Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

The Appeal Podcast: Policing Public Health

With Leo Beletsky, Appeal contributor and Associate Professor of Law and Health Sciences at Northeastern University.

Getty Images: boonchai wedmakawand

The Appeal Podcast: Policing Public Health

With Leo Beletsky, Appeal contributor and Associate Professor of Law and Health Sciences at Northeastern University.

Prescription Drug Monitoring Programs (PDMPs) have exploded in popularity. In 2000, thirteen states used PDMPs; today, they exist in every state and Washington, D.C. These programs are ostensibly designed to respond to the opioid crisis by monitoring prescribed drugs and preventing abuse and doctor shopping. But increasingly, critics say, they are interfering with legitimate healthcare. Privacy advocates and some medical experts have demanded that states slow the rush to implement PDMPs and ask hard questions about law enforcement’s involvement in personal healthcare. Today we are joined by Leo Beletsky, Appeal contributor and Associate Professor of Law and Health Sciences at Northeastern University.


Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter pages and as always you can find us on iTunes where you can subscribe and rate us.

State PDMPs, or prescription drug monitoring programs, have exploded in popularity in the past few years going from just 13 in 2000 to 51 or in all 50 states and DC by 2019. Spurred by the rise of the opioid crisis these systems are in theory designed to monitor prescribed drugs and prevent abuse and doctor shopping, but increasingly these systems are handing data over to police departments often without a warrant and critics say causing a chilling effect on healthcare leading privacy advocates and some medical experts to demand we press pause on the rush to implement PDMPs and ask hard questions about law enforcement becoming more and more involved in our personal healthcare. Today we are joined by Appeal contributor and Law and Health Professor at Northeastern Leo Beletsky to discuss.

[Begin Clip]

Leo Beletsky: Now we say this is an opioid epidemic. Well to control epidemics when need surveillance, we need data and so a lot of times there is this kind of weird blurring of what public health and criminal justice or punitive procedural approaches try to do and that’s definitely true in the case of prescription drug monitoring programs, which under the guise of public health surveillance are really about discipline and control and punishment.

[End Clip]

Adam: Leo, thank you so much for joining us.

Leo Beletsky: Thanks so much for having me.

Adam: You are a leading expert, if I could say so, on what’s called PDMPs or prescription drug monitoring programs. This is obviously a criminal justice and abolition podcast, people listening may think what does prescription drug monitoring have to do with criminal justice and issues of surveillance? So before we dig into the weeds on this, can you give us a quick rundown of what PDMPs are and how popular they become in recent years?

Leo Beletsky: Sure. Prescription drug monitoring programs typically make people’s eyes glaze over when you mention them and with good reason. It’s a, you know, very kind of niche in the weeds system and a set of topics related to tracking of prescription medications. Surprisingly though there are lots and lots of intersectionality between prescription drug monitoring and other kinds of monitoring that our government engages in and the reason for those parallels is because drug policy, both on the prescription side and on the illicit market side has long been a province of criminal justice. So starting at the dawn of the 20th century or so, government has gotten more and more into the business of trying to control and suppress unauthorized access to certain kinds of medications and certain kinds of substances that are psychoactive. So, you know, we had the era of alcohol prohibition that was also coincided with a rise of laws on cannabis, opioids, cocaine and other substances. And so this whole realm of government regulation is very much focused on kind of a commodity basis. So these commodities were increasingly seen as dangerous or they were tied to groups that were seen as devious or deviant. You know, there are a lot of racial elements. And so as more and more government attention to these products began to take hold, the regulation of those products shifted from what had been primarily kind of a self regulating area by doctors and pharmacists to increasingly being rooted in criminal law enforcement. And so this is a time when the first prescription drug monitoring programs developed. They were originally simply requirements that when a prescription for certain drugs is issued that there’d be a duplicate form that gets filed with the government. And this dates back, you know, again early days of the 20th century, the first formal prescription drug monitoring program worked in California in the 1930s and then as the technology of surveillance has changed, that has also influenced the way that prescription drug monitoring is actually done in the sense that you know, in 1960s and seventies you started to see programs transitioning from a paper based system to electronic based systems. And actually the biggest Supreme Court case about prescription drug monitoring that is called Whalen, it dates back to the 1970s when New York started to conduct its prescription drug monitoring on electronic tapes versus on paper. And so physicians became concerned about this sort of level of, of intrusion. Physicians and patients both. And the Supreme Court basically said, you know, that this is something that, because it is in furtherance of government’s sort of rational purpose of minimizing diversion of medications and minimizing your addiction and you know, that these concerns, these privacy concerns, were not actually based on any particular documented injury at that time. The Supreme Court basically gave a green light to prescription drug monitoring using electronics surveillance tools and probably without meaning to do so but it really opened the door and set the foundation, legal foundation for what evolved from being a pretty small and obscure set of programs, in about a dozen states up till the late 1990s there were only about 13 states that had these formal prescription drug monitoring programs. And in the 21st century, since about 2000 that number went from 13 to now 51 programs. So all states and DC now have a prescription drug monitoring program.

Adam: And it was like 39 only two years ago, right?

Leo Beletsky: Right.

Adam: So it’s really kind of exploded. And, and what’s, what’s curious about this is just how little media attention it really gets. One of the things I was surprised by was the suddenness with which it happened obviously fueled by a broader issue of the opioid crisis. Some people call it the opioid epidemic, which of course it doesn’t really quite meet that definition. And I think I want to really establish the stakes here because I think most people listening, like you said, some of this may seem somewhat obscure, rarefied, but it really does impact everyone cause it is really just a dragnet surveillance system. So if you have a prescription drugs, which is pretty much anyone listening, your data is part of this system. And the ACLU is obviously very involved in this, your work at Northeastern is very involved in this, what are the privacy implications, uh, broadly speaking?

Leo Beletsky: Well, the reason why this is something that, you know, we should be talking more about is that it’s not just that the number of the prescription drug monitoring programs has completely exploded in the context of the, you know, overdose or the opioid crisis, whatever you want to call it, it’s also that the scope of the programs and the policies that support them has also expanded substantially in the context of the crisis. And the story is basically that people’s narrative around this crisis is that essentially doctors were handing out prescriptions for opioid drugs willy nilly, handing them out like candy and that there were lots of doctor shoppers, people who are going from one doctor to another kind of complaining about either feigning back pain or other kinds of conditions that would warrant an opioid prescription or if they had a legitimate, you know, pain need they would use that to, uh, obtain drugs from multiple prescribers or multiple pharmacies. So this narrative around, you know, what’s causing the crisis, which is in many ways, either partially correct or you know, not really correct in some ways, it really drove a lot of the policy attention and policy will to basically reach for this existing tool. This tool existed. It was on the books in a bunch of states and there was legal jurisprudence that said, you know, this is a space where government can essentially have a lot of latitude. And so those things, the desire to quote unquote “do something” about this major public health crisis combined with this fertile ground on the legal and the policy side, made it possible for legislators to reach for this tool and implement, you know, prescription drug monitoring programs and kind of, you know, do a victory lap and say, ‘yo, we actually, you know, responded in a very decisive manner to this crisis by creating this surveillance system.’ And there’s this, you know, from a linguistic standpoint, there’s this sort of marriage between what people started saying, ‘well, we can’t, you know, arrest our way out of this problem, we need to address it as a public health problem and public health does rely on surveillance.’ You know, public health surveillance is a, is a major sort of element of effective public health responses to various emergencies because we have to, in order to mount an effective response, you have to know what the problem is. And so public health really embraces that idea of surveillance. And in that way, actually, you know, maybe this is a little bit of a linguistic side note, there is not as much of a distinction between public health and criminal justice as people assume. The legal term for public health power of government is police power. And public health does rely on a lot of coercive tools such as quarantine for example and this is where the epidemic language actually starts to materialize into real punitive of course, of policies. You know, we say this is an opioid epidemic, well to control epidemics, we need surveillance, we need data. And so a lot of times there is this kind of weird blurring of what public health and criminal justice or punitive procedural approaches try to do and that’s definitely true in the case of prescription drug monitoring programs, which under the guise of public health surveillance are really about discipline and control and punishment.

Adam: Right. So it seems like there’s a push now both in terms of how how drugs are covered and how their  legislated about like both in the media and how policy makers look at this to move away from a shift from looking at it like a criminal enterprise to a public health issue. Your argument is that perhaps the line is not as clear as people want it to be, which is a descriptive statement. Could you maybe venture and make a normative statement that perhaps the line should be clear?

Leo Beletsky: Well there is a lot of discourse in public health about how sort of a critical approach that balance individual liberties and privacy interest in confidentiality with this more population based, you know, utilitarian, if you will, approach of, you know, having the public health be the main goal. If you’re oriented towards public health, to protect the health of the many, a lot of times the idea is that you can sacrifice the liberties of the few, right? And so there’s this tension. So done right public health is successful if it actually is, you know, respectful of privacy, confidentiality because guess what? If you construct public health surveillance efforts in a way that disparages stigmatized people or punish people, then you end up not only hurting individual rights, civil liberties and so forth, but you end up actually hurting public health efforts in the long run. So, you know, just as an example, one of the most recent sort of vivid examples of this was how quarantine efforts were conducted in places that were hard hit by the Ebola epidemic last year. And so, you know, cities went around basically quarantining whole neighborhoods and doing so, you know, with actual force. So there are soldiers, you know, trying to keep people from leaving certain areas. What ends up happening is that, you know, a lot of times if people have Ebola in their house, you know, if they know that their house is going to get basically, go on lockdown, what happens is they don’t report and as a result they don’t seek help, as a result, the person ends up progressing their disease, they end up infecting many more people than they need to. In other words, it ends up backfiring and the similar set of considerations is certainly import here when we talk about prescription drug monitoring programs in the sense that if it’s not done right, you end up doing more harm than good, which is something that, you know, we can talk about sort of the unintended consequences. The one thing that I did want to mention is that, you know, you said I’m kind of top expert on PDMPs, there’s an interesting dynamic here which is that there are many, many people who are experts on these systems and legislators who have become, you know, really interested in these systems. The conversation that we’re having is actually an anomaly in the sense that if the mainstream narrative around PDMPs unequivocally positive and for most people who are familiar with this issue, which there are many, there’s an entire academic center of Brandeis, for example, that’s a center for excellence on prescription drug monitoring. There is a large corporation called Appriss that almost is the, uh, has a monopoly on PDMP systems design and implementation and they also, this is maybe indicative, they also do a lot of, you know, criminal justice systems, predictive risk scoring and stuff like that. And so this is a niche issue, but the critical approach that we’re discussing, the critical perspective that we’re discussing is even more obscure and underappreciated.

Adam: Because it seems like, you know, intuitively I think this would strike a lot of people as being like, again, just intuitively, maybe not the most intellectual rigor, but it would strike them as being somewhat dystopian in many ways, namely because it assumes a ton of good faith on the part of authorities. And I think that historically, especially people who are on the political left, understand that things that may have quote unquote “good intentions” will end up being used for other purposes. This is something, of course we saw with a lot of the post 9/11 security apparatus. This was a huge discussion during the Snowden revelations about mass surveillance. And of course we knew from several of those revelations, especially British intelligence, you know, did things that were pretty gross in terms of, you know, sexual extortion, using social media to manipulate people, things that were sort of more militarized and more sinister. And I think that, you know, the sort of, ‘oh, I’m not doing anything wrong or I’m not abusing prescription drugs so I have nothing to worry about,’ this is probably where it’s sort of the more ACLU side comes in and says that’s not really the point. The point is you’re creating another mass surveillance system without, at least it appears to me, not really a ton of public debate or input. And I think that’s really kind of the thing that it appears that people like to some extent, you know, what you’re doing, the ACLU are doing is saying, you know, ‘maybe we should pump the brakes on this and talk about what are some of the negative side effects aside from surveillance’ you, you talk about public health implications, you write a lot about the chilling effects on providers and perhaps deterring people from seeking pain treatment and drug treatment. Can we meet, can we talk about some of the downsides, both, not even necessarily the downsides that are sinister in motive but that are resulting from creating a chilling effect in terms of people being scared of being flagged on the system?

Leo Beletsky: Yeah, absolutely. Just as you said, the, the story here is one where a source of major public concern where the 9/11 era, it was national security, in the overdose crisis it’s public health and patient safety. Under that banner what policy makers do in terms of formulating, you know, policy prescriptions, the responses that they come up with, are oftentimes more about the theatrics of policy making and putting up a performance of decisive action. And what happens in that context is a lot of times those responses are knee jerk responses that are not very well designed and they’re, you know, in some ways like the principles of design thinking are not, are not invoked here in the sense that the question should be, okay, what is it that we’re trying to accomplish here? If we’re trying to accomplish a reduction in overdose deaths, let’s set that as a goal and work backwards, you know, let’s, let’s kind of think through how these policy solutions, how these policy prescriptions are going to impact what it is that we’re trying to accomplish. And with the prescription drug monitoring programs, there were essentially a number of leaps of faith that people engaged in when they said, ‘oh, this is going to deter and diminish what are called aberrant behaviors or you know, sort of deviant behaviors by prescribers and patients and therefore we’re going to decrease overdoses as a result. So it’s a little bit of like a trickle down ideology. And it turns out that actually those leaps of faith have not materialized. And so there are two kind of major critiques here. One is that this, you know, these systems don’t actually accomplish what they’re sold to do in the sense that they’re not addressing of the public health crisis that we have. They may result in reduced prescribing at least as that prescribing is tracked in the system but they don’t, that doesn’t end up materializing into or translating into overdose deaths. So that’s, that’s one major critique around kind of like are we designing these systems to do what they’re supposed to do? And then the second part of the issue that your question was addressing is, okay, well if it’s not resulting in intended consequences, then is it resulting in unintended consequences? And here the answer is a resounding ‘absolutely.’ And, and those unintended consequences involve privacy and confidentiality that you mentioned but they also involve changes in the ecosystem for health access to various substances that are tracked by the system that include opioids, but they’re not exclusively opioids. So prescription drug monitoring programs track what are called controlled or scheduled substances. So it’s not all prescription drugs, it’s just those drugs that are scheduled under the Controlled Substances Act or, or similar legislation on the state level. So the Federal Controlled Substances Act, as many listeners will know, tracks, there’s five schedules. Schedule one is drugs like heroin, LSD, psilocybin, absurdly cannabis. Scheduled two are drugs like fentanyl, cocaine. So these are, you know, sort of highly addictive. And I guess theoretically, you know, sort of dangerous drugs that do have a medical purpose and then it goes down from there. So, so the federal schedule then gets translated into state law through the State Controlled Substances Act. And that’s what prescription drug monitoring programs anchor on. So they basically say we’re going to reference the state schedule and track all of the like schedule two to five or  schedule two to four drugs that are prescribed. And the reason why the Dragnet surveillance moniker is applicable here is because schedule two through five drugs are your antidepressants, your pain control medications, things that you don’t even kind of think about that include testosterone for example. So if you’re going through gender transition, your testosterone prescriptions are going to be tracked by the prescription drug monitoring program as a side effect of the fact that at some point metabolic steroids became scheduled because they were being diverted and misused by people, I guess, you know, engaging in like bodybuilding or performance enhancement. And so because that drug is in the schedule, it’s tracked by the PDMP. And similarly, you know benzodiazepines. So if you’re depressed, your prescriptions are tracked by the PDMP. And what that means is that anyone who has access to this system, and this is a, you know, a government system, it’s a government database that’s available to a large number of kinds of authorized users, all of those people can theoretically go in and know your business based on the information in this database. So it just creates fertile ground for a lot of unauthorized disclosure of very private information and possible government abuse of that information in various ways.

Adam: So yeah, let’s talk about that. Cause I think most people when they first hear this, they think, ‘oh well there’s HIPAA so, you know, I’m fine that this is not something that is even legal.’ What is the, I mean obviously HIPAA has exceptions when it comes to law enforcement. To what extent does that run up against these laws? And obviously different states have different standards. I know some states require a warrant, others don’t. Can we talk about how different states are approaching this and which are kind of on the more liberal side as it were in terms of just letting any old Joe sort of look at your information and which have more strict policies on that? So we get a sense of the kind of good, the bad and the ugly.

Leo Beletsky: Great. So the data protections for PDMPs are really all over the map and states have different standards as you said, about a dozen states have a warrant requirement. I guess as a general matter, the level of access for law enforcement for this information is, it shocks the conscience when you first start to learn about it. So yes, healthcare information in general is accessible to law enforcement through court order warrants and other kinds of mechanisms. That healthcare information, you know, is typically not centralized in databases that are, you know, essentially at the fingertips of law enforcement. And that’s basically why prescription drug monitoring programs, which extract healthcare information and put them into a state run database, that’s, I think that’s an important distinction. This is, these are not healthcare institutions housing their own data that someone has to go in and request access to. Right? So those data are protected by HIPAA. As soon as the data flows out of healthcare institutions, institutions that are either involved in provision of healthcare or involved in some kind of administrative function in healthcare, HIPAA basically stops at that door. And so HIPAA no longer applies to any data that’s housed at what are called non-covered entities. So a state PDMP is not covered by HIPAA at all. HIPAA itself has a law enforcement exception, as you mentioned, that is pretty broad and in my opinion you can drive a truck through and it, you know, really needs to be tightened. And people kind of assume wrongly that their data is protected from law enforcement surveillance because of HIPAA. That’s not correct. But I think just from a logistical standpoint, having all of these data kind of collated and centralized to a state system to which law enforcement has a ready portal creates an opportunity for a lot of basically Dragnet surveillance. And a lot of what I think can be characterized as fishing expeditions.

Adam: There’s implications in the trans community for this, especially in states and areas of the country that are maybe not so tolerant. Can we talk about the implications on that? Cause I think some of our listeners would be interested in that as well.

Leo Beletsky: Yeah, I think this is a super interesting and important angle that was surprising to me when I first started learning about this issue. And so there’s been two major recent cases on a federal level relating to prescription drug monitoring programs and law enforcement access to these programs. One was in Oregon and one was in Utah. And in both of those cases, states that had a warrant requirement as a matter of state law, for law enforcement access, received administrative subpoenas from the federal government saying, ‘we want your PDMP data, hand it over’ and the states said, ‘we can’t hand it over, you need a warrant.’ And the federal government said, ‘screw you, we don’t need a warrant, give us the data.’ And so they went to court. And in both of those cases, the federal government successfully argued that the Controlled Substances Act is written so broadly that it permits access to state PDMP data without a warrant. And the cases were not appealed from the circuit level. You know, there was a decision, I guess kind of let it be for now to be a kind of a circuit split situation. And there’s a case percolating now in New Hampshire that asks the same question but under the new Carpenter Doctrine, which relates to, you know, basically Fourth Amendment protections for electronic data. And so there was a little bit of enthusiasm or the idea that Carpenter would provide an extra level of protection for these data. But the reason why I mention this is because in both the Utah and in the Oregon litigation, there were interveners, so people who came forward to participate in these cases from the trans community. So we talk a lot about opioid crisis and how doctors and patients receiving opioids are maybe potentially harmed by these programs and are victims of unintended negative consequences. But these interveners, were trans individuals who said, you know, ‘why should the federal government receive information that could flag me as, you know, my very sort of, the most deeply held or closely held private information about my gender identity as a matter of an administrative sort of function, administrative subpoena.’ And it’s an interesting case study where in many other areas essentially Dragnet surveillance creates these unintended pockets of harm for various vulnerable groups. So, you know, we, we kind of the, the story about how pain patients or people receiving substance abuse treatment, might respond in ways that are deleterious to them and to the public health. But in this case, you know, these are folks who are not receiving any kind of addictive or really ostensibly abusable quote unquote “drug.” And just by the virtue of systems not being narrowly tailored to accomplish their goals, they end up ensnaring folks who, you know, just happen to be getting their healthcare needs met in a way that ends up invoking this, you know, very broadly deployed system.

Adam: And we’re talking about things like testosterone hormone.

Leo Beletsky: Right so testosterone hormone therapy is tracked by the PDMP. And then you know, becomes visible to everybody, including, you know, to law enforcement for no good damn reason.

Adam: Right so in theory some local sheriff can look it up and be like, okay.

Leo Beletsky: Yeah. So and there’s been, I think the case that you were mentioning, there has actually been instances where people going through gender transition who are employed in the police force have had their status disclosed without their consent, by the virtue of their colleagues having access to that drug monitoring.

Adam: Wow. For people who are interested in the subject and want to learn about it more, what are some good sources that they can read?

Leo Beletsky: So I have an article and the Indiana Health Law Review called “Deploying Prescription Drug Monitoring to Address the Overdose Crisis: Ideology Meets Reality” that gives, you know, kind of a broad overview of this and that’s available for free on Social Science Research Network, SSRN, and my colleague Jennifer Oliva has an article on this issue coming out called “Prescription Drug Policing.” It’s coming out in Duke Law Review and Anne Boustead at University of Arizona has an article called “Privacy Protections and Law Enforcement Use of Prescription Drug Monitoring Databases.” And that’s also forthcoming. So there’s an emerging number of critiques of the system and I think the bottom line for me is not to say that, I’m definitely sober to the idea that prescription drug monitoring programs are not going away. So I’m not an abolitionist. I’m a harm reductionist at heart. And I think that there’s a lot that these systems could be used to improve healthcare for people who are receiving prescription drugs. We can use them as a platform for improved decision support for providers, you know, in some ways PDMPs are a response to the fact that absurdly we don’t have a universal health record for patients. We should be able to transfer the data about our prescribing history. But everything else, you know, our data should be portable and private, but accessible to healthcare providers across the board when we receive care under those providers. So in the absence of that, you know, there, the response has been, okay, well let’s just take a very small slice of that and make it available to many more people than really, you know, need this information. So can PDMPs be done right in the sense that they can help coordinate care and improve care for patients? I think definitely. I think that requires a lot of investment and thinking, sort of design thinking about how to configure and calibrate these programs in the best possible manner. That really hasn’t, that conversation just beginning absurdly. And then simultaneously you really need to think about reducing the negative consequences such as PDMPs triggering patient abandonment. If a patient looks like they’re setting off red flags, a lot of times that patient will just be let go by the provider and that’s just uh, you know, a really harmful outcome from the patient health perspective and a public health perspective.

Adam: It seems like the objection to me from a lot of what I’m reading is less so that the system itself is inherently bad or, or dystopian. It’s for lack of a better term, it’s the kind of militarization of it or the policification of it.

Leo Beletsky: Right. And the policification of it in many ways is indicative of the true sort of, not the stated goal but the true goal, which is you know, to track and use it for kind of, you know, just disciplinary and punitive purposes rather than to actually improve care.

Adam: Which is part of a broader culture of making everything a criminal issue, which is not specific just to this. Right.

Leo Beletsky: Right. And it and it really cuts at cross purposes with what people say, which is, ‘well we’re taking a public health approach.’ This is not a public health approach in the true sense of it.

Adam: All right. Well this was a extremely informative, I look forward to following up on your work in this space and if you’re interested in this and much more you can also follow Leo  at his Twitter @LeoBeletsky at Thank you so much for coming on.

Leo Beletsky: Really appreciate it. Thanks.

Adam: Thank you to our guest Leo Beletsky. This has been The Appeal podcast. Remember, we can always follow us on The Appeal magazine’s main Facebook and Twitter page and you can always find us on iTunes where you can rate and subscribe. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.

How A No-Knock Raid in Austin Turned Into a Lethal Shootout

‘There were explosions everywhere ... I had no idea who was in the house.’

Michelle Mildenberg

How A No-Knock Raid in Austin Turned Into a Lethal Shootout

‘There were explosions everywhere ... I had no idea who was in the house.’

In the minutes before 6 a.m. on Thursday, April 14, 2016, an Austin, Texas, SWAT team set up outside of 1002 Morrow Street, #1. The house was a duplex whose two front doors were on the opposite ends of a shared curved entry. The first unit’s rooms were arranged long and thin, with a stairway in the dining room leading to the upstairs bedrooms.

Outside, about  20 officers assembled, with two rows of officers in green uniforms and full-body armor with white letters spelling POLICE lined up at the front and back doors. They carried assault rifles with flashlights attached. Three vehicles set up around the house. A BearCat, an armored vehicle frequently used by SWAT teams, was parked in the driveway. Mounted on top of the BearCat was long-range acoustic device, known as an LRAD, designed to broadcast communications over long distances.

The officers were executing a “no-knock” narcotics search warrant on a high school student who was living with his parents. According to records and affidavits by the Austin Police Department, the SWAT raid was necessary because Tyler Harrell, 18, was a “major drug dealer” who posed a substantial threat to officers.

Nearly a dozen officers knocked down the front door, yelling “Breech,” and another group went around to the backyard where they tossed one flash-bang grenade—which explodes with the intent to blind and deafen its targets temporarily—into Harrell’s bedroom and another into the upstairs hallway. Additional flash bangs went off upstairs and downstairs. As the officers entered the home, they yelled “Police” and “Police search warrant.”

According to police statements filed in court, as the raid began, Commander Lt. K. Pruitt used the PA system to announce their arrival. “Police search warrant,” she said over and over. The group of officers who entered through the front door swept the lower level, covering the dining room, living room, and a bedroom, before approaching the stairs, which led upstairs from the kitchen area and had a small landing at the base. The officers testified that they shouted “police” and “police search warrant” as they swept the home. Downstairs, the  family’s elderly dog was shot, leaving a winding trail of blood

In his bedroom upstairs, Harrell was sleeping when he heard noises downstairs. According to his mother, Linda Harrell, who had gotten up to go to the bathroom, there were loud sounds from the flash grenades and the battering ram used to break down the front door. She screamed and dove under her bed. In later testimony, she said that she thought someone was breaking into the house. Harrell’s father, who often slept downstairs, had already left for work that day and wasn’t home.

When Harrell heard people inside the house, he grabbed his new AK-style semiautomatic rifle, which was already loaded, and ran to the top of the stairs. “Who is it? Who is it?” he shouted. Looking down into the darkness, Harrell fired several rounds from his weapon. (A later search found about 20 shell casings from the rifle.) Bullets hit Officer James Pittman. Another officer shot back at Harrell but missed. The officers inside the house retreated, pulling out Pittman. Someone yelled, “Abort!” The announcements outside stopped. Officers gathered at the doors.

Just a few minutes later, another officer began the announcements again without the LRAD, then with the LRAD. Within five minutes, Harrell and his mother came downstairs and exited the front door with their hands up. (The affidavit submitted by the police says Harrell and his mother came down within “10 to 20 minutes.”) The Harrells said they did not realize it was the police executing a search warrant until the second round of announcements. They were handcuffed and taken into custody wearing their pajamas.

In later court testimony Linda Harrell described her confusion. It had only been 26 seconds from the battering ram to the shooting. “It terrified me. I have never been so terrified in my life. I didn’t know what was going on. There were explosions everywhere, and Tyler came out shooting and then they finally announced later. We had no idea—I had no idea who was in the house. It was terrifying. In fact, it was so traumatizing that I’m still having issues dealing with it.”

Harrell was immediately taken into custody and charged with attempted capital murder for shooting Pittman. He waived his Miranda rights and gave a statement saying that he did not know he was shooting at police but thought they were intruders. He thought perhaps his father, an avid gun owner, was shooting at an intruder downstairs. Both Harrell and his mother would later say that that they couldn’t hear the first round of announcements, so they had no idea that the SWAT team thought they were catching a criminal off guard. (In her initial statement to police just after her arrest that morning, Tyler’s mother said she saw people in “military uniforms downstairs and [she] assumed they were police.” In cross-examination at trial, Linda Harrell said that she was “confused that morning” and “[i]t all happened too fast,” meaning that she couldn’t have seen much detail in 26 seconds.)

The next day, officers recovered the drugs they were looking for: 34.27 grams of marijuana leaf (just a bit more than the legal amount permitted in California) and around 60 pills of Xanax, the prescription anti-anxiety drug, along with related paraphernalia, according to police records. (Harrell was prosecuted for felony drug possession in a separate indictment and pleaded guilty to a second-degree felony.)

No-knock raids—in which SWAT teams arrive with armored personnel carriers and forcefully enter a residence wearing body armor and using flash-bang grenades—have become a signature of the so-called war on drugs. Documents from the Austin Police Department in response to an information request show there were 44 SWAT raids in Austin in 2016 and 84 in 2017—more than one per week in a city that has consistently been one of the safest in the U.S.

In making the case for more firepower, police departments have argued that drug dealers tend to be heavily armed, a stereotype not supported by evidence. In theory, the raids permit officers to sneak up on suspects who might pose a risk to officers or might destroy evidence. They rely on the increased availability of military equipment through special federal programs such as the Department of Defense’s 1033 program. Some agencies also promote a militaristic mindset, instilled in many officers through training programs like those run by “killologist” David Grossman who once did around 100 trainings in two years, glorifying “righteous violence.”

These raids are very dangerous. A New York Times investigation found that between 2010 and 2016, 83 civilians and 13 law enforcement personnel died in no-knock raids. And, often, the deaths occur during raids that yield little evidence of criminal activity. For example, in 2014, Jason Wescott, a Florida man accused of being a pot dealer, was killed by officers who ultimately found less than $5 worth of marijuana in the raid. In 2011, a former Marine in Tucson was shot over 20 times in a SWAT raid, and no illegal substances were found. The county and law enforcement ended up paying the family over $3 million in damages as part of a settlement in which they admitted no wrongdoing. At least 36 percent of the time when executing search warrants for drugs, police do not locate any contraband, according to a 2014 ACLU report. According to the ACLU report, law enforcement correctly predicted the presence of guns roughly half of the time.

Some deaths are collateral damage, like 7-year old Aiyana Stanley-Jones in Detroit who was shot in the head by police during a SWAT raid while she was sleeping next to her grandmother. (The officer in this case was charged with involuntary manslaughter, but, after two hung juries, the charges were dropped.) Others are wounded by gunshots and flash grenades, and cope with post-traumatic stress disorder after the shock and trauma of the raid. Police sometimes shoot family pets.  Police departments are not responsible for cleaning up the mess, paying to repair a broken front door, or compensating residents for any other losses.

Targets of SWAT raids will sometimes attempt to defend themselves. And in some cases, residents who say they shot at police thinking they are intruders are charged with crimes and face prison time or even the death penalty. In Killeen, Texas, Marvin Louis Guy currently faces the death penalty for shooting and killing a SWAT officer during a 2014 no-knock raid. In February 2015, Ray Rosas of Corpus Christi shot and injured several SWAT officers; he was charged with attempted capital murder like Harrell and was acquitted by a jury. Although civilians have been charged with crimes—often capital crimes—after no-knock shootouts, officers rarely are. Myrtle Beach, South Carolina, officers shot and severely injured a 30-year-old man who turned out to possess eight ounces of pot. (The injured man had a handgun and reached for it, but there was no evidence he fired it.) Very few officers have been charged with a crime even when evidence emerged that the victim was unarmed or never attempted to attack.

Seth Stoughton, a former police officer who is a law professor at University of South Carolina and an expert in police use of force, says SWAT tactics are deliberately disconcerting. In an amicus brief for Andrew Cornish, a man killed in a SWAT raid in Maryland in 2005, Stoughton explained how the tactics give rise to situations where people might reasonably respond with force and confusion: “A half-century of experience and work by police departments across the country have resulted in the development of sophisticated tactics that are designed to confuse and disorient the occupants of a building that is being searched.” Cornish, who was alleged to be selling marijuana, was raided in the wee hours of the morning, like Harrell. Police claimed that Cornish approached the officers with a knife. Cornish’s father sued the police for his son’s death and won at trial. The verdict was overturned on appeal because the court found that no reasonable jury could have found the police liable, and Cornish’s father received no compensation for his son’s death.

Before the SWAT raid, Tyler Harrell had no criminal history and had never been arrested although his parents did suspect their son was involved in using drugs and providing them to his friends.

Harrell came to the Austin police’s attention through an anonymous tip. The tip was made through the Citizen Observer,  a website operated by the police department, in two emails dated March 6 and March 10, 2016. According to police documents, the tipster called Tyler Harrell by name, knew his address, and described him as a “large-scale drug dealer.” The tipster also mentioned a 16-year-old friend of Harrell’s as well as various Snapchat videos that allegedly contained images of Harrell and his friend shooting a weapon and holding large quantities of cash and weed.

That information was passed to Detective Steve Hawkins, who used the tip to obtain a search warrant to comb through the trash outside the Harrell home. The trash runs turned up no actual drugs, but did find prescription pill bottles, plastic baggies that later tested positive for cocaine residue, a few wrappers from marijuana products and some shake, or leafy debris. There was also some packaging from Tyler Harrell’s ammunition for his new rifle, which he had purchased legally from a popular gun store. The receipt was found when police later searched the home.  At trial, Harrell’s lawyer argued that Hawkins and the police department had not found enough evidence of drug activity to justify the no-knock warrant.

Michelle Mildenberg

Support for calling Harrell a big-time drug dealer seemed dubious at best. On one visit to search the Harrells’ trash, for example, police found a sandwich-size plastic baggie with stems inside, which an officer testified under oath was “green leafy substance consistent with [the] appearance and odor of marijuana.”

The police made three separate trash runs. The department also surveilled the Harrell home, according to police documents and testimony, but saw nothing unusual. According to Stoughton, the law professor and ex-police officer, as well as testimony submitted at Harrell’s trial, police at this point might conduct what’s called a “controlled buy” by sending in an informant. In this case, an officer testified in a pretrial hearing that this wasn’t possible, but he was unable to elaborate on his answer because prosecutors objected. During this time period, from mid-March through the April 14 raid, Harrell continued going to school.

Ultimately, the Austin officers decided to seek a no-knock warrant from a judge to search the Harrells’ home. Detective Hawkins, who wrote the search warrant and accompanying affidavit, cited his breadth of experience as a narcotics investigator and SWAT team member, and described his team’s findings as  “evidence consistent with a person engaging in the possession and distribution of illegal substances.” This was enough to persuade Judge Ronald Meyerson of the Austin Municipal Court to sign the warrant giving the police permission to search for marijuana and cocaine as well as anything associated with the sale of those drugs, like baggies, scales, and bookkeeping.

No-knock raids are typically executed by a Special Weapons and Tactics, or SWAT, team. According to the most recent version of Austin Police Department Standard Operating Procedures received by The Appeal in response to an information request, the SWAT team was created in 1979 to “professionally resolve life threatening critical situations,” like active shooters or hostage situations in addition to “high-threat warrant service,” although this is left vague.

Today, SWAT teams are regularly used nationwide to execute search warrants. According to a 2016 law review article by Timothy MacDonnell, over half of the 60,000 SWAT deployments each year are for search warrants. The phenomenon has been well-documented by journalist Radley Balko, who has argued that SWAT raids constitute an excessive use of force with almost no net gain. In 2014, the ACLU found that nationwide, 62 percent of all SWAT raids were for drug warrants. In instances where police alleged the presence of firearms, they were wrong just less than half of the time.

The evolution of Supreme Court doctrine on search warrants—especially the requirement that police “knock and announce” before entering—correlates with the war on drugs as SWAT raid numbers increased nationwide. In general, the Fourth Amendment protects citizens from unreasonable searches, but case law starting in the 1990s began to carve out exceptions for SWAT raids based on the idea that an officer’s knock on the door gave people enough warning to flush their stash. As a result, law enforcement argued, surprise searches—using “no-knock warrants”—were necessary to prevent the destruction of evidence.

Michelle Mildenberg

Currently, the law on no-knock raids requires that police justify the invasion by proving they have a “reasonable suspicion” that there’s a risk to officer safety or that the suspect might dispose of the evidence. Practically speaking, this is mostly shown through a controlled buy, according to Stoughton, in which an informant makes a purchase to confirm that someone is selling illegal drugs. But federal law is broad enough that it allows for no-knock raids even in cases of misdemeanor marijuana possession and sale. And, over time, the incentive for law enforcement to take extra steps to justify SWAT-style raids diminished as the Supreme Court made decisions giving more leeway.

In the 2003 decision United States v. Banks, a unanimous Supreme Court held that waiting about 15 to 20 seconds after an announcement before breaking down a door was enough warning when police had reasonable fears that incriminating drugs would be flushed down the toilet. This case also affirmed the reasonable-suspicion standard and asserted that damaging property wasn’t enough of a concern to place stricter limits on SWAT deployments. In 2006, the Court held in  Hudson v. Michigan that even if the police ignore the knock-and-announce requirement, anything found was still admissible as evidence.

But, as the Harrell case shows, the reasonable-suspicion standard is subject to interpretation and generally relies on police statements about the likelihood of weapons or large amounts of drugs.

At trial, as in other cases where people have been charged with assault or murder for shooting during SWAT raids, one of the major disputes centered on whether Harrell and his mother heard the police’s announcement. In the video, the entire raid and shooting last about 30 seconds.

Some neighbors, in addition to Harrell and his mother,  testified that, even though they heard the shooting and flash bangs, they did not hear the announcement over the LRAD. Other neighbors testified that they heard everything. Defense experts at trial suggested that the LRAD was pointed at the wrong house before the raid. After Pittman was shot, the armored vehicle moved to a different location and adjusted the LRAD to point toward the Harrells’ home. At this point, the second round of announcements, Harrell and his mother came out of the house immediately.  The prosecution and law enforcement argued in court that the LRAD was functioning properly and that law enforcement announced themselves as they entered.

The prosecution argued that Harrell knew police were entering the home. Beth Payan, one of the assistant district attorneys on the team that prosecuted Harrell, said she took every piece of the case into consideration: “The case was presented to a Travis County grand jury and they found sufficient evidence to move forward. Upon my receipt of the case, I reviewed the entire file looking at every detail from every angle.  You cannot review a case with tunnel vision and focus only on one aspect of it. I was looking at the big picture. In terms of the SWAT aspect, I needed to evaluate that and review that area of the law.”

According to an officer’s affidavit, the police returned to the Harrell house the day after the shooting to re-enact the announcements using the LRAD. Their process determined that it was possible to hear the announcement even if the house doors and windows were closed. The defense pointed out that the armored vehicle had already been repositioned for the re-enactment, so there was no accounting for the placement of the vehicle the first time.

After the trial and a prolonged jury deliberation—notes from the foreperson indicate that there was “one single hold out juror” and deliberations went on for several days—the jury found Harrell guilty of assault and sentenced him to 13 and a half  years in prison plus $7,000 in fines. (He was acquitted of attempted murder.) Harrell’s attorney, Edmund Davis, told The Appeal that he felt his client’s trial hadn’t been fair. For example, on the day of closing arguments, 17 uniformed SWAT members packed over half of the courtroom in a show of solidarity. Davis, who is Black, is no stranger to controversy and during Harrell’s trial, got into a dispute with the prosecutor Chari Kelly (who was elected in November to the Texas Third Court of Appeals) when he said Kelly had made a racist joke comparing him to a monkey. Kelly, in turn, alleged that Davis had grabbed and twisted her arm while they were in the courthouse parking garage. There was a closed hearing where other lawyers testified about what they heard Kelly say. These events led Judge Karen Sage to enter a gag order during the trial.

Harrell is now appealing his verdict. His primary arguments focus on the judge’s decision to exclude evidence, including the source of the anonymous tip—which police said they could not trace—and medical evidence showing that Harrell was struggling with symptoms of PTSD since being robbed just a few months before the raid. During that robbery, he was jumped by two armed assailants in masks. In court documents, his attorney argued that he was undergoing treatment for PTSD and startle reflex, which made him particularly prone to overreacting. This history, according to Harrell’s attorneys and court documents, made their client especially vulnerable as a target for a military-style raid. (There’s no indication that Austin police knew about this incident, which was not reported to the police, before the raid.) Harrell was not allowed to present any of this evidence at trial because the judge excluded any presentation of Harrell’s mental state.

Tyler Harrell’s best friend at the time, who was also present during the robbery, has a similar memory of being frightened and anxious after the incident. According to the friend, two men attacked him and Harrell at another friend’s apartment. There were also two girls there. “[One of the men] kicked open the door with a bandana on his face and waved a gun in our faces. When the guy wasn’t looking, Tyler grabbed the gun and began wrestling. I began helping Tyler by punching and kicking the guy.” Both of the assailants escaped to the car, but not before Tyler saw their faces. “Scared the crap out of me,” the friend told The Appeal via text message. “Tyler ended up buying a gun on his 18th birthday because he was actually scared. My mom had cameras installed … I wasn’t able to sleep for a long time because I’d hear leaves falling outside and think it was someone outside my window. Me and Tyler would talk about how [we] had the same problems.” He added that he and Tyler both attended therapy after the incident.

For now, Harrell remains in the Travis County jail near Austin, and his family remains hopeful that his appeal will allow him to present a stronger defense. Harrell’s friend said he had “lost connection” but hopes to continue being his friend. He recalled a time when Harrell came to his house on Christmas just because he was lonely. “Tyler had dreams to be a chef and do all these awesome things. I don’t think for a second Tyler would ever shoot anyone unless he thought it was to protect his family. … I just hope he’s able to bounce back from this.”

Lisa and Peter Harrell, Harrell’s parents, have tried to focus on their son even though they are also concerned that the public generally needs to be more aware of the dangers. “It could be you next,” Peter Harrell told the Austin American-Statesman. And Davis, Harrell’s lawyer, pointed out that the SWAT team seemed ill-prepared for the raid. “Someone got shot,” he said, adding that the casualties could have been much worse if Harrell had had more experience with his weapon. (The Austin Police Department did not respond to requests for comment.)

The injurious outcome of the 2016 raid has not resulted in any policy changes at the police department. In fact, according to its own records, the department ramped up the use of no-knock warrants in 2017 and 2018. And it’s likely that Austin isn’t any safer. Last year, a study found no link between SWAT deployments and public safety. Instead, the researchers found, increased police militarization simply influences the public to have negative opinions of police with no net gains.

The Appeal Podcast: Brutality in Baton Rouge

With Appeal contributors Clarissa Sosin and Daryl Khan.

Steven Wayne Young (left) recounts his Oct. 24 arrest by officers in the Baton Rouge Police Department. Randy Brown witnessed and filmed the incident.
Clarissa Sosin

The Appeal Podcast: Brutality in Baton Rouge

With Appeal contributors Clarissa Sosin and Daryl Khan.

Following the Alton Sterling shooting in the summer of 2016, the national media briefly turned its attention to Baton Rouge—a city marked by a long history of segregation and racist policing. After the killing, local politicians promised reform but two-and-a-half years on there’s been little to no progress—some say the situation has only gotten worse. This week’s guests, Appeal contributors Clarissa Sosin and Daryl Khan, join us from Baton Rouge to discuss recent cases of police brutality and how reformers are working to push back, long after the national spotlight has faded.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, Facebook at The Appeal’s main webpage and as always you can like and subscribe to us on iTunes. In the wake of the Alton Sterling shooting in the summer of 2016, the national media turned its attention to Baton Rouge, a city marked by a long history of segregation and racist policing. After the killing, local politicians promised reform, but two and a half years on there has been little to no progress and in many ways the situation has gotten worse. This week’s guests, Appeal contributors Clarissa Sosin and Daryl Khan join us from Baton Rouge to discuss recent cases of police brutality and how reformers are working to push back long after the national spotlight is faded away.

[Begin Clip]

Clarissa Sosin: Everybody talks about the white Dodge Chargers and they know when the team, which is now called the Street Crimes Unit, is going to patrol their neighborhood and when they see those Chargers, like we’ve been interviewing in a neighborhood and the Chargers have started to come on their patrol and people started coming in off the street because they just didn’t want to be outside to have any interaction.

Daryl Khan: A deeper problem than just guys in Chargers jumping out. It’s that the reason they do it and the reason it continues to happen is because it’s rewarding. The culture is rewarding and no one’s punished. You know, it’s still ostensibly a democracy here, but as long as these patterns of like just deeply entrenched segregation persist, it’s not going to stop.

[End Clip]

Adam: Before we get to this week’s podcast, we want to issue a slight correction from last week’s episode “The Power of Sheriffs”. An earlier version of the podcast posted online stated that football player Aaron Hernandez had died in the Bristol County jail. In fact, he died at the Souza-Baranowski Correctional Center.

Adam: Thank you so much for coming on The Appeal.

Clarissa Sosin: Thanks for having us.

Daryl Khan: Thank you.

Adam: So y’all have, I think I can say y’all in this context, ya’ll have been in Baton Rouge for some time reporting on the Baton Rouge Police Department, um, specifically surrounding the case of Steve Young. Not to be confused with the quarterback, but he’s a 42 year old man, a black man in Baton Rouge who has been in the news lately due to his interactions with the Baton Rouge Police Department. Can we start by talking about his case and what the broader issues are with the Baton Rouge Police Department for those who are uneducated or unaware of what’s going on down there?

Clarissa Sosin: Yeah, so Steve Young’s case is a great example of how the Baton Rouge Police Department is over-policing and using excessive force in the predominantly black neighborhoods in North Baton Rouge. Young was parking his bike outside his apartment when they pulled up and the police say that he had a blunt and that’s why they stopped him.

Adam: Right.

Clarissa Sosin: But he says he didn’t have one and that there wasn’t even really initial interaction that they just kind of came charging at him. Um, and what resulted was a like six minute, I mean I don’t know if it was exactly six minutes, but like a six minute long beating where he got tasered, he got maced in the face, he was dragged by his handcuffs at one point. You can see it in the videos that were captured by bystanders.

Adam: Yeah. We’ll have that video linked in the show notes on The Appeal website. So definitely look at that.

Daryl Khan: The case went to a hearing over the body camera footage on December 20th in the Judicial Court building, the big court building in downtown Baton Rouge. And uh, what was significant about that, and it’s, it’s not just the beating that is the main problem or just the excessive force or how commonplace it is. One thing about that kind of policing is that it has, and this is a generally, a general kind of problem that the city is always dealing with is how to enlist its citizens in helping stop crime. Um, but because the relationship is so fractured since, I mean one might say since Alton Sterling, but a lot of people would tell you Alton Sterling just exposed what has been a common practice in Baton Rouge policing as far as anyone can remember. But, uh, since that became public, those videos came out, you have a real deeply broken relationship. And the police department and the city are always coming up with different programs to kind of get people to help out. But this kind of thing leads to distrust. It leads to an adversarial relationship. The police aren’t there to serve people, they’re just there to swoop in, intimidate, and leave.

Adam: This was the Street Crime Unit, which is sort of, a lot of police departments have this kind of quasi paramilitary, I know that NYPD has their plain clothes who kind of jump out of cars and act like Jack Bauer. Is this the sort of general ethos of this particular unit that uh, attacked Mr. Young?

Clarissa Sosin: Okay. So yeah, so the Street Crime Unit, we’ve heard about it in basically every interview, and older generations will call them the “jump out boys,” like a more informal version of this unit. But then the BRAVE Team, which is what a lot of most people refer to the unit as, which is the Baton Rouge Area of Violence Elimination program, it’s actually a program that no longer exists. And it was started as a program to like, they got federal money and it was to work to improve relations between the police department and the community. And a part of that was this unit that was launched underneath the BRAVE program that was going to go out into high crime areas and really target drugs and guns and just everything.

Adam: Yeah.

Daryl Khan: In high crime neighborhoods.

Clarissa Sosin: Yeah. And basically what ended up happening was they bought a bunch of Dodge Chargers. I don’t know what else they got but-

Adam: Yeah, you can see it in the video. They got these black Dodge Chargers.

Clarissa Sosin: Yeah.

Daryl Khan: Well white ones. The white ones that are associated with what we have heard is those other guys are just nearby and came for backup.

Adam: Oh okay.

Clarissa Sosin: Yeah. So everybody talks about the white Dodge Chargers and they know when the team, which is now called the Street Crimes Unit, is going to patrol their neighborhood. And when they see those Chargers, like we’ve been interviewing in a neighborhood and the Chargers have started to come on their patrol and people started coming in off the street because they just, they didn’t want to be outside to have any interaction.

Adam: So they sort of cruise around. Again, this is something we see a lot in different jurisdictions as well. They kind of cruise along in their Chargers and sort of jump out. Thus the name “jump out boys” and they, this is very similar to the NYPD’s plain clothes unit that does the same thing sort of jumps out and tries to find active crime, right? Like drugs or whatever crime, quote unquote “crime,” which is a huge recipe for abuse. I know that in the case of NYPD, the plains clothes unit that does virtually the same thing, has meaningfully more civilian complaints and force encounters, I think something like half of all force encounters and they make up like 11 percent of the police force. So for those who are just sort of trying to put this in context, um, Roger Ebert always had a rule when he, he said, when you’re a movie reviewer if you’re going to use a superlative and say something’s the best or the worst, you have to be damn sure that for the rest of your life, you’re consistent. Uh, with that, you know, if you say this is the best romantic comedy, 20 years from now you have to say the same thing. So we’re all, we’re all, I’m very hesitant to say something is the worst, but how would you rank Baton Rouge if you had to editorialize a little bit in terms of other police departments in terms of its track record with violence and racism? Would you put it in the top five percent?

Daryl Khan: It’s not just about racist policing, it’s about just this culture of abuse that I think is allowed to thrive because the segregation is so intense here. You know, you’re talking about a state, as soon as somebody, a former police officer here told us we’re not just crossing one Mason Dixon line here, we’re crossing two Mason Dixons lines. We’re in the deep South and you know, there is a deeper problem than just guys in Chargers jumping out. It’s that the reason they do it and the reason it continues to happen is because it’s rewarding, the culture is rewarded and no one’s punished, you know, or it’s still ostensibly a democracy here, but as long as these patterns of like just deeply entrenched segregation persist it’s not gonna stop and as far as it, you know, it’s, and, and the other part of that question, I guess it’s not just the police department, it’s the DA’s office, it’s the state Attorney General’s office, it’s the governor, you know, it’s the US Attorney. It’s the sort of good old boy network that thrives here and allows for this kind of thing to happen. Back to my original point, I kinda got off track, you know, we’re talking about Steven Young and the hearing in December 20th. So there was hearing to get the body camera footage.

Adam: Right. So let’s talk about that.

Daryl Khan: So you have this body camera footage that the police department says exonerates their officers.

Adam: Right.

Daryl Khan: Well, everybody heard this before. When the original Alton Sterling videos came out and the police department says, kind of laughingly like, ‘trust us, you know, this guy had it coming, you know, you’ll see the video, if you saw the video.’ Well the question is, well, why can’t we in the press and the citizens of Baton Rouge who have good reason to be skeptical of their police department’s credibility, just show it. They obfuscate and they try to like say, ‘oh well,’ they use sort of language to make this seem way more complicated than it is. And the language is like, ‘well, there’s exemptions due to investigations and all this nonsense.’ It’s just nonsense. The mayor and the police chief can easily say ‘here, here it is.’ Right? And what’s even more fascinating about Steven Young’s case is that the normal exemptions or exceptions that the city would cite for not releasing it have been exhausted. They’ve been exhausted. Like we talked to somebody from the city yesterday and you know, there’s nothing left. The officers have been cleared. So there’s no investigation of the officers. Steven Young has made the conscious, very voluntary decision to say, ‘Hey, I’m going to get myself in trouble.’ If he’s lying he’s only impugning his own character and hurting his own case. So he’s made that decision by coming out and saying, ‘yeah, I’m going to speak up on this.’ So if it does come out to show that he was like a wild and violent person when the officers approached them, well that’s only going to hurt him. Right? Officers are cleared. The witnesses have come forward already, right? They’ve turned over their own cell phone video. So they are public. So we’ve hit the wall and every single theoretical reason this isn’t out. And, you know, another story we worked on for The Appeal was a similar case, except that man died and there’s body camera footage allegedly.

Clarissa Sosin: And security camera footage in the building.

Daryl Khan: And security camera footage. Right. And so ‘just trust us.’ We don’t have to take your word for it. The citizens of Baton Rouge don’t have to take anyone’s word for it, just show it.

Adam: Right. So there’s major transparency issues with the BRPD is what you’re saying.

Daryl Khan: It’s not just the BRPD man.

Adam: Well it’s the entire city, right?

Daryl Khan: Yeah. Because again, this is, this is the mayor and the police chief. The mayor can just say ‘chief, you’re going to get fired if you don’t turn over the damn video. I don’t want people to think, well, it’s got to go to this committee and that.’ Do you know what I mean? There’s a lot of doohickey nonsense, formal sounding words people use. It’s a video man. You know, hit send on an email. There you go. It’s done. You know, and the guy who in the other story involving a guy named Calvin Toney, that we wrote about, that officer was awarded a Medal of Valor. So clearly if he got this Medal of Valor from the city and the police department at a casino, then it stands to reason the video is going to show him being a complete hero. So what’s there to hide? I’m not trying to be cynical, man, the officers who are doing it right, they are heroes. I mean they, they do heroic shit. This is not an indictment on a police department on the very idea of policing, but the kind of policing that’s being rewarded here, it’s not real policing, it’s not going out and saving people who are in trouble. It’s treating everybody like they’re criminals.

Adam: Well, right. I mean obviously this is a pattern in a lot of cities, especially, I mean, it takes on a different character in different parts of the country, in the South, obviously it has its own historical baggage, especially when you talk about the issue of segregation, which I, which I do want to talk about. Um, I know that that’s a huge issue where I am in Chicago according to one 2017 study, Baton Rouge is the thirteenth most segregated city in the country, which is pretty darn high. Um, New Orleans is the sixth most segregated city in the country. Can we talk about the issue of segregation in Baton Rouge and what that, how that reflects on how it’s policed?

Clarissa Sosin: Yeah. So we had one on my first trip down here. Daryl had been here before. On my first trip down here we spoke with a youth activist and she was talking to us about, um, Florida, Florida Boulevard, Florida Street, depending on where you are on, on it.

Daryl Khan: Florida Avenue.

