A journalist whose brother was sent to prison for murder recounts the long-term impact on his family and community in “My Brother Moochie.” In a conversation with TCR about his book, Issac Bailey explains how the experience informed his own perspective about race and incarceration in the American South.
When Issac J. Bailey was nine, he watched his brother taken away in handcuffs for the crime of murder. Now a veteran journalist, Bailey explored the mixed feelings of guilt and shame experienced by his family in My Brother Moochie, a very personal account of the long-term impact of incarceration in the racially polarized climate of the American South.
In a conversation with The Crime Report, Bailey, a 2014 Nieman Fellow at Harvard and a veteran reporter at the Sun News in Myrtle Beach, S.C. whose work has been published in Vice, Politico, and the Washington Post, discusses what it was like to grow up with a brother he saw as a “hero” behind bars for a heinous crime, what the experience revealed about the distrust between black communities and police in America, and why he subtitled his book, “Regaining Dignity in the Face of Crime, Poverty and Racism in the American South.”
The Crime Report: You talk about the pressure black people face in America, and not wanting to validate stereotypes when you or someone you care about in the black community commits a crime or does something that’s reprehensible. That sounds like a difficult thing to constantly have to deal with
Issac Bailey: It’s a huge piece of it, and what it does, is it constantly shames you. I’ve been a journalist for the past 20 years, and have actually written for white, conservative audiences. What made it even more difficult is when I’m trying to humanize characters who do awful things, one pushback that I get is this idea that black people are more violent, and therefore we should be in prison more, etc. Some of them have brought up my own families’ problems, and that stings. So that’s been one of the reasons why it has been so difficult to try to shake some of this black shame.
TCR: Your brother Moochie faced decades of prison time, can you talk about his experience in jail, things he and other inmates face in jail, how he stayed mentally healthy, and how he coped?
Bailey: One of the things that stood out to me first, when initially during his sentence we were still young and still visiting every weekend and the holidays, he mentioned having to stuff things under his doors just to keep the rats out of his cell. He actually talked about how he would do anything necessary not to get raped, but at the same time he wouldn’t carry a shank because he said it would be too tempting to use it. He said there were constant physical threats daily.
For him, though, the mental part was even more difficult, especially when he had to spend seven years in solitary. He became a new person in prison; he actually came to see himself as a kind of African warrior. Stuff like that helped him to serve those decades in prison. Also, lots of reading and meditation helped him to try to hold on to some of his sanity.
TCR: Can you elaborate on his time in solitary?
Bailey: Once he became a Rasta he grew his dreadlocks out. In 1995 or so, the prison adopted a new grooming policy, where each inmate needed a short haircut, and he actually said no to that. He held out for seven years, but then once he cut it he got out of solitary.
TCR: Your mother is another huge character in your book, she seemed like the main force keeping your family together through tough times, and she grew up under tough circumstances as well. Where do you think she got her inspiration from?
Bailey: I do think she’s naturally tough, and even though she only had a fifth-grade education and didn’t get her GED until she was 65, she was the smartest person in the family. But her faith is her foundation for everything.
TCR: You talk about southern Christianity, and it seems to take this dual nature in your book. Martin Luther King Jr. was a Christian, but there are white supremacists who also say they’re Christian advancing racist ideologies. How do you currently view Christianity in light of your experience and the current social and political climate?
Bailey: My views on Christianity have really changed and been challenged over the last couple of decades. What I’m finding too often, especially when it comes to race, is that there are so many white Christians who would pray for your soul, but don’t want to fight for racial justice. In 2016, many of them whom I knew and went to church with for about 17 years or so, constantly made excuses for (President) Trump’s bigotry and still are.
That makes me wonder is it really a good faith to have? I’m still struggling with that. I have seen this faith strengthen my mom through really tough times, so I can definitely see the good in it, but on the other hand, I’m seeing it used for bigotry, and that has been a massive disappointment.
TCR: You say in the book that “punishing crime is a necessary evil but building stronger communities and families require no longer mistaking punishment for justice.” Would you elaborate?
Bailey: Too many of us think justice means actually locking somebody away for doing something awful. But if we don’t actually fight to end all the sort of ripple effects of it, then all that we’re doing is actually sort of making more problems. When someone does something wrong, they must face some sort of real consequence, but if you don’t account for the effects on vulnerable families, then I think you are seeding the ground for more awful things to happen later.
TCR: You talk about attending Moochie’s first parole hearing. It sounded very cold; you were speaking to people through a TV for example. What was that like?
Bailey: It just felt really belittling. Especially because you have no real control or no real say in it, even though they let you speak. You get the sense that they’ve made up their minds long before you walk into that room. Also, what makes it such a tough thing is that you actually know going in that most people are turned down. You try to balance having some hope and trying to be realistic at the same time. You’re trying to convince yourself that you can actually say something during that hearing that will actually make a difference, even though you know that’s not true.
TCR: What do you think they’re really looking for in those parole hearings?
Bailey: That’s a great question, I got the sense that what they want to be able to say later on is that you apologized and showed real remorse. If you do that and if something bad happens later on, they can at least say that you said the right words. But really, they look at your record beforehand and decide then.
TCR: I’m guessing those years he spent in solitary did not help his chances.
Bailey: Yes, during that time he couldn’t take any classes or do any sort of training etc., which they also use to evaluate your progress inside.
TCR: Switching gears here, how do you think the media in general covers race today? Do you think it could be improved?
Bailey: I think we have a lot of problems with the coverage, with mainstream media in general. When I got into the business, I was told not to write about certain kinds of people because the audience would not be able to relate to them. So they were talking about families like mine essentially. Many journalists today actually don’t have a rounded view of race or crime. On the other side, some journalists are so sympathetic they write in misleading ways, and sometimes they write people into these caricatures that always need to be protected. We need more rounded coverage of the criminal justice system itself so we can actually deal with the truth as it is.
TCR: You talk about police brutality and young black men getting shot in the U.S. While abuse has likely decreased since previous decades, I assume you would agree there’s still major problems with police brutality and institutional racism?
Issac J. Bailey
Bailey: Yes, even right now, I meet young black dudes who tell me they’ve been beaten by cops or harassed etc., and they actually still don’t report it because they don’t trust the system enough that these cops will be held accountable. I think it’s still being under-counted. Many black dudes just take it in stride and don’t tell anyone about it, even now.
TCR: In the book, one of your younger brothers says, “Real men go to prison.” I found that pretty shocking.
Bailey: Yeah, they had gotten so deep into this prison and street mindset, they really believed you cannot actually be a real man until you have gone to prison and survived it. For them, any man who hasn’t gone to prison can’t be a really strong man. They don’t think that way any more, fortunately.
TCR: You write that former President Barack Obama was making some good steps towards criminal justice reform. Can you expand on that?
Bailey: I would say he got the ball rolling again, in addition to his record number of commutations which were also huge. But the biggest thing was the Department of Justice’s strong oversight of police departments. If you can get more accountability there, than you can try to reestablish trust, at least between the cops and those affected neighborhoods. For me that was a major move. Given time, that would have benefited everybody. That’s why Trump’s move to pull back from that is one of my major disappointments in this era.
TCR: What do you think of neighborhood policing strategies that try to build more trust between police and the communities they serve?
Bailey: I think it’s good in theory at least, where you are actually trying to establish bonds between the cops and the residents. I actually think that breaks down, once you see a cop who does something wrong and not get punished for it. That kind of law enforcement is seen as a Trojan horse where they’re more out to get you than help you. As long as that distrust is there between the cops and the residents, it’s going to be difficult for these programs to really take hold. If accountability is not there, then these attitudes and distrust will fester.
TCR: Have you seen any accountability when a cop kills a black man unjustifiably?
Bailey: At least from what I’ve seen, most often no. It is rare for officers to face any criminal charges at all, and when they do, juries will find them not guilty anyway. In 2015 or so, there was a drug unit who broke into a guy’s house, shot him nine times, paralyzed him for life, and then lied about the details of it, saying they knocked first. At the end of it, none of the cops faced any charges or any kind of discipline. Once you have those kinds of situations, I can’t stress enough how much distrust that generates.
TCR: Are there any organizations or people you like to follow in terms of criminal justice reform?
Bailey: I’m actually focused on something that doesn’t feel like criminal justice reform but it really is. My wife founded a nonprofit called Freedom Readers, where she’s just trying to improve literacy in really tough neighborhoods. She’s been able to bring in all sorts of volunteers in terms of educators like teachers, cops, and business men and women, all kinds of folks. What she’s been able to do is let outsiders see a more rounded view of these kids and their neighborhoods. That will go a long way in making it easier to have deeper conversations as to why criminal justice reform is so important.
TCR: Finally, how is Moochie doing?
Bailey: He’s been out for almost four years now. And he is getting better day by day, even though there are tougher days than others, which I can trace back to his time in solitary honestly. At least for us, we have a pretty large family, so he’s been able to call on each one of us at various times in order to help and guide him. I think that has been very helpful, but he still has more adjusting to do.
Dane Stallone is a TCR news intern. He welcomes comments from readers.
