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‘Like a Bad Dream’: In New Orleans, Witnesses Are Going to Jail Instead of Perpetrators

Still image from a video produced by the ACLU highlighting Orleans Parish DA Cannizzaro’s use of material witness warrants.

‘Like a Bad Dream’: In New Orleans, Witnesses Are Going to Jail Instead of Perpetrators


In the spring of 1983, Donald Mairena witnessed a shooting at New Orleans’ Latin American Club. He chased after the shooter and later told law enforcement what he’d seen. Mairena gave them his address in case they needed any more information from him. He heard nothing about the case until almost two years later, when he was arrested and jailed for nearly a month simply because prosecutors at the Orleans Parish district attorney’s office, then led by Harry Connick Sr., felt that he “might be needed as a witness if the case went to trial.”

Upon hearing Mairena’s case seeking damages from the Orleans DA for violations of his civil rights, judges on the Fifth Circuit Court of Appeals panel marveled, “The facts in this case are like a bad dream.”

Yet Mairena was far from the last witness to spend time in the New Orleans jail. More than 30 years later, the Orleans DA still regularly detains witnesses by using material witness warrants. Orleans Parish prosecutors obtain the warrants to force a person to testify in court if they believe that person has knowledge of a crime. They are meant to be used in extraordinary circumstances, such as for when a prosecutor suspects that a critical witness in a case might flee.

The Orleans DA’s office has frequently insisted that it is fighting for crime victims when it pursues lengthy prison sentences and fights exonerations. Its mission statement explicitly says the office seeks to “advocate for the victims of crime.”

But since 2010, Orleans District Attorney Leon Cannizzaro has sought more than 150 such warrants to arrest witnesses, including a significant number of victims, according to a data analysis by the Yale Law School students of the legal scholar James Forman Jr. that was shared with In Justice Today.

A 19-year-old victim of sex trafficking was arrested in November 2014, shortly after giving birth to her daughter. She had failed to appear at a hearing during her pregnancy because she was supposed to be on bed rest and had a doctor’s note to prove it. Even so, she was held in jail for nearly four months until she testified against the father of her child.

Another victim who was shot with a semiautomatic rifle was jailed as a material witness on a $100,000 bond in December 2016. Two victims of assault were arrested and jailed on $250,000 bond after they tried to recant their testimony against their alleged attacker.

Cannizzaro’s office generated national outrage — and a lawsuit — in the fall of 2017 over its practice of creating subpoenalike notices to compel witnesses to meet with prosecutors. These fake subpoenas hold no inherent legal power. But the forged documents were given teeth by the DA’s indiscriminate use of material witness warrants.

These witnesses have no right to counsel because they are not accused of a crime. Some have sat in jail for days or months before trial. They are often held on exceptionally high bond, sometimes even higher than the person they are testifying against.

In theory, material witness warrants are meant to be used in rare cases when prosecutors have a reason to fear a witness won’t show up to testify at trial. But Cannizzaro and prosecutors in other jurisdictions have allegedly used these warrants to intimidate witnesses into private interrogations often without attorneys present and to pressure them to mold their version of events to the state’s theory of the crime. In short: Cooperate with the state or go to jail.

The lawsuit filed by the ACLU and Civil Rights Corps, a nonprofit organization that challenges systemic injustice in the American legal system, alleged that the Orleans DA not only issued fraudulent subpoenas, but also secured material witness warrants under false pretenses to arrest witnesses who refused to cooperate with prosecutors.

In a May 9 hearing on the fake subpoena lawsuit, a federal district judge strongly criticized the Orleans DA’s material witness warrant policy.

“What was particularly troubling to me with the material witness warrants is that people, as I appreciate it, were incarcerated for a period of time with no appearance before a judge,” said Judge Jane Triche Milazzo of the United States District Court for the Eastern District of Louisiana. “It appears to me that people picked up on material witness warrants are being treated differently than people picked up on arrest warrants for crimes. They appear to have fewer rights.”

Indeed, the Yale Law students’ analysis of 159 material witness warrant applications filed by the Orleans DA from 2010 to 2017 offers a window into how this practice often ends up harming the victims and witnesses the Orleans DA office claims it seeks to protect.

They identified at least 25 cases in which witnesses were held on a higher bond amount than the person charged with a crime. In one case, a domestic violence victim was held on a bond of $100,000–20 times higher than that of her alleged abuser, who was given a bond of $5,000. In eight cases, prosecutors sought $500,000 bonds. The records indicate judges almost never denied prosecutors’ requests for high bond amounts.