Clarissa Sosin: Yeah. Florida Avenue. It kind of depends where you are on it. Confused us for a bit, but she called that the Mason Dixon Line of Baton Rouge. It runs east-west. It divides the city north-south, and it’s basically North Baton Rouge is black, South Baton Rouge is white and there are some pockets on both sides, but that’s basically how it’s divided and it’s easy to live your life in South Baton Rouge and not know what’s happening just across Florida. And that’s what happens with a lot of people.

Adam: Right. It’s sort of taken for granted in a lot of these places. Um, I know some people who were down there, this happens a lot with Black Lives Matter, right? With Alton Sterling, there’s this outrage, justified outrage, people go down, they protest. I know there was a lot of tense protests. The police did some pretty brutal crackdowns in Baton Rouge, uh, people are still in jail or, or facing trial for that a couple of years ago. And then of course it dies down. Right? Then people sort of, the national attention wears off. To what extent did Alton Sterling change anything at all? And to what extent did it show the kind of limits and pitfalls of, of the idea of body cams as a mechanism for meaningful reform?

Clarissa Sosin: So I think when it comes to body cams, it’s shown that like, so when Alton Sterling was shot, body cams were a pilot program in the city. Now they’re citywide, but you’ll still find, like in the Calvin Toney instance, the body cam fell off and so it recorded but it didn’t record on the officer’s body. In a recent recent kind of crazy incident where this one officer who had shot and killed a black man during a traffic stop and then was put back on the force and cleared of everything and a year later he was involved in another traffic stop and shot at and missed another young black man. He turned off his body cam. And so it’s like you can have the body cam program, you can gather all the body cam, but if it’s not used appropriately or if it exists and you just don’t release it to the public, then there’s really like, it just, it doesn’t help.

Adam: Yeah. This was a major thing that people, I mean, I was tweeting about this in 2014 when people were rushing to the body cams and they know a lot of other people were as well, that if there isn’t transparency in how the footage is released, if the police control the footage, then the point of body cams is actually, it can actually be worse, right? Because then they can release footage when it’s exculpatory and they can hold onto it when it’s inculpatory. Is that something, is that a pattern you’ve seen in your experiences in Baton Rouge?

Clarissa Sosin: They’ve barely released, they released it twice.

Adam: Yeah. Because if it was a story about how they saved a kitten, we would have the footage tomorrow.

Clarissa Sosin: Yeah.

Adam: Right.

Clarissa Sosin: I mean, in the incidents that I was talking about where the guy shot at the young men and missed, um, the officer actually lied about it and said that the guy shot at him first. And there was all this like, ‘Hey, he’s supposed to have body cameras, supposed to have a body cam, like this would prove it.’ And then it ended up, I mean he just turned it off so there would be no record.

Adam: Yeah, there’s not a penalty to turn it off then.

Clarissa Sosin: Yeah, exactly. If you don’t follow the policies, there ended up being dash cam or back dash cam on the car that caught audio of it. So people, they faced enough pressure that they had to kind of come forward about that.

Adam: Right, right.

Daryl Khan: What happened in 2016 it’s almost, I hate to use this cliche, but it’s a perfect storm of the kind of impulse I’m talking about here. And it’s the kind of thing we in the, in the coasts just ignore and we don’t care about and it’s come back to haunt us in Washington because that spirit has been unleashed in the White House. It’s because we ignore this stuff or we say, ‘oh, well it’s the South,’ or ‘oh, that’s just like the legacy whatever down there.’ So you have peaceful protesters, right? Organizing an exercise in their First Amendment rights and to say, ‘hey man, look, this guy got shot, we don’t think you did the right thing.’ Fine. And what the Baton Rouge Police Department did was send in tanks with military grade weapons and guys, both Louisiana State Police and local police officers with long guns and decked out in some kind of dystopian military gear.

Adam: Right.

Daryl Khan: And a reporter who worked for me as an intern at the time was arrested and you know, it’s just, it’s the kind of thing to me, if you look at the, there’s a great video made of that by another one of my interns, Marco Poggio for another website called JJIE  and if you look at that, and if people looked at that and didn’t understand the level of police power, the level of state power being turned against citizens, I don’t know what is going to awaken them to what’s going on. You know, it gets frustrating when you cover stories like this and you see like Jim Acosta on a front page and Rutenberg and other media columnists grabbing their necklaces because, ‘oh dear, uh, our media, our First Amendment rights are under assault because the president took some dudes microphone away at a made for TV event.’ Well, if they would pay attention to what’s going on in this country, they will know that there are plenty, you know, I, I kind of jokingly say sometimes when we’re down here, like if we just told everybody that Vladimir Putin was behind-

Adam: Oh yeah, it’d be wall to wall. It’d be wall to wall.

Daryl Khan: The policing in Baton Rouge and the segregation then maybe everybody would start writing about it. Um, they’re, you know, Baton Rouge isn’t alone. I think Baton Rouge is an exempla as a, as a, a fairly large city down here, and as a state capitol, if you worried about excessive power, if you’re worried about, you know, uh, the state steamrolling citizens’ rights, if you’re worried about the press being silenced, if you’re worried about using power to crush people’s dissent, well you don’t have to wait around for Trump to say something else. You know.

Adam: You mentioned Jim Rutenberg, who I refer to as the Jay Leno of media criticism because it’s sort of the most banal middlebrow yeah, we saw this during the J20 crackdown, you know, there was a few dozen people facing 60 years in jail for over a year. Um, and Jim Rutenberg didn’t write about it once, but yeah, and then there’s sort of this vague transgression that’s done to like the White House press corps and then it’s all hands on deck. If you’re not in the club media criticism wise, a lot like the establishment media critics like Rutenberg at The New York Times don’t care. Um, Brian Stelter at CNN the same thing.

Daryl Khan: It just makes you wonder, like people watch Selma and there were, their conscience was struck and they were moved morally to some kind of reflection and action. That happened to people in Baton Rouge man. I mean.

Adam: Yeah, no, it was pretty brutal. I know people who were injured and I don’t know, a ton of people, so the numbers were probably high. When it comes to issues of quote unquote “police reform” or people who are trying to push back against the systems of segregation and police violence what groups do you see down there working on it that you can maybe talk about or sort of talk about that’s positive, like what are the forces trying to push back against this?

Clarissa Sosin: Um, well so we met with, uh, a retired BRPD officer who is now actually a police chief in a neighboring town and we had this amazing five hour long interview with him and he’s not an activist group. He’s not I guess a citizen, I mean he is a citizen, but you know what I mean, he’s, he’s still a police officer, but he is very actively working on this issue.

Daryl Khan: Yeah, I mean he is articulating a different sort of vision of what policing can be because literally across the northern border of Baton Rouge, I mean if you didn’t see a little sign that said, “Welcome to Baker,” you wouldn’t even know you left Baton Rouge, you know, this is a guy who did all the heroic stuff. He was out there in the most violent neighborhoods in the most crime ridden neighborhoods. Um, but he understood that he was there to help the people who are suffering from that crime as well. You know, he said he was, he saw himself as sort of like a superhero, you know, from like Marvel and DC and like that’s what an officer should see himself, as serving the public and not reverting to violence as a synonym for policing.

Clarissa Sosin: And he was telling us how at one point while he was at the BRPD he started a program where he sent officers out into the highest crime neighborhoods and their goal was forty contacts but no tickets. And if they gave out any tickets then like they were out, they couldn’t be a part of the program.

Adam: Right. This is, this is part of like a sort of community policing philosophy, but I mean is there a lot of empirical evidence that that actually works? Or is that mostly just kind of (21:53)

Daryl Khan: What does “work” mean?

Adam: Reduce the aggregate violence leveled upon both in terms of incarceration and actual like, you know, police shootings on poor communities.

Daryl Khan: We wouldn’t know. What he was doing was different from what I’ve seen other community policing programs do, but we’ll never know because it was shut down within a few months, which led him to retire.

Adam: Well, there you go. Well, so yeah, it must have been threatening someone then.

Daryl Khan: I guess. I guess it sort of reminds me, that question kind of reminds me sometimes of like the debates we had about torture under the Bush administration. It’s like, you know, we have a very firm set of rights guaranteed to us and it almost is moot to me whether or not the policing works because the alternate isn’t in any fundamental way policing at all.

Adam: Well, yeah, I guess what I meant by “work” is that community policing was, as a term was, was peppered all throughout the 1994 Crime Bill. Right? The community policing has long been a euphemism to just give police departments more money, uh, which they then in turn use to do things like jump out boys. Right? It’s, it’s a, it’s a marketing-

Daryl Khan: This guy had a small unit, I think it was like a eight to twelve guys and the money was in their overtime that they got. And they were, they were, you know, he said, you know, they all came in with the aggressive wanting to knock heads and then he won them over. I guess the one thing I would say though, you know, I saw Toy Story 3 and you know, the, the people in power, you know, they work with the consent of the governed, right? In this country. And this problem with the police and this lack of trust and this animosity is profound and the level of frustration and anger we’re encountering with every interview does not bode well to me for the future peace in this city. I don’t know what event it’s going to take. You know, sometimes it’s hard to predict which one of these events of police abuse grab people’s attention. Do you know what I mean? It’s hard to know which one grabs a zeitgeist, but there’s going to be one in this city and I might even be one that seemed surprisingly relative to say Alton Sterling or Steven Young. Maybe not even that bad on the scale of things, but I don’t know when, but it’s going to happen and it’s going to lead to serious civil unrest here.

Adam: Well I think that’s a perfect place to end. A hopeful yet ominous note. Thank you so much for, for coming on.

Clarissa Sosin: Thanks for having us.

Daryl Khan: Thank you.

Adam: Thank you to our guests Clarissa Sosin and Daryl Khan. This has been The Appeal podcast. Remember, you can always follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main webpage and as always you can subscribe and rate us on iTunes. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.

Justice in America: Public Defenders on the Front Lines

Josie and Clint talk with Jon Rapping, the founder and president of Gideon’s Promise.

Justice in America: Public Defenders on the Front Lines

Josie and Clint talk with Jon Rapping, the founder and president of Gideon’s Promise.

On our first episode of season 2, we talk about one of the most important players in the criminal justice system, the public defender. What does it mean to be a public defender in America? Why do we have the right to counsel? And why is it important that all people have access to a zealous advocate, even those who may be guilty of serious crimes? We discuss all of this on this week’s episode.

We also talk to Jon Rapping, the founder and President of Gideon’s Promise and a leader in the field of public defense. He and his wife started Gideon’s Promise with the goal of providing training, resources, and community for public defenders across the nation. The organization was the subject of the 2013 HBO documentary Gideon’s Promise, and Jon received the MacArthur Genius Grant in 2014. He talks to us about why he began this organization, the continued challenges, and the fundamental importance of public defenders in the lives of their clients.

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

Additional Resources:

Learn more about Jon’s organization, Gideon’s Promise, here.

Gideon’s Army, the HBO documentary featuring Gideon’s Promise, is on Amazon.

More on the Scottsboro Boys, from PBS

Here’s a piece by The Guardian and the Marshall Project on the astronomical case loads public defenders have to handle with minimal resources.

This piece in the New York Times, about a man who was punished by a judge for working too hard, is a disturbing and necessary read.

Vera Institute of Justice has some interesting data about public defense on their website.

A great piece by Sarah Stillman in The New Yorker on what incarceration does to families. It tells the story of Robin Steinberg, the founder of Bronx Defenders, and the organization she helped start in Tulsa, Oklahoma a few years ago, which provides holistic public defense to women and mothers.



[Begin Clip]

Jon Rapping: The calls I get the most from our young lawyers are calls where people just feel like everyone in the system wants them to process human beings and they’re trying to figure out how they resist that pressure. Sometimes they say, ‘Am I the one who’s crazy because I’m insisting that we have this hearing, I’m insisting that we address this motion or that we deal with this legal issue?’ And it takes mentors and it takes a supportive community to remind them, ‘You’re not crazy at all. That’s exactly what your clients deserve. You’re in a system that has come to expect less and you’re part of an effort to change that system.’

[End Clip]

Clint Smith: What’s going on everybody. Good to be back for season two. In case you  forgot, I’m Clint Smith.

Josie Duffy Rice: And I’m Josie Duffy Rice.  

Clint Smith: 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.

Josie Duffy Rice: Thank you everyone for joining us today and joining us for season two. You can find us on Twitter @Justice_Podcast, you can like our Facebook page, you can just find us at Justice in America and please subscribe and rate us on iTunes. We’d love to hear from you.

Clint Smith: So yes, we’re back. We’re super hyped to be back. There was a huge void in our lives without you all here. We love the response from season one and we’ve been trying to make season two even better, even more informative, even more helpful and we appreciate you all being along for the ride.

Josie Duffy Rice: Yes, we’ve spent the past few months prepping for season two, interviewing people, doing some research, talking and we’re super glad to be back here talking with you all or I guess talking at you all.

Clint Smith: So just in case you need a refresher, again, I’m Clint Smith and I’m a writer and a Ph.D. student who spent a lot of time teaching in prisons and whose research has centered on putting the criminal justice system in its larger historical context.

Josie Duffy Rice: And I’m Josie Duffy Rice. I’m a senior strategist at the Justice Collaborative and a senior reporter at The Appeal and most of my work focuses on the impact that prosecutors have on communities in America, particularly poor people and people of color. And this of course is season two of Justice in America.

[Clip of applause/cheering]

Clint Smith: Oh, snap. We started this show with a clip from our guest, Jon Rapping. Jon is the Founder and President of Gideon’s Promise, an organization that provides training, coaching, professional development and community to public defenders all over the country. Jon is one of most brilliant people and is just incredibly committed to improving the public defense landscape by providing public defenders with the tools and resources that they too often don’t get. And he’s joining us to talk about our topic for today, which is public defense.

Josie Duffy Rice: Yeah. We wanted to start season two off with something that we just didn’t get to last season, but just because it was not part of season one does not mean that it’s not important. On the contrary, public defense and public defenders are some of the most important players in the criminal justice system for reasons we’ll lay out for you during the episode.

Clint Smith: But first, before we get there, we’re going to do something a little bit new this season.

Josie Duffy Rice: So this season on each episode, we’re going to spend just a quick minute talking about a word or a phrase or a term related to criminal justice and the criminal justice system that we think is misused or misunderstood or frankly just useless.

Clint Smith: So much of the general public’s view of the criminal justice system is shaped by how we talk about these things. The simple words that we use that often hold so much weight, so we want to give you the tools to talk about the system differently and we hope that this helps to generate a different conversation. If you have thoughts or suggestions or responses to the chosen word for each episode, please let us know.

Josie Duffy Rice: Yeah, we’d love to hear from you. So this week our word is-

Clint Smith: Criminal.

Josie Duffy Rice: Yes, criminal. Or a felon. Or a convict. Really any variation on that word.

Clint Smith: So often these words are used in context in very certain ways. Like they aren’t words you’d use to describe a friend or a family member. Instead they’re used when people say things like, ‘should felons be allowed to vote?’ or ‘guy in the viral video is an ex-con’ or you know, ‘that neighborhood is full of criminals.’

Josie Duffy Rice: And you know, we really don’t like those terms on this show to be honest. And the reason is because they reduce people who have been convicted of a crime down to what they’ve done wrong and honestly not even just what they’ve done wrong. Some people do things wrong and are never arrested. For example, if you jump the subway turnstile or you steal a bag of chips and you’re not caught, are you a criminal? Probably not. That’s probably not how people talk about you. That’s probably not how you think about yourself. Instead the whole word criminal or a felon or convict really depends on whether or not you’ve had contact with the system, what you were convicted of or what you pled guilty to rather than what you’ve done.

Clint Smith: And so part of what I always think about is how the very idea of who is a criminal or what constitutes as criminal behavior is a subjective idea. I think we often talk about it as this objective phenomenon in which someone is or is not a criminal. And for example, I’m a student at Harvard and when I lived on campus it was very clear that there were many, many students who lived at this top school in the world, top school in the country who sold and did and abused drugs in ways that they never had to fear they would be punished for from the state, from the authorities and that you can do something in a dorm room at Harvard and never fear the SWAT team coming to get you in a way that a kid maybe who lives in Baltimore or DC or Atlanta or wherever who lives in poverty, who is black or brown, often has to fear.

Josie Duffy Rice: Yeah. Has to fear of the cops.

Clint Smith: Yeah, exactly. And I think part of what’s important to remember is that criminality is not something that is static. It’s not something that’s objective. It’s often a decision that’s made by people in positions of power and they make sort of subjective decisions based on who and what is criminal or constitutes as criminal at that specific moment in time and there’s not really any consistency as to how that’s applied.

Josie Duffy Rice: Yeah. It’s funny because I have this memory of being in law school and being, you know, I took criminal law classes, also at Harvard and it’s, you would see kids doing stuff at a party on Friday and then on Monday you’d hear them talking about the need to lock people up with no self awareness of what it means that they in a different situation would be in jail and not in class. So. So I think that’s totally right.

Clint Smith: So the bottom line is that these words like criminal or felon or convict, they’re pretty one dimensional and they’re also static. So say a person commits a crime when he’s 22, serves his time, turns his life around. He can be described as a felon forever. Now is that fair? Or forget fair, is it actually accurate? These words are also too broad to really tell you anything. If you use the word criminal, does that mean he jumped the subway turnstile or is he a serial killer?

Josie Duffy Rice: Right.

Clint Smith: And especially in America, where there’s this broad spectrum of what we consider crimes, this can be a really reductive and unhelpful label in trying to understand who someone is and what they’ve done.

Josie Duffy Rice: So next time that you read or hear or say one of these words, we urge you to reconsider or rethink. We tend to use phrases like “person who has been convicted of a crime” or “incarcerated person,” but even then we only use it if it’s relevant.

Clint Smith: As an example of what’s not relevant, saying the guy in the viral videos is an ex-con. That’s bad. Saying the guy in the viral video has previously been convicted of a crime is also bad. Unless it’s relevant to what’s actually happening, we tend to push back against defining people by their record because people are so much more than that. They’re members of community, they’re members of family, they’re full human beings in the world.

Josie Duffy Rice: Exactly. So that’s our first word of the week. Now back to our main topic, which is the public defender. And as we did during season one, we’re going to start out with the basics. So what is a public defender?

Clint Smith: Well, a public defender is basically an attorney provided to a defendant by the state. It’s an attorney provided, at least theoretically, free of charge. But we’ll talk more about the sort of dubiousness of that idea of “free” later. And the purpose of a public defender is to provide the services of an attorney for those who can’t afford it.

Josie Duffy Rice: Right. So it’s impossible to overstate the value of an attorney. If you’re facing criminal charges, having a lawyer is extremely important and I say that not just because I am a lawyer. But before we get into what all that means, what it means to be able to afford an attorney and who gets one and when, we’re going to give you just a little bit of history. So the right to counsel, that’s what it’s called, the right to counsel, it’s pretty fundamental to our criminal justice system. In fact, it’s in the Constitution. The Sixth Amendment says that in criminal cases defendants have the right quote, “to have the assistance of counsel for his defense.” It says other stuff too. Defendants have the right to a speedy trial or the right to an impartial jury, etcetera, but the right to assistance of counsel, ie the right to a lawyer is a big part of it. But what that means exactly wasn’t totally obvious until the Supreme Court ruled in some critical cases beginning with the Scottsboro boys case.

Clint Smith: Lets listen to Bryan Stevenson, the Executive Director of the Equal Justice Initiative and historian Wayne Flynt talking about the Scottsboro boys in a 2001 documentary called Scottsboro: An American Tragedy.

[Begin Clip]

Bryan Stevenson: What Scottsboro teaches us is that you cannot underestimate the power of our history as it relates to race, as it relates to poverty, as it relates to sectionalism in the struggle for justice.

Wayne Flynt: The tragedy of this are nine boys lives hopelessly, eternally interrupted, sent cascading down roads of terror and imprisonment. No, I don’t think there’s any way to see this story but as a great tragedy.

[End Clip]

Josie Duffy Rice: So that was a clip from PBS.

Clint Smith: You may have heard of the Scottsboro boys before, but if you haven’t, we’ll tell you a little bit about them. The Scottsboro boys were these nine black teenagers ranging from ages 13 to 20 who were arrested for raping two white women in 1931. Basically a group of white boys had tried to force these black boys off a train and failed. Instead it was the white kids who had been forced to get off the train and they were angry and embarrassed about it. So basically it’s payback. They told the sheriff that the black kids had attacked them. When the sheriff had the train stopped and searched, two young white women told authorities that the nine black kids had raped them. Well, actually, to be precise, they said six black boys had raped him and the sheriff decided that if six of them did, all of them did. So they were arrested and taken to a jail in Scottsboro, Alabama where they were charged for raping these two white women.

Josie Duffy Rice: And as you can imagine, white people in Alabama were outraged. You know, this is 1931, they are looking for blood. And the governor literally has to call out the National Guard to prevent these boys from being lynched. And so basically everything happens in a flash. They are accused on March 25th, by March 30th a grand jury has been called, by March 31st the grand jury decides to indict them. The trial begins a week later on April 6th, that same day, two of the boys are convicted and by April 8th eight of the nine have been convicted by all white juries. Only one manages to get a mistrial and that’s because he was just 12 years old. Then on April 9th, they were all sentenced to die in the electric chair and this was just about two weeks after they had been accused, you know, one day they are just kids on a train and two weeks later they’ve been sentenced to death. Although they didn’t actually eventually die because the case got taken up by the Supreme Court.

Clint Smith: Twelve years old.

Josie Duffy Rice: Yeah.

Clint Smith: And something that’s really important to remember is that this is a part of a long history in post Civil War and Jim Crow America where black men and black boys were often falsely accused of raping white women or assaulting white women or even looking at white women and that’s used as sort of false pretense for mob violence. And that’s used as a false pretense for, for lynching, and a false pretense for putting black children and black men to death in the electric chair. And we should be clear, not just black men, because black women were certainly experiencing lynching and certainly experiencing false accusations in a similar way that had its own sort of insidiousness as it was tied to gender violence. But, but it’s important to understand what was happening to the Scottsboro boys and it’s sort of this sort of larger historical context of the moment.

Josie Duffy Rice: Yeah, totally. And the thing is like they were subject to mob violence, to lynching and to state violence. And this is an example of where these boys, either were going to die by lynching or they were going to die by the electric chair. And that was pretty clear from basically the moment that they were accused.

Clint Smith: So if you can’t already tell, the whole trial was a sham. There was no physical evidence or anything. In fact, the evidence indicated that they hadn’t raped the girls and later at least one of the women recanted their testimony entirely, but this was Alabama and these nine boys had been accused of raping two white women. So it was no surprise that they were facing the death penalty. As Josie said, if it hadn’t been done by the state, it probably would’ve been done by a lynch mob. We can talk about the Scottsboro boys all day really, there’s a ton of backstory, years of appeals, and although many of them were thankfully eventually paroled, some of these men spent over a decade in jail based on false accusations. But one of the most ridiculous part of the trial was the fact that the lawyer appointed to represent these boys was very clearly, totally unqualified.

Josie Duffy Rice: Yeah. At the time, the right to counsel, like we said, it was part of the Constitution, but it wasn’t very robust. But at the very least, every state was required to appoint lawyers in capital cases whenever the defendant was too poor to hire their own. So the judge appointed a lawyer from Tennessee to defend the Scottsboro boys, but he was a real estate lawyer and he had absolutely zero idea what he was doing and he didn’t put on a very good defense at all and he really hadn’t had the chance to build a case either given that the entire thing lasted like 10 days from charge to death sentence.

Clint Smith: So in 1932, the Supreme Court found this wasn’t gonna cut it. In Powell v. Alabama, the court held that the defendant quote, “requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” The court basically said that if you don’t have effective counsel, you basically might as well not have counsel at all.

Josie Duffy Rice: So this was a major moment for the idea of access to counsel and it makes sense. It’s in a case like this where you can really understand the importance of a good lawyer. And we’ve talked other cases where lawyers come in who have no experience in criminal law and the defendant basically doesn’t stand a chance and who else is going to protect nine black kids facing death from the Alabama legal system unless they have the right to a good, effective, zealous advocate. Okay, so that’s the first important case. And there are some other important moments for public defense along the way, but let’s get to the big one. And that is Gideon v. Wainwright. This is my favorite case by the way, ever.

Clint Smith: It’s a big one.

Josie Duffy Rice: Yeah. I wanted to name our son Gideon and my husband turned me down, but that’s how much I love this case.

Clint Smith: It would have been a good one. You chose a good one anyway.

Josie Duffy Rice: Thanks.

Clint Smith: So Clarence Gideon, almost Gideon Duffy Rice, was arrested in Florida in 1961. He was accused of breaking and entering and when he showed up to court he asked for a lawyer, but of course it wasn’t a capital case so he wasn’t entitled to one. So we handled his own case, did the opening statement and cross examined witnesses and all of that, but he was convicted anyway and sentenced to about five years, but he appealed his case to the Supreme Court on the grounds that he had been denied his right to assistance of counsel under the Sixth Amendment.

Josie Duffy Rice: And in 1963 he won. So the court held that defendants accused of a felony were entitled to an attorney. Some states already provided any attorney to those defendants, but about 15 states did not including Florida and even in the states where Gideon would have been entitled to a lawyer this case was enormously important.

Clint Smith: This is why Gideon versus Wainwright is the single most important case about access to counsel in history. A report from 1951, a decade before Gideon was arrested, found that about 60 percent of all defendants facing felonies didn’t have a lawyer, but the case wasn’t important just because it found that people accused the felonies were entitled to a lawyer. It also found that if a defendant couldn’t afford one, the state had to pay for that lawyer. Before then, even for those who actually had an attorney, it was an open question as to who had to absorb the cost, so people made the state bar pay for it, others had the county do it, so on, so forth. It just depended on the place. But in some places, if you were poor and had an attorney at all, the attorney was probably representing you for free. In a lot of places across the south, including my home state of Louisiana and Josie’s home state of Georgia, even lawyers in capital cases weren’t entitled to payment, and what Gideon said was, look, poor people should always get a lawyer. It doesn’t matter what state, it doesn’t matter what jurisdiction, the state has to pay for that lawyer. This was what helped make public defense a real profession.

Josie Duffy Rice: Yeah, so Gideon set the stage for the system we have today. So let’s fast forward 50 some odd years to now. What does public defense look like today? The answer is not great. States have basically failed to adequately resource and fund public defense across the country and more people than ever need lawyers and our system is just not doing a great job of giving them the tools that these public defenders need to do their jobs.

Clint Smith: So today the incarceration rate has more than quadrupled since Gideon was decided. What’s more around 90 percent of defendants now qualify as indigent. In other words, they’re poor enough to qualify for a public defender. It’s probably unsurprising then that public defenders represent more than 80 percent of those accused for crimes. That’s a staggering number.

Josie Duffy Rice: Yeah 80 percent. I mean that’s a massive number of people and I think that number really indicts not just our criminal justice system, but also the amount of people in America who are living without being able to even afford an attorney, and yet we just don’t give public defenders the resources they need to do their job well. Public defense is in a state of crisis. Here’s a clip from a Vice News episode a few years ago on public defense, and this is a public defender in Missouri talking about the problems he sees every day.

[Begin Clip]

Public Defender: In a perfect world, it would be best if I had enough time to meet with each of them. Unfortunately, you almost have to pick and choose some of the cases that you spend the most amount of time on.

Interviewer: So this is basically we’re looking at your caseload here a little bit.

Public Defender: Yeah. Plus, that, that and that.

[End Clip]

Clint Smith: So let’s talk about numbers. Every year we spend about $180 to $200 billion on our criminal justice system. About $80 billion of that is spent on prisons, jails, parole and probation. About $63 billion is spent on policing. And only about $4.5 billion is spent on public defense. $4.5 billion for 80 percent of people charged with crimes. Comparatively and proportionately, that’s nothing. We spend less than around two to three percent of the system’s money on defending 80 percent of its prisoners. And in a lot of spaces, that number continues to shrink. Take Missouri for example, public defense is funded totally at the state level there and Missouri ranks 49th out of 50 for indigent defense funding. As of last year, there were only about 350 public defenders in the entire state and the head of the office, Michael Barrett, said that they need at least another 300 lawyers to provide even the most basic minimal representation. In other words, they would need to double the staff to be able to do the most basic work needed to defend their clients. Barrett also said that every lawyer should have max 40 to 50 cases at a time, but in Missouri, public defenders had 150. On average, for serious felonies that aren’t murder, they spend less than 20 percent of the minimum hours recommended by the American Bar Association on each case. On murder cases, they spend about 22 hours fewer than recommended. Basically they have no choice but to do a less than stellar job because of how under resourced they are. It’s a systemic problem and basically every public defender in the state is struggling. The ACLU called it a literal constitutional crisis. Here’s another clip from Vice News.

[Begin Clip]

Man #1: In addition to what we have here, we also got 115 inmates housed in other counties outside the facility because we don’t have the beds for them. The public defender’s office is not even two minutes from here but we can’t get them over here to communicate with them.

Man #2: There’s been a handful of times that I went to court and the public defender not even show up at all.

Man #1: We’ve talked to you more than than we’ve talked to our lawyers in a year.

Interviewer: How long have you been in jail?

Man #2: Fourteen months.

Interviewer: Fourteen months.

Man #2: Yeah.

[End Clip]

Josie Duffy Rice: To be clear, we’re not saying that all public defenders are bad at their jobs because they’re under resourced. You know, there are countless public defenders out there who are doing an incredible job providing representation to their clients with basically nothing. And when you see them doing so much with so little, you really have to consider what they could do if they actually were properly funded, if they actually had a reasonable amount of cases. So in 2014, the state legislature finally approved a funding increase for the Missouri public defense system, about $4 million. Which would have been an important addition to the then around $34 million budget in the state. But the governor went ahead and just vetoed 80 percent of that increase after the legislature had approved it effectively keeping the system in dire straits despite the legislatures interest in relieving it.

Clint Smith: This is wild and it’s not just Missouri. In a lot of places, it’s really, really bad. The maximum that the American Bar Association recommends for a caseload each year is about 150 felonies and 400 misdemeanors per full time attorney, which even listening to that still feels like a huge number. But in 2007 lawyers from Florida had over 500 felonies and 2,225 misdemeanors. In Tennessee, six attorneys were responsible for over 10,000 misdemeanor cases between them.

Josie Duffy Rice: And this goes back to something that we talked about last season, Clint, about plea deals, right? I mean if you don’t have enough time to basically even meet your clients or talk to them, it makes sense that cases are pled out so quickly, so often and basically with little consideration. In places like Mississippi and Louisiana, defendants often sit in jail for weeks or months before they even see a lawyer. And in February of 2017 a report came out that said that in order to reasonably handle the 150,000 cases assigned to public defenders each year, Louisiana would need 1,800 full time attorneys. At the time it had 363.

Clint Smith: The level at which we’ve underfunded public defense in this country is a real travesty and it’s really a microcosm of how hard it is to be poor in the criminal justice system. Part of the reason that it’s so underfunded is because the general austerity of state budgets, almost everything has been cut many places and public defense is no exception, but there’s also just a general lack of appreciation for public defense and public defenders in the world and society that we live in where anyone who commits a crime is seen as a bad person. We’ve absorbed so much of the tough on crime rhetoric that’s been espoused over the past 30 years that to many people, what public defenders do seems almost immoral. Every one of the public defenders we know has heard stuff like, ‘I can’t believe you defend those kinds of people’ or ‘I can’t believe you try to help criminals.’

Josie Duffy Rice: And yes, sometimes their clients have done some unsavory stuff. That’s the reality of being a public defender, but there’s something really important to keep in mind here. A defendant in the criminal justice system is facing the entire government. It’s them versus the state. Prosecutors represent the whole state. That’s why they refer to themselves as quote “the people” in court, and that’s why the nomenclature of cases is, for example, “the people versus Duffy Rice.” So a defendant facing the entire government really only has one tool to equal out the vast power imbalance and that is their attorney.

Clint Smith: And that’s not an immoral job. That perhaps is the most important job in the world. Public defenders are a critical part of the defendant’s rights that are enshrined in our Constitution, but if your attorney literally only has ten minutes to spend on your case, how can you and they provide any semblance of a quality defense?

Josie Duffy Rice: I once wrote a story about a guy named Terry Williams in Pennsylvania who was sentenced to death after his lawyer barely put on a defense, and if you read the case, you’d think he had the worst lawyer in the world, right? This guy had only met Terry, a man facing death, one day before his trial and he failed him in pretty much every possible way.

Clint Smith: But there’s also a lot of evidence to indicate that it wasn’t his lawyers fault really. Public Defenders have only 24 hours in a day just like the rest of us, and I don’t mean to imply that every public defender is like his lawyer, some of the best lawyers we know are public defenders and are some of the best out there, but there’s no doubt that a reasonable caseload and access to resources would actually change the criminal justice system significantly. It’s unfair to ask them to do so much with so little and yet there have been no major movements to increase defense funding. And you’ve got to ask, why is that? To talk to us more about this is Jon Rapping, the Founder of Gideon’s Promise, so stay tuned.


Josie Duffy Rice: So we’re here today in Atlanta with Jon Rapping, the Founder and President of Gideon’s Promise and a Professor at John Marshall Law School and I cannot tell you how excited I am to be here with Jon Today. Thank you so much for joining us.

Jon Rapping: Oh, thanks for having me.

Josie Duffy Rice: So you are just one of the leaders in the the movement to resource and improve public defense nationwide. And you started this organization called Gideon’s Promise. So can you tell us some general background on Gideon’s Promise?

Jon Rapping: Sure. So I started my career, is it okay if I go back to that? Because I think I kind of need to talk about how I started my career to really understand why we founded Gideon’s Promise-

Josie Duffy Rice: Totally.

Jon Rapping: But I started my career as a public defender in Washington DC, which is really one of the premier public defender offices in the country. It’s a model public defender office. I think what I probably didn’t appreciate as a young public defender in DC is just how rare it is for public defenders to be able to practice the way poor folks deserve. I spent ten years in DC. Uh, I had a manageable caseload. I had investigators and expert resources, training, supervision and I was able to, I worked seven days a week, but I was able to give people what they deserved. And then I moved to Georgia when Georgia started a new statewide public defender system. I came here to be the training director for Georgia’s new statewide system. A couple of years later after Hurricane Katrina hit, I went to New Orleans to help with the effort to rebuild that office.

Clint Smith: My hometown.

Jon Rapping: Is that your hometown?

Clint Smith: It is.

Jon Rapping: It’s a great city, great city.

Josie Duffy Rice: And now he lives in DC, so, just covering all the-

Clint Smith: Just following you around.

Josie Duffy Rice: (Laughs.)

Jon Rapping: (Laughs.) I spent some time in Alabama, Mississippi, and it was really my introduction to what public defense is like in the rest of the country pretty much and I started to meet these young, passionate public defenders right out of law school, right? They were every bit as talented as the lawyers I worked with in DC. They were just as smart, but they were going into systems that would very quickly beat the passion out of them and I was finding that within a couple of years, one or two things, one of two things would happen, right? Either they would quit or they would start to become resigned to the status quo. They would start to get shaped by systems that truly didn’t care about poor people. So in 2007, my wife and I founded Gideon’s Promise to be an organization to not only recruit some of the most talented future public defenders to these systems that desperately needed, not only to give them really top notch training, but also to support them as they became change agents in these systems. And that’s really what Gideon’s Promise is about.

Josie Duffy Rice: Can you just say briefly why DC has such a superior public defense service because it’s not just that DC is a metropolitan area, it’s that it’s federally funded, right?

Jon Rapping: Well, so there is a unique funding structure, you know, when the public defender office in DC is now probably about fifty, more than fifty years old. Uh, but when people sort of got the idea to develop this public defender office, it was developed as part of the DC superior court system. And so it’s actually a line item for the DC courts which is funded through congress. So, so that really is it. It’s a, it’s a congressional line item. And given everything that Congress is funding when it comes to criminal justice, I don’t think there’s a huge focus on just public defense in DC. So the DC public defender services avoided some of the, some of the sort of the funding threats that state systems have faced.

Clint Smith: We’ve spoken to so many people who are based in New York or based in California or even based in DC. And I’m curious, we haven’t explored the sort of landscape of criminal justice in the South to the same extent. And I’m curious about your decision, which seems like a very specific and intentional decision, to focus, to base Gideon’s Promise here in Atlanta and to have the South in mind when you’re thinking about what the context of this work looks like. Could you talk a little bit about why you did that and what was shaping that decision?

Jon Rapping: Yeah. Yeah. So, you know, when I was a third year law student, I knew I wanted to be a public defender. Um, this was 25 years ago and all of us who wanted to be public defenders at that time, we were looking at the same sort of handful of offices. You’d consider going to DC, New York, Philly, if you wanted to go to the west coast it was San Francisco, but it never crossed my mind to come to Georgia, Mississippi, Louisiana, Alabama, right? These weren’t systems that had well resourced public defender offices. They weren’t known for their ability to train and develop and support lawyers. And so all of these fantastic public defenders I knew were sort of steered to a handful of offices largely in the northeast. And when I was contacted by someone who’s been a hero of mine since I started thinking about public defense, Steve Wright, he gave me a call and asked if I’d consider coming to Georgia to be the training director for this new public defender system. And it seemed like a once in a lifetime opportunity, right? To be able to actually think about how to build a public defender office that had the same ethos, the same client centered commitment that I had become used to in DC. I think two years later when I went to New Orleans, it was a second once in a lifetime opportunity to start doing that in New Orleans and after being involved in those two projects the idea of trying to build an organization to do that more broadly across the South made a lot of sense. I think why the South? I think that historically the South has been a part of this country that has been most oppressive towards communities of color and disproportionately public defenders represent communities of color. You know, I also think along those lines Clint that I think of public defense differently now than I did when I was in DC. Um, you know, when I was in DC, I sort of understood my work as a public defender as, as kind of really providing high quality representation to individuals and individual cases. I don’t think I really thought as much about how that work was connected to an ongoing kind of system designed to oppress poor people and people of color.

Clint Smith: When did that thinking shift? When did you start making that connection?

Jon Rapping: I think when I moved to Georgia and I started seeing what was happening across this state and across the South, it really became clear to me that the work public defenders are doing is connected to the work that civil rights warriors had been doing for 50, 60 years, even longer. Um, and while people were doing really important work in the sixties, in New York and in DC, the front lines of that battle was in the South. It was people doing this work in Georgia and Mississippi and Alabama.

Josie Duffy Rice: Right. So back to sort of the question, art resources, and I think this is tied to what you’re saying about what you saw in the South as sort of a kind of coordinated effort to oppress. Can you give some concrete examples of what you see the people that are coming out of your program face in terms of lack of resources? I think Louisiana is obviously a great example because there have just been story after story of them cutting salaries more and making it hard to represent clients, but it does seem like in a lot of places people are set up to, they depend on their clients conviction to get their paycheck basically.

Jon Rapping: Well certainly there are systems where and Louisiana is a perfect example where poor people have to pay for their public defenders, for example. Uh, and that is a system where public defenders sort of are at conflict with their sort of their duty to their clients. But, but I think the biggest struggle that I see with our lawyers really is just that they have overwhelming caseloads. They don’t have resources and they’re going into systems that expect them to process. And so really the calls I get the most from our young lawyers are calls where people just feel like everyone in the system wants them to process human beings and they’re trying to figure out how they resist that pressure. Sometimes they say, ‘Am I the one who’s crazy because I’m insisting that we have this hearing, I’m insisting that we address this motion or that we deal with this legal issue?’ And it takes mentors and it takes a supportive community to remind them, ‘You’re not crazy at all. That’s exactly what your clients deserve. You’re in a system that has come to expect less and you’re part of an effort to change that system.’

Clint Smith: So what do those conversations look like in terms of young folks who come in wanting to to resist the sort of almost factory model that our justice system has come, I mean, we had people on the podcast in the first season who were talking about how the system would, there are scholars who think that system would sort of crumble and implode in on itself if 96 percent of cases didn’t end in plea bargains and plea deals and what will it look like in an effort to create a fair justice system you also are shifting the very paradigm of how our justice system is in some ways meant to operate. So I guess I’m curious what your conversations look like with a young 20 something who insists on wanting to bring every one of their clients to get a hearing, but also is working with this unfathomably large caseload and like what does that look like in your role as a sort of mentor?

Jon Rapping: Yeah. You know, when I first moved to Georgia and I started training young public defenders here, I would bring former colleagues of mine from DC down to help train and they would sort of tell these lawyers, ‘you have to do this,’ ‘you have to do that,’ ‘that’s what your client deserves.’ And these lawyers were in systems that wouldn’t allow them to do all those things and they started to feel like ‘I am being completely ineffective’ and it would literally drive them out of the work. And what I came to realize very quickly is it’s not realistic that we’re going to train these lawyers to give every person what they deserve tomorrow. We’re training these lawyers to start to chip away at the gap between what they can do and what our Constitution and our democratic promise demands. Um, you know, there’s a story I frequently, um, share when I talked to public defenders and I talk about there’s a, there’s a book I read, um, it was written by a man named Bruce Watson. It’s called Freedom Summer. And it was,  Bruce Watson tells the story of that summer project in 1964 where young people from all across the country came to the South to join heroic civil rights workers in Mississippi to register people to vote, to build freedom schools, to help people pass literacy tests and Bruce Watson tells the story through interviews with these folks. Albeit 40 years later, and through this, this process, he tells a story of how these folks would come down to Mississippi and they’d be excited and they think they changed the world. And within weeks they would start saying, you know, ‘I’m discouraged.’ Their hope turned to despair. They started to feel like ‘maybe my family was right, maybe this doesn’t make a difference.’ And Bruce Watson, fast forwards 40 years to a conversation with Congressman John Lewis, one of the architects of Freedom Summer, and John Lewis said, you know, if it weren’t for Freedom Summer, Barack Obama wouldn’t be in the White House. Quite literally he was saying sometimes change is so incremental, people involved in it don’t even realize it’s happening. And so I get calls from young lawyers, they come to, we start out every class with this two week intensive bootcamp and they leave after two weeks feeling like they can change the world. They go back to their offices ready to change the world and within weeks the phone starts ringing and I’ll get the same call, it’ll be a lawyer saying, you know, ‘Rap,’ which is what everyone calls me, ‘I feel like I need to quit. I feel defeated. I’ve got 300 cases. I can’t be the lawyer my clients need me to be’ and what I’ll say to them and what all of us who are faculty and mentors say to them is, look, when you walk into a courtroom and the judge wants you to just sit down and shut up and help move cases and you stand up and you say, ‘Judge, I’m not doing it today.’ When you do that, you may not get the tangible result that your client deserves, but when you do it and your colleague does it in the courtroom next door and another group does it in the next county over and another group in the next state over, collectively you’re raising expectations about what justice means for poor people. So, so I’ll just end that by saying, when I think about how I think about this work differently than when I was in DC, when I was in DC, I didn’t appreciate how I was one of an army of advocates pushing to change expectations and change culture and change the narrative around how poor people deserve to be treated. That’s how I see public defense today.

Clint Smith: Which isn’t how it’s often framed when I think of my own friends who have sort of come out of law school and went into public defense it was, I think we are, we have this sort of, it’s almost this Atticus Finch-like sort of prototype of what a public defender you know is and that you’re going to go in and and bring these people to court who have been wrongfully convicted or wrongfully charged and through your individual heroism you will like change a person’s life. And that’s not to say that those things don’t happen, but I think the framework of, of recognizing that it is not singularly the individual battle you’re fighting in the context of your own client or even your own courtroom or even on that day or your own caseload, but that you alongside all of these other folks who are approaching the work with a similar paradigm shifting mentality that that’s ultimately sort of what shifts the Overton Window of how this work is ultimately done.

Josie Duffy Rice: Yeah. It’s interesting because, so my first job out of college was at Bronx Defenders. I was Robbin’s assistant and Robin, if you’re listening, I’m sorry I was such a bad assistant, but, but it was such a life changing experience for me for that reason, which was, well first I had this um, this experience where I started with another girl who was someone else’s assistant and our second day there she said, ‘did you know that we defend guilty people here?’ And it was such a fascinating moment to realize she, she, she left like two weeks later because in her head that was so unbelievable and going into that office every single day and it was, you know, it’s a stressful and sad environment very often, but you, it’s tangible the impact that people, it’s having on people’s lives and on the environment, on the neighborhood. And again, Bronx Defenders is one of the places that is very well resourced, that is very well staffed. It’s not like being in Lafayette, Louisiana, but it is, I mean, that’s why I’m got into this work is walking into the public defender’s office and it feeling like the, the mere fact of having an advocate for some of these people was unprecedented.

Jon Rapping: So, you know, it’s interesting because Clint, you actually, I think your comment takes this to a conversation that I, I try to have as much as possible and that is this idea that we’re in this moment in time, I mean maybe we’ve been fading from it a little over the last couple of years, but we’re in this moment where people really are thinking about criminal justice reform and there is largely a bipartisan sentiment that we have to do something different when it comes to our approach to criminal justice. And I listen to these conversations and we talk about bail reform and sentencing reform. We talk about progressive prosecutors, but the one piece that is always missing from those conversations is public defenders. And I think the reason is because all these folks talking about criminal justice reform, there’s no doubt in my mind that they love public defenders and they think they’re important. But they think about them as you articulated that public defenders are kind of this Atticus Finch type hero who represent one person at a time, nobly and does it really well, and they do that and we have to applaud that and that’s really important. But what I’ve come to understand is that in addition to that collectively public defenders are the vehicle, the only vehicle that can give voice to 80 percent of the people in the criminal justice system and that that voice is absolutely central to any effort to truly transform justice in America.

Josie Duffy Rice: So can we, perfect timing “justice in America.” Can we talk about that a little bit more? Because a lot of people, well, I work in criminal justice reform obviously and I don’t work with clients and I find that this can be a very theoretical system for people after a while. So you know, tons of people even who maybe previously worked with clients, whatever, they are not doing that anymore. They are now in an office talking about policy, talking about legislation and you just, I imagine, start to forget what it actually means to go into a courtroom and represent someone. And I say that as someone who has not worked extensively in representing people. So I wonder because a lot of people in this field actually do know that public defenders have a really tough job. Maybe not outside of the criminal justice reform field, but internally they certainly know. So it’s interesting that it has not gotten more attention. And I wonder, I mean, I, I hear you say that you think part of that is because people don’t understand you know, what it takes, but what about the people who do understand what it takes? Why do you think there has not been as much of a movement around public defense?

Jon Rapping: So again, I, I didn’t even mean to suggest that anyone doesn’t understand what it takes. I mean, certainly I’m sure some don’t, but apart from understanding what it takes to do this really important work, I think the problem is without an analysis that connects public defenders to communities that are being oppressed and sees public defenders as a critical voice, I just think without that analysis, we don’t see public defenders is having a systemic impact. We see public defenders as being really important for individuals, but we see that as sort of a drop in the bucket when a policy reform that cuts sentences in half has such sweeping impact. And I just think that is a misguided or I should say incomplete analysis.

Clint Smith: So I’m just thinking about, you know, we’ve been talking about so many young people who come out of law school and who go through this sort of idealistic lens into public defense. But there’s also been this sort of movement recently, uh, encouraging those same people with that same sort of idealism to go into the role of prosecutor in a way that we haven’t necessarily seen as being sort of advocated in the criminal justice space at least as far as I can remember. And I’m curious how you think about that, right? What, how people, you know, with this conversation that we need more good, compassionate people who otherwise would go into public defense bringing those ideals into the prosecutorial context. Um, and that’s not to say clearly that they are mutually exclusive, but I guess I’m curious how you think of what that conversation looks like?

Jon Rapping: There was a, a video that I frequently sort of refer to that I saw a few years ago. It was, uh, a man who was elected by all the other public defenders in Tennessee to be their spokesperson. He was the president of the Tennessee Public Defender Conference. And he was at a budget hearing speaking on behalf of the public defenders in Tennessee. And he was asked a simple question, ‘do you have enough resources?’ He said, ‘let me tell you, I’ve got a five county district.’ He said, ‘I have five lawyers and one investigator.’ He said ‘last year we closed 4,000 cases,’ that’s 800 cases per lawyer, right? And he went on to say, ‘so let me assure you, there is one district in Tennessee that has enough.’ He said, ‘we’re blessed.’ He literally said, ‘I have seasoned lawyers. They’re very efficient. It’s a time saver. They’re good at processing people.’ Those were adjectives he used with pride to talk about his office. And what I always say when I talk about that video is I don’t think that man came out of law school 30 years ago saying, ‘you know what I want to do with my life? I want to help process 800 people a year into cages.’ He was shaped by a system that had come to find that that was all the justice poor people deserved. And so when someone says to me, ‘why don’t you encourage your public defenders to be prosecutors?’ I say, because we desperately need to groom our best public defenders to be the person sitting at that table when they’re asked that question, because that man’s response, he alone impacts 4,000 lives a year. Well, 4,000 lives directly, tens of thousands when you include family members and community. And then when you think about when those funders have to fund other offices in Tennessee, the impact that that mindset has on resources that public defenders across the state get. So I actually think that there’s nothing more important than making sure that when someone is accused of a crime, they have an advocate who can really speak for them. Now, when it comes to the prosecutor piece, there’s no question in my mind, prosecutors have been incredibly punitive and if we can find prosecutors that are less cruel, if we can find prosecutors that won’t do as much damage, that is a good thing, but I believe that transforming our criminal justice system really does require giving voice to impacted communities. Only public defenders can do that. When you look at all of the ills in our criminal justice system, whether it’s excessive force that police use on individuals, whether it’s processing people from arrest to sentencing without any real protections, we allow all that to happen because we’ve accepted a narrative that says some communities are less human. Some communities are dangerous, some communities are others. We have to change that narrative. We won’t really have justice until we change that narrative. And that narrative has changed when the individuals that are part of those communities have their stories told when their voices are amplified, that can only happen with public defenders. So. So I’m all for progressive prosecutors. I just think they’re less cruel. I don’t think they’re transformative.

Josie Duffy Rice: So related to your point about how we see these communities, one of the things I know a lot of public defenders talk about is when you tell people what you do, they again, like the woman I worked with, their response is ‘how can you defend guilty people? How can you defend people who have done these heinous crimes?’ You know, and I would like to hear from you, I’m sure you’ve had to answer that question many times, how you see, I find that a lot of people can get defensive about that or apologetic and I think that that always seems like the wrong response to me because this is like, I think public defense is God’s work, you know? And so how do you respond to that question?

Jon Rapping: So I mean, honestly, I think that, uh, Bryan Stevenson probably talks about this as well as anyone when he talks about how we live in a world filled with broken people. People, all of us, make mistakes. I often talk to my students when we talk about in criminal procedure, what it means when a police officer identifies an area of a high crime area and I say describe a high crime and they all point to, you know, Bankhead Highway. And I say, and I don’t have any statistics to back this up, I say I, I would suspect probably the highest crime area in Atlanta is the campus of Georgia Tech, right? My guess is every student there is drinking under age, some are probably smoking pot, but it’s not that we all make mistakes, but in our criminal justice system we choose to target certain people and punish them for their mistakes and not others. And I think that’s because we really don’t see them as valuable members of our community. So when you ask me how can we represent people who might be guilty, I really believe we represent people who may have made mistakes and it’s our job to help people who judge them understand the whole person so they can put those mistakes in context and not define the person by that one mistake. That’s what public defenders do is they give us the information about the person so we can make wiser decisions about how to respond. When we talk about punishment and sort of the way we treat folks in our criminal justice system, you know, we were talking before this podcast about your young children and I was talking about my children and I, I really think that everything I really understand about punishment probably comes from being a parent. But I have two kids and sometimes they violate the rules that I make and I, I don’t even want to say punishment, I try to help them understand there are consequences to breaking the rules and I fashion consequences that are designed to help them become better people, to help them succeed at life. I would never fashion a consequence that I thought would cripple them, would, would render them unable to move forward in a healthy and productive way. And I believe that those of us who decide to participate in the criminal justice system, we have an obligation to treat every person’s child in the system as though they’re our own. Of course there are consequences to violating rules, but we have to fashion consequences designed to help people get back on their feet, become stronger, become healthier, become more productive. And as soon as we start fashioning consequences that we know cripple people and families and communities, then clearly we don’t really see them as people who are as valuable as the folks we love. And that’s really, I think, the essence of the problem.

Clint Smith: So I think that, something that’s always, obviously that shapes the way that that all of us in this room think about the work that we do is thinking about the historical context and the social conditions that would put someone on a trajectory in which they are, find themselves engaging in criminal activity or find themselves the target of being indicted as a criminal in ways that other people aren’t. And I think that those examples are certainly more plentiful. I also think and where this conversation, to Josie’s point, I think it gets harder, is that, for example, the the Tree of Life shooting in Pittsburgh and I know that you’re from Pittsburgh and you had your Bar Mitzvah, I believe, at that synagogue. This man took the lives of 11 people and there is someone who is tasked with defending him. How do we think about and reconcile the work of defending those who have committed crimes or have been accused of committing crimes? And or in this case, have very clearly done heinous, terrible things, that have been inflicted harm on, on people and families and communities with the commitment to wanting everyone to have the best defense that they can have in a system that we know is broken. How do you think about those things together?

