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The Appeal Podcast Episode 12: When Electronic Cages Replace Steel and Cement

With journalist Kira Lerner.

A human hand with an RFID microchip implanted between the thumb and forefinger.
Getty Images

The Appeal Podcast Episode 12: When Electronic Cages Replace Steel and Cement

With journalist Kira Lerner.


As prison reform efforts begin to reduce the number of people behind bars, electronic monitoring is becoming a popular “alternative” to incarceration. Our guest, Appeal contributor Kira Lerner, talks about the moral hazards presented by this approach and why it’s important that prison reform efforts expand beyond cement walls to address house arrest and monitoring technologies.

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

Transcript:

Adam Johnson: Hi, welcome to The Appeal Podcast. This is a show on criminal justice reform, abolition and everything in between. Remember you can follow us on social media, Twitter @TheAppealPod or follow us on Facebook at The Appeal’s main page or you can always subscribe to us on iTunes. As prison reform efforts start to have a measurable effect on how many people end up in prison an increased reliance on electronic monitoring serves for many as a kind of pseudo solution to keep people out of cement and steel cages by putting them into electronic ones. Our guest today Appeal contributor, Kira Lerner, talks about the moral hazards presented by this approach and why it’s important that prison reform efforts include electronic monitoring as well as traditional prisons.

[Begin Clip]

Kira Lerner: Electronic Monitoring is disproportionately used on people of color and it also transfers the costs from the local government to the people wearing the monitoring device. People are forced to pay anywhere from $3 to $35 a day to be tracked by a monitoring device and as we know, for people trying to get back on their feet or people trying to make ends meet while they await trial, that money adds up and it’s quite significant.

[End Clip]

Adam: Thank you so much for joining us Kira.

Kira Lerner: Thank you for having me.

Adam: So, um, you wrote a nice breakdown of something that we think of sort, if you look at criminal justice reform is a two sided coin, on one side you have actual incarceration and the other side you have surveillance and monitoring. There’s a lot of talk about the incarceration aspect and rightfully so, but there is very little attention, I think, paid to the other aspect of it which we’ll sort of describe as the oppressive nature of electric monitoring. You wrote about the kind of vanguard of this right now, which is some scattered efforts, albeit not very successful, to take the electronic monitoring to its logical ends and introduce GPS microchips. Can you talk about the case that you wrote about that talks about this and its implications and to the kind of broader reliance, and I would argue, over reliance on electric monitoring as a quote unquote “alternative” to incarceration?

Kira Lerner: Sure. Well, I came across this story because I saw some local news reports about a city councilman in Toledo, Ohio who proposed during a council meeting earlier this summer, that instead of renewing a contract for electronic monitoring services for the city, Councilman Rob Ludeman suggested that maybe instead of just electronically monitoring pretrial detainees with something like ankle monitors or other methods that are more commonly used, he said that why don’t we try as a city implanting GPS devices into our pretrial detainees. He said he’d seen a TV show of some kind where an offender was able to slip out of his ankle monitor, commit a crime, and then put the ankle monitor back on before he was caught by officers. And he said that we should be experimenting and he compared it to something like red light cameras, which he claimed he first saw on a TV show and suggested that maybe this is the way that electronic monitoring should be going. But like you mentioned, this is a one off. I did not find a lot of lawmakers across the country that are considering putting GPS implants into people awaiting trial. As you probably think, and as a lot of other lawmakers would think, that’s just viscerally disturbing. The thought of implanting something into someone who hasn’t even been convicted of a crime. But advocates I talked to did make the comparison that while that might be far fetched the way that we are electronically monitoring pretrial detainees is not that different. Um, no, we’re not putting anything into their bodies, but by putting monitors on them and confining them to what they called electronic cages, we’re essentially moving them out of physical barriers like jails and putting them inside electronic cages and they wanted to highlight that this can be just as problematic.

Adam: If you really stop and think about it it’s a bit of a distinction without much of a difference. There is a visceral component to it. And of course I think the, the GPS implant story has a kind of paranoid fervor to it that gets people’s attention. You know, ‘I don’t want to be Alex Jones here, but Illuminati,’ no, um, I think that the difference is not as significant as people think. And I know that from people in the electronic monitoring reform or I guess abolition movement, they really try to convey what it really means to be on electronic monitoring because it seems kind of benign, sort of like house arrest. It seems benign. But really when you get into what it’s like on the day to day basis, it’s not that much different than being in prison and there’s a bit of a moral hazard, I think from the activist perspective, where because it seems kind of sanitized and it seems kind of benign, that people are more likely to use it, that as electric monitoring becomes cheaper, easier, more sophisticated, that judges will say, okay, we’ll just put them on electric monitoring as a kind of default position and that as these cash bail reform efforts take a stronger hold, that this will kind of serve as a kind of pseudo reform and that that’s and that’s the risk. You talked to one of activists in particular, James Kilgore, who’s been working on this for several years and he himself was under electric monitoring. Can you talk about that moral hazard and what activists are trying to sort of convey to otherwise good faith reformist types?

Kira Lerner: Yeah. What I think is important to keep in mind is that a lot of activists and advocates and people inside the criminal justice reform movement do understand all of the issues that are presented with electronic monitoring, like you said, but I think for the general public, if you compare putting an ankle monitor on someone and letting them stay in their home for most of the day rather than keeping them in jail, it sounds preferable. So it’s an easy argument for lawmakers or other politicians to make, that we’re saving money, we’re emptying out our overcrowded jails and we’re doing a service to these pretrial detainees by letting them just wear some kind of electronic monitoring device. I did talk to a lot of advocates that really want to highlight how that’s not the case. James Kilgore spent a year on an ankle, he likes to call it an ankle monitor, not an ankle bracelet because he doesn’t want this compared to a piece of jewelry and he spent a year confined to his home on house arrest. He had to check in multiple times a day. Um, and he said it was really dehumanizing and disturbing to him. He felt like he was always being watched. You couldn’t really shake the idea that it wasn’t possible for someone to listen in, even though they told him that nobody was listening to him through this device. He said when he got into bed at night, it felt like his parole officer was under the covers with him. At one point his elderly mother got sick and he couldn’t take her to the hospital. He had to make that last minute call whether it was worth violating his parole and leaving his home to take his mother to the hospital. So he, this experience prompted him to look more critically at electronic monitoring. And since his experience with the justice system, he’s become an advocate and he’s launched a group called Challenging E-carceration that’s trying to raise awareness of all of these problems. Um, though he is a white man, he’s trying to make people aware of the fact that electronic monitoring is disproportionately used on people of color. Like I said, it also transfers the costs from the local government to the people wearing the monitoring device. People are forced to pay anywhere from $3 to $35 a day to be tracked by a monitoring device and as we know, for people trying to get back on their feet or people trying to make ends meet while they await trial, that money adds up and it’s quite significant.

