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The Appeal Podcast: Why Police Accountability is as Elusive as Ever

With Appeal staff reporter George Joseph.

Maddie McGarvey/Getty Images

The Appeal Podcast: Why Police Accountability is as Elusive as Ever

With Appeal staff reporter George Joseph.


“Police accountability” is a term that gets thrown around a lot in conversations about criminal justice reform. But how do we make sure police officers who break laws or department rules are held to account? The reality––even four years after Ferguson––is that little progress has been made in creating structures that discipline police officers for bad behavior. Our guest, Appeal reporter George Joseph, has been doing deep dives into police discipline in cities across America. The findings? A system that still routinely protects its worst offenders.

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. I’m your host Adam Johnson. This is a podcast on criminal justice, abolition and everything in between. Remember, you can follow us on social media, Twitter @TheAppealPod,or go to Facebook and see The Appeal magazine’s general Facebook, where our show posts there, and of course you can always subscribe to us on iTunes. The term police accountability is one that gets thrown around a lot in criminal justice reform circles. How do we make sure that police officers who break department rules and even the law are held accountable? The reality, even four years after Ferguson, is that little to no progress has been made in creating structures that discipline police officers for bad behavior either on a federal or local level. Our guest, The Appeal’s, George Joseph, has been doing deep dives into police discipline in a number of cities for months. The findings, the system that still routinely protects its worst offenders.

[Begin Clip]

George Joseph: Some of these police leaders had over ten plus complaints like numerous taser incidents, mace incidents, that kind of thing. So even at the leadership level, people are learning that doing that kind of aggressive activity doesn’t actually hurt you, in fact either it won’t count against or it may have and help you. If that’s the way they came up and came to be the leaders of the department, why would they suddenly turn around and say, I’m going to discipline you for doing exactly what I did when I was in your position?

[End Clip]

Adam: Hi George. Welcome to The Appeal.

George Joseph: Hey, thanks for having me back.

Adam: So, um, you have been on this beat for about a year, probably longer and you recently wrote an article in the Appeal entitled, “Just 6% of Columbus Police Officers Account for Half of All Force Reports.” Force reports, for those who don’t know, is a sort of complaint about use of force. This is of course not just an issue with the Columbus Police Department. This is a broader national issue. Can you start us off by explaining why so few police officers account for so many of the complaints and to what extent do most police departments, and if you want to zoom in on Columbus, go ahead, why so many police departments have such a totally limp and useless complaint process?

George Joseph: So what we saw in Columbus, as you mentioned, was that there are 6 percent of officers who account for half of all the use of force investigations, so that both includes citizens complaining about force incidents or alleged forced incidents, as well as and this is the majority of the data set, um, officers self reporting their own use of force incidents. So if I tase someone, as an officer, I report it to the chain of command, they investigate me, find that I was perfectly justified and then uh, we go forward. So in Columbus, despite this very small group of people who are accounting for so many complaints, we found that in 99 percent of cases the officers were justified by the department. Their actions rather within policy or the citizen complaint was deemed to be unsustained. And the legal questions about why police departments so often find police not to have done anything wrong, we can see from grand juries all across the country is that even when an officer shoots someone, as long as they say they felt endangered or threatened, pretty much anything can be justified. But what we can say very clearly is that there are concrete reasons for why this concentrated group of people is generating all these complaints and it actually gets, it’s not about like a bunch of psychopaths who are part of one unit cause all the problems. It’s a structural material problem. It’s that certain units and police departments are being encouraged to do the most aggressive types of police work. Jumping out of cars in plain clothes, guns blazing, trying to get guns, trying to grab drugs, stopping people aggressively in poor neighborhoods where if you see a guy with a gun running at you, you may also pull out a gun, and so this obviously leads to escalated situations which result in shootings, beatings, and killings. And in Columbus, what we noticed was in some of the cases, some of the officers with thirty, forty different complaints had been officers who had experience in what is known there as a summer strikeforce, which is one of these plain clothes surveillance units that goes to poor mostly black neighborhoods, jumps out at people and tries to get guns. And as you mentioned across the country, police departments have similar units. They’re considered more prestigious than regular kind of patrol work. And as a result, people aren’t being sanctioned for this activity because it’s what they’re supposed to be doing and they’re rewarded for it.

Adam: Let’s cite one case that you reported on in general. It happened about two years ago, a Columbus police officer, um, there was someone who called in an armed robbery. They said that they, that they, um, were robbed for about $10 and told the dispatcher that they didn’t want to really mess with it. The cops responded to the complaint. They spotted three teenagers, um, two of whom escaped. And one was a 13 year old named Tyre King was shot while fleeing by an officer named Bryan Mason, who himself was white. The quote unquote “suspects” were African American. Now, not surprisingly, it was revealed that Mason had in his nine year career, 47 reports involving force, uh, and  four of those reports stem from previous shootings, which he had shot at a suspect, two of them resulted in death. That’s a lot of complaints. And now so what I want to do is I want to try to tease out the difference between someone who’s just involved in a lot of high risk episodes with those who are, who are, you know, maybe not violent sociopaths or psychopaths as you put it, but people who are maybe have an itchy trigger finger or maybe people who are more susceptible to escalation we’ll say, we’ll put it, we’ll put it in those terms, beyond the kind of material reality of them just being involved in more aggressive policing, because obviously this is also a policy issue. It’s, it isn’t just about the moral failing of a police officer. What are the mechanisms though for let’s say the five, ten percent who do have an itchy trigger finger, who are kind of, who view themselves as being John Wayne or is there any kind of mechanism for any meaningful oversight and I know that different cities are different or different cities have way better oversight. But specifically in Columbus, I mean these numbers are basically just rubber stamp. Police department, of course, investigates itself, finds out nothing happened. If Florence, our producer, did something wrong and there was not and The Appeal Podcast investigated itself, I would unlikely find her guilty because we work together. We’re all friends. Specifically in Columbus, can you talk about what those mechanisms are, what the oversight mechanisms are, if they even exist?

George Joseph: Well, it’s like many police departments across the country. The investigations will be led by an internal affairs bureau which has the power over, you know, who they choose to interview, how they choose to judge certain pieces of evidence and like you said, if the system justifies officers 99 percent of the time, literally, I’m not being hypothetical, then clearly it’s not even worth filing a complaint and officers within the department who we spoke to said citizens don’t lie 99 percent of the time. Why would the officer be punished when you’re telling them this is what good police work is? Which gets to kind of the problem of what police leaderships ask officers to do and there’s this strange kind of discourse emerging now where the police chiefs will kind of be seen as the more moderate, more reasonable, more rational types compared to the grunts at the bottom. The chiefs are, they wear lots of brass and they’ll be on panels at Google and all that kind of stuff, but they are the ones making the rules about what cops are supposed to do to get promoted and what happens when a cop does something that is violent. And so what was interesting to us was looking at some of the top commanders in the department, including one of the deputy ops, like one of the top among the top five, and then some of the district sub commanders. And what we found was even at that level, uh, some of these police leaders had over ten plus complaints, like numerous taser incidents, mace incidents, that kind of thing. So even at the leadership level, people are learning that doing that kind of aggressive activity doesn’t actually hurt you in fact either it won’t count against you or it may even help you, if that’s the way they came up and came to be the leaders of the department, why would they suddenly turn around and say, uh, I’m going to discipline you for doing exactly what I did when I was in your position?

Adam: Right. And this obviously gets to the broader issue amongst reformists, which is to what extent can you even really reform police from an activist standpoint, from people you’ve talked to in the community, people who are trying to work on having more accountability, a conversation that’s obviously been heightened, uh, very much since, since Ferguson. What are the actual good reform tools that police departments can use, if any at all? And then as a followup to that, what are the sort of bad reforms, like what are the reforms you don’t think do a lot of good, what are kind of just window dressing?

George Joseph: There is this problem, uh, with the public wanting the police to not do the bad violent things that we see on TV and that college protests, but then at the same time wanting them to quote unquote “get guns off the streets,” clear the corners so that old ladies can walk out of their houses. Like that’s the kind of thing you’ll hear if you go to a city council meeting or a public community affairs meeting, that’s what some people in the community are asking for. I’m not saying that’s all of them, but certainly a significant amount of them. And so what do you do with that situation? It’s difficult because the very thing you’re asking them to do, grabbing guns from people as police the only way to do that is through these really aggressive methods. I’m not an expert in community models for addressing gun violence. I know a lot of people do work on that area and do delve into that area, but there are probably alternatives to discouraging young people from carrying and using guns beyond jumping out of cars and grabbing them and taking the gun and thinking that that will change their trajectory in terms of gun use down the line. Um, and I don’t think police pulling a couple hundred guns off the street every year has ever really made a big dent in the gun supply market.

Adam: Like you said, this is the sort of, for lack of a better word, the kind of special forces of the police. Right? And to have a bunch of, you know, juiced up white guys with wrap around Oakleys and monster tattoos, jumping out of cars, probably not a good formula for reducing violence and preventing African Americans from being shot by the police. Right?

George Joseph: Well, let me point to the example of Saheed Vassel in that regard, um, who was recently shot and killed in New York. He had numerous, hundreds of interactions with police in his neighborhood before. These aren’t all quote unquote “community policing” interactions. These were a lot of tickets and citations for basically being a person out on the street with mental issues, but they knew who he was and didn’t necessarily think that he was going to go kill someone because everyone on the block knew him. The police knew him in his precinct. The people who ended up shooting him were these plain clothes officers who responded to a call, which is unusual because they’re not generally supposed to do that and came to the scene immediately, didn’t know who he was, saw what they thought was a gun and started shooting. So could that have been avoided if a patrol officer who knew him had responded first? Uh, it’s impossible to say, but it certainly seems much more likely.

Adam: Right. So there’s this kind of strikeforce mentality necessarily leads to more violent encounters.

George Joseph: I mean, the data shows that certainly.

Adam: You reported earlier this year in May about the wildly disproportionate amount of plain clothes police officers involved in violent altercations and fatal shootings. You found out that in the NYPD plain clothes officers make up 6 percent of the force, but account for 31 percent of fatal shooting incidents between the years 2000 and 2017. This is something we see elsewhere as well. Can you talk to us about why plain clothes officers are more likely to be violent? Is it similar to this sort of task force mentality you talked about earlier?

George Joseph: Yeah, it’s quite similar and it’s very striking that, I mean there are different examples. In New York, there’s a lot more fatal incidents. It’s a much bigger city. But just speaking generally about police violence, you see in the same time period roughly 2000 to 2017, in Columbus, 6 percent accounting for half of force incidents. In New York, 6 percent accounting or roughly 6 percent accounting for a third of incidents involving police fatal police shootings. And so like you said, yes, there are similar dynamics at play. In the NYPD article you’re referring to we looked at the NYPD’s plain clothes unit, which has been around for awhile and has always caused controversy because they’ve been behind some of the major police killings in recent New York history and not too different from the summer strike task force in Columbus, they drive around in cars, they don’t focus necessarily on one patrol beat, they don’t necessarily respond to calls generally. They’re out there speeding, going as fast as possible to try jump out at people who may have a gun and oftentimes there’s racial profiling involved in that. People who aren’t dressed in a very fancy way on the street corner, they go out and grab them and do shake downs and you know if you do that, maybe one out of ten times you’ll find a gun and you will be, or I don’t, maybe even less than that frankly, but you’ll get that short term gain of the gun that you found that you now bring to your supervisor and they take a photo and post it on Twitter.

