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Announcing The Appeal Podcast

Our debut episodes feature Josie Duffy Rice on prosecutors and Melissa Gira Grant on criminalizing sex work.

Announcing The Appeal Podcast

Our debut episodes feature Josie Duffy Rice on prosecutors and Melissa Gira Grant on criminalizing sex work.


The Appeal is a new podcast about criminal justice reform, prison abolition, and everything in between. Each week we will feature in-depth interviews with those covering, working in, and most affected by the American criminal justice system. From lawyers to activists to reporters to the formerly incarcerated, The Appeal podcast will shine a light on—and help radically rethink—the largest prison state in the world.

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

Episode 1: District Attorneys Are The Most Powerful People You’ve Never Heard Of. With guest Josie Duffy Rice

District attorneys wield enormous power but have been historically overlooked in efforts to reform the legal system. Recently that has changed, with the rise of a bail reform movement and new primary election challenges upending the “tough on crime” status quo. Our guest Josie Duffy Rice, the host of our sister podcast “Justice in America,” will be joining us to explain why DAs are such an important—and often unseen—fulcrum of power.

Episode 2: The Misplaced Sanctimony of Criminalizing Sex Work. With guest Melissa Gira Grant

Stopping the trafficking of exploited persons is something everyone agrees is important. But recent efforts by the federal government—including the passing of Stop Enabling Sex Traffickers Act (SESTA)—exploit the good-faith desire to protect the vulnerable by criminalizing consensual sex work. These efforts have driven the business further underground, exposing sex workers to greater harm. Our guest, Melissa Gira Grant, senior reporter for The Appeal, explains.

The Appeal Podcast Episode 2: The Misplaced Sanctimony of Criminalizing Sex Work

With Melissa Gira Grant, senior staff reporter at The Appeal.

Dancers protest January 2018 police raids of strip clubs in New Orleans
Photo courtesy of BARE NOLA

The Appeal Podcast Episode 2: The Misplaced Sanctimony of Criminalizing Sex Work

With Melissa Gira Grant, senior staff reporter at The Appeal.


Stopping the trafficking of exploited persons is something everyone agrees is important. But recent efforts by the federal government—including the passing of Stop Enabling Sex Traffickers Act (SESTA)—exploit the good-faith desire to protect the vulnerable by criminalizing consensual sex work. These efforts have driven the business further underground, exposing sex workers to greater harm. Our guest, Melissa Gira Grant, senior reporter for The Appeal, explains.

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

Transcript

Adam Johnson: Welcome to The Appeal podcast, I’m your host Adam Johnson. The Appeal is a podcast on criminal system reform, abolition and everything in between. Today our topic is sex work and how it’s prosecuted, who those laws harm and what a more holistic approach to ending sex trafficking would look like. Our guest today, Melissa Gira Grant, senior reporter at The Appeal and author of Playing the Whore: The Work of Sex Work.

[Begin Clip]

Melissa Gira Grant: Sometimes people have referred to sex workers as kind of the canaries in the coal mine of the internet, that a lot of the kinds of speech restrictions and activity restrictions that sex workers experience, you know, it’s a way to see sort of how this is going to shake out in other online communities. In this case I’d say it’s even worse because we aren’t paying attention. They’re almost like the Cassandra in the coal mine. You know, people who are saying like, ‘Look what’s happening to us. Like, look how our communities are under surveillance right now and look at the fear of law enforcement we have right now’ in an even greater way.

[End Clip]

Adam: Melissa has written extensively for years about the stigmatization of sex work and efforts to criminalize it under the guise of fighting traffic. Today, she joins us to discuss the most recent of such effort, the Stop Enabling Sex Traffickers Act, aka SESTA and the Allow States and Victims to Fight Online Sex Trafficking Act, generally known as FOSTA, the twin bills in the Senate and the House of Representatives respectively, which was just signed into law recently by President Trump. Proponents say the new law will protect sex trafficking victims, but many others, including sex workers and our guest, say it simply drives sex work underground, it criminalizes consenting adult activity and gives state’s attorneys general broad new sweeping powers to target the most vulnerable under the auspices of protecting them. Thank you so much for joining us Melissa Gira Grant on The Appeal.

[Fade Music]

Melissa Gira Grant: Hey Adam. Thanks for having me on.

Adam: I wanted to start by doing a hundred thousand foot overview of what the primary issue is legally. Can you explain generally what the FOSTA and SESTA law is and was for our listeners in how many have received it in the sex worker community and the broader kind of criminal legal system?

Melissa Gira Grant: Yeah, sure. I mean SESTA and FOSTA, we’ll just start there. It’s kind of a Frankenstein law. So we had this one bill that was moving through the Senate called SESTA, the Stop Enabling Sex Trafficking Act, and then we had another bill moving through the House called FOSTA, the Fight Online Sex Trafficking Act, and it is a bill that was supposed to, if you believe the people who drafted it, supported it, lobbied for it outside of Congress, uh, to stop trafficking on the internet. Only trafficking into the sex industry, which the bills framers referred to as “sex trafficking.” That’s not necessarily framing that I use just to start there. There is trafficking into forced labor of all kinds, whether that’s commercial sex, whether that’s agricultural work, whether that’s service work like in nail salons or home healthcare work, things like that. Um, but this bill wasn’t aimed at any of that. It was aimed only at trafficking into sex work as arranged on the internet or in the language of the bill as “facilitated” on the internet. So the impetus really though for all of this wasn’t all of sex work online, um, it was this one website, backpage.com, which significantly lowered sort of the barrier to entry for people who wanted to engage in sex work. If you’ve been talking to sex workers as I have over the last decade or so, you know, its pretty obvious that the internet has improved working conditions in the sex industry. And then it’s made it easier for people to run their own businesses, to place their own advertisements, to screen their own customers, to be less reliant on somebody who might exploit their labor. But at the same time it’s increased the visibility of the sex industry and it’s also made it more visible to outsiders when there is violence and exploitation in the sex industry. So people who were concerned about that and saw only that violence and exploitation, um, and particularly the exploitation of minors. If people under the age of 18, who, if anybody is under the age of 18 and they’re engaged in the sex trade, they are considered under federal law as a trafficking victim, whether or not someone actually forced them, that’s just how the law understands that activity, uh, that person’s own activity. So, you know, this is sort of the noble purpose behind it. Let’s prevent minors from being engaged in the sex trade, uh, using the internet. And as many of these laws tend to be crafted it was very, very broad. It didn’t just focus on minors, it didn’t just focus on people who are forced. The way that the law finally came together targets the entire online sex trade and not just facilitating prostitution, which is the language of the law, um, but also activities online that are sort of like ancillary or sideline to that. So, uh, one of the websites that went offline as a result of fears about how SESTA and FOSTA would be enforced was craigslist personals. And there’s a lot of different things going on on craigslist personals. Most of it is non-commercial activity, um, but because it’s a space that could be used to arrange prostitution or sex work, craigslist said, you know, ‘We’re not going to take that risk and we’re going to take this down.’ Um, so it’s quite a broad law. Um, and before it even passed, sites like craigslist and others, sensing how broadly it could be enforced, already started taking information down. And so the impact of it on sex workers has been quite immediate and quite grave.

Adam: So let’s talk about that impact. Let’s establish the stakes here. We now have some initial responses to this bill, since it’s been passed, can you give us a sense of how sex workers are responding to the law, if it is actually had any achievable effect on reducing trafficking, which is a sort of nominal purpose, um, and what the kind of general, um, environment or general mood is for those in the sex work industry?

Melissa Gira Grant: So one reason sex workers oppose this law is because they knew that it would be an attack on their ability to work independently. Um, it will be an attack on their ability to take out these low cost advertisements that meant they were not going to be in a situation where they were reliant on anybody else to arrange their work and have any oversight of how they worked. And almost immediately, uh, when I was speaking with folks, you know, just in the days after the law passed before it was even signed by the president, they were seeing not only those opportunities to advertise dry up but they were being contacted by people who were saying, ‘Oh, don’t worry, I’ll take care of you. Like I’ll get you customers.’ Um, so people who, you know, people outside the industry might regard as a pimp or a manager, you know, somebody showing up in their lives using this as an opportunity to take control of their labor and also their profits. Um, you know, there are also sex workers I spoke with that said almost immediately, you know, there was a lot of press coverage of SESTA and FOSTA.

Adam: Right.

