual folder that makes its way around as opposed to electronic.

Clint: And just to clarify, so you don’t even move to this part of the process unless the prosecutor who brought your case in the first place has had a 180 degree ostensibly change of heart to decide that the charges that they at first brought against you are no longer applicable in the same way. Still to even begin the process, you have to move past that phenomenon.

Rachel Barkow: That’s correct. Or if the pardon attorney, in spite of what the prosecution says, believes there’s a strong enough case to go forward. But that’s pretty rare. They’re pretty deferential to the prosecutor who brought the case. So, you know, effectively it’s a pretty powerful veto but it doesn’t absolutely amount to that. There are some instances where the prosecutor may say no but the case will go forward. But it takes a lot to overcome that. And I can give you some examples of that from the Obama Clemency Initiative, but it’s something like that where the president has indicated that he is really interested in clemency grants. But in your kind of day to day operation of the pardon attorney’s office, that prosecutors view is going to be given great deference. So you can see why there are going to be so few grants. But if you do make it through that first stage, the next place you go after going through the pardon attorney’s office would be to the Deputy Attorney General’s Office, to a lawyer there. And if the lawyer there thinks that the petition has merit, it would then go to the deputy attorney general. So here you also have to keep in mind the deputy attorney general is a very busy person and it’s not as if clemency is necessarily top on the list of priorities. So there is often a backlog there to get the deputy attorney general tell, you know, focus and review all these things. And we definitely know that there have been instances where even when the pardon attorney says ‘yes, we think this is a good case for a grant,’ if the deputy attorney general says no, that too is another place where petitions have gone to die. That happened a lot during the Obama administration before it came to light that that was happening. At which point they changed their practice and previously what they had done is if the deputy attorney general said no, they just weren’t letting the White House know that the pardon attorney had recommended a positive grant. They were just hearing the, the deputy attorney general said no. That came to light so there was a little bit of press attention to it and they shifted their practice and sent the applications over to the White House with an indication that the pardon attorney had recommended a grant but the deputy attorney general had said no. So you go through those four layers of review in the Department of Justice. If you make it out from there, the next place you go is to the White House Counsel’s Office within the Executive Office of the President and one of the, you know, deputy White House counsel, one of the lawyers there, would take a look at the petition and then if they thought there was something to it, it goes to the White House counsel. Again, another really busy person with a huge portfolio of which clemency is going to be really low down the list of things that they’re going to prioritize.

Josie: Right.

Rachel Barkow: And then if the White House counsel thinks it’s a good idea, then it gets on the desk of the president and then the president would still have to decide to grant. So you can see this is a huge bureaucratic maze of, you know, seven different people evaluating this and really just lots of points at which someone could say no and it probably dies at that point.

Clint: I’m just curious, how likely is it that a commutation request would end up on the president’s desk without people already having a sense of whether that president will sign it or not? Like is it possible that something would ever end up on Obama’s desk and have made it through all of those various obstacles that you’ve outlined and that he would say, ‘actually, no, I don’t think this person should be let out.’ Because intuitively I would think that people have a sense of whether or not he would sign it in the first place. And I guess I’m curious, have there been examples of the case where a clemency request has made it all the way through the bureaucratic process and ended up on the president’s desk and the president said, ‘no, actually I’m not going to do this?’

Rachel Barkow: Yeah, I’m not sure cause I don’t know, we don’t have access to those internal deliberations. None of this is transparent. So there would be no way to know unless somebody told that story and I’m just not aware. But I can tell you that what presidents typically do is let it be known what their priorities are. So it was certainly the case that President Obama made clear the kind of cases he was interested in. He ultimately made that quite formal with an announcement by the deputy attorney general of six specific criteria of cases that he was interested in looking at. So those kind of instructions would be very specific, but you don’t necessarily have to have that kind of formality for a president to indicate, you know, in general these are the kinds of cases I’m interested in. You know, it would be really hard to figure out what that is in the current administration, you know, it’s hard to draw any kind of pattern from the grants that we’ve seen so far. So I would bet it’s more difficult for the current pardon attorney folks to figure out what they should be looking for unless they’ve been given instructions that we just don’t know about.

Clint: Or unless Kim Kardashian gives them a call.

Rachel Barkow: That is another way that you can get clemency currently.

Josie: (Laughs.)

Clint: So for my work, I spent a lot of time in prisons and jails and, and spent a lot of time with folks who were sentenced to juvenile life without parole and life without parole. And it’s been interesting over the past year of my sort of research for my dissertation and part of what I’ve found is that even for folks who are sentenced to life without parole, there is still something that allows them to maintain even the slightest semblance of hope, is this idea that if they behave well enough, if they get enough education, if they’re participating in enough programs, if they can demonstrate enough good behavior and good time and sort of exemplary behavior while incarcerated, that maybe the governor or maybe the president will commute their sentence. And it’s interesting because I never thought about the existence of commutation as a source of hope and as a sort of final thing that even when everything else is gone, even when it feels like you can’t appeal your case anymore, even when you’ve been sentenced to life without parole, that there was this one thing that might provide someone who is incarcerated with the hope and the slightest sense of optimism to keep going. I’m, I’m curious, do you think that commutation as it exists has a role beyond the commutation itself? If that makes sense. It’s sort of the idea of what commutation as a policy represents regardless of if someone is going to materially be released from prison or not.

Rachel Barkow: I mean, I think it can serve that motivating function for people so they don’t lose all hope. Although I have to say, one of the things that I’ve found so discouraging in my work in this area is when I think that there’s been someone like President Obama for example, who makes it quite specific, the kinds of people that he wants to give grants to and that does create hope in those people because they can say, ‘oh, these are six criteria and I can self evaluate and I know that I meet them’ and then to have those folks get denied after that to me was one of the biggest tragedies that had happened. I just felt like that was another great injustice to those people because they legitimately got their hopes up and really frankly should have and then only had them dashed afterward. So it could serve that function and I guess it’s a question of whether it’s good or bad, may depend upon what those expectations that they have are. I think in some places where governors don’t say anything and it’s really just this kind of very faint notion of at least the possibility and they haven’t made kind of any more specific statement than that. If it helps people to kind of get through the day and to motivate and still see a purpose, I think that’s all to the good. But I think it should be more than that. I do think it should be more than just this kind of potential thing that’s out there. I think it should be an actual thing that people get because we give really long sentences in the United States to people. And as you pointed out the group that you work with to very young people and the idea that you could sentence somebody who is, you know, 21, 22 years old for 50 years and never look again to see whether that makes sense either because that person has changed dramatically or because we as a society have changed. You know, we’ve changed our views on whatever the underlying criminal conduct was or we’ve just changed our views on the social circumstances surrounding that person’s commission of the crime. You know, to me that’s just messed up. So we should reevaluate things. We certainly do that in our own personal lives. You know, I don’t think we would pass a judgment on a human being in our life and kind of never revisit it no matter how much they had changed. So the idea that our penal system wouldn’t do that to me is crazy. So I like the idea of clemency as a potential source of hope, but I think it should be way more than that. I think it should be fully functioning as a second look mechanism to recognize when people and circumstances change.

Josie: You know what you just said about Obama and how heartbreaking it was to watch people who did fit these qualifications not actually get their sentences commuted or get a pardon, I think Obama is perceived by so many as having been really generous in this field of having commuted a lot of sentences, pardoned a lot of people and I recognize that among a lot of people who work in criminal justice reform, the perception is quite different. How do you see what he did? Do you feel like he actually was as generous as he is perceived to have been? Or what is kind of your hindsight look at the Obama commutation process?

Rachel Barkow: I mean, I have mixed views honestly. I’m grateful that he made it a priority to think about people’s sentences and that he granted commutations to, you know, roughly 1,700 people. I think that should be applauded and I’m glad that he did it, but, and it’s a pretty big but, you know, the way that he set this up, as he said, he wanted to grant clemency to people who met these criteria, which were basically, they wouldn’t get the same sentence today, they didn’t have violence in their background, they didn’t have problems with their prison record and no significant criminal history. You know, basically the criteria were about that. And if you were to really conservatively look at how many people met the stated criteria, there would have been about, according to a Sentencing Commission report, about 2,700 people who fit that bill really conservatively defined mind you, it’s thousands more if you are more expansive in how you define those things. But taking the narrowest definition, it’s about 2,700 people. And of those people, 3 percent got it. So I view that as an epic failure because again, I think those people legitimately had expectations they’d get the grant once this was announced and then they didn’t. And then they saw other people getting grants because, you do your math quickly, he gave about 92 people of the people who received clemency, met the criteria, which means, you know, there were about 1,600 people who really didn’t fall squarely within the criteria. Now I still think they deserved it. So I’m not criticizing those grants. I’m more concerned with the people left behind. But I also think looking at the people who did get it also show us another deficiency with the way this was all set up, which was the way the criteria were defined at the outset, you know? So, first of all, it was this idea you’d have to be sentenced differently today, which suggests that none of our existing sentencing laws that haven’t been changed could yield unjust sentences, which, you know, anyone who works in the system knows that’s not true. There’s all kinds of people serving excessive sentences and still getting them today because we have a lot of laws on the books that are just frankly too harsh and too harsh in application. So that was overly limiting. And then this notion that they couldn’t have any significant criminal history or any kind of violence, you know, I think that too was just overly restrictive of the kinds of people that you’d want to give commutations too. You know, again, even if you had some of those things in your past that doesn’t tell us what kind of person somebody is today. And I think once they started reviewing the applications, they realized that. And I think that’s how you get 1,600 people who frankly don’t squarely meet the criteria because I think it’s more a reflection of how narrow and artificial those criteria were. But at the same time, you know, this process should have been able to capture those people plus all the people who squarely met the criteria, you know, plus tons more. So I hate to be this kind of glass is half empty kind of person and I know it sounds that way, but I really do think this was in that sense of very big failure and I, it really was very painful to hear about the people who thought they were going to get this and then find that the end of the Obama administration came and they got either denials or their petition was just never acted on. And you know, that’s thousands of people who to my mind now suffer their second great injustice at the hands of criminal justice administration. The first they had to deal with the sentence in the first place, but now this idea that their hopes had gotten up and then they didn’t get it. So I think it’s appropriate to criticize that. And one of the reasons I think it is is because I think, you know, we’ll have future presidents who may look at that and wonder is that a model or not? And I would want them to not look at that as the model of what to do going forward because I do think it failed in what it set out to do.

Clint: Is there any transparency around why someone, under the Obama administration specifically, why someone who would’ve met all six of those criteria was denied the commutation or, or didn’t even have their commutation reviewed?

Rachel Barkow: Yeah, it’s just radio silence or you get the denial. So we had a little clemency pop up that operated here out of NYU with, you know, about 94 of the people that we worked with did get grants. But then we had just as many clients who did not. And you couldn’t make any sense out of who did versus who didn’t. There was no rhyme or reason to the people who got grants versus the people who were denied versus the people who never heard back. And we couldn’t make any sense of it from our client pool. We could not distinguish the 94 people who got yeses from the many more who were waiting to hear answers or who got a no. And, you know, I think a good example of that, just to give you a high profile example would be Alice Marie Johnson. She was denied under the Obama Clemency Initiative. And I think when people hear about her case now and follow her, that’s a good example to say really, how did you deny that? You know, why, why would that not be an example of somebody who merited a clemency grant? But you know, she was a deny and there were many other cases like hers, you know, cases as sympathetic, more sympathetic, where there was just no explanation and you couldn’t figure it out. Like I said, there were some rumors around some of these things. And, uh, one of the factors we would hear a lot would be the prosecutor in the case said no. And they were really adamant about it. And sometimes when they said no, they would say things like, ‘oh, this person has done a lot worse than what you’re seeing in front of you,’ you know, ‘we had heard this person had a prior arrest for domestic violence’ or ‘we heard that the person had X.’ So there was also this idea of some of the denials maybe, uh, were about reputational claims that prosecutors were making maybe outside the record of what was actually before the decision makers. You know, it’s hard to know cause these really were just the kinds of things we were hearing casually, but you wouldn’t be able to figure it out just by looking at the files. Certainly not the files of our clients. It was mystifying.

Josie: The point about Alice Marie Johnson, because I felt like that was, when Trump pardoned her, my first kind of thought was like, how could she have possibly not been pardoned under Obama? Which I think you’ve laid out how difficult this process is. There’s also this other side of it, right? Which are these like famous, questionable pardons like Dinesh D’Souza or Joe Arpaio or Scooter Libby and this idea that you’re pardoning your friends or your commuting your friends’ sentences or you’re making it clear that people can get away with a different sort of crime, a different sort of wrongdoing as long as you’re in the White House. Do you think that these have had an impact on the way people view this power and the importance of it?

Rachel Barkow: Yeah, I think it’s terrible when we have just the kind of high profile and connected are the people who get clemency grants and, and, you know, to President Obama’s credit, you know, to make sure that he gets credit in the areas where I think he did an exceptionally good job is his process was not like that at all. There was absolutely no indication of preferential treatment for anyone with any kind of connection. That process was truly, you know, kind of a Rawlsian veil of just looking at the applications and not who those people happen to know. And that was a big departure from what we had seen previously. And what we’ve seen since. And you know, there was a really good ProPublica study of clemency that Dafna Linzer did where she, this was before the Obama administration had looked at clemency grants, and had shown that the kind of key variable in whether or not you were going to get a grant was whether you had somebody in Congress who was pulling for your application to get a grant. And of course when it’s based on those kinds of connections, it’s not going to be surprising that we’re also going to see enormous racial bias in terms of what the grants look like. So she found you were four times as likely to get a pardon if you were white. So that kind of who you know process is going to have all kinds of implications for racial discrimination, probably social class as well. And so I do think that really calls people to question, you know, what kind of a process is this as opposed to it being something that should be available for everyone that shows people change over time, what we think about sentencing changes over time and it should be made available to all. Then it starts to look like this kind of corrupt backroom process that casts a shadow on its use really in any circumstance. So I think it’s terrible when it’s used that way.

Clint: Pivoting just a little bit, you have a remarkable bio and it’s clear, you know, you graduated from Harvard at the top of your class, you were on the Law Review, you were the, I think had one of the top two GPAs at Harvard Law School, which sounds amazing and exhausting to me.

Josie: I can tell you that I was not, I did not have one of the top GPAs in my Harvard Law School class. (Laughs.)

Clint: And something that’s also super fascinating is that you were a clerk for Justice Scalia and I read that you were a quote “counter clerk” among his clerks who was meant to sort of ensure that there was not at a sort of political bias that was injecting itself into the way that he and the sort of ecosystem around him wasn’t overly partisan in the way they thought about cases. And, and so I’m just kind of curious personally what it was like to work for Justice Scalia and how you navigated your own political commitments and your own orientations around justice in that sort of space?

Rachel Barkow: Sure.

Josie: Yeah. And can I just add it also be great to hear about how that influenced the way that you think about the criminal justice system. I personally don’t think Scalia gets enough credit on some of the good criminal justice stuff he did and I’d be interested to hear what your experience was like.