There’s a largely ignored territory in the justice system populated by poor, often minority, individuals whose lives have been stunted by perennial run-ins with the law over petty crimes and misdemeanors. Yale law professor Issa Kohler-Hausmann calls it “Misdemeanorland,” and she explores its consequences in a conversation with TCR about her new book of the same name.
Much of the attention given to the criminal justice system focuses on felony conviction and mass incarceration. But the most common criminal-justice encounters are for misdemeanors, not felonies, and the most common outcome is not prison or jail time.
“Misdemeanorland,” written by Issa Kohler-Hausmann, an Associate Professor of Law at Yale Law School and an Associate Professor of Sociology at Yale, argues that the dramatic expansion of enforcement against lower-level offenses under “Broken Windows” policing led New York City’s criminal courts to largely cease adjudicating guilt or innocence in misdemeanor cases.
Instead, these courts have shifted to managing misdemeanor cases: marking and testing defendants, and subjecting them to significant procedural hassle and surveillance even when roughly half of cases result in legal dismissal in some form or another.
In a conversation with The Crime Report, Kohler-Hausmann discusses the implications of a lower court system that can exercise expansive social control over those accused of low-level crime without ever having to impose a sentence.
The Crime Report: What stoked your initial interest in New York City’s misdemeanor courts?
Issa Kohler-Hausmann: My initial interest was not necessarily in New York City’s misdemeanor courts, but rather in everything below felonies. I had started law school and graduate school at Northwestern…this was the early 2000s, and the term mass incarceration had basically just been coined and was beginning to become a major scholarly topic. And I remember looking up arrest numbers in Cook County [Illinois] and noticing there were a hell of a lot more misdemeanors than there were felonies. And so essentially, my vague research question was “What’s going on in the realm of the criminal justice system below felonies?”
New York ended up being the perfect site, because New York is home to a form of policing that has gained prominence nationally under the banner of “Broken Windows” or “quality of life” policing, which is an intentional increase of sub-felony enforcement under a theoretical understanding that sub-felony enforcement will bring down major street crime.
TCR: You write about the backlog that “Broken Windows” policing created in misdemeanor courts, and the subsequent shift in court practices from adjudicating defendants’ cases to “managing” them. Had court personnel and resources increased to process the growing number of cases, would we still have seen that same shift?
KH: I don’t know if this is just a story of not having enough resources, because the policing model [also] changed the meaning given to low-level infractions in the criminal justice system. For years, people thought of misdemeanors as less important, unsurprisingly, because by definition they are. What Broken Windows policing did is say, “Yes, low-level infractions are important, because people start off low-level offending and move into higher offending.”
One would think that what would then happen is that prosecutors and judges would also change how seriously they took them. But what I found in New York City is that, surprisingly, you had a much higher chance of being convicted and going to jail in the pre-Broken Windows period than in the post-Broken Windows period.What increased the most over this period were cases that went to final disposition at arraignments— that’s the very first court appearance within 24 hours of arrest. And at that first court appearance, [prosecutors are] maybe glancing over the paperwork for three minutes before making an offer on it. The other thing that changed is the standard offers that the district attorneys’ offices authorize their line prosecutors to give at arraignments. And the standard offer for most people who don’t have a prior criminal conviction became something like a conditional dismissal if you do something. The “do something” might be as simple as “don’t get arrested within six months,” or it might be more elaborate, like “do community service” or “do a program.”
What the logic of that type of disposition practice means is that they’re essentially moving away from the classic adjudicatory function of criminal courts. So instead of saying, “OK, I’m going to use my resources to figure out whether or not you stole the candy bar from the bodega, pushed your girlfriend, jumped the turnstile, had marijuana in public view…what I’m going to do is use the tools that I have at my disposal to see what you do in the future. And if you do something in the future that I think is concerning, then I will ratchet up the level of engagement or the level of demands that I’ll ask for.”
Without getting into the evaluation of whether that’s good or bad, it’s important to note that that’s very different from what we think criminal courts’ role is in the criminal justice system, which is standing between police and punishment in deciding who in fact is guilty and who deserves punishment.
TCR: A lot of your research draws on qualitative interviews with people being processed by misdemeanor courts, as well as actors within those courts. Did you find most people eager to talk about their experiences, or were they wary of your project?
KH: Doing qualitative research is hard. It’s hard, emotionally, for the researcher; it’s hard for the people involved; but it also can be rewarding. You’ll find that people like to talk about their jobs, especially in an area where they’re overworked and underappreciated and underpaid. Whether they are prosecutors, or defense attorneys, or judges, many of them fit that category, and many of them are happy and excited to talk about their work.
Defendants are the hardest category, because most of the people I’m speaking to just got out of a really traumatizing experience. Handcuffs were put on their body, they were kept in a cell in the precinct, they were transferred to central booking, they sometimes had to sleep on the ground or standing up. Many of these people, it’s their first arrest—the last thing they want to do is sit around court and talk to you. But an astounding number of them were willing to, and I think they’re willing to because, similarly, people want to share their experience and talk to you about what they think was fair or unfair; people want to, in some sense, participate in the institutions that affect them.
TCR: You note in the book just how few cases under the “managerial model” actually go to trial. Do you believe that the legal system has some obligation to lower the process costs to make trial accessible to more people?
KH: What I call the managerial model is about using the tools of the criminal process to come up with some sketch, some sort of impressionistic understanding of [whether a defendant is] a governable person.
So [court actors] basically decide, “I’m going to see whether you’re able to respond to these demands that I put on you, if you’re the type of person that’s arrested again, in order to decide what to do.” And I think in the abstract, that’s not a crazy solution. In the abstract, it’s not even necessarily an immoral solution to low-level offending. If we think about the inherent meaning of stealing a candy bar, jumping the turnstile, or even pushing someone, it’s different from the inherent meaning of sexually assaulting someone, or murdering someone, or stealing something by forcibly entering someone’s house. And so in the abstract you might say, “Look, processes have cost, and we don’t want to do the same thing when someone’s accused of stealing the candy bar, jumping the turnstile, as we want to do when someone’s accused of assaulting someone or forcibly entering someone’s home or killing someone.” We might take less seriously and devote less resources to finding out whether or not they did it, and instead what we might say is just don’t do it again. I don’t know if you did it or not, so I’m going to just say, if you don’t do anything again, then in a year, or in six months, we’re just going to pretend that this never happened. That’s not a crazy solution, inherently.
The real moral and political questions have to do with the fact that we’re not evaluating this in the abstract. We’re evaluating it in a very real social world. So where are these arrests happening? They’re happening where low-income people of color live. And who are we arresting? We’re arresting low-income people of color. And so the costs of misdemeanor justice are falling on the same people that the costs of violent crime are falling on, and the same people that mass incarceration fell on.
What you’re doing is arresting a whole bunch of people who live in those neighborhoods for low-level offenses, often for similar conduct that happens in more affluent spaces, and then demanding that they prove to you, to us, to the court system, that they are the type of people that can be trusted.
So that’s the justice question. It’s the distributional question. It’s not, in the abstract, is this a crazy system? It’s, in this particular use of it, how are we doing this?
But the other important thing to recognize is that if prosecutors adjudicated all those cases, it’s possible that a lot of people were factually guilty of the crime. But that doesn’t answer the justice question of whether there’s a right to enforce it. There might be a lot of people who shoplift, or who jump the turnstile because they don’t have the money to pay for the subway. But if you adjudicated all those cases, you’d have a lot more people with convictions.
TCR: One of the penal techniques used under the managerial model is marking. Do you think that it’s wrong to extrapolate something from someone’s rap sheet? Is it wrong to say, “You’ve done this before, you’re doing it again, we’re upping your punishment”— what you call the “additive imperative”?
KH: Part of the marking that happens in “misdemeanorland” and the criminal justice system is just an unavoidable upshot of the fact that we’ve got bureaucracies that have to conduct this work. An accusation is made, the case is open until there’s a disposition, and after the disposition it may continue to be a permanent mark, or it may not.
[That’s] what you referred to as the additive imperative: the whole logic of the disposition is, don’t get arrested again. Say the person’s arrested again while the case is open. What you’re referring to is the fact that the prosecutors will say, “Look, he’s got an open ACD [adjournment in contemplation of dismissal], so this time I’m not going to offer an ACD; this time I’m going to offer a plea to disorderly conduct and two days’ community service, or a plea to the charge, a criminal conviction, for something like this.”
Again, the justice questions are complex. The entire logic of the disposition wasn’t actually an adjudication on the merit of the facts. It was just that I am not even inquiring into whether that happened, I am just saying that I will see what type of person you are in the future. So people who are living in highly policed neighborhoods, namely black and brown people, are much more likely to get rearrested. Using the fact of re-arrest as an index about a person’s lawlessness rather than an index of where we’re concentrating police resources is problematic, to put it mildly.