Adam: Yeah, so this is a great segue to my next question, which has to do with something which is kind of the unseen labor of women, specifically black women in the criminal legal system and how house monitoring and home arrest and the electric monitoring as it increases, that increasingly what the state is doing is just offsetting it’s labor onto women, specifically black women. When you’re in house arrest, you can’t really work, um, you can’t leave the house, you can’t really do a lot of chores around the house and this increasingly falls on the feet of black women are effectively doing previously what the state had done, but with no compensation or support network.

Kira Lerner: This is a whole other issue that I didn’t even really have a chance to get into in the piece, but something else Kilgore mentioned to me is just how difficult it is to parent or to be a mother while you’re on electronic monitoring. Um, a lot of the women and black women who are forced to wear these devices might be caring for children at the same time and if their child runs into the street and they’re not able to chase after them, that poses a problem or if they get a call from the school that their kid is sick and needs to be picked up and they’re not able to leave their home, that can be another problem. So there’s a whole host of issues raised by confining someone to this electronic cage as they call it. And I think those issues are only amplified for women, for mothers, for people of color.

Adam: So you found that there was an increase in the amount of electric monitoring from 2005 to 2015. You found a 140 percent increase and that there were more than 125,000 people that were currently using these devices. Is this a trend that activists see going up and is there any data that has shown that electric monitoring is used, for lack of a better word, more promiscuously because of its seemingly innocuous nature?

Kira Lerner: I think that’s exactly the case. The Pew study found that in a one decade period, the use of these monitoring devices went up 140 percent, uh, there were over a 125,000 people being monitored with these devices by 2015, which is a huge number when you think about how this is a fairly new phenomenon. We didn’t have the technology, we weren’t using devices like this a few decades ago and I think there’s an awareness among criminal justice advocates and other activists in this field that these devices are being used as an option when prosecutors and law enforcement officers are trying to find a solution to real problems in the justice system. We know all of the issues with cash bail. We know the issues presented when jails become so overcrowded that cities don’t even have beds to put new pretrial detainees into. And I think it’s very easy to push them on off and give them a monitoring device and say, ‘Here, come back, follow the conditions of your release, um, and we’ll deal with this issue when you have to come back for trial.’ But studies show that if you do release someone awaiting trial on their own recognizance, um, all it takes is just a simple reminder of a court date when someone has to come back for a court appearance to get them to show up. It really doesn’t take conditions as extreme as a monitor around their leg.

Adam: The framing of the issue is really interesting to me because when I was at South by Southwest five years ago and there was this panel that sounded really lofty and liberal and it was about a world without prisons. And then you look closely at the fine print and you actually show up to the, to the panel and it’s basically about all the technologies emerging around electronic monitoring. One crude analogy that we use, if you take a tiger and you put it in a cage and then you put the cage inside the zoo and then you open the cage um you’re still inside of the zoo. You’re still inside of this sort of cyber zoo, this kind of electronic zoo, what I’ve read from you, your piece and from other pieces of sort of how people perceive it, they perceive it as being an electronic cage. To what extent is that something that activists are trying to get people to internalize? You mentioned that they’re using different language, they’re saying ‘ankle monitor’ not ‘ankle bracelet.’ How does one use language and use metaphor to sort of convey what’s really at stake here because the warm and fuzzy nature of it I think really is a major barrier to getting people to care about this issue?

Kira Lerner: Exactly, and I think what activists are trying to do is to make us think more fundamentally about what is the definition of imprisoning someone and what does that look like? Is it just putting them in a room with steel bars and shutting the door or is imprisoning someone defined as shutting them off from the rest of the world in any other way? And to these people I talked to, including people who have spent time on electric monitoring, it’s really no different to be confined to their home. Um, it might be a little bit more comfortable than a jail cell, but really at the end of the day they are confined. Language on this issue is really important. And I think while the example in Toledo, that we talked about earlier, uh, putting GPS devices, implanting them into detainees, while that’s disturbing on so many levels, I think activists are, not grateful, but they think of this as an opportunity to, this is, is getting the public’s attention in a way that ankle monitors do not. And I think for that reason, they’re excited to use this to start a conversation about all of the ways that wearing some kind of electronic monitoring device is no different than having an underneath your skin.

Adam: Um, you talk about the user fees. I want to get into that real quick because I find this to be, I feel like a lot of these draconian criminal legal issues are never, there’s always some other element of punitiveness and pettiness. And so in this case they actually charge the people who have the electric monitoring for the electric monitoring. Can we talk about the burden that that places on people and what that looks like in terms of kind of being an extra form of punishment?

Kira Lerner: Yeah. Well there’s so many issues presented with those user fees. Uh, the first being that if you are convicted of a crime and offered by prosecutors either you spend X amount of time in prison or you get to go home with an ankle monitor and this will be the fee associated, I think that most people would choose going home with an ankle monitor without giving much thought to the fees. Um, I think the fees and how that will impact their life comes later, which is justifiable. They don’t want to spend time in a jail. But then when it comes down to living day to day and spending anywhere from $3 to $35 on these devices, that really adds up. I mean, this is money that these people, um, a majority of these people do not have, um, as we know, the justice system disproportionately impacts low income people of color. And I think for people who are trying to move on from whatever this one offense might be, um, I think having to pay that day in and day out is really a burden that we need to think about more critically.

Adam: So Mr. Kilgore, uh, one of the kind of leading advocates in this case, we discussed earlier, his project has created a list, a set of guidelines and it’s a set of guidelines that has been signed off on by a lot of other, uh, privacy organizations such as the EFF [Electronic Frontier Foundation] and others. Can we talk about the set of guidelines and what the baseline demands are from people who are trying to reform this practice?

