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In Washington State, It’s Nearly Impossible To Prosecute Police Killings

This fall, however, an initiative goes to voters that would change the law on deadly force by the police, which has led to no officer there being convicted of wrongfully killing someone in the line of duty in more than 30 years.

Berkeley police officers in riot gear line up in front of protesters during a demonstration in Berkeley, California, in 2014.
Photo illustration by Anagraph. Photo by Justin Sullivan/Getty Images

In Washington State, It’s Nearly Impossible To Prosecute Police Killings

This fall, however, an initiative goes to voters that would change the law on deadly force by the police, which has led to no officer there being convicted of wrongfully killing someone in the line of duty in more than 30 years.

On May 23, 2013, Annalesa Thomas warned her son Leonard that she would call the police if he didn’t hand over her 4-year-old grandson Elijah. Hours later, 27 Pierce County police officers, two SWAT trucks and a sniper arrived at their home in Fife, a small town of about 9,000 residents in Washington State near the much larger city of Tacoma. The massive police presence came despite the fact that Leonard was unarmed.

A four-hour standoff ensued: according to the police, Leonard, 30, had snatched the phone from Annalesa when she first tried to call 911 and held Elijah against the child’s will. Annalesa, however, had told the police that she called for help simply because she did not want Elijah be watched by Leonard, who struggled with alcoholism.

Near the end of the standoff, police struck a deal with Leonard in which he would hand over Elijah and the officers would leave. As police raided Leonard’s house, he panicked, grabbing Elijah. Watching the scene unfold, a sniper then fired a .308 caliber round into Leonard’s waist.

Leonard bled out on the floor just inside the home, clinging to Elijah as police pulled his son from his arms. “Don’t hurt my boy,” Leonard told the police. Those were his last words, Annalesa told The Appeal.

“All I expected was police would knock on the door and say, ‘How about you give the little boy to grandma?’” Annalesa said. “I still wonder how? How did we get to that point where Leonard lost his life?”

On July 14, 2017, a jury in federal district court awarded Leonard’s family $15 million in civil damages, one of the largest sums awarded in a civil suit over a police killing in Washington history (after an appeal of the verdict, the Thomas family agreed to settle their wrongful-death and civil-rights lawsuit for $13 million). Elijah Thomas, now 10 years old, told reporters after the verdict that he believed his father was simply “trying to protect me.”

The “Malice” Standard

Despite the verdict and public outrage over Leonard’s death and others wrongfully killed by police, including protests, no officers were criminally charged in the case. But this is not an unusual outcome in Washington, where an officer may not be found criminally liable if he or she acted “without malice” according to state law. The legislation was passed in 1986 by lawmakers who were concerned about insufficient protections for the police after the U.S. Supreme Court ruled in 1985 in Tennessee v. Garner that it was unconstitutional to use deadly force against an unarmed suspect fleeing arrest. But because of the law, no officer in the state has been convicted of wrongfully killing someone in the line of duty in more than 30 years. The sole homicide case against a Washington officer was brought in Snohomish County in 2009 when Everett police Officer Troy Meade shot a suspected drunk driver in the back, killing him. Despite another officer testifying against his colleague’s excessive use of force, a jury acquitted Meade of second-degree murder and first-degree manslaughter.

“It’s difficult to prosecute a police officer, and it should be, but today it’s impossible,” King County Prosecuting Attorney Dan Satterberg told The Appeal. “That’s been the result of our legal analysis in every police shooting we’ve ever had.”

Andrè Taylor, whose brother Che was shot and killed by Seattle police in February 2016, agrees.

“The malice standard is de facto immunity that allows them to kill without restraint,” he told The Appeal. Taylor moved to Washington shortly after his brother’s death to begin an advocacy group, Not This Time!, which focuses on reducing killings by police.  

Efforts to change the law previously languished in the state legislature. But the work of a coalition of activists and family members of those killed by police  has led to a statewide ballot initiative to reform the law. Initiative 940—so named simply because of the number assigned to it by the secretary of state’s office—would remove the 1986 law’s so-called malice standard and replace it with a two-part test for when a “reasonable” officer would use force and whether the officer acted in “good faith” to prevent harm to others.

It would also require independent investigations of such incidents rather than the common practice of internal reviews by police departments. And it mandates that all police receive de-escalation and mental health training, and be prepared to give first aid at the scene if necessary.

Another provision is that tribal governments would have to be notified and involved in investigations when a tribal member is injured or killed by police. Eight of the state’s Native tribes have donated to the campaign to pass the initiative, including $400,000 from the Puyallup Tribe of Indians, according to campaign finance records.

Initiative 940 Goes to Voters

With state lawmakers hoping to avoid a divisive policing issue on the November midterm ballot, legislators and some of the state’s largest law enforcement organizations negotiated amendments to the initiative to pass it as law in March. But the state Supreme Court nullified legislators’ actions in late August in a 5-4 ruling, saying the legislature’s method for approving the initiative and its amendments violated state law. Under the state Constitution, lawmakers would have either had to enact the initiative as it was written into law, or put it on the ballot along with a second, amended option for voters to choose from. Neither option had enough support.