These high bond amounts meant that when people were detained on material witness warrants, they were likely to stay in jail. Some witnesses with other minor charges against them ended up staying in jail for far longer; at least seven witnesses spent over 100 days in jail. One man was detained for 43 days, about 10 percent of the time the defendant in the case received.

The data analysis by Forman’s law students also suggests that the Orleans DA primarily deploys material witness warrants against black New Orleanians. African Americans made up 78 percent of both arrested and non-arrested material witnesses. Out of 50 people actually arrested on material witness warrants, one was a white man.

In many cases, the Orleans DA requested the warrant based on nothing more than the fact that the witness had refused to meet with prosecutors privately. One warrant was issued for the victim of an attempted murder simply because the office felt he was avoiding meeting with an investigator and victim witness coordinator. According to the motion for a material witness warrant filed by Assistant District Attorney Christopher Cortez, the victim’s father told an investigator with the Orleans DA’s office they did not want to participate in the prosecution.

Another man was held on $100,000 bond to testify against a person accused of unauthorized use of a motor vehicle. The defendant was given a $10,000 bond, while the witness sat in jail for a week. The sole reason given for the warrant was that he had not shown up to private meetings with the prosecutor on the case.

The Orleans DA has continued to request warrants for witnesses even after being sued by the ACLU and the Civil Rights Corps last year. And on May 18, the ACLU issued a statement attacking “Cannizzaro’s “callous treatment of victims” and the “community members who have suffered through years of aggressive, coercive, and retaliatory treatment at the hands of the Orleans Parish District Attorney’s Office.”

Orleans DA spokesperson Ken Daley emphasized to In Justice Today that the judges are ultimately the ones granting these warrants and that the DA has “no power” to jail witnesses without a judge. “Any decision to seek a material witness warrant approval from a judge is made with great care, requiring extensive discussion of possible alternatives and ultimately requiring the personal approval of the DA or First Assistant,” Daley wrote in an email.

But the tide is beginning to turn against the practice.

Prosecutors in other parts of the country have pledged to stop jailing victims of domestic violence or sex crimes. Reform-minded district attorneys, like Distict Attorney Kim Ogg of Harris County, Texas, and candidate Joe Gonzales of Bexar County, Texas, have spoken out against the practice and have sworn never to detain a victim.

The criminal justice accountability group Court Watch NOLA has called onthe Orleans DA’s office to stop incarcerating victims of domestic violence and sexual assault, and at a minimum create a clear policy for when issuing warrants for other victims is necessary.

Louisiana lawmakers could also get involved if the Orleans DA continues detaining witnesses. Other jurisdictions around the country already have safeguards to protect witnesses from indefinite detention. Some states cap the amount of time witnesses may spend in jail, and others give them a right to counsel and a hearing to contest the warrant. New Jersey even requires that witnesses be held in “comfortable quarters and served ordinary food” rather than thrown in jail.

Still, Cannizzaro has resisted all calls for reform. Instead, he has blamed“partisan special interest groups, who strongly oppose my office’s aggressive pursuit of violent criminals” for challenging him on the issue. And his spokesperson Ken Daley argued after the May 9 federal court hearing on fraudulent subpoenas that ending the DA’s policy on material witness warrants would “dislodge the underpinning of our justice system, escalate incidence of witness intimidation, and further endanger our crime-weary community.”

“Asking a judge to detain a victim in any case is a tool of last resort, and is done only when the totality of circumstances show that to proceed otherwise would result in a dangerous defendant walking free to pose a continued threat to the safety of the community we are sworn to serve and protect,” Cannizzaro said in a statement emailed to In Justice Today. “Such occurrences are extremely rare in the nearly 7,000 cases we handle per year between Criminal District and Municipal court. But even as this issue has been grossly overstated, it would be unwise and potentially dangerous to issue any blanket policy that would prevent our ability to assess any criminal case on something other than its own individual merits.”

Several prominent victims’ rights groups disagree. Three victims’ advocacy organizations aligned with the ACLU and Civil Rights Corps against Cannizzaro in a brief filed in federal court in May, detailing how prosecutors are re-traumatizing and manipulating survivors of sexual assault and domestic violence through the use of material witness warrants.