Kira Lerner: Yeah. So these guidelines are trying to raise awareness of all of these issues that we’ve discussed and they’re trying to make the case that the default should always be just releasing an offender on their own recognizance. Kilgore and his project claim that a judge or a prosecutor needs to make a really compelling argument about why an offender is either a danger to his or her community or is a risk to flee and not show up for an court appearance or won’t show up to court on their own before they assign them to electronic monitoring. Um, and I spoke with privacy advocates who said that it really needs to be that the judge finds a compelling argument and release should be the first option considered. And it shouldn’t be up to a detainee to prove that he or she will show up. It should be the other way around.

Adam: Yeah. It seems like so many of these sort of seemingly radical fringe proposals rest on the totally nutty idea that one is innocent until proven guilty.

Kira Lerner: Yeah. I think we need to keep in mind that a lot of the people we’re talking about here are pretrial, they are awaiting trial on their conviction. So yes, these people are innocent until proven guilty.

Adam: Yeah. I mean and to the extent to which they are, they are quote unquote “guilty.” They, they, they’ve already served time. This is kind of an add on thing to monitor them. So it seems like there’s a lot of privacy advocates, a lot of people who are looking at this in terms of not, you know, five years but twenty, thirty years. I’m like the EFF and some of the literature they’ve written, they really view this as being hugely slippery slope to something akin to expanding the net of monitoring wide enough to where a significant chunk of the population, specifically, I would imagine, disproportionately African American and Latino, are always sort of under monitoring, but they’re kind of in a permanent state of monitoring. Um, can you talk about some of the more longterm kind of dystopian implications of this or is that, is that something that people are trying to kind of downplay so they don’t come off as being paranoid?

Kira Lerner:  It’s something that’s being mentioned a bit and I think this example in Toledo of implanting a GPS tracking device is just an example of the slippery slope and this is kind of the next logical step when we are tracking people with GPS devices on their body. And as technology improves and as private corporations move more and more towards experimenting with implanting their employees, if their employees agree to implementation of a GPS device, I think it really is the next logical step that ‘Well, why don’t we experiment with other methods of tracking these pretrial detainees?’ And I think the privacy implications are even greater when there’s not consent to a device underneath your skin. And I think that we’ve seen the increase in the use of these devices over the last decade and I think there’s a wide recognition among activists that we’re only going to continue using them at this caliber, if not even more intensely, if we don’t raise greater awareness about the problems.

Adam: So one thing we like to do on the show before we go is to talk about what the next steps are moving forward and what the organizations are doing and what the current, if there’s any kind of current legislation or um, or efforts to curb or, or provide guidelines for this. Can you talk about what the kind of current state of the activist community is around this specific topic?

Kira Lerner: Unfortunately a lot of the activism is really in the early stages when it comes to electronic monitoring. A lot of the work is being done by advocacy groups and criminal justice advocates and it hasn’t really reached the level where lawmakers are considering curbing their use of electronic monitoring. But I would encourage everyone to check out James Kilgore’s project which is called Challenging E-carceration, which is a coalition of a lot of the privacy and justice organizations that are working on this issue. Um, and they have a website where they share their guidelines and, um, all of the points that they’re trying to raise when it comes to this issue. I think within the next few years it’s likely that we will see this activism take the form of legislation and move from just advocacy organizations into the more mainstream, um, but a lot of the activists I did talk to kind of highlighted the fact that this is really early and we don’t really have a wide conversation yet about the problems and until we get to that point, we’re not really going to see the type of change that they’re looking for.

Adam: Yeah. So everyone check out the Challenging E-carceration project out of the University of Illinois. So thank you so much for coming on. That was really super informative. I look forward to monitoring, for lack of a better term, this space moving forward because I think there’s a lot of interesting stuff going on and I am curious to check back in with this and when we do, we’ll definitely hit you up.

Kira Lerner: Yeah, it should be very interesting. Thank you again for having me.

Adam: Thanks so much. That was Kira Lerner, contributor to The Appeal. Remember, you can follow us on social media @TheAppealPod on Twitter and subscribe to us on iTunes. I’m your host Adam Johnson. The Appeal is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn, executive producer Sarah Leonard. Thanks so much for joining us.

 

Most Recent Deaths At East Baton Rouge Jail Could Have Been Avoided

A new report details the abysmal conditions, lack of medical care, and staff shortages that led to the unusually high death rate in East Baton Rouge Parish Prison.

Lamar Johnson died in the East Baton Rouge Parish Prison in 2015.
Courtesy of Linda Franks

Most Recent Deaths At East Baton Rouge Jail Could Have Been Avoided

A new report details the abysmal conditions, lack of medical care, and staff shortages that led to the unusually high death rate in East Baton Rouge Parish Prison.


Paul Cleveland once showed up at his niece’s door with a pork roast because he was worried she had run out of groceries. He had an extra mobile home on his property, and would let near-strangers stay there till they got back on their feet. Cleveland was a U.S. Navy veteran—and according to his niece, Sherilyn Sabo, he wasn’t afraid of anybody. But when he called her from inside the East Baton Rouge Parish Prison, Cleveland told Sabo he didn’t think he would make it out alive.

Cleveland had not been convicted of a crime—he was in jail (Louisiana refers to its local jails as “parish prisons”) because his family was unable to pay his $300,000 bail. When he died of a heart attack in 2014, Cleveland became the jail’s third fatality that year and its 14th since 2012.   

From 2012 to 2016, 25 men have died inside the East Baton Rouge Parish Prison; in 2012, the jail’s mortality rate was four times the national average. In a new report, the criminal justice nonprofit Promise of Justice Initiative (PJI) states that the majority of the deaths inside the jail could have been avoided with properly trained staff and better medical and mental health resources.

“On average between 2012 and 2014, the jail accounted for 12 percent of deaths in local jails in Louisiana,” the report says, “with preventable or treatable illnesses being the leading cause of deaths.”

Across the nation, being jailed is often a direct result of poverty: People frequently end up behind bars because they can’t afford to post bail or pay court fines and fees. Nationally, around 75 percent of those who die in jail have not been convicted of anything; in the East Baton Rouge jail, that number rises to 88 percent. Furthermore, said Reverend Alexis Anderson, who works with people in Baton Rouge who are re-entering civilian life, poor communities of color in the city are overpoliced, and community diversion programs are too expensive for poor defendants.