Melissa Gira Grant:  Um, and so their past clients that they had fired either for being abusive or violent, um, started showing back up in their inboxes and on their phones trying to get them to take them back. So it’s, it is something that has actually empowered people who are in a position to exploit or be violent to sex workers and is as far as its stated purpose of preventing trafficking there is no evidence that it has done that. In fact, the stated purpose of this bill was to give a law enforcement a way to go after backpage.com explicitly and before the president signed the law, backpage.com was seized by the federal government and taken offline as a result of a criminal case that started long before SESTA and FOSTA were even up for discussion. So this whole idea that this law was needed in order to take, you know, action against backpage.com. It just wasn’t true.

Adam: One of the things you’ve written about for The Appeal has been the notion that many of the prosecutors and attorneys general who are the ones enforcing this new law or have enforced similar laws in the past, they will tell you openly that they don’t make a distinction between sex trafficking and what we would broadly consider to be sort of consensual or adult sex work. Um, can you talk to us about how much of that mentality informs this and how much and to the extent to which that makes their anti-trafficking arguments sort of really bad faith because they don’t, they don’t make a distinction between the two as I think most people would right? Most people would sort of draw a distinction between the two. But from their perspective, there really isn’t one.

Melissa Gira Grant: I would go a step further and say regardless of how you draw that distinction or if you draw that distinction, the negative impact of laws like SESTA and FOSTA or taking down backpage.com, that impact is going to fall on both people who are forced into the sex industry and people who are not forced. Um, so when it comes to like how these laws harm people, they actually don’t make a distinction either. But to back up for a sec, like, you know, there is this trend, there certainly has been over the last three or four years anyway, of prosecutors, uh, you know, saying that they are adopting this new approach to prostitution. At least that’s what they say. Um, and then this new approach, they believe that anybody engaged in selling sex, anybody who’s been charged with prostitution, comes before their office, um, that, that person, they say anyway, is a victim and should be regarded as a victim and not a criminal. That’s the rhetoric. But that doesn’t mean that those individuals aren’t being prosecuted with prostitution related offenses. That’s still happening across the country. What it seems to be the change has really rhetorical, um, in the ways that prosecutors frame activities, the same old activities that they’ve been engaged in. And if anything, you know, the rhetorical shift does damage. I don’t want to say this is just on the level of words, like it has the effect of spreading this message through the community that anybody engaged in sex work has no choices, has no agency, um, and that it’s appropriate to intervene on their behalf in whatever way law enforcement deems appropriate. So it’s, it’s a rhetorical shift that has pretty significant consequences and it drives stigma around sex work that chips away at, um, you know, the dignity and the humanity of people who engage in sex work. It describes them simply as objects.

Adam: Right. And so let’s drill down here a little bit to some, some great reporting you did earlier in the spring on the situation in New Orleans, which I think speaks to this issue of bad faith on behalf of prosecutors. There was a massive anti sex trafficking or anti-trafficking raid that happened in New Orleans strip clubs that had zero trafficking arrests. Yet they had this sort of grand press conference where they sort of gathered all the, everyone and had all the flags behind them. And they made these pronouncements about an anti-trafficking raid that uncovered actually zero trafficking. Can you talk about that and talk about how that sort of speaks to the broader use of the term “trafficking” to kind of, again, mean everything and yet nothing.

Melissa Gira Grant: This is something that it was like a multiprong effort and it was such a great case study for us to break down like, you know, how do you get from this rhetorical shift to the damage done by the rhetorical shift.

Adam: Right.

Melissa Gira Grant: So what we had in Louisiana was a charity called Covenant House, um, that was pushing this narrative that anybody engaged in the sex trade was a victim and that just the existence of commercial sex created opportunities for victimization. And so it was appropriate to go after, you know, even legal, commercial sex businesses like strip clubs, um, if your goal was to prevent trafficking. And so they got a state law passed that defined, um, anybody who is 18, 19 or 20 ineligible to dance in a strip club. And they presented this as anti-trafficking that, you know, even though the law regards anybody under the age of 18 who is forced into sex work as trafficked, in a way they sort of want to expand that and say, ‘Okay, we’re actually going to go up to 21 and we’re going to say that like, because of this sort of like, you know, special category of 18 and 19 and 20 year olds, now is sort of like quasi possibly always traffic. We’re going to say that like you can’t work in strip clubs if you’re 18, 19 or 20 years old.’ And the law was almost immediately challenged and is still unenforced. It’s still going through several layers of court challenges and dancers who are 18 and 19 and 20 challenged the law and talked about the immediate loss of income they experienced. You know, even though I wasn’t being enforced strip clubs sort of like, much like SESTA and FOSTA didn’t know how it would be enforced. And so they adopted sort of the most conservative approach to enforcement, which was, you know, people lost their jobs. And what happens when you lose your job? You know it’s not like this law replaces that income with another kind of job. All it does is it takes it away and when people are made immediately vulnerable and lose their income and everything that could come with that, right?

Adam: Right. Right.

Melissa Gira Grant: Losing your house, childcare, education, these are the things that make you vulnerable to trafficking. And these are the things that push you into situations where you have less power and control over your life and your income. Um, but that didn’t seem to be of interest to the people who are pushing this, whether it was the charities, um, you know, whether it was the press and the kinds of narratives that they told. So, you know, we saw this like 12,000 word feature from the local paper about trafficking on Bourbon Street in the strip clubs. There was no trafficking in the strip clubs. Um, and so then we get these raids on the strip clubs, right? So it’s a kind of rolling narrative, you know, we get the law changed, we get the newspapers on board-

Adam: Naturally yeah.

Melissa Gira Grant: Now we’ve got this law enforcement and then yes, the press conference where there was nothing to announce, but it’s sort of like the rhetorical bow on the whole thing, right?

Adam: Right.

Melissa Gira Grant: Like, ‘Okay, like we did it, we cracked down, we shut down these clubs, we put thousands of people out of work’ and at the end of the day, um, no, there was no trafficking.

Adam: Yeah its similar to the FBI press conferences about terrorism and then the only cases they have are the ones they contrived. And I guess they can’t, they, they have yet to figure out a way of creating Potemkin sex trafficking plots. So they, there’s a lot of smoke and very little fire.

Melissa Gira Grant: And a lot of damage. Right?

Adam: Yeah, yeah.

Melissa Gira Grant: I mean there’s still no, there’s nothing, to this point anyway, coming out of the NOPD or the State Alcohol and Tobacco Commission to address the civil rights violations the dancers experience in the course of those raids or to address their loss of income.

Adam: Are there lawsuits ongoing to your knowledge?

Melissa Gira Grant: There’s the lawsuits about the ban. The age ban is ongoing, um, concerning the 18, 19 and 20 year old dancers. Yes.

Adam: Okay. I want to talk a little bit more about the kind of glaring hypocrisy of those who supposedly care about trafficking victims because I really think this is the rub, right? The rub is, is the inconsistency both of application and of the follow through in terms of supporting people who are trafficking victims. So in FOSTA and SESTA one thing you had spoken about before is there’s no real support. There is no like material or financial support for people who are trafficking victims. This is purely a punitive law. Can you talk a bit about how that lack of support and you know, it’s very similar to kind of a supposedly pro-life types, right? Who don’t support postnatal programs and childcare programs. Can you talk about how the lack of support sort of really exposes the underlying current and the underlying political current that’s behind these laws?

Melissa Gira Grant: This really goes back to sort of the origin of these federal anti-trafficking laws and then all the state laws that followed kind of in their mold, which is that the most important thing the law can do when it comes to trafficking or the most important thing that government can do when it comes to trafficking is to produce prosecutions. There’s very little emphasis on producing safety or protection for people who’ve been trafficked. There’s even less emphasis on prevention. You know, even though the government says we believe in these three Ps of like “prevention” and “prosecution” and there’s always other Ps and we might even be up to four Ps by now, to be honest, there’s so much rhetoric around this its almost hard to keep up with it. But at the end of the day what gets prioritized is prosecution. And so then the trafficking victims as far as law enforcement is concerned is most useful to them as a witness and is most useful to them as someone who’s going to help put a quote unquote “trafficker” behind bars, to identify someone as a trafficker. Even if that person maybe wasn’t engaged in trafficking, you know, there are cases that I’m starting to come across right now of what appear to be, you know, adults who were doing sex work together, um, but because one of them was the one who had a credit card or one of them was able to purchase ads or one of them had the cell phone that the other used, that they use that, um, that relationship as a way to say, ‘Well then clearly this was the one who was forcing the other.’ Um, and that’s, that’s sort of the way that the law perceives a victim of trafficking. There’s very little, there’s very little resources and that, you know, for folks who are trafficked insofar as law enforcement is concerned, there are one hundred percent reliance on social services and community based organizations, um, to provide that support. And very rarely does that support include legal services, right?

Adam: Yeah.

