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The Appeal Podcast: Prison Strikes Are the Front Line Against Mass Incarceration

With Appeal staff reporter Raven Rakia.

Photo illustration by Anagraph. Photo by Justin Merriman / Getty Images

The Appeal Podcast: Prison Strikes Are the Front Line Against Mass Incarceration

With Appeal staff reporter Raven Rakia.

This fall, thousands of incarcerated people in dozens of states went on strike to protest harsh and exploitative conditions in America’s prisons. Prisons, and the cruel conditions they foster, are often the last thing with which the public wants to be confronted. But incarcerated people throughout the country are using the only leverage they have—their personal labor—to force the issue. Our guest, Appeal staff reporter Raven Rakia, joins us to talk about these efforts and what the future holds for the prisoners’ rights movement. Read more of Raven Rakia’s prison strike coverage here and here.

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


Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can follow us on Twitter @TheAppealPod, you can follow us on Facebook at The Appeal Facebook page and you can always subscribe to us on iTunes. This fall, thousands of prisoners in dozens of states went on strike to protest harsh and exploitative conditions in America’s prisons. Prisons and the cruel conditions they foster are often the last thing the public wants to see much less debate, but incarcerated persons throughout the country using the only leverage they have in their personal labor are forcing the issue on the front burner of a country that would rather talk about anything else. Our guest, Appeal writer Raven Rakia, joins us to talk about these efforts and what the future holds for the prisoner rights movement.

[Begin Clip]

Raven Rakia: Labor conditions in general across the country in prisons it’s kind of twofold because on the one hand, some of them are very laborous and they’re used as punishment at times or retaliation, and on the other hand, some prisoners enjoy some work conditions because it means it can get them out of their cell. What organizers in prison have been trying to push in terms of their ideology and theory behind it, from what I’ve seen, is that the two choices aren’t really choices because people in prison only want to work because that means they get out of a cage. In that sense it’s still forced labor.

[End Clip]

Adam: Welcome to the show. Thank you so much for coming on.

Raven Rakia: Yeah. Thanks for having me.

Adam: So we’re going to talk about prison strikes today. Um, there was a massive prison strike a couple months ago from August 21st to September 9th. I want to talk about that and then I want to broaden the topic if you will, to broader prison conditions. Of late prison strikes have gotten, at least they appear to have gotten more frequent. Uh, we typically associate them with sixties, seventies uprisings, but they seem to have gotten more frequent. Can you talk about the organizing that’s been going on amongst prison reform and prison abolitionists and the prisoners themselves of late and what the, what the sort of primary instigator of this recent wave of strikes is?

Raven Rakia: Yeah, sure. So I think, uh, it’s important to, to quote what another journalist Victoria Law tweeted earlier, which is that prisoners are always organizing. So even though like now we see a lot, we’ve seen a lot of strikes and a lot of visible things, I think it’s important just to note that it’s pretty much throughout history prisoners have been organizing and they will continue to. So it’s just kind of difficult to put dates on things in terms of wave of prison strikes. But starting in 2010, I think we started seeing a lot more prison strikes. Um, and in 2010 there was the prison strike in Georgia where prisoners in multiple prisons in Georgia decided to, uh, do a work strike and they refused to go to work and several prisoners were punished for it. Eventually correction officers were indicted on beating an inmate who had organized the prison strike and they beat him pretty badly. He had a lot of physical health issues after that. So I think that was when at least I started noticing prison strikes in terms of in the recent years and then since then we’ve seen like organizations like IWOC [Incarcerated Workers Organizing Committee], Anarchist Black Cross and plenty of others, The Ordinary People Society and other organizations that with people outside the prison who are then organizing and communicating with people inside the prisons. And of course IWOC also includes union members in prisons as well. And so we’ve seen like multiple prisons strikes. There was also like the California hunger strike in 2013, um, which was organized by multiple abolitionist and reform groups in California working with people inside to get over 30,000 prisoners to hunger strike. And that was probably one of the largest, if not the largest prison strikes we’ve seen. And then, um, recently, like in 2016, and the recent one in August, have been more like national prison strikes, prisoners organizing in different states with each other, which is kind of incredible to see happen. So yeah, that’s a little bit of the background.