“For many of us living life, [incarceration] is a possibility,” said Linda Franks, whose son Lamar Johnson died in the jail in 2015. “We could forget to pay a fine—any kind of situation could come up [where] we come in contact with law enforcement—and it doesn’t make us bad people, or less than human.”

Darryl, Cathy, and Paul Cleveland in 2014, shortly before Paul died in jail.
Courtesy of Paul Cleveland's family

The East Baton Rouge Parish Prison’s infrastructure and inadequate staffing have been impugned before. According to Courthouse News Service,  a warden acknowledged to local media a year before Tyrin Colbert was murdered by his cellmate in 2016 that the building’s layout made it difficult to monitor the overpopulated jail.

But perhaps the jail’s biggest issue has been a lack of adequate medical and mental health support. Randall Toler died at age 25 from diabetic ketoacidosis, caused by a shortage of insulin, two days after he was brought to the East Baton Rouge jail. Daniel Melton, who died in 2012, repeatedly asked for medicine and medical assistance to cope with stomach pains that turned out to be peptic ulcers, but was ignored by the deputy on duty. Franks’s son, a father of three with no history of mental illness, hung himself after multiple suicidal statements went unaddressed by jail staff.

In August 2015, members of the jail’s medical staff went before the East Baton Rouge Parish Metropolitan Council to ask for additional resources.  The Advocate reported complaints about understaffing and poor equipment: Nurses spoke of EKG machines so difficult to read that they couldn’t tell whether a patient was having a heart attack.

In response, the council commissioned a comprehensive review of the jail. The 2016 review concluded that the jail’s infirmaries were “in name only,” with metal cots instead of hospital beds, a third of the nursing positions vacant, and an “unacceptable” wait time (24 to more than 36 hours) before inmates were given intake screenings. The long wait could cause people to miss crucial medications or delay treatment.

The council responded by outsourcing the jail’s healthcare to CorrectHealth LLC, a private provider. This was a controversial move, but one that seems to have led to an increase in medical staff and updated equipment, according to The Advocate. However, issues still remain: chief among them the facility itself, which is small and outdated, and the lack of a dedicated mental health unit. In its report, PJI identified at least three deaths related to mental health issues.

The review found that there was no mental health programming available at the jail, despite the fact that more than half of all state and federal prisoners have recent histories or symptoms of mental illness.

Neither is there suicide prevention training. As the jail had no suicide-proof blankets, men on suicide watch were only given paper gowns. Last year, the city’s budget proposal included $260,000 to divert 50 inmates out of jail and into treatment programs for substance abuse and mental illness. But the jail itself still has no mental health facility. And when the area’s public medical center closed in 2013, private providers nearby were reluctant or unwilling to accept prisoner referrals.

Linda Franks had not been unduly worried when her son entered the jail. She said Johnson had always been a “level-minded, cooperative man,” and that she had never known him to have suicidal thoughts.

“This was a drastic change in his mental status, a day-and-night kind of change,” Franks said. She is skeptical that a better mental health program alone will solve the jail’s problems. “I think the culture there is just that they did not care at all.”

Thus far, only two families who have lost loved ones have succeeded in holding jail administrators or the sheriff’s office legally accountable. According to David Utter, a lawyer representing three families in current lawsuits against the jail, many lawyers are hesitant to take such cases.

“Because of procedural and other legal barriers the federal courts have built up over time, there are all sorts of protections for law enforcement even when they behave badly and even illegally,” he said. “Even though many agree that the jail is run horribly by the warden and sheriff, few lawyers are willing to hold them accountable.”

East Baton Rouge Parish Prison officials did not respond to repeated requests for comment. But the East Baton Rouge Sheriff’s Office has paid nearly $5 million in settlements, deductibles, and liability insurance since 2011.

“Twenty-five people died. Those are people with families, loved ones,” Utter said. “And Baton Rouge spends all the money in the world fighting those cases rather than saying they’re sorry and giving some solace to those families.”

Sabo said that when her uncle would call her from the jail, “he told us that we wouldn’t believe [the conditions]. His heart broke for the people in there.”

PJI’s report includes a list of five recommendations: They want city and prison officials to provide medical and mental health services, staff to be trained in suicide prevention and addressing medical complaints, and for the prison to have enough staff on hand to safely supervise detainees. They also recommend that city officials address pretrial detention, thereby reducing the number of prisoners, and ask for greater transparency from the jail, potentially in the form of public hearings or quarterly reports.

“Transparency,” said Reverend Anderson, “runs concurrent with everything else. We have to make people aware.” Reimagining the way jail staff is trained is also crucial. “We’re going to have to stop thinking about people with guns and badges—if we’re going to put this many people with mental health issues in prison, we’re going to need [staff] with those skills.”

Ultimately, Anderson said, the criminal justice system should be a tool to make communities—both inside and outside the jail—safer. “Right now none of those people in there are safe,” she said.

“I’m not saying jails should be overly comfortable, but they should at the very least be humane,” Franks said. “These young men that have died are human beings, and for whatever reason we lose sight of that once someone enters the jail. They were sons and daughters, mothers and fathers. They have people who miss them. They were worth something.”

More in Explainers

Justice in America Episode 4: A Conversation With John Legend

Josie and Clint talk with the artist about criminal justice reform and his #FREEAMERICA campaign.

John Legend

Justice in America Episode 4: A Conversation With John Legend

Josie and Clint talk with the artist about criminal justice reform and his #FREEAMERICA campaign.


John Legend isn’t just one of the most talented musicians of our time—he’s also a leading activist on criminal justice reform. On this episode, Justice in America talks to Legend—singer, songwriter, actor, producer, and founder of #FREEAMERICA, a campaign designed to change the national conversation around criminal justice policies.

John sat down with Josie in Los Angeles, where they talked about prosecutors, bail, immigration, and more.

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

To learn more about #FREEAMERICA, check out their website.

Earlier this week, John wrote an op-ed for The Washington Post on the racist origins of Louisiana’s non-unanimous jury system.

In June, he co-wrote this piece for CNN with Color of Change Executive Director Rashad Robinson on the need to end cash bail.