The brief, filed by the Louisiana Foundation Against Sexual AssaultThe Domestic Violence Legal Empowerment and Appeals Project, and the National Alliance to End Sexual Violence, emphasizes that jailing witnesses and coercing testimony harms victims. They also argue that these tactics backfire by making witnesses even less likely to cooperate with law enforcement. “It is no stretch to conclude that the abusive subpoena and material witness procedures and retaliatory punishment…will chill the voluntary witness cooperation on which the successful prosecution of sexual assault and domestic violence cases so heavily depends,” they write.

And the groups take aim at the idea that the criminal justice system serves victims, particularly victims of domestic violence, at all. “The goals of victims often are not aligned with those of the criminal justice system,” their brief states.

2015 ACLU survey of advocates, lawyers, and service providers cited in the brief found that victims of domestic violence and sexual assault were especially wary of getting mired in the criminal justice system for three main reasons: They wanted “options other than punishment for the abuser, options that were not necessarily focused on separation from the abuser”; they feared “they would lose control of the process” if they continued within the constraints of the criminal justice system; and “they believed that it was complicated, lengthy, and would cause them to suffer more trauma.”

“In essence, power is shifted from the abuser to the state,” one survey respondent explained.

Far from working for them, the criminal justice system can cause even further damage to victims, the report stated. “The criminal justice system is not trauma informed and can re-traumatize a survivor of violence,” another respondent said. “Many survivors I have worked with that did go through the criminal justice system wish they had not after the fact because it negatively impacted their ability to heal from trauma.”

Further punishing traumatized victims simply confirms their worst fears about participating in the system. As the victims rights’ groups wrote in their brief in federal court, “The coercion and retaliatory punishment plaintiffs allege compounds that destabilization, thereby turning on its head the role the criminal justice system should play for crime victims and witnesses.”

Susanna Evarts, Adeel Mohammadi, and Hannah Schoen contributed research to this story.

Bill Challenging ‘Safekeeping’ of Tennessee Teens in Adult Prisons Could Soon Become Law

From left to right: Lisa Geis, attorney and director of the Children’s Defense Clinic at the University of Memphis School of Law; Rosalyn “Bird” Holmes; April Austin, Bird’s mom; and Kathleen Austin, Bird’s grandmother.
Lauren Ready, Forever Ready Productions

Bill Challenging ‘Safekeeping’ of Tennessee Teens in Adult Prisons Could Soon Become Law


On Wednesday, May 16, 16-year-old Rosalyn “Bird” Holmes was able to walk out of prison and hug her mother. Though the teenager has yet to be indicted, let alone convicted, of any crime, she nonetheless spent the past 40 days in the Tennessee State Penitentiary, an adult women’s prison in Henning, Tennessee. Had it not been for the advocacy of Just City, a Memphis-based criminal justice organization, and the $60,000 bond posted by the Robert F. Kennedy Human Rights organization, Holmes might still be languishing in an adult prison awaiting her day in court. And she’s not the only teenage girl who has been sent to an adult prison without a trial or conviction.

Four months earlier, on January 27, Holmes was the passenger in a car with three other teenagers — two boys and another girl—who allegedly kidnapped at gunpoint, according to police. The four were arrested and charged with kidnapping and robbery. Holmes and the other girl were sent to the Shelby County Juvenile Detention Center while awaiting their day in juvenile court.

In February, Holmes turned 16. She remained in juvenile detention.

In mid-March, the courts decided that she could be tried as an adult — meaning that her case was transferred to adult court. She remained in juvenile detention until March 29 when the court held a “safekeeping” hearing to decide whether to transfer her to an adult facility.

Safekeeping in Tennessee dates back to an 1858 law allowing sheriffs and jailers to transfer a person to another jail or prison if their jails could not accommodate a person’s medical, mental health, or behavioral problems. The law continues to be used — between January 2011 and 2017, more than 320 people awaiting trial in Tennessee were confined to prisons under safekeeping. In 2017 alone, there were 86 people held as so-called “safekeepers.” Most are adults with medical conditions, including pregnancy, that the jail is not equipped to handle. But others are adults with mental health or behavioral issues or, as in Holmes’s case, teenagers facing adult charges.

The Tennessee Department of Correction policy mandates that those under safekeeping status be kept in solitary confinement.