Adam: One of the things we try to talk about on this show a lot, and I know this is something that The Appeal is trying to do in general ideologically, is to really get away from this idea that of the kind of deserving victim and the undeserving, the kind of violent offender and the nonviolent offender as this kind of moral delineation, innocent and guilty and realize that to really reform prison and to meaningfully reduce prison populations, you have to deal with people who are quote unquote “violent” offenders who are just there for low level marijuana arrest. And this speaks to the kind of broader humanity of the prison system itself. And the prison strikes to me at least seemed to strike at the core of that kind of liberal tic to want to sort of divide people into sort of good and bad. Can you talk about it, at least from your experience talking to activists and prisoners, how difficult it is to get people to sort of see prisoners not along those lines, the innocent versus guilty, but see them as fundamentally human deserving certain rights and how difficult it is to get people to care because we see prisoners as basically expendables, as people who sort of don’t really deserve our solidarity and empathy?

Raven Rakia: Yeah. I think that was a main theme of this last prison strike specifically in terms of not trying to divide prisoners into nonviolent and violent and I’m glad you bring this up too because when it comes to prison strikes, I mean of course prisoners who are in prison for all different reasons will organize, but it does seem that like people in prison who are there for longer terms are more likely to want to change the conditions. People who are in there for low level terms who are maybe in there for a year or two, a lot of times they’re usually focused on just getting out and having good time and not getting any sort of violations or anything like that. Which is the type of thing that striking brings. This was a major theme in this last prison strike. They’re ten demands are basically ten demands for human rights and they’re arguing that all humans deserve these things, even people who may have done something wrong in the past. Specifically their demands highlight the fact that they do not think the like violent and nonviolent binary is necessarily right. Like for example, number seven of their demands, um, says, “No imprisoned human shall be denied access to rehabilitation programs at their place of detention because of their label as a violent offender.” So I think this demand specifically, and of course others do as well, highlight how they view that sort of binary and how it should be broken down in terms of providing everyone with human rights.

Adam: Let’s talk about the mechanisms of regress, of having their grievances aired. You note that the Prison Litigation Reform Act of 1996 passed by President Bill Clinton and the Republican Congress, you note that it places barriers and restrictions on prisoners trying to file federal lawsuits about their conditions. Can you talk about what that Act did that made being a prisoner more difficult and removed one of the key mechanisms of accountability?

Raven Rakia: Yeah, definitely. So the Prison Litigation Reform Act was passed in ‘96 under Bill Clinton and it basically placed a lot of barriers and restrictions of things that prisoners needed to do or things they couldn’t do in terms of filing a lawsuit to say that their constitutional rights had been violated. So for example, it required prisoners to go through all of the administrative grievance processes within that prison before they could file a lawsuit. And the problem with that is, you know, sometimes these grievance processes are very long and complicated or just certain things like being in prison, you’re depending on certain people to even be able to file that grievance process and that is the guards, so it can be sometimes difficult for inmates to file grievances. And so this places a barrier in terms of in terms of lawsuits and it will basically mean that your lawsuit will be thrown out if you didn’t go through the entire grievance process. So another barrier that the Act placed on lawsuits that were filed by people in prison, it limited the cost that an attorney could be paid if they won the lawsuit, which can discourage attorneys from taking the lawsuit whatsoever.

Adam: Right.

Raven Rakia: Um, it also adds restrictions on when a prisoner files a lawsuit alleging emotional or mental harm there are restrictions placed on that. Um, which is a problem because of the types of policies and you know solitary confinement units that prisons have across the country.

Adam: Yeah. I mean the tort gets a bad name because it’s constantly demonized in the media and pop culture, but tort is the only mechanism that powerless people have to hold powerful people to account. And it’s the only core. So if you, if you stymie that tort, then yeah, you have a recipe for abuse.

Raven Rakia: Right. Yeah, exactly.