Here’s another op-ed he wrote on police brutality in 2014, after the deaths of Mike Brown and Eric Garner.

And yet another piece by John on ending juvenile life without parole in his home state of Ohio.

Transcript:

[Begin Clip]

John Legend: I think we’ve come to believe as a society that prison is pretty much the only way we deal with crime, the only way we deal with poverty, the only way we deal with any kind of mental illness or drug addiction and it can’t be the case that prison is a solution for all of these issues and so I think getting in the prisons and the jails and speaking to these folks helps you realize that there’s so much more to their stories.

[End Clip]

Josie Duffy Rice: Hey everyone. I’m Josie Duffy Rice.

Clint Smith: And I’m Clint Smith.

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

Clint: Thank you everyone for joining us today. You can find us on Twitter @Justice_Podcast and like our Facebook page where you can find us at Justice in America and please subscribe and rate us on iTunes. We’d love to hear from you and it really helps.

Josie: So we started the show with a clip from our guest, John Legend, the critically acclaimed multi award winning platinum selling singer songwriter. John has been at the forefront of criminal justice reform, but you surely know him more for his work as an artist. He has garnered 10 Grammy Awards, an Academy Award, a Golden Globe, and a Tony, among others. And he’s now up for an Emmy. John also serves as one of the principles for Get Lifted Film Company, a film and television production company based in Los Angeles.

Clint: In 2015, John initiated the #FreeAmerica campaign, a campaign designed to change the national conversation of our country’s misguided criminal justice policies and to end mass incarceration. You can check out his website at letsfreeamerica.com and he has also worked with Color of Change on their Meet Your DA Campaign, urging people to know more about their district attorney. So Josie had the pleasure of going to California to have a conversation with John and throughout the interview you’ll hear him reiterate some of the most important points that we’ve talked about with our other guests. And if you’re new to the podcast, we hope that you’ll listen to some of our other guests and some of our other episodes that go into a bit more detail about the important issues that John brings up. Hope you enjoy it.

[Music]

Josie: Hi John. Thank you so much for joining us.

John Legend: Thank you. Thanks for having me.

Josie: We’re really excited to talk to you. I’ve interviewed you before about criminal justice reform. That was in 2016, which was a very different time than the time that we are in now.

John Legend: Yeah things have changed a little bit.

Josie: Yeah things have shifted just a teensy bit.

John Legend: Pre November 2016.

Josie: Right, the two areas of our lives.

John Legend: Yes.

Josie: Um, I thought it would be good to start out with you talking about why this is such an important issue to you and maybe why it’s especially important now.

John Legend: So criminal justice reform has been something I’ve been thinking about pretty heavily for the past several years, but the criminal justice system has been in my life via my family, via my friends, via people in my neighborhood since I can remember being alive. I’ve had friends that got locked up. I’ve had my own mother spent significant amount of time in jail and the criminal justice system has affected the neighborhood I grew up in and and other neighborhoods in my city. So I personally knew that it was a destructive force in a lot of communities and particularly in communities of color for a long time. But I think I always kind of took it as a given that this was how it is. That these laws are the laws that will be in place forever and that they’d been in place for a long time and there’s nothing we can do about it. Our law enforcement’s  just enforcing them. Our judges and lawyers are just kind of going through the motions and nothing can really change. But the more I started to read about it and talk about it with people who are experts in the field, I realized that there is a lot more we can do and also that we took a lot of steps over the last forty or so years to get to this place. It wasn’t like this before. It’s not like this in a lot of other countries and there’s a lot we can do to make change. And so I started to really focus on this area, partly through anger. Through seeing the statistics, through seeing what it had done to so many communities, through seeing, uh, that were the most incarcerated country in the world. All these things that I saw and read and books like The New Jim Crow and Just Mercy and other books that kind of helped get me my primer in what’s going on in the system. And then talking to folks, you know, talking to inmates, talking to people who were formerly incarcerated and people who work in the system in one way or another. I just started to learn a lot more. And through that anger and passion started to develop some ideas about how I could get involved and make a difference.

Josie: So that actually leads me to my next question, which is what your activism looks like in particular. I know that you’re doing work with Color of Change. I know you’ve visited prisons. I thought you could talk a little bit about like what actual form it takes for you to be involved in this.

John Legend: So we want a few things to happen. We want, I know you talk a lot about prosecutors and the role that prosecutors play in their communities and how much discretion they have, so we’ve been paying particular attention to that and that’s something we learned over time as we started to talk to more people who have a stake in the system. Um, a lot of people were pointing to this issue of prosecutors, which was I think a couple of years ago pretty undercovered as an issue that we should be concerned about. But lately it’s been getting a lot of buzz because people like us have been talking about it and saying this is something we should be paying attention to. So we did a campaign with the ACLU starting in California saying, Know Your Da, uh, and you know, we call them DAs in certain places, state’s attorneys in other places. But the general idea is that prosecutors have a lot of power over who gets prosecuted, what crime they’re prosecuted for, what level of priority to place upon certain crimes versus others, what kinds of sentencing that we’re asking the judges to go for, what kind of plea bargains are made. Uh, all of these things are determined pretty much by the prosecutor, uh, with very little check on them. The judges have a rubber stamp and they approve a lot of what goes on. And, and, uh, and the prosecutors really have a lot of the power, particularly because a lot of the cases don’t go to trial. So what’s happening is, you know, only one or two percent of the cases are going to trial and the rest of them are, are being determined before trial. And the prosecutor is making most of those decisions unless there’s a kind of equal counterweight in the defense that has some more power and clout, which most defendants don’t have.

Josie: Right, right.

John Legend: So knowing that, knowing the power that they have, um, we started to pay attention to who these people are, what are their priorities, how have they been behaving over the last few terms that they’ve been in office and had they been running unopposed, have they been responsive to the communities concerns, have they been thinking holistically about what criminal justice reform looks like and what the criminal justice system should be doing in the first place? Should the goal be to convict as many people and lock them up for as long as possible or should the goal be to think more holistically about what’s healthier for the community? Not just the victims of the crimes but for the entire community. Um, so these are the kinds of questions and things we’ve been looking at over the years and decided that we would get involved in elections to the extent that we can, by finding candidates that would be more progressive and, and smarter about justice and supporting them in any way that we can. And also just bringing general awareness up about this role that prosecutors play and saying to the voters that they need to be aware of that and vote accordingly.

