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New York Woman Imprisoned For Defending Herself From Abuser Seeks Mercy

Jacqueline Smalls was sentenced to 15 years in prison for killing a boyfriend whose ‘hands were his weapons.’ She now joins the ranks of criminalized survivors seeking clemency from Governor Cuomo.

Jacqueline Smalls (center) in a family photo with daughters Nikki Smalls-Williams (left) and Dawn Smalls (right).
Smalls family

New York Woman Imprisoned For Defending Herself From Abuser Seeks Mercy

Jacqueline Smalls was sentenced to 15 years in prison for killing a boyfriend whose ‘hands were his weapons.’ She now joins the ranks of criminalized survivors seeking clemency from Governor Cuomo.


On the night of Aug. 26, 2012, Adrian King stormed into the home of his girlfriend Jacqueline Smalls at 1512 Van Vranken Ave. in Schenectady, New York. In the two years that King lived with Smalls, he repeatedly choked her, leading to his arrest on multiple occasions as well as two orders of protection.  Soon after entering the apartment that night, according to Smalls, King attacked her again; this time, however, she fought back, stabbing King once, fatally.

Even though Smalls defended herself from a man with a well-documented history of abusing her—King once smashed her phone to prevent her from calling the police and she recalled that “my abuser’s hands were his weapons”—prosecutors from the Schenectady County district attorney’s office insisted that she did not have a viable self-defense case and charged her with second-degree murder. Smalls later entered a guilty plea to a lesser charge of first-degree manslaughter. In December 2013, a judge sentenced Smalls to 15 years in prison; she is incarcerated at the Bedford Hills Correctional Facility, New York’s maximum-security prison for women.

Nearly five years later, Smalls, 55, is among an unknown number of survivors of abuse languishing in New York prisons. No government agency tracks the numbers of survivors incarcerated for defending themselves, but a 2007 study by the New York’s Department of Corrections and Community Supervision found that 67 percent of women who were admitted to a New York prison for killing a loved one in 2005 had been abused. Nationally, nearly 60 percent of incarcerated women reported experiencing abuse before their arrest.

Smalls is hoping that Governor Andrew Cuomo will grant her clemency and allow her to rejoin her family before her sentence ends in 2027.  Her 29-year-old daughter, Nikki Smalls-Williams, too is desperately hoping that the governor will have compassion for her mom. On Aug. 9, Smalls-Williams read her mother’s story aloud as part of the kickoff event for the #FreeThemNY campaign, which demands that Cuomo grant clemency to abuse survivors in New York prisons. It was the first time she had spoken publicly about her mother’s experience.

Smalls-Williams was 23 when her mother was arrested and detained at the Schenectady County Jail without bail. She was living about 170 miles away in Queens, but still made the long drive to visit her mother regularly. Only then did she learn about the extent of the violence her mother had suffered at the hands of her abuser. “She thought she could handle it herself by getting law enforcement involved, which obviously didn’t work out for her,” Smalls-Williams recalled. “Schenectady County failed her.”

Governors have the power to issue an unlimited number of clemencies to any person at any time. They can issue a commutation, or the shortening of a prison sentence, which allows either an earlier parole hearing or an immediate release. They can also issue a pardon, expunging a person’s criminal conviction altogether.

In 2015, Cuomo announced the creation of a clemency review initiative to identify people in the state’s prison system who might be worthy of commutation. Cuomo set stringent criteria for consideration, requiring a applicants to have been sentenced to at least one year in prison, to have already served at least half of that sentence, and to not be scheduled to appear before the parole board within the next year. So far, Valerie Seeley is the only domestic violence survivor to have been granted clemency by Cuomo, whose record on commutations is generally extremely poor. He has issued a total of 12 commutations since taking office in 2011, two of them occurring in 2017 and 2018. In contrast, California’s Jerry Brown has issued 84 commutations during his seven years as governor; 45 of those were granted in 2018 alone.

Smalls, now six years into her 15-year sentence, does not fit Cuomo’s strict clemency criteria. “Ms. Smalls is not yet eligible,” Cuomo’s press office stated in an email to The Appeal. “Once she is, her case will be thoroughly evaluated and evaluated on its own merits, just as every other case is.”

But Hafizah Omar, an organizer with Survived & Punished NYC who is working with Smalls, noted that Cuomo himself set these criteria and that “the governor doesn’t have to adhere to these criteria. He can free anyone at any time.”

Gubernatorial candidate Cynthia Nixon, meanwhile, has promised to “commute the sentences of survivors of domestic violence who are incarcerated for acts of self-defense” while criticizing Cuomo’s record on commutations.

Cuomo’s counsel Alphonso David has previously said that the governor’s office was “actively looking at domestic-violence victims, as well as juveniles and elderly people in prison, to determine clemency.” It’s unclear, however,  if this is still the case. Cuomo spokesperson Colin Brennan recently told The Appeal only that “every clemency application is reviewed on a case by case basis and thoroughly evaluated. If there are similar cases, each one will be evaluated on its own merits.”

Smalls-Williams, however, is urging Cuomo to make good on his earlier promise: “Just send my mom home.”

Pennsylvania Prosecutors Pursue Charges For People Who Fall Behind On Rent-To-Own Payments

The state’s “theft of leased property” statute allows prosecutors to seek felony charges for Pennsylvanians who miss payments on rental items.

A Rent-a-Center store in Niles, Illinois.
Tim Boyle/Getty Images

Pennsylvania Prosecutors Pursue Charges For People Who Fall Behind On Rent-To-Own Payments

The state’s “theft of leased property” statute allows prosecutors to seek felony charges for Pennsylvanians who miss payments on rental items.


On April 30, Nicolas Harmony spent the night in jail in Franklin County, Pennsylvania. The 23-year-old Chambersburg man missed a criminal court appearance and was picked up on a bench warrant. After paying a bondsman to post his $25,000 bail, Harmony was released the next day.