Adam: They love to do that. They love to do that.

George Joseph: Right. They’ll layout the two pistols on the table.

Adam: They got roasted once. There was a police department who had a gun that it appeared like it was from the 1920s.

George Joseph: (Laughing) I think I saw that yeah.

Adam: Do you remember that? And people were like, ‘you caught Dillinger?’ No, they loved doing that.

George Joseph: But what about all the times that you kind of just profiled someone and came up short because you’re pretty much just randomly going after people who you think are, basically look like they’re up to no good. I mean, it’s going to make people hate you in a way.

Adam: It’s a total numbers game. You go to certain locations and you, and we talked about this when you were on the show before about how if you target certain populations, you will invariably find more crime disproportionate to the amount of crime that actually happens. These police departments aren’t raiding, uh, you know, the Sigma Chi house to look for sexual assault. They’re going after certain populations for very specific reasons because they, mostly because they can and when they’re looking to get convictions because they don’t have money for lawyers and so on and so forth.

George Joseph: In New York, it’s literally a numbers game in that officers allege that they are under a quota system. The NYPD denies it and yet all these recordings come out every few years with supervisors saying, ‘you haven’t given me your numbers for the month,’ and so officers are under pressure to go and, and make those kinds of felony arrests by finding a gun on someone or getting drugs. And so it’s in the nature of what policing is, is meant to be right now.

Adam: On the topic of plain clothes policing, last year in Baltimore, we have a little bit of an A/B test here because Baltimore, they disbanded their plain clothes police force, which is extremely rare. Uh, and really creates an interesting test case. Can we talk about what the logic to that was? Obviously I think the plain clothes police department in Baltimore was a uniquely uniquely corrupt, but has there been any data or any kind of analysis of how it’s affected the policing itself?

George Joseph: That’s a good question. I mean, certainly in Baltimore, beyond plain clothes officers accounting for a lot of violence, there is also a lot of just straight up corruption. So that was controversial because they went a little bit beyond the kind of things they were required to do, but ironically now Baltimore city leadership has talked about bringing them back so it doesn’t seem like anything has really changed and obviously Baltimore has a lot of murders, a lot of shootings and people seem to not feel like taking them away really fixed anything. Yet on the other hand, while they were there, they didn’t really seem to fix anything either.

Adam: Well, what about the plain clothes concept? Is policing led to or correlated with the corruption of the Baltimore Police Department? Because I mean the Baltimore Police Department, I mean for those who don’t follow these things, it makes the NYPD look like the Osmond family, sort of notoriously corrupt in a way that is pretty brazen. Do we have any indication as to why there was a correlation there between plain clothes and corruption? Because I mean plain clothes and violent interactions, you can sort of see, okay, well they don’t see that they’re a cop and they pull their gun out, but was that kind of best of the best elite mentality also given the perception that they’re above the law?

George Joseph: That’s a really good question. I haven’t studied the issue enough to talk about how the kind of plain clothes mentality bleeds into police corruption. But from an intuitive perspective it seems like when you start to dress up like someone who’s like a bad guy and you deal with people in a much less official way and off the books way and you start working your sources and kind of going into this underworld, for lack of a better term, you can sometimes lose yourself in it because not everyone who’s a drug dealer is putting their money in a bank account and like keeping good records for the IRS. So there’s a lot of temptations out there.

Adam: Yeah. They have a habit of not filing their taxes.

George Joseph: Yeah. And they don’t file drug, uh, purchases. Um, there’s a lot of temptations in a city like Baltimore. I mean, in New York you don’t probably have that to the same degree because there is honestly not the same degree of underground economic activity happening. But in cities like Chicago and Baltimore, that activity is happening and the city’s responses to send swarms of police there, and then you get these units that effectively become their own gangs, literally dealing drugs and selling people, that kind of thing.

Adam: You’ve done a lot of investigations over the years into spying of protest movements. What is the difference, if there is any, between plain clothes policemen and undercover policemen?

George Joseph: I think it’s just whatever the police PR person happens to feel like that day.

Adam: Okay. There was an incident in Oakland in 2014 were to CHP officers, California Highway Patrol, which is the state police in California, pulled their guns out on protesters after there was an incident where someone spotted them or alleged that they were cops and they pulled their guns out and it was a huge incident because (a) why were they there?  (b) The Oakland Police didn’t know they were there and their first response was to go full Charles Bronson and vanish their weapons and this confluence of undercover versus plain clothes, and they kept insisting these cops were not undercover. They were just plain clothes, but they looked like protesters, they were like doing chance. Is this a distinction do you think actually matters? And to what extent do you think the use of plainclothes to infiltrate activists is something that you see as more common or it’s more, it’s kind of a go to because they’re sort of already off the books?

George Joseph: Well, we definitely know it’s common because at the same time that, uh, you referenced the incident in California we obtained documents showing how the NYPD was sending quote unquote “undercovers” or plain clothes, whatever words you wanna use, um, people who you wouldn’t know are cops and are pretending to be protesters at Black Lives Matter demonstrations all across the city. And these demonstrations were documented over and over again in the police logs as peaceful, nonviolent, etcetera, etcetera. Yet they were not only attending the protests but also following them on social media, passing around pictures of activists and somehow obtaining access to organize your group texts. I’m not exactly sure how that happened, but we have documents from lawsuits, uh, which we published in The Guardian a few years ago showing that. Um, so it seems to be that all across the country police feel it’s very important to spy on protests about police violence. I mean, I think it probably makes sense why they want to do that.

Adam: Yeah. Um, so before you go, just want to ask you a sort of 30,000 foot question, have you seen in your years writing about this topic, do you see any meaningful change? We’re about the four year mark since Ferguson, in your mind, have these movements beared meaningful fruit and what kind of tactics do you see as working and not working?

George Joseph: My sense is that after these huge rebellions and protests took place in 2014 and people saw that they did mass protests and the cities would get shut down and then the National Guard would come in and this happened all over the country, obviously, Ferguson, Baltimore, Charlotte. All over the place. They’re still wasn’t the political power to necessarily indict officers or the willingness from county DAs to do so and to do so in a way that would actually get convictions. Now, some people obviously don’t think convicting police officers is really the answer to these problems and I think that’s true and that it doesn’t really address the issue systemically, but it does reflect how little power the public has to hold officers accountable by the general ways that we expect other members of society to be held quote unquote “accountable.” And I feel that since that kind of heyday of the Black Lives Matter movement, a large part of the reason that people aren’t protesting on the streets in massive numbers for regular police violence, that is still happening and has not changed since the news stopped covering it is because they see that the protests, um, without any sort of significant political power don’t really lead to any change. Um, so I think that with this movement to focus on DA races and starting to take more power in terms of urban politics, there’s a possibility that that could change in the near future. But I’m generally an optimistic person.

Adam: Yeah. Well, yeah I think the, I think the pivot to DAs is driven largely by necessity with an understanding that there’s just more democratic control over that, uh, and that police departments are always going to kind of be like, you know, the CIA or the military, they’re kind of a permanent state in a lot of these cities, like they’re not, you know, the police run the security for Bill de Blasio, you know, how much can you really push back against people who run your security all day? Uh, you know, he actually thought they were spying on him in his 2013 campaign, there’s no evidence of that, but he thought they were. So the very fact that he thought they were is somewhat chilling. So yeah, I think that’s, um, I think that’s interesting. I really appreciate that perspective and I really want to thank you for not giving me false optimism. (Laughs)

George Joseph: (Laughs)

Adam: We try to play it straight here. So I appreciate that.

George Joseph: Well, thanks Adam. Appreciate it too.

Adam: Thanks so much George.

George Joseph: Okay talk to you later.

Adam: Thank you to our guest George Joseph. Great as always. This has been The Appeal Podcast. Remember, you can follow us on Twitter @TheAppealPod and you can subscribe to us on iTunes just look for The Appeal Podcast and of course you can follow The Appeal magazine’s main website at The Appeal on Facebook. This show has been produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much and we’ll see you next week.

 

‘Will I Get Out Today?’

Louisiana is keeping people behind bars long after their sentences have expired, attorneys say.

Illustrations by Ana Galvañ

‘Will I Get Out Today?’

Louisiana is keeping people behind bars long after their sentences have expired, attorneys say.


Four days before his scheduled release from a Louisiana prison, Ellis Ray Hicks received a visit from his aunt. Her phone had recently been cut off and she needed to know what time to pick him up from the prison.  

Hicks asked a lieutenant who, after checking the prison’s computer system, returned with stunning news—Hicks’s release date had been moved from January to July. No one in the visiting room could explain this change.

This meant not only that Hicks was looking at an additional six months in prison, but also that Hicks’s aunt had to postpone her open heart surgery. “She has no caretaker,” Hicks told The Appeal. “My uncle has cancer, so can’t move around much.” That meant that his aunt, then in her late 60s, had to wait for her 50-year-old nephew to come home before she could proceed.

After the visit, Hicks contacted the computation officer, or the prison administrator responsible for calculating his release date. Initially, the officer told him that Louisiana’s probation and parole department had changed his release date. That’s also what he told Hicks’s aunt, who called once she got home. But, says Hicks, that wasn’t true. Hicks attempted to get an explanation—if not a change back to his initial release date—without success. Instead, he was issued four release dates, none of which were Jan. 8.

“The law is clear,” William Most, Hicks’s attorney, told The Appeal. “Once a prisoner’s sentence has expired, the jailor has a reasonable amount of time to process and release him. That reasonable time can vary—in some circumstances, even 30 minutes can be illegal. But the courts have reached a consensus that the reasonable time must be less than 48 hours.”

After writing to Most for help, Hicks was released nearly four months after his original date. But Hicks’s delay was no fluke. Most is representing four other Louisianans who were held far beyond 48 hours past their release dates without input from a judge. No one knows how many people are sitting in jails or prisons across the state past their sentence, in part because no agency bothers to collect the data.

“At least hundreds— and probably thousands—of Louisiana citizens have been held past their release date in recent years,” Most said.  

In New Orleans, Rodney Grant was arrested on a 15-year-old burglary charge when he tried to apply for a driver’s license. The judge sentenced him to time served, meaning that Grant should have been released from the sheriff’s department that same day. Instead, the sheriff’s office detained him for two more weeks while they sent his paperwork to the Louisiana Department of Corrections (DOC) for processing. Grant then spent another two weeks in state prison; it took multiple calls and emails from the sentencing judge before he was released. Prison officials dropped him off in Madison and gave him a bus ticket back to New Orleans, over 200 miles away.

Another man, whom Most requested remain anonymous to avoid reputational harm, was imprisoned for 589 days past his release date.

Louisiana may no longer be the nation’s incarceration capital, but the state routinely keeps people behind bars for weeks, if not months and sometimes years, beyond their release date. The extrajudicial practice has been happening at the local and state levels for years—yet no one seems willing to fix it.

Illustrations by Ana Galvañ

Stas Moroz is a staff attorney at the Orleans Public Defenders office. At least once a week, he receives an email about someone who is being overdetained. There are a number of reasons for a person being held past their release date, he told The Appeal.