Josie: Right. You all have done some really incredible work around DAs over the past few years. I’m hoping you can talk a little bit more about your personal work and the work that the Free America campaign has done on other issues as well.

John Legend: Yes. We’ve also done other advocacy and public awareness around bail reform, which is another critical issue that a lot of people don’t pay attention to, uh, but recently they are. The bail reform issue is important because, uh, even though we think of mass incarceration as big federal prisons, and sometimes maybe we think of them as state prisons, in actuality, federal prisons only take up a small percentage of the total incarcerated population. State prisons are larger than federal prisons as a percentage of the whole, but a huge portion of the people that are locked up every day, on any given day are people that are in relatively short term stays in jails. Short term could be two years, but it’s not after they’ve been convicted of the crime. If they have a ten year sentence, they’re going to serve it in the state prison or the federal prison. But, uh, prior to their conviction, if they don’t have bail money or if the judge doesn’t allow bail, then these folks could be locked up for many months without ever being convicted of anything. And the reason they are locked up is because they can’t afford to pay their way out.

Josie: They’re just poor.

John Legend: We’ve seen Paul Manafort, we’ve seen other people who, when given the opportunity to pay even a million dollars, even several million dollars, Harvey Weinstein, we’ve seen all of them be able to pay their way out of jail. They haven’t been convicted of anything but they’ve been accused. And just like them, there are many other people who haven’t been convicted of anything but have been accused and are sitting in jail right now because they can’t afford much smaller amounts. It’s $1,000, $500, $5,000, $10,000 amounts that many of us listening to this podcast may be able to afford, but most folks in America are living paycheck to paycheck. They can’t see past that paycheck to afford anything, let alone afford being locked up in jail, uh, getting their jobs and their lives interrupted and then also having to pay a fine or a bail amount to get out.

Josie: Right, right.

John Legend: And so, so many people are locked up in jail because they are poor. And we believe that that’s fundamentally unfair. If the idea is that you can, you can rich your way out of being in jail for no other reason than the fact that you’re rich, that goes against everything that we should believe in this country as far as what equal justice means. And so we’ve been fighting for bail reform, with Color of Change with some other organizations, saying that nobody should be locked up because they can’t afford to pay bail. We want to end cash bail. Period. So the only reason you would be held in jail is because you’re deemed to be too risky to be out in the community. Otherwise you go home. Maybe you have to be monitored, maybe there are other things, uh, but otherwise you should go home. You should be with your family, you should be able to go to work and, uh, unless you’re convicted of a crime, uh, you shouldn’t be incarcerated in any way.

Josie: Right. And one other thing that I know that you’ve done that I find particularly interesting, you’ve gone to jails, who’ve gone to prison.

John Legend: Yeah.

Josie: And I think that a lot of people who do this work, even who do this work full time, right, don’t actually spend time with, in these systems. They don’t actually go to these prisons and jails and I think the vast majority people who do this not as their primary job don’t do that. And so I’m interested in why that’s been important to you. The background of why is something I’d love to hear about.

John Legend: Well, first, all I came into this wanting to learn. So I wanted to actually speak to people who were impacted by what goes on in the criminal justice system and you can’t just talk to prosecutors, you can’t just talk to lawyers, you have to talk to people who are actually incarcerated, people who know what it’s like, who know what it’s like to be away from their family. I wanted to be proximate to their emotion, to their struggle, um, so that I could be a better advocate for them. And also I wanted to be a better storyteller and it’s important for us to be able to shine a light on their stories and be able to communicate, uh, their stories to the rest of the country and to the world. And the only way we can do that is going to talk to them.

Josie: Right. I know that you went to an immigration facility.

John Legend: Yes. We’ve been to county jails, one in Texas, Austin, we’ve been to one in a Louisiana. We’ve been to state prisons here in California. We’ve been to federal prisons. We’ve been to women’s, men’s, a juvenile facility. Uh, we went to one in the District of Columbia, we’ve been a detention center on the border in Arizona or near the border. And so, uh, we’ve, uh, we’ve seen quite a few types of facilities.

Josie: Right, right. Let’s talk about your visit to that detention center in Arizona. I know that you held a concert there.

John Legend: Yes.

Josie: But before we get into it, let’s play a quick clip from the ABC News coverage of your visit.

[Begin Clip]

Man: Music legend, John Legend, lends his powerful voice to controversial issue.

Woman: The Grammy Award winning singer joined forces with Colombian rockstar Juanes to perform outside of the Cloy Detention Center in Arizona yesterday. Their aim to raise awareness of the connection between mass deportations and the disproportionate incarceration of people of color in the US.

[Clip of John Legend and Juanes performing]

Man: Well, the Eloy Immigration Detention Center is located about a hundred miles from the Mexican border and holds an estimated fifteen hundred people.

[End Clip]

Josie: That must’ve been an incredible and very rare opportunity. Can you tell us more about the experience?

John Legend: Yeah. Well, we weren’t allowed to go in, but we did a lot of talking to folks that are advocates on behalf of immigrants who are dealing with the immigration system and, and trying to navigate it. And what you realize is, first of all, um, the whole idea of legal immigration didn’t even exist like a century ago. People talk about when my parents came here, my grandparents came here legally, but-

Josie: There were no rules!

John Legend:  There weren’t any rules back then, you just kinda came.

Josie: Right, right.

John Legend: You just kind of showed up. And then you also realize that America, as it’s constituted and the borders as they are defined now, uh, you know, a lot of it was formally Mexico anyway. A lot of the folks that live here, they say that they didn’t cross the border, the border crossed us. That’s like a real thing. And now I understand we have a border and I don’t believe that we shouldn’t have any kind of security system or any kind of awareness of that border. But I do believe that the system should be much more responsive to real life. People are coming here to work and if there weren’t jobs here, they wouldn’t come. If there was no one to hire them, they wouldn’t come. They don’t want to come here and live in the shadows and and live in fear every day. But if we have a system that makes it so impossible for them to do it legally, then a lot of people are going to respond to the incentives and the disincentives in the system and say, ‘life where I come from is harder than it would be for me to come here and live in the shadows in America and so I’m going to make the attempt. It’s worth it to me to try.’ And it doesn’t make them an evil person and people talk about them like they’re criminals. Criminal only in the very, very most technical sense of having committed a misdemeanor of crossing the border at the wrong spot and a lot of times they’re crossing the border at the wrong spot because they’re being turned away from the right spot.