Adam: One of the things that they also address, and this is something that’s become more popular in popular discourse, and there was obviously a recent documentary about it, is the eye is the idea of a loophole in the Thirteenth Amendment that effectively permits slavery. It permits slave wages, you know, I don’t mean that sort of rhetorically or to be provocative, but it’s quite literally a slave wage. The loophole on the exemption of the Thirteenth Amendment passed after the Civil War is that you’re allowed to have debt peonage. This was a huge component to what’s called neo-slavery, which is slavery in the South from the 1870s to the beginning of World War II, where you basically arrested people for vagrancy or small petty offenses and then put them in prison for months, sometimes several years, paying off their debt, that this was legal and we currently have this today. Can we talk about the labor conditions in these prisons specifically the ones that actually went on strike and what the demands are in terms of minimum wage and basic labor rights.

Raven Rakia: So in terms of the demand, it basically asks that all people who are incarcerated be paid the prevailing wage in that state. And that’s one of the national demands. Some of the states also made their own demands. So Ohio had a list of demands where they also asked that everyone in the state be paid $15 an hour. So of course those two are tied together. But yeah so labor conditions in general across the country in prisons, it’s kind of two fold because on the one hand some of them are very laborous and they’re used as punishment at times like you will be put into a worse work position as some sort of punishment or retaliation and on the other hand some prisoners enjoy some some work conditions because it means it can get them out of their cell. What organizers in prison have been trying to push in terms of their ideology and theory behind it, from what I’ve seen, is that the two choices aren’t really choices because people in prison only want to work because that means they get out of a cage. In that sense it’s still forced labor. I think their theory behind their prison strikes is something that’s very interesting and needs to be taken seriously more in terms of media coverage as well.

Adam: Yeah, to the point of media coverage. I know that in the strike that happened in September 2016, there was basically no media coverage. I did a lot of work on that for FAIR and for Alternet. I documented quite clearly that they weren’t really covering it all. This was different. There was more coverage this time. Do you think that that’s a product of the nature of the strike itself? Do you think people are maybe becoming more aware of these things? And obviously it’s still not enough and a lot of it’s superficial, but from your observation, having followed this for several years, what is the state of the media’s coverage of these? Because obviously these strikes are, are designed partially towards outside audiences, towards people who make up the public that informs these decisions. Can you talk about the, the media strategy from the prison strikes perspective and whether or not they feel like it’s working?

Raven Rakia: Yeah, sure. I can’t really speak for the prison strike organizers in terms of if they think it’s working, but I think it’s working. Um, so in terms of like the organizing that’s been happening for the past eight to ten years,mainstream media has finally caught on, like this past prison strike in 2018, um, which is great, but I agree with you in 2016 there was really, there was very little coverage from mainstream media. I mean, I think that’s partly because of the prison strike organizers’ media strategy just getting better and better after years of doing it. And I think a huge part of it is prisoners ability to get access to cell phones in certain states where they’re then able to speak their thoughts, you know, on social media. So it seemed like eventually the mainstream media caught on, they were just a little late. I think it does show that there’s more and more prison coverage and for that we have these prison organizers to thank, we have Black Lives Matter to thank. I think that is the reason behind the better prison coverage or at least more extensive prison coverage than we’ve seen in the past.

Adam: Um, one of the demands that I thought was interesting and something that isn’t talked about a lot is the nature of what they call death by incarceration, which is an exorbitant amount of time that a person is given behind bars that assumes they’ll die behind bars and they have these sort of virtual, what’s called virtual life sentences, which are 50 years plus. Um, it affects 200,000 people, roughly 50,000 are serving life without the possibility of parole. This has a, obviously has a deterious effect on the prison itself, right? If you have a whole population who effectively society has given up on and says there’s no such thing as, as redemption or no such thing as, as reform, uh, if these are concepts people buy. This is unique to the United States is alone in this with very few other countries, I know in Europe especially, um, you rarely have sentences over 20 years because of that reason exactly. Can we talk about the effects that this has on prisons in general and what it says about the nature of our carceral system?

Raven Rakia: So yeah, one of their demands is to end death by incarceration and I think the importance of that term is like, it means that like we should not be giving up on people as a society. There’s a lot of studies out that people age out of crime and actually keeping people behind bars for so long as they age does nothing to help our society in any way. Um, and people like Release Aging People in Prison, that organization, also have been fighting to get people out of prison who have been there for like, you know, 30, 40, 50 years. There’s a lot of studies out there that show keeping people for so long is mainly just expensive and has no purpose for us as a society or for them because many of them age out of crime and can be rehabilitated if they did something wrong. You know?