Jon Rapping: Well, I mean, I, I do have a close connection to Squirrel Hill and Tree of Life and so certainly that experience might be more personal to me than some of the others. But, but one of the most moving stories I read about coming out of that sort of week of events after that shooting was a story about the doctor who actually was the president of the hospital where the man who committed these shootings was treated and this doctor was Jewish and he was also a member of the Tree of Life. And he talked about how he walked into the hospital room and he talked to that man and he said, ‘I looked at him and I saw someone who was confused and who was scared and he needed help. And my job as a doctor isn’t to judge. It’s to give him help. That’s my job.’ Uh, I listened to that and I think to myself, there’s no question in my mind, most of us couldn’t do that. Thank God somebody can right? Most of us shouldn’t be doctors, but those who want to be doctors have to be able to do that because they have an obligation higher than any single incident, no matter how horrific. That’s true with public defenders. So we have a system that says as soon as we start deciding we can judge some people and punish some people without giving them the process we would want for our loved ones, for our children, as soon as we start doing that, it’s a slippery slope before the promise of equal justice is really more illusory than it even is now. And so what I think public defenders do and my feeling about representing people who do something even as horrific as that shooting at Tree of Life, is we have an obligation to make sure in those moments particularly that we don’t fall short on our promise of the protections we all want for one another because that’s when we are most called to protect them. That’s when we’re tried the most. The people that do that are heroes I think. And so it’s, it’s inspiring to me to be surrounded by folks like that every single day.

Josie Duffy Rice: Yeah. I love that answer.

Jon Rapping: You know Josie so you wrote this piece, I remember-

Josie Duffy Rice: Uh oh.

Jon Rapping: That I love. No, I loved it in The New York Times. I think it was called “The Myth of the Progressive Prosecutor.”

Josie Duffy Rice: Yeah.

Jon Rapping: And I just loved the title because I’ve always struggled with that term “progressive prosecutor” because I think like what earns someone the label “progressive prosecutor,” is you’re a prosecutor who simply is reasonable when it comes to dealing with things that historically prosecutors have been excessively unreasonable about. So if you have a prosecutor who says, ‘you know what, I’m not going to charge people for marijuana. I’m not going to lock someone away or given them a record that will ruin their life for marijuana.’ We consider that person progressive. In the public defender world that’s just common sense. When we get a prosecutor who says, you know, ‘we’re locking up too many poor people pretrial simply because they’re poor. I’m not going to lock up as many. I’m going to lock up half as many’ that earns them the label progressive when that really is simply common sense and I would argue doesn’t even go far enough. And so I think what we see with progressive prosecutors oftentimes, and I don’t want to cast too broad of a net, but, but oftentimes I think with progressive prosecutors, they’re shrinking the system. They’re not charging the most minor offenses. They’re more reasonable about sentencing. And so they are, they are reducing the number of people who end up in the system or in cells. But while it might be that half as many people are in the system, those people still are exclusively poor. They’re still disproportionately people of color. That system might be less unjust, but we can’t mistake that for a truly just system and my concern about the movement to pour all of our resources into the progressive prosecutor is that we tend to think the progressive prosecutor is the savior and as a result we’re not focusing on all these other things like funding public defenders to give people the voice they need. I’m all for progressive prosecutors, but it’s got to be part of a much more comprehensive package of reforms that has to include advocates for the people who have been oppressed historically in this country.

Josie Duffy Rice: And I think on that same note, it’s set up to fail when we identify the prosecutor as the savior because the reality is, like you said, that they’re still playing this one fairly, not small, but specific role in the process. And I worry about the era of progressive prosecutors because if crime goes up tomorrow in you know X city or something terrible happens, you let someone out on bail and they killed 20 people. What the incentives to revert back to a risk averse space are so high in a way that they don’t have to be for all the other players in the system, theoretically. And speaking of the systemic pressures I think that has to do with how we’ve, in my head prosecutor should be saying ‘it’s not my job to keep everybody safe. It’s actually not my job. You should talk to your healthcare, your schools, your parks. This is not actually like, I’m not preventative, but here are all these systems that could be preventative, that should have that pressure on them.’ And I don’t think, I guess what I’m saying is I don’t think that we are shifting kind of the pressure mechanisms yet in a way that, um, that has to happen.

Jon Rapping: I couldn’t agree with you more. I’d vote for you for prosecutor.

Josie Duffy Rice: (Laughs.)

Jon Rapping: No, I, I couldn’t agree with you more because I often tell my students, I teach a course called Criminal Justice Lawyering and uh, and I often tell my students that I share with them what I think prosecutor values should be. And I believe that prosecutors should not care at all about conviction rates. The result of a case it should be the right result after the prosecutor has ensured that all of the protections guaranteed in our democracy are met. And so a prosecutor should ferret out, police, they’re cheating, they should turn over exculpatory information, they should try their best to prove their case. And if at the end of the day a jury says not guilty, they should celebrate the justice is done. And we’ve gotten to a place where literally, unless the verdict is guilty, they feel like they’ve lost. And uh, so I agree with you, it’s not the job of the prosecutor to keep us safe. It’s the, well, it’s the job of the prosecutor to keep us safe in the sense that their job is to make sure all of the protections at the heart of our democracy are realized in the courtroom. And we know that’s not happening.

Josie Duffy Rice: So why do you think we’re like this? And by that I think we mean, you know, we live in this country that supposedly values liberty and freedom and reinvention even, I would say, and we have this criminal justice system that is so gargantuan in a way that is, so clearly does not line up with anything that we profess to believe. And so however you take that question to mean, I’m interested in why you think it is about us as a nation that has created this system?

Jon Rapping: So I, I think I don’t have an original answer. I, I, I don’t think anyone can answer that question any better than Michelle Alexander did in her book The New Jim Crow or Ava DuVernay did in the wonderful documentary 13th. I think we are a country that has always felt the need to other-ize, to view some communities as demons, as monsters, as others. And I think that, um, we’ve had systems of control put in place so that the uses could control the thems. And I think those systems have changed over time. Again, there’s nothing original about this. It went from slavery to black codes to Jim Crow and, and I think the criminal justice system is now seen as a way to control communities that we’ve come to believe, it’s our implicit bias, that says some communities are really dangerous and we need protection, so again, I think any attempt to overcome that has to include an effort to change the very values that shape us as human beings unintentionally. I know a lot of people who are really well intentioned. They are good people. They believe they’re egalitarian, but they are products of America and so their products of a system that sells us a narrative that says some people are better than others. That’s always included race, it’s always included religion, it includes sexual preference and gender and all sorts of things and we have to very consciously tackle that.

Clint Smith: So just to finish off, people often listen to this podcast and they learn all of this information and get a sort of political education and they are like, ‘okay, well what can I do?’ You know, not everybody is, some people listening to this are public defenders or prosecutors or what have you, but a lot of people are not. And are not involved in the criminal justice system directly. What would you say to someone who wants to have a positive impact on criminal justice reform or the criminal justice system and how would you tell them to get involved or what steps to take?

Jon Rapping: Getting involved, I think there are many ways to get involved, but ultimately I think that everybody involved in criminal justice who wants to have a positive impact, has to always remember that we don’t truly have justice if we don’t treat everyone with humanity. And so I think it’s as simple as reminding everyone you talk to when their instinct is to dehumanize that that’s not okay. When we call people defendants instead of Mr. Jones, we should be reminding people that’s a label that dehumanizes. When we call someone a criminal, we should remind people that all of us violate rules here or there. Um, and that criminal is really a term used to dehumanize. I think it really is about educating our children to go to communities where people aren’t like them and to grow up to understand that what we see as differences really aren’t differences at all. That we’re all part of the same community. I think those are some of the things people should do and when it comes to public defenders, I think we should recognize that we have to train our public defenders to see their role as challenging inhumane narratives at a return.

Josie Duffy Rice: Thank you so much Jon. This has been amazing and I’m so glad you could join us.

Jon Rapping: Well, thank you. It’s been great being here. I appreciate it.

Josie Duffy Rice: That was Jon Rapping, the Founder and President of Gideon’s Promise. It was wonderful to talk to you Jon. Thank you so much.

Clint Smith: Thanks for listening and coming back to Justice in America. I’m Clint Smith.

Josie Duffy Rice: I’m Josie Duffy Rice.

Clint Smith: You can find us at Twitter @Justice_Podcast, like our Facebook page at Justice in America, subscribe and rate us on iTunes. It really helps.

Josie Duffy Rice: Justice in America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn and additional research support is provided by Johanna Wald. Thanks for joining us for season two and we’ll talk to you next week.


Announcing Season 2 of ‘Justice in America’

Join Josie Duffy Rice and Clint Smith for the most important discussions on criminal justice.

Announcing Season 2 of ‘Justice in America’

Join Josie Duffy Rice and Clint Smith for the most important discussions on criminal justice.

Tomorrow we will launch the second season of “Justice In America,” available on iTunesStitcherSoundCloud, or wherever you get your podcasts. Hosted by Josie Duffy Rice, senior reporter at The Appeal, and Clint Smith, doctoral candidate and poet, each episode of Justice in America focuses on a different facet of the criminal justice system. Through conversation, storytelling, media, and interviews, the hosts shed light on how our system functions, and the ways in which it disproportionately harms poor people and people of color.

The second season of “Justice In America” will cover topics like juvenile justice, public defense, how judicial elections contribute to mass incarceration, and how the media covers the criminal legal system. Guests this season include author and activist Mariame Kaba, the Washington Post’s Wesley Lowery, and other leading voices. This season will also introduce a new segment aimed at helping listeners question commonly misused, misunderstood, or frankly, harmful phrases or terms related to criminal justice.

The season’s first episode examines the role of public defenders in the justice system and features Jonathan Rapping, founder and president of Gideon’s Promise. Rapping discusses the work being done around changing the public defense landscape in America by grooming a generation of public defenders.

You can listen to the first episode on Wednesday, Jan. 16. You can listen to the teaser and subscribe to “Justice in America” today!

The Appeal Podcast: The Power of Sheriffs

With Appeal contributor Jessica Pishko.

Hisashi Ohkawa

The Appeal Podcast: The Power of Sheriffs

With Appeal contributor Jessica Pishko.

In the past few years, criminal justice reformers have focused on city police departments and prosecutors. What might be gained from focusing on sheriffs’ departments? Sheriffs wield a tremendous amount of power in our criminal justice system but largely fly under the radar. Often running on tough on crime platforms, once elected, they are largely unaccountable to city councils and other elected officials. Appeal writer Jessica Pishko has recently written an explainer on the subject, and joins to talk about county sheriffs.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main Facebook page and you can always subscribe to us on iTunes. These days police and prosecutors are the primary focus of criminal justice reform efforts, but increasingly those trying to curb the excesses of our system are turning their attention to the institution of county sheriffs. Elected, but paradoxically, largely unaccountable, sheriffs in many districts act with little oversight and spend much of their time reinforcing racist hierarchies and demagoguing for TV cameras. Appeal Writer Jessica Pishko has recently written an explainer for The Appeal on the subject and joins us to talk about the history and inherent problems with the institution of sheriffs.


[Begin Clip]

Jessica Pishko: Historically, one would say that the role of sheriff played a more dominant role in the South, the South and the West, and that dominant role would primarily be a role of enforcing segregation, enforcing Jim Crow and ensuring that white people stayed in power.

[End Clip]

Adam: Jessica, thank you so much for joining us.

Jessica Pishko: Thanks for having me.

Adam: So you have written a rather lengthy and robust explainer on sheriffs and what sheriffs are, something that maybe at first sight, one wouldn’t think we wouldn’t need an explain on, but after reading your explainer it is quite clear that we do, which is to say that most people I think don’t actually really know what sheriffs do. Can you start by sort of giving us a sense of what sheriffs are, what their scope is generally? I know they vary based on the state and what some of the history of the sheriff is.

Jessica Pishko: Sure. Be happy to do that. So the sheriffs don’t play as big of a role in urban areas as they do in rural areas and so I think that for many people it’s not something that they’re as familiar with. Basically to kind of go through the history of the sheriff. The sheriff was a position that was developed in England, which is where the word sheriff comes from.

Adam: The Sheriff of Nottingham, right.

Jessica Pishko:  Like the Sheriff of Nottingham. So back in those times actually the sheriff’s primary role was as tax collectors. So their job was to sort of go around and collect money from people. When sheriffs came to the new world they took on a kind of a law enforcement role. And so particularly as the colonies expanded westward into more rural areas, sheriffs became more important kind of a quasi law enforcement, quasi tax collection, quasi administrative role, right? So their job has always been kind of piecemeal. When different states began to develop their state constitutions, the role of sheriff was written into the constitution as an elected position, which is very important to the role of the sheriff. So the sheriff is very much seen as a kind of popularly elected, they represent the people, they enforce the laws that the people want. Right? So this is kind of where it gets really interesting. And today the role of the sheriff, sheriffs can serve multiple functions kind of depending on where you are. In some places the role of the sheriff is limited to something like a marshall. They take people from the jail to the hospital, they take people to court right? It’s sort of like a US Marshall or bailiff. In most places sheriffs manage the local county jail, so they are in charge of maintaining the jail and showing that people are safe and healthy inside the jail, and then in other places sheriffs serve even more of an investigative role, so they have a role in investigating crimes, arresting people and those types of things. So what’s kind of interesting about the job is that it’s, it’s different in different parts of the country, but also they sort of have this very expansive role that encompasses more than, generally more things than police do. Right? And if you live in a county where the sheriff is your primary law enforcement, then they are also the person that responds to you for everything from missing people to murders to things like you have someone cooking meth next door, right? So you’re going to have, the sheriff’s going to deal with lots of different kinds of issues within their community.

Adam: So because its typically countywide it’s kind of a backstop. It’s that which is not necessarily incorporated city falls within the jurisdiction of a sheriff. Right?

Jessica Pishko: Right. So in most, now, this again varies in some places, but in most places, so for example, if you are in Baltimore city and something happens, that jurisdiction will generally be the Baltimore Police Department, but if you were outside of the city and in a county, it will be the Baltimore Sheriff, the county sheriff be the one in charge of whatever investigation. So this is where we sort of get it into that rural, urban, for lack of a better word, kind of meaning everything that’s not in the city, uh, for, for lack of it’s, I don’t know if that’s the best word for everything not in city limits.

Adam: Right. And the point of the explainer and the point of this episode of course, is not to just to do like a schoolhouse rock thing. We are saying that there are fundamental problems in this setup and arrangement. So can we talk a bit about some of the existential problems from a criminal justice reform standpoint of sheriff’s, uh, specifically the nature in which they are elected?

Jessica Pishko: Sure, I mean, I think the first, you know, certainly the existence of them is not a problem, but they present a challenge. Like I said, one because they are elected and two because they have been given very broad powers and a lot of discretion. So not unlike elected prosecutors, one of the things about sheriffs that makes them interesting is that they’re able to do many different things and then they’re often not really an entity or a person who has a check on them. So usually a police chief is appointed by a mayor or a city council and then becomes the check on the police chief, so you know, the city council or mayor can change the budget or adjust what the police chief wants to buy. Drones, let’s say, the mayor or city council can often intervene and say, well, that’s not what we’re going to do. Now, sheriff’s on the other hand have pretty broad authorities. There’s not a lot telling them what they can and can’t do. There’s also not a lot of rules about who they can and can’t hire. So today, most urban police groups have rigorous training, they have a lot of rules, they’ll have an academy and while some sheriff deputies, so the people that work in the sheriff’s department, deputies, while some may have training, some may not. Um, and if you look at many county sheriff departments you will find that hiring is, there’s a lot of nepotism in hiring. It’s basically easier to get hired as a sheriff deputy. Often, actually, the other thing people might complain about is that the pay is often less.

Adam: Right.

Jessica Pishko: (Chuckles)  Kind of comes with the, comes with the territory. They don’t have as many checks on their power so, you know, one issue that often comes up if you think of someone like Sheriff Joe Arpaio is a good example, right? I mean he sort of, I think an extreme example, but he could do what he did because he had a lot of power. He could make inmates wear pink underwear. He could make them live in tents. He could say what he wanted, you know, I mean I think his jails were famous, but other things he did were things like he said that he that wouldn’t enforce a gun laws, possession for example. He, you know, said that we wanted to enforce immigration laws. Right? And do things like pull over everybody who looked Hispanic. So in the famous like show-your-papers law that he instituted, right? That he decided he was gonna pull over anybody he wanted, anyone who looked brown, um, if they were a US citizen, even when the police chiefs didn’t want to do that. Right? So, and so that’s I think where we get to why sheriffs today, like sheriffs generally play a bigger role in immigration or not. Um, but you know, and you think about it really that I think the immigration law has come to the forefront. But when you think about all the things they do, like for example, housing people in jails, making sure they have healthcare, do people get treatment if they’re in opioid withdrawal or not? These are decisions that sheriff’s can make. I mean, and that’s why it can feel like a sheriff has a fiefdom. Right? That they can sort of do what they want and just kind of as a historical note, when the Civil Rights Movement was occurring in the 1960s, you know, a lot of the people who did, who blocked voters, who blocked protests, who decided that it was okay to use violence against protesters, I mean, these were sheriffs. I mean mostly white elected sheriffs who felt that because it was their territory they were within their right to say, you know, ‘We’re not gonna let protesters come. We’re not going to let people March here, we are going to try to block people from voting.’ So I mean, you know, the history of sheriffs is kind of fraught with all this. A lot of racial tension because of that.

Adam: Right. And of course we know one of the most famous sheriffs is Sheriff Jim Clark of Dallas County, Alabama, who was responsible for the crackdown on Selma, the Selma marches in the 1960s. And it seems like there’s this sort of mentality, this kind of western Walker Texas Ranger-y,  hang ’em high, this-is-my-town, western mentality behind a lot of sheriffs. Um, you note that all states have a version of sheriff’s, uh, except for Alaska and Hawaii and that most of them are elected and they almost all have kind of broad powers. Just to kind of give a sense of context, you list some, some, some examples of what would be sort of extreme, the extreme end of this. Uh, although I think this is probably not as unique as people think, you’re explainer says, quote, “In Alabama, for example, sheriffs legally had the discretion to use state money to feed prisoners in any way they chose. Some opted to feed people cheaply and pocket the remainder, or use it for questionable purchases like cars and homes. In Etowah County, Sheriff Todd Entrekin used more than $750,000 from his office’s fund to buy a beach house and pay for other personal expenses. In Morgan County, Greg Bartlett was nicknamed “Sheriff Corndog” for feeding prisoners corndogs for two meals a day.” And you mention another that charged detainees $5 for rent and the attorney general investigated this and found suicides in his jails were much higher than the national average. And obviously we have Sheriff Arpaio who does the sort of gratuitous, punitive, tough to, you know, and he got it, he even had puff pieces like in 20/20 in the 2000s about ‘he makes them wear pink underwear,’ ‘he’s the world’s toughest sheriff.’ It seems like yeah, there’s, there’s this kind of runaway demagoguery, this kind of right-wing demagoguery that sheriffs embody about being tough and typically targeting that quote unquote “toughness” to people of color and immigrants and Latinos and black people.

Jessica Pishko: Right. Everyone not white. And I mean I have not and I don’t know that anyone has done consistent research on this to see, you know, how the race of the sheriff matches demographics of townies and that’s a part of a project I’m working on. My suspicion is that you’re going to find, as you do with prosecutors, and awful lot of white sheriffs, and again this is not unique because I think when we looked at prosecutors the studies of elected prosecutors have also found that elected prosecutors tend to be white. So you know, even though and I think this is kind of interesting because they are popularly elected, that that does not necessarily mean that they represent the demographics of the county. So just for example, even counties that are primarily black counties might still have a white sheriff. Most of them do. I guess that sort of gets into a discussion of voting and democracy and you know how those are or aren’t counted. Like I said, I haven’t done all the research enough on voting and you know how those match demographics, but you will find that that’s a pattern.

Adam: So states in the South, southern states, have broadly more of a racial component to them given the obvious history of law enforcement in the South. This is not a huge stretch. Northeast states, as you mentioned, relied on what’s called constables who were sort of more like a police chiefs traditionally. Can we talk about some of the more extreme versions of, of like what the history of sheriffs in the South are and what that legacy entails now for people who aren’t white?

Jessica Pishko: Yeah I mean, I want to add in all fairness, so for example, one of the worst examples of current sheriffs is the current sheriff of Bristol County, Massachusetts.

Adam: Totally. Yeah. We don’t want to do the thing where we say that. Yeah.

Jessica Pishko: Yeah I want to clarify that it’s a problem in many places. First I will put this forward about sheriffs, there’s not a ton of research on it. I think that historically one would say that the role of sheriff played a more dominant role in the South, the South and the West, and that dominant role would primarily be a role of enforcing segregation, um, enforcing Jim Crow and ensuring that white people stayed in power. I don’t think that that’s too much of a stretch. Now, this was the time that the position was created and it was written into state constitutions. Over time as, you know, systems have evolved, as we’d seen times change as civil rights movements have come and gone and changed that the role hasn’t changed a lot. That the constitutions haven’t changed a lot because that’s very hard and that the same people keep getting reelected. So you have an incumbency problem where the same people, the same institutions continue even though one could say that progressive politics might call for something else. Right? So I just think it’s an interesting problem that once a sheriff is elected, their motivation is going to primarily be to satisfy those people that put him or her in office rather than to ensure a parity or equality. You know, you could say that a judge, let’s say their job is to insure parity or equality because maybe they have a lifetime appointment, whether that’s true or not, I guess you could debate, but let’s say you say, okay, federal judge has a lifetime appointment. You know, they can, they don’t have to worry about it. Sheriffs are always, you know, every four years most of them are running for election and a lot of them honestly, you know, they come from various backgrounds. Some of them don’t have a lot of law enforcement experience to begin with. I mean they come from backgrounds of business, of ranching.

Adam: Yeah. Let’s, let’s talk about that. Most people don’t know this, but like people who are elected sheriff don’t actually need to have any law enforcement experience whatsoever. And quite a few don’t.

Jessica Pishko: Nope. You don’t have to have any law enforcement. You just have to get elected.

Adam: You just have to have the look. You have to have the toothpick and the mustache and like give the general impression that you have sheriff-like properties. You have to look like Jeff Bridges from Hell or High Water. That’s in my mind.

Jessica Pishko: (Laughs.) You just have to get elected! Most states, this is a project I’m undertaking is to sort of categorize what the requirements are in each state. Most states you don’t have to have any, you have to be a citizen of a certain age, a little bit like the requirements for being president. There’s no requirement that you have any particular educational background or experience.

Adam: Speaking of no experience and this dovetails, I think with that issue, which is that in a lot of counties and a lot of places, sheriffs double as the coroner and they’re in charge of officially determining cause of death without any medical expertise or forensic expertise. Can you talk about that and some of the problems inherent in that?

Jessica Pishko: Yes. I think this is really fascinating. So, so in some places, so and I think Radley Balko’s book has covered this pretty well, his new book, I think the role of coroner and the role of sheriff in many places is sort of united. In some places you still elect a separate sheriff and a separate coroner, and most of those places, the coroner, elected coroner, does not need to have medical experience. In some places in California you have what’s called an elected sheriff-coroner. So the sheriff is also the coroner. The coroner determines the official cause of death. Now you will generally have someone called a forensic examiner, who might be the individual who does the actual autopsy. The sheriff-coroner is the person who actually signs off on the cause of death. So an example where that caused problems is San Joaquin County where there the forensic examiner was Dr. Omalu. Now Dr. Omalu is a particularly interesting forensic examiner. He is the man who did, who is featured in the Concussion movie. He has, I mean he’s, he’s sort of I think come to prominence as someone who is trying to bring like a lot of scientific rigor to his profession and has done a lot of work with NFL players. So he’s a, he’s a guy who’s really trying to bring that scientific rigor. And he left his post in San Joaquin County because the sheriff was signing off on certain deaths as quote, “accidental” and so one of the accidental deaths, for example, one was suffocation. Now suffocation is an interesting one because you know, the cause of death will be asphyxiation right? They couldn’t get enough air. Now how you asphyxiate then, right? That’s not the medical cause of death, but how one asphyxiates if someone is, you know, holding your face to the ground and you suffocate and die, right? That’s not necessarily an accidental death. Um, another one I think involved a taser so that sheriff in San Joaquin County had argued that someone was tased to death, um, and marked that as an accidental death rather than a homicide. Right? So, you know, it’s kind of that tweaking. Now, the reason why that’s important honestly, is because if you tag a death as accidental and not homicide there’s no further investigation. Right?

Adam: Right. And in many instances, they’re of course investigating themselves, whether it’s a death in the county prison or it’s a death in police custody or obviously even been a police shooting, the sheriff’s themselves are investigating their own sort of dubious circumstances.

Jessica Pishko: Yeah their own people. I mean if you don’t tag a death as homicide, no one will investigate it because people don’t investigate accidental deaths. And so that in itself presents a big problem. I mean, I just think it’s really interesting that the role kind of got combined because I think the incentive for a sheriff to flag depths as homicides to be investigated is going to be pretty low.

Adam: Yeah especially when it’s their own people.

Jessica Pishko: Right in that case, so that was Sheriff Steve Moore, so he got voted out of office based on that. But honestly it was because someone had the stones to make a public statement about it and say that that was wrong.

Adam: Yeah this seems like an interesting fulcrum or entry point into criminal justice reform because it is elected extensively. There are a progressive criminal reform, Black Lives Matter or some sort of public defender who was a huge advocate of reform could in theory run for sheriff and win. There seems to be some fertile ground there in terms of a reform. The question I have to you is at what does a, in your mind, a quote unquote “progressive,” what would a progressive sheriff look like? Can you kind of speculate on that sort of get outside of your, of your reporter hat and sort of-?

Jessica Pishko: That’s a broad speculation.

Adam: Broad speculation, yeah.

Jessica Pishko: So some people might know I’m actually doing a project, it’s the Sheriff Accountability Project through the Rule of Law Initiative at the University of South Carolina Law School. You can shout out to my sponsors in the project and the project itself and the goal of the project is in fact to one, map exactly what sheriff’s roles are and who is supposed to be holding them accountable, but two, to use that to create a template for informing people, can be informing electorate advocates and reporters, but also to say, well, how would you even create a map for that? I think that right now, you know, I think people have successfully created a map for a progressive prosecutor and even a progressive police chief, but I really think there is no map for how sheriffs, how sherriffs can be progressive and I think there’s actually a rather urgent need for it because right now, you know, as many criminal justice organizations have pointed out, the greatest growth of incarceration is not in the cities. It’s in rural areas, it’s in suburban areas, and these are the places where we see a lot of people being jailed for a long time in very overcrowded and pretty poor conditions. A lot of rural jails, they look like relics of the 19th century. Some of them might well be relics, you know, it’s just not, it’s not something that’s been a big focus. Not something that people go to see, you know, and whereas county jail, a lot of people go in and out of Cook County jail, a rural jail, you might, you know, in a rural jail you might see five people come in to that rural jail. It is not a lot, you know, it’s not a lot of people. And I think we see that and when we look at incarceration rates in non-urban areas, we see that that’s where the increase is. I think that part of that is likely the role of the sheriff and criminal justice because sheriffs honestly are just not thinking about reform when they’re thinking about their role.

Adam: Yeah. There’s a certain image surrounding them as well. Right?

Jessica Pishko: Yeah. I think some of it, some of it is who they’re, you know, I don’t know how to frame this other than clientele. In many rural places, you know, funding for sheriff elections comes from big agriculture, big business owners. They are concerned about protecting property, less concerned about things like, you know, racial equality. Although it also presents interesting visions when you come to immigration. I do think that the current focus on immigration is providing an entry point for people to look at what sheriffs are doing. And we saw in some recent elections that, like in Mecklenburg County, immigration was a point where people were paying attention. But my, I mean, my goal and the project’s goal is really to get people to pay attention to all these other things. So for example, jail deaths, you know, are people dying from basically forced withdrawal. Do jails provide, you know, medically assisted, I guess medically assisted therapy to people who have an opioid or other addiction, are jails providing adequate healthcare otherwise, adequate housing, what can they do to prevent suicides? I think the suicide question is an interesting one that, you know, sheriffs are quick to brush off. So I think it’s, it’s kinda like a place where people maybe are, have been reluctant to poke, sort of like poking this underbelly. And I mean I think part of that discomfort has been the role of the sheriff as associated with enforcing segregation, right? Enforcing policies that, to be honest are really anti-progressive. I think that that in and of itself has made it hard for people to envision a different kind of sheriff. I do think what we’ll see is people putting maybe more limits, more places sheriffs power can be checked. We are starting to see that, for example, in Alabama, as you pointed out, where sheriffs were permitted to kind of use food money for inmates to sort of put into this slush fund and sheriffs were loosely monitored. So this is why many of them took that money to do other things. Again, this is not uncommon to have a slush fund. A sheriff in Georgia had a slush fund of money that was taken and used it to buy like this big muscle car, big black tinted windowed muscle car kind of thing. Right? So this idea of using the money for your, mixing the personal and work is not an unusual thing.

Adam: Yeah. I feel like I should have become a sheriff.

Jessica Pishko: Yeah.

Adam: I didn’t realize there was all these freebies.

Jessica Pishko: You could have bought a huge muscle car.

Adam: And a beach house.

Jessica Pishko: (Laughs.) Yeah a muscle car or a beach house. And I think that one , there has to be more people watching what they’re doing but two, the awareness that you can, that maybe there’s a way to check that power. I think in a lot of places, you know, one place I was thinking of is in Louisiana where Sheriff Ackal, The Advocate just did a really good series on Sheriff Ackal who I think is not running again, but for a long time has really, I mean he was getting sued so much for excessive force that he was dropped from his insurance. I mean that’s sort of like you’ve gotten so many car accidents, you can’t get car insurance right? These deputies were beating so many people up they can’t get insurance. Which on that face is pretty bad. Right?

Adam: Yeah.

Jessica Pishko: I think the people that have felt sort of helpless to do anything because I mean, one, he was an incumbent, but two, I think the role itself has kind of gotten wrapped in these things and people sort of say, ‘oh, well what can we, there’s nothing we can do about it.’

Adam: Right. Well I think that the take home point is that this is a nascent sort of area for reform and I think it’s very exciting and I look forward to keeping track of it. So I’m glad you sort of started off with the primer, so people who are uninitiated can read, um, it’ll be on The Appeal’s website, it’ll be a sheriff explainer. Definitely check it out. And um, thank you so much. We will follow up on this thread, uh, in a few months for sure because I think it’s interesting and I look forward to seeing what else you come up with.

Jessica Pishko: Thank you.

Adam: Thanks to our guest, Appeal writer, Jessica Pishko. This has been The Appeal podcast. Remember, you can always follow us on Twitter @TheAppealPod, you can follow us on Facebook at The Appeal magazine’s main Facebook page which you could find at The Appeal and you can always subscribe and rate us on iTunes. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much for joining us.

Correction: An earlier version of this podcast stated that football player Aaron Hernandez died in the Bristol County jail. In fact, he died at the Souza-Baranowski Correctional Center.

Trump Has Turned the War on Trafficking Into a War on Immigrants

The president is drawing on two decades of bipartisan support for crackdowns on traffickers to secure support for his agenda at the border.

Illustration by Ariel Davis

Trump Has Turned the War on Trafficking Into a War on Immigrants

The president is drawing on two decades of bipartisan support for crackdowns on traffickers to secure support for his agenda at the border.

In November, about 6,000 impoverished Central American men, women, and children finished a 3,000-mile walk through Guatemala and Mexico to Tijuana, on the border with California. They had spent weeks on the road, fleeing grinding poverty and homicidal violence in their countries, and they had trekked in big groups to maintain safety in numbers.  It wasn’t the first mass walk northward from Central America. “Caravan” travelers in the past have sought asylum in America. And many were doing so again.

Meanwhile in the U.S., the midterm elections loomed. Republicans faced stiff competition for many congressional seats and worried about losing their majorities in the House and Senate. Looking for a strong wedge issue for his base, President Trump began harping on the caravan’s purported dangers. He began his admonishments in October when the migrants were on the road. By the time they got to Tijuana the elections were over and Democrats had won a majority of the House. But the government’s warnings of caravan threat were as unstoppable as an avalanche. The Army blanketed the border from Texas to California with Humvees and concertina wire, and Border Patrol agents just south of San Diego lobbed tear gas across the international line.

This was  truly “a different time” in history, Trump said in October—a time calling for a southern border wall. Vice President Mike Pence added that deception was being used to “entice vulnerable families to make the long and dangerous trek” to the United States, and the deceivers were “human traffickers with no regard for human life.”

Traffickers. It’s not the first time that the administration has used the word. From the moment he descended his escalator at Trump Tower in Manhattan to announce his candidacy for president, Trump has been drumming up support for a crackdown on immigrants. He has not only accused Mexicans of being rapists, but has claimed that immigrants from Central America are “trafficking” children.

Usually when the president uses the term “human trafficking”—though often it seems he is speaking only about a form of sex trafficking, as he did in remarks in November—he does so to advance an anti-immigrant agenda by painting a picture of vicious criminals. And millions of Americans believe him.

Trafficking rhetoric transforms migrants—often fleeing for their lives—into people Americans should not worry about or protect. Asylum seekers, Trump claimed without basis in the same November address, are actually coached by “professional” smugglers and traffickers. It’s easier to justify crackdowns on dangerous traffickers than on the hungry, struggling people these migrants really are, or on smugglers who help immigrants get where they want to go. If we are to understand how trafficking language has become central to anti-immigrant politics in 2018, the term’s strange, bipartisan history must be understood.

In the U.S., anti-trafficking rhetoric has a two-decade history. In the late days of the Clinton presidency, a close-knit circle of conservatives in Washington think tanks and in Congress sought new ways to fire up their base. They stumbled on an opportunity: more and more people were migrating out of economic necessity or simply to seek a better life, and they were crossing international borders, sometimes unlawfully.

To make their crossings, many migrants relied on others for help, and the helpers sometimes took advantage. Those who exploited the crossers for their own economic gain through force, fraud, or coercion became known as “human traffickers.”

At the same time, women’s rights groups demanded action to protect people from trafficking, in particular women and girls forced into the sex trade. The idea that men could be turning women and girls into sex slaves captured the right-wing imagination. In the late 1990s, conservatives like Michael Horowitz of the Hudson Institute worked with Gloria Steinem and the feminist group the National Organization for Women, to push a bipartisan group of federal legislators to pass the Trafficking Victims Protection Act (TVPA), which criminalized human trafficking. President Clinton signed the TVPA into law in October 2000, and Congress then drafted local and federal law enforcement agencies to investigate and prosecute the perpetrators, who faced penalties up to 20 years, in trafficking cases involving “aggravated sexual abuse” or attempts to kidnap or kill the victim.

Millions of dollars poured into policing agencies, bolstered by public awareness campaigns warning (falsely, it later became obvious) that hundreds of thousands of children in the U.S. annually were prey to traffickers. The police have failed to find, much less help, anywhere near the number of victims that the government has claimed exist. Nevertheless, the fight against human trafficking continues to excite Republican and Democratic lawmakers. Some prosecutors now campaign as tough­ on ­trafficking. Sheriffs have also used the issue to advance their political careers.  

What began under Bill Clinton, expanded under George W. Bush, and prevailed under Barack Obama is now exploited by Trump. He has linked the fight against trafficking with his two main talking points: the claim that immigrants typically are criminals, and the proposition that they endanger women and children.

There’s just one problem: Most people facilitating border crossings aren’t traffickers. Instead, they are usually smugglers—nicknamed “coyotes.” The difference between the two terms—traffickers versus smugglers—is important, because they are not necessarily connected and they are defined distinctly in U.S. law. A trafficker uses force, fraud, and coercion to compel labor for financial gain, while a smuggler moves willing people across borders, or helps them elude immigration authorities, for financial gain.

Sometimes government agencies and law enforcement draw a firm distinction between people who are trafficked and people who are smuggled. The State Department distinguishes based on consent, regarding people who are trafficked as victims. People who are trafficked are also entitled to the same benefits from the U.S. government as are refugees, including a special visa—which some agencies cite as a reason for distinguishing the two groups clearly.

Still, these government agencies sometimes treat trafficking and smuggling interchangeably when it comes to enforcement. On a page of the Department of Homeland Security’s website titled “The Perils of Illegal Border Crossing,” scores of links to stories appear under the heading “Human Smugglers/Traffickers.” One describes a man from El Salvador and his “attempt to cross the U.S.­-Mexico border with assistance from professional human traffickers,” as homeland security puts it, who “forced 70 illegal immigrants into a ‘stash home’ in Texas where they deprived the immigrants of food and water for 36 hours.” The New York Times story the site links to describes crowding and hunger in the U.S. stash house where the man stayed. But it also notes that the smuggled man felt that the ordeal was “worth it,” and he was preparing to pay for relatives to undergo the same crossing.

Anthropologist Gabriella Sanchez, with the Migration Policy Centre in Italy, has interviewed and looked into the criminal court records of many people caught smuggling migrants on the U.S. side of the southern border. She also has spoken with the smugglers’ undocumented clients.

Sanchez believes that most migrant smugglers on the U.S. side of the border are ordinary people, products of the increasing militarization of borders during the past generation. In an era of increasingly severe restrictions on the international mobility of the poor, smugglers tend to be economically marginalized people who labor as drivers, lookouts, guides, coordinators, recruiters, fee collectors, walkers through the brush and desert, and rafters over the river. They also work for the immigrants at stash houses as the cooks, house cleaners, and trash haulers that people need when spending days in what amount to impromptu and often very crowded motels.

Illustration by Ariel Davis

While she has seen evidence of extreme violence by smugglers against their clients, Sanchez thinks that bad conditions are much more common—such as crowding in “stash houses” and lack of sufficient food. None of the immigrants she has spoken with have reported being victims of, or witnessing, trafficking.

Sanchez’s findings are buttressed by U.S. Sentencing Commission data about the people convicted of “alien smuggling” as a federal charge. For years, the commission has published annual data about such individuals. The most recent data, from fiscal year 2017, is consistent with past data: It shows that about two thirds of the people prosecuted on federal smuggling charges are U.S. citizens, a quarter are women, over half have little or no prior criminal history, and in over half the cases, they smuggled fewer than six people. Further, in 97 percent of the cases no weapons were used, and only one percent of cases involved people being involuntarily detained by smugglers.  

The conflation of immigrants with traffickers has consequences. For example, children have been “rescued” by U.S. law enforcement from their own parents. In 2017, a 16­-year-­old mother and her boyfriend, also a teenager, were driving the main street of Rio Grande City, a small town in South Texas that abuts the Mexico border. The girl was a student in a local public school; the boyfriend was a waiter at a local chain restaurant. Also in the car was their 11­-month-­old baby boy. The state trooper who stopped them wrote a ticket because the baby was not in a car seat. He then called Border Patrol—who determined that the girl was undocumented. The Border Patrol agent apprehended her, separated her from her baby, and would not allow the father to keep his child. It was weeks before the girl’s mother was able to go to court and recover the baby. The rationale for the separation, according to DPS records, was: “Border Patrol investigating possible sex trafficking of a minor.”

In another incident in Texas, a DPS trooper stopped a car about 45 miles north from the Texas border with Mexico. The trooper told the driver, a Latinx U.S. citizen, that one of her taillights was malfunctioning. He and another trooper who arrived on the scene then questioned her passenger—a 22-­year-­old woman who spoke only Spanish. She said she was a U.S. citizen. The driver said that she and her passenger were en route to the Six Flags amusement park in San Antonio.

It took the two troopers almost an hour of interrogation and rebukes, with assistance from two Border Patrol agents, to break the passenger. She finally admitted that she was undocumented, recently arrived from El Salvador. “I was threatened with death in my country,” she said, weeping.

The Border Patrol agent arrested the driver for “alien smuggling.” He did this after one of the DPS troopers lectured her about putting the Salvadoran woman in danger. “Is she gonna be trafficked?” he scolded the driver. “Are they going to make her do things that she doesn’t want to do? … [Y]ou’re not thinking about what could happen to her.”

The rhetorical mash-up of smuggling and trafficking has even shaped the law. A case in point is Arizona’s “Coyote Law,”or Senate Bill 1372, dating to 2005.

It began as an attempt to prosecute a perceived human trafficking problem in Arizona, and grew out of legislative collaboration between right­-wing religious fundamentalists and women’s rights advocates. One of the advocates was Peggy Bilsten, a former Phoenix City Council member and founder of StreetLightUSA, an organization that focuses on trafficking of children. According to a 2005 Arizona State Senate reading document, Arizona’s chapter of the National Organization for Women also supported passage of SB 1372. When enacted, it was one of the country’s first non-federal anti­-trafficking laws. But in its final version it was amended with language that made it a felony “for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose.” The intention was to punish smugglers. The bill was then taken up by Andrew Thomas, who was then the county attorney for Maricopa County, which encompasses Phoenix. Known for his vocal hostility to the presence of undocumented immigrants in Arizona, Thomas argued that immigrants who paid to be smuggled were conspiring to plot their own border crossings. That is, they were smugglers of themselves.

The “Coyote Law” led to prosecutions and convictions of hundreds of undocumented immigrants who had nothing to do with trafficking. And it launched the career of Joe Arpaio, the notoriously racist former sheriff of Maricopa County. With SB 1372 as a tool, Arpaio began arresting immigrants who had “conspired” to smuggle themselves.

A federal court overturned SB 1372 in late 2014. By then, about 1,000 people had been convicted and hundreds more charged, according to Sanchez, the anthropologist. Though the law was overturned, the convictions were not vacated.

It seems that law enforcement agencies have accepted the idea that human smugglers are invariably connected to human traffickers. By that logic, smuggled people are the smugglers’ victims—especially when they are children. That means that the children’s mothers and fathers, who paid the smugglers, are complicit with traffickers.

A day before President Trump signed an executive order ending “zero ­tolerance” separation of families and children at the southern border, then-Attorney General Jeff Sessions implied that the separations were necessary because, as he told Tony Perkins, president of the conservative Christian Family Research Council, on Perkins’s radio show “Washington Watch,” “[M]any adults taking children along are not related to them. Could be smugglers, could be human traffickers. It’s a very unhealthy and dangerous thing.”

The next day, at a meeting announcing the executive order, Trump claimed migrant parents were giving their children to adults to use them “as a ticket to getting into the country, with some really horrible people.” He employed what has become his litany: “You have the coyotes, you have the traffickers, the human traffickers. Not only drug traffickers, but the human traffickers. They use these children as passports to get into the country.”

Illustration by Ariel Davis

And the next day, Trump used a Cabinet meeting to warn of a nonexistent “massive child-smuggling industry” involving migrants, through which he alleged “human traffickers are making a fortune.” He defended his anti-­immigration policies by asserting that immigrant children entering the U.S. “really came up with coyotes.” “You know what a coyote is,” Trump continued. Later, he returned to his litany: “they’re drug traffickers, they’re human traffickers, they’re coyotes.”  

The administration also portrays itself as the humanitarian responder to this purported horror. In June, when Department of Homeland Security secretary Kirstjen Nielsen was called to answer for the administration’s separation of families at the border, she said the government was carrying out its “responsibility” to “protect alien children from human smuggling, trafficking and other criminal actions.” Republican members of Congress use the same rhetoric to push more immigrant crackdowns. “I assure you, there’s more crime than I ever possibly imagined crossing our borders. And a huge portion of it is sex trafficking,” Representative Bill Posey of Florida told a human trafficking symposium in August. Senator Tom Cotton of Arkansas said on Twitter, “Children will be abducted & sold to drug cartels & slave­-traders as a free ticket into US” at the border. Referring to human trafficking, Representative John Carter of Texas said to reporters in April, “Believe me, a lot of the attractive children are not making it to the border.”

Conservative media echoes the “can’t ­tell­ immigrants ­from­ traffickers” myth. The morning of the Nielsen press briefing, journalist Sharyl Attkisson said to her 200,000 or so Twitter followers, “So sad how many young kids are trafficked to US—under the guise that they’re the ‘children’ of the traffickers, or are released to their ‘parents’ already in US, to be used as labor slaves or sex slaves.” Fox Nation’s Tomi Lahren elevated the drama later that day, tweeting, “Don’t buy into the Left’s emotional blackmail. These ‘family units’ are often human traffickers, drug smugglers and cartel separated from ‘their children.’”

Don’t buy into the Left’s emotional blackmail. These ‘family units’ are often human traffickers, drug smugglers and cartel separated from ‘their children.’Tomi Lahren, Fox Nation

Even members of the public who strongly support immigrants’ rights have been lulled by this rhetoric. Oakland, California, is a “sanctuary city,” and in August 2017, infuriated residents documented an immigration raid in which city police officers assisted ICE by blocking traffic. Responding to community outrage, the police chief said his agency was helping ICE and Homeland Security conduct a “sex trafficking” investigation. As ICE documents later showed, no one was charged in the raid with human trafficking; instead, ICE sought to deport one person for a civil immigration violation.

As for immigrant children torn from their own asylum-seeking mothers and fathers after President Trump assumed office, the government began citing the Trafficking Victims Protection Act as one justification for the separations.

The TVPA was reauthorized in 2008 and states that when a minor enters the U.S. unaccompanied by a parent, the government must carefully vet the adults who come forward to take sponsorship of the child.

In 2017, the government began arresting some migrant parents, mostly Central Americans entering the U.S. at the southern border with their children, and then prosecuting the parents for illegal entry, a federal misdemeanor. The prosecutions entailed first separating the accused criminals from their children. In federal criminal court virtually all the parents quickly pleaded guilty and were given time served or, at most, a few weeks of jail. But after they served their time, they were not released and reunited with their children. They were put into immigration detention indefinitely, while their children languished in government­-sponsored shelters and foster care.

The government justified these separations in part by citing the TVPA. A DOJ attorney explained the actions in May to a judge presiding over an ACLU lawsuit challenging them. Children couldn’t be reunited with their parents, the lawyer said, because when a parent is locked up in an immigration detention center, according to TVPA he or she is “not going to be a suitable custodian.”

That argument failed in the court of public opinion. In June, amid media coverage of distraught immigrant toddlers and their weeping mothers and fathers, the country exploded in outrage. In response, President Trump continued to cite the TVPA—but now as a problem, not a solution. “The Democrats forced that law upon our nation,” he said. “I hate it. I hate to see separation of parents and children.”

In the fall, the president began promoting the idea of rescuing endangered Central American boys and girls from exploitation, to defend his anti-­immigration policies. “In many cases you have really bad people coming in and using children,” Trump claimed to reporters in October. “They don’t even know the children,” he said of adult migrants with minors­­ virtually all of who, in fact, are family members or neighbors. “And they grab children and they use them to come into our country.”

Trump’s rhetoric has been so effective that he has fallen back on it when suggesting he will once again separate migrant families to keep the adults from subjecting children to “the horrific actions of child smuggling,” as a White House spokesperson put it. The Trump administration floated this idea even as Trump talked of denying citizenship to babies born in America to undocumented parents.

The president’s rhetoric continues as he seizes opportunities to cast migrant parents as the mercenaries of their own sons and daughters. At the end of November, after Border Patrol agents in California threw tear gas at caravan members including small children, Trump said that those children, too, had been deliberately put in harm’s way by “grabbers.” By characterizing the act of border crossing with children as “trafficking,” a political idiom almost immune to challenge, he continues his war on immigrants.

24 Prisoners Have Died on Erie County Sheriff Timothy Howard’s Watch

Reports detail suicides and care for one woman that was ‘so grossly incompetent and inadequate as to shock the conscience.’

Sheriff Tim Howard oversees the jails in Erie County, New York, where 24 people have died since 2005.
Photo illustration by Anagraph. Photo via Sheriff Tim Howard.

24 Prisoners Have Died on Erie County Sheriff Timothy Howard’s Watch

Reports detail suicides and care for one woman that was ‘so grossly incompetent and inadequate as to shock the conscience.’

Editor’s note: The reporter’s aunt, Nan Haynes, and father, John Lipsitz, represented plaintiffs  against Sheriff Timothy Howard in 2010 and 2006. Haynes was also a plaintiff in a 2017 lawsuit compelling Howard to properly document and report prisoner suicide attempts. John Lipsitz was cooperating counsel on the New York Civil Liberties Union’s 2014 lawsuit against the Erie County sheriff’s department for Freedom of Information Law (FOIL) violations.

India Cummings called the police herself.

Disoriented and desperate on Feb. 1, 2016, the 27-year-old resident of Lackawanna, New York, grabbed her landlord’s phone and dialed 911. She was, in the words of her mother, Tawana Wyatt, “asking for help.”

Cummings had no criminal history or previous contact with police, aside from minor vehicle and traffic infractions. She had no known mental health problems. But she was behaving strangely enough that day to attract the attention of her neighbors and landlord.

After the police arrived, despite having her own car nearby, Cummings reportedly approached a Ford Taurus, punched the driver, stole his car, and led police on a chase during which she struck three other vehicles. Eventually, the police forced her from the car and placed her under arrest.

Cummings’s behavior was shockingly out of character for a “kind, gentle, low-key human being” who “brought light and joy to the world,” people who know her family told The Appeal. Wyatt said her daughter was a “beautiful, spirited girl” who loved the Bible, loved to read, and was always “researching things that she didn’t understand or didn’t know.”

But instead of being taken to a hospital for a psychiatric evaluation, Cummings was taken to the Erie County Holding Center in Buffalo, New York, where she spent the next 16 days.

By Feb. 21, she was dead.

According to a June 2018 report by the New York State Commission of Correction Medical Review Board, which was established by the New York State Legislature to investigate deaths in state correctional facilities, Cummings’s mental and physical health steadily deteriorated throughout her time in jail. She refused food and medication. She flooded her cell. In the days leading up to her death, she was babbling, smearing food on herself, and lying in a pool of her own urine.

India Cummings
Courtesy of Tawana Wyatt

The pathologist who conducted her autopsy, Dr. Scott F. LaPoint, noted in his report that Cummings reported having smoked “laced” marijuana to jail medical personnel. But he also wrote that toxicology studies “did not provide an explanation for her prolonged duration of bizarre behavior or her death.”

According to her autopsy report, Cummings also reported that her arm was injured during her arrest by the Lackawanna Police Department. (The Appeal’s FOIL request for Cummings’s arrest records was denied by the Lackawanna police chief on the grounds that it “would interfere with law enforcement or judicial proceedings.”)

Throughout her daughter’s incarceration, Wyatt was repeatedly told that she was refusing visits. That’s why, Wyatt told The Appeal, she “started popping up in court to try to see her. When I finally saw her … I immediately knew something was wrong, that she needed some type of medical assistance.”

Desperate, Wyatt “called anyone who would answer the phone … I said, ‘I want to know that my daughter is OK. I want to know if she’s breathing.’” When Wyatt finally reached someone at the holding center, she was told her daughter had been put under watch. (Cummings’s autopsy report notes that, on Feb. 11, “she was placed on a two-to-one observation out of concern for potential self-injurious behavior.”)

Wyatt’s attorney, Matt Albert, said he told a judge on Feb. 16 that Cummings was in dire need of medical help. The judge agreed. Cummings was supposed to be moved within two days, as soon as a hospital bed opened up.

When I finally saw her … I immediately knew something was wrong, that she needed some type of medical assistance.Tawana Wyatt, mother of India Cummings

On Feb. 17, her organs failing, Cummings was rushed to Buffalo General Medical Center. She died four days later from cardiac arrest caused by a massive pulmonary embolism, acute renal failure, a blood ailment, and dehydration.

The medical and mental health care Erie County provided to Cummings, the Commission of Correction report said, was “so grossly incompetent and inadequate as to shock the conscience”—and her death “should be ruled as a homicide due to medical neglect.”

Although LaPoint’s autopsy report lists Cummings’s untreated broken arm and subsequent blood ailmen, renal failure, dehydration, and pulmonary emboli as factors in her death, he concluded that the manner of death was undetermined, in part because the cause of her arm injury was “unknown” (“According to hospital records,” LaPoint wrote, “she did not remember how the injury occurred and gave varying reasons for the injury.”)

The commission report on Cummings’s death directed the Erie County medical examiner to “review the forensic pathology of this case” in light of the medical review board’s findings “with an eye toward a restatement of the cause of death to better reflect the circumstances and the autopsy findings that Cummings’ death was attributed to traumatic injury received during her arrest with a prolonged period of continual medical neglect and therefore should be ruled as homicide due to medical neglect.”

LaPoint told the Buffalo News in July that he stands by his determination and will not not change it unless the medical review board shows him “substantial information, of which I was previously unaware.” Medical examiner’s office officials said they did not intend to alter or revise LaPoint’s findings.

In August, Erie County District Attorney John J. Flynn Jr. asked the New York State attorney general’s office to investigate Cummings’s death. Flynn did not conduct the investigation himself because one of his employees is married to a holding center deputy. The AG’s office announced in September that it would conduct an investigation, and Amy Spitalnick, then the office’s communications director, confirmed this to The Appeal in a Nov. 21 email, as well as its commitment to “conducting an independent, comprehensive, and fair investigation.”

Cummings’s death was part of a pattern. A February 2018 commission report deemed Erie County jails among the worst in New York State for being in violation of state law. The jails listed in the report “pose an ongoing risk to the health and safety of staff and inmates and, in instances, impose cruel and inhumane treatment of inmates in violation of their Constitutional rights.”

Timothy B. Howard was first appointed, then elected sheriff of Erie County in 2005 and re-elected in 2009, 2013, and, by a narrow margin, in November 2017. Cummings was one of the 24 people who have died after being incarcerated in an Erie County jail during Howard’s tenure. The Erie County Holding Center can house as many as 638 inmates, and the Erie County Correctional Facility holds approximately 880 inmates. As of Dec. 30, 2017, according to the Buffalo News, “the Holding Center housed 347 inmates and the [Erie County Correctional Facility] housed 592 inmates.” According to the Erie County sheriff’s office, the Holding Center processes more than 20,000 inmates annually.

When its report on the state’s worst-run jails came out, Howard dismissed the commission’s findings as “picayune.” Asked to comment on the treatment of India Cummings and the number of inmate deaths on Howard’s watch, Scott Zylka, a public information officer in the sheriff’s office, wrote in an email, “Due to litigation, the Erie County Sheriff’s Office cannot provide comment.”

