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Harris County DA Ran as a Reformer. So Why is She Pushing High Bail for Minor Offenses?

An email obtained by The Appeal shows Kim Ogg's office is intentionally asking for unaffordable bail amounts to hold certain people in jail in Texas.

District Attorney Kim Ogg was sworn into office in January 2017.

Harris County DA Ran as a Reformer. So Why is She Pushing High Bail for Minor Offenses?

An email obtained by The Appeal shows Kim Ogg's office is intentionally asking for unaffordable bail amounts to hold certain people in jail in Texas.

When Harris County District Attorney Kim Ogg was running for her seat in 2016, she took a firm stance against the Texas county’s cash bail system, calling it “a tool to oppress the poor” on her campaign website. But internal instructions obtained by The Appeal indicate that her office is still pushing for high bond amounts for minor crimes like marijuana possession and criminal trespass.

The email from Ogg expressly asks prosecutors in her office to request high bond amounts for select defendants, emphasizing that “misdemeanor high bond requests should be $15,000.”

Sent privately to attorneys in her office in December, Ogg wrote: “This directive is coming directly from me.”  

While running for election, Ogg generated excitement among criminal justice reform advocates with her outspoken pronouncements against the bail system. On her campaign website, she blamed the incumbent DA and judges who “utilize a bond schedule that is now the subject of a multi-million dollar lawsuit because it is unconstitutional.”

“Holding low-level offenders who can’t bond out because they’re too poor is against the basic principles of fairness,” she told The Guardian in April 2017, three months after she assumed office.

But the email Ogg sent in December reminded her staff it was their “duty as prosecutors to preserve public safety and to help assure the appearance of defendants in court. In the instances sent out by [assistant district attorney] Amanda Petroff, we must be on record requesting a high bond,” she wrote.

The Petroff email she forwarded said it was “imperative that we file motions for high bond & bond conditions at intake (misdemeanor and felony).”

The examples she gave were defendants currently on bond, currently on deferred adjudication or probation, those with extensive criminal history, “or any other situation where in your judgment the defendant should not be given a PR [personal recognizance] or standard bond.” Petroff wrote that misdemeanor high bond requests should be $15,000.

Trisha Trigilio, a lawyer for the ACLU of Texas, called the email “frustrating.”

The Appeal found a number of misdemeanor cases in which Ogg’s office filed motions for high bond, but where the judge disagreed, ultimately setting bond lower.

In February, Ogg’s office asked for $15,000 bond for John Crain, a man charged with misdemeanor theft, because it said he was under the supervision of a criminal justice agency at the time. In that case the judge set Crain’s bond at $1,000. Also in February, Clifford Holmes was charged with Class B possession of less than two ounces of marijuana. The DA’s office filed a motion asking for $15,000 bond because it said Holmes was already out on deferred adjudication for unlawfully carrying a weapon in his car. The judge disagreed with the amount, setting bond at $1,000. Eric Allen, accused of trespassing, had his bond set at $3,000; the DA’s office had requested $20,000. Also charged with trespass, Jermaine Chambers’s bond was set at $2,500; Ogg’s office had asked for $15,000.

In one case in May, Ogg’s office asked for bond “of no less than $100,000.” The accused, James Sam, had been charged with a misdemeanor violation of a protective order (he messaged someone he was forbidden from contacting). In that case the judge granted a bond of $10,000, 10 percent of what the DA’s office had requested.

Asked to look at these specific cases where the DA’s requests for high bonds had been refused, Trigilio, a staff attorney for the ACLU of Texas told The Appeal, “No matter what someone’s criminal history [is], these are such minor offenses…the request for bail exceeds what some of these people make in a year.”

The crimes these people were accused of—offenses like criminal trespass, a charge often levied against homeless people sleeping on the street—were nonviolent, Trigilio pointed out. “[Criminal trespass] is one of the lowest level crimes you can be charged with, and the bond amount far exceeds what someone could ever be fined for this offense. It’s frustrating when you see what’s in that email [from Ogg] if you compare this to what she says publicly.”

“Prosecutors have a responsibility to work for what’s fair, not what’s harsh,” Trigilio continued. “Bail recommendations should always be individualized, and they should be the least restrictive conditions possible.”

She said it’s never appropriate for a DA to ask for $15,000 bond for charges like marijuana possession, and pointed to research showing that releasing people based on their promise to pay if they don’t turn up in court is just as effective as requiring money bail up front. “Forcing someone to buy their release doesn’t increase rates of appearance in court,” she said. “It actually makes things worse—people wind up sitting in jail for longer, which disrupts their lives and increases the chance that they’ll commit more crimes in the long run.”

In 2016, the nonprofit groups Civil Rights Corps and the Texas Fair Defense Project sued Harris County on behalf of poor defendants arrested on misdemeanors who couldn’t afford to pay bail. In April 2017, a federal district judge issued an injunction calling the county’s bail practices unconstitutional. That order was largely upheld in February by the Fifth Circuit Court of Appeals, which found that Harris County’s bail practices discriminated against poor misdemeanor defendants. Ogg filed a brief in support of bail reform in 2017 and celebrated the district judge’s ruling, saying, “From now on, people can’t be held in jail awaiting trial on low-level offenses, just because they are too poor to make bail. … We welcome the ruling and will comply fully with it.”