Melissa Gira Grant: Because the way that many people who have been trafficked are coming into contact with law enforcement is a prostitution arrest. And so that says somebody who now is, you know, despite the rhetoric, absolutely criminalized, um, but then also sort of seen as a victim and it’s an ideal situation for that individual’s rights to be violated, you know, for law enforcement to try to get them to, to, you know, name people who are part of crimes that they were engaged in to try to wheel and deal with them and to say: ‘We won’t go after you if you’ll turn into somebody else.’ Um, or even, you know, like if they are engaged in prostitution and they’re going to go forward with those charges, that individual has a right to be defended. Right? Um, and so in a way, like when they get defined as a victim, um, what I’ve seen for example, in these specialized human trafficking courts, which we have in New York but are also, um, there’s several of them in other states. Um, they are there specifically to deal with prostitution charges, not to deal with trafficking. And they regard the individual before them as kind of a victim defendant. Right? But if they like assert their rights as a defendant saying, you know, ‘I want the charges against me to be investigated, I want to actually make use of my public defender. I want to like, you know, have the cops who said I did X, Y and Z have to like, you know, produce more than a signed affidavit. Like I want to, you know, actually pursue this case.’

Adam: Right.

Melissa Gira Grant: Um, they’re treated as if they’re like not really a victim then. So it’s this, it’s this bind where it’s like, if you assert your rights, um, you’re exerting agency and so maybe you’re not really a victim.

Adam: Right.

Melissa Gira Grant: And the hypocrisy there is so apparent. It’s like, well, are you a victim or are you a defendant? Are you a criminal? You know, if the whole ethos here is like, we shouldn’t be treating people who are victims as criminals. Like why are they in that courtroom in the first place? Why is their encounter, um, you know, why are their encounters with law enforcement still resulting in arrests?

Adam: Okay. So to that end, I know that there was only two people in the Senate who opposed the Senate version of the bill was Rand Paul and Ron Wyden of Oregon. Even our, you know, sort of woke bae, uh, Bernie Sanders was in support of the bill, as were a lot of, you know, celebrity types, um, Amy Schumer, Josh Charles, Seth Meyers, what are they not seeing? Someone who’s sympathetic or listening, who sort of feels that, okay, maybe some sex workers are thrown out of business or put in further harm, but there’s a net good. That the net good somehow prevents the trafficking of children or, or the trafficking of, of unwilling persons. What is the main thing that they’re missing?

Melissa Gira Grant: I’m going to approach it from a slightly different angle, which is to talk about someone who voted against it in the House.

Adam: Okay. Great.

Melissa Gira Grant: Representative Barbara Lee of California, uh, who’s also taken a lot of unpopular and unsupported stances in her career.

Adam: Indeed, she has historically yes.  

Melissa Gira Grant: And she is also somebody coming out of the congressional black caucus who was really instrumental in developing PEPFAR, The President’s Emergency Plan for AIDS Relief under George W. Bush. Which has, you know, done a great deal around the world to prevent HIV/AIDS, but also, um, you know, it’s also been sort of a kind of part culture war around HIV and AIDS, um, insofar as prostitution is concerned and Barbara Lee has taken very principled stances on that saying you can’t actually exclude sex workers from HIV prevention. And so it’s actually through that experience, I think, that she is able to see that there is this thing called sex work that you need to engage sex workers in making meaningful change about their own lives. So like in the HIV example, um, the federal government wanted to restrict organizations that could get access to that PEPFAR money, only to ones that were oppositional to prostitution, specifically oppositional to decriminalizing prostitution. And Barbara Lee as opposed to that. And I actually think it’s those kinds of experiences of, you know, seeing how sex workers are made marginal in these policies, seeing how sex workers are ignored and then seeing the grave material damage that can do to sex workers. In this case, their health and their rights, their ability to organize, you know, it’s essentially saying like, you can’t actually organize if you want access to healthcare. And we would understand the damage that would do, um, among women when we’re talking about, you know, abortion rights, we understand the damage that would do in LGBT communities, but very rarely do people see the damage that would do around sex work and Barbara Lee is someone who can connect those dots. And so I think that’s partially where she’s coming from when she came out in opposition of this. Wyden’s opposition is a little bit different, you know, Wyden he co-wrote the Communications Decency Act, Section 230, the part of the Communications Decency Act that was essentially gutted by SESTA and FOSTA. And he’s really unique I think among senators and sort of be being able to competently legislate and talk about the internet and its impact on our lives.

Adam: Right.

Melissa Gira Grant: And so, you know, his opposition was a little different. But I think quite complimentary, you know, understanding that, you know, people do have civil rights online, people do have a right to expression online. And when you create these sort of blanket laws, there’s, there’s a chilling effect and you know, not only are you curbing people’s free speech, but you’re also curbing people’s ability to make community, to organize, to do advocacy. Um, and those are all the things that, you know, sex workers are experiencing right now also. Like, um, I cannot underscore how difficult it is for people to even talk about how this law is impacting them online because they’re very concerned that the kinds of conversations they have about the law could make them targets for its enforcement. Um, and there’s, you know, sites like Reddit, for example, have already cracked down on their forums, um, to, you know, reduce the kinds of conversations people are having there about prostitution for fear that they’ll be construed as facilitating prostitution even if they’re not directly commercial.

Adam: Right.

Melissa Gira Grant: And so Wyden is somebody who was able to see that senators who voted for this and many, many, many congress, uh, many, many people in the House, um, you know, I don’t think that they necessarily have an opportunity to think very critically about trafficking. I think that, you know, this is an issue like um, some other kind of growing areas around criminal justice where there’s this sort of fetishization of like bipartisanship, right? Of reaching across the aisle to do something really important together.

Adam: Right. Yeah.

Melissa Gira Grant: Um, and I think that that sort of seized the day. But at the root of it is, you know, just this, this huge discomfort with wanting to talk honestly and realistically about the ability of the law to control people’s, uh, to control sex work. And that’s just not a conversation that exists in those spaces at all.

Adam: It’s very easy to demagogue too, right?

Melissa Gira Grant: Yes.

Adam: I mean you know, [Menacing voice] ‘Senator Sanders opposed the bill against sex trafficking.’ I mean, it’s sort of it, it writes itself

Melissa Gira Grant: Yeah. I think there’s, there’s real fear around that that, you know, nobody wants to be the subject of like an attack ad for that and you know, but it’s funny, like you look at some of the other things that Sanders and Kamala Harris and other senators who went for this are also doing right? They’re pushing for like more labor protections for workers across the board and to sort of expand who has access to those labor protections and they’re just not seeing sex work under the category of work. It’s very clear. Um, uh, but they’re also, I don’t think critical of how much of a failure our current laws and policies are, um, when it comes to actually preventing trafficking. And I think maybe that’s the place that this conversation needs to go. Just like if you actually do want to protect people who are trafficked, then like why are you passing laws that put them in the hands of police and prosecutors and give them so much control over their lives that, that’s actually not a winning strategy.

Adam: Right. So let’s take the Wyden example to talk a little bit more about the legal, uh, how this affects the internet. I know the Electronic Frontier Foundation, EFF, which full disclosure does receive some money from some of these organizations that are affected by the bill itself, but they have a kind of ideological stake in making sure that the internet can run freely without quelling free speech. Uh, they said quote, “Much more restrictive in what sorts of discussion–and what sorts of users– they allow, censoring innocent people in the process.” Is how they described FOSTA. Can you explain what, EFF, what the kind of free speech implications are in this, not just in terms of harming workers, but in creating a kind of environment where websites themselves are now responsible for the activities that take place on their sites in a very loose, sort of loosey goosey or kind of unclear ad hoc fashion.

Melissa Gira Grant: Yeah. I think it’s also important to say that Electronic Frontier Foundation has been around since the late nineties at least, um, and been engaged in protecting laws like CDA 230, Communications Decency Act, Section 230, which, you know, is in their framing, like enables the internet to be with the internet is in terms of being a free and open space for discussion. Um, the, these are fights they’ve been part of for a long time. Um, and actually, some of, I think there’s some controversy around like, ‘Oh, well Google funds them and Google opposes the law,’ but actually Google in the guise of being part of the Internet Association, which is a much larger kind of tech lobbying association that encompasses Facebook and Apple and many other major tech companies, they came around to support SESTA and FOSTA at the end of the day.

Adam: Why is that?

Melissa Gira Grant: I don’t know. I can speculate-

Adam: Okay. Alright that’s fair.

Melissa Gira Grant: And I can kind of like point to what Ron Wyden was saying in his floor remarks ahead of the Senate vote. There’s been a tremendous amount of pressure on internet companies-

Adam: Yes.