Adam: So this most recent prison strike, the one that ended on September 9th, do we have a general idea of how effective it was or what the totality of it is? I know reporting on prisons is notoriously difficult. It’s more, it’s more difficult than pretty much reporting anywhere except for maybe Syria and other countries with difficult access, but it’s very, very difficult to report inside prisons, which is a huge barrier to getting factual information.

Raven Rakia: Yeah. So in terms of what we know about how this prison strike has gone, IWOC has said that they’ve heard about or seen activity in about fifteen states at least, and that could be anything from boycotting commissary to hunger strikes in a few states and then a few, a few confirmations of work strikes and boycotts in Florida as well. And I think in terms of what they’ve accomplished, I think the media coverage was a huge win for them and it allows them to get their voice out to multiple people and also every time there’s a lot of media coverage on prison organizing, there’s more of a chance that people in prison will hear about it because, you know, they’ve read about in the paper. So that’s exciting. And then things that I’ve seen in terms of like the prisoner organizers, like Jailhouse Lawyers Speak, talk about in terms of moving forward is that they’re focused on the tenth demand, which is giving people in prison the right to vote and they’re moving forward. It seems like they’re going to be focusing on that demand in terms of organizing people on the inside and the outside of prisons.

Adam: Can you comment on the retaliation aspect? Specifically what we’ve learned in the last few weeks about what kind of retaliation prisons have taken against incarcerated persons who, who decided to strike?

Raven Rakia: We’ve heard of retaliation happening in multiple states. Um, this is mainly being documented again by IWOC, the Incarcerated Workers Organizing Committee who organized phones zaps. And phones zaps are when people on the outside call the prison and basically leave a bunch of messages demanding certain rights of the prisoners usually detailed in letters and that sort of thing. So IWOC has been documenting most of the retaliation and we’ve seen retaliation in states like Ohio, where they’ve put multiple people in solitary confinement ahead of the strike for speaking about the strike on the phone, for example, or getting something in the mail that mentioned the strike. We’ve also heard of prisoners getting their privileges taken away and things of that nature. Um, like no phone calls for a certain amount of time or no visits, which is pretty detrimental in terms of like, you know, of course visits from families and loved ones really help in terms of prisoners mental health and as well as recidivism and things of that nature. I think for the most part, wherever you see work strikes or hunger strikes you’re going to see retaliation and this has been told to me from prisoners multiple times. Things like organizing or participating in a work stoppage is usually on the set of rules that is seen as a violation and can lead to solitary confinement in many states. So unfortunately retaliation has basically been ongoing since 2016 for many prisoners. And it continues after this last prison strike and prisoners basically respond to organizing or any mention of strikes and this sort of thing with conduct reports, rule violations and solitary.

Adam: So obviously there’s tremendous risk here.

Raven Rakia: Yeah, definitely.

Adam: Something it’s hard to convey that, you know, the word courage is not one I like to use a lot, but I think it’s probably appropriate here.

Raven Rakia: Definitely.

Adam: What are the next sort of plans from the activists perspective? What do you think their next moves are in this space?

Raven Rakia: In terms of what comes next it’s very important for us to pay attention to retaliation, what we were just talking about, because this is usually when it happens, when the media goes away and the prison strike ends, this is usually when taliation gets worse. And so the Incarcerated Workers Organizing Committee’s phone zaps are really important. I know they’ve been organizing that for for many weeks and they will likely continue to. In terms of what’s next, that’s important to mention. Um, I know, the organizers in prison plan to release a statement in terms of what’s next. And I know that, like I said before, their right to vote campaign is something that they’re going to be focusing on, the tenth demand, which asked that prisoners get the right to vote in all states.

Adam: Well, I think on that note we’ll end it. This was very informative. Um, I know that this is something that is extremely hard to cover and rarely covered so I really appreciate the work you’ve done on it.

Raven Rakia: Thanks. Yeah and I appreciate you having me on and talking about this with me.