The federal district judge issued new rules in June requiring Harris County to release people charged with certain offenses like drunken driving or writing bad checks if a person with money in the same situation could make bond. On Tuesday, Harris County misdemeanor judges claimed in federal appeals court that the new rules would endanger public safety.

When asked to account for his office’s high bond requests for misdemeanors, Harris County’s First Assistant District Attorney Tom Berg blamed a risk-assessment tool which, he told The Appeal, is being misapplied by judges to set bond too low. “If we remained silent the magistrate would likely set bail and conditions based on the tool,” he wrote in an email. “The police and the public would also accuse us of ‘setting’ a low bail even though it was the magistrate who did it.”

Berg argued there is a small subset of people charged with misdemeanors who present a flight risk or are so dangerous that they can’t be trusted to reappear in court or keep out of trouble, but Texas allows preventive detention only under strict conditions. As a result, prosecutors are strategically requesting bond amounts they know the individual can’t afford, Berg said. “We are still operating under a cash bail system where if we want to hold someone because that person is dangerous, the only mechanism we have is to ask for cash conditions greater than a person can make.”

Berg said the issue is more nuanced than many people understand.We really are trying to get most of the people out of the jails. … We’d like to divert those minor cases completely out of the criminal justice system. In many respects we’re trying to make the best of what we’ve got here until it can be reformed.”

Berg said the DA’s request for a high bond is made in writing for “public safety reasons,” even in nonviolent misdemeanor cases—“in order to memorialize our justification and articulate why a particular defendant is a greater risk of flight or danger than that predicted by the risk assessment tool.”

Jocelyn Simonson, Associate Professor of Law at Brooklyn Law School, said Berg’s statement is an admission that the DA’s office is using money bail as a form of de-facto pretrial detention. “[They’re admitting] to asking for high bail with the clear intention of causing someone to be held in jail pretrial because that person can’t afford to pay the amount they’ve requested.

“[Berg] makes it sound like they have no choice but to ask for high bail. That’s not true. There’s an alternative. Ogg could stand up on the record in every case and say this office is not going to ask for money bail for an amount someone can’t afford because it offends notions of fairness. But she’s not saying that.”

Jennifer Laurin, Wright C. Morrow Professor of Law at The University of Texas School of Law, noted that prosecutors and defense attorneys are often still operating with limited information about a case when bond is being set. “It’s at an early stage in a prosecutor’s relationship with the case and the defendant,” she said, “so I think it’s fair to be skeptical of unilateral determination by prosecutors that someone is more dangerous than indicators suggest.

“What kinds of potential biases are entering into that calculus? It should give one pause about a practice continuing where prosecutors can unilaterally reach those conclusions without an adequate airing of the basis for them.”

What’s more, a study published in 2016 by the Quattrone Center for the Fair Administration of Justice, a national criminal justice project at the University of Pennsylvania Law School, said the cash bail system could actually harm public safety. In Harris County alone, the study found that defendants accused of misdemeanors who were jailed before trial were 25 percent more likely to plead guilty, 43 percent more likely to be sentenced to jail, and ended up receiving sentences more than double the length of defendants in similar situations but who were not incarcerated before their trials.

In addition, it found that in Harris County, pretrial detention had what it called a “criminogenic impact,” appearing to actually cause those who were detained to commit more crimes after their release.

Paul Heaton, an economist at the University of Pennsylvania and one of the study’s authors, told The Appeal that a prosecutor may think high bail is the only tool available to detain individuals that they believe present a substantial risk to public safety. “High bail can amount to code for ‘we think this type of defendant is enough of a risk we shouldn’t be releasing them,’” he said.

But Heaton also offered the following scenario: If someone is arrested for disorderly conducted and can’t afford bail, they might spend a couple of days in jail. “What’s their employer doing during that time? What if a rent payment is due? What’s happening to their kids? There’s potentially a lot of disruption.”

If an arrest is for a minor misdemeanor, Heaton said a defense attorney may recommend that her client pleads guilty so he will be released for time served. “If that person says ‘but they got the wrong guy’ the attorney could argue the case, but the trial date may not be for another week. Research shows detaining people destabilizes their lives in terms of housing, employment, family relationships, and transportation. It’s ironic that these policies which are enacted to preserve public safety actually end up creating more crime down the road.”

Sandra Thompson, director of the Criminal Justice Institute at the University of Houston, agrees that a large part of the problem is with the traditional money bond system that Texas employs. “What judges are allowed to do varies depending on the charged offense, not based on results of a validated risk assessment,” she told The Appeal. Thompson said it’s hard for an outsider to evaluate the cases that The Appeal found without studying them closely. “If prosecutors are asking for money bail and it’s high, and yet the risk assessment says this person is not a high risk, then that’s a problem.”