And again, that’s why it’s important to ask these questions in our real situated historical world as opposed to looking at it in the abstract. When we have a system that says we’re going to use these provisional marks that aren’t really marks of conviction to ratchet up our response, the other side would say, “Well, there’s nothing wrong with that because on the second arrest, that’s an authorized sentence on the second arrest.” And I think that brings back the importance of addressing the substance of criminal law, like what sorts of things are we criminalizing [and] what are the authorized sentences? Authorizing three months jail or a year in jail for some of these offenses…you’re giving the prosecutor the power to hold that over someone. And are you giving that to the prosecutor because you really believe that’s a just sentence, or because you believe that it’s just to give one party coercive power over the other party to basically force outcomes?
TCR: A big issue in your book is the way that the managerial model exercises social control over defendants. But one could argue that some of the elements of what you describe as social control, such as mandatory counseling or drug treatment, actually benefit defendants when executed well, even if they are mandatory. Can social control ever be a good thing?
KH: Well, certainly, I’m all for social control. In sociology, the word “social control” has a sort of value-neutral descriptive meaning. Schools are social control institutions; the labor force is a social control institution; marriage is a social control institution. In the most basic, general way, that term just means the ways that we coordinate our social activities and try to have some shared value system.
But the question is always what substantive values are being transmitted and how are we organizing society? Crime and disorder are very real and serious issues. You’re going to find no one who’s a stronger supporter of trying to end violence than people who live in high-violence neighborhoods. The question is how we do it. And when it comes to how we deal with those issues, we as a society have chosen to use the most coercive, punitive, dehumanizing methods that essentially expel huge swaths of the population from feeling and being a part of our political and social community.
And that, I think, is a deep moral failure.
Violence in New York City in the late 1980s and 1990s and even today is a very serious issue. Drug addiction is a serious issue. There’s many ways we can deal with it. One would be with a massive investment in other institutions of social control like schools, like workforce training, like parks, like community organizations.
That is not what we have done. Instead we’ve decided to police, to arrest people, to put people in prison, and I think that is a moral failure. I think that we should invest in the institutions that integrate people as opposed those that to expel people from our social community. And the people that are the most affected should have democratic control over those institutions. But instead, what we’ve done is try to expel people from the political community using the criminal justice system, through felony disenfranchisement laws, or scare tactics, or making people feel that they don’t have control over the institutions that affect their lives.
That, to me, is the tragedy here. It’s not social control per se, but rather how we do it or the meaning that it has.
TCR: A system that churns out so many false negatives—people punished for crimes they did not commit—and false positives—people who avoid conviction for crimes they did commit—is hardly ideal. But as you note in your conclusion, “no philosophers or public intellectuals have…offered deep rigorous thinking about what justice demands in response to these types of low-level crimes.” What do you think it demands? What should accountability look like for someone who jumps a turnstile, pushes his or her spouse, etc.?
KH: You know, my nights and weekends job, I live on the other side of the criminal justice system as a pro-bono attorney. I have for years represented people who are sentenced to life for very serious crimes they committed when they were juveniles. I represent people who committed murder when they were children—sometimes they did very, very serious things. And I believe in punishment, and frankly, I’ve never had a client in that line of work that doesn’t either. The question is how much [punishment], and under what circumstances; and what else are we doing for people so that doesn’t happen?
Most of the people that I’ve met [through that work] should never have lived in the circumstances that they lived in such that they ended up in those situations. The crimes are heartbreaking and the circumstances that brought someone to do that are heartbreaking. We have to ask, what are we doing in the contexts that these things happen?
I think that’s true on the low end of the criminal justice system, too. Like I said, it’s not crazy to say someone shouldn’t jump the turnstile. We all have to pay for the MTA. But it’s also not crazy to say, “Well, how else is someone supposed to get somewhere when they literally don’t have $2.75?” I think a lot of Americans might not actually know how deep and serious poverty across our country. There are people that do not have $2.75. They do not have it.
So you can’t answer the justice question in the abstract of the distributive justice question. They’re deeply intertwined.
Some of these programs that say, “Go to a class about how bad shoplifting is instead of getting a jail sentence”…well, of course I would rather have someone go to a class than jail, but what I’d really rather have is a robust welfare state, whereby if someone actually stole something, I could believe that maybe it’s because of a moral failing as opposed to abject poverty. In those circumstance, I might feel more comfortable talking about punishment, but that’s not the world we live in yet. So I think that these are very hard questions, and I think that we need to always remember to keep our eyes on both sets of issues when we talk about them.
TCR: How do you balance public safety and civil liberties when it comes to policing misdemeanors? How do you protect people without saddling members of marginalized or vulnerable communities with long arrest records?
KH: One way that you do that is by having transparency and accountability in the police institutions, and, tragically, that is something that here in New York City and in many cities, police unions and police officials have fought vigorously. The NYPD is one of the most reticent to answer Freedom of Information Law requests, or share personnel records…in many ways, they have acted as if they are an institution above civil society as opposed to an institution that is accountable to civil society.
That’s not to say that all police officers are bad. There are so many police officers that get into policing because they’re deeply dedicated to, and often come from, the communities that they want to serve. But I think that those policies fail them too, because they make them an entity that the rest of us feel is unaccountable and frightening.
Another thing you can do is think about management. Misdemeanor arrests ballooned in the early 2000s partially because beat cops were being judged in terms of their effectiveness by precinct commanders by essentially a numbers game. They had to turn in activity reports every month that had the number of stop, question, and frisks, the number of summons issued, the number of misdemeanor arrests made, [and] all those numbers were good numbers. All those numbers were turned into this thing that made it seem as if they were productive. And this was all coming from the top of the hierarchy.
No one believed that at the height of misdemeanor arrests, which was in the early 2000s, making 50,000 arrests a year for marijuana had a public safety value. But it was allowed to happen politically because it was happening to the people they thought they could get away with doing it to, namely young men of color, and police brass was unwilling to think harder about how to judge efficaciousness on the ground.
I think you see the NYPD struggling with that now, and that’s laudable. You see a lot of police forces thinking very carefully about how we judge qualitatively distinct and rich ways that police officers deliver safety without basically just incentivizing making arrests, and making summons, and making stops. That’s a hard thing. But you know what? We’re smart people, and I think we’re up to the task.
TCR: You express serious concern in the book with the ways that the machinations of “misdemeanorland” reproduce race and class inequality. Doesn’t this all stem from police practices, i.e. who police decide to arrest and charge? Courts themselves don’t choose what cases come through, so can they be a part of the solution, and if so, how?
KH: There’s a lot that courts can do. We’re seeing right now a fascinating pivot to the left in a couple of the prosecutors’ offices here in New York City. Let’s take Manhattan for example. For all the years that I have data, you had the highest risk of being convicted and getting a jail sentence if you were arrested for turnstile jumping. [Manhattan District Attorney] Cy Vance’s office had one of the most punitive offer policies. But recently, Cy Vance’s office decided it was going to decline to prosecute turnstile jumps. The NYPD was not happy about that, but it’s a powerful prosecutor’s office, and they decided to push back. If the prosecutor is going to decline to prosecute those cases, eventually the police will probably stop making them. So there’s a lot that they can do.
In prosecutor’s offices and other states where non-conviction marks are printed on the rap sheet, prosecutor’s offices could do a number of other things. They could lobby the state government to change the state’s criminal records laws. Prosecutors could stop accessing sealed records. Here in New York, the NYPD shares sealed records all the time with prosecutor’s offices, and they could stop that practice.
And I think the other huge thing they could do is change the leverage points. Few people with power are ever willing to give up their power. But things like discovery reform, or changing the authorized statutes and sentences would actually take away some of the power the prosecutors have. I have yet to see any of them do that. But I don’t think any prosecutor gets to call her or himself a progressive unless they’re willing to understand that in many senses, as the old line goes, “It’s more power than a good many would want or a bad man should have.” And you sometimes need to tie your own hands.
TCR: So do you believe that prosecutors are the actors within “misdemeanorland” who are best poised to change the system?
KH: I think the people best poised to change the system are us. I think that the only reason you’re seeing these changes is because this has become a political issue. There are people on the streets marching about it, there are people organizing about it, there are organizations like Communities United for Police Reform, there’s litigation like Floyd [v. City of New York], there’s organizing efforts…
No policies can ever be a replacement for politics. That’s what we’ve seen in New York. I mean, you’re talking about Cy Vance’s office, which, like I said, had a tin ear to these issues for his first eight years in office. But that’s changed, and I think that’s because of organizing on the street and activists.
Anyone that’s practiced law in the criminal justice system knows who has the power. People have written articles about this, people have written books about this. It’s prosecutors. [But] we have a responsibility to be involved in prosecutorial races, bringing attention to them, pressuring them. We can’t put our faith in them just as good actors delivering grace. We need to hold them accountable.
Elena Schwartz is a TCR News Intern. She welcomes readers’ comments.
A new book examines the arrest data produced by police stops in North Carolina, and finds the public safety benefit was minimal. In a conversation with The Crime Report, co-author Frank Baumgartner says it should make police departments across the US reevaluate a practice that is often considered racial profiling.
Traffic stops represent one of the most common interactions between police and citizens in this country. According to the Bureau of Justice Statistics, an estimated 42 percent of face-to-face contacts that U.S. residents had with police in 2011 occurred for this reason alone.