Adam: Thank you so much to our guest, Raven Rakia. Remember, you can follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main Facebook page. And as always, you can subscribe to us on iTunes. This has been The Appeal podcast. The show is produced by Florence Barrau-Adams. Production assistant Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much for joining us. We’ll see you next week.

People laughed when Kanye called for abolishing the ‘trap door’ in the 13th Amendment; now Coloradans are voting on theirs

People laughed when Kanye called for abolishing the ‘trap door’ in the 13th Amendment; now Coloradans are voting on theirs

What you’ll read today

  • Spotlight: People laughed when Kanye called for abolishing the ‘trap door’ in the 13th Amendment; now Coloradans are voting on theirs

  • This Florida county’s sheriff is controversial. But his election won’t be close

  • Lawsuit: Manhattan DA’s office tracks cops with credibility problems, but refuses to release its list

  • USDA quietly funds rural jail construction boom

  • Maryland sheriff, ally of Trump and Fox, faces challenge from the left

  • New hazard of body cameras: explosions

In the Spotlight

People laughed when Kanye called for abolishing the ‘trap door’ in the 13th Amendment; now Coloradans are voting on theirs

After a recent performance on “Saturday Night Live,” rapper Kanye West did more than deliver a pro-Trump rant: He took to Twitter, in Trump fashion, and created controversy by calling for the abolition of the 13th Amendment, which ended slavery in the U.S.

People were outraged.

West later clarified, indicating that he meant the amendment should be amended, not abolished. “The 13th Amendment is slavery in disguise,” he tweeted, “meaning it never ended . . . We are the solution that heals.” Later, during a meeting with the president, West referred to “that trap door called the 13th Amendment.” West seems to have been referring to the amendment’s “exception clause,” the part that allows slavery and involuntary servitude to continue “as a punishment for crime whereof the party shall have been duly convicted.” If that is the case, West may have had something of a point.

When Congress debated the amendment, anti-slavery Republican Senator Charles Sumner of Massachusetts spoke out forcefully against allowing slavery to continue in the penal system, urging the Senate Judiciary Committee to remove that language. During floor debates in 1864, Sumner noted that the exact language of the 13th Amendment can be traced to the Northwest Ordinance of 1787, which outlawed slavery in the Northwest Territory—except as a punishment for a crime, at a time when there were no prisons. Why adopt last century’s code of human decency, he asked. He said that in 1787 “it was the habit in certain parts of the country … to doom [people] as slaves for life as a punishment for crime” but in this context, the words “do no good.” [Meagan Flynn / Washington Post]

“Sumner got his told-you-so moment in the years after the amendment’s passage,” writes Meagan Flynn, citing professor Dennis R. Childs, “when states started using the 13th Amendment to re-enslave people convicted of crimes for a term of years, selling them at auction to the highest bidder.” In the Southern states, “tens of thousands of people, overwhelmingly black, were leased by the state to plantation owners, privately owned railroad yards, coal mines and road-building chain gangs and made to work under the whip from dusk till dawn—often as punishment for petty crimes such as vagrancy or theft.” The Oscar-nominated documentary “13th” analyzed the connection between the amendment and the prison-industrial complex. “The 13th Amendment’s exception clause allowed the convict-leasing system to flourish and grow, and it became the dominant form of imprisonment throughout the South,” said professor Robert Perkinson. “[I]t served as a blueprint for the harsh, retributionist imprisonment that became, tragically, the dominant form of American incarceration.” [Meagan Flynn / Washington Post]

Over the summer, prisoners across the country undertook a three-week prison strike, engaging in boycotts, hunger strikes, work strikes and sit-ins. The strikers’ second demand, after improvements to conditions, was “An immediate end to prison slavery,” which was defined as prisoners being paid “the prevailing wage in their state or territory for their labor.” [Incarcerated Workers Organizing Committee]  

Every day, more than 800,000 prisoners are put to work, doing cleaning, cooking and lawn mowing. In some states, they are forced to work, and the pay can be as low as 4 cents an hour. The exception clause in the 13th Amendment has been used to defend these practices. [Ed Pilkington / The Guardian