Laurin said that if Ogg’s position is that she’s operating within a system not of her making; that her hands are tied and that she has to ask for high bond because she’s determined that some people will not turn up at court or will reoffend if they’re freed, then “a better approach would be to engage with the county and magistrates to get a functional risk assessment tool … let’s get an objective process in place we can all agree on.”

But the policy could be a political “hedge,” Laurin said, that Ogg wants simultaneously to be seen as progressive but that she’s also throwing a bone to anyone not on board with the reforms that the bail litigation has pushed for or who are risk-averse to the political fallout from the public safety consequences of releasing someone who could then reoffend.

“It’s possible both of these things are in the mix,” she said.

The ACLU’s Trigilio said it’s important to remember that the Supreme Court has held for decades that when bail is designed to ensure appearance, it cannot be excessive. “Courts are required to consider less-restrictive alternatives to make sure a person comes back to court. If a promise to pay for failure to appear is going to do just as good a job as making people pre-pay for release—which is what study after study shows—then courts should be releasing people based on their promise to pay. What’s most frustrating is if anyone should know this research, it’s officials in Harris County.”

In New York, A Harm-Reduction Organization Is Leveraging Participatory Defense To Empower Its Clients

Grassroots group VOCAL-NY is teaching people with substance use disorder how to avoid getting ensnared in the criminal justice system.

Jason Del Aguila of VOCAL-NY
Christopher Moraff/Jason Del Aguila

In New York, A Harm-Reduction Organization Is Leveraging Participatory Defense To Empower Its Clients

Grassroots group VOCAL-NY is teaching people with substance use disorder how to avoid getting ensnared in the criminal justice system.

VOCAL-NY, a Brooklyn-based grassroots organization seeking to empower low-income people affected by substance use disorder, recently launched a participatory defense program teaching people how to avoid getting ensnared in a criminal justice system that often works against them.

The goal is to combine traditional harm-reduction services, such as syringe exchange and HIV and hepatitis C testing, with less tangible resources, such as knowing how to de-escalate an encounter with law enforcement.

Participatory defense is a companion to Court Watch NYC, a collaborative program between VOCAL-NY and public defenders that trains community members to observe and document trends in criminal court arraignments and hearings.

“I realized we needed a program that did more than Know Your Rights and ‘CopWatch’  trainings, which focus on filming police encounters, de-escalation and documenting, and don’t necessarily go through all the court processes,” explained Jason Del Aguila, who is in charge of the participatory defense effort. “The idea was, how do we help you navigate through the everyday legal gauntlet, from the streets to the courts and even after doing time. We’re creating community efforts to keep people from becoming another victim of an injustice system.”

He says that often means helping participants understand court documents and organize support in advance of hearings, but more often the aim is to prevent them from getting arrested in the first place.

“I’ve had people who say, ‘It doesn’t matter, the cops can do whatever they want,’” Del Aguila said, “so I teach them, this is what you can do to prove that they did something wrong.”

Participatory defense is not a new concept, or even a single unified program with a defined set of protocols. Modeled on Silicon Valley De-Bug, a community advocacy and storytelling organization founded in 2001 in San Jose, the movement encourages family and friends of the accused to help with their defense. According to the Albert Cobarrubias Justice Project, which promotes the national expansion of participatory defense, the goal is to provide additional leverage to overburdened public defenders. Since about 80 percent of felony defendants in state court systems rely on public defenders, criminal justice reformers say participatory defense has the potential to “change the balance of power in the courts.”

Over the past decade public defender organizations in more than a dozen municipalities, including Philadelphia, Baltimore, Memphis, and Birmingham have established some form of a participatory defense program.  But some advocates say that the stigma associated with drug use and substance use disorder has promulgated a two-tiered system of advocacy that excludes users of drugs like heroin and crack cocaine.

“In progressive circles there’s always been this sort of distinction between the deserving poor and the undeserving poor,” said Paul Cherashore, an activist who spent more than two decades working in harm reduction circles in New York and Philadelphia, “and drug users have always held this bottom rung when it comes to providing aid or advocacy.”

VOCAL-NY’s program is among the first in the nation to combine traditional harm-reduction services with formal participatory defense training.

“As a harm-reduction agency, we do everything we can to reduce the harms associated with drug use,” said Alyssa Aguilera, co-executive director of VOCAL-NY. “Most of the time that means providing sterile syringes to prevent disease transmission or teaching people how to reverse an overdose with Naloxone. But it can also mean supporting people when they get arrested and helping them navigate the criminal legal system through participatory defense. For our participants, most of whom also struggle with poverty and homelessness, it’s often the police and prosecutors that cause the most harm, not their drug use.”

VOCAL-NY’s Del Aguila leads its participatory defense trainings two days per week, where he encourages people to share their experiences with the criminal justice system. His seminars also include teaching clients how to organize court support for hearings, and how to identify and protest unjust policing patterns like ethnic profiling or stop-and-frisk.. He also instructs VOCAL-NY participants on their legal rights and walks them through defusing encounters with police.