Rachel Barkow: So I should say at the outset that I don’t know that I was hired as the quote unquote “counter clerk.” I mean it’s true, I am a Democrat and I was hired by him, but it’s not like, you know, on the interview there’s a special box that says, ‘could I be the counter clerk?’ I was just hired and it was a really great experience. I think one of the things that I like most about having done that was to see how many areas he and I saw eye to eye, particularly when it comes to criminal justice. I’ve always been interested in that. So when I was a law clerk, those were the cases I wanted, I wanted all the criminal and administrative law cases. So particularly the administrative law cases were really easy to get from my co clerks. But, but I got a good share of the criminal ones too. And what was so interesting to me is really the way in which we saw them quite similarly. And I think it reflects this broader sense that I see really right now in society where there’s a lot of folks on the right who see the operation of the administration of criminal justice right now in America for what it is, which is a big, bloated, ineffective government program that doesn’t work, that’s not accountable, that costs a fortune, that ruins people’s lives, that gets all in people’s business and really has nothing to say for it. So if you kind of have those instincts about government writ large, absolutely you’re going to have it about criminal justice. And I think if you have those kind of libertarian sensibilities where you’re not trusting of government in all ways, then you’re going to be really suspicious when it’s using its powers to put people in cages. So that was something that kind of, I think he came there from his constitutional commitments to originalism and interpreting statutes according to their text. But when you do that, you find, you know, the framers were quite concerned about the government’s power in criminal cases. If you look at the Bill of Rights, all over it is concerns with the operation of power in criminal matters. You know, that’s like a big chunk of those amendments. And if you are a textualist and you insist that statutes be read according to their text and not broadly, that means that you’re not going to give the government so many breaks in criminal cases, which he didn’t. You know, he was kind of the biggest rule of lenity guy on the court. And so it’s heartening actually to think about things that way. And even now I work in the reform space and I talk to people on the left and the right and I think there’s a lot of common ground there that, that people have come together to recognize that for a variety of different reasons, the way we pursue criminal justice in America today is just really messed up. And so, you know, you could get there by looking at racial inequality and class inequality and the way we kind of shuttle lots of social problems into criminal justice, but you can also get there because you recognize that this is the government and the government often doesn’t do things well. And, you know, this is an area where you can see that all over the place.

Josie: So your new book just came out on March 4th, it’s called Prisoners of Politics: Breaking the Cycle of Mass Incarceration and it deals with the criminal justice system still, but a much bigger look at it and not just from the perspective of clemency. So can you talk to us about your book? Tell us about it and how it relates to your past work on clemency?

Rachel Barkow: Sure. Thank you for the opportunity to do that. I would say that, you know, clemency is a microcosm of some of the themes in the book that I explore, which is, you know, this idea that we set our policies in criminal justice based on cases and the fear of cases going wrong and it’s really story driven. You know, when you go to law school and you have your professors say that bad facts make bad law, that is pretty much the way we make criminal law. Just a lot of bad facts making a lot of bad law and it’s because we have a political process that is just generated by concerns with what’s on the media and what gets the focus in the press. And there’s really no accountability for any of those decisions. And it’s, you know, you can look at it across a range of areas, which I do in the book, starting from how we define crimes in the first place. One of the things you guys do that I think is great is take those terms that exist that really need to be unpacked and if only our legislators would do that, but you know they don’t. So we have these really overbroad criminal laws. We set sentencing policy in ways that are irrational. We fail to take second looks at sentencing so I do have a chapter on clemency. We don’t offer programming in prisons or do the kinds of things we would want to do to set people up to succeed when they come out. We impose all these collateral consequences that similarly make it hard for people to reintegrate. So all these policies that end up undermining the goal of trying to promote public safety because we’re setting people up to fail and we’re not making the most of our limited resources. So what I try to do in the book after describing those is explain the political dynamics that produce them and then offer some institutional solutions that would hopefully get us on a path to making better decisions. Because I really do think this is one of those spaces where we are getting the worst of all worlds, and if people could just step back and assess this more rationally, we would see that we could actually get both better public safety outcomes and we could treat people more equally and more decently, and we would get both of those things. But what it’s going to take is to overcome this political irrationality that we see everywhere.

Josie: Wow, that’s, that was awesome.

Clint: Yeah, and I think that that’s a fantastic place to end. I hope that everyone will be going to buy your book. I know that I will, and we just want to thank you so much for coming on the show and sharing so much context with us, so much of your knowledge and expertise with us and I’m sure that this is not the last we’ll see of you.

Rachel Barkow: Well thank you so much. I’m a devote listener so it won’t be the last that I hear from you guys. So thank you.

Clint: Much appreciated.

Josie: Thank you so much Rachel.


Josie: That was NYU Law Professor Rachel Barkow, thank you so much for joining us.

Clint: Thanks for listening to Justice in America. I’m Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: As always you can find us on Twitter at @justice_podcast, like us on Facebook page at Justice in America and subscribe and rate us on iTunes or wherever you listen.

Josie: Justice in America is produced by Florence Barrau-Adams. The production Assistant is Trendel Lightburn. Thank you so much and join us next week.


As States Look To Cut Jail Populations, Electronic ‘Miniature Prisons’ Are On the Rise

There are more than 2,700 people on electronic monitoring in Cook County, Illinois, alone.

Mario Tama/Getty Images

As States Look To Cut Jail Populations, Electronic ‘Miniature Prisons’ Are On the Rise

There are more than 2,700 people on electronic monitoring in Cook County, Illinois, alone.

After spending 14 months incarcerated because she couldn’t afford $250,000 bail, Lavette Mayes was relieved when the Chicago Community Bond Fund posted her bond and she was allowed to leave the Cook County Jail.

But when she returned home, life wasn’t as she expected. She had lost her home and transportation business and was forced to stay with a friend. Even worse, she had to wear an ankle monitor and was prohibited from leaving her home—first at all and then for large chunks of the day.

“The restrictions that came with being on electronic monitoring were extremely hard,” Mayes said.

In total, Mayes spent 121 days on electronic monitoring until her charges stemming from a physical altercation with her mother-in-law were resolved. She struggled to care for her two children, including an autistic son. She couldn’t take out the garbage and she said she could not seek medical care for a complication from a recent surgery. She had to cook and clean and continue to mother her children, all while confined to her house.

“My whole family was incarcerated because of being on this,” she said.

Because of the trauma of electronic monitoring, she decided to plead guilty rather than fight her case in court. Accepting the plea deal, she said, meant she would no longer have to subject herself to GPS tracking and surveillance around the clock.

There are more than 2,700 people on electronic monitoring in Cook County, Illinois, alone, according to a local news report. Across the country, the rate of electronic monitoring has increased significantly. According to a Pew study, the number of active offender-monitoring devices increased nearly 140 percent from 2005 to 2015, when more than 125,000 people were supervised with the devices.

Electronic monitoring programs are increasingly used as a way to reduce jail and prison populations while still ensuring that people return to court.

“It’s like putting little miniature prisons and jails in the community,” Mayes said. “And you’re not even able to provide or do anything in your community or let alone help your family. It’s not an answer. It’s not a solution for incarceration.”

While at first glance electronic monitoring may seem better than being in jail, criminal justice advocates say those are not the only two options. People awaiting trial can be released on their own recognizance or without posting bail, they say, instead of subjecting them to the privacy and individual liberty violations that come with releasing a person with an ankle bracelet.

It’s like putting little miniature prisons and jails in the community.Lavette Mayes, Chicago resident

In a vast majority of instances, individuals will show up to court with little more than a reminder, Sharlyn Grace, co-executive director of the Chicago Community Bail Fund, told The Appeal.

“Our position on this is to always be pushing for the most freedom possible,” she said. “For the vast majority of people, that’s going to be release without these conditions.”

Grace explained that many judges, especially in Cook County, are using electronic monitoring as a “risk mitigation tool.” As an understanding emerges across the country that excessive bail is keeping too many people in jail because they can’t afford to pay, some judges remain hesitant to release individuals without restrictions. Meanwhile, the understanding of the risks of electronic monitoring is low, Grace said, as there have been few studies or reports.  

“These are tremendous restrictions on liberty that we’re placing on people who haven’t been convicted,” she said.

Cook County Sheriff Thomas Dart oversees the department’s electronic monitoring program, one of two pretrial monitoring programs in the county. Though he has said he supports efforts to reduce his jail population, Dart has also said he believes that bond reform has gone too far and that too many people with “serious” crimes are being released. In 2018, he refused to release dozens of people from his jail who had been ordered onto electronic monitoring.

In February 2018, the Chicago Community Bond Fund paid bond for a woman ordered onto electronic monitoring, but Dart refused to release her for three days. The woman sued, and the case is ongoing.

That same month, Dart wrote a letter announcing that his office would review all orders to release people on electronic monitoring.

“Moving forward, my office will closely scrutinize all individuals who are assigned to E.M. by carefully reviewing their charges and criminal histories, a process that may take up to 48 hours,” Dart wrote. “Those who are deemed to be too high a security risk to be in the community will be referred back to the court for further evaluation.”

Cara Smith, chief policy officer for Dart’s office, told The Appeal that people are commonly held for multiple days after they are ordered onto electronic monitoring.

“Sometimes it takes a couple of days for someone to be placed if they don’t have a place to live,” she said. “It’s not like they just walk out the door. We have to make sure they have a place that they can be monitored from.”

Still, local news reports are sounding the alarm about the perceived laxness of electronic monitoring. On Feb. 11, Chicago’s ABC affiliate ran a story that said more than 300 people were missing from Cook County’s electronic monitoring program. In the report, Smith said the challenge of locating missing individuals has worsened since bond reform. But in an interview with The Appeal, she said the report was misleading.

The data the report used showing 300 missing individuals was spread across decades since the beginning of the sheriff’s office’s electronic monitoring program in 1989. A large number of the missing have since been apprehended or located in other states or countries.

Mayes, who knows what it’s like to be monitored, said she also found the report misleading.

These are tremendous restrictions on liberty that we’re placing on people who haven’t been convicted.Sharlyn Grace, co-executive director of the Chicago Community Bail Fund

“When you look at the risks that it would take if you leave electronic monitoring, it would have to be something serious for that person to go AWOL,” she said.

Despite the report’s flaws, Smith said it was accurate in its characterization of how more individuals accused of “violent” crimes—mostly gun crimes—are being released on electronic monitoring since bond reform. “That presents us with bigger challenges,” she said.

“The stakes are much higher in terms of running the program in a way that protects public safety,” she added. “We need to make sure that when people run, we’re getting warrants right away, that we’re doing our best to try to apprehend them.”

In the last 18 months, Cook County has released more than 24,000 people pretrial. The vast majority have had less restrictive conditions than electronic monitoring, according to Grace. In total, just .6 percent of the felony defendants who were released between Oct. 1, 2017, and Dec. 31, 2018, were charged with committing a new violent offense while in the community, according to data from Cook County.

Grace said she disagrees with the idea that policy should be designed based on such a small percentage of people affected.

“It’s not responsible to highlight those exceptions,” she said.  

Mayes warned that by highlighting the issues with electronic monitoring, the sheriff is pushing for more incarceration.

“It works out in their favor to scare people into not wanting electronic monitoring and wanting harder stipulations,” she said. “They’re trying to scare the community into saying, ‘No please, don’t give them electronic monitoring. Keep them incarcerated.’”

But some in the state are starting to push back on the increase in electronic monitoring. Representative Carol Ammons, a Democrat, plans to introduce a bill that will target post-conviction electronic monitoring, which is run by the Illinois Department of Corrections. Last Friday, the Illinois legislature held a hearing on the issue and a potential effort to eliminate or significantly reduce the use of electronic monitoring for people who have been released from Illinois state prisons. James Kilgore, who spent time on electronic monitoring after a prison sentence and who now leads the Center for Media Justice’s Challenging E-carceration project, said the hearing broke new ground.

To our knowledge this is the first legislative hearing anywhere in the U.S. investigating the use and abuse of EM for people who have completed their prison sentences,” Kilgore said in an email.

According to Kilgore, the Illinois Department of Corrections has several thousand people on electronic monitoring at any given time, but has not conducted any studies into its impact.

Mayes, who knows what the program feels like pretrial, said she hopes lawmakers reconsider using it.

“This has to stop,” Mayes said. “It’s designed for people to fail.”

If Cook County wants to work toward reducing its incarceration rates, “electronic monitoring is not the way,” she added. “It’s not the way to make someone feel successful coming out of jail.”

After Uprising, Delaware Prison Sends Hundreds Of Prisoners Away

Family members are frantic after 330 prisoners are transferred to Pennsylvania.

Photo illustration by Anagraph. Photo by Thinkstock Images/Getty Images

After Uprising, Delaware Prison Sends Hundreds Of Prisoners Away

Family members are frantic after 330 prisoners are transferred to Pennsylvania.

“I lost my mom in September. I lost my sister in October. My son is under y’all’s care. He has not had the chance to grieve with his family,” Sharon told Delaware prison officials during an ACLU town hall in November. Her chronic illness and a surgery meant that she hadn’t been able to visit her son in months. Now, her son is one of 330 Delaware prisoners who has been transferred to a prison in Pennsylvania, hours away from their loved ones.

“I want my son back home. This is putting more strain on me,” she continued. “Since he’s been there I haven’t heard from him but just one letter. I’m used to talking to him every day. … I’m begging you, bring my child back!”

Until November, her son was incarcerated at James T. Vaughn Correctional Center in Smyrna, Delaware. One day in February 2017, prisoners took over a section of the prison and held hostages; one hostage, a corrections officer, was killed. A state report blamed the uprising on staffing shortages, long work hours for corrections officers, and a lack of trust between guards and prisoners. Prisoners have said they protested because of the abysmal medical care, abuse at the hands of guards, and poor conditions. Sixteen people were later charged with the corrections officer’s murder.

In the weeks and months following the riot, prisoners have said they were abused and tortured. Now, citing the shortage of corrections officers, the Delaware Department of Correction has signed an agreement to transfer hundreds of its prisoners to Pennsylvania state prisons over the next two years. The $30 million contract gives the Pennsylvania Department of Corrections authority over at least 330 prisoners, who were first moved in November to SCI Camp Hill for processing. They were subsequently sent to other prisons throughout Pennsylvania (spokespeople for the Pennsylvania DOC and Delaware DOC declined to say which prisons in particular).

Family members of people who were transferred have expressed that the move has put significant stress on them and has isolated their loved ones behind bars. Many said they can’t make long trips to Pennsylvania. But the challenges of the transfer aren’t limited to the distance.

“It’s not just transportation, it’s hurdles and getting back on the visitation list. It’s hurdles on even getting phone calls for these guys at this point, for some reason,” Erica Marshall, manager of the Campaign for Smart Justice for the ACLU of Delaware, told The Appeal by phone.

“It’s almost like a partial blackout that they’re in, in a place where they don’t even know any of the other inmates that they’re with. So it’s extremely isolating.”

It's almost like a partial blackout that they’re in, in a place where they don’t even know any of the other inmates that they're with.Erica Marshall, manager of the Campaign for Smart Justice for the ACLU of Delaware

At the ACLU hearing in November, family members were infuriated by the lack of notice and transparency around the transfer agreement.

“It was, right from the outset, rolled out with zero transparency, zero involvement from the community, [and] zero involvement from any of the inmates who would actually be transferred,” Marshall said. “DOC transfers individual inmates out for various reasons, safety reasons but for them to do this large scale, mass transfer basically under the cover of the night immediately triggered people in the community.”

The ACLU of Delaware has received complaints from transferred prisoners and their families about inadequate medical care—like prisoners not receiving medications they were prescribed in Delaware—as well as issues with mail delivery and lack of phone access.

The situation is exacerbated by Pennsylvania’s recently changed mail policy. Starting about six months ago, letters, cards, and photographs sent to people incarcerated in the state are first sent to a company in Florida that scans them and delivers the scanned documents to the recipient. Prisoners have complained that the policy causes significant delays in mail.

A spokesperson for the Pennsylvania Department of Corrections responded, “Inmates transferred from Delaware will be provided with high-quality medical services. As with Vermont, Delaware DOC will be provided with access to all information regarding the care and housing of its inmates.”