Supporters of the compromise included the Washington State Fraternal Order of Police and the Washington Association of Sheriffs and Police Chiefs, whose executive director, Steve Strachan, issued a statement after the court’s ruling encouraging a “no” vote on I-940. Strachan did not respond to an interview request, but when the Supreme Court made its ruling he said, “I encourage us to focus on our agreements and good policy, and bringing the community together for increased trust.”

Two of the state’s major law enforcement unions, the Washington State Patrol Troopers Association and the Council of Metropolitan Police and Sheriffs, remain opposed to both I-940 and the now-defunct compromise. Neither organization responded to requests for interviews.

The outcome in November could influence other states’ efforts to increase accountability for officers who wrongly use deadly force. Efforts in California to put more restrictions on police to prevent the use of deadly force were suspended in late August, after legislators said they could not muster enough lawmakers to support the bill.

The bill was introduced in March 2017 and passed the state assembly two months later. However, it lay dormant in the state senate until April 2018, following weeks of protests in Sacramento over the police killing of Stephon Clark, an unarmed 22-year-old Black man, while officers were looking for a car vandal.

De-Escalate Washington, a group co-led by Andrè Taylor that is spearheading the campaign to enact I-940, says polling demonstrates that about two-thirds of state voters support its proposal. The organization also obtained 360,000 signatures for I-940 to be certified for the ballot—100,000 more than the minimum required by the state. They have raised more than $1.8 million for the effort, according to state campaign-finance records.

“The coalition of groups in Washington State are stepping up and doing more than we’ve seen in any other state,”  Zeke Johnson, Amnesty International USA’s senior director of programs, told The Appeal. “I think Washington State has an opportunity to be a real leader in reform.”

The Appeal Podcast: On the Ground in Dallas's High Stakes D.A. Race

With Dominique Walker of the ACLU, Reverend Edwin Robinson of Faith in Texas, and Joe Estelle of Texas Organizing Project.

Dominique Walker of the ACLU

The Appeal Podcast: On the Ground in Dallas's High Stakes D.A. Race

With Dominique Walker of the ACLU, Reverend Edwin Robinson of Faith in Texas, and Joe Estelle of Texas Organizing Project.

This week is our first installment in a new series about how activists and organizers on the ground are shaking up District Attorney races. First up: Dallas County. An appointed conservative DA, Faith Johnson, has flown mostly under the radar in the notoriously red state as activists there, including our three guests—Dominique Walker of the ACLU, Reverend Edwin Robinson of Faith in Texas, and Joe Estelle of Texas Organizing Project—have been working to raise awareness and educate voters about just how powerful District Attorneys really are.

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 follow us on the main Facebook page for The Appeal at You can also follow us on Twitter @TheAppealPod, that’s @TheAppealPod on Twitter, and of course you could subscribe to us on iTunes. Typically on the show, we focus on some of the bigger more ideological questions facing criminal justice reform and criminal justice abolition. Today we wanted to do the first of a recurring series on activists and organizers on the ground who are trying to actually move the needle with regard to district attorneys and prosecutors by zooming in a bit and profiling groups on the ground. Our first installment is going to be on Dallas County, Texas. An appointed conservative district attorney there, Faith Johnson, has flown mostly under the radar in the notoriously red state. Activists there have been trying to raise alarm bells on how important the district attorney race in Dallas County really is. Today we’ll be joined by three guests who are working on the ground in Dallas. First, Reverend Edwin Robinson, of Faith in Texas.

[Begin Clip]

Edwin Robinson: I’m working with clergy, helping them understand the power of the district attorney’s office, and then they’re able to both preach and teach in their faith communities, whether that’s on Friday evening in the Muslim community, Saturday evening in the Jewish community or Sunday morning in the Christian community, they’re able to preach and teach on the importance of voting and how important the district attorney’s office is.

[End Clip]

Adam: Second Dominique Walker of the ACLU.

[Begin Clip]

Dominique Walker: What we’re doing with the Smart Justice Campaign is the concerted effort to try and educate the community on the district attorney’s role and how that plays into how they work with the community and how that changes how we’re prosecuting, how we’re thinking about sentences and how we’re thinking about the things that we’re choosing to prosecute.

[End Clip]

Adam: And finally, Joe Estelle of the Texas Organizing Project.

[Begin Clip]

Joe Estelle: One of the things for us is that we, at TOP, we put together a questionnaire to get Faith Johnson’s position on many of the progressive criminal reform issues that everybody’s trying to move towards and so she’s been absent. So she’s been great at ignoring those things.

[End Clip]

Adam: I am joined now by Dominique Walker of the ACLU, Reverend Edwin Robinson of Faith in Texas and Joe Estelle of Texas Organizing Project. Thank you so much for joining us.

Edwin Robinson: Thank you for having me.

Dominique Walker: Thank you for having us.

Joe Estelle: Yeah I appreciate the opportunity.