“Anything you say or do can and will be used against you, so don’t say shit,” Del Aguila said. “Whether you’re holding drugs or not, ask if you are being detained, and if the answer is no, then leave immediately. And if you’re asked to consent to a search, answer no, and say it loudly and clearly so any witnesses can hear.”

“I try not to make it about having a competition with the cops because you’re gonna lose even if you’re right,” he adds. “You’re trying to win against someone who has the odds stacked for them.”


More in Explainers

The Appeal Podcast Episode 11: Prosecutors Team Up With Walmart to Crack Down on Petty Crime

With journalist Jessica Pishko.

Mike Mozart / Flickr [cc]

The Appeal Podcast Episode 11: Prosecutors Team Up With Walmart to Crack Down on Petty Crime

With journalist Jessica Pishko.

Shoplifting has traditionally been seen as a petty crime unworthy of serious punishment, much less long prison sentences. But under an increasingly popular theory of crime deterrence, prosecutors—with the help of retail lobbyists—are throwing the book at people for stealing as little as $39 worth of goods, claiming that they’ve committed burglary. Our guest, Appeal contributor Jessica Pishko, discusses this punitive trend and what public defenders are doing to push back.

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


Adam Johnson: Hi welcome to The Appeal, a podcast on criminal justice, abolition and everything in between. I’m your host Adam Johnson. Remember, you can follow us on Twitter @TheAppealPod or on Facebook at The Appeal Podcast and you should subscribe to us on iTunes if you haven’t already. According to Forbes magazine, Walmart is the largest corporation in the world by revenue generating some $500 billion in 2017 alone. Increasingly large retailers like Walmart are pressuring local police and prosecutors to level harsh criminal penalties for what used to be considered low level shoplifting offenses resulting for some, months and years in prison. Our guest writer Jessica Pishko, documented this perverse partnership between the public and private sector and how it’s being used to publicly subsidize Walmart security while throwing the poorest of the poor in prison for years.

[Begin Clip]

Jessica Pishko: Walmart in its efforts to like cut costs didn’t want to hire a bunch of people on the floor, so they decided instead to get really aggressive with this sort of burglary upcharge. I kind of call it an upcharge because in most situations the theft of something like $50 worth of items would not be considered a felony. Right? But instead this person is getting charged with a felony.

[End Clip]

Adam: Welcome to the show Jessica. I appreciate you joining us.

Jessica Pishko: Oh, thanks for having me.

Adam: So you wrote a piece in the appeal that covered something that I was pretty fascinated by. I didn’t know it existed. Rather I knew it existed, but I didn’t know the scope of it, which is a trend of big retailers like Walmart and others lobbying, pressuring and generally partnering with prosecutors and police to crack down, if you will, on shoplifting in a way that is taking what used to be considered a kind of petty crime or a small crime and turning it into something that’s pretty huge up to and including a felony. So you wrote an article that came out in May called, “How Walmart is Helping Prosecutors Pursue 10-Year Sentences for Shoplifting.” Can you give us a sense of both the specific case that you document, that of Curtis Lawson, and also the kind of broader trend throughout the country, just to kind of orient the listeners.

Jessica Pishko: So just to talk about first the case of Curtis Lawson. So Curtis Lawson was a man who lives in Knoxville, Tennessee. The day after Christmas in 2016 he walked into a walmart with a receipt and he went through the store, picked up the items on the receipt and then went to the return counter to return the items with the receipt. This is a pretty common kind of shoplifting. It’s sometimes called return fraud. It’s basically a sort of shoplifting that people use to get the cash back so they return, they shoplift items and then return them in order to get the cash. So he walked out of the Walmart and a loss prevention officer saw him and thought he looked, had been kind of following him and thought he looked a little suspicious. They detained him. So loss prevention officers sort of can detain people, um, basically pull them into a back room. And at that point, Mr. Lawson admitted that he had stolen those items and he got charged with shoplifting as well as something called criminal trespass. So what happened to Mr. Lawson was that this was not his first time attempting to shoplift or commit return fraud at Walmart. When Walmart pulled up it’s records and they found that he had been there before and had shoplifted there before. And what that means is that when you or anyone shoplifts at a Walmart or many other stores, they ask to sign a piece of paper that says you understand that if you come back to the store you will be charged with trespass. So basically you sign a piece of paper that says, ‘I will never come back to Walmart.’ Now this will sort of come up later. They don’t check this piece of paper later, but when Mr. Lawson got charged for this particular return fraud, they found that he had signed one of those papers. And so they charged him up to criminal trespass and burglary, which is a felony. So he would have gotten charged with a misdemeanor. The value of his theft was under $50, but instead he got charged with a felony of burglary.

Adam: Right. You talk about how there’s a statute in Tennessee and some other states as well, uh, that permits this burglary statute when it comes to this sort of concept of trespassing, which is to say that it’s not a public place where they go and grab something, but they’ve effectively burgled it. They’ve broken into it as if you would break into a house because they’re theoretically not supposed to be there. Now you know, that Mr. Lawson had been in Walmart several times prior and had not been arrested and the list of people who are prevented is kind of mysterious. So this seems like a rather dubious legal theory. Um, how common is this and how are courts responding to this legal theory that you can effectively burgle a public place?