Josie: Exactly.

John Legend: And they’re being turned away from the right spot on purpose by people who want to arrest them for coming across at the wrong spot. So if their only transgression is really a technicality at this point, calling them a criminal is like calling me a criminal for jaywalking or calling me a criminal for any number of administrative things I haven’t done properly or perhaps our president, uh, for how many times he’s probably dodged his taxes or all these other things. You know, there’s all kinds of crimes that people commit in life and prosecutors and the executive branch have to make a decision about which ones to prioritize and to focus on, uh, when it comes to law enforcement. And clearly the president has made a choice that he’s going to treat everyone who tries to come here even as asylum seekers, as criminals. And that is wrong. It’s wrong, it’s immoral and it’s a racist, it’s all those things and all of the separation and essentially the kidnapping of these kids that are coming across from their parents, is premised on the idea that these people are criminals and all they’re doing is committing the offense of trying to come to America for a better life.

Josie: You know, you think about all these people, you’re on Twitter, so, and I’m sure you get just-

John Legend: A lot.

Josie: (Laughs) Yeah. The worst of the worst.

John Legend: (Laughs) I invited you to the party one day when I retweeted you.

Josie: (Laughing) Yeah. And then we were both being called, [inaudible 17:35] right. No, but it’s interesting because I’m constantly getting comments of people saying, ‘Well, these are bad parents because how could they do their kid? Why would you put your kid through this?’

John Legend:  They’re the best parents.

Josie: Can you imagine what you would have to do as a parent to try this? How bad it would have to be?

John Legend: They care so much about their family that they want to try to escape violence and danger and they’re going to go through violence and danger to get here and risk, you know, Trump, like, you know, the full weight of the ICE and customs and border patrol on them and a whole system that’s designed to make it hard for them to get here now. They risk all of that because they think it’s worth the risk.

Josie: Right.

John Legend: And so I can’t blame them for doing that.

Josie: No, not at all.

John Legend: And I didn’t kind of answer your question because I didn’t say how similar the immigration detention centers are with jails and prisons, but I will say I wasn’t able to go inside, but I will say that from what I know about them, one of the things that’s interesting is that a lot of the same operators or operating both, some of the same facilities that were formerly prisons are now being used for immigration detention centers. Many of them are for profit companies that are running them and so there’s an incentive, whenever there’s money being made per incarcerated person or a detained person, then you have to question whatever the motives are going to be for the people operating the facilities and also for lawmakers who are in the pockets of those folks. The incentive is to lock more people up. But you add with a fear and a bigotry toward brown people and black people and you have what you have now, where you’re calling these folks animals and an infestation and vermin and you’re treating them as such. That’s what our administration is doing right now and they’re doing it with our tax dollars and under our name and we need to do something about it which is vote them out, be active and uh, let our politicians know that we’re paying attention and they can’t do this in our name.

Joise: Absolutely. Does anything from all those places that you’ve gone stand out in your mind as particularly moving or surprising or shocking? And along with that question, the question that Clint wanted to ask is how you’ve kind of evolved on this issue? And I, and I think those are related, right? Like I remember going into a prison and realizing that like they had to pay for tampons. How that was such a moment for me of being like, man, this is just a crazy system. And I think everybody who spends some time in these facilities has those moments of thinking, this is moving to me in a way that, um, this is a especially moving to me, and I’m wondering if you have any of those?

John Legend: Well there’s a lot of those stories. You just start to realize a fundamental just cruelty of the facilities that we put people in and it’s not because the people that are working there are evil people, but the system itself is meant to humiliate people. It’s meant to separate them from their families and anybody that they love, it’s meant to make everything as hard as possible for them. Whether it’s going online to do some research, whether it’s reading a book, whether it’s calling home, whether it’s getting messages to and from the other family, it’s so many just little indignities that people suffer every day that just stack up to making life as hard as possible for them. And I know some people listening may think, well, if they murdered someone, if they raped someone, if they did something really heinous, then this is what they deserve. I think oftentimes we end up thinking about the most extreme crimes as the justification for kind of the general status quo, but we have to realize that most of the people in these prisons are there for things that are much more morally less clear, uh, than we think when we think of kind of the worst case scenario of why they’re in there. Because of course the worst rapists, the worst serial killer, a lot of us would be okay with visiting as much indignity upon them as possible. But when you start to hear the stories of these folks, a lot of the moral clarity that you might think you had before starts to slip away. You start to hear that they had been victims of abuse most of the time. You start to hear that they have drug addiction issues that they haven’t been able to deal with, mental health issues that they haven’t been able to deal with. All these things that society has allowed to happen to them and actually inflicted upon them, in so many ways, um, impact why they committed a crime. The fact that they were not represented well in court and had to plea to something that no one with resources and money would have ever plead to. All these things are mitigating circumstances that make you realize that there’s a lot more story around these convictions that we treat in a way that’s really black and white, but it’s actually, there’s so much more color and much more gray to every story. Um, and that’s not to be overly kind of morally relativist. Um, but I think it is important that we understand the stories of the folks that are in there and understand how they got to that place so we can prevent other people from getting there. And also so that the system can really address the actual issues that they’re dealing with. And I think we’ve come to believe as a society that prison is pretty much the only way we deal with crime. The only way we deal with poverty, the only way we deal with any kind of mental illness or drug addiction. And it can’t be the case that prison is a solution for all of these issues. And so I think getting in the prisons and jails and speaking to these folks helps you realize that there’s so much more to their stories and helps you realize that we need to have a system that’s much more nuanced and responsive to real life and to how humans actually interact and how they live and thinking holistically about how we create communities that are healthier and safer for everybody.

Josie: I’m wondering, and interpret this however you want, I’m wondering why you think we’re like this? So America incarcerates more people than any other place in the world, like you said. Right? And obviously America is not a perfect nation. It was built imperfectly. It is founded on imperfect principles.

John Legend: Yes.

Josie: You know, but that’s a heavy weight to carry that we carry. I wonder why you think this is us?