But Harmony’s case did not involve an assault or even robbery: His crime was falling behind on payments for his bed and washing machine.

In July 2016, Harmony went to an Aaron’s rent-to-own store near Chambersburg and purchased a bed. Soon afterward, he signed a contract with the company for a washing machine.

Court records do not state how much Harmony was required to pay for either contract. However, the least expensive bed similar to the one Harmony purchased currently sells for $1,400 through Aaron’s and requires a $124 monthly payment. The washer and dryer set with the lowest monthly payment has a sale price of a little more than $1,100 and monthly payment of $80.

In September, Harmony missed his monthly payment. But instead of sending his case to a collection agency, Aaron’s sought a private criminal complaint that was approved by Magisterial District Judge Kelly Rock alleging Harmony had stolen the bed and washing machine. He was then charged by the Franklin County district attorney’s office with a felony under Pennsylvania’s theft of leased property law which states that “a person who obtains personal property under an agreement for the lease or rental of the property is guilty of theft if he intentionally deals with the property as his own.” The statute is used by rent-to-own companies to turn the criminal justice system into their debt collector.

Harmony’s case was dismissed in June under a Pennsylvania court rule that allows for the imposition of court costs and restitution instead of a criminal conviction for the defendant. In Harmony’s case, he was ordered to pay Aaron’s more than $2,000 in restitution and over $200 in court fees and costs. A spokesperson for Aaron’s told The Appeal that “while we do not comment on criminal cases involving our customers, Aaron’s, following a 2017 review of its collections practices, has revised its policies to no longer pursue criminal charges against its customers for theft of service.”

Nonetheless, theft of leased property cases are commonplace in Pennsylvania. The Appeal reviewed all criminal dockets filed in the state in 2016 and found 610 cases charged under the statute largely stemming from rent-to-own companies including Aaron’s and Rent-A-Center.

“When [companies] are able to use the criminal justice system to enforce those debts and subject people they’ve already taken advantage of to criminal penalties, that to me is unconscionable,” Myesha Braden, director for the Criminal Justice Project at the Lawyers’ Committee for Civil Rights Under Law, told The Appeal. “That perpetuates mass incarceration. That perpetuates inequality.”

Braden said lenders should obviously expect customers to make payments on their loans, but that many companies make loan terms so burdensome it is nearly impossible for poor people to not default. 

Most people charged with theft of leased property in Franklin County end up having their charges dismissed if they agree to pay for the items—as was the case with Harmony—or return them.

Only three of 17 theft of leased property cases filed in the county in 2017 resulted in a conviction, The Appeal found in a review of criminal court records.

Franklin County District Attorney Matthew Fogal told The Appeal that the widespread dismissals of theft of leased property cases does not mean he opposes bringing the charge in the first place. He compared these cases to the writing of bad checks: “the victim simply wants to be made whole financially.”

But these criminal prosecutions can be costly to the county. In one case, Franklin County paid more than $400 to provide a Haitian Creole translator for a defendant whose charges ultimately were dismissed when he returned the items he had been leasing.

For defendants facing a theft of leased property charge, failing to pay back court debt can result in a  driver’s license suspension, an arrest, or incarceration.

The theft of leased property charges that landed Harmony in jail is the only criminal case filed against him in Pennsylvania, but unless he petitions and pays to have the records expunged, the arrest will remain on his record even though charges were dismissed.

And had Harmony been convicted of the felony offenses he was originally charged with he would have faced possible probation or imprisonment, as well as more than 300 collateral consequences, according to the National Inventory of Collateral Consequences of Conviction.

For example, anyone convicted of a felony in Pennsylvania is ineligible to hold any job inside a school and can be denied educational financial assistance from the Pennsylvania Higher Education Assistance Agency.

”It’s kind of the unholy alliance between the criminal justice system and debt collectors,” says Braden.

More in Explainers

Justice In America Episode 7: The New Progressive Prosecutors?

After Tuesday’s primary victories for reform candidates, defining a progressive agenda for prosecutors is more pressing than ever. Rashad Robinson joins Josie and Clint.

Cook County State's Attorney Kim Foxx
Vivien Killilea / Stringer / Getty

Justice In America Episode 7: The New Progressive Prosecutors?

After Tuesday’s primary victories for reform candidates, defining a progressive agenda for prosecutors is more pressing than ever. Rashad Robinson joins Josie and Clint.


Over the past few years there’s been a growing movement, led by groups like Color of Change and National People’s Action, whose goal is to elect progressive prosecutors. From Philly to Chicago, Houston to Orlando, St. Louis to Denver, we’ve seen prosecutors concerned with justice and civil liberties beat those focused only on convictions and sentences. But what does it really mean to be a progressive prosecutor? And what comes next for the movement?

On this episode, Josie and Clint look at how this movement got started and talk to Rashad Robinson, the Executive Director of Color of Change.

Additional Resources:

How to get more involved in Color of Change: Text WOKE to 225568 or sign up at colorofchange.org.

Check out Color of Change’s platform at winningjustice.org.

Prosecutors Keep Their Jobs by Putting People in Jail. Can They Be Leaders in the Fight for Criminal-Justice Reform? By Collier Meyerson in The Nation

Josie’s article, Cyrus Vance and the Myth of the Progressive Prosecutor, in the New York Times

What If Prosecutors Wanted to Keep People Out of Prison?” By Nick Tabor in New York Magazine

Electing Progressive Prosecutors Isn’t Enough. Now, Activists Are Holding Them Accountable,” by Adeshina Emmanuel

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

Our email is justiceinamerica@theappeal.org.

Transcript:

[Begin Clip]

Rashad Robinson: What we helped people do was see their own power in a situation where they felt hopeless like there was no possibility for change, communities banded together and put district attorneys in office that were going to be accountable to them. And it doesn’t mean that everything changes overnight, but what it does mean is that when someone knows that you put them in office, they also know that you can take them out and that type of power when leveraged appropriately, is the type of power that gives us the ability to change the rules, it’s why elections matter.