In 2016, Colorado voters had a chance to remove similar language from their state constitution, but they rejected the ballot measure. A bill with similar goals failed the same year in Wisconsin and stalled in Tennessee. Many took the Colorado vote as a message that slavery is still acceptable. Others “believe it failed not because a majority of Colorado voters approve of slavery, but because of a poorly written and confusing question that voters were asked to decide through a “yes” or “no” vote,” reports the Washington Post. When people don’t understand a ballot measure, they tend to vote “no.” The state voter guide included arguments against the measure, but there was no organized opposition. [Kristine Phillips / Washington Post]

But Coloradans are getting a second chance this November. “The language [on the 2016 measure] was extremely confusing,” says Kamau Allen of Abolish Slavery Colorado. “This time we wanted to make it absolutely clear that a ‘yes’ vote was a vote to abolish the exception.” The vote would not change the state’s prison labor programs because corrections facilities pay inmates for their work, albeit less than minimum wage. But proponents say the change is necessary. Jumoke Emery from Abolish Slavery said this change was akin to taking down Confederate monuments: “Bringing down these monuments of our past … is incredibly important to moving forward and healing racial divides.” [Candice Norwood / Governing]

The 2018 measure has received bipartisan support from lawmakers, and Abolish Slavery Colorado has not seen any organized opposition. Richard Collins, a constitutional law professor with the University of Colorado, Boulder, says there would be no immediate legal change, but it could empower some prisoners to take legal action: “I don’t doubt that if it were to pass, some prisoners would invoke the change to try to challenge some conditions in prisons,” he said. “What the courts do with that is then another question.” [Candice Norwood / Governing]

Stories From The Appeal

Photo Illustration by Anagraph / Photo via Chad Chronister Twitter

This Florida County’s Sheriff Is Controversial. But His Election Won’t Be Close. The Hillsborough County Sheriff’s Office stands accused of violating immigrants’ rights and dismissing a shocking number of jail deaths. [George Joseph]

Lawsuit: Manhattan DA’s Office Tracks Cops With Credibility Problems, But Refuses to Release Its List. The office has criticized the NYPD for shielding officers’ misconduct histories, but it won’t share its own information on police dishonesty. [George Joseph and Emma Whitford]

Stories From Around the Country

USDA quietly funds rural jail construction boom: “Rural communities are in the midst of a quiet jail boom, financed in part by the U.S. Department of Agriculture (USDA),” according to a report by the Vera Institute of Justice. “Over the last two decades, the USDA has been funding jail construction through a program designed to finance infrastructure like emergency services, hospitals, fire stations, and community centers in agricultural areas. But these funds are now increasingly being directed to helping some rural counties build new, expanded jails, and helping others stay in the business of immigrant detention.” Total overall spending for the Community Facilities program fell by one-third since its peak in 2010, but total funding allocated for jails has increased by more than 200 percent since 2010, especially under the Trump administration. [Jack Norton and Jacob Kang-Brown / Vera Institute of Justice]

Maryland sheriff, ally of Trump and Fox, faces challenge from the left: A Maryland sheriff, who seems to be modeling himself after Joe Arpaio when it comes to immigration, is facing opposition this November from a Democrat who is making the sheriff’s fearmongering and his relationship with ICE into a liability. Sheriff Chuck Jenkins brings in over $4,000 a day by detaining undocumented immigrants in the Frederick County detention center. He takes $83 per detainee per day from the federal government, but spends as little as $17. Even ICE’s office of detention oversight found the facility noncompliant with agency standards on 20 counts in 2013. Democrat Karl Bickel, Jenkins’s challenger, says Jenkins “manages through fear and intimidation” and preys on public concerns about gangs and immigrants that have little impact on real life in the D.C. suburb. Bickel has promised to audit the detention program and the county’s agreement with ICE. [Daniel Moattar / The Guardian]