John Legend: Like a lot of things I think it goes back to slavery and to racism in a lot of ways. When you start a nation with an entire class of people who are treated as kind of beneath human caste and then try to build from that, it’s hard to let go of that legacy and it’s been particularly hard for America to let go of that legacy because honestly, we haven’t wanted to in so many ways. If you look at what happened after the Civil War, uh, we had a brief period of Reconstruction and then everything just snapped back and actually got worse for a lot of people because there were a whole bunch of people that were vested in the system as it was before and wanted it to stay the same or pretty similar to where they had the power and control and they kept a certain group of people as a, as a, a permanent lower caste. And when you see people as subhuman, when you want to control their movements, when you see them as inherently violent or you want to believe that they are inherently violent or stupid, or inherently anything, you want to believe about them, you will erect systems that help reinforce that belief and that system. And so what we’ve done as a country is we started incarcerating a lot of people in, in many ways, the whole criminal justice system is built around controlling black bodies. The whole lynching system was about controlling black bodies. Um, even our resistance, I think, to the kind of European style socialism, in my opinion, is because we’ve always been able to depict the recipients of the benefits of socialism as other people that don’t look like me, if I were a white person, don’t look like me and don’t deserve these benefits. And so I think so many of the failings of America have to do with being able to look at black people and say they don’t deserve benefits, they don’t deserve to be treated as normal humans and allowing the system to kind of reinforce that in every way.

Josie: Yeah. Yeah, I think that’s so interesting about the socialism point, I hadn’t thought of that at all. I think that’s really true.

John Legend: I believe the reason we don’t have universal healthcare, the reason we don’t have a more robust social safety net, the reason we don’t have quality public education for everyone is because racism. It’s like, period.

Josie: Right, right.

John Legend: Like I, I think there are other things about America like rugged individualism and the frontier spirit and all that, but the overriding reason that makes us so different from a lot of other Western democracies in this area is that legacy of slavery and permanent underclass that black people have been in and the resistance to any kind of socialism I think has been a byproduct of that as well.

Josie: Yeah, and that individualism is that too, right? Like, I like individualism because I don’t actually want to be a ‘we’ with you all. Yeah.

John Legend: Yeah, yeah.

Josie: I think that is really true.

John Legend: I think so much of it is rooted in that and, you know, I feel like black intellectuals and people who pay attention to racism, I feel like sometimes we’re like, we get tired of bringing up racism because it’s like-

Josie:  I wish I could talk about something else, right?

John Legend: Yeah we don’t want to talk about all the time. It’s like Jesus, I don’t want to talk about it. I wish it just didn’t exist so I didn’t have to talk about it. But it’s so present in everything that we see wrong in America. It’s hard for us not to bring it up.

Josie: Yeah. So how do you see the moment that we’re in, with a president who, I think you would agree with me, is part and parcel of the white supremacy, of an immigration system that is literally tearing apart families, to me, you can’t separate this from this criminal justice system that we’ve obviously created and let kind of flourish. And I’m wondering what you think about that, how he sort of fits into this scheme of punishment as a priority of America, um, but also how this sort of immigration policy from the Muslim ban to the border stuff reflects that?

John Legend: I think there are quite a few things about him that are pretty clear. One, he is clearly a racist and a white supremacist and he believes that his genetic material is superior to that of, of darker people. He believes that. I think he was taught that by his father probably, um, his father marched with the KKK. And I think it’s something that is in his, his brain and his blood I don’t know, whatever it is. And he’s, he’s believed that since whenever. He practiced that when he was renting out real estate in New York and was, you know, sued for it back in the seventies. He’s made it clear over the years that he thinks brown and black people are lesser than white people and he’s not only done it as an kind of attitude or a posture or you know, some intemperate remarks. He’s put it into policy as a business person and now he’s putting it into policy that as the President of the United States. And it’s important to think about what that means when it comes to law and order because he’s said that he’s the law and order president, and I think Chris Hayes has done a good job of talking about what law and order means to him, because it doesn’t mean that someone like Paul Manafort or Michael Flynn or any other people that are clearly committing crimes, it doesn’t mean that those people should be subject to the law, that those people should be punished equally to other people, that those people, his team, the ranchers in Oregon or the, uh, Sheriff, Arpaio in Arizona. Those people got a raw deal. Those people weren’t treated fairly by the criminal justice system. And when he’s talking about himself, the FBI is dirty, they’re crooks, they’re crooked and, and can’t be trusted, when he’s talking about his own personal liability in this, in this Russian investigation. So he doesn’t believe in law in order for him and people like him and people on his team. But he most certainly believes that the full weight of the law should be visited upon brown and black people in the most cruel manner possible. He’s made that abundantly clear and so his belief in law and order is very discriminatory and it’s not a belief in law and order at all actually, if you believe law and order means you’re treating people equally, no matter what their station is or what their color is or what their religion is, he doesn’t believe in law and order.

Josie: Right, and it’s interesting, I was writing about this just on the right, this anger and sort of indignance about Mueller and this constant talk about how like he’s overstepping power and look at this prosecutor, you would think it would not be that much of a mental leap to think ‘if they’re doing this to me, what are prosecutors doing to other people?’

John Legend: Yeah but they don’t care about fairness. They care about power, they care about supremacy.

Josie: Right.

John Legend: They care about authoritarianism. That’s really what defines the conservative movement right now. It’s not really any principles. It’s about power, it’s about authority, it’s about dominance.

Josie: Right.

John Legend: It’s about maintaining the status quo and the people who are currently in power continuing to be  in power.

Josie: Yeah. Thank you so much, John. This was great. I’m so excited that we got to do this.

John Legend: My pleasure. Thank you.

[Music]

Josie: So that was John Legend, singer, songwriter, actor, producer, founder of #FreeAmerica. #FreeAmerica is a campaign designed to change the national conversation of our country’s misguided criminal justice policies and we’re so grateful that John took the time to talk to us.

Clint: Thank you for listening to Justice in America. I’m Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: Again, you can find us on Twitter @Justice_Podcast, like our Facebook page at Justice in America, and subscribe and rate us on iTunes.

Josie: This episode of Justice in America was recorded at the Family Affair Studio. Our engineer was Jeff Gunnell. Our show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn with additional research support by Johanna Wald. Join us next time.

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