In 2017, Vermont made a similar agreement with the Pennsylvania DOC and transferred over 200 Vermont prisoners to SCI Camp Hill. Three Vermont prisoners housed at SCI Camp Hill died—two while in Pennsylvania and one person within weeks of being transferred back to Vermont. A year later, the Vermont DOC moved all of its prisoners from SCI Camp Hill to a private prison in Mississippi.

When asked for comment, the Delaware DOC referred to its list of frequently asked questions, which states: “Delaware DOC is temporarily reducing the prison population in order to relieve stress placed on officers and inmates caused by understaffing. The transfers improve work life balance for staff, increase opportunities for education, programming and treatment for inmates, and provide a more secure correctional environment.”

Marshall stresses that there are other options. In Delaware, pretrial detainees and people convicted of crimes are housed in the same prison; advocates have pointed out that reforming bail or releasing a few hundred detainees facing trial could ease overcrowding. Marshall also pointed out that a Delaware statute allows the state to conduct sentence modifications if there’s a prison overcrowding issue. The state has about 300 people over the age of 61 who can be considered for sentence modification, Marshall told The Appeal. (Research shows that most people eventually age out of crime.)

The farther that you are from your family, the less they visit you.Wanda Bertram, Prison Policy Initiative

“There really was so much potential here to reduce our prison population in a smart and safe manner rather than just pumping the problem down the road, to the tune of, a very expensive Band-Aid essentially,” Marshall said.

Visiting loved ones in jail or prison is already difficult. A 2015 study by the Prison Policy Initiative found that the majority of people incarcerated in state prisons are locked up over 100 miles from family and friends.

“You look at how far people are locked up from home and how many visits that they get, and the farther that you are from your family, the less they visit you,” Wanda Bertram of the Prison Policy Initiative told The Appeal. “It’s not surprising why that would be. Visiting is expensive. The farther away you have to go, it takes a lot of time.”

Maintaining these connections while incarcerated are important for the same reasons people outside prison need to maintain those connections.

“Inmates should be able to see their children, parents, family, and friends because they are humans, just like all of us, and should be treated humanely,” Marshall explained.

“It’s a basic human need to see your loved ones, for the people in prison and for the family members at home who have not committed any crime,” she said, “and this transfer just further separates these families unnecessarily.”

Studies have shown that people behind bars who receive visits are more likely to re-enter society successfully when they are released and less likely to land back in prison. An Ohio Department of Rehabilitation and Correction study found that receiving visits is linked to fewer rule violations.

“In our research, we found that less than a third of people that are in state prisons receive a visit from a loved one every month,” Bertram said. “The state of affairs here is already not good. In shipping people to Pennsylvania, Delaware is making an already bad situation even worse.”

According to Marshall, word of the transfers has even caused anxiety among prisoners who are still in Vaughn.

“From what we’re hearing from people with loved ones in Vaughn, they’re just full of this great sense of fear that, ‘OK today it wasn’t me, but tomorrow, maybe it will be,” Marshall said.


Justice in America Episode 17: Killers Who Don’t Kill

Josie and Clint unpack the felony murder doctrine with Marlon Peterson, an advocate, writer, and host of the podcast DEcarcerated.

Marlon Peterson
Marlon Peterson

Justice in America Episode 17: Killers Who Don’t Kill

Josie and Clint unpack the felony murder doctrine with Marlon Peterson, an advocate, writer, and host of the podcast DEcarcerated.

In prisons across America, people are serving decades-long sentences for crimes they didn’t commit. Some face a life sentence or even the death penalty. Yet there is no hope of exoneration because technically, these people aren’t innocent. They may not be guilty as a matter of fact, but they are guilty as a matter of law. On this episode, we dissect the felony murder doctrine, and explore the various ways our system transfers culpability. We also talk to Marlon Peterson, an advocate, writer, and host of the podcast DEcarcerated. Marlon became a leader on this issue after he was convicted of felony murder and spent a decade in prison. He spoke about his experience in prison and the work he’s done since his release.

Additional Resources:

You can find out more about Marlon here. You can also check out his podcast! He’s also on Twitter, at @_marlonpeterson and @DEcarceratedpod

Felony murder: why a teenager who didn’t kill anyone faces 55 years in jail, The Guardian

Curtis Brooks Didn’t Kill Anyone. So Why Is He Labeled a Murderer for Life?, The Appeal

If He Didn’t Kill Anyone, Why Is It Murder?, The New York Times

Charged with murder, but they didn’t kill anyone—police did, The Chicago Reader

Information about those people who have been executed despite not actually murdering the victim can be found here.

The Felony-Murder Rule Sends Non-Killers to Prison and Doesn’t Even Reduce Crime, Reason



[Begin Clip]

Marlon Peterson: I’m a violent felon for the rest of Marlon’s life I’m a violent felon. Right? I can’t get an AirBnB because of that. If I need to travel, I can’t go to certain countries without getting a whole process done based on was I violent or was I not violent? And there’s no space to grapple with it. Just that what does your record say? You were violent so you just don’t get that thing. You’re never afforded that thing.

[End Clip]

Josie Duffy Rice: Hi I’m Josie Duffy Rice.

Clint Smith: And I’m Clint Smith

Josie: And this is Justice in America.  Each show we discuss a topic in the American criminal justice system and try to explain what it is and how it works.

Clint: Thank you so much to everyone for joining us today. You can find us on Twitter @Justice_Podcast, like us on our Facebook page at Justice in America and subscribe and rate us on iTunes, we’d really love to hear from you.

Josie: We opened the show with a clip from our guest Marlon Peterson. Marlon’s a writer, he’s an advocate around issues of incarceration, violence and community empowerment and he hosts a podcast called DEcarcerated.

Clint: Today we’re talking about a disturbing practice in our criminal justice system and that’s people being charged with murder even though they didn’t actually kill anyone. This phenomenon takes many different forms, which we’re going to talk about today.  But as always, we’re starting out with our word of the day. And today, the word is-

Josie: Violent. [Bell] Yeah our word of the day is violent or nonviolent. Either one actually works for our purposes.

Clint: So if you live on planet earth, at least if you live in America, I can’t speak for everywhere but I am sure you have heard the term violent criminal. You hear it on TV

[Begin Clip]

Woman: [Dramatic music] Was a violent criminal.

Man: And I am a violent criminal.

[End Clip]

Clint: You’ve heard it from politicians on both sides of the aisle.

[Begin Clip]

Barack Obama: There are people who need to be in prison and I don’t have tolerance for violent criminals, many of them may have made mistakes but we need to keep our communities safe.

Donald Trump: This is Hillary Clinton’s agenda to release the violent criminals from jail. She wants them all released. She wants people released that you wouldn’t want to walk on the street with, you wouldn’t want to look at.

[End Clip]

Josie: Violent crime, violent criminal, nonviolent offender, these are all terms we are used to. For many people, perhaps yourself, this is what separates the hardened, evil offenders from the guys who just made a mistake. The people who could be redeemed, those are the nonviolent ones.

Clint: This makes sense, of course, because violence is a visceral word, it has really strong implications. Traditionally, you hear violent offender and you think, well, this person raped someone or they killed someone or beat them within half an inch of their life. But we’d like to take a second and ask you to just think and really think about what it means to be quote unquote “violent.”

Josie: This is both a theoretical inquiry and a practical one. But let’s start with the former. Why is it harmful when we split people into two categories: violent and nonviolent?

Clint: Well, part of the reason is that violent and nonviolent are seen as synonymous with other terminology. Violent offenders, we understand, have committed serious crimes and committed harm against people. Nonviolent offenders have committed non-serious crimes. But this doesn’t necessarily reflect the reality that exists in the world.

Josie: Yeah so, in preparation for this episode, I looked up violent crime on Wikipedia. I just wanted to see how they defined it. And, you know, the little intro section that they have at the top of Wikipedia pages gave examples of violent crimes. And I’m gonna just read you what they listed. Are you ready?

Clint: I’m ready.

Josie: Ok. So, it’s dramatic. It says, “Typically, violent criminals includes,” and I swear this is the first thing they list, “aircraft hijackers, bank robbers, muggers, burglars, terrorists, carjackers, rapists, kidnappers, torturers, active shooters, murderers, gangsters, drug cartels, and others.”

Clint: Aircraft hijackers is the first thing on the list.

Josie: Aircraft hijackers is the first violent crime example.

Clint: Man.

Josie: I find that, I really want to know who edited it.

Clint: There’s a lot of politics to unpack from that.

Josie: (Chuckles.) Yeah. Someone has an agenda. So none of these sound like, you know, good things. They all sound very violent. But let’s imagine some other things that may be classified as violent.

Clint: Like, Let’s say in high school you get in a schoolyard fight. Or maybe, a better example may be, you’re in college, and you get in a fight at a party. No one is hurt, but the cops show up, and you and the person you’re fighting are both arrested – under the standard definitions of violent, this constitutes as a violent crime.

Josie: Right. So, on the other hand, Bernie Madoff committed like a bazillion dollars worth of fraud. And a bazillion actually isn’t that far off as a number. Like the real number I looked up, he basically cheated people out of $60 billion. $60 billion he stole, leading to suicides, destroyed lives, a ton of emotional fall out, but that’s a nonviolent crime.

Clint: Right. Now, these examples are extreme. Most nonviolent crime is not a Bernie Madoff. Most violent crime is not a school yard fight. But the point here is that the descriptors are used so often that they are often seen to demarcate thing and create a binary, when there isn’t necessarily one. And it’s one that has real policy implications. And you often hear it from even people who identify as progressive law enforcement saying we should be harder on violent criminals and easier on nonviolent criminals.

Josie: And again, this gets back to something that we’ve talked about before, all of these definitions are predicated on the involvement of law enforcement. So, if you get in a fight at a party and you’re arrested and charged and convicted, you are now a violent offender. If you get in the exact same fight at the exact same party but the cops don’t get involved you don’t start thinking of yourself as a violent offender. You don’t, ten years after the fight, try to rent an apartment or get a job or get into grad school, you’re not going to tell the people “By the way I’m a violent offender. I was never arrested but I did get in a fight in college and that makes me a violent offender.” You know these terms are only used in terms of the consequences of what happens after, not the actual event.

Clint: So this is kind of the theoretical point, violent and nonviolent are not clear cut entities. There are plenty of very serious crimes that are legally defined as being nonviolent and there’s some stuff that would qualify as violent that we would all agree shouldn’t ruin the entirety of your life. But, let’s talk briefly about the practical point too. As we’ve said many times, most cases in the justice system end in a guilty plea. Basically, instead of the trials you’ve seen on TV, we’re talking about a negotiation, out of earshot of any court reporter or judge or jury and often taking just a few minutes. And the plea offer is not always — or even usually — reflective of the crime necessarily. Depending on the situation that you find yourself in and your record and the prosecutor’s docket and their relationship with your attorney and that attorney’s relationship with the judge and so on and so forth, you may be charged with something more harsh than your alleged crime was, or you may get a plea offer that lets you off easy.

Josie: So often, what a person is convicted of just does not correlate directly to what they did or are accused of doing. And the point is sort of the goal in our criminal justice system is to process infinite cases in as little time with as little resources. Accuracy is just not the goal. And so someone may be a violent criminal for something they didn’t really do. They may have done something violent and been convicted on a lesser count.

Clint: And here’s something you may not know — even the crime as described in the law may not actually be violent. In California, until recently, robbing an uninhabited building was classified as a violent crime.

Josie: Even though nobody is in the building, that’s the whole point.

Clint: No harm was committed, no one was hurt, but it constitutes as a violent crime. And it’s not the only thing like that. Anyway, our terms of the day are not always related to our topic, but today, there’s definitely some overlap. Because today we’re talking about people serving time for crimes that they did not commit.

Josie: Yeah and we’re not talking about innocent people. That’s a different thing. What we want to explore is this phenomenon of a person being convicted of something they are not guilty of as a matter of fact but are guilty of as a matter of law. So, I know that’s abstract, let’s make it less abstract.

Clint: Let’s imagine that you and your friends decide to rob your neighbor’s house. You don’t want to hurt him, but you do want his stuff, so you decide to rob the house during the day, when he’s at work. Your friend brings a gun, and he tells you that he has it with him. But as soon as you break in you actually see your neighbor and it turns out he didn’t go in to work that day. Things escalate, and in a moment of panic, your friend pulls out a gun and shoots your neighbor. Are you then guilty of murder? You may be thinking, of course not. You didn’t shoot your neighbor. You didn’t have a gun. You didn’t have intent. You didn’t even know he would be at the house. Why would you be guilty of murder?

Josie: But this is the basis of the felony murder rule, which is a major doctrine in criminal law. Like every other thing we talk about on this show, the specifics vary from state to state and jurisdiction to jurisdiction. And your state may have a different name for it. But we’re going to go with felony murder for today. The felony murder rule is basically that if, during the commission of a felony, Person A is killed by Person B, Person B and all his accomplices or co-conspirators can be found guilty of murder. There are some guidelines here, the felony being committed has to be foreseeably dangerous, and there has to be some sort of reasonable connection between the death and the felony.

Clint: So maybe you can see how this makes sense. You went to rob the guys house, which is a dangerous felony. You knew your friend had a gun. The law basically says look, you may not have pulled the trigger, but you’re also responsible. You’re complicit, you risked it and you’re to blame, too.

Josie: But, okay, so let’s take it a little further. What if you were just the look out and you were never going to step inside the house? Or what if you didn’t know your friend had a gun? Or what if it was your neighbor that had the gun, and he shot your friend? Or what if you startled your neighbor so bad when you broke in that he had a heart attack? Should you be held liable for murder in those situations?

Clint: This is where the policy behind felony murder gets really murky and really unclear. And where it begins to be abused by people in power, particularly law enforcement. Criminal law is based very broadly on the idea that, for someone to be held criminally liable, there needs to be a guilty act and a guilty mind. In some instances, just one of those will do. But arguably, in felony murder cases, people often have neither. They didn’t do the act, and they didn’t intend for the act to be done. Does that make them a murderer?

Josie: It’s hard to answer these questions definitively, because you can always imagine a set of particular circumstances that would render the answer either a hard yes or a hard no. But here are just a few examples of people being charged with felony murder in situations that to us seem to be on the extreme side.

Clint: Kenneth Foster was 19 when he and a few friends, one of whom had a gun, committed two armed robberies. Kenneth was driving the car. While they were driving around, they ended up pulling over so one of Kenneth’s friends could talk to a woman on the road. Kenneth and his friends said the woman flagged him down, while she said the men were tailing her and she pulled over to see who they were. Either way, things got heated, and one of his friends pulled out the gun and shot the woman’s boyfriend. Then they ended up fleeing the scene.

Josie: Here’s Kenneth talking on the Netflix Show I Am A Killer about his case. He references Mauricio Brown, who is the guy who actually committed the murder.

[Begin Clip]

Kenneth Foster: Mauricio Brown testified that we didn’t plan a robbery, he testified that nobody encouraged him to rob, and he testified that he acted on his own accord. Unfortunately that wasn’t good enough, you know, the jury didn’t believe it, you know, and they convicted both of us of capital murder, they convicted me to being a conspirator to the crime.

[End Clip]

Clint: Kenneth was charged under Texas’s “law of parties” statute, which is essentially the same as felony murder. Though he killed no people and fired no shots, he got the death penalty.

[Begin Clip]

Kenneth Foster: They convicted me mostly for being a driver, for driving the car, um, and they handed down a death sentence for that.

[End Clip]

Clint: A few years ago, just six hours before he was supposed to be executed, his sentence was commuted to 40 years. He’ll be eligible for parole in 2036.