Jessica Pishko: Well, I think it’s actually pretty common. So I have been pretty interested in this issue because I was mostly interested in the fact that really it’s Walmart loss prevention officers that assess this determination. So we know that this happens in many places. It happens in New York City, I think I wrote a piece, it happens in California, so in many places the, you know, the sort of idea that you’ve been kind of like you’ve been kicked out of the store, like in the olden days they might put your picture up with like a bad check or something and say like, don’t serve this customer. Right? It’s kind of the more formal equivalent of that, so the theory generally holds in general courts have held that, that the fact that the person signed that document is enough for a store like Walmart to say, well now you’re trespassing. And I agree. Normally we think of burglary is when you break into someone’s home, you know, maybe you steal like a lawn mower or a TV, right? The reason why that’s charged as a felony is because they’re sort of more of a, um, people have decided there’s more of like a public safety risk.

Adam: Yeah. There’s this sort of penetrating aspect or there’s a, there’s a violation of privacy element.

Jessica Pishko: Right. Whereas Walmart, I think the reason why it interested me is because I think we don’t have the same expectation of Walmart. I mean really the loss at Walmart is not, it’s not a public safety problem, it’s just a pure way for them to punish shoplifters.

Adam: Right.

Jessica Pishko: You know, maybe to deter, they’re not getting their money back. So I assume that this is in some way to deter people.

Adam: Right. Can you tell us a bit about local efforts and national efforts by these retailers, through their lobbying groups and trade associations to pressure prosecutors and police and increasingly lawmakers to have more severe, harsher and longer sentences for shoplifting. Um, what they’re basically doing, and this is what you note, they’re basically outsourcing their private security to the police. It’s a cost cutting measure.

Jessica Pishko:  It is. It’s actually really interesting. So I myself went down a big rabbit hole about retail and how retail associations operate and this sort of thing. So, um, you know, I mean Walmart had been in the news a few times for things like large numbers of arrests at Walmart that they were creating a lot of work for local police departments. I think there was like a longer article, I think in Bloomberg that was about this, so, you know, Walmart, the source of crime at Walmart has been kind of this issue. And what I found interesting is that, so indeed retail stores have a trade association, the National Retail Federation, they also have a publication, you know, it’s kind of journal for people in industry, um, and they have state chapters for retailers. So retailers are very concerned about shoplifting. We can sort of talk about whether that is or isn’t, you know, justified, but they’re concerned about shoplifting because quite frankly, I think shoplifting is a pretty easy thing to deter. Um, and that would directly impact their bottom line. Right? So every item not shoplifted is profit for the store. So, you know, the impulse to reduce shoplifting is pretty high. And yeah, that one of the ways they wanted to do it was to engage local law enforcement and say, well, we need you to help us reduce shoplifting. You know, there’s various other ways to deter shoplifting, like having more greeters in the store. That’s one way,  an easy way to deter shoplifting people have found, so yeah, Walmart in its efforts to cut costs, didn’t want to hire a bunch of people on the floor, so they decided instead to get really aggressive with this sort of burglary upcharge. I kind of call it an upcharge because in those situations the theft of something like $50 worth of items would not be considered a felony. Right? But instead this person is getting charged with a felony.

Adam: Yeah. I mean even setting aside the moral and ethical implications of throwing people in prison or pushing the throw people in prison for stealing $45, $50 worth of stuff. This is part of a broader trend you see in Walmart, which is where they, in large corporations that pay low wages, where they, the government subsidizes their bottom line. The government subsidizes their healthcare. The government subsidizes their, um, there was even one Walmart that had given instructions to employees to file for benefits, specifically SNAP, um, and had food drives where other employees would give food to other employees and they would not get any themselves. So you sort of see this a lot, which is that they are so pathologically obsessed with cost cutting and if you’ve ever, if you’ve ever had the misfortune of reading Sam Walton’s books on business, it’s a total pathology. Um, this seems like another version of that, a way of kind of cutting cost and offsetting their costs to the public. And of course, once you introduce, there’s no sort of non punitive state mechanism in most of these states, right? So your only option is just to call the police. Um, one thing you note is there was this, which was really bizarre, which is this restorative justice program that Walmart was attempting to start, which has a very Orwellian name, the California Supreme Court found it to amount to illegal extortion. Can you talk about that and what that was an attempt to do I, I’m kind of curious?

Jessica Pishko: Oh yeah. That’s a really interesting program. So it’s actually interesting too. So there’s a little bit of debate about the efficacy of these programs. So that’s sort of part of it too. So this company, and this is actually, um, was and is becoming a pretty common practice until San Francisco city attorney sued, so basically Walmart had decided that one of the ways they might reduce shoplifting was sort of creating their own kind of in house restorative justice. So what Walmart did was say, okay, so if you’re caught shoplifting, we’re going to take you into this room. And they hired a third party company to come in and you basically, uh, the loss prevention officer would read off of an iPad, um, they would sort of read these instructions to you and then say, ‘Okay, so at the end of it, if you pay us, I think the cost was about $200, if you pay us $200 and watch this video, we will not call the police on you.’