However, in the wake of the tragic shooting deaths of Philando Castile, Terence Crutcher, Walter Scott, and others—all of which resulted from seemingly routine traffic stops—fears about the influence of racial profiling and police bias on these common, day-to-day policing practices have grown.
Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race, co-authored by Frank Baumgartner, a political science professor at the University of North Carolina at Chapel Hill; Prof. Derek Epp of the University of Texas at Austin, and fellow researcher Kelsey Shoub, statistically analyzes recorded traffic stops from North Carolina to discover the hard truth about similar accusations made in the state nearly 20 years ago, and paint a comparative picture for today.
In a conversation with TCR, Baumgartner explains how traffic stops have become an ineffectual tool for catching criminals, why the numbers found in North Carolina represent a systemic problem in law enforcement around the country, and how the argument of “a few bad apples” in policing falls short of reality.
The Crime Report: This book is the end result of a law passed in North Carolina almost 20 years ago that sought to find the truth behind suspicions of racial profiling in policing by collecting and analyzing traffic stop data. Can you explain how it got from there to here?
Frank Baumgartner: When the law was passed that mandated the data collection back in 1999, the law mandated that the state itself, the attorney general, or somebody in the department of justice for North Carolina, should issue periodic reports, every six months, to evaluate these allegations. The law was passed because there were allegations in the (state) General Assembly, essentially members of the black and Hispanic caucus, elected officials, who said they thought there was rampant profiling going on. It was part of a nationwide conversation about the issue of driving while black and brown.
North Carolina was the first state in the nation to mandate collecting the data, so those lawmakers deserve credit. They said that either we’ll put to rest spurious allegations or we’re going to validate these concerns and our police will take immediate steps to alleviate them. And none of that happened. Nobody ever issued a single report. So, when we got the data, and delved further and further into it, it pretty much validated all of those concerns of those legislators back in the 1990s. Everything they alleged and were concerned about, we can show is really true: two-to-one search rates; two-to-one increased likelihood of being pulled over if you are nonwhite.
TCR: Why was there no follow up? And is this sort of inaction suggestive of a national problem?
FB: Nobody likes to have someone looking over their shoulder in their workplace, and these allegations were really quite troubling. They were about racial bias within the police forces and they were nationwide. I think it’s a hot button issue, the police agencies are very politically powerful, and this is a topic that a lot of police departments would rather not have in the public domain. It’s uncomfortable. I give a lot of police chiefs credit for engaging with the conversation.
It’s a tough conversation because they’re put on the defensive. So, I think it’s natural that people didn’t want to go there. But we had to. Even though it’s uncomfortable, we have to validate the fact that black and brown Americans are subjected to a quite different style of policing than white middle-class Americans. And if white middle-class Americans don’t understand that, then there’s a terrible empathy gap for the realities of people on the ground who are black and Hispanic. We have to understand how policing works in all of our communities.
TCR: How do traffic stops reflect an evolution in today’s policing that has led to a general increase in racial profiling?
FB: In the 1960s and 1970s policing changed. It went from being more reactive, finding out that there had been a crime and then trying to hunt down the bad guy, solve the crime, and bring the perpetrator to justice, to a more proactive style of policing where the police thought they could solve the crimes before they happen by interrupting people who look like they might be up to no good. So, I think we developed a whole method and ideology in the profession of policing around an idea that they could keep us safe by interrupting criminal activity before it even happened.
At the core of that idea is the assumption that you can tell if someone might be involved in criminal activity just by looking at them. And that’s where racial profiling became such a concern. The magic of this system is that white middle-class people were unaware that the police were using visual cues towards young men of color and treating them in such a different manner. If you’re black or brown, you’re a suspect citizen right from the beginning.
TCR: How do police use traffic regulations to pursue this kind of biased policing?
FB: The method came out of hunches and seat-of-the-pants ideas that developed into accepted practices in policing. Back in the 1970s, airports were trying to develop profiles of who might be a hijacker and who might be a drug courier, and those are all based on appearances. Police then applied these to the highways.
The first sheriff to do this was in Florida. He kept getting his cases thrown out because judges all said he had no probable cause because he was literally just pulling people over because of appearances. That sheriff then went to the vehicle and highway codes and found that Florida highway laws gave him 500 reasons to pull someone over. He studied the manual and he studied the law and he found that there were so many technical violations of either the vehicle code, such as tinted windows or a crack on the brake light, or the traffic code, such as touching the yellow line, that you can be pulled over for.
The key decision by the U.S. Supreme Court was one that said that if you’re breaking the law you can be investigated. That means if everybody is speeding, then the police can pull over those who they want and say they pulled you over for speeding. Most people speed, so everyone’s open to a police investigation. Once they pull you over, and they start a conversation, they might ask for permission to search your car, and that’s where all the profiling happens. They really did have to find a methodology. The methodology of a traffic stop is fantastic because, if you’re driving a car, you’re pretty much opening yourself up to a police investigation.
TCR: According to your book, the logic behind this practice is that “you have to kiss a lot of frogs before you find a prince.” How did such a general practice come about and is this defence of it valid?
FB: I think that it came to be used because of the war on drugs and the idea that there’s this incredible mania among the law enforcement community about the danger of drug couriers and drug kingpins. But the thing about kissing a lot of frogs, for one, is that it’s unfortunate that the police would think of citizens driving down the road as frogs. They’re citizens and they have the right to their own privacy and the right to be free from unreasonable search and seizure. I think that the idea was that thousands of people would be deprived of their constitutional right to privacy and to travel unimpeded in the hope that one out of a thousand or one out of a hundred might be found carrying some drugs. And the Supreme Court validated this idea.
The police said everybody has to pay a small price so we can all be safe, and the Supreme Court said that since it’s only a momentary inconvenience, it’s a reasonable price to pay. And that makes good sense if you are white and middle class, like most of the Supreme Court justices, and it might happen to you once every ten years. You’re not subjected to that many police pullovers, and certainly not to very many searches. But if you’re a young black or Hispanic male, you might be pulled over frequently. So, it’s not just a momentary inconvenience, it’s a consistent statement by the government that they suspect you of wrongdoing. So, that’s where we really wanted to make the case that the court system has kind of misunderstood this.
They’ve given the police the green light to do these dragnets and very large scale traffic stops, justified by the war on drugs and crime, but it’s a very inefficient use of time and a very big waste of police money that, in addition, alienates so many people.
TCR: What are the psychological effects on minorities from these continual stops?
FB: Philando Castile, before he was killed in Minnesota, was in his early 30s and had been pulled over by the police, even in his short time as a driver, dozens of times. I’ve been driving since the 1970s, I’ve only ever been pulled over two or three times, and I’ve never been searched. So, if it happens to you once every 25 years, it’s true that that’s a momentary inconvenience.
But, if you’re just a young man of color, and you simply happen to fit a certain demographic profile that the police associate with crime, or if you just happen to live in a neighborhood where there’s more policing because there’s more crime, you might find that to be a routine occurrence. And when you know that it was a pretext, and you really weren’t driving in an unsafe manner, it teaches you that you are not a full citizen, that the police think of you as a potential criminal. And that’s a harsh lesson for a young man to learn.
TCR: When it comes to tragedies like Philando Castile, there is always the argument that it happened because of a “bad apple.” How valid is that argument?
FB: It’s valid, but it’s incomplete. We found that there were a lot of officers who had statistical patterns that are really quite troubling and I can tell you that I think some of them lost their jobs after their chiefs had seen some of this data. But, that’s not the whole picture, the entire system of racial profiling or disparate outcomes of traffic stops cannot be put at the feet of just a few bad apples, it’s really much more systemic.
Even when we take the bad apples out of the equation or we control for them statistically, we still see dramatic differences in how white and black drivers are treated, even when they’re treated by officers who are not the bad apples. We identified about a third of all officers as having more than a two-to-one ratio of searching black drivers compared to whites. So there are systemic, institutional patterns that are widespread, and then there are a lot of bad apples.
TCR: How does the level of officer discretion contribute to this problem?
FB: I keep thinking, I’m a college professor, and I think there are a lot of us in public service who are supposed to follow rules. Imagine you’re a third-grade teacher, and you teach reading. It’s not optional whether or not to cover certain parts of the curriculum. Principals and other supervisors are going to be pretty hands-on in making sure that all the third-grade teachers in the school are teaching the same curriculum. You have good teachers and bad teachers, easy teachers and hard teachers, but still the curriculum is the curriculum. Policing is really not like that. The disparities in behavior that we see from officer to officer are shocking. It is not particularly a racial thing, but a dynamic of the great degree of freedom and discretion that an individual police officer has. I think that’s an important characteristic of policing as work. It’s a decentralized workplace; it’s really hard for supervisors to monitor exactly what employees are doing.
As it turns out, when we looked at …the cases where they pulled someone over for speeding and the percentage of times they gave a ticket rather than a warning, the number goes from 0 percent to 100 percent, from to A to Z. It’s shocking how much variability there is in the outcome of a traffic stop based on who’s the officer. Some officers never search anybody, and some search 30 percent of the people they pull over. Some officers never make an arrest and some arrest 10 percent of the people they encounter. There’s a huge difference.
TCR: What are the different kinds of searches police can engage in?