Many Erie County jail prisoners have died by suicide, including a 26-year-old man being held on minor charges, a 26-year-old woman being held on misdemeanor charges, a 29-year-old man who hanged himself, and an 18-year-old who hanged himself one day after being taken off of suicide watch. One man was killed by a fellow prisoner; another was beaten into a coma by a prisoner from whom he had sought protection.

Others, like Cummings, appear to have died from lack of medical care. In 2007, a 42-year-old man died after suffering from malnutrition, dehydration, and renal failure while in the Erie County Holding Center. A lawsuit filed by his widow alleged that jail officials knew weeks before the man’s death that he wasn’t sleeping, eating, or taking prescribed medications. The county agreed to pay $49,995 to settle that suit. A 54-year-old woman died from a stroke after she failed to receive crucial blood-pressure medication while in the holding center in 2008. The county paid $90,000 to settle a lawsuit over her death. According to a lawsuit filed against Howard in 2006 on behalf of a diabetic man named Craig Beatty (this reporter’s aunt, Nan Haynes, and father, John Lipsitz, represented the plaintiff in that case), prisoners are routinely denied adequate medical care in Erie County jails. According to the suit, Beatty became so desperate for water after being deprived of insulin that he drank from the toilet in his cell.

In a Dec. 23, 2008, sworn statement filed in the Beatty lawsuit, Howard said that he was not “aware that Mr. Beatty had any medical issues or complaints about his medical treatment.”

“I was not personally involved in the booking process, decisions on housing Mr. Beatty, transport of Mr. Beatty to or from court, or in the provision of medical treatment to him,” Howard continued. “Neither I, nor the rest of the Holding Center staff, deliberately disregarded a serious medical need of Mr. Beatty’s.”

In 2010, the county paid $150,000 to settle Beatty’s lawsuit.

A Commission of Correction deemed Erie County jails among the worst in New York State for being in violation of state law. Howard dismissed the commission’s findings as “picayune.”

Except in cases about which the medical review board issues a report, it’s difficult to find even basic information on the circumstances surrounding prisoner illness and death in Erie County jails. In March, the sheriff’s office denied a FOIL request from the Buffalo News for information on a prisoner who was, her family said, hospitalized after being denied prescription medication by Erie County Holding Center employees.

In 2012, a 35-year-old man named Richard A. Metcalf Jr.—who, like Cummings, appeared to have been experiencing serious mental health issues at the time of his arrest—died after Erie County Holding Center deputies beat him and caused him to suffocate while improperly applying a spit mask. According to a board report on his death, Metcalf, who was in jail for breaking into a catering business, was banging his head against the wall, biting his arms, smearing blood on the walls, and spitting blood at the deputies when they restrained him. Although the Erie County medical examiner listed Metcalf’s cause of death as “acute and subacute myocardial infarction” and his manner of death as “homicide,” the medical review board concluded that Metcalf’s death was actually “a homicide caused by the restraint methods used” by sheriff’s deputies and “heart disease was not a factor.”

Had Metcalf received “appropriate crisis level mental health care”as well as “proper restraint methods and pharmacologic interventions” and “properly supervised use of physical force,” the medical review board concluded, his death “could have been prevented.”

Because the wife of a jail sergeant involved in the incident with Metcalf worked for the Erie County district attorney’s office, a special prosecutor, Lori Pettit Rieman, was appointed. Although Rieman, a Republican, knew in October 2017 that she wouldn’t be charging any deputies in Metcalf’s death, she waited until after the November 2017 election to announce it, explaining in an Oct. 11, 2017 email to two state police investigators, “Apparently, the sheriff is up for re-election and it would possibly (I doubt it though) affect that,” and “prosecuting crimes is not a political event in my county.”

On a local radio program in April 2017, in response to a question about criticisms of his jails, Howard defended his deputies: “An act of violence, striking out—you see it in sports, but there’s a fight going between an inmate and staff, and an understanding that the inmate yielded, maybe you didn’t comprehend that for a second or two after,” adding, “but if it takes much longer than that, then we’re thinking that’s misconduct.”

The U.S. Department of Justice (DOJ) sued Erie County in 2009, claiming that confinement conditions in Erie County jails violated prisoners’ federal constitutional rights by, among other things, failing to protect them from harm (including self-harm) and failing to provide adequate medical and mental health care. Eventually, a settlement was reached that required the county to, among other things, ensure that all inmates “receive a mental health screening as part of the medical intake screening within 3 days of admission” and hire consultants to issue regular reports on its compliance with the reforms outlined in the settlement.

It is also noted in the settlement that, “The Parties enter into this Stipulated Order of Dismissal (“Stipulated Order”) and desire to compromise, satisfy and resolve fully and finally all differences or disputes between them in and to avoid the further expense, disruption and uncertainty of litigation, without admitting any liability. … The County does not agree or admit that the Eighth or Fourteenth Amendments require any of the specific remedies in this Stipulated Order.” Furthermore, “with respect to protection from harm, medical care, mental health care, and environmental health and safety,” the issue of liability “has not been litigated.”

The New York Civil Liberties Union attempted to unseal those compliance reports in 2012, with partial success. In 2014, the Second Circuit Court of Appeals overrode an earlier agreement between the county and DOJ officials to keep the reports secret. The latest report reviewed by The Appeal was dated Oct. 25, 2018. While it notes some improvements, it also assesses the county as being in “partial compliance” on the settlement’s mental health care provision, in part because of staffing shortages.

Sheriff Tim Howard is a Republican who in 2017 spoke in uniform at a pro-Trump “Spirit of America” rally in downtown Buffalo, where he was photographed amid pro-Trump demonstrators, some of whom were holding flags and signs with Confederate and Nazi imagery. Jeremy J. Zellner, chairman of the Erie County Democratic Party, characterized Howard’s appearance at a rally with “racists and white supremacists handing out literature” as “disgraceful” and called on him to resign. In response, Howard issued a public statement equating Black Lives Matter counterprotesters with white supremacists and stating, “I do not support any group that uses violent and discriminatory rhetoric, but how can I limit their god given rights to public assembly and free expression” and “I don’t support a white supremacist’s view of discrimination and bigotry as I don’t support Black Lives Matter’s hate and call for killing law enforcement personnel.”

Like some right-wing sheriffs around the country, Howard is affiliated with the Constitutional Sheriffs and Peace Officers Association, which believes that local sheriffs have the authority to refuse to enforce any laws they deem unconstitutional (in Howard’s view, gun safety laws). The organization includes Joe Arpaio, the anti-immigrant former sheriff of Maricopa County, Arizona.

In the Obama years, Howard’s membership in the Constitutional Sheriffs meant standing up to a federal government perceived as anti-gun and pro-immigrant. With Donald Trump in the White House, Howard has focused on defying New York Governor Andrew Cuomo and Democratic Erie County legislators. Howard responded to Cuomo’s 2017 executive order banning state agencies and police from asking about immigration status by directing law enforcement personnel to continue asking people about their immigration status.

Howard is affiliated with the Constitutional Sheriffs and Peace Officers Association, which believes that local sheriffs have the authority to refuse to enforce any laws they deem unconstitutional.

Howard also has a long history of defying state agencies like the Commission of Correction, which mandates that prisoner suicide attempts be reported as “life-threatening situations.” Howard prefers to avoid reporting them at all by categorizing them as “manipulative gestures” or “individual inmate disturbances.”

In November, four people (one is this reporter’s aunt, Nan Haynes) won a lawsuit compelling Howard to properly document and report these incidents. (He had promised to do so as recently as 2017, but quickly reverted to his preferred methodology.)

Howard once told the Buffalo News that he regularly invites members of the public to visit his jails and assess the conditions for themselves, adding, “it’s not a country club, and we don’t want it to be a country club.” Asked to comment in May on “the public perception out there that inmates constantly die” in the Erie County Holding Center, Howard replied, “Bad things happen in jails because of the people who are sent to jail. We make reasonable efforts to prevent bad things from happening.” At a July meeting of the Public Safety Committee arranged by Erie County Legislature Majority Leader April Baskin, Howard dismissed the commission’s report on India Cummings’s death as “nothing more than the opinion of a group from Albany that has no firsthand knowledge of the subject about which they are making comment.”

It’s not a country club.Sheriff Howard, commenting on his jails

Howard has also been accused of negligence when it comes to escapes from his jails. The Commission of Correction’s investigation into Ralph Phillips’s escape from the Erie County Correctional Facility “revealed serious managerial and executive level operational policy and procedure breakdowns of proportions which rise to the level of willful negligence and professional incompetence.” Phillips killed a state trooper while a fugitive in 2006. The sheriff’s office fired a guard, David Padilla, for allegedly ignoring an alarm that went off the day Phillips escaped. In February 2011, an arbitrator accepted Padilla’s attorney’s argument that the county couldn’t prove Padilla had ignored the alarm, or even that one had sounded, and ruled that Padilla should be reinstated.

Three years later, the same agency accused Howard of “gross negligence and incompetence” following the 2009 escape of a prisoner from the Erie County Holding Center. As detailed in the report on Phillips’s escape, the fact that Erie County jails are “dangerously understaffed”—and the staff they have is poorly trained with inadequate oversight—creates a dangerous environment for prisoners and jail employees.

According to the Buffalo News, Howard responded to the Commission of Correction’s 2009 report by dispatching a subordinate to “blast the report as a ‘vicious personal attack on Sheriff Howard based on politics and an attempt to alarm the public.’”

Employees, too, have serious complaints about Howard’s office. In 2007, Jacqueline Kretzmon, a lieutenant at the Erie County Holding Center, filed a complaint with the state Division of Human Rights alleging that she was being harassed by other employees. The county settled, and promised as part of that settlement that Kretzmon would no longer have to report directly to a supervisor she felt had not acted to address her concerns and from whom she feared retaliation.

In 2010, Kretzmon reported three deputies for allegedly violently abusing a prisoner. Those deputies were fired. About eight months later, according to a federal lawsuit she filed in 2011, a decapitated rat was placed in Kretzmon’s driveway. In 2017, a judge ruled that the county had violated the terms of its original settlement with Kretzmon by forcing her to report to the supervisor from whom that settlement was meant to shield her. The judge also denied her complaints of retaliation, stating that they “lack[ed] sufficient evidence of a retaliatory motive” and “there is no plausible basis to infer that the County’s inability to curb online commentary about [Kretzmon]” was motivated by the fact that she had engaged in activity protected by Title VII of the Civil Rights Act.

“Finally,” the judge wrote, “even assuming that [Kretzmon’s] general complaints about her work conditions, i.e., being forced to work alone, work double duty, work overtime or cover multiple positions; being assigned additional work or work more appropriately assigned to individuals of lower rank rise to the level of materially adverse employment actions … these complaints also lack any inference of causal connection to [her] protected activity.”

Howard’s attorneys filed a memo in support of the defendants’ motion to dismiss the case declaring that “all the allegations involving [Kretzmon’s] alleged civil rights violations are nothing more than her claimed dissatisfaction with her work surroundings.”

Nevertheless, the county paid $239,000 to settle her lawsuit, on top of the $75,000 it paid to settle her original complaint. Excluding lawsuits and settlements involving Howard’s own employees, the cost of defending and settling lawsuits arising from inmate deaths, injuries, and illnesses is significant. Erie County taxpayers have already spent close to $2.5 million, as of January 2018. Wyatt, India Cummings’s mother, filed a lawsuit against Howard in federal court in May 2017.

Although he has said that he won’t seek re-election, Howard’s current term doesn’t end until January 2022. Despite the fact that he has been heavily criticized by the state and federal government—and in some quarters, because of it—Howard retains a base of support in Erie County, where Donald Trump took 45.4 percent of the vote to Hillary Clinton’s 50.1 percent. (That support appears to be weakening; Howard won his last election by only a 1.58 percent margin.)

Baskin, the county legislature’s majority leader, is working to restore and embed in the county charter a Corrections Advisory Board that disbanded when Republicans took control of the legislature in 2014. (Democrats regained control in 2018.) Baskin told The Appeal she is calling on Howard “to be more transparent and do a better job.”

I have suffered many losses, but the loss of my daughter is by far the worst. I just don’t understand it. I never will.Tawana Wyatt, mother of India Cummings

Asked what should happen to sheriff’s office employees whose conduct contributes to the death of a prisoner, Baskin said, “Anybody that plays a role in homicide or wrongdoing needs to be brought to justice themselves for the sake of the life that is lost.” Governor Cuomo, she said, should “seriously consider” exercising his right under the state Constitution to remove Howard from office. Still, she noted, Howard is a “duly elected” official, and elected officials cannot be recalled in New York State.

India Cummings died 20 days after being taken to the Erie County Holding Center in February 2016. Three people held in Howard’s jails have died since then, two of apparent suicide and one of an apparent heart attack.

“I have suffered many losses, but the loss of my daughter is by far the worst,” Wyatt said. “I just don’t understand it. I never will.”

Caging Kids Is An American Tradition

Trump didn’t start it, but we can end it.

Jakelin Caal Maquin of Guatemala died in the custody of U.S. Border Patrol.
Caal Family

Caging Kids Is An American Tradition

Trump didn’t start it, but we can end it.

A prison guard told an incarcerated child that he wanted to sexually assault his mother and then pummeled the child with his fists and radio. A jailed 15-year-old said he was raped by a female correctional officer, plied with alcohol and retaliated against when he refused to engage in sex with other guards. During a two-and-a-half year period at one detention center, children were placed in solitary confinement 55,000 times. And kids in a juvenile facility were routinely left in cold cells without blankets or warm clothing and subjected to excessive force, including an incident in which a 14-year-old boy was pepper sprayed in the face by a guard and left in 100-degree weather without medical attention as the chemicals burned his eyes, face, and skin.

These are not dystopian Trump-era scenes of the treatment of kids in immigrant detention centers operated by ICE but instead stories of abuse and conditions of confinement in juvenile jails run by Louisiana, New York City, Cook County, Illinois (Chicago), and Sacramento County, California. Outrage at the detainment of children has rightly greeted the in-custody deaths of migrant children: Guatemalan migrant Felipe Alonzo-Gomez, who was only 8 when he died on Christmas Eve, and 7-year-old Jakelin Caal Maquin, also from Guatemala, who died just days earlier. But there can be no true reckoning with their deaths at the hands of federal immigration authorities without facing the fact that our states and counties routinely cage tens of thousands of children.

When I worked as a mitigation specialist on death penalty cases, nearly all of my adult clients had been incarcerated as kids.

There are nearly 60,000 kids locked up in America’s juvenile and adult jails and prisons. Kids in juvenile facilities are routinely exposed to physical and sexual violence, which compounds the trauma of being separated from friends and family. Juvenile jails and prisons are the very opposite of rehabilitative environments: Indeed, numerous studies have shown that getting locked up as a kid substantially increases the likelihood of adult incarceration. When I worked as a mitigation specialist on death penalty cases, nearly all of my adult clients had been incarcerated as kids, a profoundly adverse, life-altering experience that was as much a part of their trauma history as having a sibling murdered, being physically or sexually abused by a family member or teacher, or suffering from lead poisoning. Caging kids has come to be seen as so irredeemably cruel and counterproductive that in 2017 two juvenile justice experts called for closing all youth prisons.

The damage inflicted on kids when they are incarcerated in juvenile jails is perhaps only eclipsed by their fate when they are sent as minors to adult prisons. There, they are five times more likely to be sexually assaulted and their suicide risk increases by 36 times. Despite the fact that many prosecutors now acknowledge that children should not be tried in adult court, some district attorneys continue this practice. In December, the Department of Justice blasted the office of Shelby County, Tennessee (Memphis), District Attorney General Amy Weirich for its “routine” transfer of juvenile cases to adult court which the DOJ said represents “an egregious due process violation.” Data compiled by the DOJ in its assessment of the Shelby County DA’s office might explain why the caging of kids in our criminal justice system has received so little attention: In 2014, for example, all but two of the 94 kids in Shelby County transferred to adult court were Black males.

One of the most unhelpful responses to Trump administration policies is to claim that they are unprecedented, a kind of alien evil visited upon an otherwise humane and fair system by a uniquely bad political actor. Incredibly, on Dec. 28, Harvard law professor Laurence Tribe dubbed Trump “a foreign adversary” and a “genuinely alien force.” Mayor Bill de Blasio of New York recently declared that it is “unacceptable for a child to die in the custody of the U.S. government. Anyone and everyone responsible must be held accountable.” But when it comes to caging kids, injustices that produced tragedies like Jakelin and Felipe were with us well before the November 2016 election. In 2013, 19-year-old Andy Henriquez died while housed in a solitary cell at Rikers Island, a jail under the control of New York City government. The mayor’s administration quietly settled a lawsuit filed by the teen’s family.

In 2018, Activists Transformed ‘Tough on Crime’ from Asset to Liability

A series of electoral victories signals a nationwide shift.

From left: St. Louis County Prosecuting Attorney Bob McCulloch; former Sheriff Donnie Harrison of Wake County, North Carolina; and Sheriff Rich Stanek of Hennepin County, Minnesota, all lost re-election bids this year.
Photo illustration by Anagraph. Photos via Michael B. Thomas/Getty Images (left), Wake County Sheriff/Twitter, and Sheriff Rich Stanek

In 2018, Activists Transformed ‘Tough on Crime’ from Asset to Liability

A series of electoral victories signals a nationwide shift.

St. Louis County Prosecuting Attorney Bob McCulloch was thrust into the national spotlight after Ferguson police officer Darren Wilson killed Michael Brown in August 2014. But while McCulloch faced protests for protecting Wilson in the ensuing months, he had nothing to worry about when it came to his own re-election race. He had already vanquished his primary opponent by 43 percentage points, and was unopposed in the general election. Weeks after securing a seventh term that November, McCulloch announced that Wilson would face no charges.

“On the night of the non-indictment, my prayer was that I would have an opportunity to be directly involved four years later in changing history,” recalled Reverend Dr. Cassandra Gould, the executive director of Missouri Faith Voices. “Last year, we decided that [the 2018 St. Louis] prosecutor race would be the biggest thing that we would work on this year. … We saw this race as being very pivotal in restoring hope to the community and in changing the course of history.”

The grassroots work of Missouri Faith Voices and other organizations shook St. Louis this year. In August, McCulloch lost his bid for an eighth term to Ferguson City Council member Wesley Bell, and that was just one in a series of upsets that befell entrenched incumbents this year.

While 2018 did bring significant setbacks for those who aim to reverse the country’s punitive practices—from the Trump administration’s aggressive immigration policies to the likelihood that federal and state courts grew more hostile to reform—criminal justice reformers nationwide also redefined expectations for what is achievable through local and state politics.

Organizers saw unprecedented success connecting the injustice experienced by residents with the power exercised by local officials. And some of these officials owned up to the vast authority they possess and took steps to confront mass incarceration head on, providing examples of how to circumvent these debates’ usual third rails in the future.

‘An unprecedented year of organizing’

District attorneys and sheriffs rarely face stiff competition, but something was in the air in 2018.

McCulloch became prosecutor of St. Louis County in 1991. Donnie Harrison, known for abusive policing practices and for targeting immigrants, was first elected sheriff of Wake County, North Carolina, in 2002. Rich Stanek, who helped ICE as the sheriff of Hennepin County, Minnesota, has been in office since 2007.

All three lost their re-election bids this year, having drawn substantial protests and community organizing against their policies. And others who lost (like the appointed district attorney in Berkshire County, Massachusetts, and Milwaukee County’s acting sheriff) were the heirs of longtime incumbents like Milwaukee’s David Clarke who had proved impossible to dislodge in cycles past.

Multiple organizers attributed these victories to broader engagement in their communities and to more receptive audiences for their arguments, as well as to renewed coordination among groups looking to transform local politics.

“This has been an unprecedented year of organizing, with different kinds of people who are not the usual suspects coming out against family separation locally,” Andrew Willis Garces, the organizing coordinator for American Friends Service Committee and Siembra NC, said of efforts to push back against cooperation with ICE in Alamance County, North Carolina. Although the county’s longtime sheriff Terry Johnson was re-elected while running unopposed in November—many officials who were cooperating with ICE outright lost in the 2018 elections—he announced soon after that he was dropping his bid to join ICE’s 287(g) program amid vocal mobilization against it.

“The vast majority [of people] are totally new to organizing, but they all have a personal relationship to the issue,” Garces added.

Similarly, Gould of Missouri Faith Voices said that participation by people directly involved in the criminal justice system proved decisive in transforming the St. Louis conversation. “People who are impacted know it’s not just their stories,” she said. “But rarely do they get to tell their story, and rarely do people care enough to listen to their story. … We were able to connect the story of their pain to their opportunity to make something different happen.”

Campaigns led by formerly incarcerated individuals, such as the Florida Rights Restoration Coalition and Louisiana’s Voice of the Experienced, also made major inroads elsewhere in the country.

Groups with different messages and tactics benefited from coordinating efforts more tightly than they had in the past, according to Gould in regard to St. Louis and Christine Neumann-Ortiz, executive director of the Milwaukee-based immigrants’ rights group Voces de la Frontera. “We created a joint platform with the reforms that we wanted to see” in the Milwaukee sheriff’s office, said Neumann-Ortiz. “That brought a broader group of people together and really united the Black Lives Matter movement and the immigrants rights’ movement. It was a solid coalition that formed to have this broader vision of change that we wanted. … There was a natural synergy. It was a galvanizing moment.”

‘Go where reforms are most needed’

The country has largely moved away from the era in which politicians compete based on who is more “tough on crime.” Many public officials now call for reducing stratospheric incarceration rates.

But this goal will remain difficult to achieve as long as reform proposals concentrate on how to deal with low-level offenses like drug possession. According to a report by the Prison Policy Initiative, a majority of the people incarcerated in state prisons have been convicted of offenses classified as violent—a reality that calls for changes still perceived as politically risky.

But in 2018, some officials signaled that it may be possible to push further in transforming the criminal justice system.

The era of trying to get away with the highest charge regardless of the facts is over.Larry Krasner, District Attorney of Philadelphia

The California legislature, for instance, narrowed the circumstances under which an individual can be convicted of murder for a homicide they did not commit and enabled existing convictions obtained under the prior felony murder doctrine to be vacated; it required that children under 16 remain in the juvenile justice system without allowing exceptions for higher-level offenses; and it reduced sentencing guidelines for individuals already convicted of some serious felonies.

“The legislature is for the first time rethinking the way we react to violent behavior,” Anne Irwin, the director of Smart Justice California, told The Appeal in October after Governor Jerry Brown signed those three bills. “That broad recognition that mass incarceration is not a good thing and is not keeping us safe is now extending to even crimes of violence.” Irwin called for policies that are geared toward rehabilitation and repair, “so that even those folks have a shot at redemption after they have paid their debts and committed themselves to changing.”

Larry Krasner, who became district attorney of Philadelphia this year, has also implemented changes to how homicides are prosecuted.

Amid national efforts to curb excessive sentencing such as the Sentencing Project’s Campaign to End Life Imprisonment, which calls for maximum sentences of 20 years, Krasner has questioned the expectation that prosecutors should pursue life without parole sentences, and encouraged filing lower charges and seeking less severe pleas. “The era of trying to get away with the highest charge regardless of the facts is over,” he told Maura Ewing in Slate. These policies follow other changes Krasner put in place after taking office in January.

“A lot of the reforms that we see around the country are not going to do much to dismantle mass incarceration,” said Ashley Nellis, a senior research analyst at the Sentencing Project. “They’re a great first step, but we have a serious incarceration problem on our hands, and Pennsylvania is a great example of that.” Nellis pointed out that 16 percent of Pennsylvania’s prison population is serving a life sentence or a sentence of 50 or more years, a number that’s partly due to the state’s mandatory sentences of life without parole for anyone convicted of first- or second-degree murder.

“If we’re serious about criminal justice reform, we have to go where reforms are most direly needed,” Nellis said in praise of Krasner’s policies.

Still, it remains a norm to carve out large categories of offenses from criminal justice reforms. In November, for instance, the New Jersey attorney general instructed law enforcement agencies to stop honoring requests made by ICE that individuals be detained beyond their scheduled release date; courts have repeatedly ruled that such requests are unconstitutional. Yet the attorney general also allowed for exceptions for individuals charged with “a violent or serious offense.” Immigrants’ rights advocates told The Appeal that these requests are no less unlawful.

The ranks of officials who shun facile distinctions between groups of defendants are nevertheless growing. “We can’t exclusively focus on nonviolent offenders,” Rachael Rollins, Boston’s incoming district attorney, wrote in a candidate questionnaire during her campaign. “We need to start having hard conversations about violent offenders and what we are doing to make sure that when they return to the community they have the tools necessary to re-enter successfully.”

What lies ahead

The interplay between emboldened organizers and the new public officials elected in 2018 will be crucial to the landscape of criminal justice reform in 2019 and beyond.

“We want to be in conversation with [Wesley Bell], and remind him of the pain of the people, remind him of why it was necessary to elect him so that things don’t stay the same,” Gould told The Appeal about the incoming prosecutor of St. Louis County. “We don’t expect St. Louis County to be run the same way in two years that it was run over the past 27 years.”

“I also believe that, even beyond the prosecutor in St. Louis County, we put elected officials on notice that the power still rests with the people,” Gould added.

Video Shows Baton Rouge Police Pinning Man To The Ground and Beating Him

The officers were part of the department's Street Crimes Unit, known among residents for its aggressive patrols.

Steven Wayne Young (left) recounts his Oct. 24 arrest by officers in the Baton Rouge Police Department. Randy Brown witnessed and filmed the incident.
Clarissa Sosin

Video Shows Baton Rouge Police Pinning Man To The Ground and Beating Him

The officers were part of the department's Street Crimes Unit, known among residents for its aggressive patrols.

Two weeks after a routine police stop in Baton Rouge, Louisiana, you can still make out the injuries on Steven Wayne Young’s body. There are the scabs on his wrists from where the handcuffs tore into his skin when an officer dragged him by the arm. He lifts his shirt over his head and bows his head forward to give a clear view of his back. He has mottled skin where the prongs of a police Taser latched onto him. He mimics the sizzling sound of the weapon’s electricity racing through him.

Young, 42, points to a picture on his phone—the mugshot taken of him while the officers booked him. His eyes are nearly swollen shut, he has an open wound on the right side of his temple, and tears from being pepper sprayed streak his cheeks. His face contorts as he talks about the agonizing sensation of being sprayed in his eyes over and over. Then he takes out the medical documents showing his litany of injuries. He was taken to a health clinic after the East Baton Rouge Parish Prison refused to accept him in the condition he was in.

Police have consistently denied Young’s account that he was beaten for no reason and local media reported that an officer had been cleared after an internal investigation into the incident.

Now, as Young recovers from his injuries, he is facing gun, marijuana, and resisting arrest charges. As he recounts the brutal, nearly six-minute beating, his voice starts to crack, and he begins to cry. It’s not any one injury he sustained, or a specific blow he received that leads Young to weep. It is recalling that feeling of helplessness. That feeling from his childhood that he so despised as a student who bounced from school to school in special education classes.

“When I start getting to thinking about their whooping that they were putting on me like bullies—and two at the same time—that was that feeling when I’m like, when I’m getting beat up and I can’t do nothing about it,” he said, his voice cracking, his chest heaving. “And everybody’s sitting back looking at me looking like a fool, you know what I mean? And it hurts me. That hurts me. I can’t stand a bully. I can’t stand nobody that preys on somebody.”

‘They did that for a blunt?’

Young’s Oct. 24 arrest started when the officers pulled up in a white Dodge Charger outside his apartment complex and accused him of holding a blunt, which Young insists he did not have. The Baton Rouge Metro Council passed an ordinance in February allowing officers to issue tickets for small amounts of marijuana instead of making arrests, though officers are still able to make arrests under state law at their discretion.

The confrontation quickly escalated. According to the arrest report, Young tried to pass of the blunt to a neighbor then tried to flee—first on his motorcycle then on foot. When the officers tried to restrain Young, according to the report, he fell to the ground. One of the officers then Tasered him. Then the two officers and Young “actively fought,” according to the police report, until back-up came. After the fight but before putting him in the cop car to take him to booking, they searched him and found a concealed weapon in his pants, according to the police report.

Young and his neighbor, Latrice Robinson, dispute this version of events. Both said that they weren’t smoking a blunt when the officers showed up and that the officers approached them aggressively, tackling Young from the beginning of the interaction. Young said he never had an opportunity to try to flee or to fight back. He said he went from trying to put his motorcycle away to getting beaten, Tasered, and pepper sprayed.

The encounter, which lasted several minutes, was captured on videos by residents and bystanders—two of whom were also arrested after Young’s beating and arrest. In the videos, they express shock and disbelief at the beating, which continues even after Young is cuffed and seemingly defenseless on the pavement.

At moments in the footage, there are pauses in the violence, and it seems like the beating has come to an end. Then, suddenly, an officer will unleash another series of blows to Young’s head.

In a video taken from across the parking lot, a woman yells “Look at him, look at him punching. Why?” while the officer smashes Young’s head. In the background as she speaks, there’s a loud thump—either from the sound of the impact of a cop’s fist with Young’s skull or from the sound of Young’s head bouncing off the pavement.

In another video filmed from an apartment overlooking the parking lot, a woman’s voice shouts “You’re going to kill him!” while she bangs on the window.

Randy Brown, 38, was in the parking lot that day with his teenage son. He taped the incident and yelled out in disbelief when he heard how it all started. “They did that for a blunt? Goddamn!” he’s heard yelling in his video. Just the day before, he later told The Appeal, he had instructed his son to turn around and walk in the opposite direction if he saw the white Chargers.

Now, his son was able to see firsthand why.

Brown and his son fled back to their apartment when the police started to arrest bystanders who were telling them to stop the beating. One of the two other people arrested, a maintenance worker for the apartment complex, can be seen in the video getting shouted at by one of the officers who arrived as back up. Just as the cop is about to cuff the worker, a woman’s voice warns Brown, “He was just standing there—put that camera down.” The final seconds of the video are of the pavement as he races back home.

The Baton Rouge police press office initially declined to comment for this story, including on the size and mission of the Street Crimes Unit. Instead, the office directed requests to the department’s legal division. A representative responded that the legal office doesn’t answer questions but suggested that The Appeal submit a public records request. The representative noted that any records related to the criminal prosecution of Young are “not subject to disclosure until the criminal litigation is finally adjudicated.”

However, after repeated attempts at getting comment, the public information office finally confirmed what it told the local media. In an interview with a television station, Sgt. L’Jean McKneely Jr., a police spokesperson, said the officers who beat Young will be exonerated by what’s seen in their body camera footage. He said the videos released to the public do not show the whole story. He said Young didn’t listen to the officers’ commands and he continued to resist even when he was handcuffed.

“He was actively fighting, went to the ground, and continued to fight actively with the officers,” McKneely said. “And all that is clearly on the body cam.”

“Once you see this video, you will see why he resisted, especially when we pulled the gun he had concealed in his waistband.”  

McKneely said that the footage captured by the officers’ body cameras justifies their actions.

But, they have yet to release this video.

Young and his lawyer have requested it be released. A court date was scheduled for today to determine the disposition of the body camera and dashboard camera footage.  A judge denied the request to order the release of the footage.

If released and if the officers used their body cameras appropriately, the footage would show what happened at the beginning of the arrest, settling the dispute between Young and his lawyer and the BRPD over what happened during the initial interaction. It would also show what happened after the bystanders stopped shooting with their phones.

When Alton Sterling was shot and killed by Baton Rouge police in 2016, the BRPD also said body camera footage of the incident would justify its officers’ actions in the eyes of the community. It did not. In fact, when longer videos emerged—both footage the police seized without a warrant and video from the officers’ body cameras—the new footage only stoked further controversy over what many community members saw as unnecessarily aggressive treatment of Sterling from the very beginning of the incident.

“There is an aura of mistrust between the Black community and the police department,” Ron Haley, Young’s lawyer, said. “And it has to do with situations like Steve Young. It has to do with situations like Raheem Howard, Alton Sterling, Calvin Toney.”

A climate of fear

The police department hasn’t released the names of the officers involved in the incident, but they are with a unit well known to Black residents.

Like many police departments across the country, Baton Rouge has a specialized Street Crimes Unit, which goes into high-crime neighborhoods and aggressively pursues drug and gang activity. Baton Rouge’s unit is responsible for several recent police shootings and excessive-force complaints. In October, an officer from the unit was fired after he lied about a shooting during a traffic stop.

The fear of the team is ubiquitous. Many people who live in the predominantly Black neighborhoods of North Baton Rouge have a story to tell. A mother who lives on the 2000 block of North 16th Street in Baton Rouge told The Appeal during an interview in August that she had to chase an officer from the team out of her house one day because he barged in looking for her son who had just come home from work. She said most of the young men in her community had been stopped on the street for no reason. During the interview, several young men came rushing over to her porch, telling The Appeal that they wanted to avoid contact with the unit who had just started their patrol.

In two dozen interviews, Black residents said they knew what days the team comes through their neighborhoods. The officers drive unmarked white Dodge Chargers. While out speaking with residents, reporters from The Appeal saw the Chargers drive through a neighborhood and watched people run into their homes. Parents teach their children not to talk back to the officers in those cars. Community leaders, residents, and local politicians say the unit threatens residents and stops them without cause.

“They have a track record of showing up in the community and terrorizing people,” said Gary Chambers, an activist who organizes around police-community relations.  

Steven Young shows his injuries.
Clarissa Sosin

Chambers said the aggressive policing is actually doing more harm to the relationship between Black residents and the police department. Who wants to reach out to the police, he asked, if they’re going to beat you while you’re trying to park a motorcycle? “Whooping ass isn’t solving the problem,” he added.

Haley, Young’s lawyer, has interviewed hundreds of clients in his more than a decade as an attorney in Baton Rouge handling cases of police abuse. “The Street Crimes Unit is a big reason for the fractured trust between the police and the community it’s supposed to protect,” Haley said. “I understand it’s a two-way street. I understand why there is a thought to overpolice certain parts of the Baton Rouge community. But it’s not working.”

An example of how badly it isn’t working, he said, is what happened to his client. He insists that the police release the dashboard camera footage and the body camera footage of the incident. But to pin this on specific officers misses the point, he said. This problem with abuse and violence is one that runs deep in the Street Crimes Unit, he claims, citing his experience in several prior cases.

“We are seeing too many incidents coming out of that unit that are coming to question in a very public way,” Haley said. “And after a certain point, we have to question: Is this more the individual officer? Or is this the culture of the unit?”

He said that in nearly every case there is some sort of a resisting charge levied against the defendant when the police use force. “They use that resisting charge to justify their officers’ force,” he said. “That is why he was not surprised when his most recent client, Young, had a resisting charge field against him by the BRPD. It’s a predictable part of the script when dealing the BRPD, he says, whenever questions of excessive force come up in one of his cases.

So far Young has only been arrested by the BRPD. He has yet to be formally charged by the district attorney’s office.

Collateral damage

Latrice Robinson, the neighbor who was with Young in the minutes leading up to the beating, was one of the two bystanders arrested that day. She was charged with obstruction of justice and possession of marijuana, and spent 17 hours in the East Baton Rouge Parish Prison. According to her arrest report, she tried to hide Young’s blunt as the police approached. Robinson denies this. She said she believes she was arrested for taking photos of the license plates of the police cars and joining in a chorus of people who were pleading with the officers to stop the beating.

“The real truth is,” Robinson said explaining her arrest, “I was able to see what happened.”

The beginning of the arrest of the maintenance man who worked for the complex can be seen in one of the videos. He could not be reached for this story.

Robinson, 48, had been chatting with Young and helping him guide the back of his motorcycle into the gated lot in front of his apartment when a Dodge Charger pulled up suddenly and two officers got out, she said. Robinson, who was out walking her dog and looking for the property manager, had seen the Charger just minutes before. The officers had been conducting a search. They rushed toward Young. “Give me the marijuana! Don’t try to pass it off,” an officer shouted, according to Robinson—a command that perplexed both Young and Robinson who said they did not have a blunt. Then, one of the officers charged at Young who fell, taking Robinson and his bike down with him.

“I didn’t know what they was going to do next,” said Robinson, who said she sat startled on the ground next to her dog and watched everything unfold in front of her. One of the officers pulled out a weapon, a Taser she quickly realized when Young began to writhe on the ground, electric currents jolting through his body. Then they got on top of him and started hitting him.

“Dang is this really happening? This can’t be happening,” thought Robinson, who had only seen police beat civilians in movies and on TV. “This is not happening in front of my own eyes!”

Witnessing the beating shook Robinson’s world view. She grew up in a family of police officers and had always trusted the police, she said.

“Now I’m like, I don’t know who to trust,” she said. “I don’t know if I should trust them.”

In the videos, Robinson, visibly distraught, paces around in the crowd of bystanders with her dog in her arm, verbally protesting the abuse taking place just feet away from her.

She said she wondered later how many others the police had abused.   

At the end of November, Young’s lawyer went public with his attempt to get the dashboard camera and body camera footage of the incident. But, as Young and his lawyer fight the criminal charges and prepare a civil lawsuit, his fear about what the cops could do next has only increased.

Throughout the past few weeks, he said, he had seen white Dodge Chargers following his car and driving through his neighborhood.

“If I don’t leave Louisiana I’m really seriously in trouble. I’ll take a lie detector test to show that I’m not exaggerating about my feelings. I am scared for my life,” he said. “I’ve got to leave—I cannot stay in the state of Louisiana.”

The Appeal Podcast: How Local Governments are Pushing Back Against ICE

With Appeal senior reporter Debbie Nathan.

Photo illustration by Anagraph. Photo by John Moore/Getty Images

The Appeal Podcast: How Local Governments are Pushing Back Against ICE

With Appeal senior reporter Debbie Nathan.

With the swearing in of President Trump in January 2017 came an aggressive rightward shift in America’s immigration policy, specifically with regard to Immigration and Customs Enforcement. Our guest, Appeal senior reporter Debbie Nathan, has been documenting how municipalities throughout the United States, especially those in deep red Texas, are pushing back using everything from mass protests to direct action to lawsuits.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod and on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe and rate us on iTunes. With the swearing in of President Donald Trump in January 2017 came a broad rightward shift in America’s immigration policies specifically with regard to Immigration and Customs Enforcement, otherwise known as ICE, which has increasingly been used as a kind of strike force against immigrant communities, harassing, documented and undocumented a like. Our guest, Appeal reporter Debbie Nathan, has been documenting how municipalities throughout the United States, and specifically those in Texas, are pushing back against these forces using everything from legal support to direct action to lawsuits.

[Begin Clip]

Debbie Nathan: There’s a law that was passed in the Texas legislature that has a short list of crimes that can be cited rather than arrested and charged as misdemeanors that you can get a ticket. And one of those is possession of small amounts of marijuana. And so now in Austin, if you’re stopped and you have a little amount of marijuana, you are always cited now rather than arrested. And of course that’s very protective of immigrants because once the immigrant gets into the jail the immigrant is a sitting duck for ICE, but with a citation you don’t go to jail. We believe this is very helpful for all of Austin’s population and particularly as we know the over representation of people of color and poor people who are subject to this kind of law enforcement.

[End Clip]

Adam: Thank you so much for coming on Debbie.

Debbie Nathan: Thank you.

Adam: So you’ve written recently and done some really good reporting on the ways in which municipalities are pushing back against both the state and federal immigration policies. Uh, specifically the federal policies under Trump. You wrote an article on November 9th called, “States Are Enacting Their Own Bans Against ‘Sanctuary City’ Policies,” that detailed some of the efforts that are going on in this regard. I want to start by talking about what’s referred to generally as the Freedom Cities movement. What does that mean in the context of ICE? I know that with Trump there’s sort of a whirlwind effect where we can lose track of all kinds of racist policies and actions that are going on, but, but can you sort of clear the air here and talk about what the current status of ICE’s policies are in these cities? Um, and what quote unquote “liberal” cities and municipalities are doing to push back?

Debbie Nathan: ICE has for a while had a policy where it demands that, um, for example, sheriffs who run jails, tell ICE when an immigrant is getting ready to be released from jail. And so that gives ICE the opportunity to show up and do an interview about this person’s immigration status. And this has actually been going on for quite a while. It was going on under the Obama administration. And um, but when Trump came in, by the time Trump came in, there were several municipalities, there were counties and there were cities and states as well that had passed policy saying, you know, we’re not going to share this information with ICE. And so the DoJ under Trump started saying, we are coming down on you, if you are not going to be sharing information with ICE we’re citing a law called US Code 8 §1373, which is an Immigration and Nationality Act law that says that local law enforcement cannot prohibit its officials from sharing information with ICE. So the DoJ said, we’re just going to take away your JAG J-A-G grants, which are Justice Assistance Grants. They are like a lot of money that are given to localities to beef up their criminal justice enforcement. And so, um, you know, that was the main threat that was made against many, many localities. Some of those localities where, um, New York, Chicago, Philadelphia, Los Angeles, San Francisco, New Orleans, there were counties, there were smaller cities, there were states including California and Vermont. So it’s, it’s really interesting in order to see how cities have been able to push back lately against ICE’s demands that they’ve based on 1373, we have to look at a lawsuit that was brought by the governor of New Jersey against the National College Athletic Association and the National Hockey League and the NBA and the NFL. And um, it’s a, it’s a lawsuit claiming New Jersey’s right to allow gambling, sports gambling. So it turns out that back in the nineties, Congress enacted this law called the Professional and Amateur Sports Protection Act, which basically outlawed sports betting nationwide except for a few grandfathered states that already had it. So New Jersey brought this case that ended up going all the way up to the Supreme Court and it was decided by the Supreme Court earlier this year. What they decided was that this Act, um, violated the 10th Amendment, you know, which that’s the part of the Constitution that reserves for the states what the federal Constitution doesn’t cover. But also the court decided that it, this sounds so military, it also violated what’s called the Commandeering Principle. You ever heard of that?

Adam: No. What is that?

Debbie Nathan: So the Commandeering  Principle says that unless Congress passes a whole set of regulations covering particular activities, Congress can’t order local governments to regulate in a particular way.

Adam: Okay.

Debbie Nathan: Okay. So, so basically the Supreme Court said that, um, you know, this, this lawsuit, they decided for New Jersey because they said that this Professional and Amateur Sports Protection Act was unconstitutional. Now, going back to what these local municipalities did when they, they also, sometimes were sued or they sued the DoJ and they argued that 1373 was unconstitutional using this Supreme Court decision based on sports gambling. And so, um, there have been judges now in Philadelphia, Chicago and Los Angeles have said that’s right, 1373 for the same reasons is unconstitutional. The California court actually said it looks like it’s unconstitutional, but um, you know, what we can expect is that they’re going to be a lot more lawsuits brought by these local entities against 1373. So it looks like 1373 is going to be knocked out. But this is a thing that it leaves a lot of, I wouldn’t say a lot, but several states, this phenomenon still leaves several states under the thumb, not even of 1373, but of their own legislatures. So Mississippi, for example, Tennessee, Iowa, they recently, their own state legislatures passed laws saying that law enforcement cannot refuse to share information with ICE. And the one actually, the one state that everybody probably knows about, who’s interested in this, is Texas. So last year it was very contentious and made national news, Texas passed a law called Senate Bill 4 or SB4 and not only does SB4 say that, um, for example, a sheriff cannot refuse to give information to ICE, you know, I mean, it’s not just that the sheriff’s going to like not get some funding, but that sheriff can also be arrested and charged with a crime. So SB4 before is very draconian and there’s no way that any municipality in Texas can go and sue based on the unconstitutionality of that. It is just not gonna work. And so, um, what’s really interesting is that there are communities in Texas where they’ve sort of tried to, particularly city councils, they’re trying to figure out work arounds to protect immigrants.

Adam: Yeah. So, so what you have here, broadly speaking, just to kind of backup, is that there’s an interplay between the federal government, which is obviously very right-wing and very hard on immigration and then you have these municipalities which are generally speaking more liberal. Uh, they obviously have huge immigrant communities, um, and then you have certain states that are kind of an extra tier of pro-Trump immigration that’s sort of preemptively outlaw cities from doing certain things. Now, one of the cities you highlight, which is I think pretty much the quintessence of this dynamic, is Austin, Texas, go Longhorns, they’re my, they’re my alma mater, where the pushback is coming from the city. And you highlight one council member there, a gentleman by the name of Greg Casar, who teamed up with groups like Grassroots Leadership, United We Dream, Workers Defense Project, they’re trying to make these ordinances to prevent police from doing these sorts of things. Um sort of this whole, ‘show me your papers’ routine and throwing people in jail. Can you talk about this case and what the current legal status of these efforts are?

Debbie Nathan: Yeah. Um, so first I should say that Greg Casar is a member of an organization called Local Progress, which is kind of a subsection of a national organization called the Center for Popular Democracy. So Local Progress is this national network of progressive elected officials from cities and counties and towns and school districts and other governments across the country and they get together and they talk about how they can do things on a sort of very local level. So Greg Casar is on the Austin City Council, as you mentioned, and is a member of Local Progress, he teamed up with the groups that you mentioned to start doing things like, I find this very creative, for example, he was looking, really giving a close look at what Texas law allows. Okay. So one thing that Texas law allows is the Fifth Amendment right not to answer if a border patrol agent or an ICE officer asks you what your legal status is. You don’t have to answer. And so, um, what the police are doing an Austin now because of Greg Casar’s work with the city council, is that they, when they stop people, if they ask them what their legal status is, at the same time that they ask, they have to tell the individual, you know, you have a right not to answer.

Adam: Right because a lot of people wouldn’t know that, obviously.

Debbie Nathan: Yeah, that’s right. Most people don’t know that. And um, you know, another thing that they’ve done and I think that this represents not just a concern for immigrants, but a concern for the people of color in all of these communities that are interested in doing this, there’s a law that was passed in the Texas legislature that has a short list of crimes that can be cited rather than arrested and charged as misdemeanors, that you can get a ticket, and one of those is possession of small amounts of marijuana. And so now in Austin, if you’re stopped and you have a little amount of marijuana, you’re always cited now rather than arrested. And of course, that’s very protective of immigrants because once the immigrant gets into the jail, right? The immigrant is a sitting duck for ICE, but with a citation you don’t go to jail. And you know, I mean, clearly this is very helpful for all of Austin’s population and particularly as we know, the, um, over representation of people of color and poor people who are subject to this kind of law enforcement. So those are a couple of things that are happening in Austin and then when I did the article, there are other members of Local Progress in Texas. There’s a guy on city council in Dallas is um, you know, gone to meetings and met Casar and he’s doing the same kind of thing in Dallas. His name is Philip Kingston. He also started a cite and release policy that’s similar to the one in Austin and it covers a few misdemeanors including marijuana possession. When I talked to him, he told me that he was going to ask the Public Safety and Criminal Justice Committee of the city council to also require the police tell detainees that they don’t have to answer questions about their immigration status. He was like, he said, you know, once he got that going, he would go to the full council. And then I spoke with a council person in El Paso who is also a member of Local Progress and she said that she was sort of waiting for some more progressive political developments on city council and she was planning to do this as well. So, um, this is what’s going on in Texas and you know, again, like there are actually progressive little towns and smaller cities in Texas that haven’t ever heard of this, you know, it’s still a very fledgling kind of a situation. And it’s interesting to me as a reporter because sometimes when I would go and talk to local officials in other places in Texas, they’ve never heard of this. And just the reporting itself, it’s kind of weird, the reporting itself does a little bit of seeding. It’s very interesting.

Adam: One of the criticisms that sanctuary cities have gotten from the left is that a lot of these nominal sanctuary cities have carve outs. I know that specifically in Chicago, where this show is recorded, Rahm Emanuel has been criticized for presenting himself as a defender of immigrants, but there’s a lot of carve outs for when these so-called sanctuary cities can assist ICE. And one of them is, for example, an outstanding criminal warrant. If they’ve ever been convicted of a felony or have an open felony case, that happened in one major case, and one major factor that is, I think the more egregious end of this, is whether or not they’re on the city’s gang database or the police’s gang database, which is notoriously broad and includes a lot of people. Is notoriously racist as well. Pretty much anyone who has vague ties to gang can get on it. Can we talk about what the limits of even sanctuary cities are and what that term means in different contexts?

Debbie Nathan: Yeah, I mean there are a lot of carve outs. The one that I’m aware of in Chicago, um, has to do with task forces. I remember reading about people that were just working at a bodega, you know, at a convenience store, and a ICE and police task force came in and raided the store and arrested everybody working there, including the cashier because they were looking for somebody there. I think the, the absentee owner of this place, you know, they suspected him being involved with something or other, whether drugs or gang. Um, so yeah, I mean there are many situations where, you know, these local officials are still working with ICE and a lot of times they’re sort of soft spots situations. They have to do with the public’s perception. You know, that it’s really important to control gangs or it’s really important to control drug distribution rather than possession. Actually it’s interesting in Austin, talking about task forces, in Austin they don’t feel that they can pro forma refuse to do task forces. They can’t just as a matter of principle, but the city council person was telling me that it’s a very valid refusal to say, you know what? ‘We don’t have the resources for this. We’ve got other things that we need to do with our cops then join your task forces.’ And um, again, you know, I think if you come up with some concrete reasons why this is just a misuse of resources at a particular time, that works. So I mean some of these things that people have to do, the reasoning or the rationale is, you know, I don’t know how far it can go because you always come up against, as you said, these carve outs. But I think the fact that, that these local lawmakers are thinking about these things and trying really hard to act on them is something that really needs to be, um, you know, really brought to the public, especially in places like Texas.

Adam: One of the things we talked about offline is how people in these rural areas, especially in South Texas and Southern California and a lot of agriculture, a lot of worker hotspots, who don’t have access to these more generally liberal cities. These people are cut off from these kinds of liberal enclaves. Um, what are efforts to actually reach out to those people or trying to go where they are? I know this is an issue with immigrant courts. There’s a lot of rural counties in Texas that are very conservative and people who are, who are out there, who are undocumented, who find themselves in these immigrant courts, they are three, four, five times more likely to be held in jail without a reasonable bail. What are activists doing to try to reach out to these more obscure places, uh, that aren’t necessarily sanctuary cities, but are kind of in a place that have a high concentration of immigrants in rural areas?

Debbie Nathan: You know I live in South Texas, I live right on the border and I’ve lived on the border for years and I would say that the situation is complicated in that first of all, immigration detention is different from criminal detention. And second of all, the border is so utterly inundated from here all the way to California, not only, I mean, with border patrol agents. Now in Texas, you also have, you have this flank. I mean it’s literally an army of state troopers who have been working with the border patrol for a very, very long time, for years. So they hand people over. They stop them pretextually and they hand them over to the border patrol and there’s always a border patrol agent within five minutes away. And so the stop, even if the stop is completed, supposedly for the ticket, for the traffic violation, there’s a border patrol agent that’s going to up before the tickets been written. And so that’s considered legal, right? You’re not making a new stop because the guy shows up while you’re writing the ticket or, or you just prolong the stop. You say things like, ‘well, you know what  I need to go back to my car and get something, you just wait right here, sir,’ while you’re waiting for the ten minutes instead of five minutes from the border patrol. So I mean, it’s such an exceptional situation on the border. And then people who are taken directly into immigration detention do not pass go, do not pass the jail. They don’t even go to jail, you know. So, um, the only thing that I could say is that when you combine that with the fact that there are no immigration lawyers in places like South Texas that could work pro bono, there’s literally two or three and yet this is the place where most people are arrested under those circumstances, right? So you have an extremely beleaguered activist community and I’ll tell you another thing about that activist community, is that and I’m speaking more about Texas I guess then Arizona and California, you have many, many people that themselves are DACA or they’re green card holders, they’re not US citizens. They’re terrified to do anything that’s going to result in their arrest as activists, which is going to put them in danger of being deported. I mean there’s just multiple reasons, Adam, why this kind of activism is really hard and it’s not that some of these communities are not liberal. The man that I mentioned, you know, the mayor of La Joya, Texas. La Joya is two miles from the border as far as city hall is, in that, in that city. But he feels extremely constrained because his economy is so based on the presence of border patrol and DPS and because he’s just worried about the material well being of his city. You look up in the sky in La Joya and you see drones and you look down and you see razor wire and you see the military and you see border patrol and you see state troopers. It’s really, really hard in communities like this to do the kind of work that’s being done up in Austin, but I think that once it really gets going in other parts of Texas, there will be the possibility of doing it right on the border. Border communities are not necessarily conservative communities, they’re just militarized communities.

Adam: What groups do you see pushing back against the federal and state focused on deportation and ICE?

Debbie Nathan: Grassroots Leadership in Austin and Workers Defense Project are really doing strong, you know, aggressive and creative work to push back. On the national level, there’s an organization, the Immigrant Legal Resource Center, ILRC. It’s a group of lawyers, they’re based in California and in DC and they just provide really, really good resources to activists about the law. I mean, you know, it took me like five minutes to talk about 1373 and to talk about a gambling decision from the Supreme Court, but activists often need to know a lot about immigration law and a lot about case law and these guys are really good resources.

Adam: Yeah, that was great. We’ll definitely check those out. Debbie Nathan I really appreciate you coming on the show.

Debbie Nathan: Thank you so much Adam.

Adam: Thank you to our guest Debbie Nathan. This has been The Appeal podcast. Remember, you can follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe and rate us on iTunes. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Just a heads up, we’ll be taking a holiday break over the next coming weeks and we’ll see you in the new year.

‘Things Have Changed’: A New Texas Anti-Immigration Measure Feeds Fear of the Police

SB 4 encourages officers to ask for the status of anyone they detain.

El Paso Police Facebook Page

‘Things Have Changed’: A New Texas Anti-Immigration Measure Feeds Fear of the Police

SB 4 encourages officers to ask for the status of anyone they detain.