That’s what happened to Teriyona Winton, a Memphis teenager awaiting trial in adult court. Winton was 15 years old when she was arrested and charged in the shooting of a 17-year-old boy. She was sent first to the women’s adult jail in Shelby County, then transferred to the Tennessee Prison for Women just outside of Nashville, more than 200 miles from her family in Memphis. But she wasn’t only isolated from her friends and family — she was also physically isolated in solitary confinement as both a safekeeper and because she was a teenager in an adult prison. She spent 23 hours a day in her cell, where she received all of her meals and a few hours of school instruction through a flap in her cell door. For the one hour she was allowed out of her cell — to shower or to exercise alone in the gym — her hands and feet were shackled.

Under the 2003 Prison Rape Elimination Act (PREA), prison and jail officials must separate incarcerated children under age 18 from adults by “sight and sound.” In other words, incarcerated children are not allowed to be in places with their adult counterparts. But because so few girls are sent to adult prisons, this often means that they are kept in isolation until they turn 18. The adult prison system in Ohio, for instance, held one girl under the age of 18 in March 2018. The following months list no girls under the age of 18 in custody, though it is unclear whether the sole girl turned 18 and was moved to the adult section or was released from prison.

But in Shelby County, Tennessee, girls under the age of 18 are placed in prison — often in isolation — even before they are indicted, let alone convicted. Winton spent months in solitary before attorneys with Just City intervened. Even then, Winton wasn’t sent to juvenile detention where she could be around other girls — she was moved back to the women’s jail in Shelby County. When Holmes was declared a safekeeper in March, both girls were transferred to the Tennessee State Penitentiary where they were the sole occupants of a 158-bed unit.

“Every day was the same,” Holmes told The Appeal. The two girls were allowed out of their cells at 6 a.m. each day. A teacher came in and taught them for a few hours, they were allowed to go to rec, and they were able to watch TV. At 8:30 p.m., they were locked in their cells for the night. But, though they were allowed to move around the unit during the day, the monotony wore on them. “You get tired of the same thing everyday,” Holmes said.

Josh Spickler, executive director of Just City and Holmes’s attorney, notes that Shelby County is the only county in Tennessee that sends pretrial teenagers to adult prisons for safekeeping. “It’s the culture in Shelby County of treating Black bodies in a certain way,” said Spickler. “They’re kids on paper, but they’re treated as tiny adults. They’re seen as threats.”

According to Debra L. Fessenden, the chief policy and statutory compliance officer for the Shelby County Sheriff’s Office, juvenile judges determine where young people are housed, and there was nowhere to hold the girls apart from an adult prison. “There were no jails in the entire state which could do that, so there was no choice but to take the extraordinary measure of asking the state for help with their safekeeping.” But, she added, the sheriff and juvenile court judge are working “to obtain a location to house all Shelby County youth in a local facility with plenty of classroom and outdoor space.”

In April, State Senator Mark Norris filed an amendment to a bill that would prohibit sending teenagers to adult prisons as safekeepers. The amendment, which is retroactive, unanimously passed both houses of the state legislature later that month. On May 10, the bill reached the desk of outgoing Governor Bill Haslam, who has previously said that it “doesn’t make sense” to place teenagers who have not been convicted of a crime into an adult prison. He has 10 days to sign it into law or veto it. If he does neither, the bill automatically becomes law.

Holmes is now home, but only because the Robert F. Kennedy Human Rights organization posted bond. She’s not free either — though the judge waived a requirement for electronic monitoring, she is required to do day-reporting, which Spickler described as “like probation or parole but before conviction.” Speaking to The Appeal the day after her release from adult prison, Holmes said, “It’s not a place where teenagers should be. Keep them around other people their age.”

Meanwhile, Winton remains in the Tennessee State Penitentiary — alone. Shortly after Holmes was released, she used the prison’s e-messaging kiosk to write to Spickler. “Bird left. What happens now?”

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The Perverse Incentives of Punishment

Etowah County Sheriff Todd Entrekin
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The Perverse Incentives of Punishment


Todd Entrekin, the sheriff of the small Alabama county of Etowah, recently found himself in the national spotlight when an Alabama newspaper discovered that over the course of three years he pocketed at least $750,000budgeted for feeding the people detained in his county jail. While the inmates in his jail ate meat from a package labeled “not fit for human consumption,” the sheriff bought himself a $740,000 beach house.

And it was all seemingly legal, thanks to a 1911 Alabama law that many sheriffs interpret to mean that whatever funds they don’t spend on their jails they can keep for themselves.

The story is horrific on its own terms, which is why the actions of a small-town sheriff — Etowah County has a population of about 100,000 people — quickly made national news. It is yet one more example of the almost countless ways in which our criminal justice system dehumanizes those it touches.