FB: Essentially, if a police officer develops the idea, based on the situation, that there’s a probable cause that the individual is engaged in a crime or hiding contraband, then the officer has the legal right to search that individual and bring them into custody if they don’t agree. Let’s say they see what appears to be a gun, then they have probable cause to believe you have a concealed weapon and they don’t have to ask your permission to search you.
If they don’t have probable cause, then their only way to do a search is to ask the driver if they have drugs in the car and if they can search the trunk. And it’s your constitutional right to say no. But, of course, it’s very intimidating when an officer with a gun says I’d like to search your car. It technically has to be phrased in the form of a question, but that can be done in a way that’s quite intimidating.
TCR: Are there ways to tackle this issue of potential intimidation?
FB: One of the most effective reforms that we found in North Carolina was that some cities mandated the use of a written form. It says, “I hereby voluntarily consent to have my car searched and all of its belongings, and here’s the password to my iPhone because I understand that’s going to be searched as well.” And, of course, nobody signs this form. Once you lay out your constitutional rights to privacy, and you lay out that the officer does not have probable cause and he’s just asking for permission, nobody signs that form. It’s a very effective protection of people’s constitutional right to privacy.
The counter-argument is that this will lead criminals to go free. So, we looked at that very carefully and, essentially, our analysis of all these traffic stops shows that they just don’t catch many criminals. It’s better for the police to just enforce the speeding laws and pull people over who are drunk driving, running through stop signs, and driving dangerously than to use the vehicle code as an excuse to fight the war on drugs. It’s just not very efficient.
TCR: Aside from consent forms, what else needs to be done to create a change?
FB: Our main proposal is that the traffic police should focus on traffic safety. Don’t use the vehicle code as an excuse to fight a war on drugs or a war on crime more generally. It’ll keep us all safer if you do that and it will reduce the probability that a police officer is going to just make a pretextual traffic stop just because he doesn’t like the look of somebody, and use the traffic rules as excuses to do a police investigation. That’s contrary to our basic American freedoms, and it’s not effective.
Second, de-emphasize the regulatory and equipment failure traffic stops, all these traffic stops that are used as a pretext to get to talk to somebody, and, instead, emphasize ones that are truly related to safety. The problem with these equipment failure stops is that they bring poor people into contact with the police more commonly than wealthy or middle-class people. Middle-class people are less likely to have expired tags or bald tires because money is not a barrier to getting their inspection sticker. But poor people might be in that situation on a much more routine basis because they just can’t afford to get their tires replaced. Now that’s fair when a vehicle becomes dangerous to drive, but many of them are pretexts to pull a person over and see if they’re carrying drugs. It’s a waste of everyone’s time.
We found that police don’t find contraband very often, even when there’s a probable cause search, and when they do find something it’s usually a very, very small amount, so little that they won’t even arrest the person in a typical case. It’s not a cache of guns, or a stack of money. Which calls into question the public safety benefit of all these millions and millions of traffic stops.
TCR: What do you say to those who may claim that this is just a North Carolina problem?
FB: Well we have a paper where we’ve been gathering data. We’ve collected all the data from the statewide databases for Illinois, Maryland, and Connecticut. We’ve looked at other cities and state highway patrol agencies who’ve made their data available. We’ve found the same patterns, and actually much more serious patterns in the Chicago area.
If you remember the DOJ report on Ferguson, Missouri, they did an in-depth analysis of all the troubles in that community and one part of their report was looking at the traffic stops and the searches that resulted from them. And in Ferguson they were concerned by a 70 percent disparity: black drivers were 1.7 times likely to be searched. That’s below the average for North Carolina. Ferguson was an outlier, a tinderbox, in terms of racial resentment between the community and police department, and they only had a 70 percent disparity.
North Carolina is not a hot spot of racial disparity, (but) we find these same things all throughout the country. The state is not peculiar. It is quite generalizable. We should all look at this and try to understand that there is a reason for this resentment. We should take that seriously and police departments should look and see if these policies are really worth the trouble.
Isidoro Rodriguez is a contributing writer to The Crime Report, specializing policing issues. He welcomes readers’ comments.
Long before the current probe into Russian meddling in US elections, Soviet and US intelligence agents were operating out of the National Press Building in Washington, DC to covertly influence policymaking. Steven Usdin, author of a new book called the “Bureau of Spies,” tells TCR what he discovered in the archives.
What happens when the line between spies and journalists gets blurred? Long before “fake news” became a household phrase, intelligence operatives were skilled practitioners in the art of subverting the media, often without the public ever knowing what was going on behind the scenes.
Steven T. Usdin chronicles the covert exploits of “spies who pretended to be reporters and reporters who dabbled as spies”—many of them operating out of the National Press Building, four blocks from the White House—in his forthcoming book, Bureau of Spies: The Secret Connections Between Espionage and Journalism in Washington.
Usdin, a senior editor at BioCentury Publications who has authored previous books on national security issues, examined declassified archives about the activities of foreign and domestic intelligence agencies in the nation’s capital during World War 2 and the Cold War. In a conversation with TCR’s Dane Stallone, he reveals the disturbing origins of the “America First” approach that has become a meme of the current administration, and explores the parallels with Russia’s modern attempts to influence US politics.
The Crime Report: What led you to write “Bureau of Spies”?
Steven T. Usdin: I’ve been a journalist for about 30 years or so, and my journalism is about the intersection of public policy and life sciences. That’s my day job, but what I also do is write about the history of espionage. The first book that I wrote was called “Engineering Communism: How Two Americans Spied for Stalin and Founded the Soviet Silicon Valley.” When I finished that, the first idea I got was to write about spy sites in Washington. I walk around the city and I see sites and say, “Well, that happened there, and this happened there.” I started working on it, and very quickly decided there wasn’t much point in saying what and where this happened if there wasn’t any context for it.
The Crime Report: Where did your source material come from?
Usdin: There are a lot of sources. For the parts that are about the Cold War, [I used] declassified documents from the CIA and FBI, but there’s also a lot of material that has become available, one way or another, from the KGB archives. The main sources for that are the Venona Decrypts, a secret program that started during World War 2 to decrypt Soviet intelligence cables. They managed to decrypt a large number of KGB and some military intelligence, and other Soviet Intelligence cables that were sent from 1941 to 1945.
There’s another source called the Vassilievnotebooks. It’s a long story but basically there was a former KGB officer who, in cooperation with an American historian, was granted access to KGB archives and took extensive notes. Some he was allowed to use, some he wasn’t but he smuggled all of them out and they provide a lot of information. Another source are the so- called Mitrokhin files. Vasili Mitrokhin, a KGB officer who had been assigned to work in the KGB archives, spent a tremendous amount of time secretly taking notes from case files and hid them, and when the Soviet Union collapsed, he smuggled them out. I also found a great deal of records in the British archives about British intelligence activities in the US just before and during the Second World War. There are many other sources I use in the book, but those sources provided a lot of information.
The Crime Report: Do you see a pattern in what drove the people you cover in the book?
Usdin: I think they shifted over time. There are the American journalists who spied on behalf of the US or allies, and then there were professional spies for the US, and for America’s adversaries, who pretended to be journalists. Their motivations were very different.
To start with the Americans, they were professional journalists who dabbled in espionage, before World War 2, especially in 1940-1941. A large group of Americans were convinced that it was critical for the fate of Western civilization, and that’s not too dramatic a way to put it, for the US to intervene and end the war in Europe as quickly as possible. They felt it was legitimate and patriotic and the right thing to do to cooperate with British intelligence to try to do everything they could to push the US to enter the war as quickly as possible and to provide assistance to Britain. After the war there was a large group of Americans, including journalists who believed the US had been blindsided in the run up to World War 2—Pearl Harbor being the most obvious example of that, and who believed a new conflict that was coming. That conflict would be with the Soviet Union, and it was essential the US not walk into another conflict blind.
Steven T. Usdin
Many either cooperated with British intelligence before the war or were aware of others who had, so it seemed natural to them to cooperate with the CIA when it was first created and continuing into the Cold War. Those views changed dramatically as a result, first, of the Vietnam war, and then the revelations of Watergate and the immediate post-Watergate era. It no longer became acceptable to the vast majority of American journalist to cooperate secretly with intelligence agencies.
Then you have the professionals, probably hundreds of KGB and GRU (Soviet military intelligence) officers who were posted in the National Press Building under cover of being reporters for TASS, the official Soviet news agency. The majority of them considered themselves to be patriots as well, and considered nuclear war with the US a high probability, and their job was to ensure the Soviet Union won that conflict.
The Crime Report: One interesting character in your book is Robert F. Allen, who shows up in multiple places in Bureau of Spies spanning three decades.
Usdin: He starts out in 1933, and was the first person that I could document who was a spy in the National Press Building. He was a journalist at that time, and had a partnership with Drew Pearson. They produced a column called “Washington Merry-Go-Round,” and two books based on the same name. They were some of the first reporters to give an inside view of what was going on in Washington. Before them, a lot of the news had been sanitized.