Adam: So my first question is going to go out to Ms. Walker. Let’s set the table here for what the stakes are in this district attorney race. Um, can you tell our guests what the major on the ground activists, uh, such as yourself are looking at in terms of what the stakes are with Faith Johnson and broader district attorney race in Dallas and what the kind of bigger implications of that are? Just to give us a, just to orient people who aren’t familiar with the race.

Dominique Walker: The district attorney is our chief prosecutor in Dallas County. So of course the stakes for this race are entirely high. What we’re doing with the Smart Justice Campaign is a concerted effort to try and educate the community on the district attorney’s role and how that plays into how they work with the community and how that changes how we’re prosecuting, how we’re thinking about sentences and how we’re thinking about the things that we’re choosing to prosecute, cases that we’re prioritizing. So we’re really just going out into the community. We have, um, workshops that we do. We do a lot of community talk backs and community dialogues. Just getting them in the mindset of understanding the importance of this role. The two candidates that we have, we have Faith Johnson and John Creuzot. Faith Johnson is our current district attorney and John Creuzot is the Democratic challenger right now. And so we have forums that we have with these candidates. We’ve not yet been able to get a forum where we can have Faith Johnson attend, but we hope on October 6 that will be able to have both of them there and we can ask them some questions. We’ve posed a questionnaire to both candidates. We received answers back from John Creuzot on all of our topics and all of our Smart Justice Initiatives and goals, so we take that information back to the community and just kind of again, just reiterate the importance of them knowing who these people are and knowing their policies that they are implementing and how they plan to run that office once they are actually in office.

Adam: Okay. That’s a really great breakdown. And so the feedback you’re getting from Faith Johnson, maybe Edwin you can field this one, is that her campaign has been a little bit more opaque or playing her cards close to her chest. I know that she, there were recent flyers where the Republican Governor Greg Abbott endorsed her and some are seeing that is that could actually be a liability for the campaign given that she is sort of trying to remain a little bit unknown and I think it appears to me that many of the activists efforts are trying to let people know what her actually her actual track record is. Can you talk about those efforts and to what extent we actually don’t know what Faith Johnson’s positions are a major issues?

Edwin Robinson: Yeah, I mean, I think that that’s a great, um, my colleague Dominique did a fantastic job of sort of just laying out the reality that we have here, you know, Faith Johnson has been particularly, the word you used vague or opaque, right? In the context of making her positions known to the community writ large. Um, but she has not been that way with, you know, donors have major functions and things of that nature. She frequents those, you know, those events and we’re hoping likewise, Faith in Texas, we’re also hoping that she will join us on our forum on the, on October 14, we invited the district attorney from Philadelphia, Larry Krasner here to Dallas and invited a number of clergy leaders, nonprofit organization leaders, young professionals, all, all sorts of people to be a part of a, a conversation with DA Krasner, the candidate John Creuzot, along with Faith Johnson just to talk about, you know, the sort of district attorney that we would like to have in our city. And Larry Krasner is, you know, he checks the box in a number of different areas for the type of district attorney we would like to have. Unfortunately, District Attorney Faith Johnson did not attend that meeting either. John Creuzot did attend. He also came to a, a rally later that evening that we had on the steps of Frank Crowley Courthouse focusing on the sheriff’s race and ICE and our jails and things of that nature. So I say that to say there’s a number of issues that we would like to hear directly from the sitting district attorney concerning, um, as it relates to how, how is she going to deal with cash bail, money bail, right? Um, are there going to be certain things that she just chooses not to prosecute? Low level misdemeanors? Is she going to help us with decarceration writ large, you know, Faith in Texas, we just did one of the largest single day bailouts. We bailed out 14 people, um, who all had a bond, less than $2,000, you know, one young lady, she was in jail because she was driving without a driver’s license and without insurance, but she’s 20 years old and she spent a week in jail for a $750 bond. Um, and so we’re trying to figure out, you know, will this district attorney and our candidate John Creuzot, are they willing to just simply not prosecute certain offenses or mandate jail time for certain sentences? Because it’s gumming up our system and the people affected by it or black people, people of color writ large and poor people.

Adam: So this is a question for Joe. Let’s, let’s talk about Faith Johnson’s record here. Criminal justice reform activists find her to be, I guess uniquely regressive. We have this recent wave of reformist candidates. She kind of represents a reaction in many ways to that from the death penalty to trying children as adults. Can we talk about Faith Johnson’s record and why it gives pause to so many activists?

Joe Estelle: Yes. One of the things for us is that we, at TOP, we put together a questionnaire to get Faith Johnson’s position on many of the progressive criminal reform issues that everybody’s trying to move towards and so she’s been absent. So she’s been great at ignoring those things. We’ve had some private conversations when we’ve been able just to run into her accidentally and so some of the statements that she’s made is saying that she’s actually in support of a lot of the reform issues, I mean, things around bail reform, in terms of like public defender’s office, her prosecution of low level marijuana charges and things like that. And so she said that she is in favor of these things and that she’s actually implemented certain policies within our office now, but we found out that that’s not true. So a big issue with Faith Johnson of course she’s appointed by the Republican Governor Greg Abbott, and we know he’s going in the exact opposite direction on many of the issues that we talk about, especially around bail reform and so she’s hiding behind just not really revealing or showing her policies until after the election. And so we’re more than certain that, you know, once the election is done and if she’s re-elected, hiding behind some guise of being a, a progressive DA, then she’s going to go back to things as normal and we’ll move into the opposite direction away from where everyone wants to be in terms of these issues.