One morning in 2014, a woman in El Paso, Texas, went to visit her baby at a Department of Family and Protective Services child protection office. The woman had mental health issues, and the state had custody of her child. When the baby was brought to her, his diaper was filthy and he looked ill and neglected. Distraught and seeking help, the woman called the El Paso Police Department.

Officer Martina Elizalde responded to the call, but she did not calm the situation. Instead, she made it worse.

Elizalde asked the woman for identification. When the woman showed a Mexican consular card, Elizalde asked her whether she was in the U.S. illegally and threatened to call the Border Patrol. A screaming match erupted and ended with the woman filing a complaint with the Police Department against Elizalde for asking about her immigration status.

Elizalde had behaved inappropriately. The El Paso Police Department officers in 2014 did not ask people about their immigration statuses when responding to calls for service. Department regulations forbade racial and ethnic profiling and bias.

Elizalde had longstanding problems with these issues. In 2011, she was reprimanded for calling an African American co-worker a racist epithet. During an investigation into her behavior at the child protection office, her co-workers revealed that Elizalde often threatened to call the Border Patrol on people and sometimes did. She also regularly used epithets against immigrants, such as “fucking maggots.” Elizalde received a 16-hour suspension, which was later reduced to 10 hours after she appealed.  

A new anti-sanctuary law

In 2017, three years after Officer Elizalde was disciplined for asking the woman about her immigration status, Texas passed Senate Bill 4, often called SB 4. It’s a draconian law that allows fines and even criminal charges to be levied against public officials, including police chiefs, who ban their officers from asking about immigration status when they detain someone. SB 4 was introduced and passed by Republicans, who touted it as a remedy to illegal immigration and pushed it as an “anti-sanctuary” law.  

SB 4 is a draconian law that allows fines and even criminal charges against public officials who ban their officers from asking about immigration status.

While SB 4 encourages police to ask for the status of anyone they detain, on paper it still protects victims and witnesses from immigration inquiries so as not to deter people from reporting crimes. SB 4 specifically prohibits police from requesting immigration papers from people who call police for assistance or who witness a crime.

A recently filed court case by the state of Texas challenges that prohibition. The main defendant in the case is San Antonio Police Chief William McManus, who was sued Nov. 30 by Texas Attorney General Ken Paxton. The suit responds to an incident in San Antonio in December 2017, when McManus arrived at a scene where 12 people had been found in the back of an 18-wheeler. The driver admitted to committing a crime: smuggling the people north after they crossed the Mexico border.

McManus could have asked the 12 people about their immigration statuses and turned them over to ICE, but he didn’t. Instead, he contacted nonprofit immigration lawyers to help the group get special visas that are available to undocumented immigrants who are crime witnesses or victims of crime. McManus’s actions were widely publicized, and Paxton responded by suing the police chief. He cited as one  reason SB 4’s prohibition against police departments “adopting, enforcing, or endorsing policies, patterns, or practices that prohibit or materially limit the enforcement of immigration laws,” for example, by discouraging local law enforcement from helping ICE or Border Patrol agentswhich Paxton says McManus did with his officers .

But McManus’s attorney, Nina Perales, said that McManus did not keep police officers from cooperating. She pointed out that SB 4 allows officers to make up their own minds about whether to help ICE and Border Patrol.

Paxton’s suit seeks as much as $11.6 million in fines from McManus and the city of San Antonio.  Meanwhile, in another lawsuit, several Texas cities, including San Antonio and El Paso, are suing the state over SB 4, hoping to have the law overturned. Rulings in both suits are pending, Meanwhile, what SB 4 allows and disallows is confusing, especially to the public.

Afraid to report crimes to the police

Immigrants rights advocates and researchers worry that the law may do more than confuse—it also may further discourage Latinxs from filing complaints. Research has been done on how Latinxs react when cooperation ramps up between local police and federal immigration agencies.”A program called Secure Communities expanded in 2013 to nearly every jail and prison in the country. It created a database that automatically shared the fingerprints of everyone admitted to custody with ICE.. That agency can then detain anyone whose prints are of interest and put the detainees into deportation proceedings.

Secure Communities and similar programs appear to have made Latinxs increasingly afraid to contact the police. For  a study published in 2013 by the Department of Urban Planning and Policy at the University of Illinois at Chicago, researchers interviewed Latinxs in the Houston, Los Angeles, Phoenix, and Chicago areas about their attitudes toward the police in the wake of new programs such as Secure Communities. Forty-five percent of respondents said that newly enacted police-ICE cooperation made them less likely to to report a crime to the police—because they feared that officers would ask about their immigration statuses or those of people they knew. Forty-four percent of respondents said they would be less likely to contact police if they were the victims of crimes.

Forty-five percent of respondents said that newly enacted police-ICE cooperation made them less likely to to report a crime to the police.

Fear of the police was not confined to immigrants. In the 2013 study, 28 percent of the U.S.-born Latinos who responded said that they, too, were less likely to contact police.

In El Paso, whose population is more than 80 percent Latinx, researchers have found evidence that residents have for years been affected by law enforcement inquiries into their immigration status.

University of Texas at El Paso sociologist Maria Cristina Morales co-wrote a study that asked El Pasoans in 2014 whether they had ever been questioned by a law enforcement officer about their citizenship. More than 20 percent of respondents said yes.

The researchers were surprised that proportionately more native-born children of immigrants reported this experience than did first-generation immigrants. Morales said she thinks that native-born Latinxs may be asked more frequently because they are out and about in the city—while their immigrant parents may be staying in their immigrant-enclave neighborhoods, afraid to leave because they fear law enforcement. Morales’ study was done the same year when El Paso Officer Elizalde started the row with the troubled young woman at the child protection office.

Josiah Heyman says he believes it is now very difficult for a marginalized Latinx like that woman to challenge police attempts to ask about immigration status—much less successfully file a complaint. Heyman is a former board of directors president of the Border Network for Human Rights, an immigrant-rights nonprofit in El Paso. He is also a University of Texas at El Paso anthropologist who studies Latinx communities and immigration enforcement.

Heyman said that with SB 4 in place, it would take “somebody very on top of what’s going on, with access to a lawyer,” to defend themselves against questioning and threats like Officer Elizalde’s and to make a complaint.

Things will be looked at differently” now if someone complains about an officer asking about immigration status.Sgt. Enrique Carrillo, spokesperson for the El Paso Police Department

As for law enforcement, “SB 4 at the very least could make an organization like the El Paso Police Department more reluctant to do something about a complaint about Border Patrol or ICE being called during a service call,” Heyman said. “They have to weigh, ‘How much trouble are we going to get into with the attorney general about SB 4?’” With the new law, Heyman said, “Things have changed.”

Sgt. Enrique Carrillo, a spokesperson for the El Paso Police Department, used identical language. “Things have changed,” he said. “Things will be looked at differently” if someone complains about an officer asking about immigration status. Carrillo said he does not know whether any such complaints have been filed since SB 4 was enacted.

Meanwhile, Elizalde is still an El Paso police officer. The Appeal asked the department to explain why someone who has been disciplined more than once for biased policing would be allowed to remain on the force. The department did not respond. The Appeal also asked to interview Elizalde but received no response.  

The Appeal Podcast: Black Lives Matter and Racism in the Criminal System

With Angela J. Davis, Appeal contributor and professor of law at American University's Washington College of Law.

Angela J. Davis

The Appeal Podcast: Black Lives Matter and Racism in the Criminal System

With Angela J. Davis, Appeal contributor and professor of law at American University's Washington College of Law.

Over four years after the killing of Michael Brown in Ferguson the issue of racism and racial disparities in the criminal legal system remains as urgent as ever. Our guest, professor at American University College of Law, Appeal contributor and author Angela J. Davis, recently edited an anthology on race and the US criminal system titled Policing the Black Man that lays out, in no uncertain terms, just how wide the gap is between the experiences of white and black Americans in everything from policing to bail to conviction rates.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, you can follow us on Facebook at The Appeal magazine’s main facebook page and you can always subscribe and rate us on iTunes. Over four years since the killing of Mike Brown and the subsequent Black Lives Matter movement, the issue of racism and racial disparities in the criminal legal system remains as stark and as urgent as ever. Our guest, Professor at American University College of Law, Appeal contributor and author Angela J. Davis has recently edited an anthology on race in the US criminal legal system called Policing the Black Man that lays out in no uncertain terms, just how wide the gap is between the experiences of white and black Americans and everything from policing to bail to trials.


[Begin Clip]

Angela J. Davis: African Americans, black and Brown people, are treated worse than their similarly situated white counterparts at every step of the process. Everything from racial profiling by police officers who stop and search and harass African Americans simply because of the color of their skin to prosecutors who make charging and plea bargaining decisions that favor whites and that harm African Americans or put them at a disadvantage to judges who, when they do have discretion, make decisions both in trial and at sentencing and then the sentencing laws themselves that are so harsh, that overlay everything. So I think all of these reasons contribute to these racial disparities.

[End Clip]

Adam: Thank you so much Angela for joining us.

Angela J. Davis: Thank you for having me.

Adam: So you’ve written a lot about over the years about the criminal legal system, prosecutors. You have recently edited a book Policing the Black Man: Arrest, Prosecution, and Imprisonment on the racism of criminal justice in general, which is something that we talk about a lot, but haven’t really dug into as such. And so I want to start off before we begin to talk with kind of setting the table for the listeners, have some basic facts about the disparities in criminal justice. Um, and then I want to sort of start by commenting on the scope of the problem. So African Americans are two and a half times more likely to be arrested than whites. They’re disproportionately targeted, stopped-and-frisked and searched. Black men end up in prison more often and receive longer sentences for similar alleged crimes than white men. And they’re 21 times, this is probably the most shocking stat of all, they are 21 times more likely to be killed during police encounters than white men. So just to set the table, can we talk about how stark and dispositive the institutional racism of our criminal legal system is and is this even something that you think is even up for debate?

Angela J. Davis: No, I don’t think it’s up for debate at all. The statistics are pretty overwhelming and you laid out some of them. African Americans, black and Brown people, are treated worse than their similarly situated white counterparts at every step of the process from arrest to prosecution to trial to sentencing. And by similarly situated, I mean when whites engage in the same behavior or alleged to have engaged in the same behavior, they are treated better than African Americans and Latinos, and that’s pretty much, you know, established in the system. And this is true by the way, whether they are charged with a crime or are victims of crime, it is the case. Um, and these unwarranted racial disparities are stark. And the causes of the causes for the racial disparities are complicated. You know, they are varied and complex, I should say. They are the socio economic reasons that have to do a lot with poverty. People of color are disproportionately poor in this country and the poor are disproportionately people of color and everyone is pretty familiar with the connection between crime and poverty. So there those socioeconomic reasons, but there are also the discretionary decisions that are made by criminal justice officials at every single step of the process that also contribute to and help to cause these disparities. Everything from racial profiling by police officers who stop and search and harass African Americans simply because of the color of their skin, to prosecutors who make charging and plea bargaining decisions that favor whites and that harm African Americans or put them at a disadvantage, to judges who when they do have discretion, make decisions both in trial and sentencing and then the sentencing laws themselves, uh, that are so harsh, that overlay everything. So I think all of these reasons contribute to these racial disparities. So it’s, it’s complex. It’s not as simple as saying the system is racist. Well, yeah, the system is racist, but you have to dig a little bit deeper to really understand how it plays itself out.

Adam: So the book you edited, Policing the Black Man: Arrest, Prosecution and Imprisonment, is sort of a survey of the general literature and writing, especially in the context of Black Lives Matter, which obviously has drawn attention to police abuse and police shootings. Now, one thing I think a lot of people don’t necessarily appreciate is how police shootings are really just the very, very tip of the iceberg of a broader issue. Um, but they’re kind of the more extreme, vulgar and more visceral version of a regime of harassment, which one of the contributors to your book Kristin Henning, sort of documents as a cradle to grave thing, as a boyhood adolescence to adulthood that in every step of the way there’s a criminalizing of black people. Can we. Can we talk about that? Like what are some of the first instances in which African American children, specifically men, are kind of put on the grid or kind of criminalized by virtue of being black?

Angela J. Davis: Yeah. So Kristin Henning, who is one of the nation’s leading experts on, on juvenile justice issues lays this out in the book. And just a bit about the book.  Really what it is, what it attempts to do is to explain the many ways that the criminal justice system polices black men and policing meaning in the broader sense of the word. In other words, the many ways that the system controls black men at every step of the process from arrest to prosecution to sentencing. And in her chapter she really talks a lot about black boys and really black boys are treated worse by police officers and the system then black men, quite frankly. And she explains it quite well in her chapter. You know, we first of all know that all adolescents, because of the adolescent brain and not being developed, they act impulsively, they do stupid things. All kids do, you know, just by nature of the fact that they are kids and their brains have not yet developed. They’re very impulsive. They react in different ways. But police, when they see black boys, they treat them differently. They see black boys on the street corner playing and doing the kinds of things that kids do. And they see a criminal. They don’t see a kid. Right? And they go over to them, they put their hands on them, they throw them down, they search them, they frisk them, they assume they’re doing something wrong. And of course anyone, even an adult, but certainly kids, are going to respond, you know, in a very negative way. They’re gonna, you know, feel like they are being mistreated for no reason, and so they respond impulsively and then that of course then causes the offices to decide that they have then reasonable suspicion or probable cause to arrest them or search them and it’s just a cycle. And when you add to that, the adultification of black boys, uh, you know, there’s research done that shows that police officers, when they see black boys, they see someone who’s a lot older than, than they are when they see white boys, they see them as being much younger. And so that just adds to the criminalization of black boys who are really engaging in behavior that’s not criminal. It has a tremendous impact because this of course colors the way that black boys see the police, they don’t trust them, they’re afraid of them, they respond to them and then this goes on into their adulthood. Um, so I think it’s a tremendous problem and it affects black boys I think you know worse than black men and girls and women. I think they are targeted in ways that no other demographic is targeted.

Adam: You note that one study found that, um, officers overestimate the age of quote “adolescent black felony” suspects by roughly four and a half years and underestimate the age of adolescent white felony suspects by one year. This is beared out in several studies. The media plays into this as well. We routinely see African American teenagers referred to as adults or in adult terms. Um, and Donald Trump Jr., who’s, who’s I think, or Donald Trump’s kids who are in their early forties are referred to just like stupid kids. So this is something we see time and time again.

Angela J. Davis: Exactly.

Adam: Yeah. I guess I’m, I guess I’m curious to what extent do you think that perceptions in the media help this feedback loop and do think that that becomes part of the same sort of racist dynamic? Is it innate? Is it just a, is it just because, you know, one of the things that a lot of people have tried to focus on is trying to retrain police officers to kind of be less racist? You think that that’s possible, or is it so ingrained into the system that’s something more structural has to happen?

Angela J. Davis: Well, of course I think both. I mean something structural needs to happen, but we also need to do training. I mean these problems are complicated so there’s not gonna be one solution that’s going to solve it. And if you’re talking about police in their interactions, I think a lot has to be done, you know, implicit bias training. So people talk about implicit bias. It is something that’s real. I think that everyone suffers from implicit bias, you know, you and I do, we all do, right? That we have these views about other individuals that we’re not even aware of that causes us to look at them differently, treat them differently based on their race, their gender, their sexual orientation, their skin color, their body size, whatever it may be. And we’re not even aware that we’re doing it. It is that thing that causes, you know, the woman who comes onto the elevator and sees a black man and pulls her purse a little closer or you know, moves away and she’s not even aware she’s doing it. But she sees a black man and she sees a criminal, and this is, this is how black men and boys and women too, by the way, but certainly black men and boys have to live their lives every day and so how do we solve this? Right? There’s no one solution. I think police training is a huge part of it though. Implicit bias training certainly, and there’s a really interesting program now at Georgetown Law School a Fellowship in which they are engaging with the DC Police Department for brand new police officers to come to Georgetown and engage in this training on issues like race and juveniles and implicit bias, all kinds of issues. It’s an interesting program. I think we have to start somewhere, so I think implicit bias training is a big part of it. Yeah. Does the media play a role? Certainly the media plays a role, but I think police departments have to take a responsibility for training their officers. That’s a big part of it as well.

Adam: You write a lot about prosecutors. You’re probably one of the foremost experts on prosecutors in their role in the criminal legal system. A lot of the attention over the last few years is focused on police and police abuse. Increasingly, there’s been a shift towards focusing on prosecutors as the sort of fulcrum of power, sort of a higher ROI, more bang for your reformist buck as it were. Can we talk about the role prosecutors play specifically prosecutorial discretion in these racial disparities and what in your view are some of the solutions to this problem?

Angela J. Davis: Sure, so I believe that prosecutors are the most powerful officials in our criminal justice system. I mean we pay a lot of attention to the police and we should continue to pay a lot of attention to police because they obviously have a lot of power and discretion on the street to stop and search and harass and ultimately kill. But police officers, you know, in the majority of cases, thankfully in the majority of cases, people are not killed, but they’re certainly harassed and end up in the criminal justice system. But police officers only have the power to bring the person to the courthouse door. It is the prosecutor who makes the decision about whether that person will become entrenched in the system and exactly what happens to that person in the system and they make those decisions through their charging and plea bargaining decisions. They and they alone decide whether a person’s going to be charged with a crime and what that charge is going to be. They decide whether there’s going to be a plea bargain and what that plea bargain is going to be and those two decisions, the charging and plea bargaining decisions really predetermine the outcome of most criminal cases because about 95 upwards to 98 percent of all criminal cases are resolved by way of a plea bargaining. Right? We see all these television shows, Law and Order and all the different versions of it and we think all these trials are going on in the courtrooms everyday, not so. There are a lot of pleas, guilty pleas going on in the system and prosecutors totally control that process. They have such discretion. Just to give you an example, let’s say a police officer stops a person and finds a large amount of cocaine on them and they arrest the person and they take them down to the police station and then ultimately they end up in court and the police officer can recommend to the prosecutor what the charge should be. They may recommend that the person be charged with possession with intent to distribute cocaine, let’s say, which is a felony that carries a mandatory minimum sentence in every state and in the federal system as well, but the prosecutor doesn’t have to take that recommendation, right? She can decide to totally dismiss the case. Even if she’s got the ability to prove it beyond a reasonable doubt. She can say, I’m going to give this person a break. I’ll just miss this case.

Adam: Right.

Angela J. Davis: Or she can take the recommendation and charge the person with a felony, or she can say, well, I’ll charge this person with a misdemeanor. So you can see when they have all of this discretion and these decisions are made behind closed doors, they are accountable to no one, they don’t have to explain why they’re making the decision, so obviously that creates disparities. Many of the racial disparities that we talked about a little bit earlier and the decisions are made behind closed doors and they are accountable to no one except their boss, the chief prosecutor. Right? And so this is a tremendous amount of power. Similarly with the plea bargaining process, a lot of times they’ll pile on lots of charges. Oftentimes they know they can’t prove them beyond a reasonable doubt ultimately, but they can bring the charges and that puts the person in an overwhelming position of facing, let’s say five, six, seven counts of distribution each carrying ten years and facing sixty, seventy years the prosecutor comes and says, well, I’ll give you a break. I’ll let you plead to  one ten year mandatory minimum sentence, which of course is huge in and of itself, and the person thinks, oh my God, if I go to trial, you know, I may be found guilty of all of them even if I’m innocent so I don’t want to take that chance and so I’ll plead guilty. And all of these decisions are made by prosecutors, controlled by prosecutors, such tremendous, tremendous power that they have with very little accountability to the people that they serve.

Adam: One of the things you note is, because when trying to tease out the socioeconomic versus the racial disparities, that even if African Americans are driving nice cars or dress nice or sort of perceived as having money, this matter is a little bit, but not a lot and in fact can have an inverse effect where they’re perceived as being part of some illicit market, drug dealing, so forth. To what extent is race as such, even if you factor or or account for the socio economic aspect, a detriment and and what’s the sort of data on that because a lot of people say, oh, that’s just because of inequality and there’s sort of this class first approach but I think one thing that’s apparent in the data to me is that race in and of itself is a major factor separate from that.

Angela J. Davis: Of course. It’s race and class and how many stories have we heard of individuals, you know, professors, doctors, lawyers, I could give you countless examples of people who are treated, you know, athletes, I mean, how many stories, you know, the tennis player James Blake, I could give you countless, countless examples of African Americans who are well off, middle class to well off to wealthy who will because they have a black face the police officer see them as a threat, as a danger, as a criminal and they are treated poorly, you know, all in sometimes not just poorly but really harshly. So it’s race, it’s class, but it’s class and race and race is always a factor there regardless of a person’s socioeconomic background or income level. Always.

Adam: One of the things that, uh, that we, we talk about these things, there’s sort of this, this, this unequal pie that’s being distributed and that one approach to reform is to kinda just lessen the overall pie because obviously putting more white people in jail, making it more equal is sort of not desirable. Right?

Angela J. Davis: No, that’s not desirable.

Adam: Right? So what you want to do is you want to sort of reduce the pie and one way is that people are trying to, and this is something that obviously The Appeal does, which is target district attorneys and target prosecutors as a, as a major influencer. What in your mind is, if someone’s listening to this and sort of accepts the premise, as I think all rational people will, that there’s these massive racial disparities and huge racist regime of our criminal legal system, what in your mind are the sort of major solutions that people should look out for? So let’s be, we can be somewhat prescriptive here.

Angela J. Davis: Right. So as I said before, there’s so many different solutions and people say, you know, what can I do? And I say, you know, everybody can’t do everything but everybody can do something and we all need to get involved on different levels. You know, we need to hold our police chiefs accountable. Right? They are not elected, but the mayors who appoint them are. And so we have to become involved and make it known what we want. But I’m focused on prosecutors because I do see them as the most powerful and what I say to people is pay attention to your district attorney races. I think people don’t pay attention to district attorney races. So the chief prosecutors who were called district attorneys, sometimes they’re called state’s attorneys, uh, most of them, by the way, I should start out by saying there are federal prosecutors and there are state prosecutors, but 90 percent of all criminal cases are handled on the state level, which is why I focus so much on the state and in the vast majority, in all but about four or five states, prosecutors are elected officials and there are thousands of them. County officials, sometimes they’re elected in the county sometimes in the city, but they are elected every two, every four years. And most people don’t pay attention to that district attorney slot when they go in there to vote. A lot of times it’s because they are running unopposed. Oftentimes they serve for decades and no one challenges them, but we got to change that. And it is starting to change. There’s a movement out there of people challenging, uh, incumbents and what I call progressive prosecutors, individuals who understand that there’s a mass incarceration problem, who understand that there’s a racial disparity problem and who have decided to use their power and discretion and ways to change that. And so I urge people to pay attention to district attorney races to find people who want to run. If you’re a lawyer, run yourself if you have the qualifications to do that and to challenge some of these incumbents who are in there abusing their power and we’ve seen some examples of that happening in Philadelphia with Larry Krasner, Kim Foxx in Chicago and there are prosecutors around the country. Even in the south, Scott Colom in Mississippi. There are a number of them. Not Enough, but hopefully that will change as people pay more and more attention to their district attorneys. I think that’s one way of making a change and once they get in office, stay involved and stay on them. You know, I think it’s understandable why people don’t pay attention to the district attorneys. Right? Because unless you or a member of your family is involved unfortunately in the criminal justice system as either a victim of a crime or a defendant, normally you don’t really want to think about that. You don’t pay much attention to it, but we all have to pay attention if we want to change this system and not just when we’re in the system or our family members are in the system, but we have to pay attention if we want to change this horrible criminal justice system we’re involved in from policing to prosecution to lobbying our legislators on the state and federal level about these sentencing laws that are so terribly harsh. We have to get involved on all of those levels.

Adam: Yeah. I think it seems like a big problem and so what we want to sort of convey is don’t be crippled by it. Don’t be overwhelmed by it.

Angela J. Davis: Exactly.

Adam: There’s things you can actually do. One of the things you could start by doing is I think reading the work of Angela J. Davis, Professor of Law at American University. Check out her book that she edited, Policing the Black Man: Arrest, Prosecution and Imprisonment and check out her other books. She wrote Arbitrary Justice. Definitely a must read for anyone that’s interested in criminal justice reform, I would say a founding text of criminal justice reform, as it were, if it were a religion.

Angela J. Davis: Thank you Adam.

Adam: Thank you so much for coming on. I really appreciate it.

Angela J. Davis: Thanks so much for having me.

Adam: Thank you so much to our guest Angela J. Davis. This has been The Appeal podcast. Remember you can follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main webpage and as always you can rate and subscribe to us on iTunes. The Appeal is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.

The Appeal Podcast: The Pseudoscience behind Forensic Science

With Jessica Brand, Legal Director at The Justice Collaborative and Appeal contributor.


The Appeal Podcast: The Pseudoscience behind Forensic Science

With Jessica Brand, Legal Director at The Justice Collaborative and Appeal contributor.

We’ve watched the scene play out in countless police dramas: slick scientific experts with the latest gadgets finding the Bad Guys with forensic pattern matching: Bite marks, fingerprints, a marking on a fired bullet or handwriting on a note. But how scientific are these methods? And do prosecutors and judges wildly overstate their reliability? This week, we are joined by Jessica Brand, Legal Director at The Justice Collaborative and Appeal contributor to discuss some of the pseudo-science behind forensic science.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main webpage and as always you can subscribe to us on iTunes. We’ve watched the scene play out in countless police dramas, slick scientific experts with the latest gadgets and technology finding the bad guys with forensics, specifically pattern matching. Bite marks, fingerprints, the markings on a fired bullet or handwriting of a note, but how scientific are these methods exactly? And how much do prosecutors, judges, the media and police dramas wildly oversell their reliability? This week we’re joined by Jessica Brand, Legal Director at the Justice Collaborative and Appeal contributor, to discuss the pseudo science behind forensic science.

[Begin Clip]

Jessica Brand: For about a decade there has been three reports, huge reports that have talked about how unreliable ballistics evidence can be, so when you match a bullet from a crime scene to a gun and say, ‘this gun definitely fired that bullet.’ And just recently The New York Times ran an article about how reliable that field was without citing to any of these reports put together by the PCAST committee, the President’s committee on science by the National Academy of Sciences, and it didn’t cite to any of those, it just gave a ton of credit to this field and that’s The New York Times. And so when you have such a well respected paper like that running these articles it’s really hard for defense attorneys and even real scientists to combat that narrative.

[End Clip]

Adam: Hi Jessica. Thank you so much for joining us.

Jessica Brand: Thanks for having me.

Adam: In May of this year, you wrote an explainer for The Appeal called Faulty Forensics: Explained. You write that there’s quote, “no objective standards to guide how examiners reach their conclusions.” And that a lot of forensics, specifically what we’re talking about today, which is pattern matching, is based on a lot of dubious assumptions and quasi-scientific analysis. Can you, can you explain what you mean by the total lack of objective standards?

Jessica Brand: Sure, so I like to think of pattern matching as a little bit like goldilocks and the three bears. This porridge smells good, this porridge smells bad and this one is just right and that really is a little bit like how the pattern matching fields, with the exception of DNA, operate. So in pattern matching, you’ll take, let’s take fingerprints, you’ll take a fingerprint found at the crime scene, and then if there’s a suspect, you’ll take that suspect’s known fingerprint. It can be found in a database or more often it’s something that a police officer will just find. And the expert, so quote unquote “expert,” will look at this view and try to compare to see if they would match, but there’s a couple problems with that. There is no known standards for how many similarities you need to see among the two fingerprints. There’s no known standards for if something looks different, is that meaningful or is that just a product of an incomplete print left at the crime scene? And those are the kinds of things that you’d want if you’re doing something like declaring a match that could send someone to jail for five, ten, forty, life, or even in a capital case to the death penalty. So those things don’t exist and then there’s no objective rules in the field that you really must follow before you can draw a conclusion. So for example, if I follow these rules, I’ll reach conclusion X and then you Adam, if you follow the same rules, you’re going to reach the same exact conclusion that I would. Those things don’t exist. So the work that I do is not repeatable by a different kind of examiner. So there’s no sense that if you put two, three or five examiners in the room following the same exact rules they’ll actually reach the same conclusions as the next person. Which, when you think about it, is pretty scary.

Adam: Yeah. And obviously being able to reproduce results is the entire basis of the scientific method, right? It’s what makes it science.

Jessica Brand:  Apparently.

Adam: So the people who are actually doing these examinations, uh, you write a lot about the, to put it mildly, inconsistent qualifications of people who do this. Can we talk about your average police department, who are the people who are actually doing these pattern matching analysis, uh, both in terms of the, on the scene and then back at the crime lab and also what the kind of origins of this science such that it is, what the origins are?

Jessica Brand: Sure. So on the scene it’s going to be police officers who go and are trained in, for example, how to dust and lift fingerprints and there’s techniques for learning how to do that. But those are mostly law enforcement. Then when you go to the lab, it really depends. It depends on if it’s a law enforcement lab, it depends on if you’re sending it to an external lab. But what’s really critical here is there’s no kind of uniform rigorous standards for how you would be trained to do this. So there was this great 2012 ProPublica article where the journalist took a class online and he got a certificate in pattern matching after like a few hour class and I think a hundred question multiple choice test. And then, you know, Pam Colloff’s article, also for ProPublica and The New York Times really highlighted a detective who became an expert in blood splatter and I think he took a week long class, right? So it can be really fast and this became a major critique in the 2009 major report criticizing these fields by the National Academy of Sciences where they talked about what you want for someone to actually be trained in these fields. You want meaningful, rigorous training. Like, I dunno even a college-like class. We’d want to give serious tests. You’d want standards for one year licenses revoked if you’ve made mistakes or if you’ve failed, but none of those things exist in the pattern matching fields. And you can see that, you notice the St. Paul Lab in 2013 they discovered the fingerprint examiner chief had absolutely no certification and training in fingerprint examination and he was the chief of that lab. So you can really get by in a lot of these laboratories with almost no training and no standards before you’re able to get up and testify in court.

Adam: I would imagine that a meaningful percentage of people who end up in prison or end up in prison due to the testimony of experts in forensics labs, do we have a sense of the scope of how many false positives there are and how many false convictions there are? I know the Innocence Project has written a lot about forensics. Do we have a sense of how many people end up being accused based on science that is at best kind of guesswork?

Jessica Brand: So the Innocence Project estimates that in nearly half, so 45 percent of DNA exoneration cases, faulty forensic science contributed to that wrongful conviction, which is a breathtaking number. But then when you think about how many cases don’t have DNA, so you can’t have an exoneration based on DNA, you may have an even higher number than that. And then of course cases plead out. So if you’re a defendant and your lawyer says they’re going to introduce this fingerprint match, in your case, do you want to plead guilty? You may really not want to roll the dice even though that science is bad and maybe you actually haven’t done it, but you want to get out of prison. You don’t want to serve a long sentence. You might say, guilty. We’re not accounting for any of those cases in that kind of calculation.

Adam: You know one of the things, especially in media criticism, which is what I do a lot of, is the people ingest things through pop culture and it’s kind of depressing but it’s simply the way it is. And the way people perceive forensics, especially, I mean you even and I hate to admit myself, is largely informed by shows like CSI or crime detective movies. To what extent do you think that the sexing up and fetishization of crime scene, both in pop culture and true crime documentaries, to what extent do you think that that has given people a false impression of the precision of these methods?

Jessica Brand: I think that some, although I want to come back to the media critique portion of your question, I mean for sure people watch CSI, John Oliver had a spoof about it, people think that you can find the magic bullet and connect it to the gun and that’s going to lead you to the guy who absolutely committed the crime and you see these examiners in white lab coats and they seem very impressive and then when you get that person on the witness stand, who actually may have no qualifications, you equate the two together. So I think for sure it’s a huge problem, but I also think we in the media, I’m a lawyer, but people in the media give way too much credit to these fields then is due. So for about a decade there has been three reports, huge reports that have talked about how unreliable ballistics evidence can be, so when you match a bullet from a crime scene to a gun and say, ‘this gun definitely fired that bullet.’ And just recently The New York Times ran an article about how reliable that field was without citing to any of these reports put together by the PCAST [President’s Council of Advisors on Science and Technology] committee, the President’s committee on science by the National Academy of Sciences, and it didn’t cite to any of those, it just gave a ton of credit to this field and that’s The New York Times. And so when you have such a well respected paper like that running these articles it’s really hard for defense attorneys and even real scientists to combat that narrative.

Adam: One thing that struck me and something that seems obvious in retrospect, is the degree to which the scientific analysis, the lab analysis such that they are, are not independent of the police system, the police departments, and in fact they work within the police departments for the most part and they report directly to the police, uh, the head of the police and the police chiefs. Um, to what extent is there just this massive conflict of interest baked into the cake of pattern matching?

Jessica Brand: Huge. It’s huge. I mean, to be clear, it’s not just pattern matching, it’s also a lot of these DNA labs.

Adam: Right. Forensics in general.

Jessica Brand: Yeah, exactly. So you know, when labs that are affiliated with law enforcement, there’s just an inclination to make your bosses happy. I mean, one is obvious pressure. So we’ve seen lots of cases where law enforcement or the district attorney will send a sample to the lab and say, you know, ‘look at this fingerprint’ and in that note it’ll say, ‘we think this fingerprint belongs to the suspect and here’s the suspects fingerprint.’ Well, you can be the best analyst in the world and that’s gonna affect how you look at those two samples and decide whether they match it. There’s just no way around that. Study after study shows that people are influenced by that kind of biasing information. And every good defense lawyer will tell you they have seen a case file were law enforcement or a DA has put that kind of note into the law enforcement lab when they put in a sample for analysis. But then there’s just sort of the kind of less sinister type of influence, which is that when you know the police department is cutting your paycheck, who wants to be the lab analyst who says, ‘nope, I don’t think that matches, nope, I don’t think this matches, no, you know, I, I think I need to provide a greater limitation on my conclusion here.’ You’re going to be afraid you’re going to get fired. So we know there’s just that kind of also unconscious biasing effect that goes into this kind of analysis and that’s why report after report after report says we really need to make these labs independent. And even the accreditation that happens, you know, there’s these accrediting agencies like ASCLD/LAB that go in and they look to make sure that the labs are actually following procedures and maybe they’re not as biased as one might expect, but in fact they just turn out to be rubber stamps. Um, and we’ve seen that where labs actually really were making a lot of mistakes, they were making up methods of DNA analysis like happened in Austin and the accreditation firms just gave them the rubber stamps. And part of that is, you know, there’s just this feeling that law enforcement is reliable so everything that’s happening must be okay. That’s really very dangerous.

Adam: Yeah. One of the things that you talk about in your writing is the extent to which there seems to me like there’s so much invested in a lot of these pseudosciences that to sort of pull back and to analyze them critically is to really kind of call the entire system into question. To what extent are people just sort of scared of opening a Pandora’s Box of appeals and overturns? Was that one of the institutional incentives against kind of really looking into this critically in your opinion?

Jessica Brand: Yeah. I mean they’ve been using fingerprint evidence since 1911, so to say the whole field is discredited really, it does, it opens a Pandora’s Box. Now, judges could say different things. They could say, ‘we believe there’s some science to fingerprints or to ballistics, but examiner, you really can’t give the conclusion that you are giving.’ So for example, examiners in some fields get on the stand and say ‘this is a match to a hundred percent certainty’ or ‘this is a match to a near degree of scientific certainty,’ whatever that means. You could really make examiners hedge those opinions quite a bit without declaring the whole field’s totally unfounded and inadmissible, but even then, judges are really unwilling to do that except for in a few places and I think you’re right. I think it is out of fear of just opening up a lot of cases. Now the flip side is you should really be afraid of a lot of wrongful convictions, but no one wants to think about it.

Adam: You mentioned this kind of nebulous concept of what they call “scientific certainty” or “degree of scientific certainty.” Obviously the methods themselves are always about a degree of precision. You have people, the CIA and NSA do this with intelligence right? You have on one end, you know, ‘I have no idea,’ and then the other end you have rock solid proof and there’s, there’s always going to be a kind of degree. Um, to what extent do these terms, in terms of how they translate to a jury, mean anything? A high certainty versus what other, any other kinds of gradients? Are they fixed meanings in different counties and different states?

Jessica Brand: No, it’s total garbage.

Adam: (laughs.) Okay.

Jessica Brand: If you’re a juror and you hear an expert say, ‘I think that’s a match to a near degree of scientific certainty.’ You hear, ‘oh, it’s a match’ and that expert is absolutely sure. I mean it’s completely a worthless cabining of an opinion. From my opinion.

Adam: Yeah, because in many ways the trick here is to make it look like the experts that are working for the police are neutral and any experts that work for the defense are somehow corrupt like mercenaries. This is a trope you see in TV or movies a lot. Does the average juror sort of perceive the police as kind of a neutral party? Is uh, is that one of the kind of main barriers to this?

Jessica Brand: You know, I think the average juror sees the experts as neutral parties.

Adam: Right.

Jessica Brand: Whether they’re police officers or people who have gotten a certificate, you know, a juror views of policing that’s a whole different conversation. I think it’s changed a lot, especially in the years after the Freddie Gray incident, murder and in Baltimore. You see some increased skepticism of police in some parts of the country. Certainly not all, or maybe even most, but I do think there is a vision of the defense lawyer as a slimy guy who will win at all cost and the prosecutor as a trustworthy person who wears an American flag on their lapel and that’s very hard to fight against.

Adam: To what extent are judges complicit? You write a lot about how judges know better. Judges at this point are familiar with the literature. They know that a lot of this stuff is kind of bogus, but they sort of allow it anyway. This is something that directly Radley Balko of The Washington Post writes a lot about. To what extent are judges as an institution kind of going along with it for the purposes of expediency?

Jessica Brand: Judges are tasked with being the gatekeepers and keeping out unreliable evidence. That’s why they don’t let in hearsay. There’s all kinds of rules that they have to follow to keep that stuff out and junk science as one of them, and there’s legal standards in some places it’s called Frye and in some places it’s called Daubert and they’re supposed to keep out that evidence and they just shy away from doing their jobs. Now I think Radley Balko writes a lot about how maybe that’s because they’re not trained as scientists. I think that’s probably some of it, but you don’t really need to be a scientist to understand why the pattern matching fields hasn’t done studies and research and validation studies to support their conclusions. These are smart judges. They can read the PCAST report, the National Academy of Science’s report and figure that out in the same way as you or I can or lawyers can. I think it really is more, which you articulated earlier, opening up the Pandora’s Box is scary and has a lot of implications in the judicial system.

Adam: I want to drill down some of the specifics of what we’re talking about here. One of the most, if not the most dubious are bite mark analysis. You cite the American Board of Forensics did an informal test and 63 percent of the time they got it wrong. Is there any science at all to bite mark analysis or is it mostly just astrology?

Jessica Brand: Its astrology. You know, I live in Texas. You’re from Texas. Texas hasn’t really been the leader in criminal justice and yet the Texas Forensic Science Commission has said no more bite mark evidence in Texas because it’s not reliable.

Adam: Oh really?

Jessica Brand: Right. And yet in other parts of the country they’re still using bite mark analysis and I think they’ve never actually overturned a case just on the basis of bite mark analysis. Even though in a state like Texas they’re saying no more. It’s ridiculous and we know it’s led to a ton of wrongful convictions.

Adam: So let’s talk about progress that’s being made. There seems like there’s been an effort in recent years to push back against this. What progress, if any, is being made and can you you highlight any examples like on a state or county level that there’s been a real kind of reformation about forensics or pattern matching specifically?

Jessica Brand: So there are some responsible researchers out there who are doing important work on trying to analyze characteristics of patterns. So characteristics of fingerprints, for example, and they’re trying to really conduct rigorous research on those things so that you can actually test whether a fingerprint is unique. You can test how many similarities would you need between a fingerprint on the crime scene and a known source before you declare a match. So one of those people, for example, is Henry Swofford, you know, his research is really important and I don’t know what it will show in the end, but there are people who are out there doing it. Now we’ve seen some setbacks under this administration and sort of the dismantling of some of the groups that are supposed to be watchdogs for forensic science and support that research. But some of it is really happening and I think that’s important. And you’re also seeing some judges who are starting to raise an eyebrow to these things. So you know, Judge Easterly, on the DC Court of Appeals, which is different than the DC Circuit, has written a lot about how people really need to be skeptical and pay attention to the studies that show the problems with ballistics evidence. So there is this focus and increased realization I think out there about how we need to be careful and actually maybe we need to do some research before we reach conclusions that send people to jail. So I would have some cause of optimism based on those things.

Adam: Alright. That’s good to hear. We, uh, we try to leave a little optimism. We don’t wanna sew cynicism too much. Maybe someone will come up with a, uh, an Office like comedy show where it’s a police department where all they do is make mistakes instead of the sort of slick always competent version we see.

Jessica Brand: I look forward to you writing it.

Adam: (Chuckles.) Alright. Well thank you so much for coming on. That was very informative and I look forward to having you back maybe to talk about other forensics at some point down the line.

Jessica Brand: Thanks Adam.

Adam: Thanks again to Jessica Brand, Legal Director of The Justice Collaborative and Appeal contributor. Thanks for listening, this has been The Appeal podcast. Remember, you can always follow us on Twitter @TheAppealPod, you can follow us on Facebook at the main Appeal magazine Facebook page and as always you can subscribe and rate us on iTunes. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.

The Appeal Podcast: Real Reform vs. Faux Reform

With Appeal senior staff reporter, and co-host of the Justice in America podcast, Josie Duffy Rice.

Wikimedia Commons user Saffie 55

The Appeal Podcast: Real Reform vs. Faux Reform

With Appeal senior staff reporter, and co-host of the Justice in America podcast, Josie Duffy Rice.

“Criminal justice reform” has become a trendy term in recent years and, for many prospective presidential candidates, will be a major talking point in 2020. But what do people mean when they use the term? What are the policies being advanced and what are some of the dangers of surface-level reformist language unattached to specific, activist-led initiatives? This week, we are joined by The Appeal’s Josie Duffy Rice to discuss how one can separate real reform from faux-reform.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main Facebook page and you can always subscribe to us and rate us on iTunes. Criminal justice reform as a concept has become increasingly trendy in recent years and for many 2020 candidates in the Democratic Party, quote unquote “criminal justice reform” will be a primary litmus test. But what do people mean when they say “criminal justice reform?” What are the policies being advanced and what are some of the dangers lurking under the surface or performance language? Today we’re joined by The Appeal’s Josie Duffy Rice to discuss four primary centers of what we call “faux reform” and how you can separate the real reform from what is at best hot air and at worst regressive or reactionary policy.

[Begin Clip]

Josie Duffy Rice: We tend to focus on the policy which makes sense of course. This is how change gets made legislatively, focus on the policy, change the policy, but at our core we have a system that demands bodies and believes in this level of punishment as a solution and so you see it all the time, sort of trying to get rid of bail reform on the front end and inevitably thinking that you need to be making up for that investment on the back end.

[End Clip]

Adam: Hi Josie. Thank you so much for coming on The Appeal.

Josie Duffy Rice: Hi Adam. Thanks for having me back.

Adam: So doing a little crossover here.

Josie Duffy Rice: Yeah, I love that.

Adam: A little TGIF, a little Boy Meets World, Family Matters.

Josie Duffy Rice: (Laughs.) Great reference.

Adam: Yeah. You know, for the kids who are 38 years old.

Josie Duffy Rice: Right.

Adam: So we were talking offline about the use of reformist language and reform rhetoric to sneak in things that are at best a lateral pass and at worse can actually be regressive or reactionary. This is a trend we’re seeing now. Now that criminal justice reform is trendy, activists I speak to, and we’ve talked about this on the show before, about the threat of pseudo reform and kind of faux woke reform.

Josie Duffy Rice: Yeah.

Adam: So let’s talk about this to start off with. We’re going to talk about it in different areas, but I want to start with district attorneys. Um, what, from your observation as someone who follows this very closely, what are some of the ways in which district attorneys, either those who are running, or those who have already won election can use reformist language towards reactionary ends and what do you think some of the biggest offenders are?

Josie Duffy Rice: It’s interesting because if you were to talk about the era of DA reform, I would say probably the past two to three years are where we’ve seen real substantive changes, but it’s been about ten years that DAs have started using slightly reformer language. So I’m thinking about in Manhattan Cy Vance in 2008 was sort of like, ‘I want to do things differently, you know, racism exists.’ And Philly, Seth Williams, the previous DA of Philly said some of that same stuff. And what that basically meant was two things. One was ‘I want to be easier on the nonviolent offenders and harder on the violent offenders. Let’s put the bad guys away for a longer and let the small time offenders out earlier,’ and that was considered kind of like reformer language, right? The same thing with diversion programs, which is related. ‘Let’s send these kids to a program if they haven’t really done anything wrong and that way they don’t have anything on their record.’ All of this sounds really nice until you really start to interrogate it and what we saw with the violent offenders, nonviolent offenders, well, number one, most people in prison are violent offenders technically. They’re in there for what is considered to be a violent offense. Um, secondly, we should not be putting anybody in prison for longer. Leniency is not a problem we have in this country. It’s not a problem we have in this system. And this language was used to kind of binary and dichotomize defendants that really should not have been treated worse. And so that’s just one way that like reformer language has been used in the wrong way. The other, the diversion programs, we see it everywhere. ‘Oh, we’ve started this diversion program for X, Y, and Z.’ Well, number one, it’s usually basically impossible to get in the program. It has to be your first time offense. You have to be found doing one of three things. You have to be able to show up every Tuesday and Thursday at 2:00 PM to do this. You might have to pay an outrageous fee to be part of the diversion program. So first of all, it’s a narrow population that’s even eligible. And then the second thing you see all the time is that what DAs are actually doing, and this happens all the time in Louisiana in particular, they are using these diversion programs as money making devices. So in Louisiana recently, the Southern Poverty Law Center brought a lawsuit against, I don’t know how many DAs in Louisiana, but I know of at least one in Calcasieu Parish. So he had this diversion program called LACE, which stands for Local Agency Compensated Enforcement, um, that he was using as kind of a way to keep people out of traffic court. Generally in Louisiana, if you’ve got a traffic ticket, you would go to court, pay the ticket and that money would be split up between the public defenders, the DAs, the court, etcetera. He was doing a diversion program where he was passing out his own tickets, his own traffic tickets, telling people that if they paid X amount of money that it would be diverted from their, their record and then just pocketing all of the money. So not only was he taking from other parts of the system, he was basically just manipulating people and then calling it a progressive policy. So that’s just, those are some of the ways, I mean there are so many more bail reform and electronic monitoring, which I know that we’re going to talk about today, but there are all these different ways that if the language just does not at all reflect how punitive the policy is.

Adam: The Appeal is sort of generally as a magazine is kind of trying to be on the vanguard of that and to kind of differentiate between good and bad reform. for them. Others, not so much, who shall remain nameless, but one, one thing that it comes up a lot is bail reform. Bail reform is the hottest thing in town.

Josie Duffy Rice: Yeah. It is. It is.

Adam: Um, but there’s a lot of examples of bad reform vis-a-vis bail. I know that there’s two pro, two main bills that were proposed to do bail reform at the federal level, one by Senator Kamala Harris of California, one by Bernie Sanders of Vermont. So Sarah Lazare in, uh, In These Times, wrote in an article criticizing the two bills. The first one had a problem, the Sanders bill had the problem of allocating more money to county jails, which is, I know in a demand, certain abolitionists and even reformist circles have made to stop giving money to jails, period. Um, and that was one of the ways, it was a carrot and stick and he used the, he used the carrot of more money, which is obviously problematic. And then Kamala Harris’ bill relied on these risk assessment algorithms which have been criticized. And I think I’ve been found pretty clearly to be racist by their very nature because they use things like previous interactions with the police as a criteria for risk assessment and of course, what group of people are more likely to have interactions with the police? Um, and that these are really just kind of shifting the problem. They’re displacing the problem from a, from cash bail to other forms of pretrial incarceration. Can you talk about some of the siren songs that had been advanced, uh, under the guise of bail reform?

Josie Duffy Rice: Yeah. So bail reform is one of those things that is, I think, particularly ripe for manipulation. And I would say that on, on one level, the fact that we’re talking about bail reform is so important because poor people are just at such a structural, an undeniable disadvantage in the system. And this is one of the ways that, that is true. So the fact that it’s a lot of changes being made around money, I think is in general a good thing. But it is true that most of the alternatives we see out there are either, you know, at best inadequate at worst, replicating the same system a little bit more covertly. You made the point about more jails. And I think this really gets to kind of a fundamental problem with any sort of criminal justice reform, which is that we tend to focus on the policy which makes sense of course. This is how change gets made legislatively. You focus on the policy, you change the policy. But at our core we have a system that demands bodies and believes in this level of punishment as a solution. And so whether or not you’re getting it through Bernie Sanders calling to put more into jails, you know, you see it all the time sort of making up on the back end, try trying to get rid of bail reform on the front end and inevitably thinking that you need to be making up for that investment on the back end. Um, so, but to your point about risk assessments, you know, I think it’s worth being very clear about risk assessments because currently there are not, I think that I know of, any really sufficient risk assessment indicators that we possess as a, as a field, but also just nationwide. We haven’t created a fair or truly, um, truly predictive risk assessment model. I would say two things. One is that it’s not impossible to imagine that there is a risk assessment model out there that is not racist or classist. The problem so far in terms of the questions is a solvable one. The question is, does anybody actually want to solve it? If you start saying, ‘well, you’re at higher risk of reoffending or for not showing up because you don’t have a permanent address,’ you are going to be putting homeless people away. If you say ‘you’re at risk of not showing up because you’ve interacted with the police this many times,’ you’re going to be putting people of color and poor people away. If you say ‘you’re at risk of re-offending because you don’t have a home phone number,’ you are going to be putting young people away. So you are isolating these populations. Is there a way to be able to identify who is most at risk of being involved in something, a more serious criminal offense? Probably, but should you be holding those people longer or making sure they get services, ensuring that they get the help they need to not get there versus assuming that if they’re free, they will. I think the other thing, and I know that we’re going to talk about this, is this just general idea that we should see it as a reasonable ask to assess someone’s risk of what they will do in the future. Right?

Adam: Right.

Josie Duffy Rice: If you are, um, Ted Bundy and you’ve, you’re on your tenth murder, like then we can have a conversation, right? Even if you’re like a few murders below that we’ll have the conversation, if you have done something multiple times-

Adam: Allegedly.

Josie Duffy Rice: Allegedly. Right.

Adam: But the theoretical scenario where a Ted Bundy-like person would still be alleged, right? Yeah.

Josie Duffy Rice: Right. So I’m just, I, I just mean these are the rare scenarios.

Adam: I can’t wait until we run for Congress by the way. I’d be like, ‘Josie Duffy Rice defended Ted Bundy, what is she hiding?’

Josie Duffy Rice: Can you even imagine the commercials? It would just be like my Twitter feed and I couldn’t even deny it.

Adam: Yeah, it’s not gonna happen.

Josie Duffy Rice: Yeah, never, but I think it is worth discussing what our role is and what law enforcement’s role is in predicting people’s future and whether or not that should be a law enforcement role or a services role. Now, there are obviously exceptions. This is a tough line to walk and I think law enforcement has to do it all the time and I honestly can’t imagine how hard it is to be a well intentioned person trying to be in the system because if someone calls ten times and their husbands beating the shit out of them at some point you were making a predictive assessment and that predictive assessment is the moral and reasonable thing to do. Now, if my 15 year old steals from the 7-Eleven or gets in a school yard fight or runs away, should I be making a predictive assessment about what they’ll do at 30? If a 25 year old does that once or twice should I be making a predictive assessment? If we can isolate the reason they’re doing that, should we be making predictive assessments? So in some ways I don’t think that risk assessments have to look the way that they do. I think they can be better, but I do think we have to ask ourselves what is the job of the system to be doing an equation, filling out a sheet of paper, making an assessment about whether or not someone should be in jail all based on what you think they’re capable of doing in the future.

Adam: Yeah. There’s a pre-crime element to it that rubs people the wrong way.

Josie Duffy Rice: Yeah. And it should.

Adam: And of course, bail itself has almost always been a pre-crime element. It was just more haphazard and, and, and well, and maybe it’s not much difference. Maybe a lot of the, the kind of techno-racism is a bunch of window dressing, right? You know, if you pump in something to some computer and it comes out, it somehow seems like it’s not anyone’s fault. Oh it’s the algorithm, right? It sort of strips us of responsibility in a way. That’s why people love them because it’s, there’s a faux objectivity to it that I think does, um, it’s the same thing with predictive policing, which we’ve talked about before with George Joseph, where it’s like, it’s like predictive policing gives the illusion that the state is this morally neutral, not racist, not classist actor, which seems to be more of the motive behind these new technologies than any kind of desire to actually be neutral.

Josie Duffy Rice: Right. This system is a racist system. This is a racist system. It operates under all sorts of different systems that disproportionately affect people of color. It is a classist system. It operates in so many ways that disproportionately affect people of color. There is not going to be a policy or a practice in the system that is not affected by race unless this entire system is not racist. So this idea that we can impart computer modules or predictive anything or risk assessments without them being affected by the classism and the racism that plagues the system and America more, more generally, it’s a farce.

Adam: Yeah. And so what would you say to like you’re kind of a skeptical liberal who’s like, ‘well, you know, there has to be some sanction, pretrial sanction on certain people who are an imminent risk.’ Everyone’s impression is that one formulaic scene they have in every Law and Order episode where they’re doing an arraignment and the judge has some glib joke. This is people’s entire, most people’s entire interpretation of how the system works. Well it seems like what you’re arguing now is that right now we’re at like let’s say 100 units of pretrial punishment and you think it should be like 10 units and the reformers are like going down to 95 units. Is that a fair kind of?

