Once that started happening, that lead to an incentive system in the police department. These crimes of poverty are the easiest kinds of arrests to make for two reasons: one, with stop and frisk, you can stop as many people as you want or stand by a subway turnstile and wait for someone to come through and know that, no matter what, you are never going to have to take the stand and answer for your behavior, these cases, because they were so low level, they resolve extremely fast. Most of these cases end in plea deals on the first day of arraignment, or twenty-four hours after that arrest is made. What that does is that the person does get out of jail — they don’t go to Rikers — but in addition to adding to your criminal record and coming with automatic surcharges, it winds up insulating that kind of police conduct, it forecloses the ability of the public defender to question them about what actually happened, and also forecloses the ability to sue for civil rights violations.
Police officers know that to get those notches in their belt, a successful arrest — which is an arrest plus a prosecution — this is the way to go, and they’re right. It’s not just because of the expansive laws, it’s because of the incentive structure within the police departments and the way prosecutors handle these cases once in court. Prosecutors could, instead of waiting for legislatures to decriminalize this stuff, just decline to prosecute these cases across the board, which would stop them from even coming into the system, and they are in certain cases in New York and elsewhere. The chances are that if they’re offering time served or dismissal on that same day, the crimes aren’t even that important to begin with — so why prosecute them in the first place?
“Regardless of what happens, people are listening to the voices of people who are incarcerated, that’s a win in-and-of itself”
Shifting gears slightly — the prison strike is going on right now, and by the time this interview is published it will be over, but I wanted to know your opinions on that and whether you think that’s an effective means of facilitating change?
I think that peaceful resistance is historically and currently an effective means for change. The fact that people who are deprived of their freedom, who are separated from their families with limited ability to access the internet and education and phones are able to come together and have this collective clout to the point that major media organizations are talking about it is an enormously impressive feat. Regardless of what happens, people are listening to the voices of people who are incarcerated, that’s a win in-and-of itself, anything above that would be icing on the cake.
It’s not only prison conditions, one of the things they’re talking about is something people don’t really know about, which is this modern form of slavery where people who are incarcerated are used for free labor, and sometimes really dangerous labor. In California prisoners have actually been fighting these horrible fires for one dollar an hour. On that point too, whether or not they’re able to win a living wage or at least have the option of working or not, the fact that people on the outside are listening to the voices of the people on the inside, the fact that people are now talking about this issue of legalized slavery, and that people are actually caring — not just folks like me who know these individuals and see them as more than their prison number and the things they were convicted of — the fact that people on both sides of the aisle are saying that this is wrong, is enormously powerful, and it gives me a lot of hope for the criminal justice movement.
“Right now there’s unlimited space for judges to set bail and arraign people on the front end”
You’ve been involved in the initiative to close Rikers Prison. Why do you think that’s important?
There are a lot of reasons, but I’ll focus on two. One is that the legacy of the physical space and the current state of the physical space is too corrupt, too dangerous, and too fraught with historical inequality and violence and horror that it should just not exist anywhere, let alone in New York City. It’s named after a famous Northern slave catcher, Richard Rikers, that’s the legacy, and now it’s home to thousands upon thousands of predominantly black and Latino people who are only there pretrial because they can’t afford bail, which is incredibly perverse. On top of that it’s filled with endemic violence both within the jail population and also from corrections officers. It’s location on this island breeds this feeling of separation that gives officers and the people who work there and the people who end up there the sense that it’s lawless, or that it goes by it’s own laws. The other piece is that it’s just too big. We saw in New Orleans, which I think will apply well here, that by shutting down and closing a number of their prisons and reducing the number of beds that were available that impacted the way judges set bail. Right now there’s unlimited space for judges to set bail and arraign people on the front end, but if they knew that there actually was limited space, what we’ve seen in New Orleans is that the pretrial incarceration has gone down in direct proportion with the reduction in the prison beds, so we’re hopeful that the same thing can happen here.
“Northerners who were generally pro-civil rights and against the Jim Crow South, when they saw the fire hoses and dogs in photos, it brought those issues out and made them more visceral, which lead to major change in the sixties”
It feels to me as an outsider to the system that we are in a cultural moment where a lot of the issues you focus on are taking center stage, getting the national spotlight. Do you feel that, do you see the tide turning at all?
Yes I do. It’s a really exciting time to be a public defender. I started out when people would still ask me at parties, “How do you defend those people?” The tide started changing when public defenders, grassroots organizers, and directly impacted people and communities became better at organizing and sharing stories. It also came around the same time that there was more visible attention that was able to be paid to these issues. I think that smartphones and the ability for people who are not on the frontlines like me, to see what’s going on day-to-day has changed perspectives in a similar way that Northerners who were generally pro-civil rights and against the Jim Crow South, when they saw the fire hoses and dogs in photos, it brought those issues out and made them more visceral, which lead to this major change in the sixties. I think the same thing is happening now. I think about my grandfather-in-law, who would always listen to me about the things that I saw — unconstitutional stop and frisk, police violence, pretrial detention — and once he started seeing these police shootings he changed from listening and being curious to saying, “Wow, all those things you told me are actually happening.”
“I remember when I started out, bail was barely something people were talking about and now it’s the bread and butter of criminal justice reform”
I think there’s also an opportunity in that it’s become bipartisan. The criminal justice system is one of these issues where everything intersects, it’s education, it’s poverty issues, it’s the economy, it’s productivity. So what we’ve seen are a lot of unlikely alliances between folks like me who are concerned with human rights and civil rights, but also people concerned with the economic costs — the enormous and unnecessary costs associated not just with over criminalization, but lack of adequate reentry services — and how we’re losing out on enormous potential given that six hundred thousand people are released from jail and prisons every year. Instead of bringing released individuals back into the fold and helping them become productive members of society we push them further away, which reduces productivity in the economy and doesn’t help public safety because it only reinforces the conditions that got them targeted in the first place and increases the likelihood of recidivism.
I remember when I started out, bail was barely something people were talking about and now it’s the bread and butter of criminal justice reform and now we’re able to talk about issues that people weren’t talking about before, like evidence laws. Discovery is a major issue in New York, we’re one of the four worst states when it comes to turning over evidence; prosecutors are actually allowed by law to withhold most evidence until the day the trial starts, which is obviously far too late. We’re now able to talk about the things that the Prison Strike is talking about, i.e. modern day slavery, we’re able to talk about fines and fees, we’re able to start talking about violent crimes, and how we treat people charged with them, where before we were limited — and still are to a certain extent — to nonviolent low-level crimes such as marijuana, now we’re pushing the envelope and getting people to talk about, think about, and consider major changes even towards someone accused of really serious crimes. So yeah I do see it, and it’s really exciting.