Adam: Okay.

Jessica Pishko:  And so for most people, this was like, they would do it either because maybe because they didn’t understand what they were signing or you know, maybe because they weren’t sure, maybe because they were frightened that the police would get called, um, which might make sense if you’re, for example, have other arrests, you might be much more worried that they’re going to call the police and you will get arrested, you’ll get another arrests on your record, get charged with a felony. So a lot of these people would say, okay, but the problem with this restorative justice scheme it was another sort of a pay-for-play scheme-

Adam: It was a profit center.

Jessica Pishko: Yeah.

Adam: God bless Walmart, the most American of corporations. Congratulations Walmart.

Jessica Pishko: Yeah. So they basically decided like, oh, so they started going after people for owing this money and turned out a lot of people couldn’t pay this money and they were sort of coercing them, extracting them, sending them mean letters, calling them. Right? So it sort of became another kind of debtor’s prison type situation where these people owed all this money. So the lawsuit in California was successful. And so the company, which was called CEC, was actually forced to get out of California, so they’re not supposed to be doing their program in California. And last I heard CEC has sort of, is revamping what they’re doing and so they had periodically revamped their program to try to comply with the law.

Adam: Because it seems like if it’s a revenue center, that creates a huge moral hazard where they’ll basically go around looking for shoplifters or accusing people of shoplifting kind of casually and threaten to call the police. It could mean it becomes an extortion racket.

Jessica Pishko: Right. I mean there was sort of no incentive not to pick up people for shoplifting, especially if you thought it was an easy way to get some money. CEC was sort of supplying and the iPads, they were supplying the information. So it was like a totally third party outsource program in general. I mean Walmart didn’t have to pay anything for this program. So it’s like, you know, quote unquote “offender funded,” right? So the money that we’re paying to do it is funding the program. So no, there’s no downside to not doing it.

Adam: I’ve heard a lot of Orwellian turns of phrase in my life, but I think referring to an extortion racket as restorative justice has got to be in the top three.

Jessica Pishko: Yeah. That’s the sort of and there’s a lot of sort of probation and parole companies that will call themselves quote unquote “offender funded,” which is supposed to be a good thing right? Like the taxpayer isn’t paying for it.

Adam: Yes. The pure taxpayer. Second only to homeowner as the highest moral status you can achieve in this country, not citizen or voter. But-

Jessica Pishko: Yeah. I mean, and I will say too, in all fairness there is, there are people who don’t think this is necessarily an entirely bad thing. So there are people, you know, this sort of, to kind of put it in context, I mean the outsourcing of criminal justice, the privatization and outsourcing, so when you think of things like private security, you know, loss prevention, the work that some insurance companies do, um, campus police, there is a sort of industry of private criminal justice, right?

Adam: Yeah.

Jessica Pishko: And so some people don’t think this is necessarily a totally bad thing. They think it has like the potential, you know, there is a good thing not to get another arrest on your record if you have arrests.

Adam: Yeah, I mean it’s one, it’s one of those things like maybe if we think really hard we can find a third option. It’s like the dystopian extortion racket or going to jail for five years. It’s like, hmm, I don’t know, maybe there’s another way. I’m going to ask what they call in the business a rhetorical question. So Walmart of course is infamously bad with wage theft. Walmart, the corporation has $1.4 billion in wage theft fines. In 2012 alone the total amount stolen and robberies in the United States, bank, residential, gas station, street robberies, burglary was only 36 percent that have taken by corporate wage theft, a lot of which came from Walmart, but of course not all of it. $340 million versus $933 million dollars or almost a billion dollars in 2012 alone came from wage theft. Um, and that’s just wage theft that was settled in courts, the number’s probably much higher. Um, can you tell our listeners how many executives or managers or district managers at Walmart have gone to prison for wage theft?

Jessica Pishko: I don’t actually know for sure.

Adam: The answer is zero. Yeah. This is, this is not, this is not so much a question as me editorializing, but I do think it’s a really interesting contrast where you’re putting someone in prison for up to 12 years for stealing less than $50 where a company can steal wage theft quite routinely and I think the figures about which actually quite shocking and something I didn’t know until recently. I’m just curious how the, how sort of prosecutors, how they possibly rationalize this disparity?

Jessica Pishko: Well I don’t know that they would have a view about, like I think if you asked the prosecutor and the prosecutors that I’ve talked to would say something like, these are two different things, I mean, chances are, I’m just kind of going to wildly speculate here, but chances are a prosecutor would say that wage theft is sort of probably harder to prove. Whereas if you catch somewhat, I mean like if you catch someone in the act of shoplifting and you collar them, they probably don’t collar them like in the olden days, but you know, you collar them and you’re like, ‘Did you steal that electric toothbrush?’ And they say yes while you sort of caught them in the act, right. There’s not a lot of, uh, there’s no dispute. And then what they’ll generally do is then get that person to sign a paper confessing that they stole it, you know, etcetera, etcetera. It’s sort of a, it’s kind of quick and easy to prove. You know, they might have video. I mean, a lot of people, quite frankly, if you say, ‘Well, you’re on video and I know you stole that,’ they’ll probably confess. I mean these are not, most of these are not sophisticated criminal organizations, although some retailers will say that there are also sophisticated organizations, they’ll call them retail theft rings.