Adam: Right. I think the general assumption is is that far right-wing governors who tweet out fake quotes don’t typically appoint progressive district attorneys. It appears that Faith Johnson is trying to sort of go under the radar and largely I think the assumption being is that she as an African American woman, I want to talk about the issue of race and how, and obviously Dallas County has a significant African American population, to what extent are black activists and people within the I guess general black community responding to her, her candidacy?

Edwin Robinson: Um, you know, it’s always an issue, you know, race is never a non issue in this country. I’m not going to speak for all organizers or all activists. I’ll, I’ll speak to the reality that we struggle with in our organization, right? One, reality: black women in our country are treated as less than, are disrespected consistently and are not appreciated for the position and the work that they do in our community. That just is. Serena Williams is, you know, is the latest, most high profile case of that. Nevertheless, whoever is sitting in that seat, um, and they are fundamentally the most powerful person as it relates to criminal justice, right? In our, uh, in our county, um, whoever’s sitting in that seat of district attorney still has a responsibility to the community to work out justice in a way that is equitable and fair. And so I would not ever allow anyone to disrespect Faith Johnson on the grounds of her being a black woman and our organization would never do that. But we are very clear about the issues that are at hand. And I think our biggest issue is that Faith Johnson has had a record of being quote unquote “tough on crime” and we all know that that’s dog whistle for locking up black people, people of color and poor people. And so she, she’s had a record of that as a judge and the very fact that she hasn’t responded to the ACLU, Texas Organizing Project, Workers Defense Project, Faith in Texas. The very fact that she hasn’t responded to the questionnaires that we’ve sent out. That is an issue about the position, not about her person. So I want to make sure that while race and gender are always on the table that I know for us as an organization that’s the way we’re handling this. And we will not let anyone disrespect her from the position of being a black woman who has done work to get to the position that she’s in, but we will always hold anyone who is sitting in that seat accountable to the community, to mete out justice in an equitable and as we would say, a faithful manner.

Dominique Walker: So I think that Dallas is in an interestingly unique position in that we have a black female police chief and we have a black female district attorney but to Edwin’s point, it doesn’t matter who occupies that seat, that person is accountable to their community and the reality of just the nature of how we operate in general, one out of every three black boys born today can expect to go to prison in their lifetime, one in every six Latino boys compared to one in every seventeen white boys. And I think to Edwin’s, again to reiterate what he said, race is always going to be a factor in these things and we can’t ignore it and we can’t act like it doesn’t affect how we treat people in our criminal justice system. I think one of the questions you asked is how the black community was receiving her?

Adam: Yeah.

Dominique Walker: Right. Yeah. And so I think that’s, again, that’s the question that can’t really be answered because I think it moves on an individual basis. I think when it comes to who she tends to speak to, as Edwin spoke earlier, is her fundraisers and I do know a lot, she does have a huge buy in from the black faith community, but that does not, that’s not reminiscent of the entire black population, how everyone feels.

Adam: Right. I want to try to get our listeners up to speed on Dallas because I know a lot of people aren’t really familiar with the sort of intricacies of criminal justice in Texas, especially since it has such a, people’s entire knowledge of Texas justice probably boils down to Walker Texas Ranger so-

Dominique Walker: I think when it comes to, again like just to go back to these questionnaires that we’re sending out, I think it’s necessary for us to talk about the fact that these questionnaires are supposed to do. We ask in depth questions about their policies on mass incarceration. We ask about how they feel about poverty penalties, bail reform, immigration, juvenile justice, other issues that are pertinent to this community. We are asking all those questions so that we can see where these candidates fall on the spectrum of criminal justice reform. Now when we don’t have answers from Faith Johnson, that puts us in a position to, you know, that puts us at a, at a deficit. We don’t have anything to move on. We don’t have any way to tell the community this is what she stands for as opposed to what they see portrayed in the media. So that’s, I think, why we’re pushing so hard for her to attend these forums and speak to the people who she’s going to be representing in office. That’s essential and you can’t ignore that and I think it’s a public disservice to not answer anyone’s questionnaires. Honestly.

Adam: Yeah I mean, is it fair to assume that if someone doesn’t respond to a questionnaire, the assumption is that they don’t support the progressive agenda? Is that a fair assumption or do you think that’s, you think that’s unfair?

Dominique Walker: I think it’s an assumption. I’m not going to speak to whether or not its fair but it’s an assumption that I think a lot of us make when it comes to the non response that we get. We don’t have a yay or a nay so we can say is that she didn’t respond. And I don’t understand how as a people we’re supposed to put confidence in that person in office when they won’t tell us how they feel about certain issues or how they plan to address certain issues that we know will come up.