Josie: So here’s another story. In 2003, Ryan Holle and his friends went out drinking. They were young kids, like 21 or 22. At some point Ryan went home and told his friends they could borrow his car. His friends ended up robbing a drug dealer and beating the drug dealer’s 18 year old daughter to death. Ryan was at home a few miles away and had no idea this was going on, but he was convicted of felony murder. Prosecutors later said that Ryan was liable because his friends had talked about robbing the drug dealer before. Ryan said that he thought they were joking and that they had told him that they wanted his car just to get some food. He wasn’t there for he murder and he wasn’t aware of any plan to murder someone. But prosecutors said that the murder only happened because Ryan let them borrow the vehicle. That made him responsible. Ryan was sentenced to life without parole. In 2015, his sentence was commuted to 25 years. He went in at 22, and he’ll be close to 50 when he’s released.

Clint: And as terrible as that case sounds, it gets even worse. There’s another case in Chicago where Tevin Louis, who was 19 when he and his best friend, Marquise Sampson, stole $1,200 dollars from the local sandwich shop in Chicago. The two boys were running down the street when two police officers began to chase them down. Marquise ran one way. Tevin ran another. They never saw each other again. Because soon after, one of the officers shot Marquise three times, after claiming that he had pointed a gun at him.

Josie: So Marquise was killed by the police, but it was Tevin who was charged with felony murder. He was convicted and sentenced to 52 years in prison. The officer who shot Marquise on the other hand, was given an award of valor by Chicago Mayor Rahm Emanuel.

Clint: Felony murder is just one way that law enforcement and prosecutors can punish you for things that you didn’t do. You’ve probably heard of conspiracy laws. In theory, they sound like they make sense. If you conspire to carry out a crime, and that crime is carried out, it sounds reasonable that you would be considered among the guilty party.

Josie: But, again, this is another place where law enforcement has the power to stretch the boundaries of the crime so dramatically that people are regularly charged for conspiracies that aren’t really conspiracies at all. The crime of conspiracy typically does not require that one defendant know their co-conspirators. So a low-level drug dealer selling small amounts of weed to his buddies can end up serving the sentence of a major drug kingpin just due to them technically being co-conspirators.

Clint: Conspiracy law is often abused to charge all members of a quote unquote “gang” for the same crime. And how law enforcement defines a gang is increasingly loosely defined. In New York, prosecutors have held press conferences to brag about taking down drug gangs. But the reality is much more disturbing. On more than one occasion they’ve arrested over 100 young black men, accusing them all of criminal activity, apparently punishing dozens of people for the crimes of just two or three. Oftentimes, prosecutors claim that the gang affiliation is related to them living in public housing, once again over punishing poor people just for being poor.

Josie: And, in many jurisdictions, we’re seeing another warped use of these laws, as a way to perpetuate the failed war on drugs. In these places, when a person unintentionally overdoses on opioids, prosecutors will charge the person that gave them those drugs with murder. These aren’t the big drug dealers they’re charging, either. It’s often another person suffering from addiction, or the deceased person’s partner or friend. In one story, a student gave his girlfriend what he believed was Adderall after she asked if she could have some. It turned out to be Fentanyl and his girlfriend died. The District Attorney charged him with murder and he ended up committing suicide a few years later. To dig deeper into our subject we’re joined by our guest, Marlon Peterson. Marlon’s a writer, he hosts a podcast called DEcarcerated and he’s an advocate around issues of incarceration and violence and community empowerment. Stay tuned.


Josie: Okay. We are here to day with Marlon Peterson who has just been an incredible and critical part of the criminal justice reform space for years now. Marlon is the host of the DEcarcerated podcast and he’s an Atlantic Fellow for Racial Equity and we’re so excited that you join us today.

Marlon Peterson: Thanks for having me ya’ll. Thanks, I appreciate being here.

Josie: Absolutely. So first we, we just want to know how you came into this work and tell our listeners sort of what brought you into this space?

Marlon Peterson: I’ve asked that question myself several times because there’s so many different ways in which I can answer it, but most notably is that I’m somebody who spent a good amount of my twenties inside a prison in New York State. So being in prison you learn a lot about injustices, a lot more so and definitely beyond your personal experience. So in so many instances there were times when I caught myself advocating on behalf of other things, other people, issues inside of facilities, but often like speak about a program that was a part of, that myself and a friend created. It was a letter writing, mentoring program for some middle school students in Brooklyn while I was inside. And I think that sorta changed my trajectory in terms of what I would do after I got out. At the time I was, you know, being an electrician, you know, my brother’s an electrician, I need a job, will be a good job, I can get, you know, they had more opportunities for people like myself to get into that field. Um, but then when I, when I participated in that program, it propelled me to see in other ways and other gifts and skills that I had so allowed me to not only advocate inside on behalf of other people, but then I started running programs and facilitate with college students, people inside doing counseling, preparing men for their release. And it just exposed me to so many different things that I could contribute to.

Clint: And when you were on the inside, you were involved in a range of different programs, I believe, right? Were that, I know transformative for you, but also, especially in your sort of work which you were head of the Transitional Services Center?

Marlon Peterson: Yeah.

Clint: Obviously had a huge impact on a lot of other folks who were coming in and out of that system. Can you talk a little bit about that?

Marlon Peterson: Yeah. Transitional Services Center is the first time I ever, you know, really spoken in front of a group of people and I was scared out of, can we curse on this?

Clint: Yeah.

Josie: (Laughs.)

Marlon Peterson: You know, and um, I was scared shitless because, so the Transitional Services Center did one on one counseling for men who were nearing their release, but we also facilitated workshops. Everything from family to reintegration, career development, social living skills. Um, and I was like 24, 25 and the other men who worked in the Transitional Services Center were way beyond my years. They had more way more time that I had in at that time. At the time I had about four or five years in. And so it was a maturity for me to be in front of people who had way more time than I did seeing that I have some sort of knowledge I want to impart on other folks. But it also for the first time helped me to see how much prison was sorta just creating, literally creating prisoners. Um, because in the process of all this programming that was a part of, I was always swimming upstream, meaning that often many times, even up to seven, eight days before I got released, I was on the heavy hand of the administration for trying to get information and cause information that they had was all archaic and I would do whatever I can to get up to date information, whether it be for school, what reentry programs were really still, you know, still working. Um, and you know, I went through a lot for that.

Clint: And you were punished for it?

Marlon Peterson: I was punished for it, no question. Up to seven days before I was released, the captain, Captain Penborn, don’t forget his name, looked like Stone Cold Steve Austin, um, and he had said to me, ‘if you had more than seven days left I would lose you in the system.’

Josie: Oh.

Marlon Peterson: And he wanted to, I mean, I had, at that time-

Clint: Just so folks understand when he says, ‘I would lose you in the system,’ what is he saying?

Marlon Peterson: Yeah. So most folks, you know, when, when officers say that to somebody inside that can be the box, it can be, you know, New York State also keep lock, which means you’re in your cell 23 hours a day. And you know-

Clint: And the box is solitary?

Marlon Peterson: The box is SHU, solitary confinement. And I had done nothing to warrant that, but it’s not easy for them to contrive certain things. And in the entire decade I was in prison at that time, it was 10 years, I had never had like a cell search of that capacity at that time and I mean they took everything and the most violating part of it is that they read every letter I ever had. I had journals that I kept that I still had, I kept the entire 10 years and they read my entire journals. So much so that I remember when, uh, when they were returning the journals another officer, Officer Conklin, you don’t forget some people and he said, ‘wow, Marlin, you really did give a fuck, Huh? How come you didn’t write about me in there?’ And I mean, you ever feel like somebody like literary violated you? It was almost in some, and I’d been violated physically as well. And that was felt almost much more deeper than that. Much more traumatic than that because he knew my inner thoughts, right? And he could have, you know, he can, you don’t know what he can do with those thoughts, right? And that was in the process of me at that time, maybe four years working in Transitional Services Center organized a resource reentry fair where community organizations came in and local government officials came in to speak about issues of reentry in the prison. I was one of the first people to organize that, um, bringing in college students and not bringing them in, there was already a program with Vassar College coming in and I just sorta like rebranded a program so that it was more on a peer level as opposed to the past somehow seem like above the incarcerated men and you know, those programs impact a lot of folks. I’m thankful that it has. Um, but it was always a question of, well, what was I really up to, um, up to seven days before I got out?

Josie: Right. So what we’re talking about today and what our conversation has been about is about how the system and one of its many injustices is that it punishes people for things that they did not do. And that happens in so many different ways. And I think that you, particularly because you’ve been working in New York, you’ve been working with youth, you know the different ways that that happens, right? That we punish people for, you know, if you’re in the same public housing project, then you’re in the same gang etcetera. But I was hoping that you could talk about your own experience and what that has affected the way that you see the system sort of on this plane.

Marlon Peterson: Yeah, I mean, I gave a TED Talk and I sorta, I speak about what got me into prison so-

Josie: So am I the only person here who has not given a TED Talk on, uh-

Marlon Peterson: I’m sorry. I’m sorry. (Laughs.)

Josie:  Am I, am I even still invited to this conversation?

Clint: Every text message chain with you is like a TED Talk.

Josie: (Laughs.)

Marlon Peterson:  (Laughs.) That’s a quotable.

Josie: I dunno, I think I’m going to take that as a compliment.

Marlon Peterson: But yeah, in the TED Talk I speak about the experience of like what got me into prison, which was a robbery, a heinous robbery to be honest. A heinous robbery, attempted robbery at least in which two people were killed and I was a lookout in the crime. I was 19 and five of us were arrested and initially I was facing the death penalty. At the time New York still had death penalty on the books. Now it happened in Manhattan and I remember being in central booking, the second day I was there, something like that and the attorney I had, we get to first see an attorney, he says, ‘hey listen, Marlon it’s a good thing that this happened in Manhattan because you won’t be getting the death penalty, you won’t be facing the death penalty. The worst you will probably get is natural life.’ And that was the first, that was probably the second time in my life I’ve ever had like an outer body experience that, he didn’t really just say like natural life? And my role literally, I go to the store, lower Manhattan, attempted robbery happened, two of my co-defenders went into the store, I was across the street from the store, they went inside the store, two people was killed, shot in the store and then um, there was some sort of gun battle that ensued after that I found out later was police shooting at them or something like that. Um, and I was arrested a couple of days after that at my house and I was charged with everything that they were charged with, so I was facing life in prison. The first offer I got was 40 flat and they said, ‘I’ll give you 40 flat if you cooperate.’ And obviously I didn’t take the 40 flat. I wasn’t and I eventually pled down three years later, uh, was, had no bail and eventually three years later pled down to a 12 year sentence.

Josie: When you say you had no bail, you mean you were, not that you were let out without bail, but that you didn’t have, they did not offer you bail. You were held without bail.

Marlon Peterson: Right, right. Remanded. In fact, when at arraignment the judge had said what I thought was ‘you’re reprimanded.’ So, I remember going back and I asked a CO, a correction officer, ‘he said, I’m reprimanded. What does that mean?’ He said, ‘you sure he said reprimand? You sure he didn’t say remand?’ I said, ‘oh yeah, that’s, that’s probably what he said. So what does that mean?’ He said that means you don’t have bail. Um, so that tells you how ignorant I was of the system at that point in time. So for three years, you know, I’m going back and forth to court, trying to see what could happen.

Josie: And this is before you’ve even been convicted of anything?

Marlon Peterson: Yeah, for sure. And it’s the first time I ever been arrested or anything like that. Well, let me be correct. It was the first time I was arrested for anything like that. I spent a day in jail before for hopping a turnstile a year before that. Um, so yeah, I mean it spoke volumes to this and I think this is where the nuance of it. It was a very heinous crime that occurred. Its culpability shouldn’t be even across the board. And then in so many ways I was not in a position to argue that, right? Because this thing had happened and I knew what was, you know, a robbery was going to go down. Um, I have no right, even to this day, just recently, two days ago for the second time since I’ve been home, I’ve asked to meet with my, the district attorney to have a conversation with her, just so, you know, I don’t believe prisons fix and heal. And I believe there’s a fissure that happened obviously and with her and also with the people, I don’t know who these people were who were, um, killed. I don’t know their families. I don’t, I’ve never known them. Um, but I feel like at this point in my life, I would like to be able to initiate a conversation. And for the second time in 10 years, 9 years, she said, ‘no, I don’t believe Marlon has taken accountability for his, for his role in the crime.’ And, you know, that’s something I have to deal with. It’s something that she, she gets to deal with, but it’s also, it complicates it because this is a place where advocacy on my behalf, I don’t know if it is my place to advocate, right? It’s a complicated space. I didn’t do the thing. I didn’t shoot, I didn’t go in the store. I don’t know who these people were, but I was a part of it. Um, and I’m still being looked at, you know, as the person who actually went and pulled this trigger because the law says that, you know, in the commitment of a felony, you know, you all are responsible for that homicide.

Josie: So you said that they offered you 40 and that you spent three years before you actually were convicted of something and what, and so what ended up happening? What was the actual end result?

Marlon Peterson: First they offered me 40. Then they offered me 25. Then they went up to 35 years to life. Then they went down to 15 years to life and then they went down to 12 years flat with no life at the end. So I had a, it was called a determined sentence of which I served 10 years.

Clint: So in my research, uh, you know, for my, my dissertation, I think a lot about and engage a lot with folks who are specifically sentenced for juvenile life without parole and did so in cases of felony murder. Right? And so these are young men who it’s similar, it sounds like to you, who were involved in a scenario in which someone’s life was taken or someone’s life ended, but oftentimes there’s a spectrum of ways that this can unfold. And what’s fascinating is that oftentimes a lot of these young men didn’t even know what was about to happen, right? Like so for example, they were driving their car and their friends said, ‘pull over right here I gotta go talk to this person.’ And they go talk to somebody, but it’s not actually a conversation, I mean they, and then they go shoot somebody and get back in the car and say like, ‘go, go, go.’ I know a couple of folks who, who found themselves in that, that position. And so, you know, you are now an accomplice to a murder. And so I’m thinking, I say all that to say, because I’m thinking about how do we think about and reconcile complicity and intentionality, right? So I think, you know, for example, you were, you found yourself in a scenario in which you were a participant in something that happened in which two people’s lives ended. I have to imagine you didn’t go into that scenario with the intention to end to have two people’s lives ended. And so how do you think our criminal justice system deals with somebody’s intending to, just the very idea of intent, especially for young people and like the positions that they often find themselves in because of circumstances beyond themselves and if when someone is harmed or when someone’s life is taken, uh, how the system thinks about or takes into consideration the very idea of intent in the first place?

Marlon Peterson: Well, there is an assumption of equal culpability. There’s an assumption of guilt that is like given to certain folks. So in, you know, there’s things that have happened with these, like these huge conspiracy charges or in New York they had this thing called Operation Crew Cut where they would, you know, take down whole projects, a whole housing development and a hundred and some odd people would get arrested.

Clint: Oh wow.

Marlon Peterson: Um, and I, you know, I just met another young brother who just came home from doing six years for that.

Josie: For the Crew Cut thing?

Marlon Peterson: Operation Crew Cut.

Josie: Oh my gosh.