[End Clip]

Clint Smith: What’s up everybody? I’m Clint Smith.

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

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

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

Clint: So we started the show with a clip from our guest, Rashad Robinson, who’s the executive director of Color of Change and we’re thrilled to have him on today.

Josie: Today we’re talking about a topic that we’ve covered a little bit before.

Clint: Prosecutors. But we are going to talk about a new thing regarding prosecutors and that is drum roll-

[Drum Roll]

Josie: Prosecutor elections.

Clint: So if you consider yourself a progressive, which both of us do, the past few years have been tough election wise to say the least. We’ve seen a lot of losses, but there’s one area where progressives have actually been pretty successful. And that’s in district attorney elections.

Josie: Yes. So over the past two or three years, the criminal justice reform conversation has really shifted significantly. You may remember from our last episode on prosecutors, where we mentioned and lamented that prosecutors don’t always get a lot of attention and this has traditionally been a real problem because they are truly one of, if not the most powerful actor in the criminal justice process. And they are responsible for much of the mass incarceration explosion that we’ve seen over the past few decades.

Clint: You may also remember that we mentioned in most jurisdictions, prosecutors are democratically elected, so you may have or hopefully at least voted in an election for your district attorney or your state attorney or whatever they call prosecutors in your particular state. And in theory this should keep them accountable, but as we’ve talked about over and over again, that doesn’t really actually happen.

Josie: Exactly and traditionally prosecutors have just all run on a tough on crime platform, like the best way to win a prosecutor’s race until just a few years ago has been to be the meanest, most aggressive prosecutor you can be.

Clint: This has been the narrative for a long time, so the fact that we ended up with mass incarceration isn’t super surprising considering what we know about the incentives of the system.

Josie: This was the story pretty consistently all the way up until about 2015 and in a lot of places it’s still the story. But before then the narrative was shifting a little, maybe, but not too much. And there were a few prosecutors who framed their work a little less aggressively than what was typical. But in general, the tone of prosecutorial candidates was like, ‘I will put every single bad guy away for a very, very, very long time.’ And that was definitely the tone and Caddo Parish, Louisiana-

Clint: So here’s the story. In 1983, this guy Isadore Rozeman, I believe is how you pronounce his name, was shot during a home invasion. This was in Shreveport, Louisiana, my home state, and this black man, Glenn Ford, was pretty quickly named as a suspect and eventually was charged with murder. Ford did occasional yard work for Rozeman and he swore he was innocent, but suddenly he found himself facing the death penalty.

Josie: A lot of stuff went wrong and his trial. He couldn’t afford a lawyer, so the state appointed him two defense attorneys. But one was like an oil and gas lawyer and the other did personal injury law and had only been a lawyer for about two years. Neither had tried a death penalty or even tried a criminal case in front of a jury. And even though there were no eyewitnesses to the murder, no murder weapon, the all white jury still convicted Glenn Ford and sentenced him to death.

Clint: So that was in 1984. Thirty years later, Ford was finally exonerated after his attorneys discovered that the prosecution withheld evidence that implicated two other men as the murderers. At the time he finally got out of prison, Ford was the longest serving death row inmate in the entire United States to be fully exonerated.

Josie: So 60 Minutes did a story on Glenn Ford. And in the story they interviewed the prosecutor that actually handled the case and got him the death sentence. His name is Marty Stroud. So listen to this clip of Marty talking about the case.

[Begin Clip]

Marty Stroud: I was arrogant, narcissistic, caught up in the culture of winning.

[End Clip]

Josie: Marty said that the all white jury was intentional.

[Begin Clip]

Marty Stroud: At the time of the case, we excluded African Americans because we, I felt that they would not consider a death penalty where you had a black defendant and a white victim. I was the person that made the final call on the case with respect to jurors. And I was, I was wrong.

[End Clip]

Josie: Stroud had a lot of guilt about the case. Here is a clip of him talking about how he and other prosecutors celebrated after Glenn Ford was sentenced to death.

[Begin Clip]

Marty Stroud: I had drinks. I slapped people on the back. We sang songs. That was utterly disgusting. You know, it,  you see Mother Justice sometimes, a statue, and she has a blindfold over her eyes. She was crying that night because that wasn’t justice. That wasn’t justice at all.

[End Clip]

Clint: 60 Minutes interviewed Stroud who actually tried the case and they also interviewed the then DA of Caddo Parish, Dale Cox. He was the DA in 2014 when Ford was exonerated and Cox said something that was pretty unbelievable. Here he is talking to Bill Whitaker, responding to Stroud, apologizing for wrongfully convicting Mr. Ford.

[Begin Clip]

Dale Cox: I don’t know what it is he’s apologizing for. I think he’s wrong, in that the system did not fail Mr. Ford.

Bill Whitaker: It did not?

Dale Cox: It did not. In fact-

Bill Whitaker: How can you say that?

Dale Cox: Because he’s not on death row. And that’s how I can say it.

Bill Whitaker: Getting out of prison after thirty years, is justice?

Dale Cox: Well, it’s better than dying there and it’s better than being executed.

[End Clip]

Clint: So this was a pretty pivotal moment because on national television, just imagine this prosecutor is basically saying that it’s completely okay if the justice system convicts you and puts you on death row for thirty years even though you’re innocent. He said he didn’t consider that a failure. This guy alone was responsible for a third of the death sentences in Louisiana between 2011 and 2014. He was an incredibly powerful prosecutor and he just thinks it’s fine. Later in the episode Cox says that he thinks we don’t use the death penalty enough.

[Begin Clip]

Dale Cox: I think society should be employing the death penalty more rather than less.

Bill Whitaker: It sounds like you’re saying that’s just a risk we have to take.

Dale Cox: Yes.

[End Clip]

Clint: He repeated it later to a journalist, quote, “I think we need to kill more people,” he said in 2015, quote, “I think the death penalty should be used more often.”