They told gossip, stories they picked up at the bar at the National Press Club, and for a time in 1933 Allen was a spy for the Soviet Union. Allen provided intelligence to the Sviets about the Roosevelt Administration’s plans for recognizing the Soviet Union starting even before the inaugurations. He gave them intelligence about American military intelligence we collected in the Pacific about what the Japanese were up to. We don’t know what provoked him to start or stop doing it in that brief period. In any case, he didn’t spy for a very long time, then during World War 2, he enlisted in the army and served in military intelligence on General Patton’s staff. He lost his arm during the war, and actually had it amputated in a German field hospital. He learned to type with his left hand and resumed his work as a journalist.
National Press Building, DC, Photo by Bex Walton via Flickr
Fast forward to the early 1960s: He found a new partner, and started a syndicated column that specialized in getting leaks about the CIA and the American military. He was absolutely convinced that the US was sleepwalking into a war with the Soviet Union and that it was his job to wake the country up to the dangers it was facing.
He developed amazing sources in the White House, Congress and the CIA itself, and that actually provoked the president to order the CIA to find out where he was getting the information, and shut it down, and that was the origin of Project Mockingbird. The CIA tapped him and his partner’s phone, and found out he was getting a flood of information from within the administration.
The Crime Report: Did you intentionally try to draw comparisons with today’s media landscape? One chapter is called “Fake News” for example, and you talk about the slogan “America First,” which was used by journalist James True in the years leading up to World War 2.
Usdin: I think people who use the term now should know what its origins are. I doubt that Donald Trump knows that, but it would give great pause anyone who’s educated about history to use a term like that. The term “America First” was first coined by an American propagandist, who called himself a journalist but he was a fascist propagandist, and his name was James True. He had an office at the National Press Building, and he was just a straight up, flat-out fascist. He published vile racist propaganda against African Americans and Jews, and advocated violence and bigotry. He was just a horrible person and didn’t pull any punches about it.
He created a company called America First, and he was the first person to use that term. Later that term was picked up by American isolationists, who wanted to keep the US out of World War 2. Some of them were fascist, like True, and racist; but many of them weren’t. Many believed the US had been fooled into participating in the First World War, and that World War 2 was no business of the U.S [Some argued that] the US should wait until if and when it was attacked in order to go to war. Many of them believed that the US couldn’t win a war against Germany. That’s the origins of America First, and to see it revived in the 21st century is surprising and appalling.
The Crime Report: How much support do you think True had in the U.S.?
Usdin:I don’t know how much support he had in terms of numbers but he certainly had influential support. There were members of Congress who reprinted his fascist propaganda in the Congressional Record, and tried to disseminate it widely. There were very powerful and prominent business men who secretly gave him money. There was also a feeling at that time, due to The Great Depression, that the US was faced with a choice between capitalism and communism. While I wouldn’t say a majority of Americans believed that, certainly a very influential minority of Americans believed that was the choice. And many of them picked communism and a sizable number of them supported fascism also.
Moreover, it was more than economic pressure and hard times; there was really a sense that the system had collapsed. The Dust Bowl was pushing people of farms, there was the collapse of the banking system, massive unemployment, and a loss of hope.
The Crime Report: Certain news agencies in your book claimed to be unbiased, while they were committing some form of espionage behind the scenes. Is that a red flag to you when you see a news agency today claiming to be unbiased?
Usdin: Well, you do have to wonder if somebody has to tell you that they’re unbiased, whether it’s untrue or not, but the difference between bias and being controlled or influenced by foreign or American intelligence services is an important distinction.
In the past, there certainly have been press or newspapers that were influenced or controlled by intelligence agencies, both foreign and American. It’s certainly not inconceivable that that could be going on today. It’s something to think about and it’s something to be worried about. At the same time, though, one of the messages I’m trying to convey in the book is the importance of the institution of journalism, and of the role journalism plays in how people ascertain the truth.
The Crime Report: Your book shows the power of information, or disinformation, and the fact that it can be weaponized. It gives credence to the old adage, “The pen is mightier than the sword.”
Usdin: There are instances in the book when information was weaponized. There was a sense by governments that journalism and information were critical tools in conflicts. The Cold War is an obvious example. It was perceived as a conflict between ideologies and a lot was played out in newspapers, television and radio. In the run-up to Word War 2, there was a feeling, which was accurate, that American policy makers and the public decided what the US should and would do, and that public opinion, shaped through the media, would play a big role in determining what was going to happen.
The Crime Report: An interesting dynamic throughout Bureau of Spies turns on the competing forces of communism, capitalism, democracy, and fascism here in the US. Do you think that’s almost a testament to the freedoms the public and the press enjoyed during that time, that these ideas could compete with each other, compared to the Soviet Union, where the media landscape was much more controlled?
Usdin: Certainly Soviet intelligence saw opportunities in the US and its press freedom to disseminate propaganda, to engage in what they called “active measures” or efforts to influence American foreign policy. The goal was to disrupt American democracy and erode faith in the integrity of the democratic system, but I would argue that ultimately press freedom in the US during the Cold War was greatly to the US advantage.
It was partly due to the brittleness of the Soviet system, which eroded confidence in Soviet leadership. There was hunger for real information from the outside, and the government’s attempts to suppress that information only made it seem more credible to those people in the Soviet Union who could get hold of it.
In the epilogue, I write that ironically a lot of the Soviet propaganda efforts in the US during the Cold War, which weren’t very successful, were predicated on the idea that Americans believed the media. If the Soviets could get a story into an American newspaper, or TV, or radio, it was a tremendous accomplishment to them, because they thought correctly that large numbers of Americans would believe it. Now we’ve got a different situation, where Russian government and intelligence services are acting on the notion that it’s possible to undermine confidence in the media and institutions and the truth itself. That goal is being advanced by the president and by people who know better and stay quiet.
The Crime Report: Can you talk about the Rainbow Five Report?
Usdin: It was a series of five contingency plans for the American military which included the invasion of Europe. They were put into effect very close to the plans that Chesly Manly reported in the Chicago Tribune on Dec. 4, 1941. The report was leaked to a US Senator, Burton Wheeler, an ardent isolationist who was adamantly opposed to the US supporting Britain or getting involved in the war, and it still isn’t known who gave him the information. Wheeler said it was a captain in the army, but he also believed it must have been someone much higher up who authorized the captain to give him the information. Wheeler speculated, but he didn’t have any evidence, and I don’t think he was correct. So we’ll probably never know who the captain was or if it was someone higher up.
The Crime Report: Wheeler is quoted in your book as saying that the unknown captain justified giving him the information by saying Congress is a branch of the government, and that it deserves to know what the executive branch is doing when it concerns human lives. This sentiment seems to contrast what we see today with more and more acts of war ordered by the executive branch without congressional oversight. Would you agree?
Usdin: It was also an example of the dangers of giving information to Congress because they leak it. Here’s a congressman who was given some of the most sensitive information that the American military has—information critical to American success and the lives of American soldiers, and what is the very first thing he decides to do with it? He calls a reporter and invites him over his house and says “look at this!” with the intention of getting it in the newspapers. That’s not an action that inspires confidence in the military and intelligence agencies that it’s a good idea to share information with Congress.
I agree with you that there’s been an erosion of the congressional role in oversight of the military. They have almost no oversight of intelligence agencies, and that is a bad thing. But on the other hand, a leak like that gives ammunition to people in the military and intelligence services who want to avoid and go around legitimate oversight of congress.
The Crime Report: You discuss briefly toward the end of the book about leakers like Edward Snowden and Julian Assange, how do you view them in light of leaks and other activity you cover in Bureau of Spies?
Usdin: I think it helps to look at the activities of Philip Agee and a magazine called Covert Action. It’s something a lot of people have either forgotten or never knew about. Agee was a CIA officer who basically defected, and dedicated the last decades of his life to trying to destroy the CIA. He wasn’t a whistleblower, he really wanted to destroy the CIA and he also wanted the Soviet Union to prevail over the US.
Philip Agee. Photo courtesy Wikipedia
The technique Agee used to try to advance his goals was to leak massive amounts of information about the CIA and their operations. He specialized in what he called “Naming Names” (a column in Covert Action), and producing lists of covert CIA operatives around the world. [The magazine] was published from the National Press Building, and what we’ve subsequently learned, which was suspected at the time, although he may have denied it, was that he was in close contact with the KGB and Cuban intelligence, and some portion of the information he was disseminating actually came from the KGB. The KGB certainly felt that he was under their control and was one of their operatives.
I’m certainly not saying that’s the case with Snowden or the other leakers today, but the pushback that Congress had against Agee was based not on the fact he was opposing CIA policies, which most people would’ve found abhorrent if they found out about them. It was that he was indiscriminate and he was acting with an intent to destroy the CIA and hurt US national security, rather than trying to expose abuses and injustices with the hope they’d be corrected.
So I think that in judging Snowden, Assange and WikiLeaks, that might be one of the filters to apply and look at what they’re doing. Are they exposing injustices and abuses and in doing so actually strengthening democracy and human rights? Or have they crossed over a line either inadvertently or intentionally to a place where they’re advancing the interests of individuals and governments that are adversaries of democracy and human rights?