Marlon Peterson: Yeah. And he had nothing to do with the drug conspiracy. He was a part of something else that had nothing to do with it. But because he was affiliated through gang affiliation, he was a part of the conspiracy. He served six years for it. So you know, so many ways. I think the complicated part, was not complicated enough is ways like these particular laws disproportionately affects certain communities. Uh, so I just mentioned like Operation Crew Cut or communities where, because here’s how this thing goes. Like if I give you a gun today and you go, I say y’all a lot to do something, I happen to give you a gun. I have nothing to do with whatever it is you’re about to do with the gun. But you go do something with that gun, some sort of harm, not only are you complicit and you know, I’m culpable, but I am too cause I gave it to you even though I ain’t even really know what you was about to do. And that happens a lot. It happens so much. And, and most folks like me who didn’t even know what a remand was, will say, well yeah, you know, I mean take a plea because of the numbers that were offered and you got to juxtapose a young person facing these very adult situations and not, please, this is not absolution. Right? That’s not absolving folks of what they have done. Right? That’s not a conversation. It’s thinking about like what’s equitable and what’s fair and what is just. And when there is so much access to weapons in certain communities, obviously when there is over policing in certain communities, we know that there is, you know, there’s racial harm that’s done in these communities from law enforcement, from other services that’s afforded to these communities. Well of course then that makes it so much easier to criminalize folks. It makes it so much easier. Not only for like what they did, I gave her a gun, give me a gun charge or what have you. Don’t give me the charge of whatever you went to do too. But that’s how it works. I mean this is the law, this is not something that is even as the, uh, disproportionately administered in court. I mean it’s the law, it’s on the books. So it really needs to be a conversation like how should we revisit these laws because even now we think about criminal justice reform, these are the nuances that are glossed over because it’s not easy to deal with. Just like, and I know I acknowledge it is not easy to deal with, I mentioned with my role, like this is not easy to deal with. But it’s literally affecting folks every single day.

Clint: And it’s interesting too, cause you, you would be, when we think about, you know, glossing over nuance, you would be, you were charged as a violent offender. Even though ostensibly you did not, and this goes into the sort of complicated and messy and more nuanced way of conceiving of like what is violent or nonviolent that doesn’t exist in our public discourse.

Josie: Yeah. But even under the least nuanced idea of violence, you were not violent. That is not what was happening.

Clint: But legally you’re charged as such.

Josie: Right.

Marlon Peterson: Yeah. I also want to just sort of put in that I didn’t commit that violent act. Right? I didn’t commit that violent. Right? And there’s complications. I grew up in, I engaged in, I did other things. I mean, I grew up in Brooklyn, from Brooklyn, you know, just some things I engage in in many cases because I wanted to survive here. It was the sort of space that I was in and nobody would look at me as a 19 old kid, nobody who knew me would say, I was a kid in so many ways that people were like ‘you should hang with Marlon.’ They tell the other kid ‘you should be around Marlon.’

Josie: Right.

Marlon Peterson: At the time I was in school, I was actually in school when this happened. I took a day off from school. Because I just wanted, you know, I’m just curious. I wanted to hang with my friends or what have you. Right? I want to be a little bit tough. And a result of that and it was a conscious decision. Nobody forced me to do that. But I think, the reason why I always put those things in there about like nobody forced him because I don’t want people to think that I’m dismissing what happened. I’m saying that an injustice can’t be fixed with another injustice. That’s what I’m saying.

Josie: You made the point that felony murder it’s like a law on the books. And it’s so interesting because when I was in law school, you learn about felony murder and nobody ever said to me the principle of it does not make any sense. You know, it’s supposed to be a deterrent as, but to your point about like you didn’t know what remand meant, it’s not like you knew what felony murder, it’s not as if people have a, you know, who are in this situation, have this sort of like intricate knowledge of the felony murder law that it serves as a deterrent anyway. And so you brought up the point about race and class as well and not like if you’re black and you look like you and you will live in Brooklyn and this is more likely to happen to you than it is if you had been white on the Upper East Side. But I also heard you talk once about how part of why this is used disproportionately against people of color, specifically black people, specifically black men, is because the idea is that you already have that in your head anyway. So you didn’t murder this time, but you would be okay with it. That’s how we stereotype and think of particularly black men and, and your experience of going through this process, of going through three years before, you know, pretrial sitting in jail, of going through the different offers, etcetera. The treatment of you, I’m assuming was just as if you had done it or what was the treatment of you is a better way of saying that?

Marlon Peterson: I remember one of the first things that the prosecutor had said was that we were a Trinidadian posse. Now we all happen to have been of Trinidadian descent. I know two of the people who I knew them before, the other people I didn’t know, there was no elaborate plan. I think people assume there was some elaborate thing. That plan, here’s a bunch of kids in the apartments,’let’s go do this.’ ‘Okay, let’s go do it.’ But that’s the one thing, right? She assumed that we were somehow like this cultural gang, right? Which happens now if you think about a common conversation around MS-13 and Mexicans and people at the border. But I also, I remember the day I was in the precinct, just thinking about how people viewed me. I remember one of the, I was in a holding cell by myself for about a day, day and a half, and I remember one of the detectives came by and it might have been lighthearted, might’ve been benign, but it just showed how he saw me, right? He came by, he turned his back towards me and farted in the cell in front of me. And I mean, I might laugh, ha ha ha, it’s benign and didn’t do me any real harm, harm at all. But it, it, it just sort of showed like how we’re viewed. And then once you’re in jail, once you’re in prison, everybody’s in the same sort of boat, right? And the brutality of a prison is not left away from anyone. In fact, I always credit Kalief Browder, um, the brother that, who, you know, who died several years ago, with having so much more courage than I did, he would not allow certain things that we just thought was normal in prison. He wouldn’t accept that. He wouldn’t accept that if you’re not feeding me, the officers ‘say we’re not going to give you food today,’ like that’s, he would fight against that. And for us, for me, when that happened to me, you know, as older people would tell me inside, you know, that’s just part of the bid. Just, you know, you’ve got to handle it it’s better than them taking you out your cell and, you know, beating you and whatnot. And for me it wasn’t until I like listened to some of the things, and I even read some of his reports when he was in college, Kalief Browder I’m speaking about and I said, well, oh goddamn. Like there’s so many things that I just thought it was normal to prison. Well not normal to prison, but how I should be treated, I should say. That was not normal to how to be treated. And I can give you a million stories about how things happen, how we’re treated. But even throughout the, the court process, more importantly, the day of my sentencing, it was hard for me to take that, you know, it took so long for me to feel as if I should have done this time. Right? I didn’t at the time, I didn’t even think police were looking for me initially. I was surprised they came to my house and arrested me in front of my house. I didn’t think they were looking for me three days later. But fast forward to when I was sentenced three years later, I mean, I prepared a speech right? I was very, um, and I just looked it over just the other day at the sentencing. Now really I took responsibility for it. And also, you know, very, very much I wanted to address the family’s of whoever was harmed and no one from the family were there, just my family was there. In the process of the sentencing there is a probation report that has to be put together to see who I am and you know, so I had a whole bunch of awards and certificates from school when I was before and I remember at the sentencing my district attorney had wanted to make sure she put on record that the probation officer who developed a good relationship with my mother because they were talking about who I was, that she thought it was inappropriate the probation officer developed such a relationship with my mother. The report just mentioned all this, you know, all the things I’ve done prior to that date. Prior to that day I did a whole bunch of other things. Right? But it just spoke to that, I mean, at this point in time, three years later, me admitting all the things that I was a part of that there was still a refusal to see me.

Josie: Right. You’re not really human, you’re not, everything, you know, this idea that everything is manipulative versus this is how people interact when they spend a lot of time together.

Clint: So you spent a decade in prison and you were 19 when the event happened and then three years later you’re 22 and you’re doing this at a time when, you know, other people are in college, they’re, you know, having a set of experiences that are, uh, formative to who they are going to be for the rest of their lives and are sort of laying the groundwork for who they are. What is it like to spend such formative years of your young adulthood in an institution that is predicated on stripping you of your agency, that is predicated on structural and interpersonal violence, that is predicated on—  what it was it like to come of age in that sort of social context?

Marlon Peterson: I had to decide, I decided that youth was not something I had. I made a conscious decision that youth was not something I gotta have cause I had to figure out how to do that time. Um, as I said, the first three years I was facing life so I didn’t know if I would ever come home.

Clint: Yeah.

Josie: Right.

Marlon Peterson: And then when I finally did get the time, which was somewhat of a relief because I just, at least I knew what my, what the end game was going to be. I was always the youngest person in any of the facilities that I was in, and people were sort of like weirded out by me because I didn’t really converse a lot with folks. I was, you know, it was either in my journal or when I played basketball, you know, I had a whole other personality when I played basketball, but I didn’t engage in a lot of conversations, etcetera. Um, because I kind of realized very quickly like, how I need to survive, who I needed to be. I knew I wasn’t going to join no gangs. Like, I’m not doing that. That’s not who I am. Right? Um, and there were just some things that I saw were always, when you in a prison in a concentrated place of scarcity, anything can become a problem. So like that’s why they have phone issues when people argue over the phone, etcetera. Um, but for me, I knew that I had to be consistent with who I was. So if I’m somebody who’s not engaged in certain activities, I’m not going to be in a gang, I’m not going to do those sort of things. I’m not going to watch certain things that it’s cool to watch on TV or engage in conversation that’s cool like hip hop and whatnot. Like for me it was like these are the things I’m not going to engage in. Even if most 20 year old, 19, 20 year olds would engage in that. There’s nothing wrong with it. I’m like, I’m not doing that. I need to be so focused on survival that I can’t think about playing outside when I go play basketball that’s my playtime. That one hour, that’s play. Outside that there’s no other play to me. I don’t think I fully, that question when I was I think is a very important question, um, Clint, because I don’t think for me at least everyone’s experiences that harm in prison differently. You don’t fully realize the damage is done until you leave it. Cause for what it’s worth, everybody’s dealing with damage in prison. Everybody’s dealing with, so much so that damage doesn’t look like damage. Right? And then when you come home you see like, oh shit, like damn. And I’m not speaking about the things that people think about like waking up with cold sweats and I can’t be in crowds. I mean that is an experience of folks too. But I’m speaking about the loss of youth, right? There’s something that I think even now, I’m now approaching 40 now, right? Next year I’ll be 40 and there’s some things that I realize that like, jeez, I wish I did this. Like I wished I had that, I wish I had got that opportunity uh, you know, to drink at 21. You know what I mean? Or go to use my ID for the first time at a 21 and over club. Simple things that like everybody wants to experience.

Clint: Yeah sort of compounding of a set of experiences that most people take for granted because it’s, it’s like a normative future of, of like what it means to, you know, for most people, certainly not all people and disproportionately not black men, but you know, those, those small experiences, they add up over time. Right? And then you come out after a decade and I can imagine that you’re like-

Josie: And you’re an adult.

Clint: You know, exactly. You know, I’m, I’m an adult and it’s almost like, you know, a thousand tiny pricks.

Josie: Right. And I just imagine like, you know, the things that you get to say, well I did that but I was only 22, you know, the excuses we make for like youth at that time, you don’t, you don’t get the benefit of that. But you said something earlier, you said like, ‘it took me a long time to even think that I deserved that sentence.’ And do you think that you deserved that sentence?

Marlon Peterson: I came up with this quote—  in life you get to make your choices, but you don’t get to choose your consequences. And I mean, I wrote that some years ago. I don’t know. I don’t know. I’ll go back and forth with that, uh, Josie, honestly, I go back and forth with what’s deserving because the answer to that question is difficult to answer without being able to communicate with the people who were harmed.

Josie: Right.

Marlon Peterson: The justice system doesn’t afford you that right? To, to do that outside of if your sentenced, you get to say something before court. Right? But that’s obviously not, it’s not an intimate space. So I grapple with that. But I think it’s within that grappling that we avoid, we’re not speaking about criminal justice reform and we act like there’s this big elephant in the room that we don’t talk about. Like we don’t afford space to do that grappling. I know I was wrong and what I did, but was it 12 years right? Was it, I’ve got a 12 year sentence. I did five years of parole. So all together I did 15 years in the system, right? And do I deserve it? I, there’s days where I feel like, hell no. I could have, like I was in school, I wasn’t a career like stickup kid. I wasn’t that. I wasn’t a stickup kid. So do I think I would’ve went and robbed somebody next week if I didn’t go to jail? No, probably not. Um, I might of just like finished school, you know what I mean? And, you know, gotten something done with myself. Right? I don’t know that obviously, that’s all hypothetical. But the thing is I really believe that there needs to be spaces and that’s part of work that I think, you know, when I write about, and I talk about things like we need to afford spaces to grapple with that nuance because we don’t. Because when you’re not allowed to grapple not only is that problematic for the person individually and traumatic, but like there’s literal collateral consequences to that. Right? So I’m a violent felon for the rest of Marlon’s life I’m a violent felon. Right? I can’t get an AirBnB. Right? I wrote a piece about that a couple of months ago and because of that. If I need to travel, I can’t go to certain countries without getting a whole process done based on was I violent or was I not violent? And there’s no space to grapple with it. Just that what does your record say? You were violent so you just don’t get that thing. You’re never afforded that thing again. It’s interesting though because you just say, I think now as I’ve gotten more access to different spaces, you know, I gave  TED Talk, wow, you know, a bunch of people seeing that I get to travel and all that. The more spaces I get into the more discover, oh I’m not supposed to, I can’t get here without this thing. Oh I get, oh I got to do this other thing. Even getting into NYU, I had to go before a committee after I got accepted. And I imagine that of the thousands of people that get into NYU every year, everybody’s going to have an individual conversation.

Josie: Right, right. And so related to that I think is the fact that you have done like an immense amount of work in the criminal justice reform space and also in so many different ways, right? Both in the work that you’re doing now, the work that you did at the Fortune Society. And also like I think when we met, you were working for a, um, in a program in Crown Heights that um, addressed gun violence sort of on a neighborhood level, on a community level, not in a punishment capacity. And it was this really incredible organization that had an impact that really stopped the prevalence of gun violence by engaging young people, giving them tools to kind of deal with, um, some of the harms and trauma that they had dealt with. But you know, that so many people in this space, and we’ve talked about this I think on the show before and, and surely will again, are not people who have been in the system, are not people who have been remanded before trial, are not people who have ever been arrested. So many people in the criminal justice reform space do not have the experience that you have. And so I’m both interested in what that experience is like for you and also how it can feel. I mean, I’m imagining that I think about this sometimes in spaces where we talk about gender violence when there are no women in the room. Like I can imagine that that is both isolating and limiting as we try to solve this problem, this big, you know, problem of mass incarceration.

Marlon Peterson: Yeah, I mean, you know, I host a podcast and it’s about amplifying the journeys of success of people who did time and it doesn’t matter what they did time for, and what got me to that point was, it’s exactly what you’re saying. There is this sort of prized pony sort of way in which we do criminal justice reform, where we had this one person who we say, look at her, look at him, they’re the model. They are the person who’s a formerly incarcerated person who’s in the conversation and propel them up and say, look what she or he is right? That one charismatic person and I’m not knocking, some of these people are my buddies and whatnot. But I’m saying that that’s problematic because it doesn’t speak to the whole it wanted it, you know, you, you, you, you sort sorta like raising one experience up while sort of dismissing all the nuance in that person’s experience, but also the entire field. And I get to be in conversations all over the place around criminal justice issues and there is a certain tokenization of, ‘so as a formerly incarcerated person, I’d like to talk a little about what does the community perspective on this?’ And I get it like I am from the community-

Clint: To speak for the entire 10 million people in our jail every year.

Josie: Right, right, right.

Clint: You’re the one who is, who’s lifted up to speak for it.