Josie: 60 Minutes is national and everyone had seen this guy come off as so callous and completely obsessed with the death penalty. But Cox had actually already decided he wasn’t running for reelection so voters had the choice between two candidates. One was more of a Cox type, a tough on crime guy, worked in the office, typical prosecutor. And the other was also a former prosecutor, but had most recently worked as a judge. He was black, his name was James Stewart, and his campaign was basically focused on the fact that he said he cared about justice. He wasn’t a radical left guy, he wasn’t a radical reformer, he wasn’t against the death penalty even, but he was just basically saying, ‘Look, this place is out of control and this office is out of control and I want to run a different kind of office.’ So I had just started working as a journalist and was covering prosecutors and when Stewart won, it was such a big deal. I mean huge. People in the criminal justice reform community really started to wonder if this could work, if it was possible to get the public to vote out the worst prosecutors.

Clint: And it’s only been a few years since then, but the answer seems to be yes. Across the country we’ve seen lots of regressive prosecutors voted out and some good ones voted in. Now I want to be clear, there are over 3,000 elected prosecutors in the United States. That is a whole lot of people and there have been some important wins, but prosecution is still very much a sort of lock him up, throw away the key type job.

Josie: Right. There’s a really long way to go.

Clint: But there also have been some wins.

Josie: Yup, and what’s interesting is that these wins have been in all kinds of places. So, over just the past few years, the more progressive candidate has won in places like Houston, Chicago, Tampa, Philly, St. Louis, Denver, Birmingham, Corpus Christi, Jacksonville, just to name a few, and there have also been wins in smaller towns. Scott Colom in Mississippi ran as a progressive prosecutor in the sixteenth judicial district, which includes just a few small counties. And there is not just geographic diversity either. Many of these prosecutors are very different from each other. Some of them run as Democrats, but others run as Republicans. Some are career prosecutors and others like Larry Krasner in Philadelphia worked as defense attorneys or civil rights lawyers. And in the new guard of progressive prosecutors there are a few black women, which is very unusual in a field that has elected almost no black female prosecutors until recently.

Clint: Now some of these candidates have turned out to be really great in the office and done really incredible things in their job. And other times, these folks that we thought were going to be really progressive prosecutors didn’t end up being very good at all. Some of them had been bad on issues like the death penalty and good on other issues like decriminalizing marijuana and bail reform. And not all of them are equally progressive. But you know, so much of all of this stuff is relative and this is a time where candidates and prosecutors across the country are really just trying to fundamentally rethink the job and the role that they have and expand what it means to be a prosecutor in the first place. So it’s a turning point, but it’s not without its ups and downs.

Josie: In 2015, Anita Alvarez, the former state’s attorney of Cook County/Chicago, was getting ready to run for reelection again. Alvarez had been in office for about eight years at this point and she was just an extremely, extremely problematic prosecutor. There were so many stories of her refusing to exonerate innocent people, refusing to prosecute the kids of her influential cronies, calling for more punishment and more incarceration even though the Cook County jail is already the largest in the nation. And yet it didn’t really seem like anybody cared. I mean people in the community cared and the organizing community cared. But Anita Alvarez as a villain just really hadn’t caught on.

Clint: Then one day a journalist got their hands on the Laquan McDonald tape. Now Laquan Mcdonald, if you haven’t heard, was a black unarmed 17 year old in Chicago who was killed when a Chicago police officer shot him 16 times in the back. The shooting happened in the fall of 2014, which was a full year before anyone outside of law enforcement had seen the tape. But after people were persistent, they were forced to make it public. And suddenly Alvarez announced that she was bringing charges against the cop. It seemed pretty clear to many voters that Alvarez was only bringing these charges because the tables being released. The timing was too convenient and the lag time was to substantial. She had seen the tape a year earlier and nothing had happened to the officer.

Josie: And this sparked a movement and it’s one that Rashad Robinson can talk about since Color of Change was so very involved. Alvarez suddenly found herself facing an even more difficult primary that upcoming March, just a few months after the tape debacle. And in the end her opponent, Kim Foxx, won the election easily. Foxx is one of the most progressive prosecutors in the nation and she’s a black woman who grew up in public housing in Chicago and her campaign was supported by the black organizing community and so far she’s just been a dramatic improvement over Alvarez. We bring this story up because there are really a few things to think about here. Part of the reason prosecutors have gotten so much more attention in the past few years is because they’ve been in the spotlight when police shoot unarmed civilians and especially unarmed black men. And when they very often don’t decide to charge that cop with a crim, they’re very fairly criticized and this obviously makes sense.

Clint: But it’s important to remember that prosecutors don’t generally have a leniency problem. For many, they’re lenient with their fellow friends in law enforcement and incredibly harsh and draconian with everybody else. And there’s concern that focus on a prosecutor not charging may send mixed signals to an electorate. Of course, we want prosecutors to hold police accountable as state actors in law enforcement, but we also want them to be more lenient with most communities, especially poor communities and communities of color, and that’s a value we want to encourage in most situations. Secondly, Foxx’s election was a great victory for criminal justice reform, no doubt, but it was also an important one for another reason. Foxx was supported by organizers from the Chicago community. She was supported by people who are invested in the city and many of whom are black and people of color. She was not, however, the favorite candidate of law enforcement and she didn’t get the police union endorsement that so many top prosecutors often look for in order to be elected.

Josie: Right. And as a result Kim Foxx is accountable to a different group. She’s not trying to please law enforcement at all costs. She’s not reliant on them for reelection. She’s reliant on people on the ground and I think that this really matters. Rashad will surely talk about this as well, but what we’re seeing and what we saw in Chicago is a changing calculus on accountability. Instead of prosecutors wanting to make sure that they please the police union, they now are trying to make sure that they please the people who are actually in these communities that are so affected by mass incarceration. And that’s huge. Lastly, Foxx’s election underscored how important it is to think critically about what we mean when we call for safety. So Chicago has this reputation of being extremely dangerous and like most cities there is some violence, but Alvarez and many in the police department often met civilian violence with state violence and they always touted their safety record and they claim they had to arrest excessively and charge too much and abuse their power because they had to keep people safe.