Josie Duffy Rice: Yeah, I think that’s fair. And I think, look, I don’t know what the answer is, but I think there are two things that are critical. The first is we’re not clear, I think, and I think this is a media problem writ large. We’re not clear with people about what risk actually is. So if you look at the surveys that they do every year of what people think the crime rate is and what it actually is, the difference is outrageous. People think that crime, people think that like at any given second, someone’s going to come up and steal their child. Like they think everything is at an all time high. You know, this is Donald Trump’s whole thing, right? Like this idea that crime is on every single corner in America is just entirely inaccurate. The crime is lower now than it’s basically been in 50 years. I mean it goes up down over the years, but not by much. It’s trending down and it’s been trending down for decades. And then on the other part of that is that it’s becoming more geographically compact. So there are places in America where crime is higher than it’s ever been. Those are not the places where the people making the decisions live. The prosecutors don’t live there, the judges don’t live there, most of the voters don’t live there. These are areas that are mostly black and mostly poor where already the law enforcement presence is astronomical. So what that tells us is like both that it is the people who we think of as the offenders that are also the victims and also that like law enforcement isn’t helping, right? What we see is in the places where there are the most cops, it’s not helping. So that’s to say that one of the problems with our assessment of whether or not people should be held pretrial is rooted in our misunderstanding of how common crime is and how regularly these, these people who aren’t held pretrial would be re-offending. So there’s that. I think the second part is we have to rethink our ability to control the future. And this gets back to my previous point. Risk is part of living in a free society. So it is very possible that, you know, someone makes an assessment that’s so and so should be let out of jail pretrial and they’re let out and they do something horrible. That’s possible. And that would be a tragedy. There is no question that that would be a tragedy. Is the lesson from that that we should hold everybody pretrial? No. The lesson from that is, this is the risk we take from having a system that values fairness and, you know, says that people are innocent until they’re proven guilty. If there was a better way to do this, it might be to speed up the trial process so that people, you know, have a faster response on whether or not they are sentenced or not. And there are certainly people that should be held pretrial, I don’t know the best way to make that assessment, but as long as there’s sort of a national misunderstanding of the risks and the crime, um, then the people making that assessment are worried about their own chances of reelection, public approval rating and so they tend to err on the side of caution, which is really just punishing those people.

Adam: Um, one area that we see also emerging of faux reform or this kind of pseudo reform is electric monitoring.

Josie Duffy Rice: Oh my gosh.

Adam: I know that The Appeal has tried to really warn people about. I know that on November 8th of this year Michelle Alexander had an Op-Ed in New York Times about it, um, uh, basically, uh, laying out concerns activists had been airing for several years now. James Kilgore has been on this beat for awhile at the University of Illinois. The Chicago Bond Fund has been opposed to what they call e-incarceration. Um, can we talk about the temptation and pitfalls of electronic monitoring as a quote unquote “alternative” to incarceration, physical incarceration?

Josie Duffy Rice: Yeah. You know, it’s so, this stuff is so tough to parse out because let’s take a second and look at it in the best possible light. There is something to be said for giving people the opportunity to, for this not being a binary system, you’re either in or you’re out. I like the idea in theory, and I emphasize in theory, of the fact that people can serve their sentence but still get to see their families, still get to see their kids, still get to live some semblance of a life because being incarcerated is traumatic and harmful to the people around you. I don’t deny any of that. The other side of that, like we’re saying, is that electronic monitoring, it increases astronomically the surveillance capabilities of this system and it normalizes them in a way that is ultimately, I think, harmful for everybody and not just people who had been arrested. So this idea that not only the cops know where I am at every single given second, which room I am in in my house, but that also means that they know where the people around me are, that they can track me down at any moment and that like I am essentially their property is really, really disturbing and it’s becoming noted as a reasonable alternative to a system that is already, that there are no reasonable alternatives to. The only reasonable alternative to the system is getting rid of the system. That’s the only one. And so this idea that we can replicate without inflicting on all this harm I think is an illusion. This kind of gets back to and I think we were talking about this when I saw you, that this whole golden state killer thing, where they ran his DNA through a system and the ability for this government, which has not proven itself to have earned this, to deserve this, to have met the standard that one would need to meet before having this sort of access to people. The amount of information that they are getting from us, from these sort of electronic databases, data repositories, monitoring systems, there is no word for how concerned we should all be. And I think there is, this is kind of a consistent thing that we see these systems and these processes laid out as if they are good and reasonable alternatives to a harmful system as if the only thing that’s harmful about the system is the actual incarceration part. You know, it’s much bigger than that.

Adam: Yeah. Because one of the temptations is as you sort of as Alexander points out and as other activists have pointed out for some time now is the temptation becomes greater to use incarceration, right? And you basically have this kind of digital prison where the judge says, ‘oh well we’re not putting them in prison’ and it sort of seems harmless, so let’s just, instead of giving out to, you know, every fifth person, you’re now giving it out to every other person or a person, right? Because it, so there’s a moral hazard there.

Josie Duffy Rice: Right and then you know, you have this other thing which is like there is a very common use of conspiracy laws or accomplice or these kind of like crime statutes that punish people for stuff that they did not do. We see it all the time in gang policing, right? You live in the same public housing as your friend, you guys are maybe wearing the same color or you are like loosely defined as a group of friends and cops call you gangs and your friend does something and you are then responsible for it. It is criminalizing this freedom of association in a way that is extremely common, especially in New York. I mean it’s, it’s horrible. And the electronic monitoring only maximizes that because now if you live in a public housing complex, let’s say, and ten of you are being monitored electronically, now there’s an entire way of tracking communities, right? Of tracking groups of people in a way that did not exist before. And we are thinking of it as change. We’re thinking about it as an improvement. And I think that is a serious problem.

Adam: Yeah. Alexander mentioned that several scholars refer to it as e-gentrification where you, you’re headed to a world where entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found. Um, and it’s, uh, it’s a, it’s a realistic fear because the technology’s there. And then of course you have the, the corollary issue, which is always lost in these conversations, which is the amount of labor women are asked to do. It’s almost always women’s, it’s almost always black women who are asked to do unseen labor, unpaid labor where they’re basically taking things that normally a commissary or an infirmary or CO would do in a prison. And they’re basically saying, here, you do this for free.

Josie Duffy Rice: Right. Right. That’s interesting.

Adam: Yeah. It’s something, it’s something you see a lot with, um, because obviously it’s disproportionately African American men who can’t go out. They can’t produce, they can’t make money. So now they become dependent on unseen black women.

Josie Duffy Rice:  I don’t know if you’ve heard of the Essie Justice Group. It’s, um, this incredible organization in California. I mean one of, I think the most innovative and grassroots and this organization really gives me hope for the future. Essie Justice Group and it’s run by this woman, Gina Clayton, who is also just unbelievable. And Gina works with women with incarcerated loved ones and she talks a lot about the penalties that women pay in this mass incarceration system even when they’re not in it, right? And we think of them as sort of like corollaries or one degree removed from the pain and it is like they are also paying the price. You know, when you think about bail, who pays these people’s bail?

Adam: Right.

Josie Duffy Rice: You know, this is not a dual transactional process. It is involving all of these other parties, all of these other people, all of these other family members trying to raise the money and your partner and your mother and your daughter and your niece and your, you know, and it’s like unbelievably common to see women disproportionately burdened with the cost of this mass incarceration system.

Adam: Yeah. Above all it’s a way of just staffing out labor for, for governments that are short on money.

Josie Duffy Rice: Yeah. Yeah.

Adam: Um, so, um, let’s go back to district attorneys or prosecutors and even sheriffs, uh, the use of gun control rhetoric to provide liberal cover against bail reform issues. A Sheriff Dart here in Chicago where I record the show days after the Parkland shooting last February, really kind of jumped at the chance to talk about how there was a court order to not give bail, more than people could pay in Cook County in Chicago. Um, and Sheriff Dart was not meeting this legal requirement, uh, to the satisfaction of activists, uh, or even the judges. I think is probably objectively true. And he emphasized the gun violence issue. And this is obviously a huge issue in Chicago as justification for why he couldn’t let quote unquote “offenders” certain quote unquote “offenders” leave, right? They needed to have excessive bail. Um, can we talk about the temptation to kind of give, given the theme of the show, the kind of full woke reformist elements. Can we talk about the temptation to use gun control, which is obviously hugely popular among liberals, to justify the hyper criminalization of black communities and also to um, concern troll or skew bail reform efforts?

Josie Duffy Rice: Yeah. You know, I spend a lot of time thinking about gun control. I really don’t know.

Adam: Yeah. It’s not easy.

Josie Duffy Rice: Yeah it really isn’t easy because I, you know, I have a kid I like, like have a family. I understand and I am not a gun enthusiast. Like I don’t own any.

Adam: I didn’t peg you as a gun enthusiast.

Josie Duffy Rice: Yeah, so I don’t have any sort of like affection towards what this American Second Amendment valorization that we see left and right. Like it’s not anything personal to me. And yet I do think that we on the left treat this gun control thing like it’s so obvious like we should obviously be, there should obviously be less guns, there should, we should obviously be taking people’s guns from them or we should obviously make it harder to get this and that and the other and if you are caught with a gun, you should be, you know, sentenced. And not only have I yet to hear a workable solution, guns are out there, there are millions and millions of guns out there. I think it’s three for every person in America. Guns exist. So I’ve yet to hear a solution of how we’re going to solve that problem even if we stopped making them tomorrow. But then the other thing I think is we rely on the criminal justice system for solving any sort of social ill in this country, period.

Adam: Right. That’s the issue.

Josie Duffy Rice: That’s it. Like we literally just, that would be our answer. They say people who are mentally ill shouldn’t get a gun. And I’m like, what does that mean? Like I’m bipolar I shouldn’t get a gun? Are you going to establish whether or not I’m a sociopath? What if like I’ve been depressed?

Adam: And then they tried to do the terror watch list which five minutes before we all agreed was a racist, like holdover from the Bush administration and all of a sudden the Democrats are are sitting down in the Senate to make sure that, I mean that whole thing was wild and I, and you know why? Because there’s sort of these shocking things that sort of strike at our moral core and we get it. You want to sort of do something about it. The problem is, is that I think a lot of people are scared that the solution will invariably just the proverbial shit will roll down hill, that it’ll end up being poor black kids in South Chicago who have five, 10, 15 years tacked onto their sentences for having an assault weapon and it’s not going to, as we discussed earlier, it’s not, it’s not Cletus in West Virginia.

Josie Duffy Rice: Well, that’s what happens. I mean, that’s what we see.

Adam: Right.

Josie Duffy Rice:  I mean literally when we talk about people being put away for, I mean decades, for possessing a firearm when they have a felony on their record, that’s real. This is a real thing. Gun laws exist. There are tough gun laws in thousands of black communities in America, very tough gun laws where it is very difficult to get a gun. If you are caught with a gun that isn’t registered, you’re going to jail for a long time. If you were, illegal handgun possession, either because the gun itself isn’t registered or you’re on our list of people who aren’t supposed to have a weapon. That’s the population that’s more likely for this to even be discovered because they’re more likely to get pulled over. They’re more likely to be, you know, have cops in their neighborhoods. They’re more likely to get stop-and-frisked. We have gun laws in America and what we’ve seen is that it actually has not reduced gun violence in a lot of communities and it’s increased criminal justice system involvement and so I just am very wary of any solution to gun violence that relies on criminal justice sanctions because like we said earlier, this is a racist system. Like you said, it’s not going to be people in West Virginia. It’s not going to be my friend in Texas who has 300 guns or it’s not going to be white dudes, you know, living in rural America who, you know, by the way often also exhibit indicators that they should have their guns removed, like domestic violence is more common in some of these areas. And so what this fundamentally gets back to, and this is something I think you talk a lot  about Adam, just the inability for the left to really comprehend what we’re facing in terms of giving power to this government to punish us.

Adam: Yeah. Is that we can only view things, and not just the left but I think people in Americans in general are wired to view things, that the solution is to make things illegal. Um, I know some people have proposed alternatives which is similar to like how we went after tobacco companies, right? We didn’t go after smokers necessarily. We went after the tobacco makers that suing out of existence gun manufacturers or cold and criminally liable gun manufacturer executives as being a more elegant way of doing it, a less classist and less racist way of doing it. Like solutions like that seem interesting to me. Right? Because that way you’re not just criminalizing poor people kind of wantonly, so I think people are looking for alternatives. I think people who are not, again at all Second Amendment people or gun fetishist or even people who don’t think there should be any criminal sanction against gun, but it’s been an issue of going after manufacturers, distributors as opposed to a low level gun possession. Because in this, you know, the response is to always go after gun possession and I think that maybe people on the left could think creatively about how to do that to where it is, yeah, it isn’t just another Arrow in the quiver of prosecutors in these major cities because it really is the kind of wedge issue for big cities, which are disproportionately people of color, disproportionately liberal-\


Josie Duffy Rice: Disproportionately poor. Right.

Adam: But this is the way that the prosecutors have always kind of outflanked that almost to the right and it’s, it’s um, uh, and I know that, you know, you look at polls amongst African Americans in how they support gun control. Gun control’s generally popular, although it’s not any more popular than amongst kind of middle class whites in general.

Josie Duffy Rice: Right.

Adam: It’s a tough one. It’s a hard one to sort of to untie and I don’t really. Yeah. Like I said, I don’t know what the answer is, but I definitely think a sort of knee jerk more punitive gun laws can be tempting and not necessarily that valuable.

Josie Duffy Rice: Right. I think you’re right, that probably the answer to a lot of what we see as going after manufacturers, but like on the left we have these two things. One, Trump’s government is the worst thing to ever happen to us essentially, right? And on the other hand, we need more gun control. And I’m like, I actually am not super comfortable with letting the people in charge right now decide who can have weapons and who can’t. It’s just not. It’s not, to me, it doesn’t seem like a good plan. Now I don’t, that doesn’t mean that I don’t take it very seriously, that there are people who are losing their loved ones daily to gun violence, that should be avoidable. And that the fact that people are nervous going to concerts and bars and schools is a national tragedy. I think that’s absolutely true. And that making light of that or, you know, saying that there’s no solution to that is I think wrong. But I do think that we don’t spend a lot of time on the left actually thinking through some of this stuff. And I’m not going to be the one pushing, you know, Donald Trump’s senate to pass gun control laws. It’s just not going to be-

Adam: Yeah, it’s an issue of like, of, of we have this pathological instinct in this country, and this is one of the things we try to sort of push back on it at The Appeal of just criminalizing things. That’s our first reaction to everything.

Josie Duffy Rice: Yeah. Yep.

Adam: Just to sort of say, ‘what can the police do?’ And I really think that like, even if you think it’s worth it, that we have gun control laws, even if you think the kind of downward negative effects on poor communities is worth it, like at least stop and think about it. Think about other ways you can do it. That would sort of be my, that would be my prescriptive opinion.

Josie Duffy Rice: Right. Did you see Brian Kemp had all these ads with him holding guns, him with his guns, him pointing a gun in his, his daughter’s boyfriend, like really just, you know, pandering. And then he tweeted on election day, ‘armed Black Panthers are voting for Stacey Abrams’ and it was a picture of these three black guys with their guns holding a Stacey Abrams sign. I mean, what that literally says is ‘I want guns and I don’t think black people should have guns.’ I mean he basically said it.

Adam: The NRA has always been a, has always just been an overtly white supremacist organization. That’s why we started. That’s why it exists.

Josie Duffy Rice: Right.

Adam:  It’s guns for white people, guns for no one else. Anyway. Yeah. I don’t know. I think there’s some interesting things to chew on it. I think that where I see prosecutors really start to push back against bail reform efforts in, and reform efforts in general is on the gun control issue. And so I think it’s something to sort of keep in mind to kind of be aware of for people listening. All right, well I think this was a very good episode. It was very thorough. I really, this is exactly what I wanted to talk about and I think we covered the probably the four main issues and, and uh, we want people who again, listen and follow this to kind of keep those things in mind when moving forward because there’s a lot of pretty packaging for a lot of things that are maybe not so great. So.

Josie Duffy Rice: Yeah.

Adam: And of course check out Josie’s podcast, Justice in America, a lot of deep dives and really interesting stuff. They have great guests. So if you haven’t checked out Justice in America, please do. Josie Duffy Rice, thank you so much for coming on.

Josie Duffy Rice: Yeah. .Thank you so much Adam. I think that the work you’re doing is really important.

Adam: Thank you to our guest, Josie Duffy Rice of The Appeal and remember you can check out her podcast Justice in America with Clint Smith. This has been The Appeal. Remember, you can follow us on Twitter @TheAppealPod, on Facebook at The Appeal’s main Facebook page and as always you can subscribe to us on iTunes. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn and executive producer is Sarah Leonard. I’m your host Adam Johnson. Thank you so much for joining us. We’ll see you next week.

A Suit on Behalf of 6,000 Women Decries Law Enforcement’s Handling of Sexual Assault Cases

In Travis County, detectives refused training that would have helped them interview victims of trauma.

Photo illustration by Anagraph. Photo by Travis County Sheriff/Twitter

A Suit on Behalf of 6,000 Women Decries Law Enforcement’s Handling of Sexual Assault Cases

In Travis County, detectives refused training that would have helped them interview victims of trauma.

In 2008, Amy Smith* was violently raped when she was a student at the University of Texas. The assault occurred after Smith spent a night out in downtown Austin. A man pulled her into his car, took her to a hotel and raped her. Afterward, as he drove Smith from the hotel, she escaped and found her way to a nearby hospital, where she met with police.

Smith described the rapist as a heavyset Black man with dreadlocks who drove a white car. But soon afterward, police identified a Hispanic man who owned a white vehicle as her assailant. Smith insisted that he wasn’t the culprit, but police tested his DNA anyway and questioned the veracity of her account by asking whether she slept with other men that night.

That was not the only misstep that the Austin police and Travis County district attorney’s office made in their investigation of Smith’s sexual assault. When police identified an accurate DNA match—a convicted thief, Lloyd Tyrone Robinson, who fit Smith’s description—prosecutors waited four years before moving forward with the case.

Then, a year after Robinson was indicted, they dropped the charges in order to retest the DNA. Later, a DNA match was confirmed, but the district attorney’s office dropped the charges because Robinson faced similar charges in another county. In the end, no one was brought to justice in Smith’s rape.

Smith is the lead plaintiff in a federal civil rights lawsuit filed in June against the city of Austin and its police and prosecutors on behalf of roughly 6,000 women who reported their assaults in Travis County but whose cases were marred by law enforcement failures that include failing to submit sexual assault kits and disproportionately dismissing cases or refusing to prosecute sexual assault cases when the victim is female.

Another plaintiff in the lawsuit, an Austin woman who was sexually assaulted in 2010 as she slept in her residence, called the police but they entered the apartment “as though there was an active shooter inside” and then questioned her about “what she had been wearing, and why she lived in a bad neighborhood.”

The lawsuit claims that the mishandling of sexual assault cases such as Smith’s causes victims to endure additional trauma. “These repeated insults amounted to a final conclusion for Ms. Smith,” the complaint states, “justice is unavailable to her … she has endured years of trauma at the hands of the defendants for nothing.”

Sexual assault victims in Travis County and nationally share Smith’s experience in the criminal justice system. Each year, over 1,000 women in the county report that they are the victims of violent sexual crime, according to the complaint, but fewer than 10 of such cases are prosecuted each year. In Memphis, Tennessee, dozens of women are plaintiffs in a lawsuit against the city and its police department that claims police detectives routinely closed sexual assault cases without sending rape kits to the state lab for serology or DNA testing.

In New Orleans, domestic violence and sexual assault victims sued the district attorney’s office in federal court for its use of fraudulent subpoenas to induce cooperation against their assailants. In mid-October, four sexual assault victims in Utah filed a joint petition to the state’s supreme court “challenging the decision by local prosecutors not to file charges in their cases.”

Clearance rates for rape, meanwhile, are dismal at many police departments. In 2016, Cleveland police cleared about 8 percent of rape cases. Widespread injustice for sexual assault victims is reflected in a 2013 study from the Justice Department’s Bureau of Justice Statistics that found that 15 percent of victims who did not report sexual violence crimes from 2005-15 said they believed the police could not or would not do anything to help.

In early 2018, Smith turned to Dallas-based attorney Jennifer Ecklund for help. A former social worker, Ecklund researched sexual assault cases in Travis County over the last decade. While Ecklund did her research, several other sexual assault survivors contacted her to share similar stories.

“At that point, we decided a class action would probably be the most appropriate mechanism because what we were seeing seemed to be a pattern of behavior across both the police department and the DA’s office that was impacting all women,” Ecklund said. (Indeed, in August, Ecklund filed an amended class-action complaint with new plaintiffs, including a woman who said she was abducted by traffickers and raped but was met with eyerolls and comments such as “You seem a little drunk” when she went to the Austin police.)

Ecklund discovered that police routinely failed to even submit DNA for testing. “There was a huge backlog of cases that were never, ever getting tested for a decade at a time sometimes,” she said.

She also learned that police detectives refused training that would have helped them interview victims of trauma. As a result, the police engaged in “victim blaming,” such as asking women questions about how much they had to drink, what they were wearing, and why they might have been in a certain neighborhood during an assault.

The Travis County sheriff’s office and the district attorney’s office declined to comment on pending litigation. They have filed motions to dismiss the lawsuit, arguing in part that the claims made by the plaintiffs did not constitute civil rights violations. In a statement, a spokesperson for the city of Austin told The Appeal that it believed that the conduct of its officers was appropriate.

“The integrity of the criminal justice system is of utmost importance to the city and our law enforcement partners,” the spokesperson said. “We are aware of the issues raised in this lawsuit but are confident that all agencies involved have acted appropriately.”

On Oct. 22, Ecklund filed a response to the motions to dismiss by arguing in part that district attorneys do “not have prosecutorial immunity for any other actions, including investigative acts or administrative acts” alleged in the complaint and that the plaintiffs have a valid civil rights complaint because “the City and County have committed (and continue to commit) constitutional violations by implementing, promoting, or maintaining policies, practices, and/or customs that intentionally discriminate against female victims of sexual assault.”

Indeed, the plaintiffs alleged in their original complaint that the police and district attorney dedicate more resources to other violent crimes than to female sexual assault victims and disproportionately dismiss cases or refuse to prosecute sexual assault cases when the victims are female.

“The one case that was tried in the year preceding our lawsuit, it was a male victim,” Ecklund said. “In the years prior to that, the four cases that were tried in that period of time, two of them were male victims.”

In the last year, victims of sexual abuse across the country have shared their stories publicly  as part of movements such as #MeToo and have started a national dialogue about the importance of believing women as well as the absence of justice for women after they are sexually assaulted.

When so few sexual assaults are prosecuted, “it raises a real question about what could be to blame for that,” Ecklund said.

The state’s inability to hold anyone accountable for harming Smith has come at a steep personal cost: In the decade since her rape, she has endured “serious effects of multiple traumas” which have prevented her “from having any kind of a normal life,” according to the complaint. Because she suffers from extreme anxiety, she has had trouble working outside her home. Her interpersonal relationships also suffered.

Perhaps worse, the complaint notes, during the years Smith sought justice in her case “nothing was stopping him [her assailant] from assaulting others like he had Ms. Smith.”

Indeed, since Smith was raped in 2008, her alleged rapist was accused of committing at least two sexual assaults in Houston.

*Smith’s name was changed in the complaint to protect her privacy.

States Are Enacting Their Own Bans Against ‘Sanctuary City’ Policies

In response, a new ‘Freedom Cities’ movement is rising to defend immigrants’ rights.

Photo illustration by Anagraph. Photo by John Moore/Getty Images

States Are Enacting Their Own Bans Against ‘Sanctuary City’ Policies

In response, a new ‘Freedom Cities’ movement is rising to defend immigrants’ rights.

Jose “Fito” Salinas is the mayor of La Joya, a tiny Texas city of around 4,000 people less than a mile from the Mexico border. Salinas is 80 years old but still barrel chested, with a good head of hair and a big, silver mustache.

“An old warrior,” he calls himself, adding that “I fear no one.” Still, he worries about a state law called Senate Bill 4.

In 2017, the Republican-dominated Texas legislature passed SB4, which allows local law enforcement to inquire about a person’s immigration status. Under the law, police officers can’t be forbidden from asking people whether they are in the U.S. illegally, nor can they be ordered not to share the information with the Border Patrol or ICE.  

Since Donald Trump became president, similar anti-sanctuary laws have been enacted in other states, including Iowa, Mississippi and Tennessee.

Still, most states do not have such laws, and many states and municipalities forbid their law enforcement from inquiring about immigration status or sharing such information with ICE.

But in November 2017, the Department of Justice sent letters to municipalities and states, threatening to rescind their funding for criminal justice programs unless they scrapped their sanctuary policies. Ironically, the Trump DOJ cited the Obama DOJ’s argument that under Section 1373 Title 8 of the U.S. Code—known simply as 1373 —local law enforcement cannot be forbidden from sharing information about a person’s immigration status with immigration authorities.

By April, approximately three dozen communities had been warned about their sanctuary policies, including New York, Chicago, Philadelphia, Los Angeles, San Francisco, and New Orleans, as well as counties, smaller cities, and states, including California and Vermont.

Several recipients of the DOJ’s 1373 letters ended up in court. Philadelphia and Chicago sued the agency, and California defended itself after being sued. All argued that 1373 violates the 10th  Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Indeed, several judges recognized that the Constitution says nothing about the states sharing an individual’s immigration status with the feds. So far, two federal courts have declared 1373 unconstitutional. As a result, the law can no longer be enforced in Philadelphia and Chicago. In addition, a court in California ruled that the constitutionality of 1373 is “highly suspect.”

Significant challenges to 1373 also have been mounted in hundreds of cities nationwide. Evanston, Illinois, and co-plaintiff the United States Conference of Mayors, whose membership is open to mayors in the 1,408 cities with at least 30,000 residents, sued the DOJ. Evanston and the mayors group won a preliminary injunction barring 1373’s enforcement. If the injunction is upheld on appeal, 1373 will no longer apply in places as big as Brooklyn and as small as Wenatchee, Washington (population 33,962).

But as of yet, no Conference of Mayors cities have enacted new “sanctuary” ordinances, said Lena Graber, an attorney with the Immigration Legal Resource Center, a San Francisco-based organization that disseminates information about immigration laws and encourages challenges to unjust policies. Graber said that Section 1373 is difficult for many people to understand and city councils often reflexively demur and say “we can’t do this because of 1373.”

Cities have to be “gutsy” to confront the federal law and take on the DOJ, Graber said.  

Such gutsiness has come from Texas cities that cannot challenge 1373 because of the anti-sanctuary law SB4. After SB4’s passage, Austin City Council Member Greg Casar, who is Latinx, teamed up with the local community groups Grassroots Leadership, United We Dream Austin, and the Workers Defense Project to craft ordinances to protect immigrants, and people of color in general, against detentions that can lead not only to deportation but jail.

In June, Austin declared itself a “Freedom City,” after council members passed a “cite-and-release resolution” that requires police to cease arresting people for minor crimes such as possession of small quantities of marijuana and instead give them citations.

Austin also passed a resolution stating that if officers stop drivers for traffic violations and ask about immigration status, the people also must be told they have the right not to answer.

Casar shared the Freedom Cities idea with other local officials in Texas, including

Philip Kingston, who serves on the City Council in Dallas. Kingston then spearheaded the passage of a “cite-and-release” policy similar to the one enacted in Austin. It covers a handful of misdemeanors, including low-level marijuana possession. In a few weeks, Kingston told The Appeal, he will ask the Dallas City Council’s Public Safety and Criminal Justice Committee to require that police tell detainees that they do not need to answer questions about their immigration statuses. After that, he will go to the full council. In San Antonio and El Paso, city councils are in the early stages of crafting similar policies.

Freedom Cities, however, have yet to take hold in smaller communities such as La Joya. Before SB4’s passage, Mayor Salinas lambasted Border Patrol agents who entered the town’s ballpark during a 2016 baseball game and arrested a team member’s wife, who was undocumented. He also had his police chief fire an officer after a woman complained that she was asked about her immigration status after she ran a stop sign.

But until The Appeal spoke with Salinas, he had never heard of Freedom Cities. He mulled the concept briefly but then returned to his anxieties about SB4. He wondered whether he could get fined or arrested if he objected to one of his police officers asking a driver an immigration question, or calling the Border Patrol.

It was not a happy thought for the mayor. It was about cities but not about freedom.  

How Tuesday’s Sheriff Elections Dealt a Blow to ICE

Local allies of the Trump administration fought challengers over immigration policy.

President Trump met with sheriffs in September.
Mark Wilson / Getty Images

How Tuesday’s Sheriff Elections Dealt a Blow to ICE

Local allies of the Trump administration fought challengers over immigration policy.

Voters around the country put ICE on notice on Tuesday, restricting the federal agency’s law enforcement reach in several states and counties.

“People showed up yesterday because they want their local communities to revolve [around] their values, even if what happens in Washington does not for the foreseeable future,” Elizabeth Alex, the senior director of community organizing at CASA, an immigration advocacy organization, told The Appeal about elections she was tracking in Maryland.

ICE relies on the cooperation and assistance of local law enforcement officials, many of which enter into formal partnerships with the agency. One of the strongest relationships that a jurisdiction can have with ICE is a 287(g) deal, which deputizes local officers to directly investigate the status of the people they detain. As of today, ICE reports that 78 law enforcement agencies are part of 287(g) agreements. That’s a small number  relative to the nation’s thousands of counties—and it is likely to drop once officials elected on Tuesday take office.

In at least three populous counties, voters elected candidates who pledged to withdraw from the 287(g) program.

In at least three populous counties, voters elected candidates who pledged to withdraw from the 287(g) program.

Two of those elections were in North Carolina, where Garry McFadden and Gerald Baker were elected sheriff of Mecklenburg County, (Charlotte) and Wake County, (Raleigh), respectively. In Anne Arundel Co., Maryland (Annapolis), where Republican County Executive Steve Schuh chose to join the program in 2016, Schuh lost to Steuart Pittman, who campaigned on ending both 287(g) and a separate agreement that allows ICE to detain people at the county jail.

Baker’s victory over longtime Republican Sheriff Donnie Harrison may have been the night’s biggest upset. A fixture of the local political establishment since 2002, Harrison had consistently defended practices that immigrant advocates worry will lead to increased deportations. “I know that we are all humans who deserve wonderful lives and I want to support that,” Baker told La Conexión USA in explaining his opposition to Harrison’s participation in 287(g).

I’m a little in shock.Felicia Arriaga, professor of sociology at Appalachian State University and a volunteer at El Pueblo

I’m a little in shock,” Felicia Arriaga, a professor of sociology at Appalachian State University and a volunteer at El Pueblo, an advocacy group for North Carolina’s Latinx community, told The Appeal on Wednesday, adding that the campaign was hardly visible as of early October. But events organized by community organizers and a voter education campaign organized by the ACLU increased the recognition of the election’s stakes for immigration policy. An ACLU official told The Appeal that the organization spent $140,000 in the county.

“Putting people’s stories in the media in English and in Spanish was very helpful for people to feel that they had a say in the process,” Arriaga said.

Fairness Maryland, an advocacy group that the ACLU advises, oversaw mailers and newspaper ads to make the issue of immigration more visible to voters in Frederick County, the home of Sheriff Chuck Jenkins, an ally of the Trump administration. While Jenkins won re-election by 6 percentage points on Tuesdaya margin that was far smaller than the 26 percentage points by which he defeated the same opponent four years ago—immigration policy proved to be a winning issue elsewhere.

Candidates successfully challenged incumbents on their immigration stances even in counties that cooperate with ICE through more discreet mechanisms than 287(g) agreements.

Rich Stanek, the longtime Republican sheriff of Hennepin County, Minnesota, (Minneapolis), appears to have lost his re-election bid to challenger David Hutchinson. As of this writing, Hutchinson led Stanek by 0.44 percent of the vote with all precincts reporting, a margin that was outside what that would trigger a publicly-funded re-count, though Stanek had not conceded.

Sheriff Rich Stanek of Minneapolis drew protest for his treatment of immigrants. He appears to have lost his reelection bid.

Stanek, who was expected to become the next president of the National Sheriff’s Association, was not party to a 287(g) agreement, but had drawn local protests for sharing the birthplaces and release dates of the people whom he detained with ICE, and for giving ICE access to people he detained without ensuring that those detained know their legal rights. Hutchinson campaigned on shifting the Sheriff Department’s immigration policies. “You will notice the difference between…a sheriff who stands with ICE and a sheriff who stands with immigrants,” he said at a party convention in May.

Paul Van Blarcum, the sheriff of Ulster County, New York who is known for aggressive law enforcement practices, lost to Democrat Juan Figueroa. The challenger distributed a flyer during the campaign that assailed Van Blarcum’s “hard-line policy of reporting immigrants under custody to ICE.” “Immigrants should feel safe to seek the protection of the law,” the flyer stated.

In Orange County, California, however, voters elected a new sheriff—Don Barnes—who opposes the state’s sanctuary law and  helped put in place a new policy to circumvent its restrictions on cooperation between local authorities and ICE. In neighboring Los Angeles County, the sheriff’s election remained close as of Wednesday morning. Alex Villanueva, who was endorsed by the immigrants’ advocacy group CHIRLA Action Fund for his promise to restrict the access to county jails that ICE has enjoyed under Sheriff Jim McDonnell, clung to a narrow lead.

Oregon voters upheld their state’s sanctuary law, which restricts cooperation over immigration between local authorities and ICE, decisively rejecting an initiative to repeal it. The initiative was supported by a group of sheriffs from rural counties. They endorsed it by tying illegal immigration to criminality even though studies contradict such a connection.

I would like us to go beyond to say not only do we not assist ICE, but we're putting up a bit of a firewall.Elizabeth Alex, senior director of community organizing at CASA, an immigration advocacy organization

Immigrants rights groups warn that their victories will mean nothing absent continued advocacy around the issue. “The work starts after he’s elected,” Arriaga said of Baker’s victory in Wake County. She added that communities should “pressure and make sure that he’s actually fulfilling his promises.”

“A Democrat in a moderate county stood up and said we don’t stand with an administration that separates families, and I think that’s super-significant” Alex said of Pittman’s win in Anne Arundel County. “I would like us to go beyond to say not only do we not assist ICE, but we’re putting up a bit of a firewall to ensure that our local resources are not being used.”

The Appeal Podcast: Criminalizing Trans Lives

With Appeal writer Aviva Stahl and trans rights activist Ceyenne Doroshow.

Photo illustration by Anagraph/Photo by Tina Potocki/Getty

The Appeal Podcast: Criminalizing Trans Lives

With Appeal writer Aviva Stahl and trans rights activist Ceyenne Doroshow.

Perhaps no group is more vulnerable to violence in our society than trans people, especially Black and Latino trans people. Often treated with scorn by police and judges, trans people are frequently criminalized for what would commonly be viewed as self-defense or a minor infraction. Our guests today, Appeal writer Aviva Stahl and trans activist Ceyenne Doroshow, talk about the criminalization of trans people and efforts to draw attention to a population told time and again that their lives are expendable. 

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, you can like the main Appeal magazine Facebook page on Facebook and you can always subscribe to us on iTunes. The story of the criminal legal system is one of how society mistreats and treats its most vulnerable populations. Using any key metric, almost no group is more vulnerable than trans people, especially those who are black and Latino. Offered no protection from the state and met with scorn and mockery by police and judges, trans people are frequently criminalized for what would otherwise be viewed as self defense or minor infractions. Today we’re going to be joined by two guests, Appeal writer of Aviva Stahl,

[Begin Clip]

Aviva Stahl: Trans people face discrimination in so many different parts of their lives. According to the National Center for Transgender Equality, 90 percent of trans people who are surveyed reported experiencing harassment, mistreatment or discrimination on the job, and trans people also face discrimination in education. So that’s one way that trans people are pushed out of the job sector, pushed out of education into sex work, into an underground economy. Also, I think trans people like a lot of other communities, like people of color, are assumed to be criminal. Trans people are arrested just for looking suspicious on the street.

[End Clip]

Adam: And trans activist Ceyenne Doroshow.

[Begin Clip]

Ceyenne Doroshow: I’m bringing awareness and not only bringing awareness, I’m changing the path through education and building community. If we don’t organize and do something about how the police deal with us, about policy work surrounded around us, when the government is saying we don’t exist we are sure to die.

[End Clip]

Adam: Hi Aviva. Thank you so much for coming on The Appeal.

Aviva Stahl: Oh, thank you so much for having me. I’m excited to be here.

Adam: So, you write a lot about trans issues as they relate to both policing and prisons, um, and some of the consistent problems that we, that we hear about. So obviously when you deal in the prisons and police sector, if you will, or space, you’re dealing with the kind of most forgotten people in society, disproportionately African American, poor, the people who are kind of seen as expendable. And even within that system, there’s a subset of people, trans people, who are even more traditionally and statistically speaking, more vulnerable, and you do a good job throughout the last couple of years detailing some of these cases, uh, the latest one you have is on a trans man by the name of Stevie Sullivan, which is consistent with some other cases we’ll get into, about prosecutors coming down harsh on trans people for defending themselves or things that would otherwise be minor skirmishes being escalated to major prison time. Can you talk about this case in particular and what the kind of broader, uh, prosecutorial trends are with regard to trans people?

Aviva Stahl: Sure. So, um, first about this case, last October, Stevie Sullivan and Asher Torres, two transgender men, went to a party at the Wythe Hotel in Williamsburg. And as they were leaving, they got into a fight with a hotel employee. So Torres went downstairs and called the police to report the assault and to say he believed that it was motivated by anti-trans bias. But when the police arrived, it was the two trans men who are arrested instead of the hotel employee and the prosecutor’s office refused to drop the charges even though the video evidence from the hotel indicated that it was the hotel employee who initiated the attack. I think this is really indicative of the ways that when trans people do defend themselves, the police oftentimes don’t believe them or criminalize them for it and prosecutors further retraumatize the victims and instead of their assaulter being prosecuted, they end up behind bars or being charged for the offense.

Adam: Yeah. You note that while five percent of US adults report spending some time in prison, a shocking 21 percent of trans women say that they’ve been inside prison. There are systemic reasons why that is. There’s a general stigma. To what extent do we have data, anecdotal or otherwise, about the degree to which trans lives are, are criminalized in general, and then the kind of broader sociological trends in terms of relatively high rates, according to Human Rights Campaign and Human Rights Watch, relatively high rates of murder, a relatively high rates of suicide that they’re filtered through the system as kind of, they’d rather be sent elsewhere, they’re put off, they’re like, we talked about the most vulnerable of the vulnerable?

Aviva Stahl: Sure. So one important thing to know is that violence against trans people, or at least reported violence against trans people, is actually increasing. So last year there was the highest number of trans people that were murdered at 29, I believe. Um, and I think for example, the Stevie Sullivan and Asher Torres case indicates that trans people face discrimination in so many different parts of their lives. According to the National Center for Transgender Equality, um, 90 percent of trans people who were surveyed reported experiencing harassment, mistreatment or discrimination on the job and trans people also face discrimination in education. So that’s one way that trans people are pushed out of the job sector, pushed out of education and into sex work, into underground economy, which is another reason they ended up behind bars at higher rates. Also, I think trans people, like a lot of other communities, like people of color, are assumed to be criminal. Trans people are arrested for having condoms, um, just for looking suspicious on the street.

Adam: Yeah. You talk about the way that the criminal legal system disproportionately affects trans people. One of the more heightened iterations of that is laws against sex workers, laws against quote unquote “sex trafficking” specifically. And you write about one trans woman in particular named Sonja, who is negatively affected by FOSTA and SESTA. For those who don’t know, those are, those are the laws that were passed by Congress back in April. The Stop Enabling Sex Traffickers Act and the, uh, Allow States and Victims to Fight Online Sex Trafficking Act. Congress has pretty much good at one thing and that’s naming things, um, now those bills have been, have been widely condemned by an increasing number of not just sex worker advocates, but sex trafficking advocates who think that by blurring the line between sex trafficking and sex work entirely in this sort of puritanical broad brush that you drive things underground. Can you talk about the way in which these laws have affected trans sex workers in particular, and again, adding to the pile on in terms of the most vulnerable of the most vulnerable of the most vulnerable?

Aviva Stahl: Sure. So this is an important part that I actually left out of a story before, which is Stevie Sullivan, one of the trans guys who was attacked at the hotel, he actually worked at the Wythe and the person who attacked him had been his supervisor and Stevie had reported to HR that he felt that his supervisor was being really aggressive towards him and staring at him for long periods of time, that he was experiencing transphobic bias at work. Um, and so I think that’s what I was trying to say before about how trans people, how the bias they experience at work pushes them out of the job sector and that’s one reason that a lot of trans people end up getting pushed into the underground economy, including sex work. So that’s one reason that FOSTA-SESTA has such a huge impact on the trans community is because discrimination, institutional systemic discrimination means that there are so many people in trans work. Um, and also trans people are in unique risk of violence, um, if they’re working on the street being raped or murdered, trans people have less negotiating power with clients. And so basically FOSTA and SESTA have pushed trans people off the internet and into the streets, which has made trans people especially vulnerable to assault and also to arrest and conviction.

Adam: Right. And so you have, you have this idea of any kind of assault or defense as magnified. You’ve also written previously about the case of Merci Chrisette, who was a trans woman who was, um, who was involved in an altercation. You can get into the details. The community kind of rallied around her as a, as a trans woman, and this was a case of more kind of prosecutorial discretion, sort of gone, gone amok. Can we talk about the degree to which in this case prosecutors overreached and tried to, I mean we’re, we’re talking about five, ten years in prison, can we talk about this case and what it means for the, for this type of a singling out of trans persons?

Aviva Stahl: Sure. So Merci Chrisette was on the subway in December 2015 and there was a video captured of her lunging at people on the subway with, um, what was later found to be a hair separator. I think some of her friends or she had said that she was being harassed. The alleged victims denied that, but regardless, nobody was seriously harmed. Nobody had to go to the hospital or anything. And she was charged with assault on a number of other offenses and was facing seven years behind bars. Eventually after a sustained public campaign the prosecutor agreed to allow her to plead into the Brooklyn Mental Health Court, which basically allows people with serious mental health issues to avoid prison time if they agree to a treatment plan. But it took a long time to get the prosecutor to agree to plead her into the system, to plead her into the court. Um, and I think it really indicates what we’ve been talking about in this larger scale of the way trans people are criminalized for defending themselves.

Adam: Right.

Aviva Stahl: I think something also really important to know is that trans people on the inside, especially trans women, face really high rates of assault and solitary and a host of other forms of violence. So for Chrisette to be forced to do jail time, really does an additional violence to her that I think leaves everyone in a worse place.

Adam: So the issue of FOSTA and sex workers, you quote Sonja, one of the sex workers you spoke to saying quote, “The people who have the privilege of stepping away from doing sex work are doing that, and the people who have no choice are banding together and figuring out new strategies, even financially supporting each other.” From your reporting, can we talk about the ways in which not just sex workers in general, but also specifically trans sex workers are adapting to these new laws and to what extent our local police forces and even federal law enforcement, using these laws to kind of further criminalize their, their livelihoods and existence?

Aviva Stahl: That’s a really good question. I think so far it seems when I did that reporting that a lot of trans people are going back to clients who’ve assaulted them, who’ve harmed them, who they don’t feel safe around or working on the street where they don’t necessarily know whose car that going to end up in and whether they’re going to be safe. So the way people have been coping is by putting themselves in danger, uh, and in terms of what’s been happening in New York or across the country, the kind of anecdotal accounts I got, not data, but just anecdotes from people I spoke to said that there were more cops on the street in New York City patrolling the areas where sex workers work on the street, which indicates to me that the police know that there are more people working on the street and have showed up to arrest them. But again, that’s not data driven. That’s just anecdotal.

Adam: Yeah. And then there’s also anecdotal evidence from people you’ve spoken to and one of the reasons of course it’s hard to get data on this is so much of this is, is underground and sort of under, you know, sort of non formal economy. And so numbers are just generally hard to come by. Um, this is true for, I think a lot of populations that don’t, you know, there isn’t, there isn’t like a huge trans lobby. There isn’t like Big Trans, right? There’s no sort of way of knowing, tracking a lot of these things, so there’s, there’s some epistemological issues with finding out the details, but when you quote one trans worker talking about the, trans sex worker talking about why the disproportionate rates of trans people in sex work, and one of the reasons is, is discrimination on the job at their kind of quote unquote “normal” work. One said that “I’ve been discriminated against in the workplace, at four different times, for four completely different companies.” This was the 25 year old trans person you spoke to in Las Vegas. Um, they went on to say that, um, that they get sexually harassed, dead-named, which is where one sort of pejoratively uses a trans person’s prior name, getting compared to Caitlyn Jenner and that they kind of go to sex work because they have nowhere else to go. In your reporting over the years, have you found this to be the case that this is kind of, that sex work is obviously not ideal for a lot of these people, but it’s pretty much the only place they can go to make a living?

Aviva Stahl: I mean, I think it depends on a lot of factors of trans people’s backgrounds, where they come from, but I think for a lot of trans people, sex work is the least worst option, or at least it was before FOSTA and SESTA was passed because it meant they had some agency over their work conditions, um, and a chance to make, in some cases, substantial amounts of money that they wouldn’t be able to make in the legal economy. And I think, you know, sort of what’s happening with FOSTA and SESTA shows us the ways that discrimination on the job force, discrimination in education is related to, you know, where people work and why they’re criminalized and why so many trans people end up behind bars and the trauma they experience there that we have to see the linkages between all of these different systems, um, in order to address what’s that actually happening.

Adam: I know there are groups like Breakout in New Orleans who do a really good job documenting a lot of this stuff. They were sort of on talking about the disproportionate murder of trans people before it became more mainstream within the last year or so with more mainstream human rights groups documenting it. Can you talk about various groups that you’ve seen or maybe from whether it’s Las Vegas or LA or New Orleans, that you’ve seen that are trying to provide a support network and a community for trans people who are both inside, both outside and also in the sex worker space?

Aviva Stahl: Definitely. I mean in the US there are a lot of different groups. Black & Pink is a group that, among other things, links people inside and outside of prison to have pen pal relationships to try to give incarcerated LGBT people support and friendship. The Sylvia Rivera Law Project in New York provides a lot of support to currently and formerly incarcerated trans people and Fight to Live, which is a sort of activist collective in New York City, did a lot of support around the Merci Chrisette case, um, and also has done some fundraising for trans people to get bailed out or to have support when they are released from prison. One thing that Fight to Live and some other groups have been looking at is specifically the question of the Brooklyn DA’s office. We’ve seen with the Merci Chrisette case and the Stevie Sullivan and Asher Torres case that it seems at least that there’s a pattern or an emerging pattern of the Brooklyn DA prosecuting trans people for defending themselves or, you know, just overreaching. That’s despite the fact that the Brooklyn DA’s office has a promise to make his office a safe space for LGBTQ people to report when they’re victims of violence. You know, he’s claimed that he has done training, cultural competency for prosecutors. But I wonder if that’s the case, why these cases are turning the way they are?

Adam: Right. Correct me if I’m wrong, but trans people, in terms of like police abuse or disproportionately people of color? That they’re sort of, um, high on the NYPD hit list for various reasons.

Aviva Stahl: Oh, for sure. I mean trans people of color, black trans people are incarcerated at rates that far surpass like white trans people, for example.

Adam: Do you want to update us as to the latest of the Sullivan case?

Aviva Stahl: Yeah, sure. So in October, Stevie, Stevie Sullivan and Asher Torres took an AOB, an adjournment in contemplation of dismissal. Uh, which basically means that if they don’t have further encounters with law enforcement or in the criminal justice system, that the case will be dismissed. I think it’s cases like these, um, the outcome is often preferable for the defendants because it means they don’t have a criminal record even if the evidence doesn’t support the initial crime.

Adam: So is that, is that sorry, Is that good news or bad news? I couldn’t quite tell.

Aviva Stahl: Right. I think it’s, um, it’s good news and bad news. Theoretically.

Adam: Okay. Alright.

Aviva Stahl: I guess, I mean, speaking as a reporter, it seemed to me that there wasn’t evidence to support their conviction. I watched the video, I watched the surveillance video and there is no indication at all that Sullivan and Torres initiated the attack. I mean, Sullivan’s back is turned to the hotel employee when he’s assaulted. Uh, so to me it seems that there’s very little evidence that they are guilty of the alleged crimes. That said, um, we’ve seen what happens to trans people when they do try to defend themselves in court for alleged assaults. Um, and I think for them, maybe you taking the AOB was the safest option.

Adam: Alright, that was very informative. Thank you so much for coming on.

Aviva Stahl: Oh, thank you so much for having me on.


Adam: Next up I’ll be speaking with trans activist Ceyenne Doroshow. She’s was the focus of an Appeal article called NYC TRANSGENDER ACTIVIST SAYS SHE WAS CRIMINALIZED FOR DEFENDING HERSELF AGAINST ABUSER. Stay tuned for Ceyenne.


Adam: Thank you so much for coming on the show.

Ceyenne Doroshow: Sure.

Adam: So, um, we had talked earlier in the show about criminalization of trans people, specifically on the inability of the state to defend or protect them and to criminalize what is self defense behavior. Now you have one case in particular, Emma Whitford wrote about it for The Appeal, about your case in particular about an assault that you had suffered and how the New York City, how the Queens Criminal Court and NYPD handled your case. Can you set the table by giving us a general background of your case, if you’re comfortable doing that, and what you think it says about the kind of broader way in which the criminal legal system treats trans people?

Ceyenne Doroshow: Yes. Um, so in December last year, we’re coming up on it again, in December last year, December 17th, I hosted an event, the Day to End Violence Against Sex Workers. On December 18th, I went to a film premiere about sort of the same thing, violence against trans women. That night, I came home early morning about 3:00 AM and was physically beaten within every inch of my life. I wish I could show you the cake pan, because I won’t throw it away, but I had a giant steel cake pan, a butcher knife went through that cake pan, a young man actually saved my life by putting that cake pan before the knife. Same young man that defended me also broke a chair over my abusers back. That was the only way to stop him. At some point of this attack, I was knocked out. Unconscious. I had glass, crystal, antique crystal within every inch of my body, in my scalp, in my head, under my arms, my thighs, my back had little shards of glass. Um, I was beating really, really bad. Um, my abuser, after he got hit over the back, ran out of my house. Then the police showed up. When the cops came to the door, needless to say, I was dressed, coming from an event, my clothes were completely destroyed. I didn’t feel comfortable with my blouse ripped open, I asked them if I could go upstairs and change my clothes. I didn’t even want to see my face because I knew what I felt when I could look like. I went and put on the Mickey Mouse onesie, I came downstairs and my abuser, who was gone, was coming back across the street yelling homophobic, transphobic and sex worker slurs at me from across the street. Now mind you, he’s coming back in violent. The police stop him. They asked him to sit on the curb. He’s still yelling stuff, you know, just slurs. Very, very transphobic slurs actually calling me out as an offender. But mind you, I just got attacked in my home. The police proceeded to ask me to put my hands behind my back. Me and the guy that saved me to put my hands behind my back. They asked me could they open my onesie, told you I had on a Mickey Mouse onesie. Well, of course you can’t open my onesie, I’m naked under here, but they still proceeded to try. I said to them, no, you need a lady officer. The lady officer steps up to open the onesie. ‘Miss I just told you I have no clothes on.’ So they told me that I’m being put under arrest. They take me to a police station. I tell them they have to take me to the hospital. Here goes just a key into how I was treated like an animal. I was shackled. In a onesie, shackled. Now we’re going three hours in before they get me to the hospital. I get to the hospital and my abuser, I’m shackled to a bed, my abuser walks by me. So not only did you put me in harm’s way right here in my home, you sent me to the hospital with my abuser. That’s putting me in harms way. While I’m strapped to a bed and the officer tells me I’m safe because I’m shackled. Long story short, 17 hours in shackles and then I arrive to court. My lawyers greet me downstairs and I was very happy to see my attorney. I don’t, I’ve never been so happy in my life. Again, ridiculous onesie, of course, she fell out laughing and it made me laugh. It gave me a sense of being comfortable because a familiar face was there to greet me when I came in through the basement of the courthouse. Mind you, I have been to court twice within that evening because when I went to court the first time, the judge had a stomach issue and could not be in court, so they had to take me back to the police station. Why? They claim for my safety, but I was in a cell by myself. ‘I needed safety.’ The whole time I was not fed. I was still shackled. I come out of court, the court is, they give me, they give me probation, my abuser an order of protection, but here’s where it looks totally screwed up. My abuse is a serial abuser, a long history of abusing people. Two years before my incident, he kicked a white woman in the face, a girlfriend of mine who has now since passed away. When he abused her, she found out she had brain cancer. It was kind of a bad thing and a good thing because he had abused her she was able to get an MRI. He broke her nose, but he went to jail for this. What made it all too particular was he got arrested in my house. He busted her face in my house. He was arrested in my house by the same police station in Queens. So what looked different from my case of abuse to my girlfriend’s case of abuse?

Adam: Well, yeah. I mean I have a theory.

Ceyenne Doroshow: So do I.

Adam: Right. So then you were charged with a crime.

Ceyenne Doroshow: Oh yes.

Adam: And you still, you still are facing that. Can you give the audience an update as to the status of this, of these charges?

Ceyenne Doroshow: Well, I passed my six months, the charges have been dropped. He’s still got an order of protection, so I think, I don’t know. International traveling for me was a bit risky because coming back into the country, I’m detained each time because of a screw up, like the police doing this. Bigger picture, I have to save lives. This is what I do. So being detained coming back into the country is disgusting when my abuser gets away with all of this, but it’s all too common for NYPD to do this to black trans women. It looks different for white trans women that are being abused as you can best believe you’re going to go to jail if you abuse one of them.