Melissa Gira Grant: Especially in the wake of the election to appear to like not be losing control of their platforms.

Adam: Right.

Melissa Gira Grant: And I have to wonder if SESTA and FOSTA was sort of a bone that they threw to Congress. You know?

Melissa Gira Grant: Yeah. There are subtle forms of pressure that Congress, um, historically has done. I mean obviously during the whole Julian Assange thing and WikiLeaks in 2010 and 2011 they basically just leaned on companies to stop running payment processing to WikiLeaks. They didn’t have to pass any law to do that. It was sort of a kind of backroom thing. So I mean there’s, it’s always difficult to tell where the mechanisms of pressure are coming from.

Melissa Gira Grant: Yeah. And I think in this case it was like they were facing just a lot of scrutiny from Congress for their, you know, how their platforms work and sort of what accountability do they have for how their users use them and protecting users. Um, and I just feel like this may be at the end of the day, they’re like, ‘All right, either, you know, we’re just going to stop fighting this one because we have other things to fight’ or they thought, you know, ‘If we allow this one to go, then we’ll seem like we’re good actors,’ not a hundred percent sure. Like that’s just sort of my analysis, what it looks like from here.

Adam: No I understand.

Melissa Gira Grant: Um, and the other thing about the payment processors actually, Tom Dart, the Sheriff of Cook County in Illinois he used a very similar form of pressure against Backpage in 2015 to pressure Visa and Mastercard to stop allowing Backpage to use them, um, to, you know, as payment processors essentially instead, like Backpage after that stopped allowing users to use Visa and Mastercard to purchase ads. And so that, you know, basically empowered cryptocurrency. It’s one of the main ways that people were purchasing ads on Backpage and now that is getting sort of turned into like, ‘Oh my gosh, like the dark web, cryptocurrency and Backpage,’ like they actually were using, you know, like much more conventional or legitimate forms of payment.

Adam: Right.

Melissa Gira Grant: But that was taken away from them in this effort to pressure them out of business. So anyway, it’s, I, I think that that sort of gets us into this free speech stuff in a more holistic way, which is that, um, I don’t think a lot of people understand how the internet works. Lets just start there.

Adam: Yeah.

Melissa Gira Grant:  Like including people in Congress. And you know, I have the advantage of having been a technology reporter before I covered criminal justice and actually it was my way into covering criminal justice because I looked at tech in the law. And, you know, Communications Decency Act 230, which is what SESTA and FOSTA guts, is a fundamental principle of the internet saying that, you know, for example, um, the people who host our podcast are not responsible for what you and I say. Right?

Adam: Right, exactly, let’s hope not.

Melissa Gira Grant: Let’s hope not, right? And if somebody leaves a review in iTunes or whatever other platform of the podcast, you know, Apple or whoever else runs that platform is not responsible for what that person says in that review. And also more critically if they want to take responsibility for that, right? If they want to take some moderating action, if they, you know, say for example, ‘We don’t want Nazis leaving reviews, they talk about Nazi-ism. We prefer not to see that.’

Adam: Yeah. Reasonable.

Melissa Gira Grant: Um they can’t be penalized for doing that in some cases and not others.

Adam: Right.

Melissa Gira Grant: That’s sort of a safe harbor that they have also. So when we start chipping away at that, when one special case, right, when it comes to Backpage or to prostitution, um, it doesn’t leave the door open I think for other kinds of legislation that could start chipping away, um, but in terms of the immediate, when you think of how broadly something like this can be enforced, there’s no reason that this couldn’t impact any dating website, right? There’s no reason that this isn’t going to impact, um, Tinder or Grindr. Um, you know, we’re already seeing sites that had nothing to do with sex work like for example, web directories of strip clubs going offline because they don’t know if this is something that could be enforced against them. And we’re already seeing much larger platforms like Facebook, um, I’ve seen reports anyway, of them taking action against people doing things like posting a notice to other porn performers saying this, this journalist wants to get in touch with you and talk to you about SESTA and FOSTA and people who post that having their account suspended.

Adam: Wow.

Melissa Gira Grant: They don’t know if that’s directly because of SESTA and FOSTA and that’s sort of the other panic that legislation like this can create because people no longer know what’s acceptable and what’s not.

Adam: It is oftentimes opaque and kind of capricious and that sort of leads to obviously a broader chilling effect.

Melissa Gira Grant: That’s right. That’s right. And, and it makes people very uncertain of sort of, you know, it’s so blanket the way these things are enforced. So I’ve, I’ve talked to porn performers who um, had Google Drive accounts that had, you know, their work and it related to porn, but also other things that had nothing to do with porn and who’ve had their entire Google Drive account locked out, shut down, erased. Um, and so it’s because these things are applied in this blanket way and often with, without any sort of notice or explanation that in and of itself creates this, this fear. You know, sometimes people have referred to sex workers as kind of the canaries in the coal mine of the internet, that a lot of the kinds of speech restrictions and activity restrictions that sex workers experience, you know, it’s a way to see sort of how this is going to shake out in other online communities. In this case I’d say it’s even worse because we aren’t paying attention. They’re almost like the Cassandra in the coal mine. You know, people who are saying like, ‘Look what’s happening to us. Like, look how our communities are under surveillance right now and look at the fear of law enforcement we have right now’ in an even greater way. And um, and it, you know, it has, I would say, both at The Appeal and other publications, particularly online media, um, and sort of, you know, non daily newspaper media, um, have, have actually covered these consequences.

Adam: Right.

Melissa Gira Grant: Um, and it is now part of the story of how SESTA and FOSTA is talked about. It’s quite stunning actually to see even mainstream outlets refer to this legislation as controversial when you think of how widely supported it was in Congress. And I think that has to do with, you know, the degrees to which sex workers have also made themselves very visible in this conversation.

Adam: Yeah. So about that, um, you know, we say sex workers think X and sex workers think Y, now obviously there are some sex trafficking victims who are, who are on the side of the, uh, supporting the bill. It’s difficult obviously to gauge what percent of each is in support or opposed. But what’s telling, I think, is that the World Without Exploitation, which I think is the most prominent anti-trafficking group, is not led by a former trafficking victim or a sex worker. It’s led by a former prosecutor, uh, Lauren Hersh, a former DA from Brooklyn.

Melissa Gira Grant: Yes.

Adam: So, um, to what extent are the proponents of the bill actual sex trafficking victims and, and what is the sort of breakdown on the other side versus who’s sort of leading the charge against it? Is there any, is there any way we can sort of really get a sense of that?

Melissa Gira Grant: Let’s just look at the trafficking organizations themselves for a minute. And, you know, I, I’m actually quite challenged by World Without Exploitation and how to describe them. Like I don’t really know if, I wouldn’t describe them as an anti-trafficking organization in the sense that they provide services to people who are trafficked or support, um, or even community. Um, would they primarily seemed built to do is to advocate for federal legislation. Um, and then to also like, you know, do all of the ancillary activities around that, whether that’s, you know, getting publicity or putting people out on speaking tours and all that kind of visibility for something like that. So it’s not just like they’re just going to Congress, like they’re sort of trying to create this political environment where something like SESTA FOSTA would pass and make sense. Um, and they don’t actually have to do very much work to do that either, right? Because sort of the prevailing winds are that anything we want to do to fight trafficking is okay.

Adam: Yeah.

Melissa Gira Grant: And then we have trafficking organizations or anti-trafficking organizations like the Freedom Network, who I wrote about in my first piece about SESTA and FOSTA. They are the largest network of anti-trafficking service providers in the United States. So these are people who joined frontline work to provide support to people who are trafficked. And in some cases these organizations also employ people who’ve been trafficked and have leadership in other ways, um, from people who have been trafficked and they came out against this. And their opposition then there is kind of a ripple effect where you saw some women’s health and rights organizations like the International Women’s Health Coalition or um, the Positive Women’s Network come out against this and then some LGBT civil rights organizations like Lambda Legal came out against this, the National Center for Trans Equality, ACLU wrote a letter opposing this. Um, so when you look at like all of that stacked against sort of these densely networked lobby organizations, that starts, for me anyway, to paint a picture of sort of like, okay, like, what? How does this, how is this law basically just like a personal project of a certain political ideology that is so shaped by prosecutors and law enforcement?

Adam: Yeah, I mean, I think that’s really the rub, right?

Melissa Gira Grant: Yeah.

Adam: I mean, even if you’re sensitive to these arguments and I think that a lot of the listeners may be, um, really what it boils down to, I think, because there isn’t any kind of auxiliary support network or any kind of holistic approach, it’s purely punitive. It really boils down to whether or not you think that that state’s attorneys general and prosecutors have the best interest of the poor and the destitute and immigrants at heart and given the support even from the right wing Trump administration, the notoriously anti-immigrant Trump administration and the anti immigrant Republican Party believing in that good faith and believing that they have the best interests of the most vulnerable amongst us at heart seems a huge stretch to me.