One common reason is the lag in communication between the Orleans Parish sheriff’s office and the state’s Department of Corrections. If a person has been sentenced to DOC custody, that person remains in the sheriff’s custody while his or her paperwork is delivered to the DOC. Despite the advent of email and digital systems, local sheriffs and the state prison system do not have a shared computer system, so physical papers must be driven to the DOC headquarters in Baton Rouge. That paperwork is driven to Baton Rouge only once a week, meaning that a person sentenced after that particular day may have to wait another week in jail.

Once state prison officials receive the paperwork, they must calculate the amount of time served and the amount of time remaining on the person’s sentence, a process that can take over a week. Only then will they request that the person be transferred into their custody. “The process is so slow that people will be in jail for two or more weeks,” Moroz explained.

Then there’s human fallibility. Prison officials may not include time served in the jail system, either because they did not receive the paperwork or because the numbers in that paperwork are wrong. They also may fail to include good time, or time off for good behavior, when calculating a person’s release date.

“Sometimes people make mistakes,” Moroz acknowledges. But, he notes, “it’s a structural problem that the system isn’t set up to catch these mistakes. We only find out if a client writes to us.” There’s no system in place, either on the local or state levels, for incarcerated people themselves to fix these errors—or to get in touch with someone who can help. This means that those who have intellectual disabilities, mental health concerns, or cannot write a letter are left to sit behind bars for longer than their actual sentence. That’s what Hicks experienced during his time in prison—but many people were unable to write letters or advocate for themselves.

Even just a week of additional time can disrupt people’s lives. But for many, including those represented by Most and Moroz, overdetention has stretched far beyond a week. As Hicks’s experience demonstrates, the additional time means remaining unable to take care of loved ones. And the lack of certainty over what should be a certain release date can also cause or exacerbate depression or anxiety.

In January, Moroz put a call out to the attorneys he knew and asked about instances of overdetention. Between January and July, he received 54 emails. Thirty-nine were from attorneys whose clients were already past their release dates yet still behind bars. The other 15 were from attorneys who anticipated that their clients would not walk out of jail or prison once they had completed their sentences. “That’s a pretty conservative number,” reflects Moroz, noting that 54 only reflects people who have contacted their attorneys who, in turn, contacted Moroz.

The DOC apparently receives queries about erroneous time computations often. Under Frequently Asked Questions, the agency’s  website states, “If there are questions about time computation, offenders housed in state facilities should write the Records Office at his/her assigned facility.  For offenders housed in local facilities, he/she is advised they may submit his/her questions in writing following the Administrative Remedy Process. While offenders often ask family members or friends to contact the Office of Adult Services on their behalf about time computation questions, the offender should be encouraged to follow appropriate procedures to ensure that staff has the information and time needed to respond to his or her concerns.” The DOC declined to comment, citing pending litigation.

But, says Hicks, if an outside attorney had not intervened and helped secure his release, he would have sat in prison for another six months. Meanwhile, his aunt would have continued to postpone the surgery she needed.

You know you’re free. You’re supposed to be a free man.Johnny Traweek, imprisoned 21 days past release date

In court documents, Most identifies numerous past cases of overdetention. In the 1980s, the state of Louisiana paid Jerome Robinson over $250,000 for failing to calculate good time into his prison sentence. Two decades later, in 2003, the state settled a lawsuit for a person who had been held 1,213 days (or over three years) past his release date. In 2005, 2007, and 2009, it made payments to people who were held past their release dates. Most is also the counsel on two other lawsuits on behalf of men who were overdetained. One spent 41 days imprisoned past his release date; the other spent nearly two years in state prison.

Prison employees have also acknowledged the frequency of the practice. In the course of a lawsuit filed by James Chowns who spent 960 days imprisoned past his release date, DOC employees testified about the consistent overdetention that they observed. One employee testified that prison staff discovered approximately one case of overdetention per week for the past nine years. Another DOC employee, who reviewed sentence computations for the department’s assistant secretary, testified that he typically discovered “one or two [people] a week” who were eligible for immediate release yet remained in custody. (Chowns’s petition was ultimately denied by the state’s Supreme Court.)

Yet despite these acknowledgments, the spate of lawsuits and the hefty settlements, Louisiana prisons and jails continue to hold people past their release dates. That’s what happened to Brian McNeal, who spent 41 extra days in prison. He might have sat there even longer had his girlfriend not repeatedly called the DOC, the parole office, McNeal’s probation officer, and Moroz, who had been McNeal’s public defender. McNeal has recently filed suit against the DOC, alleging false imprisonment, negligence, violating his 14th Amendment right to due process, and violating the state Constitution’s due process protections.

If this issue is so widespread, why does this continue to happen? “There is a complete lack of accountability,” stated Most, who is also representing McNeal. “When the DOC finds out that someone has been overdetained, their practice is to change their release date to the date they figure it out, so that it looks like there has been no overdetention. Rarely are there consequences when someone is overdetained.”

Ken Pastorick, the DOC’s spokesperson, disputed Most’s allegations, but declined further comment.

The lack of accountability became apparent in a recent response by DOC Secretary James LeBlanc and Attorney General Jeff Landry. As part of a lawsuit Most is filing on behalf of a man overdetained for nearly two years, LeBlanc was asked to identify all instances of discipline or adverse employment activity for DOC employees who have incorrectly computed sentences or release dates from 2000 to the present. Landry and LeBlanc responded, “To the best of Sec. LeBlanc’s knowledge, no employees meet these criteria.” In other words, employees have faced no consequences for miscalculating release dates.

At other times, however, Landry has noted the department’s ineptitude. In a March 2018 op-ed, he and Senator John Kennedy wrote that there “is a layer of incompetence so deep that the Corrections Department doesn’t know where a prisoner is on any given day of the week or when he should actually be released from prison.”

But it’s not just state prisons that are overdetaining people. In May, after being sentenced to time served, Johnny Traweek still spent 21 days at the Orleans Parish Prison.

“Will I get out today?” the 66-year-old remembered asking the judge. Yes, said the judge. So when Traweek was returned to the jail, he gave away all of the fruits, chips, and candy that he had bought at the commissary earlier that week. “I was sitting in my cell with absolutely nothing,” he told The Appeal. But he didn’t mind—knowing that he was soon leaving the jail meant that he didn’t need to rely on commissary snacks to keep his hunger at bay. That was on May 2.

The next morning, Traweek asked a deputy about his release time. She checked the jail’s computer system and told him that it said HOLD. Every morning after that, he asked her to check the computer. Every morning, he received the same response.

“It was miserable,” he remembered. “You know you’re free. You’re supposed to be a free man.” Traweek, who already suffered from depression, said that the uncertainty deepened his condition. He stopped sleeping, instead staying up and wondering, “When am I getting out? Maybe it’ll be tomorrow.”

Illustrations by Ana Galvañ

The following week, Moroz, Traweek’s public defender, learned that his client was still in jail and that the Orleans Parish sheriff had not sent Traweek’s paperwork to the DOC. He emailed the sheriff’s office, which responded, “Johnny Traweek was just sentenced on May 2, 2018, so his paperwork has not went up yet.” This was on May 9, one week past the day a judge had sentenced Traweek to time served and told him that he would be released that day.

By May 14, Traweek was still sitting in jail. In response to another email by Moroz, the sheriff’s office wrote, “He can’t get released until DOC sends him a release. The whole process takes about two weeks. He has to wait!!!!”

Two days later, on May 16, state prison officials informed Moroz that the sheriff’s office had not sent the key information that they need to calculate Traweek’s sentence. Moroz once again emailed the sheriff’s office, noting, “It has now been two weeks since his sentence ended.” It was not until Moroz filed a petition for habeas corpus that the sheriff’s office released Traweek. By then, it was May 22, three weeks after a judge had told him he would be out that same day.

“I’m not the only one they did that to,” Traweek recalled. “There were three other people whose time was done [and were still in jail].” And, he added, “That’s just on one floor. That’s just one cellblock.”

In several cases, people have spent months beyond their immediate release date after the Orleans sheriff’s office has sent people not to the state prison’s reception center in St. Gabriel, where prison officials would begin calculating time left on their sentence. Instead, they were sent to the Riverbend Detention center, a parish jail in Lake Providence near the Mississippi border in northeastern Louisiana. Meanwhile, no prison officials received their paperwork, let alone began processing and calculating their release date. That meant that, four hours away from New Orleans, family and potential legal help, they were held for months past their release date.

This has happened to at least five other men, who spent between three and five months detained past their release date. All five were only released with the help of the Roderick and Solange MacArthur Justice Center, which is now filing suit against the Orleans Parish Sheriff’s Office, the East Carroll Sheriff’s Office, and the Department of Correction.

These five, says Emily Washington, an attorney at the MacArthur Justice Center and counsel on the lawsuits, which have now been consolidated, represent only a fraction of the numerous phone calls and letters they receive from incarcerated people and their family members about overdetention. But, she adds, no agency tracks the number of people held past their release dates, meaning that no one knows how many people have been affected. At the same time, neither the DOC nor the local jails have put any systems into place to resolve this issue.

Blake Arcuri, general counsel for the Orleans sheriff’s office, disputes that it holds people past their DOC release date. In an email to The Appeal, he wrote, “Judges don’t set a release date as part of a sentence. When inmates are sentenced by a judge to DOC custody, that’s an order of the court transferring them from the jurisdiction of the sheriff (pretrial detention) to the Department of Corrections.  The sheriff has no authority to release a prisoner who was sentenced to the legal custody of the state.” According to Arcuri, if the DOC issues a release for a person still in the sheriff’s custody, that person is released within two to six hours.

“Mr. Arcuri has it exactly backwards,” said Most. “The Fifth Circuit has been very clear: ‘a jailer has a duty to ensure that inmates are timely released from prison.’ Currently, the sheriff is holding inmates sentenced to the custody of the DOC for days or weeks, even when he knows they should be immediately released. If the sheriff’s department doesn’t want to be responsible for DOC inmates’ release dates, he should hand them over to the DOC shortly after sentencing.”

Moroz said Arcuri’s claims are not borne out in practice. He notes that, in the past year alone, the Orleans Public Defenders office has had had multiple clients sentenced to periods of incarceration that they had already served on the day they had been sentenced. “It is common for an individual who is sentenced to receive ‘credit for time served’ in parish jail (meaning that individual is sentenced to serve the amount of jail time that he or she has already completed) during a morning court session to sit in jail until the next day while OPSO [the sheriff’s office] processes their releases,” he wrote in an email.

But, if the person is sentenced to time served in state prison, the delays can stretch for days, if not weeks, while waiting for the sheriff’s office to fulfill its responsibility of driving paperwork to the Department of Corrections.

“Both the Orleans Parish Sheriff’s Office (OPSO) and the Department of Corrections (‘DOC’) have a responsibility to ensure that people in their custody are there lawfully,” Moroz wrote.  

Meanwhile, keeping people past their release dates have impacted their lives—and the lives of their families. “Speaking for the [five] men I represent,” Washington said, “it sounds really bureaucratic when you talk about paperwork and time calculations, but for my clients it’s their lives. It might be days, weeks or months, but these are days, weeks or months that they’re not with their families, they’re not able to work or provide for their families. You’re sentenced to a set amount of time. When that time is up, you should be able to return to your family and to society.”

Hicks went home on April 25, nearly four months past his initial release date. The following week, he took his aunt to the hospital for her long-awaited surgery. He is now caring for her as she recovers.