Adam: We talk about bail reform efforts a lot on this show. It’s something that has taken off in places like New York and Philadelphia and New Orleans. Now, I understand that there’s been a little pushback in Dallas. A Dallas County jail clerk refused to accept bail from Faith in Texas. Can we talk a bit about the problems and some of the obstacles that bail reform efforts face in places like Dallas?

Edwin Robinson: Absolutely. Um, I think the, you know, some of the, just the real obstacles, not to try to get too philosophical, but its just deeply ingrained into our justice system. You know, our bail system. People don’t understand that our bail system is not necessarily a money bail system, right? There’s all sorts of things that are at a judge’s discretion to be able to do, to ensure that a person will return. I mean, that’s the whole point of the bail system. The whole point of the bail system is to say, if I let you out, you must return back to court. And so the money bail system, right? That is just one tool that they have in their tool belt to ensure that people return to court. Unfortunately that has been the only tool used either you pay money or we incarcerate you until your trial. And that has disproportionately affected, again, as I said before, black people, people of color more broadly and poor people. The sort of, the ridiculousness of the system, I think that’s the only word that I can use, it’s a very arcane system where information is not being transferred electronically. There is still literally one person who is inputting data every time, you know, um, something new comes up. We had one young lady who when we actually got through all the processes with the clerk and they accept, finally accepted our payment, we asked, does anybody have any additional holds? Um, we were told no. And then once we paid the bond, they told us, ‘oh, well she has a city ticket for $462.’ That was about 9:00 PM. I went down and paid that city ticket. Then we were told two hours later, ‘oh, she has some traffic tickets in Carrollton,’ and so then they held her for another 24 hours instead of allowing me to just go pay the tickets in Carrollton, they were waiting for Carrollton to come and pick her up, take her to Carrollton so that then we could pay those tickets and she could be released. Just the ridiculousness of that sort of system speaks to how dire the need is for us to have reform in this area because while all that is taking place, there is still a real human being who’s sitting behind bars who could be losing their job, all sorts of things that are going on for a simple infraction, a traffic ticket, um, you know, this person can lose their job, their car, their livelihood. Um, and that just speaks to the ridiculousness of the system writ large.

Adam: One person who ran through the bond system rather swiftly, of course, was police officer, Amber Geiger, who for those who don’t know, went into a African American man’s house and shot him to death, allegedly said it was, she thought it was her apartment. Uh, this has exploded, become a national case, right as this district attorney race is really taking off. Dominique, can you give a quick breakdown of how this case has really heightened attentions? And I know that recently that the district attorney, Faith Johnson, who is the one who was up for re-election, who was appointed, has sort of hinted that the trial may be held outside of Dallas because the media bias or whatever. Can we talk about this case and broader police shootings with roughly half of them being no billed by the Dallas County district attorney over the last 18 years, can we talk about that and how that’s affecting the case?

Dominique Walker: Well what I think we really need to focus on is just the community, the public trust that is being violated here when it comes to, um, the district attorney. When it comes to Faith Johnson, on what I perceived at the press conference this morning, is that she’s doing everything she can to keep that case in Dallas County, which is great for us because we definitely want to see justice served here. But when it comes to the shooting, there are just so many details of this case that we’re not exactly sure of. So it, it’s a little bit difficult to speak to just because we’re in the infancy of this case. But what we do know is that it took far longer than we would have liked for them to issue an arrest warrant. And then when we talk about bail reform, um, and we talk about just the immediacy in which she was able to post her bond and be released, which to Edwin’s point is not true when it, when the system affects people who are poor, who are not able to afford their freedom in that way. And so I think, I am hesitant to talk and speak to this case because again, it’s, we’re in the infancy stages of it and again, there’s a lot of information that’s swirling around that we’re not exactly sure of and that’s where, you know,  our trust would fall on a district attorney to seek out the justice in this case. And again, we’ve been told that they’re not going to rush, they’re not going to jump the gun, they’re going to make sure they have all the details and keep their investigation intact. But a lot of us are just left wondering what exactly is going on and what are the next steps? Um, you know, the Texas Rangers are doing their own independent investigation and we know that the district attorney’s office is handling the case as of now, but there’s not much else that we know outside of that.

Edwin Robinson: That reality that she went to Kaufman County, which you know, that is perfectly legal. You can go to any police station and turn yourself in once a warrant has been issued for you. But just the irony, you know, she posted a $300,000 bond and was arrested and released within an hour. We posted $31,000 for 14 individuals and for the very first set of people to even be released, it took upwards of four hours, just for the first two people to be released. And so we got there, we got to the police station at about 9:00 AM that day and I was the last person to leave. I left the next morning at 3:15 AM and the last person still had not been released. We posted bond for everyone by 3:00 PM. So literally 12 hours later the last person still had not been released. And this is someone who did not murder someone. This is someone who is there for criminal trespass, um, which is basically loitering. So the reality that there are, there are just two justice systems, you know, for those who are in the system, those who are white middle class, those who are a part of the blue fraternity and then the rest of us. That speaks volumes.