New hazard of body cameras: explosions: A body-worn camera exploded into flames while a Staten Island officer was wearing it, and the NYPD will remove nearly 3,000 body cameras from use. “The recall of the Vievu-brand LE-5 cameras could delay the department’s plan to outfit all 23,000 patrol officers with body cameras by December, and adds another twist to the complicated history surrounding the mechanisms that have already led to at least one lawsuit over how video from police encounters can be used,” reports Ashley Southall for the New York Times. “The city’s $6.4 million contract for the Vievu cameras set off a contentious debate in 2016 after it surfaced that other police departments had raised concerns about the cameras’ quality, and the city comptroller briefly blocked the deal.” The mayor and police officials defended the selection and moved forward with the plan. The camera that exploded was a Vievu brand LE-5, a model that was introduced a year ago, touting among its features a lithium-ion battery with more than 12 hours of recording time. [Ashley Southall / New York Times]

Thanks for reading. We’ll see you tomorrow.

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Advocates Say Brooklyn D.A.'s Office Is Prosecuting Transgender People In Self-Defense Cases

Decision-making by prosecutors in such cases, says one attorney, ‘compounds, entrenches, and ultimately authorizes the initial act of violence by prosecuting the victim.’

Photo illustration by Anagraph/Photo by Tina Potocki/Getty

Advocates Say Brooklyn D.A.'s Office Is Prosecuting Transgender People In Self-Defense Cases

Decision-making by prosecutors in such cases, says one attorney, ‘compounds, entrenches, and ultimately authorizes the initial act of violence by prosecuting the victim.’

“I can hardly breathe,” Asher Torres told the 911 operator, as he strained to get the words out between gasps. “I’ve been so hit so hard.” It was approximately 1:30 a.m. on Oct. 4, 2017, and Torres, 34, was calling from the lobby of the Wythe Hotel in Brooklyn’s Williamsburg neighborhood. Torres and his boyfriend, 25-year-old Stevie Sullivan, were attending a party when they said they were attacked. “This person had a problem with us because we’re trans,” Torres told the operator as he described the assault and his injuries, “and he just went after my partner.” 

But when officers from the NYPD’s 94th Precinct arrived at the Wythe, they arrested Torres and Sullivan instead of the individual Torres had identified as an assailant, hotel employee Alex Hernandez. Soon afterward, and despite surveillance video from the hotel indicating Hernandez striked the couple before they fought back, prosecutors from the Brooklyn district attorney’s office filed misdemeanor charges against Torres and Sullivan that included assault, attempted assault and menacing in the third degree.

For transgender advocates, the Sullivan case is emblematic of the persistent risks to their safety as well as the legal peril they face when they defend themselves. Many gender nonconforming people live with the constant threat of violence. In 2017, advocates tracked at least 29 killings of transgender people in the United States, the most ever recorded. Yet instead of receiving support from the criminal justice system, victims who survive violence are often retraumatized or criminalized by it. This appears to be true even in Brooklyn, where District Attorney Eric Gonzalez has made an explicit commitment to support LGBTQ crime victims. “This case points to mistreatment and criminalization of transgender people at the hands of law enforcement and why transgender people are often reluctant to report harassment and violence to law enforcement,” said Shelby Chestnut, co-director of policy and strategic projects at the Transgender Law Center in Oakland, California. “All charges against Stevie should be dropped.”

When contacted by The Appeal, the Brooklyn district attorney’s office refused to comment on Sullivan’s case, citing its policy of not commenting on pending litigation. Instead, a spokesperson emailed a statement, which read in part that “our office has incorporated cultural competency training for all prosecutors, encourages all victims of hate crimes to call our Helpline … and has vigorously pursued bias-motivated crimes against LGBTQ individuals. Nearly a third of cases handled by our Hate Crimes Unit this year involve attacks against this vulnerable population. We continue to evaluate all the facts and circumstances in the case in question.”

Sullivan had previously worked at the Wythe’s rooftop bar, the Ides. He returned to the hotel last October to attend a going-away party for a former co-worker. Moira Meltzer-Cohen, Sullivan’s attorney, says Hernandez, the alleged attacker, was her client’s manager when he worked at the Ides and would berate and stare at him for long periods of time. Emails reviewed by The Appeal indicate that in May 2017, Sullivan sent to an email to the hotel’s human resources department in which he he raised concerns about Hernandez’s aggressive conduct.