Others, however, have not been as fortunate. “In the time they were overdetained, my clients have missed their children’s graduation. The birth of their grandchildren. Birthdays. The death of parents. A wife’s stroke,” Most said. “They couldn’t be there for their loved ones in good times and hard times. Even after they are released, there is no going back. And that weighs on them.”

More in Explainers

Justice in America Episode 10: A Conversation with Ta-Nehisi Coates

Josie and Clint talk with the author and journalist about race, politics, and mass incarceration.

Ta-Nehisi Coates in New York City, 2015.
Anna Webber / Stringer / Getty

Justice in America Episode 10: A Conversation with Ta-Nehisi Coates

Josie and Clint talk with the author and journalist about race, politics, and mass incarceration.


For our last episode of the season, we are thrilled to have Ta-Nehisi Coates—an author and journalist who has published essential work, from “The Case for Reparations” to his book Between the World and Me. In 2015, Ta-Nehisi published a piece entitled, “The Black Family in the Age of Mass Incarceration”, which looked at the history of mass incarceration and at how it continues to devastate black communities. We talk to him about race, mass incarceration, his list of suggested reading, and the responsibility of black leaders to address systemic injustice.

We’ll be back this winter with more episodes. In the meantime, keep up with us on Twitter and FacebookThank you for all your incredible support during season one. Talk to you in a few months for season two!

Read Ta-Nehisi Coates’s “The Black Family in the Age of Mass Incarceration” in The Atlantic.

The Moynihan Report, discussed last week on the show and also featured heavily in Ta-Nehisi’s piece.

“The Case for Reparations,” another excellent piece by Ta-Nehisi.

Devah Pager’s Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration is an excellent book about the collateral consequences incarceration has on employment.

James Forman’s book, Locking Up Our Own: Crime and Punishment in Black America, was raised during this discussion and also featured last week.

Here’s Khalil Muhammad’s book, The Condemnation of Blackness.

Among the books recommended by Ta-Nehisi are Bruce Western’s Punishment and Inequality in America, Devah Pager’s Marked, Michelle Alexander’s The New Jim Crow, and  Texas Tough, by Robert Perkinson.

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

Our email is justiceinamerica@theappeal.org.

Transcript:

[Begin Clip]

Ta-Nehisi Coates: Until people have different fundamental assumptions about their country, who has the right to be a citizen in a country, who has a right to enjoy the full suite of privileges, all of this is, you know, and I don’t mean to be dismissive, but in many ways it’s choreography. It’s not the actual thing. I can articulate a series of responses to make the mythical beliefs that I have respectable. But the mythical beliefs they are what they are and they actually aren’t that hard to get to. I mean, you know, we’ve seen enough data on what people who voted for Donald Trump think about who should be a citizen and who should be, who should have access to the suite of rights that come with that.

[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 we try to explain what it is and how it works.

Clint: Thank you so much to everyone for joining us today. You can find us on Twitter @Justice_ Podcast and like our Facebook page, you can just find us there at Justice in America. Also subscribe and rate us on iTunes, we’d love to hear from you.

Josie: So today is our last episode of season one.

Clint: Man, what a ride.

Josie: We’ve really, really enjoyed talking to you all about the criminal justice system and diving in deeper on all sorts of topics and we’ll be back with season two this winter. In the meantime, let us know what you’d like to hear more about. You can email us at justiceinamerica@theappeal.org.

Clint: So at the beginning of this episode you heard a clip from our guest today, Ta-Nehisi Coates. We’re super excited to have Ta-Nehisi on today. Unless you’ve been living under a rock, if you care about these issues and care about issues of racial justice, you are likely familiar with his work. Ta-Nehisi is a journalist, a writer, an author, someone who has written some of the most powerful, thought provoking, probing work of our time from “The Case For Reparations” to Between the World and Me to Eight Years in Power. He’s also one of our leading voices on race and racism in America, it’s cultural, social, political implications, and he’s also brought a sort of historical rigor as a journalist to the public discourse around racism that for a long time felt like it had been missing and I think we’re contextualizing so much of the important work around our criminal justice system, around our housing system, around every facet of our social and political landscape when it comes to inequality in ways that we hadn’t previously done. So Ta-Nehisi is a friend and someone we greatly admire and we’re thrilled to have him on and thrilled you all will get to hear from him.

Josie: Yeah. This is so exciting. About three years ago, Ta-Nehisi published a piece called “The Black Family in the Age of Mass Incarceration.” He published it in The Atlantic and a few months ago, Clint and I went to New York, we sat down with him to talk about that piece among other things and we hope you enjoy it.

[Music]

Josie: Great. So thanks for joining us.

Ta-Nehisi Coates: Thanks for having me.

Josie: Do I have to call you Mr. Coates?

Ta-Nehisi Coates: Absolutely not.

Josie: (Laughs) So let’s start with “The Black Family in the Age of Mass Incarceration.” So much of the work on mass incarceration, when you look at the history of it, either starts kind of in 1980 when the tide starts shifting, um, when mass incarceration as we know it today starts really rearing its head or it takes a look from slavery or Jim Crow, kind of like obviously Michelle Alexander’s The New Jim Crow and a lot of the work that has built on her work. But your piece starts in 1965 with the Moynihan Report, same year as the Voting Rights Act, year after Civil Rights Act, and we want to know why you started there? And what made you start with the Moynihan Report as you look at mass incarceration?

Ta-Nehisi Coates: Well, it was the fiftieth anniversary. I’ll start there. I mean, it was the fiftieth anniversary of the report and um, you know, there was all this rethinking around it and uh, one of the big talking points about Moynihan, the Moynihan Report, um, among conservatives and among the liberals of a certain stripe was that Moynihan had been right about the black family that if you looked at the statistics, you know, everything he said had actually borne out, but liberals and certain stripes of liberals and radicals and leftists etcetera, had ignored Moynihan. And I guess, um, what always beguiled me was how, with a few exceptions, and I’m thinking of William Julius Wilson for instance, with a few exceptions, largely people who said this, and especially people in power, really didn’t have any sort of policy behind that notion. It was mostly just finger waving. And so I thought it would be interesting to, on the one hand, look at the life of the report, look at, you know, where it came out of. And on the other hand, look at what the policy had been throughout most of American history towards African American families. You know, I was, I was interested in this trope that the real problem with the black community is the black family. Well, that’s fine. So how has America addressed black families and not shocking, what you find is quite punitive. And in it’s most, you know, uh, um, modern manifestation as mass incarceration. I also was deeply influenced by this notion, I’m sure you guys know, I’m sure, I know you guys are very familiar with this idea of mass incarceration as a tool not of crime control, but of social control. I thought it was very interesting to look at mass incarceration as actually a policy of social control, as a way of alieving, you know, uh, the demand for labor amongst African Americans as a way of alieving demand on, kind of on the other side for labor in certain white communities, as an actual social program. You know, in fact, you know, Moynihan was pleading, I think sincerely in this sense, you know, for social programs to address the African American community. And my argument was we did get a social program. We got mass incarceration. So yeah, that’s why I did it.

Clint: I’m interested in the Moynihan Report and I’m interested because Moynihan does this with a double move, right? Where on one hand he kind of backhandedly praises black families and then the other breath sort of derides them. Right? And so, you know, he says, quote “That the Negro American has survived at all is extraordinary — a lesser people might simply have died out, as indeed others have…  But it may not be supposed that the Negro American community has not paid a fearful price for the incredible mistreatment to which it has been subjected over the past three centuries.” Right? So that seems to me like a sort of very real acknowledgement of the structural and institutional oppression that black folks have experienced, as he said over the past three centuries. But then on the other hand, he says, quote, “In essence, the Negro community has been forced into a matriarchal structure which, because it is to out of line with the rest of the American society, seriously retards the progress of the group as a whole, and imposes a crushing burden on the Negro male and, in consequence, on a great many Negro women as well.” Right? So then in this next move he also has this deeply pathological and sexist analysis and it’s interesting because I’m trying to hold both of these Moynihans at once.

Ta-Nehisi Coates: What is interesting about the report is he recognizes that and I think maybe a paragraph later says, listen, there’s nothing wrong with a matriarchal, you know, family setup, it’s just not the one that we have in America. I often think like reading that, as I was telling you, it’s like that he’s on on some level dealing, like I’m trying to say is you gotta know who Moynihan was. Right? And how he had a horrible father and how he attributed many of, you know, the struggles that he had, many of his hurts, you know, rightly or wrongly to the absence of a father. So he had that going on.

Clint: So this was deeply personal for him.

Ta-Nehisi Coates: Deeply, deeply, and he wrote about. He said it. He said it, you know, this is not supposition or anything, you know, it’s actually, you know, a part of his sort of self analysis. And so I think when he looked at African American communities, if I’m trying to be as charitable as I can in terms of my interpretation, I think he saw some of what he thought had actually hindered him. You know, he had just this deep belief in fathers. At the same time, I think he also was trying to find some way to (a) get the attention of policy makers to be provocative and (b), you know, and you see this, you know, over liberal discourse, how do I talk to white America about this? Because you start breaking down that language, I mean it’s a really, you know, simple answer, you know, everybody knows that, you know, America at that period of time and even till today discriminates against black people in the job market. It’s just that simple. You know, and in fact discriminates against black men in a particular way because of how society imagined itself  back then. But as you said, I think what he does, not just in a report, but even later, is he kinda implicates black women in it. Like he makes this comment to the press, you know, ‘if I had my way all these black GIs coming back, I would, you know, get them a job and a wife who looked like Diahann Carroll.’ I mean, that’s like, you know, his sort of rhetoric, you know, Negro men must be given jobs even if black women, even if Negro women must be taken out of those jobs, you know, there’s obviously an absence of white people in that analysis as actual actors. And so, um, this, I don’t know if this might be supposition, but knowing how liberal discourse is, I just don’t think that was unintentional. You know?

Josie: Yeah.

Ta-Nehisi Coates:  And what he would say, he would say, the way he would defend himself is ‘listen, I’m actually building off quite a bit of sociology that African Americans have done, E. Franklin Frazier for instance,’ you know, so he was picking up from a particular strain that existed before him.

Josie: It’s interesting because he uses that phrase “tangle of pathology” to describe, I think the quote is, “most Negro youth are in danger of being caught up in the tangle of pathology that affects their world, and probably a majority are so entrapped.” And the way that you put it in your article is that Moynihan equates the black community with a diseased patient and later on in your article you describe how Moynihan kind of intellectually devolves over time to conclude that like maybe these problems are endemic to black people and like starts kind of dabbling in genetic inferiority and all of these, you know, selling Nixon to Nixon basically. And the pathology thing really sticks with me because even when he is writing something that takes, that puts the onus on white America to some extent to make changes and acknowledge the role that they’ve played in what he sees is black pathology, he’s still talking about black pathology. And just how common that is on both sides of the aisle and how we see that now when people talk about the criminal justice system, you know, always black on black crime and all of this it ends up being about black pathology. So I don’t really have a question as much as I want to hear what you have to say about that.

Ta-Nehisi Coates:  That’s correct. (Laughs)

Clint: (Laughing) What do you think about black pathology?

Josie: (Laughing) What do you think?