Dominique Walker: And I do want to reiterate something that Edwin said that was key, these people that they were able to bond and bail out were not murderers and we have someone who has, you know, taken a life who is out on our Dallas streets only on the strength of the fact that she was able to afford her freedom and I think that is something that is so key because when it comes to this bail system that is in place, especially for Dallas and somewhere that relies heavily on our bail schedule as opposed to a risk assessment tool, which I’m not saying it’s necessarily the end all be all, but when we’re relying on a bail schedule and not taking into account people’s ability to pay, we are, I mean, essentially we’re continuing to house and detain people for not having money.

Edwin Robinson: Literally. A murderer is out on the street free because they can afford $300,000, but someone who is homeless by the way and was arrested for criminal trespass, which is loitering, which is what homeless people do because they have no place to go, would be sitting in jail for weeks or months or a 20 year old young lady who just started a new job is sitting in jail for a week. Right? Because of driving without a driver’s license. And a murderer is able to go free. I mean, she admitted that she shot him. This is not innuendo, you know, she’s able to go free in an hour because she could post $300,000. That’s asinine. There is no risk assessment. Right? Even to Dominique’s point, right? There is no risk assessment, right? That would mete out that sort of risk. Murderer. Criminal trespass.

Adam: Um, I have a question that I want all three of you to answer and this is um, a lot of our listenership is people who are activists and lawyers and people who do a lot on the ground stuff. And one of the things that interests me about this show in particular is that we deal a lot with kind of 30,000 feet or kind of theoretical questions. And it’s, it’s interesting to talk to people who actually are on the ground and trying to raise awareness to these issues in general. Sort of like pulling back the camera a little bit, what does it you have found to be the most difficult and what is it that you found to be the most effective ways of getting the average voter to care about district attorney races? Getting people to care about prosecutors is sort of one of The Appeal’s primary, I guess, messaging objectives, right? And showing people why it matters. And again I want all y’all to chime in on this because I’m super curious to hear from people who are actually on the ground. What have you found to be the most difficult thing to get across and also what are some of the things people kind of latch onto?

Dominique Walker: This is a huge frustration of mine, so for me the biggest hindrance I’m coming up against when I talk to the community is the ‘why you should care?’ When it comes to, ‘we have so many different things going on in our lives’ and ‘another election just seems like you want me to just show up again and check a box and then go back home.’ But getting people to understand that it’s so much bigger than that can be difficult. I will say one of the things that we’ve done with the Smart Justice Campaign and the workshop that I’m doing in the community is to put people in a space of being able to be a DA for a day and so we pose out these, given these case profiles out, we ask them to play DA for a day and tell us how they would handle the sentencing. So once you have the full weight of, you know, a person’s future in your hands and you actually sit in that seat and understand those feelings and it’s explained in such a way that like this is not just like a shuffling of papers, this is not just showing up at court for two seconds. This is deciding a person’s fate essentially and the fate of how their family will be affected. I think that really illustrates, at least that’s the response I’ve gotten, is ‘I get it now.’ ‘I understand like this is so much bigger than just like another elected official who is not doing anything.’ This is a person who has extreme, you know, an extreme range of power and we need to care about the person who holds that power and we need to care about what they’re going to do with it once they have it.

Adam: Okay. Joe, you want to speak to that?

Joe Estelle: Yes. One of the things that I found, and I think is especially alarming to me in Dallas County is that, I mean the situations that we talk about in terms of the rate of incarceration, when you look at all of things going on it seems a lot more severe it seems to me in Dallas County.  If we look at the whole process when a person goes into a bail hearing, there’s no one they can bring there, they are totally by themselves and there’s no recording of it and some of the things that go on are so severe and I’ll think the people are not aware of what really actually happens. And so one of the things that I’ve found has been most helpful is just sharing the stories of people who have been directly impacted by these types of situations. We’ve been like just going around recording stories from different people. You know, how they’ve been negatively impacted by the criminal justice system here in Dallas County. And then when you show that to people, make them aware of how bad the situation actually is, then I think it does a lot to engage people and get them involved in the process.

Adam: Yes. Edwin, do you want to respond to that question?

Edwin Robinson: Yeah, I love this question and I’m so glad I’m on the phone with, you know, these other organizations because, you know, from that being a DA for a day to engage in the community and you know, what we’re doing on our side. We work with faith communities. So I’m working with clergy, helping them understand the power of the district attorney’s office. Um, that meeting I said that we had with DA Krasner, the candidate John Creuzot, we invited the sitting district attorney, she didn’t show up, but that was a good way for them to understand the power of the district attorney. And then they’re able to both preach and teach in their faith communities, whether that’s on Friday evening in the Muslim community, Saturday evening in the Jewish community or Sunday morning in the Christian community, they’re able to preach and teach on the importance of voting and how important the district attorney’s office is. Not only that, then they are able to move out and community canvas and canvas their communities around their congregations. And um, talk about the importance of voting and the importance of the seat of the district attorney. So those are ways that we have been trying to engage the community and educate them on just the sheer importance of this seat and the very fact that the district attorney literally affects every citizen of, if you are a citizen of Dallas County, the district attorney affects and touches your life. Everybody.