Adam: Yes.

Jessica Pishko: Yes. Which are basically kind of the equivalent of like a shoplifting gang where people sort of go in steel large amounts of things and then resell them and certainly theft and reselling is not, it’s nothing new under the sun. I mean people do that with cell phones. People do that with various, I think that was something that people are doing it with infant formula. People are doing it with various other regular items you get. People will take them in and try to resell them, you know, so this is not, it’s kind of an ongoing issue. I think they sort of, I think that the retailer associations in their attempts to sort of get more savvy have sort of, I guess this is me editorializing now, like they sort of put some new label on it, put some new names-

Adam: You’re allowed to editorialize. Right.

Jessica Pishko: Yeah. They kind of make it sound more threatening. Right? So they sort of said, oh this is organized retail theft where we’re very concerned about these sophisticated organizations. They’ll sort of argue that that’s what it is. Now you’re also going to sweep up and awful lot of people who maybe shoplift to support a habit, I think in this, in this particular case, so Mr. Lawson in particular did have a large number of arrests on his record. I mean, he was not, he had a drug problem. He was someone who was in the habit of shoplifting to help support his drug habit. You know, he, so this, it was not, um, it was not something that I think he didn’t do. I think the question is sort of, well, you know, is this method really getting at the root of what the problem is?

Adam: Right and of course from the retailers perspective they don’t care. Um they don’t care-

Jessica Pishko: Right.

Adam: If they ruin people’s lives, they’re trying to deter people from coming in and shoplifting.

Jessica Pishko: Right. And what I thought was also interesting, and I’ll just add this too, is actually when you try to get data on shoplifting it’s remarkably difficult. So one question I had was something was something like, so how is, one is shoplifting increasing and two how bad is shoplifting? And so the data about shoplifting is done by the retailers themselves. So one method is like a survey of managers. So they survey managers and say, ‘Do you think that shoplifting is getting worse?’ And then they sort of like, oh, well most of them checked, yes. So managers think shoplifting is getting worse. Um, and I asked someone in the retail, this is actually the California retailers association. I said, well, do you have data that shoplifting is getting worse? And he said, no. He said, we don’t have data managers say it is, but he’s like, ‘No, we don’t really have data and we don’t really know.’ So he, he sort of admitted that they don’t really know if it’s getting worse or why. The data on the actual theft is done by the retailers themselves. And what they do though is they categorize everything as shrinkage right? Which can come from either employee theft or external theft, like what we would call shoplifting, but they don’t really distinguish it. So we don’t really know what proportion is shoplifting and what proportion might be employees taking things home. Um, what seems to be the case is that outside shoplifting is actually like a pretty minor part of any stores loss. But I always thought it was interesting that one of the ways they do it as like, ‘Is your impression that shoplifting is worse?’ And the managers say yes, but it’s sort of like, well, what, I’m not clear how that, you know, how you would assess that.

Adam: They poll Americans every year on whether or not they think crime is going up and every year they say yes. And every year it’s gone down since they kept records in 1960 and ‘61.

Jessica Pishko: Right.

Adam: Yeah. No, that seems very dubious in terms of its science. Um, and I think this sort of total control by the, by the retailer’s associations in the big corporate retailers that control the narrative, they control the data, they control the sort of extensive, the legislation. They write a lot of legislation. What is the other side of the equation? Are there activist groups or community groups or people who aren’t on the take from the retailers who are maybe trying to look at this differently? Uh, this is something we ask on the show a lot, which is like, what are the forces trying to push back against this?

Jessica Pishko: Right. Yeah I mean, this is why one reason why I kind of fell down like a shoplifting rabbit hole, because what interested me was sort of, I mean, these cases are not, they’re not facing, many of these people are not facing large amounts of time right? So it sort of doesn’t have the power of something like a wrongly convicted individual on death row. Um, but at the same time, in my mind in some ways this is worse because it’s sort of like a mass abuse of the process, right? So shoplifting is, is one of those crimes that is common. I mean, it’s right? I mean people are charged a lot with shoplifting. Um, and yet you can see a big disparity in how people are treated and why and what store and how the store chooses to proceed. So, you know, in my mind it was interesting because this is, it’s a, it’s a systemic problem that’s impacting a lot of people. And as you point out, these are a lot of people with very little power. Um, you know, there is no shoplifters association, right? So, you know, and a lot of these people who, who are doing it on a regular basis have other problems. I think Court Watch NYC had a story of a, of a man, a homeless man, who stole a sandwich from a Duane Reade.

Adam: Yep.