Ta-Nehisi Coates: No, it’s just like avoidance, right? Like it’s um, I think writing through any sort of discourse around the force of racism in this country and anytime we have a racial discussion is that we have a basic problem of power and there are people who have had power and privilege in this country who do not want to give it up. And so I think many of us are in search for a kind of language that will allow us to avoid that analysis. You know, I mean, what, what, what is the pathology that would not have been healed by some sort of, you know, jobs program, but a kind of, social programs that I think he actually had in mind but neglected to put in his report. And I think, you know, it’s like I can do the analysis, I know the solutions, but I’m going to keep the solutions out. The solutions are in fact the problem, you know what I mean? I think, um, we are looking for ways to talk that avoid what the central feature of this society is when you’re talking about, you know, why black people are, you know, where they are. One of the sad things that came after that report is some of the writing about black people and about black families is actually much worse than the report. You know, like there’s so many people who feel that they’ve taken up, you know, Moynihan’s, you know, name, omit the entire structural analysis and just, you know, go run with the whole family piece of it.

Clint: I was going to ask was, I mean, because in reflection, part of what I wonder is, is how much is Moynihan to blame for the way the Moynihan Report began to exist in the sort of cultural imagination?

Ta-Nehisi Coates:  Right. About fifty percent.

Clint: You think so? (Laughs) We have to quantify it.

Ta-Nehisi Coates:  (Laughing) Fifty percent because he did want to be provocative. He did want to, you know, cause a stir. Um, he said that, I think he was extremely, extremely thin skinned. I think when people got upset about it, how he internalized that anger and you know, put that anger, you know, into his policy when he, not just serving Nixon but just feeding Nixon outright racism.

Clint: Yeah.

Ta-Nehisi Coates:  As far as I’m concerned about fifty percent, but I don’t think, um, it’s a dated document. I don’t think it was totally worthless. I think some of the people who took it up afterwards are a lot, you know, a lot worse, but I think the other thing is just this notion that you can say these sorts of things and when black people get mad, even if they are wrong to be mad, like that that’s somehow out of the ordinary, like black people don’t have the right to their anger, it’s the anger of black people that somehow kept the Moynihan Report from leading to all these great social programs which would have helped. I mean where was the appetite for any of this?

Clint: That’s interesting because what, three years later the Kerner Commission comes out, which has a very different analysis. Right?

Ta-Nehisi Coates:  Yes. Right.

Clint: It’s still kind of talking about how the existence of black anger is very much the fault of the white institutions and the white supremacist institutions that have been set up. While I think, if I’m thinking about it now, like I wonder if it’s the Kerner Commission sees black anger and puts the onus sort of singularly on the system of racial oppression, whereas Moynihan sees the anger, sees the destitution and says ‘yes, there is, and was structural oppression, but’ right? In a way that I feel like the Kerner Commission doesn’t give a ‘but’. It’s like, ‘nah, this is why’ whereas Moynihan was like, yeah, I see what you’re-

Ta-Nehisi Coates:  Yeah it is. It’s a kind of a two step move. As you said Moynihan wants to do. ‘Yes, there is structural oppression. It’s created this thing and this thing is a problem also.’ I mean, I guess this goes back to like, you know, much of the critique I gave throughout the, you know, Obama’s presidency, it’s Barack Obama’s analysis, you know, uh, and it became basically the dominant analysis for liberals.

Clint: I mean that’s even an analysis that you combat. I mean, I remember you were back and forth with Jonathan Chait, right? I mean that’s the sort of-

Ta-Nehisi Coates:  That’s his analysis too.

Clint:  Exactly, right? ‘There was this thing and we recognize how horrific and egregious this thing was, but it also created this other thing that it now exists independent of thing A.’

Josie: He’s basically just saying ‘you guys are inherently deficient, but it’s not your fault.’

Clint: Right.

Josie: Just explicitly racist, you know, I mean-

Clint: But not seen as such by a lot of people. Right?

Ta-Nehisi Coates: I wouldn’t say ‘inherently,’ they will say ‘culturally.’ ‘It’s not your fault that you’re culturally deficient.’

Josie: But in America, what’s the actual differentiation between those in practice?

Ta-Nehisi Coates:  There isn’t one. I mean that’s the rhetorical.

Josie: Like whether or not you’re telling me it’s genetic or it’s just a product of being black in America. I can’t escape either of those two things. You know?

Ta-Nehisi Coates:  I mean the other thing it just fails on its own merits. I mean it’s just like, you know, and this was always my retort to that because on some level it sounds logical, it sounds like it’s just this kind of thought test experiment. You subject people to oppression, bad cultural habits develop as a result of that. And then even after the oppression leaves some of those cultural habits, have a life of their own. Oh, okay. Well, you know, maybe some of us who came up a certain way can almost see some, I’m talking about myself, can see some of that in our own lives. And when you start talking about this as some sort of explanatory force, well what is the most vicious ongoing oppression that black people in this country have known? 250 years of enslavement where folks didn’t even have a right to marry. And yet when you look at the historical record, what did black people do as soon as they were let out of slavery? People couldn’t stop them from running and trying to, you know-

Clint: Find family members.

Ta-Nehisi Coates:  Find family members. And so if anything, what we, where was the cultural pathology that came out of slavery? You know what I mean? And Moynihan would say, ‘well, you know, it was this matriarchal system dah dah dah dah dah.’ But I just, I mean, when you look at the actual historical record, this has no, I think one way to think about this is that there has always been, racism in America is many ways gendered. Okay. So if you are a black dude you didn’t have to worry about, you know, what somebody might do to you while you were working as a domestic, you know, in somebody else’s home, which is, you know, what large numbers of African American women in the south had to do. Right? By the same token, lynching was largely, though not totally, but largely perpetrated against black men, so they will use particular areas I think, but he just didn’t have the nuance to think about that or recognize that or you know, any of that. You know? And sometimes, I guess I was trying to be sympathetic to him when I first started writing the piece, it was like okay, maybe it’s just that it was dated, but people knew he was wrong at the time. At the time it came off as wrong. You know?

Clint: I want to pull back a bit and kind of just get to the origins of this piece. Right? So you have written extensively over the years about a range of topics. Not least of all housing segregation and the impact that it has on the sort of contemporary state of US and racial inequality, obviously most deeply examined in “The Case for Reparations.” Um, and, and you’ve examined a lot of things but, but there are certain things like “The Case for Reparations” that you a lot of very specific in depth treatment to. And I’m curious, what was the moment when you decided that you were going to spend, because you spent years on this piece, right?

Ta-Nehisi Coates:  About a year.

Clint: Yeah. And so what is the moment where you said, this is what I want to write about and how do you think about it in conversation with some of the other stuff you’ve been writing and thinking about?

Ta-Nehisi Coates:  I felt like I didn’t understand enough. It was just that simple. I mean I think I had like a very surface level understanding of mass incarceration. I heard people say its social control before, but I didn’t like if you asked me and I sensed that they might be right, but if you asked me to make that argument, I couldn’t really make the argument. I didn’t understand what that meant. I didn’t understand what the scale of it was historically. I did not understand what the scale of it was geographically, you know, when you, when you talk about the world, I just, most of my writing starts with a very selfish desire to understand on my own level, you know, my wife’s a med student and a lot of times I’ll say to her when she’s studying, the way I try to, can you explain it to me? You know what I mean? Like it helps you to have to actually explain something. If I can write it clearly, I have it.

Clint: It’s the same thing with teaching right? I mean it’s the same thing when I’m asked to teach about a subject it’s much different than, it demands a different level of examination.

Ta-Nehisi Coates:  Yes.

Clint: Then if you were to sort of passively-

Ta-Nehisi Coates:  Yes, yes, yes. I mean you got to be attuned to the details and uh, so for me this was just like a long project and you know, I had just a number of people, I was very fortunate, because when this piece, when I started researching this piece at that point, some other pieces had already come out and so it was, there were a number of scholars, you know, I’m thinking about like Bruce Western and Devah Pager, Matt Desmond and all of these guys who were willing to actually help me, you know what I mean? Understand the subject and provide me with research and time and talk back and forth. And it was such a good process.

Clint: Which is, basically were like the, the, you became a student at the Harvard Sociology Department.

Ta-Nehisi Coates: I was trying to, I was working on it, I was working on it man. That’s like my dream though, you know what I mean? It was, and it was a good, you know, we had, you know, we had these dinners and you know, um, it was, I felt blessed. Like for me, the actual article, I mean that’s the thing that’s for the public, but all the other privileges, you know, just being able to sit around and listen to smart people talk and you know, do whatever. I mean, I’ve said this before, but it’s actually one of the problems with whatever accolades I’ve received at this point because people are actually less willing to do that now. You know, they want you to talk now. You know what I mean? They don’t want to, you know, sit back and talk.

Josie: Except for me and Clint. (Laughs)

Ta-Nehisi Coates:  (Chuckles) Right. I should be interviewing y’all. Next time, when I get my own podcast.

Clint: You mentioned the, the geographic piece and like I remember when you were on tour for this, something that you kept saying, well you weren’t on tour, that’s the, I guess the secondary point, you weren’t necessarily on tour for this, but when Between the World and Me came out, you weren’t really, I almost felt like I saw you talking more about this piece than you were about the book.

Ta-Nehisi Coates:  I was trying to.

Clint: I mean at your talks you were talking about Prince and, and, and that specific sort of anecdotal story, but you went, I remember, I think you were on Seth Meyers or Jimmy Fallon or something, and you were talking about like Russia and China and talking about how, you know, Vladimir Putin locks up 450 people per 100,000 compared to the US, which is about 700 per 100,000.

Ta-Nehisi Coates:  Obscene.

Clint: And China has about four times America’s population but American jails and prisons hold half a million more people-

Ta-Nehisi Coates:  Its obscene.

Clint: In a place that has four times more people than us. Its things that, you know, even for me, someone who thinks about this a lot, uh, you know, intuitively it’s like we have the highest prison population in the world and you hear that and it can almost lose its emotional vigor, right?

Ta-Nehisi Coates:  That’s right. That’s right.

Clint: But when you, when you consider especially everything we know about Russia now, right? You know, this was even before that, but, but I mean, we incarcerate almost twice as many people, to some extent, you know, seventy five percent more people-

Josie: Per capita.

Clint: Than an authoritarian regime that assassinates journalists and activists. Yeah.

Ta-Nehisi Coates:  Yeah. You know, one of the things I think that really exhibits this is this paper by this guy, Chris Muller, and he looked at the incarceration ratio in the north in the era before the civil rights movement and what he found was that ratio was actually exactly the same as it is today. Before the civil rights movement it was actually lower in the south, but the south ratio actually rose post civil rights movement and what it pointed to was the point that this was actually a tool of social control. That in fact, in the Jim Crow era, there was no need in the south for prisons to be a tool of social control because you had segregation, you had Jim Crow. But once that evaporated, they adopted the tool of the north, which was incarceration. Again, like it’s one thing for somebody to tell you rhetorically that it is a tool. But when you start seeing the numbers, when you start looking at the rhetoric that was around. When you start looking at the literal like, you know, you hear, you know, on one level, Michelle Alexander’s saying The New Jim Crow. But then you start looking at the quotes and how when people, you know, voice their concerns about integration, they say crime. They say crime. When you look at, you know, pro slavery stuff, they’re always saying crime over and over again. They’re justifying lynching with crime over and over again. And you realize that this is old, that considering black people as criminals that’s actually in our DNA. It did not start, you know, with Nixon. It did not start with Johnson. It did not start with Moynihan. That it was already, it was actually functionally already there.