Melissa Gira Grant: Really think of it very holistically, as you’re saying, like the same administration that is gutting protections for immigrants, gutting protections for trans people, gutting the social safety net, empowering police to do more violent enforcement, um, empowering the justice system, rolling back civil rights protections within the Department of Justice. These are the people you’re going to put your chips on the table with.

Adam: Yeah. These are the great protector of women suddenly, I mean, I don’t know. Come on. (Laughs)

Melissa Gira Grant:  And that’s been the case since back to the beginning of this legislation, you know, coming up sort of in the George W. Bush era, you know, it actually gave George W. Bush sort of, in some circles anyway, like women’s rights bonafide, like you would see people from, you know, whether they were new neoconservatives like, um, Donna Hughes who writes for The New Republic and others and also is, uh, you know, had the ear of George W. Bush when it came to trafficking policy, going around saying like, ‘This is like, you know, a real feminist move from this president.’ And so I think, you know, I don’t think anybody’s naive enough to think that Trump is able to use the issue of trafficking to distract from everything else that he’s about, including the multiple acts of sexual assault he’s been charged with himself.

Adam: Right.

Melissa Gira Grant: Uh, but I, you know, one of the other people who was really loudly speaking in favor of SESTA and FOSTA, even though he can’t actually enforce it, Cy Vance, District Attorney of Manhattan going out and giving a press conference about it from his own office, followed up with another speaking engagement at the United Nations the same week. Why is Cy Vance going around speaking about how important it is to protect people from sex trafficking at the same time that his office is declining to follow up on an investigation into Harvey Weinstein at that moment? Um, and so it says something about like, well, where is your commitment really to protecting people? Um, or how much of this is really just about expanding the reach of criminalization into the lives of people who are already vulnerable.

Adam: Before we go, let’s end by saying sort of what comes next. Listeners who are listening to this and they’re concerned with maybe what the kind of next steps is for people who are opposed to this bill or opposed to its consequences both in terms of sex workers and activists. What is the next steps moving forward? What does the landscape look like? From the picture you paint it seems, it seems pretty dire. I mean the law has been passed, it’s kind of been done. What are the next steps that can be used to sort of mitigate or to ameliorate the consequences?

Melissa Gira Grant: They’re, just starting sort of, I guess, from the center and we can move outward in terms of, of sex workers own resistance to this and organizing against this. There has been a groundswell of sex worker organizing in this country that I haven’t seen in several years, um, in, in cities but also at the national level, um, on June 1st and June 2nd there are going to be different kinds of actions against SESTA FOSTA in several cities in the US and also in Washington DC. And the folks who were organizing that are doing so under the banner of Survivors Against SESTA and they have been quite visible, um, you know, throughout sort of the history of this, this bill being publicized and they were quite instrumental I think in publicizing this. And you know, this is always the story. It’s like when a community is under this kind of attack, it’s also a moment of, of great resilience and resistance in the face of it. You know, everything from people organizing like emergency funds to cover rent and childcare and tuition and electric pills for sex workers who have suddenly lost their income, um, to doing this sort of like larger policy analysis. It’s, um, that, that’s what I’m seeing on the ground and you know, in terms of like rolling the bill back or appeal, I mean, I leave that to people who are much more inside the beltway.

Adam: Right.

Melissa Gira Grant: I don’t have a lot of hope for any legislation to, to move that could, that could roll this back. Um, but I do think the place for people to be looking is how state attorneys general role with this.

Adam: Right.

Melissa Gira Grant: Because essentially, you know, facilitating prostitution on the internet has been something that could be turned into a federal crime, um, through, uh, other laws that already existed. You didn’t need SESTA and FOSTA to do that. And in fact, that’s why Backpage is under prosecution right now in Texas and also in California. But what this law did, what SESTA FOSTA did, is essentially take that power and distribute it to state attorneys general. And so I think that’s actually going to be the next battleground is you know which state attorney general is going to do the first big prosecution on this.

[Music]

Adam: Okay. Well thank you so much for joining us. That was incredibly informative.

Melissa Gira Grant: Thanks for having me.

Adam: That was Melissa Gira Grant, a senior reporter at The Appeal, author of Playing the Whore: The Work of Sex Work. You can find her on twitter @MelissaGira. It’s M-E-L-I-S-S-A-G-I-R-A and you can find much of her work at The Appeal website at theappeal.com. I’m Adam Johnson. The Appeal is produced by Florence Barrau-Adams, the executive producer is Sarah Leonard. We’ll see you next week.

 

More in Explainers

The Appeal Podcast Episode 1: District Attorneys Are The Most Powerful People You’ve Never Heard Of

With Josie Duffy Rice, senior staff reporter at The Appeal.

Cook County State's Attorney Kim Foxx
Twitter

The Appeal Podcast Episode 1: District Attorneys Are The Most Powerful People You’ve Never Heard Of

With Josie Duffy Rice, senior staff reporter at The Appeal.


District attorneys wield enormous power but have been historically overlooked in efforts to reform the legal system. Recently that has changed, with the rise of a bail reform movement and new primary election challenges upending the “tough on crime” status quo. Our guest Josie Duffy Rice, the host of our sister podcast “Justice in America,” will be joining us to explain why DAs are such an important—and often unseen—fulcrum of power.

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

Transcript

Adam Johnson: Hi, welcome to The Appeal. I’m your host, Adam Johnson. This is a new podcast on criminal justice reform, abolition and everything in between. Just to orient you a little bit this is a new podcast project that’s launched in concert with The Appeal magazine, an online magazine that deals with criminal justice reform, prisons, prosecutors and similar related topics. It’s a journalistic endeavor that aims to shine a light on the undercovered aspects of criminal justice in prisons and I’m super excited to work on their podcast. The general format is basically going to be Q&A. I’m going to center the guest and what they’re working on. I want to thank you so much for those who have joined us on this pilot episode. Today we’ll be joined by Josie Duffy Rice, a senior lawyer at Fair Punishment Project, contributing writer to its sister publication The Appeal and host of the upcoming podcast Justice In America, which she will host with Clint Smith.

[Begin Clip]

Josie Duffy Rice: You know prosecutors have a direct and consistent impact on people in communities, um, day to day. They make decisions that if they’re not impacting you directly they’re probably impacting some of your family or some of your friends and if they’re not impacting anybody you know, you are living a life unlike most people in America.

[End Clip]

Adam: Joining us now is Josie Duffy Rice. Thank you so much for coming on.

Josie Duffy Rice: Thank you so much for having me.

Adam: So we are co-starting these podcasts together. Mine’s going to be more Q&A. Yours is going to be more technical. I’m super excited to have you on as the first guest as kind of a soft launch for your project. Before we start, I want you to talk a little bit about The Appeal and what its goals are moving forward and what your specific role is in that capacity.

[Fade Music]

Josie Duffy Rice: Sure. So The Appeal was first known as Injustice Today and we started last summer. And the purpose of, what is now known as The Appeal, was to provide a new source of criminal justice journalism to the public. The reason that we thought that The Appeal was necessary is because criminal justice issues do get a fair amount of attention, not enough, but some in mainstream media, but often that attention is focused on the wrong aspects of the criminal justice system or perhaps the aspects of the criminal justice system that don’t have as much of an impact as some of the others that were getting less attention. Um, my examples for that are: you read a lot of stories about innocence and you read a lot of stories about private prisons, both of which matter. They’re not irrelevant and they deserve some attention. But when you take away the innocent people, right? Quote unquote “innocent people” or you take away the private prisons; we still have an incarceration crisis in this country.

Adam: Right.

Josie Duffy Rice: We still have a criminal justice system that is massively bloated. And what else is happening that deserves attention, so that was one of the reasons that we wanted to start The Appeal. Um, and a lot of the work that we do there focuses on prosecutors. Because of that reason we didn’t think that prosecutors were getting the attention that they require in order to hold them accountable as public servants and elected officials and, you know, powerful people. Just more generally.

Adam: Can you Josie tell us a little bit about what your and Clint’s new project is and what listeners can expect to hear from your podcast?