Adam: Great. Before we go, we like to do a thing where people can plug the work that they’re doing and let the listeners know what’s going on. So Joe, do you want to start by letting us know what your organization does and how people can find out more?

Joe Estelle: Uh, yes. So our organization,, its We advocate for black and brown people, about the issues that they care about, that they are concerned with. So we organize around immigration, immigration reform, we organize around healthcare, we organize around education, fair housing and the right to justice. Our organization, we’re dealing with people who have been negatively impacted by the criminal justice system.

Adam: Thank you so much. Edwin, do you want to let us know where we can find your work?

Edwin Robinson: Absolutely. You can check us out at You can follow us on Instagram, on Twitter, on Facebook. Instagram and Twitter its @WeAreFaithInTX or on Facebook just Faith in Texas. We’re predominantly focusing on the faith community. To a point that Dominique made earlier, there are unfortunately a lot of clergy who are to some degree carrying water for Faith Johnson and then there are a whole lot of other clergy who will not and refuse to. And so we’re trying to get their message out there in the public and then, uh, get clergy really just talking about, you know, that justice and equity is not political. It’s Biblical, it’s the Koran, it is the Talmud, it is the Torah. Justice is a part of who we are as people of faith. And so we don’t allow ourselves to get pushed out because people say that faith shouldn’t be political. It always has been. It always will be. And so we believe that our faith traditions call us to be from the Christian tradition as we will say, salt to preserve and light to aluminate in the world about what equity, what justice really looks like.

Dominique Walker: So the American Civil Liberties Union, for those who don’t know, we focus on four main issue areas, so we’ve got immigration rights, reproductive freedom, LGBTQ rights and then what we’re talking about here, which is criminal justice reform. We implemented the Smart Justice Campaign, which is our effort to reduce mass incarceration and combat racial disparities in the criminal justice system. And a way that you can get plugged in with the ACLU of Texas is, you can reach us on, again, Instagram @ACLUTx, Facebook, ACLU of Texas. Um, and then for the work that we’re doing here specifically in Dallas, we have where we’re posting all of our, um, all of our progress and the things that we’re, all of our events, all of our engagements, all of our questionnaires that we do receive. Um, all of that information is at So I just encourage anybody who wants to be involved to go to that website, get plugged in, you’ll get linked in directly with me and we can hopefully do some wonderful things here in Dallas.

Adam: Guys thank you so much. This was very informative and I’m happy that you guys took time out to talk to us.

Edwin Robinson: Thank you.

Dominique Walker: Thank you.

Joe Estelle: Thanks again.

Adam: Thanks to our guests, Dominique Walker of the ACLU, Reverend Edwin Robinson, of Faith in Texas and Joe Estelle of Texas Organizing Project. This has been The Appeal Podcast. Remember you can follow us on Twitter @TheAppealPod and you can always subscribe to 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.


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The Incalculable Costs of Mass Incarceration

Prisons carry enormous, perhaps impossible to measure social costs—but when assessing the system fiscally, reformers should focus on staffing salaries instead of the number of incarcerated people.

Rafael Belincanta/EyeEm

The Incalculable Costs of Mass Incarceration

Prisons carry enormous, perhaps impossible to measure social costs—but when assessing the system fiscally, reformers should focus on staffing salaries instead of the number of incarcerated people.

Every year states spend about $50 billion to lock up over 1.3 million people, or about $35,000 per prisoner per year. Although individual state averages obviously vary, statistics like these suggest that even small cuts in prison populations could yield significant fiscal returns, and big cuts something massive. The Brennan Center, for example, recently argued that releasing 576,000 low-risk inmates could save $20 billion per year (which is just $35,000 times 576,000—a calculation others make as well).

But this is the wrong way to think about prisoners and costs. Measuring costs this way both significantly overstates what we fiscally save with each person we divert from prison while simultaneously understating the social costs that such a diversion avoids. Fiscal savings don’t come from reducing inmate populations—they come from reducing staffing. And the social costs of prisons and jails have little to do with budgets and far more to do with the physical, emotional, mental, and other harms incarceration imposes on inmates, their families, and their communities.

Whether we are trying to understand how decarceration frees up funds to be spent elsewhere, or whether prison is socially cost-benefit justifiable, using the average cost per prisoner—a common metric—is simply mistaken.

Salaries, not food

No state saves $35,000 when it cuts its prison population by one person because a significant part of that $35,000 is incurred regardless of whether that one person is behind bars. The person’s departure does not lead to a reduction in the heating or water bill or—most important—the number of correctional officers on staff. Wages and benefits consume about two-thirds of the $50 billion we spend on prisons, if not more.

So, the incremental, marginal savings from reducing the prison population by one inmate is much less than the average cost suggests.  According to a recent review by the Urban Institute these marginal savings might be only 12 percent of the average cost of a prisoner, or closer to $4,200. My own effort to determine what state departments of correction reported found comparable estimates.