Clint: Yeah.

Ta-Nehisi Coates:  You know, um-

Clint: And that’s what Khalil Mohammad talks about so much.

Ta-Nehisi Coates:  Oh yes, very much. Yeah, yeah, yeah.

Josie: I was just reading an article about a DA in Louisiana who, he has this really interesting quote where he says, you know, ‘everybody says that Louisiana has the highest prison population in the nation, the nation has the highest prison population in the world and they think that that’s because like Louisiana is doing something wrong and they are not actually taking into account that maybe people are’ like basically he says ‘like they can’t keep it together, they can’t, they can’t stop committing crimes’ that you know and to believe that you have to believe that people in Louisiana are more prone to criminality than-

Ta-Nehisi Coates:  I’m just asking the question, and why would that be right?

Josie: Right.

Ta-Nehisi Coates:  What, what, what’s, what’s particular here that would make that true?

Josie: The thing that’s interesting about Moynihan or looking at, you know, super predators, Bill Clinton’s language or Obama’s languages, there is a thought process behind those decisions or those people on what they think that doesn’t always exist in the local players that kind of carry these policies out. Right? And the reality is that probably nobody has asked the follow up question to this guy. What I always am left thinking about is how to grapple with a system where it’s not being carried out by one guy or one Congress or even one law enforcement agency. It’s like being carried out by so many people day in and day out in so many courtrooms and in so many backrooms.

Ta-Nehisi Coates:  That’s the limit of facts right there, what you’re talking about there. Like I said, actually the limit of almost like quantitative knowledge itself, like the limits of  journalism, the limits of scholarship, because I think what you’re describing is a set of assumptions that are so bone deep. You don’t need like this guy.

Josie: Right.

Ta-Nehisi Coates:  You know what I mean? Like you know, this notion, like if I could just re educate him, if I just give him a set of facts, if I can give, you know, but I think there’s, I mean this is our problem. This is really, really our problem. I mean, I don’t know that we’ve found a way quite to talk about this, but when people say this is a racist country, it’s a correct statement and you see it in what you just said right there. Like it’s almost as though like the default setting is to do this. You just take your hands off the controls. You know what I mean? You don’t need anybody, you know, rigging stuff or moving things over here or you know, pulling levers. Certainly people do that and make it worse. But if you took your hands off the controls, the thing in and of itself, it will go, it will necessarily veer in a racist direction, you know?

Clint: And so I’m thinking about something you had mentioned and that’s kind of sort of silently moving beneath the surface of this entire conversation is, is this question of political culpability, right? So you have, you know, folk like Naomi Murakawa who writes, you know, an amazing book, The First Civil Right, which largely implicates liberals and Democrats in the creation or the expansion of the system of mass incarceration. Um, folks like Joe Biden, folks like Ted Kennedy, uh, which run counter to-

Ta-Nehisi Coates: Biden. Those Biden quotes, my God they are the worst.

Clint: Right. And you know-

Ta-Nehisi Coates:  Ooooo. They think Clinton, sorry excuse me, they think Clinton was bad with that super predator. Biden was like, I mean have forgotten like he’s cozy uncle Joe now.

Clint: That’s why I’m a bit confused when people will put him as like the progressive champion who’s going to lead us from this moment.

Ta-Nehisi Coates:  Man, this dude. If there’s one politician who’s still in it, who you would lay, you know, like its him.

Clint: I mean, this goes to it, right? So this is. So there’s Naomi Murakawa and folks like James Forman have written about that. And then on the other end you have Michelle Alexander and a sort of larger school of thought that I think is more, occupies more of the sort of collective understanding and imagination of the American public, which is like you had these bad, like Nixon and Reagan and the war on drugs and they came in and put crack in black communities and then it went from 300,000 to 2.2 million and that’s how mass incarceration happened. So I’m curious, that’s all to say, I’m curious how you think about the idea of political culpability in this? Which political party to the extent that they can be disentangled, if they can at all, is responsible for where we are now?

Ta-Nehisi Coates: I don’t know. It’s tough as you just heard I mean there are certain individual actors who I think were really, really bad. I think Biden is just glee. It’s just so distasteful. Like is this, you know, I don’t know, you guys probably have the quote in front of you, but when you start talking about the death penalty, about how we’re tougher, you know what I mean? Then you know, Republicans, I mean, it’s the glee with which he did it. I think he’s just really, really, really bad, you know, and there are people like that, you know, um-

Clint: And you have no sympathy for the argument that it was, you know, ‘94, for example, was a moment in which-

Ta-Nehisi Coates:  I have sympathy for black people in those communities.

Clint: Okay.

Ta-Nehisi Coates:  I have deep, deep sympathy as I, you know, grew up in, in, in, you know, in a community like that deep deep sympathy for people who were afraid and did not have the choice between the carrot and the stick. They just had to stick.

Clint: Right.

Ta-Nehisi Coates:  That was all they were  offered, you know what I mean? And I think like that’s the background of, you know, because people will say, I’m not, like people they say, well, you know, black people backed this stuff. I mean, what, what choice, you know what I mean? That to me, I mean, I think it’s a story that needs to be told. Let me be really, really clear about this. You know, I love James’ book, I just want to be, you know, straight about that.

Clint: And James is clear that, that black folks were asking for a whole bunch of stuff.

Ta-Nehisi Coates:  Yes, exactly. I just don’t want this to come off as some sorta like shade or something like that.

Josie: No, no.

Ta-Nehisi Coates:  You know what I mean? I’m just wanting to be, that’s why I’m saying that. So I, I have great, great sympathy for that. You know what I mean? When those are your choices. I don’t have sympathy for the Bidens. I don’t have sympathy for the Clintons. I just don’t, you know, I think, you know, those folks made morally reprehensible choices, you know, to the extent that I don’t know how you have, you know, and, and I guess this is like, like I was getting into, I don’t know how you have any sort of trust in politics now. Um, but I guess you shouldn’t trust anybody.

Clint: So you see in your mind there’s fundamental difference between Jesse Jackson saying, you know, ‘when I hear footsteps behind me, I’m so upset that when I turn around and see a white person, I feel relieved,’ which is a pretty remarkable quote to have from the leading civil rights activists of that age. But for you, that feels different than, than Biden who would argue, or a Clinton, who did argue throughout the campaign, she and her husband, that they were responding to what Jesse Jackson was saying.

Ta-Nehisi Coates:  No they weren’t. They were weaponizing what Jesse Jackson said. Jesse Jackson is expressing something, you know, I mean, who is, you know, who grew up in these communities. Do you understand? Its very, very different. Listen, I have my list of frustrations that I have, you know what I mean? Me and my wife used to joke, you know, when we lived up in Harlem, you know, you wake up in the morning, you know what I mean, go to work and you see folks on the corner and you come home and you see the same negroes on the corner. You’re upset about that. Right? As an individual, I would never try to substitute that and claim that that’s analysis though, that’s not analysis. You know what I mean? It can be cathartic for us to say, you know, the sort of things that we say, you know, amongst ourselves, as any other group, you know, would.

Clint: Right.

Ta-Nehisi Coates:  But that’s not analysis and I think, you know, what happened was the kind of cathartic feeling. I mean if you listen to like Obama when he’s on this, you know, respectability, when he does his father. Okay. Yeah. I mean you can nod your head and feel some of that. It does speak to some sort of thing that you’ve may feel here. It does not speak to anything that someone who is the president of the United States, carrying all the weight of what this country has done to black people, what his policies, I tried to outline in that article, towards the black family has been and what its policies should be going forward. None of that has anything to do with those frustrations or catharsis. You know, it has nothing to do with that. I’m sure when black folks were enslaved and in chains, you know, folks did stuff that, you know, they didn’t like that made them upset. You know what I mean? I think people just they confuse that kind of emotional catharsis with policy, you know what I mean? And some of those same people will then go and lecture you about other emotional catharsis, you know, and how bad that is. But that’s another story. I mean, I understand it. I wonder if Jesse would have said that if he had known what the consequences of it were. You know what I mean? I’m, I’m not condemning the feeling I get it, but, uh, I think these folks are not to be trusted. More than ever I think that.

Josie: Yeah, it is interesting because it’s also to me strikes me as generational and that like I think about when I was in high school, there was a shooting in Atlanta of a guy who shot a judge in the courthouse, it was like a siege and it took days for him to be found. And when he was found, he gave an entire, you know, he obviously had a lot of issues, but he also talked very frankly about like what it meant to be a black man in prison. When he was sort of going back, he felt like he couldn’t go back there and when his defense attorneys, who were from out of state, came to Atlanta to try to defend him in court and talk to the black community about what he had done, there was not a lot of sympathy for what he was saying. Obviously not for what he did, but also for what he was saying and I think about my own family and my parents and how like they also have the instinct of, if you do wrong, you need to pay these consequences. And what that, I find this to be a very interesting conversation right now because of who’s in the White House and how he’s using state action. Right? And what it means for people who grew up thinking that the state does stuff like the Civil Rights Act to trust the state enough to decide who should be punished. And I think it presents kind of a fundamental question that we’re kind of going back and forth on, I think on, on this podcast more generally is like how can America have prisons? Right? How can America lock people up? How can America take anybody’s sort of bodily autonomy and I’m not, I’m actually asking, it’s not rhetorical because we haven’t proven ourselves able to do that in a way that is fair or you know, not racially, not racist. I mean I have like, I have a, we all have kids, right? Like I, I, if someone hurts my kid, I want them to be punished. Like I understand that instinct of that there may be people who you wouldn’t want on the street, but I, that diverges for me, when we think about who’s actually taking them off the street and how do we grapple with the fact that even in times of high crime, right? Do we really want these people deciding who goes in and  how they’re punished and for how long and you know, and where they’re held and like, what do we do with that? I don’t know. I don’t think there’s an answer, but to me that seems like fundamental.

Ta-Nehisi Coates:  Well, the problem that like on some deep level in terms of administering social service and I’m going to go ahead and include law enforcement in that, the United States government has a legitimacy problem. A basic, like that’s, you know, what it seems to be. I mean we trust it because it’s the only thing you have.

Josie: Right.

Ta-Nehisi Coates:  And in some places people literally don’t trust it, you know what I mean? They say ‘no, okay, I’m gonna deal with it myself,’ you know what I mean? You know, and they call that stop snitching, but it’s like, no, I’m, I, I would much prefer to deal with this quote unquote “gang” on the corner, you know, where you know, maybe my cousin, you know, used to be a part of or somebodies aunt, son, you know, I guess that’d be my cousin too, would be part of, but I have some sort of ties, you know what I mean, to this institution that just sort of comes into the neighborhood. I have no idea what they’re going to do and then leaves. There’s no sort of accountability at all.

Clint: And that speaks to the phenomenon that Jill Leovy talks about in her book, Ghettoside right? Where not only do you not trust that institution to do its job, it’s that that institution harasses you and it’s in some way over polices you while at the very same time under policing you because they’re not actually solving any of the crimes in your community.

Ta-Nehisi Coates:  Yeah, yeah, yeah.

Clint: Right? So. So they come, you know, if they come driving through Baltimore, they come in and like rough you up and throw you against the wall and arrest you for doing something that ostensibly is not criminal, but at the same time there’s like fifty murders over the past couple months that have gone unsolved, right?