Josie Duffy Rice: Absolutely. So Clint Smith and I are starting a podcast called Justice In America. Clint is a poet, a Ph.D. candidate, he has a lot of experience on criminal justice issues, particularly education in the jail and prison system. And we’re starting a podcast on criminal justice issues that we want to do. Two things basically, one is to really explain how these issues work and how they operate. Um, we’re starting with bail and we’ll also be covering immigration, voting rights, prison conditions, etcetera. Because we’ve noticed and we, I’m sure you’ve noticed too, that so many people care about these issues and maybe have a cursory understanding of them but don’t actually really understand how they work. So one part of it is making sure that we are explaining to our audience how the system functions and the other part is providing some different perspectives on these issues. On possible solutions, on who’s impacted and how and featuring some of the people we know from organizers to policy people to people who do direct representation for people in prison and jail to provide that perspective and give the audience a little bit more context for how the system functions.

Adam: Great. I’m looking forward to that very much as I imagine many of our listeners are. So first things first, which is both you and I and the broader The Appeal project, prioritize and focus on prosecutors and district attorneys. Um, I want to sort of set the table for those who are listening who maybe not totally intimate with why they’re important. Can we sort of talk a little bit about the broader nature of district attorneys? What percent are elected, what percent are appointed and why The Appeal and you specifically have put such a focus on prosecutors as an entry point into meaningful reform as opposed to what you describe as a kind of surface level or fringe case reform efforts.

Josie Duffy Rice: There are 2300 prosecutors in America and that’s on the state level, the local level, um, the federal level is a different beast, and also it deserves attention, but most of our attention goes to local prosecutors. Those are 2300 elected prosecutors, obviously, many more assistant prosecutors in those offices and I couldn’t tell you the exact percent that are elected, but in every state other than New Jersey and Connecticut, they elect at least some of their prosecutors, usually all of them.

Adam: Right.

Josie Duffy Rice: You know prosecutors have a direct and consistent impact on people in communities, um, day to day. They make decisions that if they’re not impacting you directly they’re probably impacting some of your family or some of your friends and if they’re not impacting anybody you know, you’re living a life unlike most people in America. They serve this purpose of holding people “responsible,” quote unquote, for the crimes that they have allegedly committed. Um, and they have an immense amount of power and traditionally have been never really held accountable, especially in comparison to the power they have. So the equation that I always spell out is that prosecutors have excessive power, they have bad incentives a lot of the time and they have very little accountability. And if you combine those three things, you have a monster. Now what we’re seeing is that people are talking more about prosecutors over the past two or three years than ever before. They’re getting more attention from journalists, you know, more questions are being asked and we’re seeing a different kind of prosecutor pop up in elections. And I do think in some ways the window is shifting, right?

Adam: Right.

Josie Duffy Rice: But traditionally prosecutors have run on a tough-on-crime platform. They’ve made thousands and thousands and thousands of decisions without any scrutiny or accountability. And you know they’ve changed the entire fabric of neighborhoods. They’re directly responsible for mass incarceration. They’re not the only people responsible for mass incarceration, but they’re certainly a large part of it. And they are directly responsible for, in some ways, the quality of life that people of color especially and poor people are living in America. So in our heads, it just was time to give them some more attention. Right? Police have long gotten attention, prisons have long gotten attention and again, not enough, but at least someone has been paying attention to those issues for longer than two years. But the middleman, the prosecutor, was getting nothing for decades and in our head it’s time to change that.

Adam: Yeah. So the general idea is that, and this is the, you know, the sort of way it was explained to me, and for our listeners, of what the broader project is, is that there’s just (a) too many people in prison incarcerated, um, there’s too many arrows in the quiver of prosecutors to put people in prison and when they are imprisoned they are put in prison for a very long time that we have a general sort of overly punitive and carceral state apparatus where there’s basically no incentive to be quote unquote “soft-on-crime.” And the easiest position with which to demagogue that and the easiest position with which to enforce that punitive ethos is in the DA or prosecutor level.

Josie Duffy Rice: Right. You know, I think we look at the criminal justice system in a similar way as people think about climate change. Mass incarceration is real and people like to frame that as an opinion, but it’s only an opinion to the extent that, you know, climate change is real is an opinion. It might be an opinion, but it’s right. The facts bear it out. Um, reality bears it out. And for so many people in America their day-to-day lives are controlled by the criminal justice system and prosecutors were kind of acting with impunity even when we were trying to hold other parts of the system accountable. And so that was part of the thinking behind creating The Appeal.

Adam: Yeah. Because the general, I mean, you know, you have a country where the president goes around condemning countries for political prisoners when the US has the largest prison population in the world by a factor of 2, 3, 4X, depending on the country.

Josie Duffy Rice: Right.

Adam: Obviously people have heard the stat, twenty five percent of the world’s prison population, but five percent of the population, which is a pretty staggering statistic when you actually break down the numbers.

Josie Duffy Rice: Right.

Adam: And these aren’t of course just numbers, these are people with lives, families. There’s another element to which I think is super interesting about The Appeal, which is, which is one of the reasons I joined is that there’s a idea that it’s not just about prisons, it’s also there’s another side of the coin, which is surveillance and monitoring-

Josie Duffy Rice: Yes.

Adam: And basically putting people on the grid and where I think other kind of reformist efforts have failed and the reason why I don’t like a lot of reformist efforts personally, to editorialize here, is that they omit this altogether, that there’s this idea of probation, parole and monitoring. Can you talk a little bit about the movement towards that and how that can sometimes serve as a sort of pseudo solution for this problem?

Josie Duffy Rice: I think that unless you really get in the weeds and you really think critically about what you want, it’s very easy to create solutions in the criminal justice system that feel like solutions, but actually are just perpetuating the same problem. So, you know, I think there are too many people serving too long sentences in prison right now. I think that having them out on parole or probation is in some ways an improvement and looks much more like an improvement than it is. Part of the reason for that, is like you mentioned, it requires just immense levels of surveillance. Often it requires a lot of money to kind of keep people monitored but not in prison. And then I think that the third thing is that it’s still requiring something from people that shouldn’t be involved in the system a lot of the time. Probation and parole are very easy to violate, right?

Adam: Yes.

Josie Duffy Rice: They often end up getting people back in the system for many more years than they maybe would have had going in for the first time. We see constantly stories of people accidentally violating their parole or probation or a miscommunication landing someone back in prison or not having the $300 you need that month to pay your fee and then you’re back in the system. And so all of it still requires people to be tangled in the system, right?

Adam: Right.

Josie Duffy Rice: All of it: prison, probation, jail, parole. Um, all of this still means that the system has its tentacles around you and what we’re trying to figure out, I think as a community, is how do we stop that? How do we kind of stem the tide of criminal justice involvement, you know, its ubiquity among so many people in this country?

Adam: There is a lot of overlap in terms of a lot of these organizations, from the bail reform organizations to even some of the grassroots attempts to elect people like Larry Krasner, is that there’s just too many people in the system.

Josie Duffy Rice: Right.

Adam: And that if you reduce the pie, as it were, that how the pie is allocated becomes, is a little less important than that. I know that, for example, you mentioned the sort of temptation of probation. I, back in my more checkered days, I would always have, I had a guy who would always tell me if you can choose between one year in prison or five years probation, you always take the one year, which seems shocking to me. But the argument is that they will always find a way to put you in prison.

Josie Duffy Rice: Yes.

Adam: They’ll sort of find ways of doing it, even if they can’t.

Josie Duffy Rice: Yes.

Adam: And so I do want to move to the topic of efforts to actually win DA-ships for more reform or even more radical people on the district attorney level. So you have people like Larry Krasner in Philadelphia, uh, you have people like Kim Foxx in Chicago. Can we talk about efforts that, the efforts that have been made, without, of course, campaigning for or lobbying for anyone, um, the efforts to, to actually move the needle and even some people who I consider to be radicals have kind of praised some of the things that have been done. Is this a realistic or useful avenue for actually changing the system? Or is it a bit of a siren song in your opinion?

Josie Duffy Rice: About three years ago I started working for Daily Kos where I was covering prosecutors and at the time, I mean I was exclusively covering prosecutors and I’m not sure how many people even do that at this point, but at the time they just weren’t getting a ton of attention. That was in 2015. And in that time, since from then to now, it’s just been really crazy to see how many prosecutors have run on a platform of being less punitive and more progressive than their opponents or the incumbent, and won. It’s a, it’s a shocking amount of wins. And I do think it matters. You know, having a progressive DA can have a serious impact on people’s lives.

Adam: Yes.

Josie Duffy Rice: They can implement office policies that materially affect the lives of people. That can reverberate to other law enforcement sectors in that place. They can ask for less prison time, less jail time, shorter sentences. They can categorically refuse to ask for bail for some crimes. These are major things that they can do. I think there are a couple things to keep in mind. One is that like there’s no one answer to this problem, right? If we elect 2300 progressive DAs tomorrow, we’re going to see a different criminal justice system, but it will still have fundamental problems, right?