Marlon Peterson: I mean, it’s not much different being the only black person in a space. I mean, it’s directly related. It’s, it’s exhausting to answer your question. It is exhausting because a lot of what is fueling the interest in criminal legal spaces also, there is money there. There are millions of dollars in reform now, whatever that might be, for whomever that may be, whatever organization, um, there are celebrity in it now for whomever that may be. And I’m not saying that they aren’t doing good in the process, I’m saying that it sort of creates a space where there is a uninformed analyses driving the conversation. And I think that’s, that’s exhausting to be that person always saying like, ‘that’s wrong. Don’t do that. You’re not, you don’t have full analysis on that.’ Um, because that also creates a space where, you know, there’s this adversarial space amongst advocates and I’m not, I don’t think everybody needs to agree all the time. I always say that everybody is, if you find two people who always agree then there is somebody lyin’ right? So that’s it. But I also think that because what’s fueling a lot of it is not really how this stuff is affecting people but really that is now money there. It’s a career move. I’m gonna become a criminal justice advocate, right? That’s, and there’s nothing wrong, I’m not saying it is wrong, I’m just saying that the motive has to be questioned because if the motives aren’t questioned, then the results are not going to be quite possibly, inefficient.

Clint: And I think that too, you’ve alluded to this tension, but I think it’s really important to think about, you know, there was a moment I remember, you know, in nonprofit space generally in, in, in, in the context of this and criminal justice space where there were no formerly incarcerated people whose voices were being lifted up, right? Like you would go to conferences, you would go to convenings, you would, you know, listen to the Brady, like it was, the people talking about jails and prisons were never people who had been in jails and prisons. And so I think that now we’re in a moment in which you, there are people recognize that if you are working on behalf of the community, you should be lifting up the people who have directly experienced that, whether it be in the context of, you know, criminal justice, food insecurity, poverty writ large, etcetera. But there is this thing of, of what it means to lift up certain stories or certain people at the expense of others. But I think, you know, there’s a difference though, and I think you’re somebody who does this and then there are other folks who are formerly incarcerated who do this, to be lifted up and to position yourself as set authority versus to be lifted up and then to like pull other voices up with you. Right? Like you do that on like very materially because you have the voices of other formerly incarcerated people on a podcast that you have as a result of a platform that you’ve created because of all these opportunities. So, so I just bring that up because I think it is, I don’t want it to come across as if we’re like, and you’ve said this, we’re not knocking people obviously who come into a space that has become, you know, has gotten more intention, has you know as more money in it. But there is something to be said for what it means for any of us in any context when you are lifted up into a position of authority, into a position in which you have an audience, like who are you bringing with you?

Josie: And, and I think the other thing that I have seen or I have felt, and I wonder have you felt this too? And I think again like, like you said it, you could analogize it to a lot of other things being a woman and being black and it’s not like the exact same, right? But it’s the same sort of thing which is like it can end up being definitional, which is like you spent 10 years in prison and that is part of your story. Here are the other things that are part of your story. This is not the only thing about you. And I wonder if also it can end up being one dimensional. Make you feel like people see you one dimensionally or that you’re treated one dimensionally when you are one of these people who when you look at the work you’ve done, you’ve done it in all kinds of spaces with all kinds of people for much longer, I think, than many people have been doing this work.

Marlon Peterson: I mean, listen, I’m, I’m thankful that I get to have a, my little 2 cents in any conversation. Um, but, uh, you know, one of the things I think about as we all know in a space of progress where folks are now gaining access, this is good. This is good progress, this is good stuff, is that the only place for people who are, who have had this experience is in a place of advocacy and activism. Um, and I, you know, there are 7 million people who have a criminal conviction, you know, 20 million people with a felony in America. These folks are at your barber shop, um, they at your supermarket, some of them are working in, in schools in various capacities. Some of them working in hospitals like everywhere, your Uber driver, whoever it is, right? And I think, but many of these folks have to live this sort of life in the shadows. So there’s a person I just recently met who has, who did 11 years in the federal system and has a lucrative vodka brand and it’s making, he lives on top of, he lives above Barclay’s. Just give you that, right? And I was like, ‘hey, you know, would you mind coming to podcast, da, da, da’ he was like, ‘you know, I’d love to, I mean when I get to speak to people like in the school how to do that, but I don’t like talking about it cause it will affect my clients and investors.’ Um, because the stigma is still there. It’s still, it’s still there and, and, and the only place right now where many of us seem to be excepted are in this space. And I’m saying that advocacy doesn’t have to always be where, I’m at a policy conference. If I happen to have a water bottle company that’s advocacy. Look what I’m also able to contribute. This is the skill set I also have.

Clint: But I think to your point, what’s interesting is that it’s interesting to think about how one of the only spaces in which someone can be forthright about their past holistically is if you are an activist or advocate working in criminal justice because in every other space it hurts you. It’s detrimental, right? What works in this space it’s central to a narrative of, of work that you were doing. You know, if you have a vodka company or are you making water bottles, whatever the job is, it threatens your wellbeing. That’s the wellbeing of your family and a whole host of people who count on you.

Josie: And I think this encompasses what we talk about often on the show, which is like you can get, because, you know, we spend all of our time doing this. Like I spend all of my time and a lot of my mental space talking and thinking about this system and with people who also are talking and thinking about this system and you can forget that like the rest of the world is not, not that you actually forget it, but in practice you can hear someone say something like ‘that convict’ or whatever and you’re like, whoa, this is how, you know, it’s, it’s not, we’re getting better, but not everybody is getting better all of the time on this topic, you know?

Marlon Peterson: Well, definitely not. It’s still, listen, it’s a, it’s still very much a fringe topic that has an imagery of a black man of it, right? And now we are in a place where, because women have taken a mantle, are like, ‘hey, no, this is also us,’ you know, um, and which is also progress I’m glad to be able to see and be a part of. We still have not been able to see the full width and breadth of the human capacity of people who have had that experience, that lived experience. Um, so you’re relegated to the criminal justice advocacy platform. There’s still work to be done there. A lot to be done there. Um, but I would love to see television programs that infuse people with that experience without them having to be, but without the experience being the full character, right? It’s sort of like, I recall Roseanne show. This is back when-

Josie: The original Roseanne?

Marlon Peterson: The original Roseanne, right? And I didn’t watch it but I remember it being on the news. It was a big thing when I think Roseanne’s sister came out as being gay. Right? I, I just remember that was on the news. I don’t think I’ve ever really watched the show, but that was a thing, a gay character. She’s a gay character. And it got to the point now where people happen to be a gay person on the show, but they’re not the gay character. They’re just a person on the show. That’s just who they are. And we need to move to the point where people with these experiences are also, um, not the formerly incarcerated character only. Uh, but that happens to be a part of who they are. Because like, even when I had mentioned, I spoke about the sentencing and the probation report, everything before 19 years old was me being a successful, for the most part, a successful student. You know, and worked at the New York City Opera and did all that sort of stuff. People like what? Brooklyn? New York City Opera? Um, and then the next 10 years is that thing. Um, but I’m just saying that there’s a full, there’s a full human character to, to all of us and we need to be able to afford the space to express that.

Clint: So as we end, I’m curious as someone who has experienced incarceration personally as someone who, uh, and now someone who does this work in advocacy in a writing capacity, um, or thinks about this in all these different facets of your life, what do you envision a more just criminal legal system looking like? Like what is, cause clearly what you experienced and so much of what we see now isn’t just, it’s not justice. What is that more just world look like to you?

Marlon Peterson: When you turn on the news and you hear, you see that story about this crime that just happened. I want people to be asking what happened to that person to get her or him to do that thing? I mean that is the hard, Clint, like that is a hard question, right? It is hard. I mean we can think about all these reports of these stories. Um, but we have to start from why does that person react or respond to his or her life this way. I remember going to a funeral, I was working with, while I was at the Fortune Society, I was working with a young family of a young man who was killed. He was 19 and I remember going to the funeral and it was, you know, a bunch of his friends that age and you know, boys trying to act like they not crying with they shades on and girls crying and some acting like they not crying too as young folks do, um, and I remember the person giving the eulogy, a friend of mine is a pastor and he had spoke about this dash of the headstone and he spoke about it in relation to, you know, what life, which are legacy would be for between that dash, call it a dash— the time when you were born to the time you passed. And I took it completely differently. Um, while understanding that I was thinking more so about the dash in that person’s life that let her or him to now become that person who cause the kid was in a gang, right. Um, but what was the dash? What experience that happened in her or his life that got them to be this, to do these things? Could always look at, you look at a baby, Josie, you got a beautiful young baby, right? And you want, and when I saw the picture, you just want to kiss, you want to hold, you want to cuddle and say all sorts of incoherent things that you think kids understand. And at some point, you know, 10 years later, 15 years later, 20 years later, this person got a mugshot or they’re carrying a gun or whatever it is, and like that baby was that baby. That baby didn’t come out wanting to be that way.

Clint: Like so many other babies-

Marlon Peterson: All babies come out, you know what I mean?

Clint: Something happened along the way.

Marlon Peterson: Something, so I think it’s, you know, to bookend it, uh, you know, the question what’s a just world look like, I think we need to get to the point where I believe in, you know, I believe is abolition, that we need to envision a world without prisons, but in order to get to that place, we need to be thinking about what are the things happening to these folks first. Because what prison does is punish. It does it hella good, right? Because it doesn’t see a full person it sees the act only.

Clint: And it doesn’t see the history that created the conditions of the community in which certain trajectories are created for people.

Marlon Peterson:  We have so much research to tell that these things happen, what’s going on in these communities, right? Women, we understand that the majority of women who end up in prison have been sexually abused. We have the research there. Our current justice system doesn’t have a protocol, doesn’t have a processes for weighing that, at all. Um, and I think and that’s because we just don’t really, we don’t care. We don’t want to invest in that, we just don’t care. We know the research is there. Everybody could talk about some book, New Jim Crow, whatever it is, you can talk about a book. You can Google it. You can look on your Instagram or whatever. You can see it. I’m just saying that to get to that point where you think about a more just world we have to see I like to say, we have to see the justice in ourselves because so many of us react in ways that are harmful every day, whether it be in very minute ways and we’re always reacting to some past experience and we want justice. We want somebody to be able to, in order for us to get justice in our own selves, we need to be able to look at ourselves and think about why am I reacting this way? And I think that the thing about what a more just world looks like, not only do we need to do that for ourselves, but we also need to think about doing that for others.

Josie: Yeah, that is, I love that. And Marlon, thank you so much for joining us today. You’ve been a friend to both of us, you’ve been a mentor and a leader in this space and we admire and appreciate the work you are doing and are so glad that you joined us.

Marlon Peterson: Thanks for having me, I appreciate ya’ll too. We go way back.

Josie: We sure do. All across the country.


Josie: That was Marlon Peterson, a writer and the host of a podcast called DEcarcerated. Thank you so much for joining us Marlon.

Clint: And thank you for listening to Justice in America. I’m Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: You can find us on Twitter at @Justice_Podcast, like our Facebook page at Justice in America and subscribe and rate us on iTunes. Everything really helps.

Josie: Justice in America is produced by Florence Barrau-Adams and our production Assistant is Trendel Lightburn. Thanks and talk to you next week.


‘Just Leave Them to Die’

The crisis at Brooklyn’s federal jail reveals how jails and prisons ‘are not prepared for a disaster.’

A protester holds a sign outside the Metropolitan Detention Center in Brooklyn.
JB Nicholas

‘Just Leave Them to Die’

The crisis at Brooklyn’s federal jail reveals how jails and prisons ‘are not prepared for a disaster.’

A crisis at a federal detention center in Brooklyn spotlights the failure of the federal government to include prisons and jails in the nation’s emergency planning, experts and advocates say.

“There seemed to be no emergency plan, and there seemed to be no plan to create a plan, just a matter of waiting,” New York City Council member Jumaane Williams said after being given a guided tour of the Metropolitan Detention Center-Brooklyn, six days after a Jan. 27 electrical fire knocked out power throughout the facility.

With 1,703 prisoners, MDC-Brooklyn is one of the largest federal jails in the country, sitting in a flood zone along the borough’s waterfront. The blackout plunged the jail into darkness, and paralyzed computer systems that are essential to maintaining humane conditions of confinement, including the provision of medical care and medication to detainees. The blackout also amplified allegations––from corrections officers and detainees––that the facility was not sufficiently heated.

The chaos mobilized prisoners’ families and hundreds of protesters, who laid siege to the crippled jail, surrounding it and chanting slogans such as “No Heat! No Peace.” Prisoners responded by banging on the windows of their cells, joining the protest outside. It took more than a week for federal officials to fully restore heat and light to jail.

When it was all over, however, protesters had clashed with guards inside the jail’s lobby. Deirdre von Dornum, the chief federal public defender in Brooklyn, accused Warden Herman Quay of lying. Brooklyn’s federal judges––all of them––held a joint meeting to decide what to do. The Department of Justice launched an investigation into the federal Bureau of Prisons’ handling of the fiasco, including “whether BOP has in place adequate contingency plans.”

The bureau itself promised to “review the emergency response and contingency planning for this type of incident.”

Sen. Tammy Duckworth, an Illinois Democrat, told The Appeal on Feb. 10 that she, too, is requesting a review of the bureau’s emergency preparedness. The audit she’s asking for would be conducted by the Government Accountability Office, an independent, nonpartisan agency whose website describes itself as a “watchdog.” It would also examine how the Federal Emergency Management Agency (FEMA) and states prepare for emergencies that affect prisons and jails.

“Recent natural disasters highlight the need to examine the Bureau of Prisons’ (BOP) and selected states’ emergency preparedness efforts,” Duckworth wrote in her audit request.

A crisis like the one that happened at MDC-Brooklyn “can happen anywhere, at any time,” according to Melissa A. Surette, an emergency management professional. Her 2014 doctoral thesis, “Prisons and Disasters,” first detailed what she said was the failure of Congress and federal policymakers to include prisons and jails in nationwide emergency planning.

“There are almost 7,000 prisons and jails in the United States, but there is no national directive to develop emergency plans that include them. Some facilities do have a plan, but most don’t have a plan that staff know and have tested,” Surette told The Appeal.

Prisoners have been repeatedly subjected to inhumane living conditions during clearly foreseeable disasters, said William Omorogieva, a researcher at Columbia University’s Sabin Center for Climate Change Law and the author of “Prison Preparedness and Legal Obligations to Protect Prisoners During Natural Disasters.”

Citing Hurricanes Katrina and Rita in 2005, Ike in 2008, as well as Harvey, Irma, and Maria in 2017, Omorogieva described how the lack of preparation created brutal conditions. “Prisoners were forced to live for days without adequate food or water, medical care, electricity, air conditioning, or contact with their loved ones. They were forced to live in flooded cells, overcrowded cells, and cells full of human feces, because plumbing wasn’t functional.”

“This is absolutely a national problem,” Surette said. “You can look at federal facilities, state, county, local. It’s not specific to a location, or type of institution.”

David Fathi, the director of the ACLU’s National Prison Project, agreed. “In disaster planning as in everything else prisoners are an afterthought, if they are thought about at all. Prisons and jails nationwide are not prepared for a disaster.”

Roughly 2.3 million people are incarcerated in almost 7,000 state and federal prisons and local jails across America, according to the U.S. Department of Justice. The Supreme Court has ruled that the Constitution requires the government to take responsibility for the well-being of the people it incarcerates.

“When the State takes someone into custody, the State has to provide for him the things he can no longer provide himself,” Fathi explained. “That means the basic conditions of health, and safety, and human dignity, including food, water, clothing, shelter, light, ventilation, sanitation, safety, access to the courts and medical care.”

The right to safe and humane conditions of confinement is “all but absolute,” Fathi said. “It cannot be taken away under any circumstances, even in an emergency or disaster.”