What happened in Etowah, however, highlights a deeper flaw in our criminal justice system. Much of the harm and destruction the system causes is exacerbated, if not often directly caused, by the complex web of financial obligations that criss-cross the convoluted morass of agencies that we too-simplistically call our “criminal justice system.”

Insufficient attention is given to how obscure contractual terms and budgetary decisions — things that fall fully within the responsibility of the public sector — shape how criminal justice actors behave. To be clear, values and attitudes matter a lot: Many officials inarguably view those who come within their control as undeserving of compassion, if not less than human, and treat them accordingly. But everyone from private prison managers to elected sheriffs to county commissioners also pay very close attention to the fiscal incentives they face.

In some cases, like in Etowah County, the incentive is clearly stated and transparently problematic. And there are examples from other states as well. Take Missouri. One prominent revelation in the wake of the Ferguson protests was the extent to which municipal officials encouraged various police departments across St. Louis County to impose fines in order to fundlocal governments.

Another example from St. Louis County, however, demonstrates how less-obvious contractual provisions encourage punitiveness. Following the Ferguson protests, prosecutors aggressively went after people who had participated in them, or just journalists who covered the protests, even as they dropped charges or kept losing cases. It would be easy to talk about aggressive prosecution or problematic desires to silence the press, but the explanation is far more contractual. Many municipalities in St. Louis County contracted prosecution services to local law firms (something that happens in about 15 percent of U.S. counties), and the contract didn’t include a cap on payments. More prosecutions, more money. Because local officials wrote bad contracts.

Similarly, with only a few exceptions, the attacks on private prisons generally miss the point, overlooking the significance of bad contract incentives to focus instead on the seeming evil of the “profit motive” — as if the $30 billion in wages and benefits going to public sector correctional officers isn’t a profit motive itself. But that’s a separate issue.

The conventional argument against private prisons runs something like this: States pay private prisons a per-prisoner per diem, and the prisons respond by cutting services and staffing and training and food in order to get their per-prisoner costs below that per diem. The people running the prisons then take their per-prisoner savings and invest them outside the prison, and lobby hard against reforms that would reduce prison populations, since that would cut profits. And the lack of staffing and training provide a second, more insidious benefit — they likely increase recidivism rates, which increases the number of people returning to prison and thus raises profits too.

This is an awful story. And it happened in Louisiana almost entirely without the help of private prisons. The state government paid local (public sector) sheriffs a per-diem to house state (public) prisoners in county (public) jails, and the sheriffs cut jail costs, diverted the savings to fund their (public sector) departments outside the jails, and lobbied against reforms.

Public sector officials behave exactly like private sector ones when given the same incentives. It’s the incentives, not the “profit,” that matter. So if we change the financial incentives people face, we may be able to get better outcomes. Pennsylvania recently introduced new contracts that reward private halfway houses that beat recidivism targets, and cancel the contracts of those who fall short; so far, they seem to be producing good results. Similarly, Australia just opened a private women’s prison with a strong recidivism provision in its contract, and the U.K. has done the same.

Not all of the fiscal incentive problems arise from explicit contract provisions, however. Sometimes they result from the baffling structure of our criminal justice system. In fact, what we call our “criminal justice system” is not a system, but rather a morass of city, county, state, and federal systems, all of which interact with each other in ways that are frequently perplexing at best, and incomprehensibly counterproductive at worst.

I don’t know to what extent the poor design of these overlapping institutions stems from intentional malfeasance, malicious indifference, or just genuine incompetence or inattention. My guess is that in many cases they arose haphazardly and unintentionally over time, and that no one has the interest or incentive now to try to fix them. But whatever their origin, and whatever explains their durability, they create terrible incentives that likely play major, but generally underappreciated, roles in driving the everyday failures and pathologies of punishment we see today.

Just look again at Alabama’s 1911 jail-food law, the product of a time when sheriffs lived in the jails, had their wives cook the prisoners’ food, and received no salary outside of the fees they could collect. It’s not like the state is unaware of the law’s problems; the legislature simply hasn’t been able to amend it. And while you might think the opposition comes from greedy county sheriffs looking to buy summer homes, the real resistance has come from the state’s association of county commissioners. The flip side of Alabama’s law is that while sheriffs get to keep any unspent funds, they are also personally liable for any shortfalls — and the county commissioners don’t want to assume that risk, even as some sheriffs actually push to fix the law.