Adam: Right.

Josie Duffy Rice: The prisons will probably still be bad. Even if there are less people in them, they’ll still be inhumane. It doesn’t mean that we’ll have better police. Although, again, I do think that a progressive prosecutor can influence a police department in some ways. So it doesn’t solve everything, but it can alleviate a lot of the harms that we see. I think that being said, there are still some major roadblocks that we’re facing even among progressive DAs. You know, there’s an entire community of people who work to get these people elected. Um, we’re not part of that community, but we, like everybody else can see it from, from afar. And what you’re, what you see is grassroots groups, progressive funders. You see an entire infrastructure being built around getting progressive DAs elected. The problem with accountability, right, is what you do once they’re in office.

Adam: Yeah.

Josie Duffy Rice: Um, and the reason it’s hard sometimes to keep them completely accountable is because these elected DAs aren’t actually the ones in the courtroom, you know, those are the assistant DAs. And so they can implement policies or suggestions or guidelines but it’s other people who are actually making the decisions day to day. And these offices often see hundreds of thousands of cases a year. I mean Chicago sees literally almost half a million cases a year. I mean, just think about that number. You know 400,000 misdemeanors a year in Chicago. So how do you monitor what everybody’s doing all the time? How do you make sure that nobody is asking for something outrageous or punishing someone inordinately or how do you make sure that all 700 DAs are being, you know, are thinking about racial equality or keeping in mind someone’s income level when they make decisions? You can’t really. And so in some ways it’s very different than trying to hold another elected official accountable where you want to see the legislation they supported or you know, what they wrote or voted for. This is kind of a constant process that requires attention from people in the community nonstop.

Adam: Right.

Josie Duffy Rice: There are a couple of things that help. Having data helps and we don’t have very much data. We have a lot of data from Kim Foxx. She made a groundbreaking decision to release a lot of data, but generally we don’t have any numbers to tell us what days are doing day to day, which makes accountability even harder. I think though that if you think about this and the ways that we think about elections, which is who is an elected official accountable to, in Chicago, the people who got Kim Foxx elected were not the police, it wasn’t the police union, it wasn’t this like typical law enforcement base. It was a progressive grass roots base, it was a base of people of color, a base of poor people, a base of people who have some involvement in the criminal justice system and you know, when that’s who propels you to office, that’s who you need to be accountable to. I think that helps.

Adam: Right. Yeah. So let’s talk about Foxx real quick because I think I want to use her to pivot to another question, which is the, um, the Chicago Appleseed organization did a review of Foxx and basically found that the first year was a kind of mixed bag, that there was an actual meaningful, that there was more disclosure, more transparency, I guess less punitive punishments, especially for small drug offenses, but there was an uptick in prosecution for gun crime. And I want to talk about the issue of gun control because it, I think there’s sort of two issues that, where liberals and leftists, where there’s a bit of tension and that’s number one, the issue of what people sort of generally call carceral feminism or the issue of rape, which we’ll table for another episode, um, and then there’s the issue of gun control. So obviously there’s a huge movement right now to reform gun control. Parkland has radically changed the conversation. The school shooting that happened in Florida back in February. Now, people who are, who deal in these spaces who deal in reducing prison sentences, especially in inner city communities, especially ones with huge gun measures like Chicago, they think that this, this, this can be a bit deceptive and a bit problematic because ultimately a lot of these gun control measures end up disproportionately harming African Americans and tacking on five, ten years to their sentence. So as a sort of right minded liberal listener who wants to sort of do the right thing, in your opinion, how does one negotiate this tension within the left between the instinct to want to protect children from getting gunned down in school versus an understanding that in the aggregate these gun control measures, especially against automatic weapons and such, can effectively end people’s lives if they’re caught with them or even suspected of being caught with them.

Josie Duffy Rice: Yep. You know, I think this gets to a fundamental problem when we talk about criminal justice as it relates to any other sort of social issue, which is that we are still a very punitive society and that there is an entire kind of move towards criminal justice reform and we talk about mass incarceration etcetera. But at the end of the day, even a lot of people on the left, their instinct is to criminalize and their instinct is to, when there’s a problem, criminalize our way out of it. And you can really see that in the conversation around guns. There obviously are too many. I mean, it’s obvious to me and I think it’s obvious to a lot of people, there are too many guns in this country. They are for many people too accessible. There’s a culture around gun ownership and in many ways some of that culture perpetuates violence and is responsible when we see things like Parkland. But the answer that many people jump to is, ‘Okay, mentally ill people can’t have guns’ or ‘We need to outlaw these guns and if you’re caught with them, you know, you’re now in trouble.’ And the reality is anytime that you implement a new criminal law, I would say the vast majority of times, ninety five percent of times, that law is going to impact some communities more than others. And those communities are communities like what you hear about in Chicago, poor communities, black communities, that’s who pays the price.

Adam: It’s not really going to be Cletus who is going to be in trouble for these new laws. It’s going to be poor African Americans.

Josie Duffy Rice: Right. And it’s complicated in a lot of ways, you know, felon gun possession laws have been responsible for a major, major increase in incarceration. And regardless of whether or not you think people with criminal records or anybody should have a gun, what we’re doing is throwing people in jail simply for possession, not for doing anything, right? Having it creates this sort of pipeline into prison. And that pipeline usually is black and is usually a poor. So you asked a question of like, how do you resolve this tension? And I’m not sure that I have an answer to that and the sense that like we have really, we’re in a pickle nationwide. If we outlawed guns tomorrow, there are still so many guns in America right now. If we stopped manufacturing them tomorrow, that is to say. And there’s no easy solution. I do think the answer is to go after what’s accessible, which is manufacturing, ease of purchase, gun shows. I do think we should be headed in that direction.

Adam: It’s sort of an approach that one would take to drugs, which is you deal with it, you deal with high level dealers as opposed to the petty users.

Josie Duffy Rice: Right.

Adam: And right now we have a country where, you know, yeah, you have gun manufacturers that are contracted by the government, you have large weapons contractors who sell to different countries and so those guys are sort of okay, but then the sort of low-level guy on the street is somehow a menace and I think that’s kind of where the conversation needs to shift from my own editorial perspective.

Josie Duffy Rice: Yeah.

Adam: Another place where there is some interesting traction going on that I’ve been following and tracking closely is the movement to reform or abolish cash bail and efforts from Brooklyn to Philadelphia to Chicago where you have organizations that, what they do is they do two things. They actually have a fund that puts up bond and gets people out of jail who have been in for usually excessive amounts of time or, well in all cases they’re too poor to afford it. So you have this idea of cash bail, which a lot of people don’t really know about and I didn’t know about where effectively you have a whole class of people who are in jail before they’ve even had trial or before they’ve been found guilty of anything, who are incarcerated for simply because they can’t afford to pay for bail. Now, I was shocked to learn the statistics on this. Twenty percent of people who are currently incarcerated in the United States have not been found guilty of a crime, which strikes, I think even the most liberal reform person as being intuitively offensive.

Josie Duffy Rice: Right.

Adam: Uh, that’s a really high number to me. And I know, I know that in certain county jails the numbers are as high as seventy, eighty percent because that’s sort of where what county jails function as. And these bail reform groups that have emerged over the past few years have seen some pretty good progress. I know that in the city of Chicago the number of people who are currently in jail pretrial has gone from about 8,000 to about 6,100. So you’ve seen some actual consequences. And there was a ruling recently to not institute bail that was beyond what people can pay. Can you talk about those movements and what the momentum surrounding them is and what the prospect of their success is?

Josie Duffy Rice: Sure. So bail reform has just kind of exploded in terms of an issue that people focus on and there have, there has been for a long time certain pockets of criminal justice reformers or the criminal justice movement that has focused on bail, but now I think we can agree that it’s getting a lot more traction, a lot more publicity and we’re actually seeing some real changes on the ground. There are different ways of handling this, right? So one of our first episodes of our podcast, Justice In America, is on bail. And one of the people that we’re talking to is Alec Karakatsanis, who runs Civil Rights Corps. Civil Rights Corps is an organization that is taking the approach of suing different counties nationwide for their use of money bail. That’s one approach that people are taking. There’s a legislative approach. For example, New Jersey outlawed cash bail. There’s, like you mentioned the bailouts, Mama’s Day Bail Out, which is an effort to raise money to bail out people who are serving time. It’s kind of a spinoff of community bail funds, which we’re also seeing more of, Brooklyn, Chicago. There are efforts on sort of every different plane to kind of address bail and these community bail funds are really incredible and they’re really a brilliant idea because they are a response to the bail bondsman relationship that you see for many people who are trying to pay bail, which is really predatory and harmful to those who don’t have the money to pay. Um, and so bail funds are a grassroots community response to that and that’s truly incredible. I think that like, for myself, and I think everyone who runs a bail fund would agree with me, the goal is that one day these funds are obsolete, right?