Adam: Right.So yeah, there’s obviously a sort of a hierarchy of how police differ and obviously race is an issue.

Ceyenne Doroshow: Now here goes a bigger slap in the face is that my own community wanted to make this a sex worker issue when it was not. This is my personal life issue, so I had people telling me not to listen to my attorneys. We should rally. Everybody should wear red. I need you all to take several, several steps back. This is my life we’re talking about not as safe sex worker issue where I advocate for sex workers, we have to move that aside. This is my personal life issue.

Adam: Right. So did, did you feel like people were trying to make it a sex worker issue when it was more about-?

Ceyenne Doroshow: People were trying to make it about them and it wasn’t, it was about me in a very fragile state of being. I was not trusting a system that yet again does not protect me. I’ve been in this predicament several times.

Adam: Right. And so the NYPD generally, it’s fair to say, has very little knowledge of how to deal with trans people in general and they’re automatic assumption is that if it’s a trans woman, that they’re the aggressor.

Ceyenne Doroshow: If you base the NYPD’s training opposed to real life issues going on within the trans community and NYPD, you need to be better trained and you need to be trained by us and you need to pay us for that training because stepping into a setting to train these morons? They haven’t gotten it right in all these years. Now we’re put in such fragile states where the government is actually saying ‘erase trans people.’

Adam: Yeah.

Ceyenne Doroshow: So we don’t have the police on our side. We don’t have the government on our side. What are we all supposed to become vigilantes now? Because it’s being said we don’t exist, we don’t deserve to be protected when I’m seeing on social media trans women being killed globally.

Adam: Yeah. This is not a, a one off. There’s a 2015 study, as you probably know, that says that 58 percent of trans people who have interacted with the police report mistreatment, uh, ranging from verbal harassment and misgendering to actual physical assault. Uh, that’s way above the mean for those who are curious. So it seems like the police view trans people they interact with as inherently doing some sort of illegal behavior and being inherently aggressive and being worthy of scorn and mockery and misgendering.

Ceyenne Doroshow: Yeah, and it’s all too common that its a, what they told me because I tried to have an investigation against the police, they told me my complaint was unwarranted. Bullshit. And I called bullshit. It was damn sure warranted. If a white woman got beaten up in my house and this man went to jail, please explain to me how he didn’t go to jail for attacking me in my house yet again.

Adam: So moving forward, I guess if you had to sort of impart upon our listenership, um, something that they can do or some sort of lesson from this, what would you say it is and what do you think your sort of average quote unquote “average” person can do to help mitigate harm in this situation? Or, or kind of help trans communities or trans people in their communities?

Ceyenne Doroshow: We can organize. You can go to, go to my website, hit the donate button because every dollar counts when we’re helping lives. You can also go to other organizations, Caribbean Equality Project that deals with the same kind of stuff dealing with Caribbean people. NYTAG that does the policy work, but definitely GLITS because I’m bringing awareness and not only bringing awareness, I’m changing the past through education and building community. If we don’t organize and do something about how the police deal with us, about policy work surrounded around us, when the government is saying we don’t exist we are sure to die.

Adam: Right. Well, thank you so much for joining us. Checkout that’s and the other organizations that she mentioned. This was extremely informative and I really appreciate you coming on and talking to us.

Ceyenne Doroshow: Thank you. Thank you so much. Y’all have a wonderful day.

Adam: Thanks to our guests Ceyenne Doroshow at Remember, you can go to to check that out and Appeal writer Aviva Stahl. This has been The Appeal podcast. Remember, you can check us out on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe to us on iTunes. The show has been produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.


Your Essential Criminal Justice Guide to Election Night

From sheriffs to bail to marijuana, and more—here’s what you need to know.

Campaigners hold placards outside an early voting station in Orlando, Florida.
Jeff J Mitchell / Getty Images

Your Essential Criminal Justice Guide to Election Night

From sheriffs to bail to marijuana, and more—here’s what you need to know.

It may be Donald Trump’s America, but in local elections this year, candidates from both parties are shying away from “tough on crime” campaigning and instead promising to reform the criminal justice system. Prosecutors and sheriffs who hold tremendous discretion in shaping law enforcement policies are on the ballot in hundreds of counties—as are referendums and statewide contests that could transform prosecution and sentencing rules. Candidates are talking about cash bail reform, trumpeting their support for diversion programs, highlighting their concern about racial disparities, and promising that they will not participate in federal operations that target immigrants.

“It’s a testament to the influence the movement has had in shifting the field,” Udi Ofer, the director of the ACLU’s Campaign for Smart Justice, told The Appeal.

Reform advocates have scored decisive wins in recent years, whether by electing prosecutors like Larry Krasner, who ran on targeting mass incarceration, or by directly persuading voters to reduce aggressive sentencing through referendums. This year alone, in a series of primaries, such as in St. Louis County; Cole County, Missouri; and Bexar County, Texas, candidates running on reforming the criminal justice system ousted prosecutors who favored more aggressive tactics and issued alarmist public safety warnings. And incumbents under political pressure from activists have embraced important reforms, as New York Governor Andrew Cuomo did when he signed into law the country’s first commission to investigate prosecutorial misconduct weeks before facing a Democratic primary.

Still, as reform rhetoric becomes more popular, it is clear that candidates are using it to refer to vastly different policies. “It’s easy to say yes” to diversion, Danny Carr, a candidate for district attorney in Jefferson County, Alabama, said during an October debate in which he and his opponent both voiced support for such programs. “The better [question] is, would you broaden the types of cases that are eligible for diversion programs?” Similarly, many prosecutorial candidates are pledging to ensure that no one is jailed because they are too poor to post bail, but the impact of such promises will hinge on how they define indigent status, or for which exact charges they will refrain from seeking bail. And then there are incumbents like Erica Marthage, the state’s attorney in Bennington County, Vermont, whose electoral enthusiasm for alternatives to incarceration belies a punitive record.

Many politicians still use the usual playbook of attacking opponents as “soft on crime” or hostile to policing. According to Ofer, Florida’s and Georgia’s gubernatorial elections “will be looked at as a defining moment for tough-on-crime versus smart justice platforms.” Some local elections feature similar clashes, sometimes in conservative jurisdictions like Oklahoma’s Payne and Logan counties.

But the pressure that many candidates face to steer clear of conventional promises of aggressive prosecution speaks to the changing politics of criminal justice reform. All in all, The Appeal: Political Report has identified and previewed 45 state and local elections where some important aspect of the criminal justice system is at stake on Tuesday. Some trends emerge.

Many routes to marijuana reform

The movement to legalize marijuana has a lot riding on Election Day. Four states might legalize the drug by referendum: Michigan and North Dakota for recreational use, and Missouri and Utah for medicinal use.

Victories by governors who back marijuana legalization—including JB Pritzker (Illinois), Tim Walz (Minnesota), Gretchen Whitmer (Michigan), Michelle Lujan Grisham (New Mexico) who are all favored to win, as well as candidates locked in tighter contests such as Andrew Gillum (Florida), Ben Jealous (Maryland), and Ned Lamont (Connecticut)—could alter the legislative landscape on this issue. Pritzker and Grisham in particular are likely to govern alongside a Democratic legislature. In Michigan, Whitmer’s win could facilitate the referendum’s expansion into legislation to expunge past convictions.

North Dakota’s referendum already contains that additional step toward expungement; it would seal the records of people who have completed their sentence for most marijuana convictions, but it would not alter the sentences that people are currently serving. “I think in past years the focus had been on creating the system for moving forward, and now that that’s become less of an unknown people are more comfortable looking back and looking at past convictions,” Mason Tvert, the spokesperson for the Marijuana Policy Project, told The Appeal.

In states that have not legalized marijuana, prosecutors have wide latitude for handling cases—whether they file charges at all, and if so how severe they are. Many candidates for district attorney are now promising to use their discretion to limit, if not eliminate, marijuana charges, or else to treat these cases as civil infractions instead of criminal offenses.

John Creuzot, who is running for district attorney in Dallas County, says that he would no longer charge first-time marijuana possession cases, while Joe Gonzales, running in Bexar County, wants to strengthen the county’s cite-and-release program. In Minneapolis, the disparity in marijuana possession arrests between African Americans and whites was elevenfold according to an ACLU study from 2014; Mark Haase, who is running to be county attorney in Hennepin County (the jurisdiction that includes Minneapolis) has pledged to not charge any marijuana offense absent “circumstances like very, very large amounts or sale to a minor.” And in Boston, Rachael Rollins has gone a step further by stating that her default policy if she is elected district attorney would be to not prosecute any drug possession charges.

Reforms to sentencing and conviction rules target mass incarceration

Efforts to curb unequal convictions, shorten sentences and reduce the severity of charges will appear on ballots all over the country on Tuesday.

Louisiana’s Amendment 2 takes aim at the state’s racial disparities. It would no longer allow non-unanimous juries to render guilty verdicts for felonies, a vestige of the Jim Crow-era Constitution that still results in Black Louisianans’ disproportionate incarceration, as a New Orleans Advocate investigation showed this year.

Two initiatives promote changes to past convictions. Floridians could strengthen the hands of lawmakers who wish to reduce the existing prison population by passing Amendment 11, which would enable new sentencing reforms to be applied retroactively; Florida’s Constitution currently imposes uniquely harsh limits on the legislature’s ability to reduce sentences that people are already serving. In Ohio, the Issue 1 referendum downgrades possessing any drug to a misdemeanor, and enables people who are already serving a sentence for drug possession to seek a new, reduced sentence.

Mandatory minimum guidelines, another major obstacle to decarceration, could face renewed pushback if critics of the guidelines win. In Florida, where lawmakers from both parties have called for sentencing reform, the viability of such rollbacks hinges on who will wield the governor’s veto pen;  Republican gubernatorial nominee Ron DeSantis supports maintaining mandatory minimums while Gillum, his Democratic opponent, supports letting judges occasionally override them.

Massachusetts could be in for a change as well. In 2015, 10 of the state’s 11 DAs signed a letter in defense of mandatory minimums that lawmakers were targeting. The possible elections as district attorney of Rollins in Boston, Andrea Harrington in Berkshire County, and John Bradley in Plymouth County would give state reformers new allies.

Prosecutorial candidates who are seeking to reduce the prison population have also converged on targeting the effects of fines and fees that courts impose on defendants. Many individuals who cannot afford these costs are jailed, a cycle that Carr has pledged to break in Jefferson County, Alabama.

More indirectly, the presence of fines and fees can result in harsher sentences. In Bexar County, Texas, defendants must pay a steep fee to access the less punitive diversion programs. One of the district attorney candidates, Joe Gonzales, denounced this as a “pay to play” system. In Payne and Logan counties in Oklahoma, DA candidate Cory Williams says he would curb prosecutors’ habit of charging defendants with felonies to extract higher fees from them.

Local cooperation with ICE could expand—or contract

To amplify its reach, ICE uses a variety of agreements with local law enforcement. The most visible type of agreement is the 287(g) deal that authorizes local deputies to act like federal immigration agents by investigating the status of people they detain. Other modes of cooperation can be more informal and harder to track. They include providing ICE with lists of foreign-born individuals held at county jails, giving ICE office space in said jails, or agreeing to detain people that ICE has arrested in exchange for nightly payments.

Tuesday’s elections for sheriff or county executive—the officials who often decide a county’s cooperation with ICE—will be decisive for the fate of many such partnerships.

The scope of the potential change is limited by the fact that many politicians who criticize ICE also argue that their county would suffer too big a financial hit if they severed their existing relationship with the federal agency. Immigrants’ rights advocates counter that more is at stake. “What kind of public servant do you want to be,” Johana Bencomo, the director of community organizing at NM CAFé, told The Appeal in reference to this dynamic unfolding in Doña Ana County, New Mexico. “Do you want to be one that’s attached to money or one that’s serving your community and what your community needs?”

Still, The Appeal has identified 10 counties—plus an entire state—where divergent approaches to local immigration enforcement are confronting one another on Tuesday’s ballot.

Maryland alone features at least four counties in which the fate of a single election will most likely affect  participation in the 287(g) program. North Carolina’s Wake County features a similar showdown between longtime sheriff Donnie Harrison and Gerald Baker, a challenger who pledges to withdraw from 287(g). The ACLU has spent $140,000 advertising this election’s impact on immigration policy, an ACLU official told The Appeal.

Elsewhere in the country—from Hennepin County, Minnesota and Hillsborough County, Florida to Ulster County, New York and Orange County, California—sheriffs and undersheriffs who assist ICE are running against challengers who have pledged less cooperation and who warn of straining ties between sheriff deputies and immigrant communities. “All you’ve done is you’ve created hate toward the local law enforcement,” Gary Pruitt, the Democratic nominee for sheriff in Hillsborough County, told The Appeal about current Sheriff Chad Chronister’s deal with ICE.

In Oregon, the Federation for American Immigration Reform and Oregonians for Immigration Reform, organizations that the Southern Poverty Law Center classifies as hate groups, have put forward a referendum (Measure 105) that would repeal the state’s 32-year old “sanctuary” law.

Voters weigh in on prosecutorial and policing misconduct

Sheriffs and prosecutors wield tremendous force but face little oversight, and often little electoral accountability. Seventy-four of Minnesota’s 87 prosecutorial elections only featured one candidate this year, for instance, according to an analysis by The Appeal, a phenomenon in keeping with studies of past cycles.

But voters already rejected the legacies of two of the nation’s most controversial officials already this year. Bob McCulloch, St. Louis County’s longtime prosecuting attorney, lost to Wesley Bell in the August Democratic primary in what was his first contested election since the Ferguson protests of 2014. Milwaukee County ousted Acting Sheriff Richard Schmidt, who had worked under Sheriff David Clarke during a string of gruesome deaths in the Milwaukee jail.

On Tuesday, voters will weigh in on other allegations of abuse or misconduct.

The sheriffs of Hillsborough County, Florida; Santa Clara County, California; Los Angeles County; Frederick County, Maryland; and Wake County, North Carolina, are seeking re-election; The Appeal has recently reported on the abusive detention conditions in jails run by the first three, and on aggressive policing conducted by the latter three’s deputies. Hennepin County Attorney Mike Freeman’s contentious re-election race has been shaped by his decision to not charge police officers who shot and killed two Black men. And in Rensselaer County, New York, District Attorney Joel Abelove is running for re-election a year after he was indicted for withholding evidence from a grand jury in the aftermath of a police shooting. (The charges were dismissed in June, though the state attorney general’s office has appealed.)

Local referendums also seek to curb official abuses. Nashville could implement a civilian board to investigate police misconduct, and two Alabama counties may bar sheriffs from personally pocketing funds allocated for food in jails.

Bail reform is on everyone’s lips

“More than any other year, bail reform has become a topic of conversation,” Ofer of the ACLU says, referring to the demands to overhaul a system that keeps many poor individuals in jail before trial because they cannot afford the financial conditions set for their release.

In New York, the urgency of overhauling this system has drawn more attention since Kalief Browder, a teenager incarcerated for three years without a trial because his family was unable to pay bail, died by suicide in 2015. Last year, Selmin Feratovic died on Rikers Island while held on a $50,000 bail. An audit revealed that in 2016 about 76 percent of the people jailed on a given day in New York City had not yet been tried, and that a majority of these pretrial detainees are there because they cannot afford bail.

Despite the pressure created by such cases, change has proved elusive so far in New York. Reform efforts stalled in the state Senate this year. Two Democratic candidates who won primaries for the state Senate told The Appeal in September that they would prioritize such legislation in the upcoming session; that plan is most likely dependent on whether their party wins a majority in that chamber on Tuesday.

Here again prosecutors have a great deal of influence because they often have leeway in the bail amount and conditions they seek. Candidates like Bell, Rollins, or Bradley have pledged to eliminate the use of cash bail for some offenses or to ask for more releases on personal recognizance, which enable people to be released pretrial without owing a payment. Jealous and Gillum, as well as Stacey Abrams of Georgia, all feature bail reform in their gubernatorial platforms.

Judges also enjoy discretion in deciding how to set bail. In Harris County (the Texas jurisdiction that includes Houston), Democratic challengers have made this into an issue against the county’s misdemeanor judges in the wake of a court ruling that found that Harris County’s bail practices violated defendants’ rights.

But as promises to reform the bail system become ubiquitous, Ofer acknowledges that some of the candidates lack a sufficiently specific or daring vision of what it should entail. Vague slogans have served as cover for toothless changes, and poor reforms can worsen the situation if they replace cash bail with alternatives that increase pretrial detention, as Ofer believes California did this year.  Still, he argues that the spread of this message represents progress. “It shows success by the movement that the issue has elevated to such prominence that candidates feel that they have to take a pro-bail reform position,” he said.

“The job of advocates,” Ofer added, “is going to be to fill the gap in what bail reform means.”

The Appeal Podcast: Neglect and Abuse in Our Prison Healthcare System

With Mercedes Montagnes of the Promise of Justice Initiative.

msppmoore/Flickr (CC BY-SA 2.0)

The Appeal Podcast: Neglect and Abuse in Our Prison Healthcare System

With Mercedes Montagnes of the Promise of Justice Initiative.

Most people know that the healthcare situation in the United States is one of most precarious in the world, but what’s rarely discussed is the quality of healthcare for America’s 2.2 million incarcerated people––which is lightyears worse. One prison in particular, Angola in Louisiana, rates at the very bottom of even this group, with mortality rates almost double the national average for prisons. Our guest, Mercedes Montagnes of the Promise of Justice Initiative, is a lawyer helping people incarcerated at Angola sue the state for rampant abuse, neglect, and injury.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, you can like us on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe to us on iTunes. Most people know that the healthcare situation in the United States is awful, but what’s never talked about is the status of healthcare for America’s 2.2 million incarcerated persons, which is light years worse. One prison in particular, Angola in Louisiana, is the worst of the worst with mortality rates almost double the national average. Our guest today, Mercedes Montagnes of the Promise of Justice Initiative, is a lawyer helping prisons in Angola sue the state for rapid abuse, neglect and injury.

[Begin Clip]

Mercedes Montagnes: At Angola the most common healthcare provider that people encounter is an EMT and, you know, there are three levels of EMTs, but the basic EMT essentially has a high school degree or equivalent and four months of training and they have become the gatekeepers to healthcare at Angola such that very often they’re making the medical decisions that a doctor should be making. And that’s why we see cancer progressed to really advanced stages when it shouldn’t be.

[End Clip]

Adam: Thank you so much for joining us on The Appeal.

Mercedes Montagnes: Thank you for having me.

Adam: So you are involved in a class action lawsuit along with the Southern Poverty Law Center, the ACLU, the Advocacy Center for Louisiana and several others that is suing specifically about the negligent healthcare at Angola prison in Louisiana, also known as the Louisiana State Penitentiary. This has been going on for some time. Can you set the table for our listeners by explaining what the impetus for this lawsuit was and what are the kind of broad charges being made?

Mercedes Montagnes: Sure, so Angola is a prison that is about an hour and a half away from our states’ capital of Baton Rouge. It was formerly a slave plantation and then it was converted into a prison. It has 6,000 people there. It’s maximum security and essentially the folks who are incarcerated there, our patients, our plaintiffs in this case, work in the fields, they work in various factories. It’s sort of a small town that exists in an isolated part of our state and a few years ago I began to receive a number of complaints about the quality of healthcare that they were receiving in addition to a lot of lawyers around the state and so I convened a sort of small working group of people to talk about the trends that we were noticing and did we think that this was a situation and we launched an investigation. That investigation lasted a couple of years and then we filed suit in May of 2015 alleging constitutional violations as it relates to the provision of medical care as well as several claims under the Americans with Disabilities Act relating to access to the facility and medical care for folks with disabilities.

Adam: Okay. That’s very exhaustive. So let’s kind of go down here because I want to establish the stakes. There’s a general ethos in American culture and I think specifically probably more so in Louisiana, at least if it’s anything like Texas where I’m from, of lock them up, throw away the key, screw ’em, they did their time. That prisons in general are the last thing that we want to fund, we being the sort of proverbial, you know, Joe Sixpack and healthcare within prisons is maybe right behind education as the absolute last thing we want to fund. How difficult has it been in your experience when doing publicity or talking to people or doing anything involving this case, how do you convey to people that this actually matters as a sort of baseline human rights issue?

Mercedes Montagnes: Well you know I always think that the stories help, you know, so one of the stories I like to tell is about my client Shannon Hurd. He actually died in the pendency of this action, but he was a named plaintiff and he complained for years and years. He was losing weight. He had flu like symptoms and it took them three years to properly diagnose him with renal cancer. By the time they diagnosed him with it it had metastasized all over his body and he died at 42. Shannon was serving time for stealing $14 out of an uninhabited dwelling. He was convicted by a non unanimous jury and maintained his innocence and it was under a really perverse three strikes law and he ended up getting a life sentence. So sometimes I think telling stories like Shannon’s, how people understand what we’re really talking about and shed some light on why this suit is important. But I also think that we have to recognize that when we lock someone up, they have no ability to go to their own doctor or go to their own pharmacy or help themselves in any way. They are at the complete mercy of the prison system. And finally, I think that there is always going to be a public health argument. Prisons become breeding grounds for infectious disease and they spill over into the community inevitably and those are public health issues as well.

Adam: Right. So let’s start with some numbers here. Uh, some pretty startling statistics coming out of Angola as Appeal writer Jessica Pishko noted, which are that the prison mortality rate has increased quite a bit over the last few years. In 2001, it was 361 deaths per 100,000 prisoners, as of 2013, the last date where data is available it’s 623, so it’s almost doubled. There are several theories as to why this is. One of them is that the hard labor, the use of hard labor is increasing and they are effectively working people to death. Can you talk about the extent to which hard prison labor is used as both a sort of punishment and a means of overworking, especially the the elderly prisoners?

Mercedes Montagnes: So I definitely think that there’s been a massive increase in the number of people dying within the system. I think that’s absolutely accurate. I also think that we ask folks to participate in sometimes dangerous labor and we actually had a client, Charles Butler, testify to that this week, where he had a duty status restricting the kind of labor he could do and he was forced to do drywalling. I would be skeptical if that rise in the death rate was related to the kind of labor that we are requiring from the patients and the plaintiffs in the lawsuit, only because I would really link it to the decline in the quality of medical care.

Adam: Right. To what do you attribute the lack of medical care?

Mercedes Montagnes: I really think it’s about funding. I think it’s about reliance on outdated medical techniques. I think it’s about, so for example, at Angola the most common healthcare provider that people encounter is an EMT and, you know, there are three levels of EMTs, but the basic EMT essentially has a high school degree or equivalent and four months of training and they have become the gatekeepers to healthcare at Angola such that very often they’re making the medical decisions that a doctor should be making. And that’s why we see cancer progressed to really advanced stages when it shouldn’t be. And we actually had two doctors who treat patients at the University Medical Center here in New Orleans who regularly see patients from Angola testify that the patients show up from Angola, their disease progression very far along. So what’s happening is they’re just not catching diseases when they’re still treatable. For that reason our experts in their report found that many of the deaths that they saw were preventable deaths, meaning if the patients had received proper medical care, they would likely not have died from the diseases that were there.

Adam: And the gentleman who runs the medical services at Angola, Dr. Randy Lavespere, had his license suspended from 2006 to 2014 after a felony conviction for the distribution of meth. Now we don’t want to, you know, necessarily stigmatize people who’ve been subject to arbitrary drug laws, but it seems like it seems like the people they’re picking to work there are not the highest quality care and that has obviously gotten worse over time.

Mercedes Montagnes: Yeah. I think it’s important, right? We believe in redemption and we don’t want to be punitive, but I also think it’s important that when you have a doctor, particularly doctors who have been convicted of crimes and have a limited licensure, you want them to be practicing in an environment where they’re around other doctors who don’t have limited licensures. What you have at Angola is a concentration. All the doctors at Angola have a history of restrictions on their licenses. Many of them have restrictions on their licenses because of the way that they provided care to their patients, either be it sexual abuse, be it over prescribing pain medication, and various other things, and then you take our patients, the most vulnerable patients and you put them with those doctors it’s just not a safe recipe.

Adam: And one element of this, which I was shocked to learn and I’m curious how common it is, is that there’s something called aggravated malingering, uh, which is a label applied to people who are deemed to have requested medical attention gratuitously or without merit, that they actually get punished for it at Angola prison. That if you ask for medical assistance and they somehow diem, again, I’m not sure based on what theory of mind, but they deemed that you did so fraudulently, that you get punished through the mechanisms that prisons punish people. Can you talk about that and how that has a deleterious effect on healthcare?

Mercedes Montagnes: Absolutely. So every healthcare request form that Angola has at the bottom is a warning that if you’re asking for healthcare and you’re deemed not to want it, that we’re going to punish you with this punishment called aggravated malingering. So with every healthcare requested a patient puts in, not only are they charged $4 to $6 per healthcare request when they only make four to twenty cents an hour for their work, but they have to fear that they could take disciplinary action against them. And actually just in October we had one of our experts testify about  a patient where they thought he was making up his symptoms and in fact he had lymphoma and they sent him to mental health and mental health was speculating about why he was exaggerating and in fact he died from that lymphoma. And so it’s very hard in the medical profession to say that someone is lying and not telling the truth and usually, as our expert testifies, if you can’t figure out what’s wrong, it just means you have to keep looking, not that the patient is lying.

Adam: Yeah. Again, having seen the dichotomy in healthcare personally, um, I know the difference between a small county hospital and a, an appointment at Northwestern or um, or MD Anderson is night and day. I imagine that it’s, you know, a whole different universe, not to mix metaphors. Especially in terms of cancer. I mean, cancer is a very involved process. It’s a very, you have to have many expertise. I can’t even imagine what it’s like getting cancer in prison, much less Angola. Is the lack of early detection and the lack of early treatment is something that’s, it’s something that’s systemic, correct?

Mercedes Montagnes: Absolutely. Um, whenever I visit Angola, I hear more and more stories and our case is named after Joe Lewis. Joe Lewis also died in the pendency of this action from throat cancer. He complained again for years about feeling like his, he had a sore throat, something was wrong, Laryngitis and sure enough he also had throat cancer and by the time they caught it, it was too late. So we see that quite often. And as a result, we see people, you know, what I believe is a very high death rate as a result of missed diagnosis.

Adam: Now  according to data Angola spends about half as much in healthcare per prisoner than the national average and that there seems to be a mindless cost cutting ethos. You talked about the importance of personal stories. Let’s talk about the case of Otto Barrera, who was shot in the jaw, the lower jaw in 2012 and had most of it removed and then he was referred for reconstructive surgery in 2014 for a missing bottom lip and tongue. But Angola denied this. He can’t chew food and he has to be on a soft diet, but they refuse to give him a soft diet and they gave him regular prison food which he had to cut up and apparently it’s excruciatingly painful for him to chew. Can you talk to us about that case and what? I mean I, I assume at some point in the, in these proceedings, somebody representing the state will get in front of a judge and defend these actions. What are the kind of apologetics here like how do people justify this dehumanizing healthcare?

Mercedes Montagnes: Well, in Mr. Barrera’s case, he testified at trial in October and he spoke eloquently about the difficulties he had encountered. Um, he has subsequently many years too late, began having some of his reconstructive surgery so it’s slightly better, but he still has significant trouble and the defendants essentially went after him because they noted that he had purchased some food from the commissary that suggested that he could in fact chew. They didn’t believe him that he couldn’t chew even though it was plainly obvious to anyone who saw him. And, you know, in the end he is, he simply said, ‘Yes, I did buy food because I was living in the infirmary with many men who had no family support. I was lucky enough to have family support. And so I bought food for other people.’ Essentially the argument appears to be that these individuals, you know, might have one time refused care because their family was visiting or they had an attorney visit or something like that and because they did that it’s okay that we didn’t give him surgery for three years. It appears to be that that’s the kind of explanation that we get.

Adam: Now, obviously certain states are better than others in terms of healthcare. In your knowledge, both in terms of Louisiana and other states, is there any sort of coordinated movement that’s a little more high level to really bring to attention these conditions? Healthcare in general in prisons, obviously you have a lot of talk about prison reform. Oftentimes labor conditions are centered in that, but I think rarely would we talk about healthcare in prisons. Can you talk to us about any organizations or groups or, or, or kind of high level stuff that’s going on, uh, that tries to raise public awareness about this?

Mercedes Montagnes: Well. One thing that is exciting is that they’re Vera Institute has begun to take individuals on trips to places in Europe where they really approach incarceration from a very different level. And in fact the secretary of the Department of Corrections in Louisiana. I was scheduled to attend that trip in October and he had to cancel. But I think exposing our, especially our corrections, high up high level corrections officials to a different way of doing things. So in Europe, often there’s a much stronger focus on rehabilitation. There’s a much stronger emphasis on reintegrating people into society slowly and helping them get back on their feet with a real emphasis away from punishing people for mistakes, but rather thinking about innovative and new ways that we can help people recover from incarceration. So I’m really grateful for that work. Um, I’m grateful for the existence of things like The Appeal which are really focusing on criminal justice issues and raising awareness. I think that’s essential if we’re going to move this conversation forward. Um, and then, you know, I think all about chipping away at a system that you know has been allowed, I think especially since the nineties, to go a little bit under dark. I tell everyone this, but when the Prison Litigation Reform Act passed, it made it much, much harder for attorneys to go in and expose these kinds of conditions. It made it more expensive. It made the likelihood that they would prevail much, much harder. And because it raised the bar so high, you really see as sort of curtain withdrawn over a lot of these prisons in the nineties and I think that’s changing now. And I think a lot more exposure about these issues is happening.

Adam: Yeah. We discussed this on a, on a prior episode with Raven Rakia about the prison strikes, the law that was passed in the nineties under Clinton that basically made tort very, very difficult, which of course is going to, you know, in any case where you don’t have any kind of compensatory or punitive alternative you’re going to just have people treating you like garbage. I mean that’s the, that’s the logical endpoint of that on a systemic level. So I mean that, that to me seems to be a major factor in both the healthcare and the and the, uh, labor abuses that you see. So before you go, can you tell us the status of the lawsuit and where people can read about it or check out or follow up dates if there’s any place that can do that?

Mercedes Montagnes: So the lawsuit is wrapping up October 26th. And then once it’s wrapped up, they’ll probably be somewhat of a lag between when the trial ends and when the judge renders her opinion. We certainly are in the media, but um, you can follow, our website, and we’ll have updates there as things progress along. Can you follow us on Twitter @JusticesPromise and we will definitely be updating it as things progress. You know, one thing to bear in mind with these kinds lawsuits is it’s a marathon not a sprint and change is a slow process. And so we’re hoping that we will be able to convince the judge in this first step of approving the constitutional violation and then we can move into deciding how we fix it.

Adam: Well, thank you so much. I appreciate you coming on.

Mercedes Montagnes: Well thank you so much for having me.

Adam: Thanks to our guest, Mercedes Montagnes of the Promise of Justice Initiative. This has been The Appeal podcast. Remember, you can follow us on Twitter @TheAppealPod or subscribe to us on iTunes and follow us on Facebook at The Appeal magazine’s main Facebook page. I’m your host Adam Johnson. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn and executive producer Sarah Leonard. Thank you so much for joining us. We’ll see you next week.

The Appeal Podcast: Prison Strikes Are the Front Line Against Mass Incarceration

With Appeal staff reporter Raven Rakia.

Photo illustration by Anagraph. Photo by Justin Merriman / Getty Images

The Appeal Podcast: Prison Strikes Are the Front Line Against Mass Incarceration

With Appeal staff reporter Raven Rakia.

This fall, thousands of incarcerated people in dozens of states went on strike to protest harsh and exploitative conditions in America’s prisons. Prisons, and the cruel conditions they foster, are often the last thing with which the public wants to be confronted. But incarcerated people throughout the country are using the only leverage they have—their personal labor—to force the issue. Our guest, Appeal staff reporter Raven Rakia, joins us to talk about these efforts and what the future holds for the prisoners’ rights movement. Read more of Raven Rakia’s prison strike coverage here and here.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can follow us on Twitter @TheAppealPod, you can follow us on Facebook at The Appeal Facebook page and you can always subscribe to us on iTunes. This fall, thousands of prisoners in dozens of states went on strike to protest harsh and exploitative conditions in America’s prisons. Prisons and the cruel conditions they foster are often the last thing the public wants to see much less debate, but incarcerated persons throughout the country using the only leverage they have in their personal labor are forcing the issue on the front burner of a country that would rather talk about anything else. Our guest, Appeal writer Raven Rakia, joins us to talk about these efforts and what the future holds for the prisoner rights movement.

[Begin Clip]

Raven Rakia: Labor conditions in general across the country in prisons it’s kind of twofold because on the one hand, some of them are very laborous and they’re used as punishment at times or retaliation, and on the other hand, some prisoners enjoy some work conditions because it means it can get them out of their cell. What organizers in prison have been trying to push in terms of their ideology and theory behind it, from what I’ve seen, is that the two choices aren’t really choices because people in prison only want to work because that means they get out of a cage. In that sense it’s still forced labor.

[End Clip]

Adam: Welcome to the show. Thank you so much for coming on.

Raven Rakia: Yeah. Thanks for having me.

Adam: So we’re going to talk about prison strikes today. Um, there was a massive prison strike a couple months ago from August 21st to September 9th. I want to talk about that and then I want to broaden the topic if you will, to broader prison conditions. Of late prison strikes have gotten, at least they appear to have gotten more frequent. Uh, we typically associate them with sixties, seventies uprisings, but they seem to have gotten more frequent. Can you talk about the organizing that’s been going on amongst prison reform and prison abolitionists and the prisoners themselves of late and what the, what the sort of primary instigator of this recent wave of strikes is?

Raven Rakia: Yeah, sure. So I think, uh, it’s important to, to quote what another journalist Victoria Law tweeted earlier, which is that prisoners are always organizing. So even though like now we see a lot, we’ve seen a lot of strikes and a lot of visible things, I think it’s important just to note that it’s pretty much throughout history prisoners have been organizing and they will continue to. So it’s just kind of difficult to put dates on things in terms of wave of prison strikes. But starting in 2010, I think we started seeing a lot more prison strikes. Um, and in 2010 there was the prison strike in Georgia where prisoners in multiple prisons in Georgia decided to, uh, do a work strike and they refused to go to work and several prisoners were punished for it. Eventually correction officers were indicted on beating an inmate who had organized the prison strike and they beat him pretty badly. He had a lot of physical health issues after that. So I think that was when at least I started noticing prison strikes in terms of in the recent years and then since then we’ve seen like organizations like IWOC [Incarcerated Workers Organizing Committee], Anarchist Black Cross and plenty of others, The Ordinary People Society and other organizations that with people outside the prison who are then organizing and communicating with people inside the prisons. And of course IWOC also includes union members in prisons as well. And so we’ve seen like multiple prisons strikes. There was also like the California hunger strike in 2013, um, which was organized by multiple abolitionist and reform groups in California working with people inside to get over 30,000 prisoners to hunger strike. And that was probably one of the largest, if not the largest prison strikes we’ve seen. And then, um, recently, like in 2016, and the recent one in August, have been more like national prison strikes, prisoners organizing in different states with each other, which is kind of incredible to see happen. So yeah, that’s a little bit of the background.

Adam: One of the things we try to talk about on this show a lot, and I know this is something that The Appeal is trying to do in general ideologically, is to really get away from this idea that of the kind of deserving victim and the undeserving, the kind of violent offender and the nonviolent offender as this kind of moral delineation, innocent and guilty and realize that to really reform prison and to meaningfully reduce prison populations, you have to deal with people who are quote unquote “violent” offenders who are just there for low level marijuana arrest. And this speaks to the kind of broader humanity of the prison system itself. And the prison strikes to me at least seemed to strike at the core of that kind of liberal tic to want to sort of divide people into sort of good and bad. Can you talk about it, at least from your experience talking to activists and prisoners, how difficult it is to get people to sort of see prisoners not along those lines, the innocent versus guilty, but see them as fundamentally human deserving certain rights and how difficult it is to get people to care because we see prisoners as basically expendables, as people who sort of don’t really deserve our solidarity and empathy?

Raven Rakia: Yeah. I think that was a main theme of this last prison strike specifically in terms of not trying to divide prisoners into nonviolent and violent and I’m glad you bring this up too because when it comes to prison strikes, I mean of course prisoners who are in prison for all different reasons will organize, but it does seem that like people in prison who are there for longer terms are more likely to want to change the conditions. People who are in there for low level terms who are maybe in there for a year or two, a lot of times they’re usually focused on just getting out and having good time and not getting any sort of violations or anything like that. Which is the type of thing that striking brings. This was a major theme in this last prison strike. They’re ten demands are basically ten demands for human rights and they’re arguing that all humans deserve these things, even people who may have done something wrong in the past. Specifically their demands highlight the fact that they do not think the like violent and nonviolent binary is necessarily right. Like for example, number seven of their demands, um, says, “No imprisoned human shall be denied access to rehabilitation programs at their place of detention because of their label as a violent offender.” So I think this demand specifically, and of course others do as well, highlight how they view that sort of binary and how it should be broken down in terms of providing everyone with human rights.

Adam: Let’s talk about the mechanisms of regress, of having their grievances aired. You note that the Prison Litigation Reform Act of 1996 passed by President Bill Clinton and the Republican Congress, you note that it places barriers and restrictions on prisoners trying to file federal lawsuits about their conditions. Can you talk about what that Act did that made being a prisoner more difficult and removed one of the key mechanisms of accountability?

Raven Rakia: Yeah, definitely. So the Prison Litigation Reform Act was passed in ‘96 under Bill Clinton and it basically placed a lot of barriers and restrictions of things that prisoners needed to do or things they couldn’t do in terms of filing a lawsuit to say that their constitutional rights had been violated. So for example, it required prisoners to go through all of the administrative grievance processes within that prison before they could file a lawsuit. And the problem with that is, you know, sometimes these grievance processes are very long and complicated or just certain things like being in prison, you’re depending on certain people to even be able to file that grievance process and that is the guards, so it can be sometimes difficult for inmates to file grievances. And so this places a barrier in terms of in terms of lawsuits and it will basically mean that your lawsuit will be thrown out if you didn’t go through the entire grievance process. So another barrier that the Act placed on lawsuits that were filed by people in prison, it limited the cost that an attorney could be paid if they won the lawsuit, which can discourage attorneys from taking the lawsuit whatsoever.

Adam: Right.

Raven Rakia: Um, it also adds restrictions on when a prisoner files a lawsuit alleging emotional or mental harm there are restrictions placed on that. Um, which is a problem because of the types of policies and you know solitary confinement units that prisons have across the country.

Adam: Yeah. I mean the tort gets a bad name because it’s constantly demonized in the media and pop culture, but tort is the only mechanism that powerless people have to hold powerful people to account. And it’s the only core. So if you, if you stymie that tort, then yeah, you have a recipe for abuse.

Raven Rakia: Right. Yeah, exactly.

Adam: One of the things that they also address, and this is something that’s become more popular in popular discourse, and there was obviously a recent documentary about it, is the eye is the idea of a loophole in the Thirteenth Amendment that effectively permits slavery. It permits slave wages, you know, I don’t mean that sort of rhetorically or to be provocative, but it’s quite literally a slave wage. The loophole on the exemption of the Thirteenth Amendment passed after the Civil War is that you’re allowed to have debt peonage. This was a huge component to what’s called neo-slavery, which is slavery in the South from the 1870s to the beginning of World War II, where you basically arrested people for vagrancy or small petty offenses and then put them in prison for months, sometimes several years, paying off their debt, that this was legal and we currently have this today. Can we talk about the labor conditions in these prisons specifically the ones that actually went on strike and what the demands are in terms of minimum wage and basic labor rights.

Raven Rakia: So in terms of the demand, it basically asks that all people who are incarcerated be paid the prevailing wage in that state. And that’s one of the national demands. Some of the states also made their own demands. So Ohio had a list of demands where they also asked that everyone in the state be paid $15 an hour. So of course those two are tied together. But yeah so labor conditions in general across the country in prisons, it’s kind of two fold because on the one hand some of them are very laborous and they’re used as punishment at times like you will be put into a worse work position as some sort of punishment or retaliation and on the other hand some prisoners enjoy some some work conditions because it means it can get them out of their cell. What organizers in prison have been trying to push in terms of their ideology and theory behind it, from what I’ve seen, is that the two choices aren’t really choices because people in prison only want to work because that means they get out of a cage. In that sense it’s still forced labor. I think their theory behind their prison strikes is something that’s very interesting and needs to be taken seriously more in terms of media coverage as well.

Adam: Yeah, to the point of media coverage. I know that in the strike that happened in September 2016, there was basically no media coverage. I did a lot of work on that for FAIR and for Alternet. I documented quite clearly that they weren’t really covering it all. This was different. There was more coverage this time. Do you think that that’s a product of the nature of the strike itself? Do you think people are maybe becoming more aware of these things? And obviously it’s still not enough and a lot of it’s superficial, but from your observation, having followed this for several years, what is the state of the media’s coverage of these? Because obviously these strikes are, are designed partially towards outside audiences, towards people who make up the public that informs these decisions. Can you talk about the, the media strategy from the prison strikes perspective and whether or not they feel like it’s working?

Raven Rakia: Yeah, sure. I can’t really speak for the prison strike organizers in terms of if they think it’s working, but I think it’s working. Um, so in terms of like the organizing that’s been happening for the past eight to ten years,mainstream media has finally caught on, like this past prison strike in 2018, um, which is great, but I agree with you in 2016 there was really, there was very little coverage from mainstream media. I mean, I think that’s partly because of the prison strike organizers’ media strategy just getting better and better after years of doing it. And I think a huge part of it is prisoners ability to get access to cell phones in certain states where they’re then able to speak their thoughts, you know, on social media. So it seemed like eventually the mainstream media caught on, they were just a little late. I think it does show that there’s more and more prison coverage and for that we have these prison organizers to thank, we have Black Lives Matter to thank. I think that is the reason behind the better prison coverage or at least more extensive prison coverage than we’ve seen in the past.

Adam: Um, one of the demands that I thought was interesting and something that isn’t talked about a lot is the nature of what they call death by incarceration, which is an exorbitant amount of time that a person is given behind bars that assumes they’ll die behind bars and they have these sort of virtual, what’s called virtual life sentences, which are 50 years plus. Um, it affects 200,000 people, roughly 50,000 are serving life without the possibility of parole. This has a, obviously has a deterious effect on the prison itself, right? If you have a whole population who effectively society has given up on and says there’s no such thing as, as redemption or no such thing as, as reform, uh, if these are concepts people buy. This is unique to the United States is alone in this with very few other countries, I know in Europe especially, um, you rarely have sentences over 20 years because of that reason exactly. Can we talk about the effects that this has on prisons in general and what it says about the nature of our carceral system?

Raven Rakia: So yeah, one of their demands is to end death by incarceration and I think the importance of that term is like, it means that like we should not be giving up on people as a society. There’s a lot of studies out that people age out of crime and actually keeping people behind bars for so long as they age does nothing to help our society in any way. Um, and people like Release Aging People in Prison, that organization, also have been fighting to get people out of prison who have been there for like, you know, 30, 40, 50 years. There’s a lot of studies out there that show keeping people for so long is mainly just expensive and has no purpose for us as a society or for them because many of them age out of crime and can be rehabilitated if they did something wrong. You know?

Adam: So this most recent prison strike, the one that ended on September 9th, do we have a general idea of how effective it was or what the totality of it is? I know reporting on prisons is notoriously difficult. It’s more, it’s more difficult than pretty much reporting anywhere except for maybe Syria and other countries with difficult access, but it’s very, very difficult to report inside prisons, which is a huge barrier to getting factual information.

Raven Rakia: Yeah. So in terms of what we know about how this prison strike has gone, IWOC has said that they’ve heard about or seen activity in about fifteen states at least, and that could be anything from boycotting commissary to hunger strikes in a few states and then a few, a few confirmations of work strikes and boycotts in Florida as well. And I think in terms of what they’ve accomplished, I think the media coverage was a huge win for them and it allows them to get their voice out to multiple people and also every time there’s a lot of media coverage on prison organizing, there’s more of a chance that people in prison will hear about it because, you know, they’ve read about in the paper. So that’s exciting. And then things that I’ve seen in terms of like the prisoner organizers, like Jailhouse Lawyers Speak, talk about in terms of moving forward is that they’re focused on the tenth demand, which is giving people in prison the right to vote and they’re moving forward. It seems like they’re going to be focusing on that demand in terms of organizing people on the inside and the outside of prisons.

Adam: Can you comment on the retaliation aspect? Specifically what we’ve learned in the last few weeks about what kind of retaliation prisons have taken against incarcerated persons who, who decided to strike?

Raven Rakia: We’ve heard of retaliation happening in multiple states. Um, this is mainly being documented again by IWOC, the Incarcerated Workers Organizing Committee who organized phones zaps. And phones zaps are when people on the outside call the prison and basically leave a bunch of messages demanding certain rights of the prisoners usually detailed in letters and that sort of thing. So IWOC has been documenting most of the retaliation and we’ve seen retaliation in states like Ohio, where they’ve put multiple people in solitary confinement ahead of the strike for speaking about the strike on the phone, for example, or getting something in the mail that mentioned the strike. We’ve also heard of prisoners getting their privileges taken away and things of that nature. Um, like no phone calls for a certain amount of time or no visits, which is pretty detrimental in terms of like, you know, of course visits from families and loved ones really help in terms of prisoners mental health and as well as recidivism and things of that nature. I think for the most part, wherever you see work strikes or hunger strikes you’re going to see retaliation and this has been told to me from prisoners multiple times. Things like organizing or participating in a work stoppage is usually on the set of rules that is seen as a violation and can lead to solitary confinement in many states. So unfortunately retaliation has basically been ongoing since 2016 for many prisoners. And it continues after this last prison strike and prisoners basically respond to organizing or any mention of strikes and this sort of thing with conduct reports, rule violations and solitary.

Adam: So obviously there’s tremendous risk here.

Raven Rakia: Yeah, definitely.

Adam: Something it’s hard to convey that, you know, the word courage is not one I like to use a lot, but I think it’s probably appropriate here.

Raven Rakia: Definitely.

Adam: What are the next sort of plans from the activists perspective? What do you think their next moves are in this space?

Raven Rakia: In terms of what comes next it’s very important for us to pay attention to retaliation, what we were just talking about, because this is usually when it happens, when the media goes away and the prison strike ends, this is usually when taliation gets worse. And so the Incarcerated Workers Organizing Committee’s phone zaps are really important. I know they’ve been organizing that for for many weeks and they will likely continue to. In terms of what’s next, that’s important to mention. Um, I know, the organizers in prison plan to release a statement in terms of what’s next. And I know that, like I said before, their right to vote campaign is something that they’re going to be focusing on, the tenth demand, which asked that prisoners get the right to vote in all states.

Adam: Well, I think on that note we’ll end it. This was very informative. Um, I know that this is something that is extremely hard to cover and rarely covered so I really appreciate the work you’ve done on it.

Raven Rakia: Thanks. Yeah and I appreciate you having me on and talking about this with me.

Adam: Thank you so much to our guest, Raven Rakia. Remember, you can follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main Facebook page. And as always, you can subscribe to us on iTunes. This has been The Appeal podcast. The show is produced by Florence Barrau-Adams. Production assistant Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much for joining us. We’ll see you next week.

The Appeal Podcast: How Activists Brought Down the Most Powerful Man in Chicago

With writer Kelly Hayes.

Photo illustration by Anagraph / Photo by Scott Olson/Getty Images

The Appeal Podcast: How Activists Brought Down the Most Powerful Man in Chicago

With writer Kelly Hayes.

Two pieces of news have rocked Chicago: the announcement by Mayor Rahm Emanuel that he will not seek a third term and the conviction of a white police officer, Jason Van Dyke, for the killing of a black teenager, Laquan McDonald. Both events were the result of years of activism, work that often goes unseen and unsung. This week’s guest, writer Kelly Hayes, talks about the lessons Chicago holds for activists throughout the country. Read her story here.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter


Adam Johnson: Hi. Welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can follow us @TheAppealPod on, you can follow us on Facebook at The Appeal magazine’s main website and of course you can always subscribe and rate us on iTunes. Recently, two big events happened in Chicago out of a culmination of years of activism. The announcement by Mayor Rahm Emanuel that he will not seek a third term and the conviction of a white police officer, Jason Van Dyke, for the killing of a black teenager, Laquan McDonald, in 2014. While these may seem random they very much aren’t. They are the result of a decade of activism and pressure by city organizers that often goes unseen and unnoticed. Today’s guest writer, Kelly Hayes, is going to talk about this tireless activism and what other cities across the country can learn from Chicago.

[Begin Clip]

Kelly Hayes: Emanuel orchestrated the whole thing to make the police look good. They were just super polite about how they arrested people in front of the cameras and of course not so polite behind the scenes, um, people were treated pretty horribly in jail. He crafted the narrative really well to look like he was different than the other mayors around the country. Chicago is a resistance town. We have a lot of people here who are rising up against his austerity measures and he was unable to simultaneously institute these harmful policies and play himself off as being respectful of protestors. To be real, he was just getting hit from every corner of the city continuously for years.

[End Clip]

Adam: Thank you so much for coming on the show.

Kelly Hayes: Oh thank you for having me.

Adam: So you wrote what I would sort of call the definitive autopsy on the perspective third term for Mayor Rahm Emanuel of Chicago, one that you argue and I think pretty clearly argue, is a product of activist through various different sectors of the activist community and in many ways is a concession and a win by them. And I want to talk about that. It’s a pretty big picture thing and I think that a lot of people who operate in this space of activism, especially police and prison abolition and reform, uh, can sometimes feel like the world’s bigger than them and that they don’t necessarily move the needle. And this is a case where I think there’s a, it’s a very clear sign that the tide has changed in Chicago. Can you talk a bit about, just to kind of lay the ground for our listeners, what a Mayor Rahm Emanuel represented to Chicago and to activists kind of nationally? What sort of political threat he represented and what forces had worked against him over the years? And then we can kind of drill down on the details from there.

Kelly Hayes: Sure. Thing. So I was among those challenging Rahm Emanuel really early on when he had a very different sort of public perception around his work here. When he first came to be mayor of Chicago, he was trying to put a very friendly face on his dealings with protestors. He was trying really hard to avoid any controversy in that area and I thought pretty artfully at the time. I was kind of resentful of it to be honest because I thought he was doing his politician piece really well in a way that was preventing the message from getting out for some of us. Uh, for example, with Occupy in 2011, over three hundred people were arrested for trying to hold space. Emanuel orchestrated the whole thing to make the police look good. They were just super polite about how they arrested people in front of the cameras and of course not so polite behind the scenes, um, people were treated pretty horribly in jail. He crafted the narrative really well to look like he was different than the other mayors around the country. He was trying to treat protestors with respect and dignity. And so he got out of the gate with that messaging pretty well. But it didn’t stand up to time because Chicago is a resistance town. We have a lot of people here who are rising up against his austerity measures and he was unable to simultaneously institute these harmful policies and play himself off as being respectful of protestors. To be real, he was just getting hit from every corner of the city continuously for years, which is why it’s really hard to narrow down this story. It’s, it’s, I don’t want to call it like death by a thousand cuts, but really it was a relentlessness to what went on and even the part of the story that I tried to tell him that piece, it’s still just a snapshot because there are only a few campaigns covered there and there were so many people working to stop state violence under Rahm Emanuel. I think the key thing to understand is that his veneer eroded and his own storytelling fell apart and the face of the superior storytelling of movements.

Adam: Yeah. I think, um, the, you know, the term “neoliberal” gets thrown around a lot, oftentimes incorrectly. And I think that for many, I think very correctly, Rahm Emanuel represented the kind of limits, if you will, of neoliberalism or the kind of most sinister manifestation, which is to say someone who sort of presents himself as being progressive or liberal but really operates under the interest of white sort of real estate in Wall Street interests in a way that was, like you said, it was effective for awhile then sort of wore off. Um, can we talk about specifically the sort of two major points of protest to start off with, which is Rahm Emanuel’s attacks on public education, the shutting down of schools and also his attacks on the mental health clinics. Uh, he oversaw the largest public school closure in US history. What kind of effect did this have to really kind of motivate and animate the forces against him? Those sort of two dual efforts that he did targeting specifically poor black neighborhoods?

Kelly Hayes: Well, I think that Rahm Emanuel didn’t realize the extent to which something as extreme as those school closures, like would have a polarizing effect in the city. I do not think that he understood in that causing that great an injury he was also like shuffling a great deal of energy and resentment towards the people who were already opposing him in an organized way. A lot of people who you know are really busy with their day to day lives and don’t necessarily have time for a lot of political engagement, it became a personal thing for them at that point. These people were engaged with trying to save their schools. Parents occupied schools to try to prevent their closures. I saw middle school children form blockades around school doors to try to prevent their supplies from being removed from the building on the last day of school. It was a heartbreaking time. Um, I went to jail behind one of those protests, a lot of people threw down in a spectacular manner and that had a culture building impact on this city. As much, as injurious as it was, it stoked 6:56 a lot of people in a really powerful way. Uh, with the mental health clinics I was deeply involved in the sort of closing months of that piece because of my background in direct action, I was asked to come in and help with some things and we actually occupied a clinic uh, briefly, it was overnight and eventually the police cut through the barricades and arrested everyone. But there were very dramatic acts of protest involved there carried out by people who were deeply affected who were telling their stories, who told Emanuel in front of the entire city that they would die without their clinics. Some of those people did. Helen Morley was one of those amazing and brave people and you know, people like her also affected the culture of this city and helped gel together communities that had a reason to move forward in concert in a powerful way. So every time he struck us with that violence and privatization and neoliberalism, he also connected people. And I think that that’s something that was beyond his understanding.