Jessica Pishko: He was arrested for burglary because he had previously shoplifted from Duane Reade before. So he was also upcharged with burglary rather than shoplifting. So, I mean it’s, it’s, you know, I’m sure that stores think that this is sort of a deterrent measure, but in my mind it’s kind of like a mass, it’s sort of taking advantage of people with very little power. Um, I will say to the credit of public defenders in Tennessee that the public defenders in Tennessee are working very much against this, like they were, you know, they have brought a case up for appeal. They had, I mean they were bringing cases to trial so that they could appeal them so that they could go to the Supreme Court and say we don’t think that they should be able to do this. So they actually did do that in one case, so, you know, in order to get to this point, you have to try the case to get an appealable issue, which is not a very, you know, this is not something that a lot of defendants want to do. Um, so in one case, this was a case called State versus Danielle Jensen and this was in another county in Tennessee. This case went all the way up and on appeal, the appellate court actually dismissed the felony charge saying that the fact that the prosecutor could not prosecute people for burglary who were shoplifting, the appellate court sort of had this amazing opinion that was like, no, we don’t, we don’t think you can do that. And in that particular case, it was in some ways even more egregious, the prosecutor had brought charges against Danielle Jensen initially for a misdemeanor. They lost and then they up the charges to a felony. Like they sort of re-charged this person on a felony. So it was particularly egregious. And so they got this great opinion and then unfortunately it went up to the Supreme Court and the Supreme Court vacated the case on a different issue. So it’s kind of unresolved law, um, but like I said, I want to give a lot of credit to the public defenders who have worked to bring these cases to trial because that’s the only way you can get legal opinions that might question this tactic.

Adam: Yeah, no, its um, I mean the sort of mindless appeal to deterrents, I mean there’s kind of, there’s no incentive to not just throw the book at everyone, right? From their perspective. Um, but you know, I mean if they chopped off people’s hands it would deter people. There has to be some other moral considerations and it doesn’t seem like, there isn’t really any institutional mechanism to push back other than the public defenders offices and uh, you know some sort of handful of, of, of, of, do goody lawyer types. And that’s, I think that’s as interesting because, you know, a lot of things, there’s usually two sides. There’s sometimes there’s two sides of the coin. Um, there’s, you know, there’s different industries with different interests, but there is no, there’s no counterbalance to that. So you have a kind of a totally perverse incentive scheme where they just try to prosecute everyone.

Jessica Pishko: Yeah. I mean one of the big challenges for a public defender in these cases, is that realistically most people who are arrested for shoplifting will plead. I mean, right. It’s one of the mass plead, whether they did it or didn’t do it, whether they signed a paper, didn’t sign a paper. I mean, these are, these are people who will probably plead out. So for public defenders to push to bring the case to trial to then appeal it, I mean these are, these are people putting an immense amount of effort because they need to get a case before an appellate court and say, look at what this prosecutor is doing we don’t think they should be able to do that. Um, and that’s, you know, that’s a substantial amount of work and it requires clients who are willing to bring that case to trial, sit around with that case while it’s pending, which is no small thing. Um, you know, so I just wanted to give credit where credit was due to, you know, lawyers who are trying the best they can to create better law through the courts. I think whether better law could get created through lobbying is kind of another issue.

Adam: Right.

Jessica Pishko: Yeah.

Adam: Again, there’s, there’s no institutional money there.

Jessica Pishko: Right.

Adam: So I think on that note we’ll wrap it up. I do think it’s always good to remember that there are people out there fighting the good fight and they’re not the majority but they’re out there. So that’s, that’s always good to hear.

Jessica Pishko: Um, yeah, I mean absolutely. Like I said, I want to, you know, I just want to note that there are people who are, who are doing it, but of course it’s hard and it takes a long time, right. It might take years and it also happens in that case on a jurisdiction by jurisdiction basis. Right? So it’s one jurisdiction in Tennessee might say you can’t do that, but that doesn’t mean they can’t do it in Brooklyn. So, and I think as criminal justice becomes more and more privatized, well, you know, I think that this is sort of the wave, like we will see places doing this, there’s not a lot of impetus to stop them, the people that they’re prosecuting or, you know, have very little say. Um, and they are also again, the kinds of cases and people that are not, you know, they’re not like front page news, right? These are not, you can get people interested in very egregious, again, like egregious wrong  conviction cases. But these are people, right? The sort of mass pleading out to things that, you know, they’re serving time for a felony when they shouldn’t. Um, that’s a real problem because a felony conviction is a strike. And so in many jurisdictions, if you have multiple felony convictions, you are facing a substantially higher prison sentence should you commit another felony.

Adam: Right.

Jessica Pishko: And that’s one of the reasons we should be very concerned.

Adam: Yeah, it’s death by a thousand cuts. It doesn’t get as much attention but it should.

Jessica Pishko: Right.

Adam: And I think it’s good you, you brought it to attention, so thank you. Thank you so much for coming on.

Jessica Pishko: Thank you. Thanks for having me.

Adam: That was Jessica Pishko, writer and contributor to The Appeal. I’m your host Adam Johnson. This has been The Appeal Podcast. Remember, you can follow us on Twitter @TheAppealPod and subscribe to us on iTunes if you haven’t already. The show was produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn and the executive producer is Sarah Leonard. Thank you so much for joining us. We’ll see you next week.

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