Adam: Yes.

Josie Duffy Rice: The goal is that one day we don’t need them because in a fair system justice can never be tied to wealth. It can never be tied to money. So we truly have to rethink what pretrial holds and pretrial release look like. And that is what so many people are doing on the ground today. I think a lot of people are also trying to figure out if not bail, what do you use? Because there are some issues we have to grapple with. On one hand, it’s not fair that anybody is incarcerated before they’ve been convicted. On the other hand, if Ted Bundy, which is, uh, you know, always the rights’ example, but I’m going, I’m trying to think of someone extreme, you know, if he gets arrested and he hasn’t been convicted, but he’s, he’s a suspect in thirty murders, like maybe you don’t want him back out on the street. I think that the amount of people that we should be holding in pretrial should be one percent of what we’re holding now. Most people are not a danger to themselves and others once they’ve been arrested.

Adam: Yeah.

Josie Duffy Rice: Most people are not a flight risk. It’s just not actually practical or reasonable how many people we hold, not to mention ethical-

Adam: Yes.

Josie Duffy Rice:  But regardless of what we decide to do about pretrial release more generally the answer can never be that it’s tied to money.

Adam: Um, yeah. I mean, we’ve heard stories about people who’ve been in prison for years without a trial who haven’t left jail simply because they can’t afford a five, ten thousand dollar bond, which, you know, this is one of these issues where I don’t think most people really get it or know the wild racial and economic disparities that exist in the bail, in terms of bail and getting people out of prison pretrial. And I feel like when you explain that in those terms and you put a face on it, it de-abstracts it because we, you know, prison reform, and I understand why, but we talk a lot in big numbers. We talk a lot about ‘twenty five percent of the world’s prison population,’ you know, ‘X amount of people,’ ‘Y amount of people.’ But I mean these are people who are in prison before they’ve been found guilty of anything who for months, if not years, who can’t get a job, can’t go to school.

Josie Duffy Rice: Yeah.

Adam: You know, they lose bonds with their father, with their sons, with their daughter, with family members.

Josie Duffy Rice:  Yep, yep.

Adam: Uh, there are statistics and statistics that show you’re actually way more likely to win a case if you’re out of jail. So then you have that compounding aspect where it’s almost impossible if not incredibly difficult to quarterback your own defense because obviously a lot of public defenders are sort of, you know, they kind of phone it in. Um, and so there’s all these sort of tremendous consequences for pretrial detention and it’s one of the things that I know that your podcast is going to focus on and I’m super excited to hear about it on the first episode.

Josie Duffy Rice: Great yeah, we’re excited to talk about it.

Adam: Sorry. It’s one of those things where I get kind of angry about it.

Josie Duffy Rice: No, it’s outrageous.

Adam: I’m supposed to be the dispassionate host, but you know.

Josie Duffy Rice: Yeah, I think that ship sailed.

Adam: Yeah, I’m pretty sure it did. So there’s an interesting conversation surrounding how to quote, “reform police,” where DAs can kind of come in as well, where there’s this idea that the Department of Justice comes along under Obama, Jeff Sessions doesn’t do it anymore, but under Obama they would come and they would review these police departments and give a series of recommendations in a really kind of cynical, liberal or I guess someone argued neo-liberal spending mechanism. Several mayors have used this line of police reform or the movement for police reform to actually increase the budgets of police departments. You see this time and time again. In a 2015 interview with The New Republic, then candidate for president Hillary Clinton, when she was asked what her Black Lives Matter platform was one of the things she told the interviewer was that she wanted more money for police departments so they could train people. Rahm Emanuel in Chicago is building a $95 million police academy and he’s using the DoJ recommendations for police reform to justify the cost, which the police academy, especially since dozens and dozens of schools in Chicago have been closed, has been met with tremendous pushback. Um, to what extent is there a worry that attempts to quote unquote “reform the police” or criminal justice in general will just end up funneling more money into the system itself?

Josie Duffy Rice: Yeah, I think that’s a real concern and I think it also touches on something, even taking the increased funding out of the equation, you’re touching on something that is, for me, a very frustrating issue because it’s treating the means to an end, as an end. Right?

Adam: Right.

Josie Duffy Rice: And so we see it all the time, ‘Oh, we need more community policing, we need more implicit bias training.’ You know, ‘We need more community events with the police.’

Adam: Right.

Josie Duffy Rice: ‘The police have to see these residents as people and the residents need to see the police as people. And we need like kind of trying this, this construct of building more humanity among all the parties and how that will lead to a changed police force.’ And what I would say is like maybe, but probably not, but regardless, that’s not the goal. The goal is not implicit bias training, right?

Adam: Right.

Josie Duffy Rice: The goal is less involvement by the police with the police. The goal is less brutality. The goal is a more functional police presence, if there’s a presence at all. And we have to rethink what we’re asking for. When Rahm Emanuel says, ‘We are going to do more implicit bias training.’ I don’t really care how you get there, but you have to get there. You can do implicit bias training all day and if it doesn’t actually change the numbers on the ground, people’s experiences, then it’s not working and we have to move to plan B, C, D, E or F. You know, I’m not a believer that implicit bias training works. The numbers don’t bear out.

Adam: Yeah. There’s a weird kind of meta ethos you see sometimes where people think the solution to gross racial disparities is not to lower the amount of African Americans in prison but is somehow to increase the amount of white people.

Josie Duffy Rice: Right.

Adam: The thing is, we’ve done all this before. In the nineties when all the major, the major crime reform bill that put tens of thousands, hundreds of thousands of African Americans in prison, was floated in the nineties, they used the term “community policing,” it is a very popular term.

Josie Duffy Rice: Right.

Adam: If you actually go through and read the media at the time it’s ‘Bill Clinton argues for community policing’, which was a totally BS, like liberal nonsensical term that is just a way for putting more police on the streets. And then when, when, when I saw Hillary Clinton used it again in 2015, she used the term “community policing.” It’s a way to kind of launder what is basically the same old thing. There are some marginal improvements around the edges in terms of, yeah, you know, it’s all things being equal its probably better police forces being more diverse, like sure, but you know, the LAPD, the racial makeup of the LAPD is completely almost one to one representative of Los Angeles and it’s one of the most abusive and racist police departments in the country.

Josie Duffy Rice: Right.

Adam: So I’m not sure there’s a lot of empirical evidence that supports these kinds of liberal half measures and I think when people speak about vagaries and the idea that it’s somehow a moral failing on the part of individual police officers, yeah, I think it generally kind of misses what we really need, which I know from people who work on the streets and who are more of the kind of grassroots Black Lives Matter, one of the primary animating, I guess, causes, is simply just to defund the police more and that the last thing we need is a $95 million dollar police academy in the middle of Chicago where you train more people to manage the city’s poor population.

Josie Duffy Rice: I think the half measures being mistaken for whole measures is an epidemic especially in criminal justice reform. I think over and over we see among people trying to reform DAs, prisons, police, basically asking for the wrong thing and settling for the wrong thing as a win. The reality is that it’s quantifiable. We can talk about how many people are getting arrested, what those people look like, how they’re being treated, what kind of sentences are facing, what their experiences with the police versus other neighborhoods. This is what needs to change and if having a more diverse police force got us there, if more training got us there, then it would be a conversation worth having. I have seen no evidence that that’s how it works. The evidence isn’t there and so I’m not going to sleep well at night. I’m not going to be able to think about doing anything else with my life until I see the numbers change and the numbers haven’t changed significantly enough to think of these other solutions as solutions. They just haven’t.

[Music]

Adam: Well Josie, thank you for coming on. That was great.

Josie Duffy Rice: Thank you. Before you go, I want you to let us know when exactly your podcast will launch or when people can expect to see it.

Josie Duffy Rice: So my podcast with Clint Smith is called Justice In America, it will be launching early June and we’re super excited.

Adam: I’m looking forward to it. Thanks so much for coming on.

Josie Duffy Rice: Thank you so much Adam.

Adam: That was Josie Duffy Rice, a senior lawyer at the Fair Punishment Project, contributing writer to The Appeal and host of the upcoming podcast Justice In America. Be sure to check that out. It’ll be on iTunes, Stitcher and other places you can find podcasts. I’m your host Adam Johnson. This is The Appeal Podcast. It is produced by Florence Barrau-Adams with executive producer Sarah Leonard. Thank you so much for listening. We’ll catch you next week.

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