Clint: What Foxx’s election demonstrates is that there are better ways of fighting crime then over policing and over prosecution. These are just some of the things that we’re going to talk about with Rashad Robinson, our guest coming up. And he’s going to talk about the organizing around the Kim Foxx election and other work that Color of Change has done in the years since around prosecutors. Stay tuned.

[Music]

Josie: Thank you so much for joining us today Rashad. We’re so excited to talk to you.

Rashad Robinson: It’s great to be with you.

Josie: So Color of Change is one of the largest digital organizers in the country and I’m hoping you can tell our listeners, for those who don’t know a lot about Color of Change, more about what it is and what you do.

Rashad Robinson: Well, Color of Change is a next generation racial justice organization. We were founded about 13 years ago in the aftermath of Hurricane Katrina, which was a flood that was caused by bad decision makers that really turned into a life altering disaster by those same bad decision makers. And while black people were on their roofs, begging for the government to do something, they were ignored, maligned by the media, attacked and criminalized by the government and fleeced by corporations. And at the heart of Katrina was that no one was nervous about disappointing black people. The government corporations and the media. No one was nervous and so when folks are not nervous about disappointing your community, it really does mean that the question is not about research or necessarily even about the law, but about how much political power do you have? And so Color of Change was really built as a new type of infrastructure to channel the energy of everyday people, black folks and their allies of every race to channel the presence that we have in the world and to the power to actually make real change. And practically what that means is that every single day we’re hit with all sorts of information from the radio to the television, to the newspaper, to the Internet, and what we try to do is help people make sense in real time of that and take the most strategic actions. Oftentimes pairing that with a petition and then moving people up a ladder of engagement from signing a petition, to making phone calls, to showing up in person, to all sorts of things that really are aimed at forcing decision makers to have to wake up and listen to black people in black communities and respond to our needs and concerns.

Josie: That’s super powerful. And Clint is actually from New Orleans, so I know it’s especially important for him.

Clint: Yeah, Hurricane Katrina was a life altering moment for me. I was a senior in high school, three days in into my senior year and Hurricane Katrina came and sort of wiped out our neighborhood, my house and put my life on the trajectory that I think similar to a lot of folks that it otherwise might not have been in. And as you kind of alluded to maybe a far more cognizant of what this country and its government and the infrastructures that are extensions of the government, how much they care or don’t care about black folks, especially poor black folks and Color of Change has been so important and instrumental over the last dozen or so years. And what’s interesting about you all is you all have so many different, uh, sort of arms if you will. Right? You do a lot of work around the media. You do a lot of work around economic justice and you’ve kind of recently been focusing a lot on prosecutorial races. And I’m wondering if you can talk about with so many things happening around racial justice in the sort of larger American political landscape, why is it that you decided to allot so many of your resources, um, specifically to prosecutor races?

Rashad Robinson: That’s a great question. And you know, they’re like a whole lot of things one could do with their time if they woke up each day focused on racial justice. And so for us, we have to really think strategically about our time, about our resources about who we are as an organization. With 1.4 million members, black folks and their allies of every race. You know, we have to really think about where we can make an impact and we’ve developed a strategy over the last several years of respond, build, pivot and scale. Respond to the moments that happened in the world. Oftentimes we like to be the first thing in people’s inbox giving them something really clear to do when they see a viral video about a police shooting or when they hear about a stat around the economy or somebody said something racist on the news and responding to that moment by giving people something clear to do and then trying to build energy and activism and engagement by getting more and more people activated so that we can force accountability. Um, and then the pivot. The pivot for us, it’s really about how do we move that response mode to systemic engagement so that we’re not just playing whack a mole, right? We could respond to every single bad thing that happened to a black person and have nothing else to do and then still be no better off a year from now in terms of how do we change the actual rules? And then we scaled that over time. And so for us, we were showing up time and time again when black people had been hurt or harmed by police officers and we’d show up to district attorney’s offices and they wouldn’t do anything. We would deliver our petitions. We would make our phone calls and we recognize very clearly that the incentive structure was off. That, you know, we did not have the necessary power to force change. And so what I’ll say about all that is that if you’re a member of Color of Change, you’ll never get an email from us that says, ‘Tell Mitch McConnell to stand up for affirmative action.’ Right? Because we know that there’s no theory of change there. There’s no power. We might, for instance, go after some corporate donors of Mitch McConnell who say they care about black people. That may be a more strategic way to go at it, right? So we couldn’t keep showing up the district attorney’s offices asking them to do something and realizing that the structure was off and so we had to really pivot and that’s what led us into both developing a much more holistic accountability platform for dealing with district attorneys while engaging directly through our political action committee in the elections. And in the process channeling that member energy that was once signing petitions, once showing up to rallies into doing voter contact work, forcing district attorneys to now not just see us as highly present in their lives, but actually see us highly powerful for the fact of the matter is is that most district attorneys in fact 80 percent, run unopposed in this country. And so the fact that now we are engaging black folks and our allies in these elections of folks who traditionally don’t have to face opponents and we are doing highly skilled, highly effective voter contact work, we’re able to start changing that incentive structure that was deeply off for us just a couple of years ago.

Josie: Yeah, yeah. I’ve watched you guys build this just incredible infrastructure and this incredible movement, this movement base around prosecutor races and and you’ve had a serious impact in a lot of places. I was hoping you could talk about some of the successful races that you’ve been involved in and which to you stand out as the most important.