The matter was never resolved, and Sullivan eventually got a job elsewhere. The two men encountered each other again on the night of the party, in the lobby of the bar. Surveillance footage from the hotel reviewed by The Appeal shows Sullivan and Torres chatting as they wait for an elevator to take them down from the rooftop bar to the hotel lobby. When Sullivan walks down the hallway to look for a friend, Hernandez enters the frame. While Sullivan’s back is turned, Hernandez charges at him and shoves him into an elevator door. A moment later, Sullivan recovers and pushes Hernandez against the hallway wall. The men grab at each other’s clothes and limbs, wrestling for control. Torres then attempts to separate the two but instead gets drawn into the scuffle. The fight only stops with the arrival of hotel security.

Meltzer-Cohen says that when police reviewed the surveillance footage they incorrectly concluded that the fight began when Sullivan tripped Hernandez. (Hernandez does appear to stumble in the video, but there is no indication that was a result of Sullivan’s conduct.) The NYPD did not respond to a request for comment. The Wythe terminated Hernandez about a week after the incident for violating its anti-violence policy, according to a personnel document subpoenaed by the defense and reviewed by The Appeal.

Like Sullivan, many in the transgender community have faced prosecution for defending themselves. In late 2017, transgender activist Ceyenne Doroshow was arrested and charged with assault in Queens after she says she defended herself from an abusive partner. In June 2012, CeCe McDonald, a Black transgender woman in Minneapolis, was sentenced to 41 months in prison for second-degree manslaughter after she fought off a group who assaulted her and her friends outside a bar. (One of the assailants died after McDonald stabbed him with a pair of scissors she’d retrieved from her purse.) Ky Peterson, a Black trans man from Georgia, is serving a 20-year sentence for shooting a man who raped him in a trailer park.

Gonzalez, the Brooklyn DA, has promised to better serve LGBTQ New Yorkers; he launched an initiative to train prosecutors to ensure that they are culturally competent in relating to LGBTQ crime victims and to “get the word out that the District Attorney’s Office is a safe space to report crime.” “As prosecutors charged with keeping the community safe,” Gonzalez said during a 2017 Pride Month celebration, “it is important that we establish a safe space for the LGBTQ community to report when they are victims of crime, especially since crimes against this community have historically been underreported and violence against transgender women of color continues to rise.”

Yet the Sullivan case isn’t the first instance where the Brooklyn district attorney’s office under Gonzalez has been accused of aggressively prosecuting transgender people involved in relatively minor altercations, even when their behavior may have been a reaction to past trauma. In December 2015, a Black trans woman named Merci Chrisette was charged with assault, criminal possession of a weapon, and reckless endangerment after she lunged at two people on a subway train with a hair separator. In May 2018, after a campaign in support of Chrisette, the DA’s office allowed her case to be transferred to the borough’s Mental Health Court. Established in 2002, the court enables people with serious mental illnesses to avoid jail time as long as they follow a mandated treatment program.

In interviews with The Appeal, defense attorneys described at least two other cases in which transgender people have been aggressively prosecuted by the Brooklyn district attorney’s office after either an incident of domestic violence or a street assault. This pattern of decision-making by Brooklyn prosecutors on cases involving transgender people “compounds, entrenches, and ultimately authorizes the initial act of [transphobic] violence by prosecuting the victim,” Meltzer-Cohen said. “It’s the result of totally unexamined, pervasive, institutional transphobia.”

The October 2017 fight at the Wythe may have only lasted about 15 seconds, but it has had a long-lasting impact on Sullivan and Torres. Since the incident, the couple have had to miss work to attend court dates and manage the emotional, physical, and financial toll brought on by the assault and potential criminal convictions. On October 15, Sullivan and Torres appeared in Kings County Criminal Court and agreed to an adjournment in contemplation of dismissal which allows their case to adjourned for a few months; if they stay out of trouble, the charges will likely be dismissed. Torres and Sullivan must also comply with an order of protection for Hernandez.

“[This experience] has made it obvious to me that existing as a queer, trans person is not safe,” Sullivan said in a statement released through his attorney. “This started with me being attacked. My assailant was never arrested, but I was charged with assault. This prosecution has gone on for over a year. It has been terrifying.”

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