Of course, states do not release just one prisoner at a time. And certainly if the number of prisoners released crosses a critical threshold, the marginal savings might jump as well. A state could release enough prisoners for it to close a wing of a prison or consolidate facilities, which would save on heating and water costs—and might allow for a reduction in staffing. And if the state can cut staffing, it can free up a lot more money.

But that “if” depends on cutting the prison wage bill, and here the story gets troubling. There are plenty of examples of states that close prisons without comparable reductions in staffing. Pennsylvania once closed two prisons and laid off three guards. When Michigan closed its Pugsley Correctional Facility in 2016, it was reported that it laid off 16 officers and 35 staff members, but all 51 either declined new positions or said they did not want to work elsewhere; in effect no one was involuntarily laid off.

Correctional officer unions are among the most most powerful (and least discussed) political entities in the criminal justice system. They work hard to oppose job loss, even as prison populations decline.

Digging deeper into the data, however, an even more intriguing picture emerges. Since 2010, the number of people employed nationwide as correctional officers has actually fallen in step with declining prison populations, to the point that the nationwide ratio of guards to prisoners has held fairly steady. (The data on staffing are only available at the national level, so state-specific ratios most likely show more variation.) Yet as staffing numbers have declined, total spending on wages and salaries has risen by 16 percent, and most likely more because the Bureau of Labor Statistics data does not account for overtime.

But the failure to pare back total spending on correctional officers might be a good thing, especially in the short run. While prison reform is often framed as a way to free up funds to spend elsewhere, we also need to make sure that prisons remain safe places for those we continue to lock up. If we cut spending on salaries and wages too quickly, states will find it hard to staff their prisons. South Carolina, for example, often highlights its savings through criminal justice reforms. But the state has over 600 vacant guard positions and that lack of manpower precipitated a riot in April that left seven inmates dead when the few guards on duty were unable to quickly re-establish control. Last week, a brutal murder at the Columbia Correctional facility in Florida revealed seemingly enormous problems with understaffing. 

In other words, just because the bulk of prison spending is on wages does not necessarily mean that we should aggressively try to cut payroll. But it does mean that efforts to fund other programs from reductions in prison spending will fail if we don’t. This is not an abstract concern. An effort in Indiana to divert state prisoners to local alternatives apparently ran into trouble in no small part because of confusion over average versus marginal savings.

When talking about the fiscal cost of prisons, we frame it inaccurately as cost per prisoner. It’s really more cost per staff member. Putting it that way not only emphasizes where cost savings come from more accurately, but help center correctional officers as among the largest stakeholders in the system—and thus highlights their significant incentive to fight against reform.

The real costs of prisons

The other problem with focusing on $35,000 per prisoner, or $50 billion per year, as the “cost” of prison is that it does not actually measure the real costs of incarceration, which are often in social harms. These costs are borne by prisoners and their families that provide no benefit to others. People are physically and sexually assaulted in prison. Mental health issues arise or worsen in prison. Prison is a vector of illness and STDs, which not only harms the inmates directly, but imposes avoidable costs on our health care system. The risk of death from a drug overdose rises sharply upon release. Prison exposure leads to elevated unemployment rates (and thus surely greater demands on governmental support programs), and in the short to medium term reduces life expectancy as well. Family members incur huge costs to visit people locked up in distant institutions, or suffer from not being able to see them at all (like the nearly 2,000 prisoners from Hawaii who are sent to Arizona to alleviate overcrowding in the islands’ prisons or the nearly 4,500 prisoners from Washington, D.C. who are turned over to the federal Bureau of Prisons and housed all over the country). Collect calls are expensive, as is supplying loved ones with money for commissary supplies. Children grow up apart from their parents, partners from each other. In some places, so many men are in prison that it alters the nature of dating and relationships for the entire community.

We have no idea how large these costs are, but they are surely staggering. Since 1978, there have been nearly 13.5 million new admissions to prison. Not all of these are unique people—but most of them are. Contrary to popular wisdom, it appears that about two-thirds of all people admitted to prison do not return, which means those 13.5 million admissions represent something on the order of 9 million to 10 million unique individuals. And the costs experienced by those millions in turn hurt millions more family members and friends, and thousands of communities.

Of course, those same family members and friends are also disproportionately the victims of crime—both crime and punishment are geographically densely concentrated. So any discussion of costs of prison has to account for any of its putative benefits as well (which, to be clear, are low), since those costs and benefits are felt by roughly the same communities. But most cost-benefit analyses appear to compare the marginal reduction in crime to average cost of incarceration (that $35,000 number again). Putting aside the average-marginal problem, the average social cost of locking someone up most likely dwarfs the average fiscal cost, and likewise for the marginal costs. So we are grossly understating what locking a person up costs us, by focusing on something that mostly measures the wages earned by guards, not the far greater, and far more unambiguous social costs borne by prisoners, their families, and society.

We think about the costs of incarceration poorly. By looking at the average fiscal cost, not the marginal, we convince ourselves that decarceration will produce more immediate savings than it will. At the same time, by ignoring the social costs of prison, we make it seem far cheaper than it really is.

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