Rashad Robinson: Yeah, so the first race we ever got into was in Chicago and that race for us was incredibly important because it really spoke to what I just talked about before around the incentive structure. We had been going after Anita Alvarez, the former state’s attorney in Cook County for a number of years. The Innocence Project had called us in when she was ignoring DNA evidence of ten black men who were convicted of a crime when they were a youth and DNA evidence exonerated them. She was ignoring the DNA evidence, The Innocence Project called us in. We were running all these campaigns. We ran radio ads. She eventually, once we started running the radio ads, dealt with the DNA evidence, but up until that point, you know, it was off and it goes back to that question of whack a mole. We couldn’t keep running a campaign every time Anita Alvarez did something wrong. And so when the video around Laquan McDonald became really public and our allies and partners and collaborators on the ground were mobilizing. Um, there was a lot of conversation about what could we do about going after the district attorney? And we talked to our lawyers and they told us that we needed to build out a political action committee, which we did, but what we wanted to be able to do is how could we make this real for everyday black folks? Could we give people the ability to not just watch us take out Anita Alvarez because there was a lot of TV ads or because there were, um, there was a lot of paid mail, but how could they actually participate in engaging voters directly? And we invited our members into doing peer to peer text messaging, which was kind of a new thing. Really the only folks that were doing at the time was, with any real impact, was the Bernie Sanders campaign. And we invited our members and we bought access to black folks’ cell phone numbers. We crossed tablet with the voter files to find the right level of a registered voter. And then we had our members start communicating through a platform, educating folks, having to answer questions about what does a state’s attorney actually do? And in the process deeply engaging voters, building energy and after that win, when, um, Kim Foxx was able to beat Anita Alvarez under a larger kind of campaign around Bye Anita, which was like a cultural campaign, that we built technology and platform around that was really powered by young black folks on the ground, um, and young black organizations like Assata’s Daughters and BYP 100 and others, we were able to, um, really have the energy to, to pick a number of other places. And so we, we engaged in Orlando deeply and did a lot of voter contact work with our partners at Faith in Action and Florida New Majority. And then we engaged in Houston. And that was just a really big place to engage and Texas Organizing Project, which is just an incredibly sophisticated local organization, um, that was really trying to move into doing more criminal justice work was a really solid partner. We did everything from show up to the former district attorney’s offices with campaigns and petitions demanding that she quit while also doing the deep voter contact work of engaging voters, educating voters, and moving them up the ladder of engagement. All of that work for me is just incredibly exciting because what we helped people do was see their own power in a situation where they felt hopeless, like there was no possibility for change, communities banded together and put district attorney’s office that was going to be accountable to them. And it doesn’t mean that everything changes overnight. But what it does mean is that when someone knows that you put them in office, they also know that, that you can take them out. And that type of power when leveraged appropriately, is the type of power that gives us the ability to change the rules. It’s why elections matter.

Josie: Right.

Rashad Robinson: We’ve moved all of that work, right? And then, you know, I’ll leave it here, but really in 2017, being able to engage in Philadelphia and help with a whole set of partners elect, uh, Larry Krasner. And, you know, Larry Krasner was not the sort of initial typical choice in people’s minds. I had to spend a lot of time going on black radio in Philadelphia explaining why we were supporting the white guy, but Larry’s rigor and his commitment really inspired our members and the level of participation and engagement we got from volunteers to do that contact work and now what DA Krasner is now delivering on in Philadelphia, um, really speaks to why I think it was so appropriate and correct and smart of us to really pivot this work to focus on district attorneys, which are the most powerful actors in our criminal justice system.

Josie: Yeah, it’s interesting Rashad that you would say that because I think one of the things that is sometimes lost in prosecutor elections is the post election election work. And I’ve seen multiple times, Color of Change really engage in holding people accountable when they are actually an office. So I’m thinking about Aramis Ayala, I am thinking about Kym Worthy, which obviously we weathered that storm together. Um, um, you know, Seth Williams is another one. There are these countless examples of prosecutors having to make a choice about what to do in a certain situation and who they’re accountable to defines what choice they make. Right? And when they’re accountable to the police union, they’re going to make one choice and when they’re accountable to the Color of Change membership they might make another. So I was hoping you could talk about some examples there. You know, where, what has happened when someone’s in office, how Color of Change has sort of had an influence on a decision they’ve made, whether or not they directly helped get them in office or whether or not that would be who their membership would support?

Rashad Robinson: Yeah, I mean in many ways, the election piece is new for us. Being an accountability vehicle is what we are known for, whether it’s corporate accountability or political accountability.

Josie: Right

Rashad Robinson:  And we got into the elections really to fix the incentive structure around our accountability. And so when we, when we engage in accountability, we oftentimes think about it in a couple of ways. One, we, you know, if the district attorney is someone that has at all signaled that they might be interested in working with us or engaging with us, um, or politically should, we try to reach out first, we try to have a conversation first. We try to engage, always though with the specter of making sure that they understand that for us this conversation is like the opening. Either we’re going to move forward with some solutions or we’re going to move forward with a campaign and we’re oftentimes trying to channel for the person on the district attorney, the state’s attorney, we’re trying to channel for them what the public campaign might look like. What I don’t want is that there’s no tricks here. There’s no gotcha.

Josie: Right.

Rashad Robinson: We’re very clear about what our demands are at Color of Change. We’re very clear about who we serve and when we call a district attorney up about a problem, we’re very clear about that. And whether it’s been going back and forth with Seth Williams while we were sort of threatening a public campaign, um, while he was still district attorney of Philadelphia and really trying to push him around juvenile life without probation and parole and he wanted to really avoid a campaign. So much so that he decided that he was going to not prosecute young people without life without probation or parole. He said that publicly even though he didn’t stick to his word on that, although he didn’t stick to his word in a whole lot of things. Similar with Kym Worthy, getting on the phone with her and pushing her, um, you know, we’ve pushed on district attorneys around the country and we’ve also had to stand up and support and defend district attorneys when they’re being attacked. And Aramis Ayala is one of those examples of us mobilizing buses to go down to Florida to defend her when Governor Scott was trying to strip away her power after she made some decisions about how she would no longer use the death penalty. For us accountability works both ways because accountability is about seeding and tilling the soil to create more room for what’s possible. It’s pushing up the ceiling on what’s possible and it’s also raising the floor on what’s acceptable. And so for us it does mean a mix of defending those who are doing the right thing, standing firm, pushing back, going after haters, and then it’s also for us about holding those accountable, making their time challenging. Going back to that early story I told about Color of Change, making them nervous about disappointing us.