Adam: Yeah. Without getting too too far beyond the scope of this podcast, which of course does mainly legal system reform and abolition, but you can’t divorce the two, right? You can’t untether the austerity politics with the focus on policing. There are a number of statistics that show that people who are shot by police or have quote unquote “violent” encounters with police have mental health issues and there is a direct correlation between the shutting down of mental health facilities and the increase in violent confrontations. As someone who deals in the day to day, as someone who’s very close with the activist community, how does one work to sort of connect those threads right? We talk about Black Lives Matter, we talk about austerity and how do you, how do you sort of unite those into kind of one uniform ideology, um, specifically in the context of Chicago? For example, things like school “reform,” quote unquote, were hugely popular amongst liberals. They’re normally not anymore, but they were around 2009, 2010 because of things like Waiting for Superman and the kind of propaganda surrounding that. How does one get one to sort of see the connectivity of all these different things on a day to day basis for your kind of,  someone who sort of just, you know, it doesn’t necessarily follow it closely?

Kelly Hayes: Well, I would say that as a prison and police abolitionist, these things are inextricably connected to me every day and I think they’re also inextricably connected to a lot of the people in our communities every day. Prison abolition isn’t simply about the dismantling of buildings. It’s about the presence of something that is not there yet.

Adam: Right.

Kelly Hayes: So in my work and in the work of other folks who are acting against state violence in the city, there’s a lot of trying to model what we need and what’s being taken and why these conditions are the way they are such that, you know, crime is generated. We know that conditions foster crime and when people say they can’t imagine what a world without prisons looks like, I tell them to think of the more posh suburbs around Chicago because people whose needs are met, do you not have a lot of the issues we have here. So when we see schools, which are the heart of a community being ripped out of those communities, when you see people being deprived of mental healthcare and other services, there is an undeniable direct connection. And even the police and the prison administration will explain themselves, like, they wind up taking on, like, Cook County Jail is the largest mental health care provider in the state and I believe still the country. So these things cannot be separated and I think it takes a special sort of limited thinking to try to separate them.

Adam: Right. A lot of money goes into trying to separate them.

Kelly Hayes: Exactly.

Adam: I am reminded of The New York Times editorial when, uh, when, when Martin Luther King came out against the Vietnam War, they rushed to the presses saying ‘poo poo poo,’ you know, ‘talk about racial justice, but don’t talk about a US violence oversees.’ That he, you know, the sort of, the worst thing you can do is start connecting things like race and class and austerity and war, you know, you can keep them in their little separate compartments, but. So one thing I wanted to discuss when discussing Rahm Emanuel’s legacy and really what, what the city sort of faces moving forward is, was the movement, this is sort of really fascinating and a lot of people know about it as the movement for reparations around Jon Burge, who was the former police commander who ran a torture regime for about 16 years in Chicago from 1972 to 1988. This was something I think truly radical, truly subversive. Limited in many ways, but really set a standard for what activists could do. Can you talk about the movement, the Chicago Torture Justice movement in the early 2010s and sort of how that happened and how that happened under Rahm, um, in spite of him?

Kelly Hayes: Certainly. So in 2010, uh, some folks started having conversations, community members, lawyers who for quite a while had been working to free Burge’s victims, artists, organizers. They decided that they needed to create some manifestations, some artful manifestations to really force this into the public consciousness. Like people, you know, this had been a news story. People knew these things had happened, but it really wasn’t seizing upon people’s, like, you know, the city’s conscience in the way that it should. And it wasn’t pushing for, this knowledge wasn’t generating change that transformed conditions or really benefited those who had been most impacted. So it began with the exhibition. But from there, a lot of work began including the, the ordinance that was written, which as organizer Mariame Kaba said, it was truly a transformative document. Providing financial compensation is of course very important, but providing for the educational and medical needs of the torture survivors and their families, of creating a monument to torture survivors of police torture and really doing the work of making sure that these people’s needs were met and their stories were told in the Chicago Public School curriculum. I mean, to be quite honest, I didn’t believe it was possible. I thought it was more of a political statement than an actual policy pursuit. But in the closing six months or so of the, uh, of the campaign, I was approached by someone I really respect and told that we need to take some of the momentum of the moment and direct it towards this because this is doable. And that was organizer Mariame Kaba. And I agreed to do it because I tend to do what that brilliant woman asks me to do (chuckles) and sure enough, you know, with a relentless campaign in those closing months to drive it home of direct action and, you know, creative, artful protest, you know, the battle was won. But that also included a great gift we received, which was a mayoral runoff. And I think that this plays a lot into why Rahm Emanuel decided not to run again. Uh, that runoff was brutal. We hit him with everything we had. We went to his house, we set up a pop up art exhibit outside of his mayoral office. He couldn’t get away from us and there was really nothing he could do any about any of it because he was under such close media scrutiny that if he, if any of us were arrested or attacked by the police, it could have cost him the election. So he had to stay very hands off. And I think he just didn’t want to live through that again.

Adam: Um, let’s talk about negative campaigning for a second. I know that in certain leftist or anarchist or sort of general circles of organizations and people who are skeptical of electoral politics, a lot of people embrace negative campaigning, which is a sort of general philosophy, for our listeners, of engaging in electoral politics specifically to criticize or to bring down someone who is uniquely evil. They do this very successfully with Joseph Arpaio in Arizona. Um, I know that Chicago activists did this in a district attorney race recently and this was something I know a lot of people were gearing up for Rahm Emanuel if he was to run next year, he is not now. Um, can we talk about the efficacy and the logic behind negative campaigns and what your personal thoughts are on that as an approach to politics?

Kelly Hayes: I think negative campaigning is incredibly important in this political moment. Um, particularly given the disengagement in the electoral system that we see among marginalized groups. People are disillusioned. They’ve given up hope in investing in a candidate who claims to represent their interests. So personally, I’m not going to walk into those communities and tell them that some of these candidates who I don’t believe in personally are going to help us, are going to make things better, but what I can make a case for is that the people who’ve done us great harm need to be held accountable. There needs to be consequences. So in that way I think that we can get people to act against folks and set a standard and show people that there are consequences for wicked actions and maybe that’s a step towards something else and maybe it’s all some people are going to do, but states attorneys have a 95 percent retention rate and Anita Alvarez was bumped from office. So to me it sent a very powerful message that you don’t have to endorse a candidate to affect the course of electoral history. And I think any tool right now that we have to effect the course of electoral history is a crucial one.

Adam: Speaking of wins, I know that there is some internal debate as to the value of the verdict in the Van Dyke trial, which has recently concluded with a guilty verdict for second degree murder. That one’s ideologically complex. Can we talk about the view across the board about what these kinds of trials do? Are they considered wins? Are they considered kind of window dressing? And for those who don’t know, uh, in 2014 he was convicted of shooting a young African American man, Laquan McDonald sixteen times, and then was found guilty, which is, for anyone who follows these things, is an extreme rarity. But can you talk about how activists in Chicago are kind of absorbing this? I know it’s very recent, but can you talk about that and what the sort of long term outlook is in terms of police accountability and building systems of police accountability?

Kelly Hayes: That is indeed quite complicated. As you know, Chicago has a pretty large presence of abolitionist organizers. As major cities go, I’d say we’re kind of a hub for that. So some of us do not believe in the prison system, um, policing or the punishment system. So personally I wasn’t super engaged with calls for the conviction itself, but that said, this isn’t, this isn’t just any case and this isn’t just any climate and I definitely understand these political objectives and the statements that people were trying to make and also the comfort that people were trying to win for a community that has been hurting. I think we have to remember that movements aren’t just about actions and strategies they are also about community and culture building. And the community really wanted this and I hope that folk find some peace in it. My personal feeling on police trials is that they do not offer systemic change and I think the general risk is that you actually create a scenario where the system is validated. That it can work. I don’t think we’re seeing that in Chicago though, and I think part of that is the very careful organizing that was done by folks like Black Lives Matter Chicago. You may have seen that after the guilty verdict folks were still in the streets in great numbers, shutting things down and I was really grateful for that because, you know, they were delivering on their message. You know, Jason Van Dyke is not an aberration. He is an emblem. This conviction here I don’t think is going to turn into a sense of complacency.

Adam: Yeah, that’s interesting cause I know that a lot of people who are curious about abolitionism or the sort of general approach to it sometimes there’s these kind of, um, tension points where people aren’t quite sure what the right route is. And I think it’s good to sort of consistently engage in that. We have this a lot with some communities, and we talked about this briefly when we talked to Willy Anderson, we talked about sort of alternate justice systems are kind of accountability systems that exist outside of the state. And it can be hard because sometimes the state is the only option and so things get a little, a little dicey. So the term “Chicago” is a very racialized term. The word itself is shorthand and right-wing circles for kind of liberalism run amuck and African American violence, black on black crime right? It’s sort of used as a shorthand. The president uses it as shorthand to racialize Obama, has for years. This has kind of led to a sort of soft liberal racism around gun control, which is a topic we’ve discussed on the show before and it’s something that’s also not very clear cut and dry. Can we talk about the ways in which gun control in inner cities is not as clear cut as we kind of want it to be in terms of tacking on long prison sentences and who it really affects. We discussed this with Josie Duffy Rice in the first episode, which is um, you know, most gun control, most automatic weapon laws don’t really affect Cletus and in the hills of Virginia, they really manifest in the inner cities. Can we talk about how to balance the need for public safety with the use by, specifically Rahm Emanuel, this gun control issue to police black communities in Chicago?

Kelly Hayes: Well first I think it’s important to understand that Rahm Emanuel is Trumpian in so many ways and just labeled differently. He also blames the community for its own struggles. Every time it happens, you know, if he talks about personal responsibility and families. That’s functionally not that different from the president talking about people in the terms that he does, it may seem more respectable, but at the end of the day, it’s still abdicating responsibility, blaming people for their own suffering and you know sort of throwing your hands in the air when you actually have the power to effect the situation. Rahm Emanuel has overseen the conditions that fuel violence and he has consistently uplifted these notions of more mandatory minimums and we have consistently fought against those policies because there is no evidence that they work. There is no evidence that stiffer prison sentences or more arrests or fueling the prison industrial complex will make anything better in our community. But people like simple solutions to complex problems. So when people hear about large crime numbers and then hear about heavy prison sentences, people want it to be that simple. And Rahm Emanuel thrives on people’s desire for things to be that simple when nothing is. There’s also some amount of feigned ignorance behind all of this because if Rahm Emanuel were to acknowledge that he knew that conditions fuel violence, that people who are desperate do desperate things, that people who will live in a state of despair experience more crime, then he might be obligated to do something about that. So there’s this very thick air in the city government of people just sort of covering their eyes and ears pretending to not understand how anything works and then speaking to the public accordingly.

Adam: One of the things you mentioned early on was that Rahm Emanuel presented himself in a kind of slick fashion to kind of, uh, you know, obviously he came from the Obama administration, he was his chief of staff, um, as someone who could sort of be seen as an ally or, you know, he kept his policies kind of vague. My question is moving forward now ten years later, eight years later is with the election coming up and, you know, we don’t want to endorse or not endorse candidates on the show obviously, and I don’t think it’s good to do in general, but what, what should it be something that people are gonna look out for in terms of how to avoid that fate again?

Kelly Hayes: I am far less interested in what a politician promises or what they say then what they’ve done and I think it would be a catastrophic mistake for us to get hung up on rhetoric or talking points. I think we need to look at the history of the candidates and what they have done. Have they supported privatization? Have they supported tough on crime solutions? Like these are the things I’ll be looking for and I don’t think I’m going to find a candidate who I think ‘this is my person,’ who I think is worthy of my investment, but I will definitely be looking at people’s records and figuring out who I think would be the most catastrophic and avoiding them. Like in the grassroots as a street organizer, whoever wins is my next opponent. Like I’m going to go head to head with whoever wins and that’s the way this works and that’s the way politics works. So I’m looking for, you know, the weakest opponent in terms of who’s going to try to further privatize my city and further militarize the police.

Adam: Right. Um, obviously a lot of these lessons go beyond Chicago. The austerity politics are crippling communities throughout the country, privatization of education, the closing down of mental health facilities. Just as someone who’s been in the weeds in these scenarios for some time, what advice would you give activists or politically engaged people in these communities in terms of what lessons can they learn from Chicago?

Kelly Hayes: So lessons that folks can learn from Chicago in terms of some of these bigger fights I think one thing is that you can’t wait for the big nonprofits or, you know, you’re more money sort of activist institutions to do anything. What I’ve seen is that if an idea seems too aggressive, if it seems like too much, you’re not going to get the buy in from the people with the resources, but once you create momentum, everyone wants a piece of it. You start bringing people into a room who share your objectives, start creating educational opportunities, start educating ourselves. We all have important books we haven’t read yet and when we build power in the street at the grassroots level, we see things happen that folks who have a lot more structural, economic and social currency suddenly want to be a part of it. You know, Bye Anita campaign had a budget of less than a thousand dollars and they brought down a prosecutor against all odds. So I would tell people, you know, it’s okay to start small and think big. It’s okay for your idea to seem impossible and too radical for everyone else because nobody makes the impossible happen without just disregarding what people tell them and saying, you know, I’m not going to agree to this inevitability. I’m going to factor inevitability out of my political view and demand what’s just. I would say it’s okay for us to do that and I think it’s an important thing to know right now when people are being told ‘just vote Democrat because we’re up against these terrible Republicans’ and the truth is it’s a yes and both, you know, we can go after the Republicans and still demand from Democrats life giving policies that will help our peoples.

Adam: Yeah. I think on the issue of moral vision, it’s, it’s hard for a lot of people to sort of comprehend because we have been drilled into this kind of reductionist thinking about what the possibilities of political power are specifically this kind of preemptive defeatism with terms like “electibility” or “feasibility” or “realistic,” right? These are kind of ways you maintain the status quo and sort of stunt moral thinking and I always think of that line from, there’s a Neil LaBute play called The Shape of Things where she says, ‘everything is nothing until it’s something,’ which I think is clearly the case with what you talked about with how people say, well, that’s not gonna happen and the second these movements gain momentum and then suddenly everyone wants a piece, then it’s something, right? But of course, you know, things are not always something. So I think that’s a sort of good note to lead on and sort of maybe a broader moral question, but one I think that really needs tackling. Is there anything that you wanna like talk about or plug before we go?

Kelly Hayes: Basically I would just say that my collective, Lifted Voices, offers direct action trainings. There are a lot of groups around the country offering organizing trainings and I think getting trained up and getting education is one of the most important things people can do right now if they want to organize. So I would suggest people like, in your area look into who’s offering those kinds of trainings. If you can canvas, then you can talk in front of large groups of people. Like there are lots of important skills to pick up right now that we need to be building. Even if it’s an organization that you’re not super into that you don’t plan on working with, I go to those trainings too because I want to know what skill sets they have to bring to what I can do, so the thought I’d like to leave with is just education, pursue as much of it as you can.

Adam: Awesome.

Kelly Hayes: I do tweet about a lot of these kinds of things, so if people want to follow me on Twitter it’s @MsKellyMHayes. I do tweet out some of the opportunities that people have to find those educational events.

Adam: Thank you so much. This was extremely informative.

Kelly Hayes: Oh, thank you so much for having me.

Adam: Thanks to our guest Kelly Hayes. This has been The Appeal podcast. Remember, you can follow us on Twitter @TheAppealPod or subscribe to us on iTunes and follow us on Facebook at The Appeal magazine’s main Facebook page. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.

Common Bails Out a Stranger

What it’s like to take part in New York City’s Mass Bailout.


Common Bails Out a Stranger

What it’s like to take part in New York City’s Mass Bailout.

This commentary also appears in The Daily Appeal, our newsletter. Subscribe here.

It was nearly 1 p.m. last Wednesday, and Common, the 46-year-old rapper, actor, and criminal justice reform advocate, stood on Atlantic Avenue in downtown Brooklyn, smiling nervously. He wore subtly tapered black pants, gray laceless sneakers, and a fashionable auburn T-shirt. Kerry Kennedy, the president of the nonprofit group Robert F. Kennedy Human Rights, had just handed him a less fashionable T-shirt—navy blue, with the words “MASS BAIL OUT” written across the front. Common tried to express enthusiasm for the shirt, but he clearly preferred his chosen color scheme. “Look at all these stylish people,” he said, gesturing to the group of activists accompanying him, some of whom seemed more stylish than others. “And I’m gonna have the blue with black, and the gray?” But Kennedy didn’t let the matter drop. It was, after all, a photo op. There was a film crew trailing him.

Common was on his way to the Brooklyn Detention Complex to post bail for a woman he didn’t know. He was one of hundreds of volunteers participating in an action that RFK Human Rights calls Mass Bail Out. On any given day, over 7,000 people are jailed at Rikers Island who have not been convicted of anything; they have been charged with a crime but are unable to afford bail. And 87 percent of them are Black or Latinx. The goal of the Mass Bail Out was to free about 350 of the people in this predicament—every woman, 16-year-old, and 17-year-old, regardless of the charges they face—to await trial from home. The point is to show that New York City does not need Rikers and does not need cash bail—the city would be just as safe, and these women and young people can be spared the trauma of jail, not to mention the educational, employment, and familial consequences of being taken away from their lives.

The rapper, actor, and criminal justice reform advocate Common was one of the hundreds of volunteers participating last week in an action that the nonprofit group Robert F. Kennedy Human Rights called Mass Bail Out.
Sarah Lustbader

“The only reason this woman is in a cage is that she can’t afford bail,” Wade McMullen, the managing attorney of RFK Human Rights, told Common. “And as soon as she’s in that cage, she’s at great risk for sexual assault, discrimination, and abuse. She’ll be separated from her family and taken from her job.” People who were locked up, he went on, were more likely to be coerced into pleading guilty, even for crimes they hadn’t committed. “The system is set up to help prosecutors,” he said.

Common listened with his arms folded, at one point stroking his close-cropped beard. Eventually, he gave in, agreeing to change T-shirts. “I’m gonna give up fashion for freedom!” he declared. He pulled off his shirt on Atlantic Avenue, quickly replacing it with the RFK shirt. The new color scheme looked fine.

Judges often set high bail in order to detain a defendant. This is a perversion of the purpose of bail, which is to allow people charged with a crime to remain free while they fight their cases, with an incentive to return. Advocates argue that bail should provide a meaningful incentive to return, not a jail sentence. Many urge judges to tailor bail to a person’s ability to pay: $20 could be just as meaningful to one person as $20,000 is to another.

Instead of waiting for judges to change their behavior, groups like RFK Human Rights have set out to change the system themselves. Organizers have gathered money for community bail funds across the country to help people who cannot afford their freedom. RFK Human Rights’s bail action has put the city’s district attorneys “on edge,” writes Professor Jocelyn Simonson. Some have warned that freeing these women and teenagers will jeopardize public safety. “The RFK Jr. [sic] Human Rights ‘mass bailout’ project in New York may sound compassionate, but it’s actually a dangerous and irresponsible intrusion into our criminal-justice system,” Queens District Attorney Richard Brown wrote in the New York Post.

According to Simonson, this reaction “exposes how ‘public safety’ has come to embody a very harmful and narrow definition of which ‘public’ matters.” Evidence indicates that the risk posed by people awaiting trial is exceptionally low, while the risk of violence to people detained at Rikers Island, especially women and young people, is quite high.  “The Mass Bail Out,” Simonson argues, “asks us all to reconsider what it means to keep the public safe.”

On the street near the jail, Kerry Kennedy addressed the public-safety question. “If we were truly afraid, then Harvey Weinstein wouldn’t be walking free.” She also noted that, as attorney general, her father, Robert Kennedy, addressed cash bail in the federal system. “Here we are now, having failed to address it at the local level,” she said.

In 2017, Kennedy’s group helped bail out Pedro Hernandez, a Bronx teenager who spent a year at Rikers for a 2015 shooting that he did not commit. Yesterday, the Bronx DA finally dropped the last remaining charges against him. Hernandez, like Kalief Browder, has been called a “poster child” for bail reform.

Common, Kennedy, and the film crew began walking toward the jail. In his new outfit, Common attracted even more attention than he did before. As they walked by, two white women sporting librarian haircuts stopped and stared at his shirt. “That’s a rapper,” one explained to the other. “He’s going to bail someone out.” Three teenagers in gym shorts tried to get Common’s attention—“I rap too! Check out my mixtape!” one shouted—but Common didn’t seem to hear them. I told them that Common was about to bail someone out of jail, and their eyes grew wide. “Oh, word?” said one. “Tell him to free my uncle!”

McMullen prepared Common to go inside to the room where bail gets paid. “It’s not the most efficient system,” he said. Once Common gave over the information—the woman’s name, her ID number, his name—the person at the window would fax it to Rikers; then we would wait for a fax back, which could take an hour or two. McMullen assured him that “we’ve arranged to go to a nice window,” where the officer would expedite the process as much as possible. Common was handed a file containing information about the woman he would be bailing out, and he nodded solemnly as he turned the pages.

Sign here, under “advocate,” McMullen said, helping him fill out the surety form. “You’re the advocate. That’s your relationship.”

“Now I’m an artist, activist, and advocate!” Common said.

They walked into the small bail room, and the lofty rhetoric gave way to bureaucracy. Common approached the bail window, one of two. “Hey, how you doing today?” he said with a smile. “I’m here to bail someone out.” The officer behind the window seemed indifferent—not hostile, not friendly, barely making eye contact. “ID?” she said.  Common turned to McMullen: “This is the nice window?” Common handed over the paperwork, then started to wait. He asked if the officer could give him a courtesy call when the fax from Rikers came in, like a restaurant texting a patron when a table becomes available. No luck. He would have to wait in the bail room like everyone else.

At the other window, a woman talked to the officer in loud and frustrated tones. Her bailout attempt did not seem to be going smoothly. Behind us, a man struggled to use a JPay machine.

After about 20 minutes, an officer walked in and told the film crew to stop recording. “Look, Common, we are all very happy for you,” she said, in a tone that seemed to belie her words. “We get it. But you guys just can’t record in here.” The cameras were turned off. Another officer asked for Common’s autograph; a third officer asked Common to pose for a picture.

The bail captain returned with some good news: She’d called the women’s wing of Rikers and they were expediting the paperwork. “That’s where I used to work,” she explained. Even with this VIP treatment, Common would end up waiting nearly an hour. While we waited, he told me how, growing up on the South Side of Chicago, “it became normal to have friends and family members incarcerated. I would visit my uncle in jail. I accepted it as normal.” Then he met Michelle Alexander, the scholar and author of best-selling book The New Jim Crow. (Being Common means having experiences that are not at all common.) Alexander helped him connect the dots between slavery and the prison system, and he realized that mass incarceration was neither “normal” nor inevitable. “I almost felt like I’d been duped,” he said.

When the paperwork was ready, Common stepped up to the window. The officer showed him a photo of the woman, confirming that she was the person he wanted released, and he nodded. “Sign here and press hard,” the officer instructed, handing him some paper with carbon copies underneath. With three swoops of his pen, Common was done. He and the officer wished each other a good day, and he walked back onto the street.

As he headed off to his next engagement, he seemed invigorated by the experience. He even came around on the T-shirt, saying he wouldn’t change back. “I’m gonna rock this today and let people know what I’m about.”

The Appeal Podcast: The Cruelty of Felony Murder Laws

With Appeal contributor Katie Rose Quandt.

Illustration by Simone Noronha

The Appeal Podcast: The Cruelty of Felony Murder Laws

With Appeal contributor Katie Rose Quandt.

The United States is alone in the world in pursuing two modes of prosecution: giving life sentences to children under 18, and giving life sentences for murder to people who haven’t murdered anyone. Even if you didn’t pull the trigger, or even have prior knowledge of a crime, you can be treated as if you are a murderer if someone is killed in the course of committing a felony like robbery or carjacking to which you are an accomplice. Appeal contributor Katie Rose Quandt joins us to discusses why felony murder laws are unjust and how activists are pushing back against this uniquely American brand of cruel and unusual punishment.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi, welcome to The Appeal podcast. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, Facebook at The Appeal magazine’s main Facebook page and please subscribe to us on iTunes. And if you haven’t and you’d like to, please feel free to review us and rate us. We always appreciate that. The United States is alone in the world in pursuing two modes of prosecution. Sentencing children under the age of 18 to life sentences and giving life sentences for murder to people who never murdered anyone. Even if one doesn’t pull the trigger or pull any trigger or have any prior knowledge of an intent to pull a trigger, they can be treated as if they did in most states in the US. Appeal contributor Katie Rose Quandt will join us today to discuss the problems with felony murder laws and how activists are pushing back against this uniquely American mode of cruel and unusual punishment.

[Begin Clip]

Katie Rose Quandt: There’s a lot of different ways someone can be charged with felony murder. For example, someone who was carrying out an armed robbery and the cashier had a heart attack and died. That robber could be charged with felony murder based on the underlying felony of armed robbery. So it’s basically just this one time when what you’re doing at the time when someone dies can just escalate everything up to first degree murder and so a lot of legal scholars are concerned because you don’t need to have intended it.

[End Clip]

Adam: Hi Katie, thank you so much for coming on.

Katie Rose Quandt: Hi. Thanks for having me.

Adam: So let’s start by setting the table here for our listeners about your work in this space. Now there’s two kinds of different threads which are uniquely American and I think to some extent uniquely punitive that you cover, which is something we’ve covered once in the show, which is the idea of life sentences for juveniles. Life sentences for people who are as young as 14, 15 who commit crimes, which is unique to the United States and it was until some court rulings over the last couple of years that have pushed back on that, which we can get into later. And the second mode is something we haven’t discussed at all that I actually found your reporting quite fascinating. The amount of cases this happens where someone is convicted of felony murder and sentenced to life in prison without the possibility of parole for being an accessory to a crime that later involves a murder. Can you talk about these two features of American justice system and how common they are in sort of general law or how uncommon they are?

Katie Rose Quandt: Yeah, sure. I think you’re totally right that this story that I wrote for The Appeal kind of centers on the perfect storm of like these two features of our criminal justice system, which as you said, are life sentences for children and also felony murder doctrines. And um, so for some time the United States, as you said, has been the only country that sentences children to life without parole and life without parole is like as extreme as it sounds. If you are sentenced to life without parole, you will die in prison. You’ll never have a chance at freedom. And so it was pretty common in the United States. A few years ago there were about 2,300 people serving life without parole for crimes that they were convicted of before the age of 18. And so as you were saying, the US Supreme Court has pushed back on this a bit with pretty major groundbreaking rulings in 2012 and 2016, which basically said (a) you can’t sentence children to life without parole as a mandatory sentence, you have to at least look at the individual case before giving such an extreme sentence to a child and (b) those 2,300 people who are already serving that sentence deserve a chance at a second look and a possibility at freedom. And so, um, there’s definitely some movement in that area, but the story kind of focuses on someone who fits into that group and his sentence is no longer constitutional, but he certainly is still incarcerated and they are still a lot of people waiting for their chance at a resentencing throughout the country.

Adam: So you do something in your article, which is always good, which is you put a human face to a broader problem. In this case, that face is that of then 15 year old Curtis Brooks, who is of course now much older, the case is about 22, 23 years old. Can you talk about his case and specifically what the jury was permitted to know and not allowed to know and how these sort of automatic sentencings really strip it of any kind of human touch at all? It’s sort of, the system is rigged to give hyper punitive sentences.

Katie Rose Quandt: Yeah, so my story is centered on Curtis Brooks, who was 15. He was abandoned. He was homeless and he was living in Colorado and he ran into some kids he sort of knew what the arcade one day and these kids were planning to do an armed robbery and steal a car and he agreed to go along with them. He took one of their guns, but their plan was never to kill anyone. But one of the teenagers, they were all teenagers, one of the boys shot the guy whose car they were stealing and killed him, and as a result, Curtis was charged with first degree murder. And the way that this works is through this rule called felony murder, which states that if you are committing a felony and someone dies, you can be charged with first degree murder regardless of whether you intended it or even were the one to carry out the murder.

Adam: Just to clarify, this is not common in other countries.

Katie Rose Quandt: No, it’s definitely not common in other countries and it’s the only time in the US criminal justice system where intent doesn’t matter. Like normally if you cause a death and the jury doesn’t believe that you intended to kill, then you’re not going to be charged with first degree murder. You’re going to be charged with manslaughter or some lesser charge, but felony murder is just sort of the exception and it allows people like Curtis Brooks to be treated as if they committed murder when really he was committing armed robbery in a group.

Adam: You quote one criminal justice scholar from University of Buffalo who says, quote, “The felony murder doctrine ‘is one of the most widely criticized features of American criminal law. Some have concluded that felony murder rules impose unconstitutionally cruel and unusual punishment by ascribing guilt without fault, or that they violate constitutional due process by presuming malice without proof.’” Can you expand on that a little bit for some of them are more laylisteners like myself?

Katie Rose Quandt: Um, yeah, well just basically, it’s the only time that someone can be charged with murder without intending to commit murder. So it’s not always an accomplice liability situation. There’s a lot of different ways someone can be charged with felony murder. For example, someone who was carrying out an armed robbery and the cashier had a heart attack and died. That robber could be charged with felony murder based on the underlying felony of armed robbery.

Adam: Jesus.

Katie Rose Quandt: So it’s basically just this one time, yeah, when what you’re doing at the time when someone dies can just escalate everything up to first degree murder. And so a lot of legal scholars are concerned because you don’t need to have intended it. And also it really affects a lot of teenagers because they’re more likely to commit crimes in groups. They’re more likely to be impulsive and maybe one of the group, will pull the trigger and it just kind of traps a lot of teenagers who were committing a crime, but certainly not a first degree murder, into getting these long life sentences.

Adam: So let’s go back to Curtis Brooks. He obviously, you tell a really interesting story about him, I won’t go into total detail, but he basically, while in prison was the model prisoner. Got his GED, he educated himself, coached basketball. One of the jurors on the trial, which you write, they didn’t realize lots of mitigating factors, including the fact that he had no prior criminal record, that he was, the whole thing was not even his idea. These were things that the defense wasn’t even allowed to present, which is extremely odd. And so one of the jurors took up his case and they, they sort of got close. Um, and there has been an effort to sort of overrule this, especially after the Supreme Court rulings of 2012 and 2016 on the matter respectively. Can we talk about what the efforts were to get him out and is there any appeal left or is he just on the mercy of the Governor of Colorado?

Katie Rose Quandt: Yeah, there’s a lot going on legally in his case. Um, but yeah, he totally was just, he kind of like buckled down in prison and got degrees and took classes and learned languages. And as you said, this juror who kind of could never get him out of his mind, went and visited him and was just blown away by the person that Curtis Brooks has become. And I talked to that juror and he, like you said, was horrified at the time when he and the other jurors found out that their guilty verdict meant life without parole for Curtis. They had no idea that that was the only mandatory sentence for him. But Curtis Brooks will probably not die in prison because of the Supreme Court rulings that said that life without parole sentence is unconstitutional. So over the last several years, his case has kind of changed repeatedly. So in 2016, he found out that he would potentially have a chance at resentencing as does everyone in his position across the country, but then in his particular case, Colorado decided to give all of these people serving life without parole for crimes they committed as juveniles shorter sentences, and they decided to give those who had committed felony murder, like extra shorter sentences. And when he tried to apply for that sentence, the DA argued against it and it ended up going to the State Supreme Court. So just recently, the State Supreme Court, I don’t know if this is, it’s pretty complicated, but the State Supreme Court decided that his case can move forward so he potentially could be released according to that shorter sentence. And then at the same time he has applied for clemency from the Governor and so he kind of has these two potential avenues that could lead to his release. But in the meantime it’s just still a waiting game for him as it has been for quite some time.

Adam: I rarely get shocked in this business, but I was shocked to read one paragraph in particular, and I’m going to read it word for word and I want to make sure that I’m not reading this wrong, and you told me if I am. “And this April in Alabama, Lakeith Smith was sentenced to 65 years in prison, including 30 for felony murder. In 2015, the then-15-year-old burglarized two homes with several friends. When the police approached, one of the teenagers fired, and was shot and killed by an officer. Smith was convicted of the felony murder of his friend, based on the felony burglary he was committing when his friend was shot.” Did I read that right? Did the cops shoot the kid after he was fired upon and then he was therefore?

Katie Rose Quandt:  Yes, yes.

Adam: Wow. That is mind boggling. I mean, that’s next level. So there doesn’t even have to be an antecedent felony murder. Obviously the cop wasn’t prosecuted for felony murder.

Katie Rose Quandt: Right. Well, so, Smith, the person who got convicted of felony murder, had the underlying felony of the burglaries he was committing with his friends. And that drew the attention of police and they got into a shootout and when the police officer shot his friend that escalated Smith’s burglary charge up to felony murder, even though he didn’t even have a gun.

Adam: Wow.

Katie Rose Quandt: Yeah.

Adam: That is. Wow. That is. That is. I think that may be the most American paragraph I ever read.

Katie Rose Quandt: There’s something else that’s going on there too, which is that he was originally offered, Smith was offered at 25 year plea deal, but he decided to exercise his right to trial and when he went to trial, suddenly all these charges escalated to a total of 65 years. So he was basically punished for going to trial.

Adam: Oh yeah. Getting punished for going to trial is its own episode and one I look forward to doing at some point, because we have covered the juvenile life sentences on the show before. The fact that juvenile sentences, life sentences are uniquely or there’s a, I think the numbers you had were roughly 40 percent of them tethered to this concept of felony murder by proxy because juveniles are more likely to commit crimes in groups and act impulsively is something that is a confounding factor here. I want to talk about the prosecutor who sort of had to have to justify this statute or justify the, the sort of principle behind the statute. And so their argument is that it, it disincentivizes felony crimes. Now you note that one study in 2002 found, they did an analysis of state level crime rates from 1970 to 1998 and concluded that the felony murder rule does not substantively improve crime rates. “If the main reason a state retains the rule is to reduce crime, it should consider the rule.” Unquote. So the study shows that this doesn’t even do that.

Katie Rose Quandt: Right. Yeah. It’s kind of like very hard to find good data on felony murder, including how frequently it’s charged because it’s just recorded as murder. Um, but also the effect that it has. And so this one study had attempted to do that and it compared states with felony murder rules and without felony murder rules because there are a handful of states that have gotten rid of these rules and it basically all the differences in crime were insignificant. It was like slightly more burglary, slightly less robberies, you know, it didn’t really, they concluded that it didn’t deter crime.

Adam: So let’s put this in moral context because I think one of the questions that comes up with a lot of listeners when they hear things that seem on their face egregious is that, what is the sort of logic that prosecutors have in pursuing these? Is there just a sort of institutional ethos to throw the book at everyone with maximum charges? Is it an issue of having the sort of cliches about having more arrows in your quiver to kind of pressure them to lean on other things? You know, if you’ve gotten a 15 year old with seven years in prison and perhaps you have, you can scare them into, you know, flipping on someone or something. Is it, is it about having a sort of excess or gratuitous amount of prosecutorial weapons?

Katie Rose Quandt: I mean, that’s, that’s how it seems to me when I was reporting this story that, you know, Curtis Brooks could have been charged as a juvenile for armed robbery or he could have been charged as an adult for murder and you can see which one he got and it just seems like there’s way too much discretion there in what the prosecutors could bring and the results that that will have on someone’s life.

Adam: Um, so what are the efforts now? So obviously there are people trying to highlight the felony murder. This has been something that activists have been working on for years. What groups and what organizations, you note Amnesty International, Human Rights Watch, what, what groups are working to draw attention to this and how much traction if they had on a state level? I mean obviously there isn’t, you know, state level is really where the, where the rubber hits the road in terms of criminal justice, right? Is there any kind of organized campaign to push back against this that you can speak to?

Katie Rose Quandt: Yes, there’s different state level movements to try to reform felony murder rules and the one that’s getting the most attention now because it’s really been making some exciting progress is this group called Restore Justice, in California. And they’re an advocacy group that’s pushed really hard to try to get a bill passed this session that would end the accomplice liability aspect of felony murder in the State of California. And if that bill passes, it will stop future instances of accomplice liability, felony murder, and it will also give the people who are currently in prison for it, a chance at resentencing. Um, so that’s like a pretty major group that’s pushing for it. And I think there’s also a bill in Pennsylvania, but it’s, as you said, it’s very state by state.

Adam: I’m always sort of curious what the mechanisms are to push back against these forces because there does seem to be a kind of mindless punitive attitude, especially in states like where I’m from in Texas, where it’s sort of, you know, throw them all in a cage and forget about them later.

Katie Rose Quandt: Yeah, I mean, I don’t want to overlook a group that’s been doing work on this. I know that there are certainly have been ACLU reports that sort of thing about felony murder, but it seems to mostly be a local fight.

Adam: Well, great. This was extremely informative. Katie, thank you so much for coming on. I really appreciate it.

Katie Rose Quandt: Yeah, thanks so much.

Adam: Thank you to our guest, Katie Rose Quandt, a contributor to The Appeal and writer. This has been The Appeal podcast. Remember, you can check us out on Twitter @TheAppealPod, you can check out The Appeal magazine’s main Facebook page, which you really should do because they have a ton of great content on there. The show was produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I am your host Adam Johnson. Thank you so much. We’ll see you next week.

The Appeal Podcast: Why Police Accountability is as Elusive as Ever

With Appeal staff reporter George Joseph.

Maddie McGarvey/Getty Images

The Appeal Podcast: Why Police Accountability is as Elusive as Ever

With Appeal staff reporter George Joseph.

“Police accountability” is a term that gets thrown around a lot in conversations about criminal justice reform. But how do we make sure police officers who break laws or department rules are held to account? The reality––even four years after Ferguson––is that little progress has been made in creating structures that discipline police officers for bad behavior. Our guest, Appeal reporter George Joseph, has been doing deep dives into police discipline in cities across America. The findings? A system that still routinely protects its worst offenders.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi, welcome to The Appeal Podcast. I’m your host Adam Johnson. This is a podcast on criminal justice, abolition and everything in between. Remember, you can follow us on social media, Twitter @TheAppealPod,or go to Facebook and see The Appeal magazine’s general Facebook, where our show posts there, and of course you can always subscribe to us on iTunes. The term police accountability is one that gets thrown around a lot in criminal justice reform circles. How do we make sure that police officers who break department rules and even the law are held accountable? The reality, even four years after Ferguson, is that little to no progress has been made in creating structures that discipline police officers for bad behavior either on a federal or local level. Our guest, The Appeal’s, George Joseph, has been doing deep dives into police discipline in a number of cities for months. The findings, the system that still routinely protects its worst offenders.

[Begin Clip]

George Joseph: Some of these police leaders had over ten plus complaints like numerous taser incidents, mace incidents, that kind of thing. So even at the leadership level, people are learning that doing that kind of aggressive activity doesn’t actually hurt you, in fact either it won’t count against or it may have and help you. If that’s the way they came up and came to be the leaders of the department, why would they suddenly turn around and say, I’m going to discipline you for doing exactly what I did when I was in your position?

[End Clip]

Adam: Hi George. Welcome to The Appeal.

George Joseph: Hey, thanks for having me back.

Adam: So, um, you have been on this beat for about a year, probably longer and you recently wrote an article in the Appeal entitled, “Just 6% of Columbus Police Officers Account for Half of All Force Reports.” Force reports, for those who don’t know, is a sort of complaint about use of force. This is of course not just an issue with the Columbus Police Department. This is a broader national issue. Can you start us off by explaining why so few police officers account for so many of the complaints and to what extent do most police departments, and if you want to zoom in on Columbus, go ahead, why so many police departments have such a totally limp and useless complaint process?

George Joseph: So what we saw in Columbus, as you mentioned, was that there are 6 percent of officers who account for half of all the use of force investigations, so that both includes citizens complaining about force incidents or alleged forced incidents, as well as and this is the majority of the data set, um, officers self reporting their own use of force incidents. So if I tase someone, as an officer, I report it to the chain of command, they investigate me, find that I was perfectly justified and then uh, we go forward. So in Columbus, despite this very small group of people who are accounting for so many complaints, we found that in 99 percent of cases the officers were justified by the department. Their actions rather within policy or the citizen complaint was deemed to be unsustained. And the legal questions about why police departments so often find police not to have done anything wrong, we can see from grand juries all across the country is that even when an officer shoots someone, as long as they say they felt endangered or threatened, pretty much anything can be justified. But what we can say very clearly is that there are concrete reasons for why this concentrated group of people is generating all these complaints and it actually gets, it’s not about like a bunch of psychopaths who are part of one unit cause all the problems. It’s a structural material problem. It’s that certain units and police departments are being encouraged to do the most aggressive types of police work. Jumping out of cars in plain clothes, guns blazing, trying to get guns, trying to grab drugs, stopping people aggressively in poor neighborhoods where if you see a guy with a gun running at you, you may also pull out a gun, and so this obviously leads to escalated situations which result in shootings, beatings, and killings. And in Columbus, what we noticed was in some of the cases, some of the officers with thirty, forty different complaints had been officers who had experience in what is known there as a summer strikeforce, which is one of these plain clothes surveillance units that goes to poor mostly black neighborhoods, jumps out at people and tries to get guns. And as you mentioned across the country, police departments have similar units. They’re considered more prestigious than regular kind of patrol work. And as a result, people aren’t being sanctioned for this activity because it’s what they’re supposed to be doing and they’re rewarded for it.

Adam: Let’s cite one case that you reported on in general. It happened about two years ago, a Columbus police officer, um, there was someone who called in an armed robbery. They said that they, that they, um, were robbed for about $10 and told the dispatcher that they didn’t want to really mess with it. The cops responded to the complaint. They spotted three teenagers, um, two of whom escaped. And one was a 13 year old named Tyre King was shot while fleeing by an officer named Bryan Mason, who himself was white. The quote unquote “suspects” were African American. Now, not surprisingly, it was revealed that Mason had in his nine year career, 47 reports involving force, uh, and  four of those reports stem from previous shootings, which he had shot at a suspect, two of them resulted in death. That’s a lot of complaints. And now so what I want to do is I want to try to tease out the difference between someone who’s just involved in a lot of high risk episodes with those who are, who are, you know, maybe not violent sociopaths or psychopaths as you put it, but people who are maybe have an itchy trigger finger or maybe people who are more susceptible to escalation we’ll say, we’ll put it, we’ll put it in those terms, beyond the kind of material reality of them just being involved in more aggressive policing, because obviously this is also a policy issue. It’s, it isn’t just about the moral failing of a police officer. What are the mechanisms though for let’s say the five, ten percent who do have an itchy trigger finger, who are kind of, who view themselves as being John Wayne or is there any kind of mechanism for any meaningful oversight and I know that different cities are different or different cities have way better oversight. But specifically in Columbus, I mean these numbers are basically just rubber stamp. Police department, of course, investigates itself, finds out nothing happened. If Florence, our producer, did something wrong and there was not and The Appeal Podcast investigated itself, I would unlikely find her guilty because we work together. We’re all friends. Specifically in Columbus, can you talk about what those mechanisms are, what the oversight mechanisms are, if they even exist?

George Joseph: Well, it’s like many police departments across the country. The investigations will be led by an internal affairs bureau which has the power over, you know, who they choose to interview, how they choose to judge certain pieces of evidence and like you said, if the system justifies officers 99 percent of the time, literally, I’m not being hypothetical, then clearly it’s not even worth filing a complaint and officers within the department who we spoke to said citizens don’t lie 99 percent of the time. Why would the officer be punished when you’re telling them this is what good police work is? Which gets to kind of the problem of what police leaderships ask officers to do and there’s this strange kind of discourse emerging now where the police chiefs will kind of be seen as the more moderate, more reasonable, more rational types compared to the grunts at the bottom. The chiefs are, they wear lots of brass and they’ll be on panels at Google and all that kind of stuff, but they are the ones making the rules about what cops are supposed to do to get promoted and what happens when a cop does something that is violent. And so what was interesting to us was looking at some of the top commanders in the department, including one of the deputy ops, like one of the top among the top five, and then some of the district sub commanders. And what we found was even at that level, uh, some of these police leaders had over ten plus complaints, like numerous taser incidents, mace incidents, that kind of thing. So even at the leadership level, people are learning that doing that kind of aggressive activity doesn’t actually hurt you in fact either it won’t count against you or it may even help you, if that’s the way they came up and came to be the leaders of the department, why would they suddenly turn around and say, uh, I’m going to discipline you for doing exactly what I did when I was in your position?

Adam: Right. And this obviously gets to the broader issue amongst reformists, which is to what extent can you even really reform police from an activist standpoint, from people you’ve talked to in the community, people who are trying to work on having more accountability, a conversation that’s obviously been heightened, uh, very much since, since Ferguson. What are the actual good reform tools that police departments can use, if any at all? And then as a followup to that, what are the sort of bad reforms, like what are the reforms you don’t think do a lot of good, what are kind of just window dressing?

George Joseph: There is this problem, uh, with the public wanting the police to not do the bad violent things that we see on TV and that college protests, but then at the same time wanting them to quote unquote “get guns off the streets,” clear the corners so that old ladies can walk out of their houses. Like that’s the kind of thing you’ll hear if you go to a city council meeting or a public community affairs meeting, that’s what some people in the community are asking for. I’m not saying that’s all of them, but certainly a significant amount of them. And so what do you do with that situation? It’s difficult because the very thing you’re asking them to do, grabbing guns from people as police the only way to do that is through these really aggressive methods. I’m not an expert in community models for addressing gun violence. I know a lot of people do work on that area and do delve into that area, but there are probably alternatives to discouraging young people from carrying and using guns beyond jumping out of cars and grabbing them and taking the gun and thinking that that will change their trajectory in terms of gun use down the line. Um, and I don’t think police pulling a couple hundred guns off the street every year has ever really made a big dent in the gun supply market.

Adam: Like you said, this is the sort of, for lack of a better word, the kind of special forces of the police. Right? And to have a bunch of, you know, juiced up white guys with wrap around Oakleys and monster tattoos, jumping out of cars, probably not a good formula for reducing violence and preventing African Americans from being shot by the police. Right?

George Joseph: Well, let me point to the example of Saheed Vassel in that regard, um, who was recently shot and killed in New York. He had numerous, hundreds of interactions with police in his neighborhood before. These aren’t all quote unquote “community policing” interactions. These were a lot of tickets and citations for basically being a person out on the street with mental issues, but they knew who he was and didn’t necessarily think that he was going to go kill someone because everyone on the block knew him. The police knew him in his precinct. The people who ended up shooting him were these plain clothes officers who responded to a call, which is unusual because they’re not generally supposed to do that and came to the scene immediately, didn’t know who he was, saw what they thought was a gun and started shooting. So could that have been avoided if a patrol officer who knew him had responded first? Uh, it’s impossible to say, but it certainly seems much more likely.

Adam: Right. So there’s this kind of strikeforce mentality necessarily leads to more violent encounters.

George Joseph: I mean, the data shows that certainly.

Adam: You reported earlier this year in May about the wildly disproportionate amount of plain clothes police officers involved in violent altercations and fatal shootings. You found out that in the NYPD plain clothes officers make up 6 percent of the force, but account for 31 percent of fatal shooting incidents between the years 2000 and 2017. This is something we see elsewhere as well. Can you talk to us about why plain clothes officers are more likely to be violent? Is it similar to this sort of task force mentality you talked about earlier?

George Joseph: Yeah, it’s quite similar and it’s very striking that, I mean there are different examples. In New York, there’s a lot more fatal incidents. It’s a much bigger city. But just speaking generally about police violence, you see in the same time period roughly 2000 to 2017, in Columbus, 6 percent accounting for half of force incidents. In New York, 6 percent accounting or roughly 6 percent accounting for a third of incidents involving police fatal police shootings. And so like you said, yes, there are similar dynamics at play. In the NYPD article you’re referring to we looked at the NYPD’s plain clothes unit, which has been around for awhile and has always caused controversy because they’ve been behind some of the major police killings in recent New York history and not too different from the summer strike task force in Columbus, they drive around in cars, they don’t focus necessarily on one patrol beat, they don’t necessarily respond to calls generally. They’re out there speeding, going as fast as possible to try jump out at people who may have a gun and oftentimes there’s racial profiling involved in that. People who aren’t dressed in a very fancy way on the street corner, they go out and grab them and do shake downs and you know if you do that, maybe one out of ten times you’ll find a gun and you will be, or I don’t, maybe even less than that frankly, but you’ll get that short term gain of the gun that you found that you now bring to your supervisor and they take a photo and post it on Twitter.

Adam: They love to do that. They love to do that.

George Joseph: Right. They’ll layout the two pistols on the table.

Adam: They got roasted once. There was a police department who had a gun that it appeared like it was from the 1920s.

George Joseph: (Laughing) I think I saw that yeah.

Adam: Do you remember that? And people were like, ‘you caught Dillinger?’ No, they loved doing that.

George Joseph: But what about all the times that you kind of just profiled someone and came up short because you’re pretty much just randomly going after people who you think are, basically look like they’re up to no good. I mean, it’s going to make people hate you in a way.

Adam: It’s a total numbers game. You go to certain locations and you, and we talked about this when you were on the show before about how if you target certain populations, you will invariably find more crime disproportionate to the amount of crime that actually happens. These police departments aren’t raiding, uh, you know, the Sigma Chi house to look for sexual assault. They’re going after certain populations for very specific reasons because they, mostly because they can and when they’re looking to get convictions because they don’t have money for lawyers and so on and so forth.

George Joseph: In New York, it’s literally a numbers game in that officers allege that they are under a quota system. The NYPD denies it and yet all these recordings come out every few years with supervisors saying, ‘you haven’t given me your numbers for the month,’ and so officers are under pressure to go and, and make those kinds of felony arrests by finding a gun on someone or getting drugs. And so it’s in the nature of what policing is, is meant to be right now.

Adam: On the topic of plain clothes policing, last year in Baltimore, we have a little bit of an A/B test here because Baltimore, they disbanded their plain clothes police force, which is extremely rare. Uh, and really creates an interesting test case. Can we talk about what the logic to that was? Obviously I think the plain clothes police department in Baltimore was a uniquely uniquely corrupt, but has there been any data or any kind of analysis of how it’s affected the policing itself?

George Joseph: That’s a good question. I mean, certainly in Baltimore, beyond plain clothes officers accounting for a lot of violence, there is also a lot of just straight up corruption. So that was controversial because they went a little bit beyond the kind of things they were required to do, but ironically now Baltimore city leadership has talked about bringing them back so it doesn’t seem like anything has really changed and obviously Baltimore has a lot of murders, a lot of shootings and people seem to not feel like taking them away really fixed anything. Yet on the other hand, while they were there, they didn’t really seem to fix anything either.

Adam: Well, what about the plain clothes concept? Is policing led to or correlated with the corruption of the Baltimore Police Department? Because I mean the Baltimore Police Department, I mean for those who don’t follow these things, it makes the NYPD look like the Osmond family, sort of notoriously corrupt in a way that is pretty brazen. Do we have any indication as to why there was a correlation there between plain clothes and corruption? Because I mean plain clothes and violent interactions, you can sort of see, okay, well they don’t see that they’re a cop and they pull their gun out, but was that kind of best of the best elite mentality also given the perception that they’re above the law?

George Joseph: That’s a really good question. I haven’t studied the issue enough to talk about how the kind of plain clothes mentality bleeds into police corruption. But from an intuitive perspective it seems like when you start to dress up like someone who’s like a bad guy and you deal with people in a much less official way and off the books way and you start working your sources and kind of going into this underworld, for lack of a better term, you can sometimes lose yourself in it because not everyone who’s a drug dealer is putting their money in a bank account and like keeping good records for the IRS. So there’s a lot of temptations out there.

Adam: Yeah. They have a habit of not filing their taxes.

George Joseph: Yeah. And they don’t file drug, uh, purchases. Um, there’s a lot of temptations in a city like Baltimore. I mean, in New York you don’t probably have that to the same degree because there is honestly not the same degree of underground economic activity happening. But in cities like Chicago and Baltimore, that activity is happening and the city’s responses to send swarms of police there, and then you get these units that effectively become their own gangs, literally dealing drugs and selling people, that kind of thing.

Adam: You’ve done a lot of investigations over the years into spying of protest movements. What is the difference, if there is any, between plain clothes policemen and undercover policemen?

George Joseph: I think it’s just whatever the police PR person happens to feel like that day.

Adam: Okay. There was an incident in Oakland in 2014 were to CHP officers, California Highway Patrol, which is the state police in California, pulled their guns out on protesters after there was an incident where someone spotted them or alleged that they were cops and they pulled their guns out and it was a huge incident because (a) why were they there?  (b) The Oakland Police didn’t know they were there and their first response was to go full Charles Bronson and vanish their weapons and this confluence of undercover versus plain clothes, and they kept insisting these cops were not undercover. They were just plain clothes, but they looked like protesters, they were like doing chance. Is this a distinction do you think actually matters? And to what extent do you think the use of plainclothes to infiltrate activists is something that you see as more common or it’s more, it’s kind of a go to because they’re sort of already off the books?

George Joseph: Well, we definitely know it’s common because at the same time that, uh, you referenced the incident in California we obtained documents showing how the NYPD was sending quote unquote “undercovers” or plain clothes, whatever words you wanna use, um, people who you wouldn’t know are cops and are pretending to be protesters at Black Lives Matter demonstrations all across the city. And these demonstrations were documented over and over again in the police logs as peaceful, nonviolent, etcetera, etcetera. Yet they were not only attending the protests but also following them on social media, passing around pictures of activists and somehow obtaining access to organize your group texts. I’m not exactly sure how that happened, but we have documents from lawsuits, uh, which we published in The Guardian a few years ago showing that. Um, so it seems to be that all across the country police feel it’s very important to spy on protests about police violence. I mean, I think it probably makes sense why they want to do that.

Adam: Yeah. Um, so before you go, just want to ask you a sort of 30,000 foot question, have you seen in your years writing about this topi