In other words, the law persists because fiscal responsibility is fractured even within a county, and that creates strong incentives to make sure “someone else” has to take responsibility. Obviously greed and malicious indifference, if not actual malice, matter too, but the impacts of far-more-mundane fiscal obligations are quite significant.

A far more common example of how fractured responsibility encourages harshness and severity is what I call the “prosecutorial moral hazard problem.” Prosecutors, as reformers have started stressing in recent years, are mostly county-elected officials, who are mostly paid from county funds. Jails, too, are paid for by the county, as is often probation. Prisons, however, are paid for by the state.

This creates a powerful incentive to be harsh, since it is actually cheaper for a prosecutor or county-elected judge to charge or impose a felony sentence rather than a misdemeanor. A felony sends the defendant to state prison, and thus off the county books, while a misdemeanor would keep him in county-funded jail or probation.

California is the one state that has confronted this moral hazard problem in any serious way — and, quite tellingly, it alone is responsible for over half of the national decline in prison populations since 2010. One component of its complex realignment reform is that counties must now bear the cost of locking up certain less-serious offenders, even when they are convicted of felonies. Data indicate that this sort of cost-internalization has worked in the past, and it seems to be working now in California (with no real impact on public safety). Unfortunately, few states seem willing to follow in California’s footsteps.

This sort of moral hazard problem likely explains another policy failure, or at least an inefficiency, that we frequently see. The data is clear that policing is far more effective than incarceration at reducing crime, and yet we have over-invested in prisons, compared to policing (and many, many other interventions, including those outside the realm of law enforcement altogether). And at least one reason is surely that local officials have a strong incentive to push for tougher sentencing laws: They get to appear tough on crime for their local constituents while pushing the costs onto a different, and better-funded, level of government. The city would have to pay for more police, but the state picks up the tab for the longer sentences.

Now, there are some efforts to address these misaligned incentives. The Justice Reinvestment Initiative (JRI), for example, is trying to target some of these, by bringing state and local government officials together to work to shift funding away from what works poorly to what works better. But JRI is just a small part of the overall reform effort; in general, inter-governmental fiscal incentives, while quite important, seem to get far too little attention. Most reforms aim to change the basic criminal and sentencing laws, not the deeper sets of financial and political incentives that shape how police and sheriffs and prosecutors and others use the unavoidable discretion they will always wield.

But to end on a quirkily optimistic note, just as our failure to account for financial incentives causes us to miss a lot of problems, it also sometimes causes us to overstate them. Take civil asset forfeiture, which allows the police to seize property they think was involved in a crime (such as a car used to transport drugs) even if no one is convicted of the crime. Asset forfeiture is hated by reformers on the left and right alike, and it is often accused of encouraging police to target drug crimes just for profit.

There is much wrong with civil asset forfeiture, but its impact is likely overstated—again because of jostling, conflicting financial goals and obligations. In this case, the police do not determine their own budgets — those are set by local city and county legislatures and executives, all of which have a lot of funding obligations besides law enforcement. Two economists produced results that suggest these other agencies tend to cut police budgets to offset forfeiture earnings: For every dollar the police seize, subsequent budgets are offset by about 40 or 50 cents, sometimes almost dollar for dollar.

In many ways, I fear that these sorts of powerful financial incentives are distinctly treacherous because they are so technical and mundane. Often what is shocking and emotionally gripping is less important than the tedious stuff chugging away in the background, and so that tedious stuff gets a pass.

I saw this during the 2016 presidential primaries, when Hillary Clinton was attacked for her support for the 1994 Crime Bill whose provisions were provocative but whose impact was slight. Ignored in the debate over the Clinton legacy on crime was the far more significant Clinton-era Prison Litigation Reform Act (PLRA), which restricts prisoners’ ability to challenge terrible prison conditions in federal court by denying them the ability to sue until all “administrative remedies as are available are exhausted.” Bureaucratic issues like the “exhaustion of administrative remedies” is not a gripping topic, but these technical provisions of the PLRA enabled California to under-fund its prison system for years, to the point that the Ninth Circuit held that approximately 60 prisoners died from preventable deaths per year. The PLRA killed people, but the law received almost no attention whatsoever during the 2016 campaign.

The public-sector financial incentives are victims of the same inattention. They aren’t exciting to talk about, but their impact is real and powerful, and reformers need to direct far more energy toward changing them.

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