Josie: Right. Right.

Clint: Rashad, you’ve talked a lot about the Bye Anita campaign, which was obviously remarkably successful and you all have done so, so much great work in putting folks like Krasner and Kim Foxx in office in ways that are having a very meaningful and transformative impact on, on the criminal justice system in those cities and hopefully a sort of ripple effect more broadly. But I’m also curious about the races that you’ve lost and what it means to, because I don’t know that in our political discourse and certainly not in our political discourse around the criminal justice system, we speak often enough about the money and time that we invest in races or in initiatives that ultimately aren’t successful. And I’m curious what you’ve learned from the races that you haven’t won? And, and what’s something that maybe you thought about differently when you all began this work that has shifted as you’ve learned from the races that you haven’t been successful in?

Rashad Robinson: We do a lot of evaluation at Color of Change and we’re very hard on ourselves internally. And so sometimes even when we win we think that we lost. I’ll say a couple of things, there are, um, the losses we’ve had, like the one we had in Houston where we lost in the primary, um, and went on to support the candidate that ended up getting into office that is now the district attorney in Houston and really supported her and have felt like, um, we haven’t had as much of the success that we would like to have seen and, and we’re going to have to push harder on someone that we put into office then we would like. But, and that’s not exactly answering your question, but it’s also recognizing that winning elections is not the end all and be all. But, you know, in the last several months we’ve lost a number of elections. From losing in the primary in Dallas to a whole set of races in California. And I will say in all of these races, it is that you can’t have a single strategy. Honing and developing our strategy, um, has been really key. And so I think one, we have to get into these places a lot earlier than we’ve been getting into them. The power of incumbency is just really strong and unseating the status quo takes resources, it takes time and it takes a lot of sweat equity. And you can’t do that in a month, oftentimes or two months, um, you need to be there for much longer. The other thing that we’ve learned is that, you know, and this is something that Josie and I have talked about a lot, is that a lot of the places we’ve won these elections, we’ve won because there’s been some animating force around policing where the police killed someone, a video went viral, nothing was done by the district attorney and enough of the community became outraged to make this an electoral issue. And, um, and while that is deeply powerful because as an organization that channels energy and frustration into action, people being able to see that decisions elected officials make have real consequences. That’s really important. And at the same time, most prosecutors, their problem is not that they don’t lock up someone, is that they lock up too many people. And the problem is, is that if we have formed this work strictly around when they don’t prosecute someone and don’t put someone behind jail, we end up with a narrative that could be a little challenging and that we haven’t always been able to electoralize the sort of gross disparities in prosecution, the high rates of incarceration of young people, some of the sort of egregious things that have deeply put black and brown bodies like on the road to incarceration.

Josie: Right.

Rashad Robinson:  And so for us, because we haven’t been able to do that, some of the larger narrative work around why we get into races then becomes about donors. Who’s donating the money, who’s giving the money, not about the community’s deep engagement and power.

Josie: Right. I think that’s something that this whole movement really struggles with just in general. Just the feeling that there’s an entire group of people in this country who are animated and motivated by, um, by mass incarceration and by wanting to change the criminal justice system. But their instincts are still, which makes sense of course. You want to hold state actors accountable when they gun down civilians all the time, especially when it’s racially motivated. But how do we motivate people around this guy should just be out because there are too many people in prison? And so obviously we’re all, we’re all learning on that. So how do you think that these races can have a ballot influence? So in other words, how do you think pulling out more people for district attorney races has an effect on getting other progressive candidates in office in these different cities and states?

Rashad Robinson: Well, you know, we had this thing at Color of Change where like, you know, we have a hunch, oftentimes people joke ‘Rashad has a hunch.’ I think they have like a little phrase for it that I don’t know what, that I ignore, but we rely on data. And so we don’t just think we know because we’ve done a number of control tests on these races in Houston, Chicago and, uh, and in Philly where we put in controls for, um, the universe of folks we were hitting with district attorneys and pushing them up ballot and then universes where we did not touch folks. And we could see that not only that we increased turnout, that’s really the power of this, is that we increased turnout of voters that would not have otherwise voted, but particularly low propensity black voters, which our voter basically in this era, it’s like people who voted for Obama but don’t go for other things. Um, and what we saw was those folks, when they showed up, they voted across the rest of the ballot. And they voted a ballot. And so we actually talk about, um, we really talk about district attorney’s races. When we think about getting into races, we think about it through three different sort of questions. One question is where can we engage where by putting a new decision maker in the district attorney’s office we can work to decrease mass incarceration for black people as a black organization? And so we really do think about places with large black populations, large incarceration rates, large jail systems, places where we can really have a deep impact. Then we think about where has there been deep movement energy around mass incarceration policing? That channeling that energy into actual systemic change will both make people feel like change is possible, it’ll get results for people, which is incredibly important as a civil rights organization to make people see the results are possible. And then the third lens that we look at is whereby turning out an increased number of black people for a district attorney election, can we actually elect other good decision makers for black people? That we can help other people get into office that will also make decisions on a wide range of things that will make our lives better and that we can hold accountable. And so the up ballot potential and the up ballot work is not just a theory, but it’s, it’s been proven through data and science.

Josie: Right.

Clint: Rashad, you’ve talked a lot about the relationship of race to your work and have mentioned on multiple occasions that this is a black organization, a black centered organization, an organization that is centered on the improving the lives of black folks and you talk about black people in the organization and those whom you serve and their allies. And I’m curious, and you know, so for a lot of conversations there are white folks listening to this, black folks listening to this and a lot of different people have different conceptions about what allyship is and what it looks like. And so just as a sort of momentary aside, I’m curious about how you all are thinking about notions of allyship in a structural setting, like as a matter of infrastructure, right? Not as not as simply a piece of rhetoric and, and how that manifests itself in your organization and subsequently in your work?