With what I call industrial-scale leakers, I think it’s worth thinking about the framework for assessing what they’re doing and then people can make their own judgements.
Dane Stallone is a news intern for TCR. He welcomes comments from readers.
On the 10th anniversary of the Second Chance Act, veteran corrections administrator and researcher Stefan LoBuglio says attitudes towards prisoner reentry have undergone a “sea change” since the 1990s. But in an extended chat with TCR, he warns of a retrenchment in programming that threatens the overall functioning of the U.S. corrections system.
Last month marked the 10th anniversary of the federal Second Chance Act, which has provided aid for state and federal prisoner reentry programs. President Trump declared April “Second Chance Month” to bring attention to programs that “provide opportunities for people with criminal records to earn an honest second chance.”
To assess the state of prisoner reentry in 2018, The Crime Report spoke to Stefan LoBuglio, who recently completed a three-year stint as director of the National Reentry Resource Center at the Council of State Governments Justice Center. LoBuglio, a former corrections administrator in Massachusetts and Maryland, will speak in Kigali, Rwanda, next week at the Eighth International Conference on Human Rights and Prison Reform.
The Crime Report: Prisoner reentry became a public issue in the 1990s when then-Attorney General Janet Reno called attention to the fact that more than 600,000 prisoners are released back into society every year. What is your recollection of that era?
StefanLoBuglio: There were earlier milestones in this field. One was the early-1970s publication of the review by sociologist Robert Martinson, declaring that “nothing works” in inmate rehabilitation. In the 1970s, we saw suspicion of the corrections system amid the large growth of in-prison population that continued roughly until the year 2000. There has been enormous energy, research and support of the prisoner reentry field, starting at least with Jeremy Travis at the National Institute of Justice near the end of the Clinton administration, and continuing through the George W. Bush and Barack Obama administrations. When I began working in corrections in 1992, the job was usually defined by the mantra “care, custody and control.” When you asked a corrections administrator about recidivism, you’d be told, “That is not my responsibility.”
In the 25-plus years since then, there has been a sea change. When you go to meetings of corrections administrators now, there is talk about adding “community” to the mantra, and there are hundreds of programs under the Second Chance Act and other laws to improve prisoner reentry. It was once called “reintegration,” but the lexicon did change to “reentry” in the 1990s. One question people were asking is why inmates should have the opportunity to get things like college degrees when people in free society didn’t have that access? Reentry was framed not as a question of what inmates deserved but of necessity—they were going to be released and we had to prepare them.
TCR: Another, different, anniversary related to the issue of prisoner reentry was marked this year: the “Willie Horton episode,” which many observers at the time believed was a factor in Massachusetts Gov. Michael Dukakis’ loss to Vice President George W. Bush in the 1988 presidential contest.
LoBuglio: Horton was a violent and horrible case that had wide repercussions for the field and led to the retrenchment of programs and facilities that allowed individuals to be released gradually back into the community. There was widespread support at the time for such opportunities for people who were soon to be released. Horton was in a furlough program, but there were also many “work-release” programs that were very popular.
Inmates could get jobs, reengage with their families, and seek the support of those community institutions of interest to them. Those programs had become part of the corrections infrastructure, but they disappeared overnight in 1988, and even 30 years later, they are still absent. For 11 years, I worked in the corrections department of Montgomery County, Maryland,, where we ran such programs, and demonstrated the ability to transition violent and non-violent offenders back into the community for those who were soon-to-be released. In corrections, we are not making the sentencing decisions, but rather dealing with the reality that most individuals will leave at some point after serving their court imposed sentence.
A campaign button from Michael Dukakis’ doomed 1988 presidential campaign. Photo by palemon escobio via flickr
More recently, in following this area for the Council of State Governments Justice Center, I was struck by how few jurisdictions maintain these release-transition programs. Thirty years after the Horton case, with our better technology and communications, we should be rethinking how to incorporate work-release for the people who are coming back to the community.
TCR: Were laws like the one that allowed Horton’s furlough common?
LoBuglio: Such programs were not unusual back then. What was so dramatic about the Horton case was that he was a convicted first-degree murderer. After it happened, there were wholesale cancellations of prison systems’ contracts with halfway houses, and those programs that remained were tightly restricted. The debate shouldn’t be focused on transitioning the most heinous criminals but rather whether the vast majority of people in the corrections system have the opportunity to be housed in places like work-release centers.
In my three years at the Council of State Governments, it was clear that programs in prison to prepare inmates for release are not yet robust. Our national conversation on reentry is focused on community corrections, probation and parole. We haven’t really talked much about re-instituting work-release programs in prison. Remember that well over 90 percent of state and federal prisoners are released at some point, and between nine and 12 million people cycle in and out of jails each year.
More people should have the opportunity to use community resources before their release, under strict supervision. Even programs that purport to provide pre-release service don’t. Years ago, I visited the Baltimore pre-release center that housed about 300 people, but only about 30 or 35 were going out on a regular basis for jobs.
TCR: We hear about prisoners who finish their terms just being loaded on a bus. Is that what really happens?
LoBuglio: It used to be predominantly true, and it still is too often true. They might be given just $40 in “gate money.” Much of the support for better reentry procedures in the early 2000s came from reports that people in solitary confinement literally went from being in shackles and chains to being released into the community. In a good corrections system, you want people to be properly classified, for example starting in medium security general population and being able to have their security classifications “stepped-down” to minimum, and to be placed in work-release programs as they neared their release date.
The retrenchment in pre-release centers and the use of halfway-house beds has had an effect of constipating the overall functioning of the corrections system, and having too many individuals “stuck” at medium classification. There should be opportunities for people in prison to behave well, and that if they play by the rules, they should get commensurate privileges. Behavioral change is most likely to happen when you have a clear set of rules to go by.
Years ago, economist Anne Morrison Piehl of Rutgers University interviewed inmates at the Montgomery County Pre-Release Center and found that most all of them could recite from memory what actions they needed to perform to even receive small benefits. Her paper for the conservative think tank Manhattan Institute called the “Powers of Small Rewards” is a reminder that good corrections involves setting up a clear and fair system of rewards and sanctions to encourage behavioral change. If you have the possibility of getting work-release status for a person serving, say, five to seven years, that is a powerful inducement.
Studies of causes of disturbances in prisons have put lack of programming and lack of fairness for inmates at the top of the list. We’re not running correctional institutions as safely as we could. Doing it well provides an element of safety for corrections officers as well as for inmates.
TCR: We’ve mentioned the Second Chance Act. Some people may not realize that it was proposed and signed by President George W. Bush and was pushed by conservatives such as the late Charles Colson.
Editor’s Note: The late Charles Colson, an aide to President Richard Nixon, served seven months in prison in the Watergate scandal and later founded the Prison Fellowship.
LoBuglio: Yes, the Second Chance Act was a bipartisan measure that was co-sponsored by Vice President Mike Pence when he was in Congress in 2008. The main sponsors were Republican Rep. Rob Portman, later director of the Office of Management and Budget and now a U.S. Senator, and Senator Patrick Leahy from Vermont. There was a remarkable bipartisan consensus for Second Chance, supported also by faith-based organizations.
The law was an acknowledgement that the federal government has a role in determining what works to reduce recidivism. There was a recognition that recidivism rates of people who had been in prisons and jails was too high. Also, states and localities didn’t have the ability to do the research and development. The Second Chance Act helped establish research in this area. The correction system consumes an enormous part of state and local budgets, and almost all of that goes to staffing, building and health care.
The federal system used to be the gold standard in corrections systems, and one part of that was setting the bar high. The National Institute of Corrections [in the Justice Department] plays a role in raising the professionalism in the field. In 2008, there was a recognition that states and localities didn’t have enough information, knowledge and resources to do the experiments to figure out what works in corrections. The legislations provided the funding mechanism for the federal government to seed prisoner reentry of different types across the country. More than 800 programs have been funded.
About $500 million has been spent under the law since 2008. To help create and spread new knowledge, the National Reentry Resource Center was created in the Council of State Governments Justice Center, which has run it since 2009. The spending under the law is a relatively small figure, but it is significant because corrections is an $88 billion annual enterprise – this part of it represents the R&D. Without it, there would be nothing. The law plays the role of a catalyst in reentry. There are about 5,000 total correctional institutions in this country including 3,000 county and municipal jails. Not many states have had a major commitment to rehabilitation. In some states there has been a tradition of good corrections systems. Many states have not been able to keep up.
The federal prison system used to be known as the gold standard in corrections. It’s quite startling to see now how denuded the system has become. That has been true in state after state – a wholesale retrenchment in programming. We now have the ability to rebuild the programming infrastructure based on sound evidence. We are much smarter in 2018, knowing much better what we should see in corrections.
The Council of State Governments Justice Center held a “50-state summit” on corrections last November, when Georgia Supreme Court Justice Michael Boggs talked about significant reforms that the state has taken through Justice Reinvestment but he recognized that almost all of them to date dealt with nonviolent offenders. He explained that the next chapter of this work will need to address violent offenders. In 2018 we should be talking about what we can be doing regarding interventions with violent offenders who will be released. That subject needs a dramatic review. We are risk-averse because of Willie Horton-type cases.