Even the prison officials whom Fathi sometimes sues agree.

Move all of the prisoners to the roof, and if they start to act out, shoot one, and throw his body off the roof, the rest will then behave.Anonymous federal official, interviewed by Melissa Surette

“Jails have custody of human beings whose lives have value. Jails have a moral obligation to care for those people who are totally dependent on them. That’s part of the fundamental obligations of a jail,” said Martin Horn, a former Pennsylvania prison chief, a former New York City Department of Corrections commissioner and a lecturer at the John Jay College of Criminal Justice.

When it comes to natural disasters such as hurricanes and other foreseeable emergencies, Horn said, “Every jail or prison must take reasonable and prudent precautions, and have plans for dealing with everything from a fire evacuation to a plan for a hurricane to a plan for a work stoppage among corrections officers.”

Sound emergency planning includes several elements, according to the National Institute of Corrections. Besides security emergencies and tactical plans, it should address natural disasters and other catastrophes, such as mass medical emergencies. The plan should also establish a clear chain of command and be consistent with overall policy.

The plan should be checklist-driven, with its basic mechanisms applicable to other institutions in the system, but tailored to the specific institution at issue. The plan should include a plan for training on and practicing the different plans. Finally, it should “include detailed policies, procedures, and resources for dealing with the aftermath,” the National Institute of Corrections says.

As essential as robust emergency planning is for prisons, official data on actual prison emergency planning are scarce, except for a self-reported survey conducted in 2002-03 by the National Institute of Corrections. The survey queried the federal Bureau of Prisons and the departments of corrections in all 50 states. Of the 51 prison systems, 41 agreed to participate but only 34 returned completed questionnaires.

Out of the 34, three had no emergency plan at all.

While 31 said they had a plan on paper, only 28 claimed to have the necessary infrastructure to carry out the plans. Some prisons had general plans, while others had plans specific to particular emergencies but not others. Most of the specific plans dealt with fire and security breaches––only 18 departments said they had specific plans for dealing with natural disasters.

A decade later, Surette, the emergency management expert, surveyed prison officials about their emergency planning for her thesis.

“This was a question many didn’t want to answer,” she said. “Some said they have a plan, but it’s locked up in a box and nobody has access to it. Other people said we have a plan on paper, but we don’t know what it entails.”

Then there was the anonymous federal official involved in the response to Hurricane Katrina, quoted in Surrette’s thesis saying point-blank: “Move all of the prisoners to the roof, and if they start to act out, shoot one, and throw his body off the roof, the rest will then behave.”

Another official told Surette, “Just leave them to die.”

Being left to die in a flooded New Orleans jail wasn’t the worst part of Hurricane Katrina, it was being left among the living in a fenced-in football field after being “rescued,” said Paul W. Kunkel Jr.

“It was a special kind of hell,” Kunkel said. “It was like a concentration camp.”

Kunkel was a teacher from Toledo, Ohio, at the end of weeklong road trip with a childhood friend. They had been busted on Bourbon Street for public intoxication and were in separate cells in the city jail when Katrina hit on Aug. 29, 2005. Kunkel said that when the water rose inside the jail, corrections officers locked him and four other men in a cell built for two and vanished.  

“They left us to die,” Kunkel said. “I was locked in there for three-and-a-half days without foot, water, toilet. Because the guards had abandoned the jail.

“After we thought we were gonna die, they came in and they cut the bars open.”

Kunkel waded through chest-high water to get outside and into one of the boats used to rescue detainees, he told The Appeal. From the jail, Kunkel was bused to the Elayn Hunt Correctional Center and placed in a fenced-in field with up to 4,000 other prisoners, according to the civil rights lawsuit he filed in 2006. Kunkel was held in that field for five days before being taken to another prison.

Each prisoner was given one blanket. There was no shade or shelter. There were no bathrooms.

Corrections officers stood outside the yard, throwing peanut butter sandwiches over the fence. “Whoever could grab it, they could grab it,” Kunkel said.

Some evacuees were beaten and slashed. Others were raped. The violence “was rampant and went unchecked by correctional officers,” according to a report by the ACLU.

Kunkel spent 38 days behind bars before being released; his friend spent 40. Charges against both were dismissed. A federal jury found that their constitutional rights were violated and awarded damages, but the Fifth Circuit Court of Appeals reversed the award and threw out most of their lawsuit. Kunkel said he received $1,000.

Federal legislation enacted after Hurricane Katrina codifies into federal law that prisoners’ lives aren’t a priority. The legislation, called the Post Katrina Emergency Management Reform Act, requires the inclusion of disabled people and even house pets in federal emergency planning, but not prisoners.

“We should want to protect prisoners no different than we want to protect pets,” Surette said.

The Department of Homeland Security, which has overall responsibility for national emergency preparedness, did not respond to a request for comment, but FEMA did.

“Emergency management planning is the responsibility of states and local jurisdictions,” FEMA spokesperson Michael Hart wrote in an email. “Comprehensive Preparedness Guide 101 encourages emergency management planners to engage the whole community in their planning efforts, which would account for including prison populations and those with household pets.

“FEMA considers it vital to care for all populations during an emergency,” he wrote.

Kunkel is retired and lives in Nevada. Now 57, he called including pets but not prisoners in federal disaster planning “disturbing,” adding, “They didn’t seem to care.”

Cynthia Myers is Kunkel’s wife. She was his girlfriend in 2005, when he disappeared. It took her 30 days just to find out whether he was alive and another 10 to free him.

“What happened to Paul was horrific,” Myers said. “He still suffers post-traumatic stress from it.”

“Honestly, it was a nightmare,” Myers said. “It’s still a nightmare when I think of it.”

Justice in America Episode 16: A Conversation with Kim Foxx

Josie and Clint talk to Cook County's head prosecutor.

Cook County State's Attorney Kim Foxx
Presley Ann/Getty Images for EMILY'S List

Justice in America Episode 16: A Conversation with Kim Foxx

Josie and Clint talk to Cook County's head prosecutor.

Today we are talking to Kim Foxx, the head prosecutor of Cook County in Illinois. Cook County, which includes 135 separate municipalities including Chicago, is the second largest county in America, and has a population bigger than 28 states.

State’s Attorney Foxx was elected in 2016. She replaced Anita Alvarez, who had, to put it lightly, a disappointing record on criminal justice reform. Foxx’s election was a major victory for the criminal justice reform movement, and for progressive and racial justice organizers in Chicago. She is the first black woman to run the prosecutor’s office in Cook County.

She is joining us today to discuss her past two years as state’s attorney—what’s been successful, what has been challenging, what obstacles she’s faced and how this job has changed her perspective on criminal justice reform.

Additional Resources:

The criminal-justice crusade of Kim Foxx, Chicago Reader  

Why Kim Foxx is Challenging Anita Alvarez for State’s Attorney, Chicago Mag

Kim Foxx gets a report card, Chicago Reader

Kim Foxx Just Released Six Years of Data , The Appeal

Justice in America is available on iTunes, Soundcloud, Sticher, GooglePlay Music, Spotify, and LibSyn RSS. You can also check us out on Facebook and Twitter.

Our email is



[Begin Clip]

Kim Foxx: The defendants who we have in our courtroom, a good majority of them have also been victims of violent crime. We’re talking about the same people. And our affection for victims in the prosecutor space is this false affection because next week they might be our defendants. And if we don’t recognize that tension and recognize how they got there in the first place and recognize the failing schools, concentrated poverty, all of the risk factors are what perpetuate this cycle and only look for the solution in the responders, we will always fail.

[End Clip]

Josie: Hi everyone. I’m Josie Duffy Rice and this is Justice in America. Each show we discuss a topic in the American criminal justice system and we try to explain what it is and how it works. Thank you everyone for joining us us today. You can find us on Twitter at @Justice_Podcast, you can like our Facebook page, just find us at Justice in America, and subscribe and rate us on iTunes, we’d love to hear from you. So, at the beginning of the episode you heard a clip from our guest for today, Kim Foxx, she is the State’s Attorney for Cook County, Illinois. State’s attorney is just Illinois’ way of saying district attorney or head prosecutor. Kim Foxx is the head prosecutor for Cook County, which includes 135 separate municipalities, including Chicago. It is the second largest county in America and has a population bigger than 28 states. So, she has a lot on her plate. She is the first black woman to run the prosecutor’s office in Cook County. She was elected in 2016, and replaced the former state’s attorney who had, to put it lightly, a disappointing record on criminal justice reform. And her election was a major victory for the criminal justice reform movement, and for progressive and racial justice organizers on the ground in Chicago. Kim Foxx joined Clint and I from her office in Chicago to discuss her past two years as state’s attorney—what’s been successful, what has been challenging, what obstacles she has faced and how this job has changed her perspective. We’re so thrilled to feature her as our guest today so stay tuned.


Josie: Thank you so much State’s Attorney Foxx for joining us today.

Kim Foxx: Thank you for having me, it’s an honor to be on.

Josie: Before we get it into the kind of current work that you’ve done as state’s attorney and that you’re working on, I wanted to hear what you had to say about what made you want to run for DA.

Kim Foxx: Yeah, so I served as an assistant prosecutor in this office for 12 years, started in 2001 and I had focused my career primarily on child abuse and neglect cases. So I’d been an assistant public guardian representing kids in the foster care system and had become really frustrated by the process by which children were being removed from their parents and placed into foster care. It was a system that was overwhelmingly dominated by people of color, largely poor people of color, who we were charged with acting in their best interests, but were navigating a system that really didn’t own the other failures that saw families coming into care. And I thought, because a lot of the kids who I was representing as their lawyer had similar backgrounds to mine, they were either coming from public housing, had been on public support, had a family member who was incarcerated, a family member who had mental health challenges. And there were lawyers like me and others who were making decisions on what was in their best interest, many of those folks having no idea of what those interests were or how to even navigate that. And as a guardian, you were responding to the petitions that were filed by the state. The state’s attorneys made the decision whether to remove someone from care. And so I was always responding. It was already late by the time that I said, ‘Hey, this kid should not have been removed from their home.’ They were already removed. And so I wanted to be in the prosecutor’s office to have some measure of control, to be able to say, ‘No, we shouldn’t file this case. This kid shouldn’t come into the system.’ And we figure out what to do later. And so I applied to be a prosecutor in child welfare and I did that for four years. Having done it three years as a guardian, four years as a state’s attorney, seven years of dealing with like vulnerable children when you’re young and had not yet had my babies, was really trying on my spirit. And so I left doing that and worked in our juvenile delinquency division. And the heartbreaking part about that was the same kids that I was advocating for in their best interest as a guardian or as the stat, I was now charged with prosecuting for delinquent behaviors. So on one side of the building we were talking about their father’s incarceration, talking about their challenges and on the other side of the building saying it didn’t matter they needed to be prosecuted. And that was a tough dynamic to navigate. And I had that deep appreciation, but again, I had colleagues who couldn’t, that didn’t matter to them. Right? They committed a crime, we had to prosecute them.

Josie: Right.

Kim Foxx: And it’s like we don’t care about the other stuff? We don’t care about their beginnings, the origin stories here? And I, you know, I had an origin story and so I did that for a few years and then I left, came back as a supervisor in the delinquency division with a mandate to think more holistically, to have, you know, our people think more thoughtfully about this and became really frustrated with the previous state’s attorney who I would have ultimately run against because I was told that I was not on program, right? That my job was to prosecute crimes. And it was, you know, what does the victim want? What does the victim want? What does the victim want? And it was with this blind notion that victims wanted punitiveness in juvenile court when they didn’t. I mean, they wanted kids to stop doing the things that they were doing, but also recognize that if you gave him a record early, they’d come back in later. So I left in 2013 very frustrated because I cared about the field as a victim of crime myself, sexually assaulted as a child, and wanting to believe using those experiences to be an advocate for someone else that that was a place I could do it, but feeling like I was potentially doing more harm than the good that I’d set out to do.

Clint: There’s so much there and then so much to unpack in there and we appreciate you sharing your story with us and I have so many questions. I want to start with, it’s interesting because clearly you are entering this work and what’s animating so much of the reason you do the work that you do is a profound sense of justice and a rejection of what it sounds like is this sort of false dichotomy of thinking about the context from which a young person comes and how that shapes their trajectory and how that might lead them to situations in which crime takes place. And firstly, the idea that we should only be thinking about what has happened in this specific and singular moment and not considering the sort of larger context of what leads somebody to commit or engage in certain activities that are deemed criminal. And so I’m wondering with all that in mind, if there was ever any reticence for you to enter the field of being a prosecutor knowing the sort of institutional incentives that being a prosecutor often puts on people and and did you fear that you might not be able to carry out the sort of justice oriented work that you wanted in that sort of context?

Kim Foxx: I think the way I came to the work, right? Coming specifically to do child protection, so I was a lateral hire from the guardian’s office, choosing to do that type of work. I didn’t really concentrate on the bigger, bigger pieces. Right? When I decided that I didn’t want to continue in child protection or couldn’t continue in child protection, kind of just from my own space, I also knew I didn’t want to work at the felony trial division. And I was in a prosecutor’s office like this in Cook County, there was a currency placed on being in the Felony Trial Division 26th and California. That’s where the prosecutors go. That’s where the real work was. I never wanted to go there. I never wanted to go there because the overwhelming majority of the defendants and the victims were black or brown. We had it, in our gangs unit I had to go over there for trial, they’d have a wall and on the wall were pictures of gang members who had been prosecuted with like little sayings under their names and they were all black and brown. And yet the staff, the attorneys, there were very few attorneys of color who were in the Felony Trial Division. I mean you’re talking about a division that has 400 attorneys, you know, a senior level attorney, what we would call a first chair at one point over the course of like a number of years, there were only one at the most three black people who sat in first chair positions. And so I think for a lot of people who work in this office, there was always that 26th street was the place that was coveted for some and disheartening for others. And so my reticence around that work didn’t come coming into the profession because again, I came in with the premise that I wanted to use the power of the prosecutor’s office and that discretion, the power to say no as opposed to the power to say yes and I’ve thought at the felony trial level that that power wasn’t about saying no. It was about the churn and the racial dynamics and again having grown up in this city, I could see myself in the people who were coming there. Quite frankly, I would say to folks whenever I would go to the courthouse on 26th and California, I would look for people that I know because it would not be unusual for somebody I went to grammar school with to come through. I once had in child protection, a classmate of mine who we were taking her children and we were in third grade together. And I remembered when she told me then that she had been abused and here we were, some 20 some odd years later and her children were being taken from her because she had suffered some mental breakdowns. That was hard enough. I didn’t want to be a part of watching that on a daily basis at the criminal courthouse. And so I rejected that. And when I ran for office, you know, that was what was used against me by my predecessor who believed that her bread and butter as a prosecutor was the number of people that she had locked up. And she had said, ‘Well, Kim Foxx is only a juvenile prosecutor.’ That was by choice because I believe that the power of the prosecutor in the juvenile space to think about rehabilitation and redemption and the potential of the young people who had been charged with crimes could deflect them away from graduating into the adult system. And so that reticence was, I did have a choice, whether I wanted to be a part of it and I said no. When I decided to run, what I had to own however, was it’s all mine now. My name is on the door in the juvenile court and at the Felony Trial Court. There’s not a place where the churn isn’t happening that my name is now attached to.

Josie: Yeah. I was going to ask you this exact thing, which is, you know, for someone who wasn’t trying to engage in the traditional prosecutorial practices, which as I know very well and as you obviously know, were very common in your predecessor’s office. What does it mean to have your name on the door? What does it mean to not want to be, you know, at 26th and California now you run 26th and California? You know, what, what kind of challenges does that present and what has been, I guess even surprising about it?