Rashad Robinson: Yeah. So in terms of like how we think about leveraging for instance, our members who are white, uh, we will oftentimes ask our white members at Color of Change to do specific things. Sometimes we’ll ask them to write letters to the editor during big moments. I can think, we’ve been doing that as far back as the Trayvon Martin when we were, you know, leading up to whether or not George Zimmerman would be convicted of anything we um, we did a whole set of work with white members where we were asking them to go and have conversations with other white people. So in terms of thinking about how do we both engage and deploy folks who are allies who want to be allies, we’ve specifically made donation appeals to our white allies and white members and ask them like, you know, there’s  and actually we send them an email, oftentimes actually comes from one of the white staffers and talks about why he works at Color Change, why he dedicates his time and energy and life’s work to working on behalf of justice for black people and what that means. And so we, I think about it a lot in terms of not treating all of our members the same, but thinking about the ways in which folks can touch different communities, speak to different people and how critical that is. Um, you know, we’ve built this incredible platform called winningjustice.org, winningjustice.org. It is the first of its kind, a searchable database of the 2,400 prosecutors around the country. Um, it allows you to search for your prosecutor, allows you to find out information. It’s being populated by users. It has population data. It also has a whole set of, um, uh, public education tools from the six demands to videos about the work for folks to really be educated. We recognize it as a black racial justice group. We’re not going to be able to engage in every of the 2,400 district attorney races. But, you know, my parents came and my grandparents came, my grandparents came on the great migration from southern Virginia to eastern Long Island. I grew up in a town that was about 10 percent black. What the criminal justice system looks for black people in my town and in Suffolk County where I was raised, um, is harsh and it fall just in line with all the disparities we see nationally. But Color of Change probably isn’t the right organization to lead the work around changing who the district attorney is. So we’re also building this platform to engage more allies of good faith who recognize that our criminal justice system is delivering on neither safety nor justice. And in order to change that we have to change who the decision makers are. And so we’ve also built this platform to create the space and the infrastructure to be able to leverage the energy of folks who are in other communities who say, I want to do something about the criminal justice system. And we’re saying, here’s how you can help us win justice. Here’s how you can build a squad. Here’s how you can engage your district attorney. Here’s how you can push for more transparency. And this platform for us is one of the ways that we’re trying to build the type of infrastructure that channels moving a lot of people to action. Because if we’re going to change a system so rooted in the legacies of slavery and Jim Crow and all the other rules that have held black people back in this country, we’re going to need millions more people activated, engaged, and focused on dismantling it.

Josie: You know, Rashad, I think just to talk about that platform, it’s very, very, for people  who are listening just might not know how little information there is about district attorneys out there, you know, if you wanted to look up right now, every district attorney in Texas for example, there are very few places that you can actually do that. I mean, you can’t really get a very clear analysis of what’s out there. So the fact that Color of Change has built this platform isn’t just important for organizing purposes, um, but it is, it’s important to get a look just at a view of the landscape of what our criminal justice system looks like. So I’m just, I’m putting another plug.

Rashad Robinson: Yeah. We need to go site by site.

Josie: Literally.

Rashad Robinson: We had to go page by page of each district attorney to pull that information. We had three data folks working for months and months and months going site by site, pulling information, race information because it just didn’t exist anywhere. And, you know, just for context, a lot of folks talk about the work of the progressive group Indefensible and all the work they did right after the election to have town hall meetings popping up all around the country and people making demands on their members of Congress after Trump was elected. Um, a lot of that was possible because there’s a whole set of infrastructure where people can easily search and find information about their member of Congress. That just doesn’t exist of each district attorney and because it doesn’t exist, it creates real barriers for us to create a large scale movement and to create a large scale movement that is bigger and broader than any one organization is actually what we need.

Josie: Right.

Clint: So Rashad, this has been really wonderful.

Josie: It really has.

Clint: And I think we’ve all gotten a lot more insight into how you all work and how you all have been so effective over the past several years as this conversation has become more public in large part because of the work that you and your members are doing. And I imagine that folks who are listening are curious about ways to get involved and I’m wondering if you can share a little bit about how someone can become a member of Color of Change or participate in some of your actions and things like that.

Rashad Robinson: So there’s a couple of ways. The first, if you have your phone and you’re listening to this, um, a quick, easy way, is just to text “woke” to 225568. You can text “woke” W-O-K-E to 225568.  You can sign up just by going to colorofchange.org and you can sign up and join us in the effort. And then also visit winningjustice.org, winningjustice.org. Um, we’re going to have more updates as we move forward, but it is the first of its kind platform, um, and this is a way for you not just to engage but to find ways to be in community with others who are trying to engage, hold district attorneys accountable and in the process change who makes the decision and change the path, the future and the opportunity of so many different people’s lives. And that’s really what’s at stake. Um, and so Color of Change is a member based organization really does rely on everyday people taking action. That’s where our power comes from. And I just want to thank both of you for inviting me on and all the work you guys do to raise these issues and raise this conversation to another level. We need more of you. Uh, so thank you.

Josie: Thank you so much Rashad. We really appreciate it and this has been really great. So thank you for taking the time and we hope to have you back on some point.

Clint: Thanks so much.

Rashad Robinson: I look forward to it. Anytime.

[Music]

Josie: So that was Rashad Robinson, the executive director of Color of Change, and we’re so, so grateful that Rashad could join us today.

Clint: Thanks so much for listening to Justice in America. I’m Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: You can find us on Twitter @Justice_Podcast, like us on Facebook at Justice in America and please subscribe and rate us on iTunes. It helps a lot.

Josie: Justice and America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn with additional research support by Johanna Wald. Thank you and hope you join us next week.

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