Ta-Nehisi Coates:  Right. Yeah.

Clint: And so, so if they’re not going to actually demonstrate over the course of generations that they are capable of solving the most heinous of crimes, then it seems natural in some way that someone would then decide for themselves, ‘okay, well if they’re not going to do it, somebody is going to do it, it might as well be me.’

Ta-Nehisi Coates:  Right, right, right. Not only will they harass you the harassment will not actually lead to the resolution of the problem. Like it’s actually on two levels, you know what I mean? You can do the math and say, okay, I got to deal with this, but they go and get this dude. No, you’re gonna have to deal with it and they’re not going to get the dude either.

Josie: In part because of the harassment. Like, in spite of, and because of.

Ta-Nehisi Coates:  Right, right, right, right, right. Exactly. Exactly.

Josie: So I was re reading Between the World and Me and there was this, um-

Ta-Nehisi Coates:  Oh I’m so flattered. (Chuckles)

Josie: There’s this quote, because I don’t hear, I don’t talk to you enough, so there’s this quote that you said, which is “According to this theory ‘safety’ was a higher value than justice, perhaps the highest value.” And I’ve been thinking about that a lot because fear is weaponized so easily in American politics, right? Fear is weaponized so easily in communities where there isn’t any crime, there isn’t much crime at least. You know, there are places in America where not only is crime lower than it’s really ever been, it’s more geographically isolated than it’s ever been. And so there are places in America you could leave your door open every single day and you never have to worry, you know, you could leave your kid on the corner.

Ta-Nehisi Coates:  Right. It’s not technically true that the city of Baltimore is dangerous, the whole city.

Josie: Right.

Ta-Nehisi Coates: There’s no, it’s not a true statement completely.

Josie: Right. You know, you hear people talking about Chicago, you go to Chicago, you’re walking around most of Chicago and you’re like, you know, it’s beautiful. There’s not, you know, this, this idea that in every, in these places you have to be scared for your life by being in the city limits is not accurate. But it goes back to this idea of safety, right? Which is and Clint and I were having this conversation recently about like if you want, if you, if you don’t want any crime, you can live in North Korea, you will have like no crime. But how do we think about re imagining safety to not only be civilian on civilian violence, but you know, what, what is state violence mean when we talk about safety?

Ta-Nehisi Coates: Right. But I think that goes back to the question of social control. Are you even actually talking about safety? You know, are you talking about um, something else? When I was a kid the story I always think about is when I was a kid, there was a boy who was kind of crazy. That was how we thought of him, he was crazy. His name was Chuckie and he was in our neighborhood and he was just a sort of dude who like if he was playing basketball and somebody fouled him he wanted to fight. Just really, really aggressive dude. And um, one time he got into it out in front of my house with another boy and it was like an area for construction where people had been doing some work and he pulled a metal stake out of the ground, sharp and he started swinging it and he’s swinging at the boy and my dad came outside and basically, you know, told me to go home dah dah dah. And that was the end of that. And I thought about how if my dad was a police officer, he just would’ve shot him and that would have been fine. But that’s okay. Like they are standards of violence. But had my dad shot Chuckie the neighborhood would have been rightly in an uproar. What are you doing? You had to shoot him? But we accept a level of violence from the state mostly, though not totally, but mostly directed at black people. We’re okay with that in a way that, you know, we just within our own neighborhoods, at least within black neighborhoods, we would not be, you know. Now what’s interesting, I don’t know, like there’s some sort of debate about where the borders of the state actually end, right? Like when you see like with ‘stand your ground’ and that sort of thing and people think, you know, it’s okay to, you know, do that. I don’t know how concerned about how really concerned people are about safety. I’m not sure. I wonder about that when they cite it, you know, for instance, safety when they knocked down the projects in Chicago, was safety really what they were dealing with? Was that really actually the issue? I’m not sure. Another reason not to be sure about that is, um, the way in which the effectiveness of political rhetoric around crime remains, no matter what is actually happening in terms of actual crime, but a way the rhetoric remains around police shootings, no matter how low the actual rate of and what I mean is police officers being shot, no matter how low the actual rate of police shootings is, you know, people are still that we live in this, you know, completely unsafe, you know, society.

Clint: And you talked about this in the, uh, in the piece, you cited Bruce Western, who was a sociologist at Harvard and is now at Columbia running their Justice Lab and, and he talks about how there was a 66 percent increase in the state prison population between 1993 and 2001. And that reduced the rate of crime by at most two to five percent at a cost of $53 billion to taxpayers. Right? So this, this idea that-

Ta-Nehisi Coates: Maybe they’re paying for something else.

Clint: You know, and exactly. And I think that the sort of pretense that we sort of have collectively bought into that, I think folks who care about this work are sort of trying to push the public to unlearn or decouple their sort of false understanding between the relationship between crime, violent crime and the amount of people in prisons is that we don’t actually have data that firmly states that there is a strong relationship between the amount of people you put in prison and the amount of crime, the amount that crime goes down.

Josie: But even if we did, to me, it strikes me that the people who make the policies can imagine that if there were two to five percent more crime, that would be them. Like they, they would be in that two to five percent. They’re saved, but they would never be in the 63 percent increase in prison. And that, you know, if you live in a free society, you take on some risk, right? What that optimal risk is, it changes when-

Ta-Nehisi Coates:  Also we accept that in other areas. For instance, the argument is being made successfully right now that school shootings, that’s part of the risk of the Second Amendment.

Josie: Right.

Ta-Nehisi Coates:  You risk that. That’s just part of it.

Clint: Is that even an argument that’s being made?

Ta-Nehisi Coates: Bill O’Reilly made it.

Clint: Did he say that? Explicitly that’s just the risk of?

Ta-Nehisi Coates: Literally he said that. He said ‘you live in a free society,’ after one of these shootings he said, ‘it’s one of the risks of living in a free society.’

Josie: But it is interesting, the Second Amendment thing is interesting because you, you, if you ask the same tough on crime, people, they can talk to you about statistics, right? They can tell you that like having a gun in the house, the chances of you having a gun in the house and shooting a family member are almost nil. You know, despite the stories you might hear, relative to the amount of guns that are out there, there are not so many actual gun violence that you would imagine. But they can’t seem to do that when you talk about black people, you know, the idea that like there are a lot of black people and the amount of crime that’s being committed by black people is still so small compared to how it’s discussed. Sort of in like a bigger popular culture.

Clint: I’m interested, specifically in this particular political moment about folks, you know, on social media, out in the world, what have you, will present a very sort of anti prison platform, right? Like, ‘I’m against prison.’ ‘We should abolish prison.’ ‘I read Angela Davis, prison is obsolete.’ ‘Let’s get rid of it.’ ‘Prison industrial complex is holistically horrific.’ Until someone they don’t like, whether it be in the Trump administration or somewhere else commits a crime and it’s fascinating because then I see those same people who are like, ‘lock them up, put them in jail, put them in prison, Paul Manafort needs to be.’ And I’m, and I’m in and that’s not even said in like a sanctimonious-

Ta-Nehisi Coates: We all think we should abolish prisons.

Clint: So this was like a sort of long way of getting to, to ask you that, um, I’m interested in the idea and we want to, you know, at some point on the podcast have on somebody to talk about this at length, but it’s just interesting because people present themselves as prison abolitionists and then that becomes inconsistent when they want Donald Trump to go to jail or they want Donald Trump to go to prison. And I am empathetic to where and I’m sympathetic to how difficult it is because it’s, it’s hard. Like it is hard to escape this, like the, the mindset that we’ve been inundated with around punishment. Right? And especially when it’s someone who we see as really deserving of punishment.

Josie: I mean it’s the same thing that you see with like DA elections, right? That Anita Alvarez in Chicago treated black people and brown people and poor people in Chicago like horribly for a decade and it wasn’t until she didn’t prosecute a cop for a shooting, for shooting Laquan McDonald that people were as outraged. Now people have been organizing around Anita Alvarez for, you know, black communities have been organized around her for awhile. And I’m not saying that we shouldn’t prosecute state actors when they act, you know, when they abuse authority in that way, but I’m only saying that like what actually galvanizes people is leniency in a way that is hard to, to reconcile with the amount of people who seem at least invested in the idea of mass incarceration and the harms it’s caused. You know, and again, to your point about party, that’s, that’s a lot of, that’s the left.

Ta-Nehisi Coates: Yeah. I mean, if you’d asked me this when I wrote this piece, I probably would have said I don’t think prisons should be abolished. I would have told you that there are people who do horrible things, who probably should be removed from society. But the second order question or the second question after that of course is, um, what percentage of those people actually, you know, you can’t take the most extreme case and then make the argument for the entire system, especially given the size of mass incarceration. Well, I always say now and when I think back on this piece and think about where I was before, you know, I, I just, you know, it’s a long way of answering this and I know we’ve talked about this before, I was one of these people who read Michelle Alexander and The New Jim Crow and was like, this feels a little over blown, not really new Jim crow dah dah dah and over the course of writing this and researching this I guess more than writing it I was like, yes it is. It’s totally, totally correct and I am, well, I would not say we should abolish prisons mostly because it’s not a point that I can really defend because I haven’t done the research. I don’t know dah dah dah dah. I am more open than I have ever been to hearing that argument. I am extremely open. I am convinced that it is probably at the very least contains more truth, you know, then the current, you know, sort of arguments we have behind our policy right now.

Josie: Well, you know, I think there’s this other thing which is to say nobody should be in prisons as they exist right now. Nobody should go through the system as it exists right now. It is fundamentally, it is fundamentally unjust, it is fundamentally unfair. Just by entering the system, you can be Ted Bundy and enter the system and I’m saying this is a school of thought necessarily, not again, like you guys, I’m teasing this out-

Ta-Nehisi Coates: The system right now is not, would not be fair to Ted Bundy.

Josie: It’s just not fair. So you can’t, it can’t play fair sometimes and play unfair other times because just inherently it’s diseased, right? It’s not the, it’s the, it’s the, the, the system is diseased and so how do you?

Ta-Nehisi Coates: the worst people deserve fairness and this is blanketly an unfair system.

Josie: Right because who decides who the worst people are? I mean we look at this right now with Donald Trump saying like, we should just kick people out if they’re illegal with no due process and no judge, that means that like they can come pick up any of us and kick us out. The system is, it has to serve, you know, the guilty in order to be able to serve the innocent.

Ta-Nehisi Coates: Right.

Josie: And I think that if, and again, I don’t necessarily know what this looks like, but there are countries where people are in prison and it is a much more humane system and it doesn’t mean that they love their lives. You know, I’ve like read Ted Bundy’s Wikipedia page and I know I don’t want him on my block. Right?

Ta-Nehisi Coates: Right.

Josie: I like, as a woman, you know, I’m way more likely to be at risk of violence from someone I’m, I know someone I’m close to than men are, you know, most women are killed by their partners. Like you, you want some, you want some sort of accountability. But can that accountability, I think even beyond can it come, can it exist as it does right now? Can it come from where it does right now? Can I come from, you know, a DoJ run by Jeff Sessions?

Ta-Nehisi Coates: Can I raise something we talked about offline that I’ve been thinking about? I think about this with the NFL all the time and how they punish men who beat their, you know, that’s what their employees are, you know, men who beat their partners or assault their partners in any sort of way and on some level like everything, you know, you’re saying is exactly right. And yet it’s like I’m trusting the NFL to do this?