Kim Foxx: It’s overwhelming sometimes I think is the short answer because it is so vast, right? We are the second largest prosecutor’s office in the country. We have the largest single site jail in the country. The amount of people who come in and out of our justice system is vast on any given day. So just the scope of the operation, um, can sometimes be overwhelming. You know, the main court is in the middle of the city, I’ve got five other courthouses throughout the county. We serve 5.4 million people. And so there’s kind of the gravity of the work, you know, and then there’s the granular of the work that it’s sometimes you have to like brace yourself for. And you are inheriting an office that has operated under a certain way for a hundred years. It wasn’t just my predecessor it was those who came before and an electorate who voted me in are still being told about criminal justice issues from a place of fear and not reform. Right? And so there’s a lot of fear mongering that happens, you know, people want to tell me very quickly what’s going to hit the news that will get people afraid. So bond court reform for example. I’m very proud of the work that we’ve been doing as a county on bond reform. When I left the state’s attorney’s office, I went to work for the president of our county board and that’s where I got to like flex my muscles on, okay, what are we doing about driving down jail populations? I got to work on raising the age litigation in Illinois. I helped pass the automatic transfer legislation that again stopped us from sending juveniles into adult courts early. I got to do that as an advocate before I became a prosecutor. Now I’m here and what more people want to talk about in the office are not the policy initiatives and the long term impact. It’s the narrative around crime, particularly in Chicago where our violence numbers have been so high. You have the president who is talking about Chicago and the violence and the people who are accused largely are black and brown, the victims are largely black and brown and lost in all of that noise is what are the impacts of the systems and the failures? And what we hear is, ‘That person scares me.’ I do more time defending reform than I do pushing it.

Clint: Do you mean publicly or in an institutional way? Like are you having to convince people that work in your office that this is the right thing to do or is do you have to both convince the people in your office and convince the sort of larger electorate?

Kim Foxx: Both. I have to convince both. Right? Less so in the office. The people who work here and do this work, will tell you, if they’ve done it for a number of years, we’re seeing the same people come in and out and they will acknowledge that some of our practices haven’t worked and so they’re open to new ideas. You know, our policy of not prosecuting people for driving on suspended licenses, for failing to pay tickets. My attorneys came to me and said, ‘Listen, we are overwhelmed in traffic court being glorified debt collectors. These are poor people who aren’t ever going to pay their tickets. So we just stand in court processing.’ So we stopped that process. You know, morally it was the right thing to do. But pragmatically it was the people from inside my office who said we should stop doing that. In the larger community, the narrative is ‘You don’t care about crime.’ Driving on a suspended license is not a public safety issue. You know, gun violence in Chicago is a public safety issue. When I raised the threshold for retail theft in Illinois, in Cook County, I took a lot of heat outside of the office. Inside the office my attorneys knew we were spending a lot of time on retail theft cases cause the threshold was only $300. My attorneys said ‘If I could spend more time on violent crime, that would be great, but I’m spending my time on these low level offenses.’ So when we raised that threshold, and I said, ‘Listen, we’re not going to do this. We’re going to raise it to $1,000, let’s be more in line with our neighboring states.’

Clint: Where was it before?

Kim Foxx: It is in Illinois, under Illinois statute is $300. Just $300. In Indiana, it’s $750 in Wisconsin it’s $2000, in Minnesota it’s $1,000, in Missouri it’s $700. I mean, we share the same threshold as Florida.

Clint: So just to get a sense of what the implications of that are, because I think part of what we think of a lot about on this podcast is the sort of arbitrary nature of what is considered criminal and not criminal. So if somebody were to steal a group of items that were worth $299 and someone else were to steal a group of items that were worth $301 those two people would experience their engagement with the criminal justice system in completely different ways?

Kim Foxx: Exactly. One would have the option of a misdemeanor, which would get them supervision, which would allow for their record. You know, should they complete their term to no longer exist. You don’t have to actively go for the expungement, it’s discharged. The $301 person would be subjected to a felony, could get probation, but that felony conviction has implications on one’s ability to get a job, to get housing, to get scholarships to get into schools. The burden of the felony conviction is very real and onerous, even if it’s for the lowest level of felony, right? A class four felony and a class one felony are viewed the same on an application of “Have you ever been convicted of a felony?” You don’t ever ask the degrees. We ask have you been convicted? So we literally are treating the person who stole $301 worth of merchandise to potentially someone who may have raped someone.

Josie: You know, so much of what you’re saying is not something that prosecutors ever talked about, any prosecutor, really before 2015, 2016 right? I mean, it’s only been a few years, but you were at the forefront of this movement of this progressive prosecutor movement. And I was thinking today that it’s funny because I think of you as just having been an office for a few years, but you’ve actually been there much longer than a lot of other progressive prosecutors. I was hoping you could talk a little bit about your race and the election and the months that were leading up to it. You know, the Laquan McDonald tape came out, I know that November before your March primary, and I remember kind of watching and reporting on Chicago in those months and what was happening was very extraordinary really. And I’d love to hear from you and let our listeners know what your election kind of looked like and how it shifted the paradigm of how we think about prosecutor elections?

Kim Foxx: Sure. I decided to run for the office in the Summer of 2015 and again, I’d spent the previous two and a half years working on criminal justice reform issues, talking about the racial disparities in the justice system, fashioning the county’s response to our overcrowded jail. You know, when I started working for the county board president we have 10,500 people in our jail on any given day. And I was tasked with bringing stakeholders together to get those numbers down. And what I realized in doing that is that the previous state’s attorney was an impediment, right? She wouldn’t come to the table. We could get the sheriff, we could get the county board president, we could get the clerk, we couldn’t get the state’s attorney, right? We had the Supreme Court of Illinois engaged in the conversation. The one person who had the power, again, the power to say no or power to say yes to move this issue, said, ‘Bond issues are not my concern. That’s for the judge to decide.’ And so I realized, you know, if we were going to have any real impact in the justice system, we needed a prosecutor who believed that they have a responsibility for moving reform. And so, you know, it’s funny when you say, you know, on the, at the forefront of this revolution, it didn’t feel revolutionary. It felt actually very lonely because in Chicago all we had known is “tough on crime,” right? The language about it, right? The suburban folks want to know that, you know, the criminal element isn’t coming out into our area. People in the city, we were actually talking to people in the neighborhoods who were impacted by crime and violence. We were actually saying, ‘What do people in these neighborhoods think about the prosecutor?’ And that was important to me. I grew up in the projects. I have family members who say, ‘I don’t trust law.’ You know, ‘I can’t believe you work there.’ And I knew that they didn’t trust it and I had to own and speak to that. So our initial campaign was about this holistic approach, but my audience wasn’t the suburban electorate. My audience were people who were actually impacted by the justice system. So I went and talked to people in neighborhoods about, you know, ‘Listen, we need to do something about bond reform.’ The grandmothers, the mothers who were putting up all this money for their grandsons and sons to get out of jail so that he could keep his job. Like that mattered to them. But people didn’t really pay attention to the state’s attorney’s race. When I was running, they were like, ‘We like Lisa Madigan,’ who was the attorney general at the time. And I said, ‘Well, me too, but that’s not who I’m running against.’ They didn’t even know who their prosecutor was. They didn’t know.

Josie: Right, right, right.

Kim Foxx: So after, you know, three or four months trying to make the case of why holistic prosecution made sense, Laquan McDonald happened. It happened right before Thanksgiving, and the issues of police accountability and the relationship between community and police came to the forefront. Then it was, well, who’s job is it to hold the police officer accountable? It’s the prosecutor’s job, and I give great credit to the activists on the ground in Chicago, whether it was Assata’s Daughters, BYP100, Black Lives Matter, there was this collective movement by young people to say, ‘We know who’s responsible.’ They weren’t marching for me. They were marching for accountability from my predecessor and that changed the whole game. Because I think in as much as I was beating the drum, I was a first time candidate, not particularly well funded, talking about a system that people hadn’t paid attention to in Chicago, perhaps like they had been in Baltimore, in Ferguson and in other places. So after Thanksgiving of that year, the ball game changed. I became a contender and again, not because of my steadfast efforts, I was in it and I was fighting but the efforts of the activists on the ground.

Josie: Right.

Clint: I’m interested in hearing more about this because obviously your record speaks for itself and you’ve done so much important work in your city for so long. But as you said a lot of what opened up the possibilities of you becoming the DA was the sort of larger Black Lives Matter movement and, specifically in the context of Chicago, the work that young black and brown activists were doing both before and after Laquan McDonald. And I’m wondering if now in your position as the DA, has your relationship to these activists change? Cause you now, as you’ve talked about, you are representative of the institution, the institution that, you know, for so long so many activists and many activists continue to push against. And so I’m curious how, how, if at all, your relationship to activism and advocacy and activists on the ground in Chicago has changed or evolved as you’ve moved from the outside to the inside?

Kim Foxx: Yeah. First I think there’s a reality that I’ve had to accept, you know, the cognitive dissonance almost of having felt like an advocate before and now being the institution, right? And owning what it means to be the institution. Every day we are engaging in practices that are sending large swaths of our community into the justice system, into penal institutions. A penal system that is not meant to rehabilitate them. I can’t fix it on day one. I can’t change it. And so I’m still a part of it, right? I am now, I own it. Right? And whatever well intentioned I am and however urgent I am in trying to find an advocate policies that fix it every day that the fix isn’t in, I’m still part of a failed system. Right? That’s a hard thing. So you asked me, how do you own the name on the door? I put that out there. So I think for the activists and advocates the relationship changes because they are right, I am the system. I don’t shirk from that. My feet should always be held to the fire. I mean, listen a day after the primary, you know, some well respected activists said, ‘Look, we didn’t vote Kim Foxx in,’ right? ‘We voted Anita Alvarez out and we’re going to hold Foxx accountable.’ And so for me, that’s right. I get it. So that relationship has meant that we meet with groups, a couple of different groups on a quarterly basis who hold us to account on what are we doing around juvenile justice? What are we doing around our drug policies? You know, there’s a group that’s been very frustrated with, you know, how we review drug cases that come in. We meet with the sexual assault and domestic violence community on a regular basis. What it meant for me too though was it a lot of what I found that we had these groups who were specialists in what they knew about, that maybe I didn’t know about, was let’s make the data available. Who are we? What do we do? It’s why we released all of the raw data going back to 2011. We will always release our data. And then we did, the first of its kind, Hacking 4 Justice, where we invited activists and advocates and volunteers in the tech community to train them on coding so that they could go through our data and then come to me so they mine our data, they look for what they want to push me on and say, ‘Okay Fox, we’ve gone through your data, we noticed that there are charging disparities in how you charge African Americans in domestic violence situations who are victims versus this.’ And I may not have known about that. Right? I’ve got my policy agenda that I’ve said, but if the advocates on those issues don’t have the data to confront me with, I may not confront it. And so that’s how I’ve tried to bridge those relationships by saying, ‘You know, how you hold me accountable, I expose everything that I am to you, give you the tools to pick me apart, let’s sit at the table and talk about how we find solution to that.’ And I think that’s worked fairly well.

Josie: You know, I think the, the opposite is also true, right? That we’re talking about running for prosecutor and winning a race without having the endorsement or the tacit support of the police unions, of the sort of like law enforcement institutions that have so long kind of dictated who gets these sort of positions. And instead the people that had such a large part in ushering you into office, like Clint said, where these activists, these grassroots activists, and like you said, people who had actually been impacted by the system. So also speaking to the other side of that, which is how does it change your relationship with these bigger law enforcement institutions in the opposite way?

Kim Foxx: Um, I didn’t actively, I did not seek the endorsement from the police union when I was running and I did not believe that the prosecutor was accountable to the police union. I come from a city that has a fraught relationship between the community and law enforcement. I am a part of law enforcement. I have a badge, you know, with my name on it. I am a law enforcement official. The people who live in these communities, you can’t have, I just heard this, someone said this to me earlier, you can’t have safe communities if people don’t trust law enforcement. And public safety requires that we build that relationship. If I am more concerned about having others in law enforcement validate me than the people that I serve, I’m already going to fail. And so, you know, it’s been a tough relationship between myself and the police union. It’s been very difficult. It’s been a very difficult relationship between myself and the police union. And it’s not something that I take pride in, but I don’t owe them anything.

Josie: Right.

Clint: So you’ve been big on the importance of data generally. And, and you’ve talked a little bit about this, what do, if we can get more specific, what have your initiatives around data looked like and how has this data been collected and how is it released and do you plan on doing it for misdemeanors in the same way that you do for felonies? And I say this in the context of a recognition that so much of what we, there’s so much we don’t know about what is happening in police departments because there’s such a profound lack of data. There’s so much that we don’t know about what’s happening in DA offices. And I’m wondering how you think about the role that data plays in how you go about following up on the sort of promises of transparency that you ran on?

Kim Foxx: Certainly, I mean, when I was an assistant here, I remember when I worked in juvenile, we used to collect monthly statistics on charges that were filed, how many cases went to plea, how many cases were dismissed and we did it by hand on these handwritten sheets. We turned it in at the end of the, like for a monthly stat. And I had assumed when I became the state’s attorney that somewhere someone had kept those numbers, right? And I said where’s our monthly data for juvenile? And someone said, ‘We don’t keep that?’ And I said, ‘Well, yeah we did. I used to fill out the sheets.’ And they said, ;Oh, we don’t have a place for that.’ And that really bothered me.

Josie: They were just throwing them out? That’s a lot of wasted energy.

Kim Foxx: It was a exercise I think to look like we were doing something? But it went nowhere. So I thought to myself, well, if there were a way, and I had made the internal commitment in my transition report to have our office be the most transparent office in the country. I had seen some work that Vera [Institute of Justice] had done in Milwaukee, in the Milwaukee DA’s office and how looking at data helped them look at their charging practices and the like. And I thought, this was before I ran, ‘Oh, I want to do that.’ Right? Because people lie, numbers don’t. You can see trends, you can, you know, we’re not hiding behind anecdote. That’s how you get so much bad policy. And criminal justice is driven by anecdote. And so when I realized that we didn’t have a place for it, I then said we need to hire a chief data officer. So we hired our first chief data officer and then I said what I would like to do, cause we also get a ton of FOIA requests, Freedom of Information Act requests about cases. And I said, wouldn’t it be great if people could just go get it themselves? And my chief data officer, Matthew Saniie, he said, That’s unheard of. It’s unheard of that someone would be able to just go into a DA’s office and pull their information.’ And I said ‘Great. That’s why we’ll do it.’ So what we did was we looked at our case management system. We have a case management system for adult felonies. We do not have one for misdemeanors. And so to your point, Clint, we don’t track misdemeanors because we don’t have the capacity to, and it’s unfortunate and we’re working on it because we have in Cook County, over 200,000 misdemeanor cases that come through every year. And it is an absurd number of misdemeanors. Misdemeanors are direct filed by law enforcement, so we don’t have oversight into them. And we estimate that about 50 percent of those cases get thrown out. And that’s our estimate. And what we would love is to be able to have the data to show which of those cases are being thrown out. We have an idea, so that we can work with our law enforcement partners and say, ‘Perhaps you should not bring these in the first place?’ We can make the case to our county board about funding, why are we funding this? You know, it makes the case to say stop, but on the felony side it was, let’s use our existing data capabilities, our case management system, and how do you turn it from inside out? How do you de-identify, you know, we don’t want to put people’s names and identifying information on there, so we went to de-identifying who the people were, but we wanted to get every case that had been filed, every sentence, we wanted race, we wanted gender. All of those things that we kept, that we had, we had that information and mo