Josie: Right.

Ta-Nehisi Coates: Like the NFL is going to? Like, like so who I think like what, what goes in and I only raise that to say this is a basic problem of legitimacy. I mean, who, who would you trust? You know what I mean? To make that determination? And I guess the other piece of that is for the majority of people living in this country, as we sit right now in 2018, there is no problem of legitimacy. That’s why they call the police on somebody that’s mowing the lawn.

Clint: I mean, if anything we’re in a political moment where like the legitimacy is being reinforced, right? I mean they see, and this is a point that I try to make people all the time-

Ta-Nehisi Coates: I mean Obama was illegitimate to them, literally, literally illegitimate.

Clint: But I mean even even notions of, you know, people that I tend to be around see what’s happening at the border, for example, and feel deeply outraged, feel deeply like this is a moral, morally horrendous thing that’s happening. There are a not insignificant amount of people who see that as the administration, the justice system, ICE, border control or whomever doing exactly what they should be doing. Right? Like when they imagine what justice looks like, that is justice to them and I, and, and it’s interesting like how do you combat or speak to or push back against those who, who fundamentally, and maybe this is a broader question that we, as we sort of move toward the tail end of this conversation, but in your writing about this, who do you, not even necessarily think of as your audience, because I think you’ve been clear that in many ways you are your audience, like you do this as a personal endeavor, um, but when you think about the fact that, like the things that would create empathy and outrage to some are the very things that would be like, ‘oh, well, you’re telling me about how good a job the system is doing, what it’s supposed to,’ how, how, who, how do you speak to or right into those very different audiences or places?

Ta-Nehisi Coates:  I don’t think you can. I mean obviously there will be and I’ve met people like just an experience like these occasional folks who have some sort of political change in mind, but I think what  you are writing against, it’s not facts you are writing against literally centuries of mythology. How do you beat that? It’s like walking into somebody’s church right after the pastor, you know, just, you know, did his thing and standing up in the pulpit and saying ‘there is no god.’ And saying with these graphs and charts, ‘I can demonstrate to you that there is no god,’ you can’t, you can’t. Um, and I don’t know why we think we can. What has to happen is that they just, they have to be, you know, and I know like, uh, you know, it’s not something people really see and I get it, but I think that will ultimately be Obama’s greatest importance actually, I think it’s myth. I think there is a section of children who were born into the world while he was president and their first image of power and legitimacy will be somebody who was African American. And I think that, among other things, you know what I mean is the gradual chipping away. And that’s why these statues are important. People are like ‘oh it’s just symbols.’ Bullshit. Bullshit. Why do you think people support the policy? It’s all tied, until people have different fundamental assumptions about their country, who has the right to be a citizen in a country, who has a right to enjoy the full suite of privileges, all of this is, you know, and I don’t mean to be dismissive, but in many ways it’s choreography. It’s not the actual thing. I can articulate a series of responses to make the mythical beliefs that I have respectable. But the mythical beliefs they are what they are and they actually aren’t that hard to get to. I mean, you know, we’ve seen enough data on what people who voted for Donald Trump think about who should be a citizen and who should be, who should have access to the suite of rights that come with that. Hillary Clinton, you know what I mean? Who had all sorts of problems who I had all sorts of issues got crucified for that deplorables comment. It was correct. It was empirically correct. She and herself ran up against the myth of America. You know what I mean? Which is that most voters are good, that most people are good, that if they do the wrong thing, they actually have somehow been diluted. They, you know what I mean? They cannot be, you know, Lord help them, they don’t know what they doing. No they know exactly what they do. You’re right. You know what I mean? ICE is doing what they want ICE to do. It’s not a mistake that Trump was elected and, you know, is punishing, you know, specific groups. It’s not a mistake, you know what I mean?

Josie: He literally said he was going to do that.

Ta-Nehisi Coates:  It’s not, I mean, he’s doing what he said he was gonna do and that, you know, I mean is an interest. It’s an actual interest to agree with people in this country is not a, you know, a jobs program, you know what I mean, but there’s always an element of, of royalty to the presidency. It makes them feel represented. You know what I mean? It makes them feel a certain way about their country and they want a president, you know, who does that. So I think until we get past those sorts of assumed ideas we’ll always have trouble coming to policy.

Josie: Um, in this article, you talk about people’s specific stories and interview specific people and almost all of them, if not all of them, are serving time or were serving time for a violent crime.

Ta-Nehisi Coates:  It is a deliberate choice.

Josie: Yeah. And I wanted to ask about that deliberate choice because that is not the narrative that we usually hear around mass incarceration.

Ta-Nehisi Coates: Yeah. Um, I think I was going towards some of the questions that you just asked about, you know, the worst people and that sort of thing. Um, there is a rhetorical move that a lot of people in government or court, I guess not just in government, people who want reform, I mean, and trying to get, you know, sort of the question that Clint was pointing to, you know, how you talk to people? Okay, let me show you the person who I think, let me find you the Rosa Parks, not the Claudette Colvin, you know, let me show you the person who I think on your terms will be most sympathetic to you. And that is the kid who was on the corner slinging a dime bag of weed and somehow got thirty years in prison.

Josie: Right.

Ta-Nehisi Coates:  You know what I mean? But you know, as, as, as both of you know, we look at the, you know, the prison population in the states and we’re really going to talk about decarceration or even abolition. That’s not actually where the problem is. You know what I mean? And I wanted to make the argument that even on the question, because that’s one of the freeing things about being a journalist. I’m not a senator, I’m not, you know, I’m not trying to, you know what I mean? I have the luxury of going to the, you know, the harsh truth of it. Even the people who we consider quote unquote, you know, “violent” criminals we’re way harsher than other countries are like for the same crime, the same crime. And so, you know, it really gets the question of why is and even harsh on our own terms. For instance, harsher now than we were thirty years ago. Harsher than we’ve been for most of American history. Why? Why is that? Why did we suddenly develop a new and different view of evil? You know, how, how can it be that you were at, you know, crime rates that mirror, you know, the 1950s in many of our cities and yet, if what we say we’re concerned about is safety or crime, you know, we, we punish, you know, in, in, in such a way as though, you know, we’re in the midst of one of the greatest crime waves that ever happened, you know? And, and that was the other piece, you know, even the justification that while it was a crime wave that began in the, you know, the, the, you know, late sixties and you know, the one in eighties, nineties blah blah blah, you know, these were actually global phenomenons and America was unique in how it dealt with it. So there’s this constant uniqueness of like you can do the, you can separate out all of these other things that people using. One of the things that you know frequently said, ‘well yeah, you guys are talking about these nonviolent offenders, but actually the majority of people in the state population are very, very violent offenders.’ Okay, well let’s talk about them. That’s have that conversation. You know, I think like one of the things we do is we duck arguments and you know, just as a journalist I was really trained to go to the core opposition argument, you know what I mean? To take it, you know, at its most sympathetic fashion and then slice it to ribbons. (Laughs)

Josie: Right, right. It’s also interesting just thinking about what it, what is the violent, what does it mean to be a violent criminal?

Ta-Nehisi Coates:  Yes, yes, yes, yes.

Josie: How many kids are in juvenile for school yard fights?

Ta-Nehisi Coates:  Yeah. What was the article we were talking about where you were present when something else happened and you might not have done anything?

Josie: Felony murder. Yeah.

Ta-Nehisi Coates: Yeah.

Josie: Yeah exactly.

Clint: So as we wrap up, I think, you know, so many of the folks listening and, and you know, selfishly, myself and Josie are just really curious about sort of extended readings that people can take on as they sort of continue to delve into this project. I’m curious for you, what are three books that have been especially formative in shaping your thinking about criminal justice?

Ta-Nehisi Coates: Um, the first book I would recommend just off the top is Texas Tough, Robert Perkinson. Um, that book is incredible. I think one of the things that’s missing right now is a broad narrative history of mass incarceration. One that pulls it all together. This is the closest I’ve seen to that effort and it is absolutely, absolutely incredible. It’s centered on Texas, but it’s actually a national book as some of the stuff in that book is just, I mean, just ridiculous. Just absolutely, absolutely. I highly, highly recommend, um, I don’t know why that book don’t come up, but it’s an incredible book. Incredible book, very, very readable too. Um, Bruce Western’s Punishment and Inequality [in America], which was very much the basis and foundation of much of the work I did, you know, in, in, in, in that piece that was the book that just got me right? That allow me to see, you know, initially incarceration as a tool of social control. Um, and then Devah Pager’s Marked, which, um, I think actually gets to the question of myth even though she’s not actually saying that because she talks about how even African American men specifically who have not served time are regarded, once you control for everything, like white people who served time, like the mark is there, it’s there whether you actually were in prison or not.

Clint: But as a black person who was not sentenced to a crime, you are still less likely to get a job than a white person who was sentenced to a crime.

Ta-Nehisi Coates:  Right. The society kind of considers you a criminal anyway.

Clint: Which is interesting because when you think of ban the box, right? We operate under this like, oh, if you just ban the box, then it’s going to open up all these possibilities. But there’s been this research-

Ta-Nehisi Coates:  Not until these myths go. Not until the myths go.

Clint:  That shows if you ban the box more employers just assume criminality of more black folks even when they’re not.

Ta-Nehisi Coates:  But again, this gets back to the question of fact versus myth, right? I mean, the problem is not the fact of the box. The problem is the myth that they believe you are a criminal no matter what. You know and I mytho persists even after the box goes. Um, was that three?

Josie: Yeah do you have more?

Ta-Nehisi Coates: Probably, um, I would recommend, uh, you know, everybody’s read it, Michelle Alexander’s The New Jim Crow. I think it was one of the earliest books to, um, give us a language for what’s actually happening. I think the theory on it is exactly correct.

Josie: We’ve been here with author and journalist Ta-Nehisi Coates. Thank you so much for joining us.

Ta-Nehisi Coates:  Thanks for having me.

[Music]

Clint: That was Ta-Nehisi Coates. Can’t think of a better way to end the season. Thank you so much Ta-Nehisi.

Josie: Yeah, that was amazing. And uh, that’s it from us for season one. We’ve covered so much this season from bail to immigration, from plea deals to prosecutors. And again, we’ll be back for season two this winter where we’ll be talking about the drug war, public defense, power hungry sheriffs, faulty forensic evidence,and more.

Clint: I can’t believe it’s over. Season one has been such a good ride. I’ve learned so much. It’s been amazing working with you Josie. In the meantime, for all you listeners, you can find us on Twitter @Justice_Podcast we’ll still be keeping up the social media presence and tweeting out different clips and highlights from season one. You can also like our Facebook page, you can find this as always at Justice in America. You can email us at justiceinamerica@theappeal.org and you can always find more resources and additional information about the things that we’re talking about here at theappeal.org, which is publishing some of the best criminal justice journalism out here right now, and if you haven’t subscribed to their newsletter, I highly recommend it.

Josie: Yeah. Thank you so much and thank you Clint. From the bottom of our hearts we really appreciate you all listening. It’s been an incredible experience for us, we’re so excited to see what’s next and we hope you’ve enjoyed it too.

Clint: This episode was recorded at Beatstreet NYC and the engineer was Mat Longoria. Justice in America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Additional research support was by Joanna Wald. Thank you all so much.

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