As corrections populations nationwide have declined, we need better research to develop a full panoply of correctional innovations, especially because a large proportion of inmates in some correctional facilities are higher-risk people. Those people present generally more complex and more challenging cases.
TCR: The overall recidivism rate is often summarized as two-thirds to three-fourths of former inmates being rearrested in the three years after they are freed. Do we know if that general picture has changed?
LoBuglio: Some states have been able to reduce their recidivism rates. One way it happens is through changes in sanctioning policies so that there are intermediate steps before someone on probation winds up in custody. We have demonstrated that we’re able to reduce recidivism first and foremost through administrative action (changing revocation policy), but also through behavioral change.
Possibly the best study was done by the Urban Institute of Allegheny County, Pa., which found that participation by one group of inmates in a reentry program reduced recidivism by 30 percent.
What concerns me is that the national evaluations have not been very helpful in providing us with good advice. The challenge is to determine whether there are programs with sufficient quality and substance to make a difference. It is very challenging to maintain high quality programs with sufficient dosage. Some discussions with inmates, for example, may devolve into rap sessions. There are many implementation challenges. It’s difficult to give a probationer or parolee sufficient content to make a difference. People have many demands on them, such as maintaining a family. It’s much easier to help them if they are in a correctional setting.
TCR: Some experts have suggested that we should start preparing inmates to leave prison on the day they enter custody. Is that a worthy goal, and does any place actually try to do it?
LoBuglio: I agree with the theory. Some people even say that reentry preparation should begin when someone is arrested. Ideally, there should be a risk-need assessment of someone as soon as they enter custody and a programmatic plan developed. The best implementation of this that I’ve seen was done by Michael Ashe when he was sheriff of Hampden County, Massachusetts.
There used to be a belief that you can’t start the rehabilitation of individuals until 10 or 15 years down the line. Others say you can’t do much if the person is going to be in jail for only a week. What is the ideal period? This used to be referred as the Goldilocks problem: Is the period to short or too long for rehabilitation, and what is the “just right” period? Well, the answer is “do something” in every case, and recognize that it will be necessarily different based on resources and time remaining.The answer is an individualized treatment plan that takes into consideration sentence length and victims. Some people might have 10 years remaining to serve, but need lots of education and substance abuse treatment. You might have only 50 slots in a program and have to choose between a prisoner who has 20 years to serve and one with six months.
TCR: Where would you say that the U.S. stands generally on prisoner reentry?
LoBuglio: There has been dramatic change in some corrections systems that are paying attention and are focused on change. There have been great gains in the reduction of jail populations, but that can mean more challenges dealing with the people who remain in custody, who are much more difficult to deal with. We shouldn’t be surprised if those people have high rates of failure.
I think we need to look at systemic changes rather than programmatic ones.
We need to change the conditions of confinement, for example, so that some people don’t need to stay in prison so long on the front end, and we can focus on the high-risk individuals who remain there. We need a new type of facility that will wrap in medical and mental health treatment, and we must improve the collaboration between other agencies. We need more businesses as stakeholders. More businesses are rethinking their policies and hiring ex-offenders. It’s new and different to have them at the table—an important part of the conversation on reentry.
We also have more formerly incarcerated people taking part in reentry programs, bringing a level of reality to them.
There are many social service providers involved in prisoner reentry, but the quality of services is very uneven. If there were a rating service like “Yelp” in the social service area, that would be very helpful. It would be good to strengthen the social service community with a smaller number of providers with better quality services.
TCR: Have programs funded under the Second Chance Act been evaluated?
TCR: What do you make of the Trump administration’s interest in prisoner reentry?
LoBuglio: They changed the name of the interagency council established during the Obama administration, to add the term “crime prevention.” It makes sense to have federal agencies working in concert on this issue. The important thing now is for Congress to reauthorize the Second Chance Act, which I’m hoping will happen with all of its bipartisan support.
Ted Gest is Washington bureau chief of The Crime Report and president of Criminal Justice Journalists. He welcomes readers’ comments.
Increasing numbers of females now serve in the senior ranks of US policing, and they are slowly changing law enforcement practices across the country. But there’s still a long way to go before women cops can achieve full equality with their male peers, a University of Illinois professor argues in a new book.
A barbed comment by a soon-to-retire Illinois State Police lieutenant gave Cara Rabe-Hemp both the title and the theme of her new book.
Observing that the lieutenant, who had joined the force in the 1980s, was just completing a 25-year career in the policing, Rabe-Hemp asked her, “Do you think anything has slowed you down?”
“Policing is a boys’ club,” came the quick reply, “And if you haven’t noticed, I’m not a boy.”
Rabe-Hemp, a professor in the Department of Criminal Justice Sciences at Illinois State University, set about exploring the complex and frustrating reality behind those words. Her book, “Thriving in an All-Boys Club: Female Police and Their Fight for Equality,” focuses not only on the careers of women who have been trailblazers in what is traditionally considered a “male” occupation─but on why, like the Illinois police lieutenant, they still feel like outsiders in police culture.
In a conversation with TCR’s Megan Hadley, Rabe-Hemp described how law enforcement agencies in the 1990s and 2000s began to open their doors to greater numbers of women, how in the process female officers have changed the practice of law enforcement across the U.S., and why—despite the changed climate─recruitment of women appears to be declining.
THE CRIME REPORT: You write that police culture in the 1980s was “accepting and protective of sexually harassing and discriminatory behavior.” What has changed?
CARA RABE-HEMP: Women in the 1980s faced a lot of sexual harassment and discrimination, but what was interesting about that was they expected it. So most of the women I interviewed from the 1980s knew when they went into policing that it was going to be a male domain. They knew they would have an uphill battle in being accepted.
One of my favorite stories is about a male officer who insisted on opening the car door for a female because that was a part of the culture at the time. In the 1990s, there were so many more female police officers, and there was a change in the culture. Women were taking on many more responsibilities in policing and in the work culture and things got better.
What I was really surprised about was the women who entered policing in the 2000s. I assumed that we would find harassment had fallen off the radar, but that has not been the case. Women in the 2000s describe fairly heinous experiences with sexual harassment and discrimination. Covert, yes, but still experiences we would associate with the 1980s. I think (that’s) one of the reasons that the number of women in policing is actually starting to drop now. We’re not re-hiring female police the same way we once did. Women are again finding themselves in a token status and really struggling through that.
TCR: One significant problem you highlight in the book is mental health and, in particular, the difficulty officers have coming forward to talk about depression, anxiety, and PSTD. They see this as a sign of weakness. Do women play a role in changing that perception?
RABE-HEMP: We know there is a potential for women (and people of color) to bring about change in police culture. Women have different socialization experiences than men do, and at the end of the day, we raise women differently than we raise men. Those experiences can influence how they do the work that they do.
We know when women enter organizations, they challenge the way things have been done. This results new policy and new, creative ways of problem-solving. In policing, we see this illustrated by organizations with female leadership and greater female representation. Women are more likely to have family medical leave or light duty, maternity leave, and more likely to have inclusive leadership in their organizations. Women entering police organizations have the potential to change how police do their jobs on the street.
TCR:So why have the numbers of women police officers decreased?
RABE-HEMP: There are a couple of things that we know are holding women back. There is a problem with recruitment. There is also a problem with retention. Those are two different problems. Recruitment in policing emphasizes upper body strength, and typically men win that battle. Biologically, we know that upper body strength is a way in which women are disadvantaged, specifically in recruitment practices. But here is the frustrating part about that: there is no research that connects upper body strength with the ability to police. We know this because most police agencies don’t require the repetition of that test. It’s not necessary to do the job, but because of that rule, we see a lot of women disqualified right off the bat because of recruitment policies for policing.
We also see continued resistance to women in police culture. Today we still have police agencies who have never had a female officer, ever. In those agencies the resistance to women can be pretty strong. Finally, police agencies have to start looking at family-friendly policies, they have to follow the business world that have women returning to work in mass. Police families would be much more accommodated if we looked at family-friendly policies in policing.
TCR: What kinds of recruitment tactics would draw more women into policing?
RABE-HEMP: The number-one predictor for having a diverse pool is spending money on recruitment. Agencies that put their money where their mouth is and lay out a recruitment strategy for hiring diverse applicants actually end up with a much more diverse pool. There are manuals out there for police agencies who are looking to diversify. One thing that is helpful is having diverse recruitment tools─(for instance) flyers that show people of color and women doing different jobs.
TCR: The lack of trust between police and community is a major issue in law enforcement today. Can female police officers play a role in changing that?
RABE-HEMP: In the book, the point I am trying to make is that we know we are in the middle of a legitimacy crisis in policing. Making police agencies more representative of the communities they serve could be a solution to this crisis. As police departments look for a new breed of police officers more likely to use communication skills and problem-solving skills, people who define policing through service to community members, the evidence that women bring many of these positive benefits to policing make it an argument to take a better look.
We know that women are great communicators, and they are less likely to use force. So their increased representation in policing means more peaceful citizen interactions. They are less likely to be named in citizen complaints and lawsuits, which saves agencies and taxpayers millions of dollars each year. Female officers are more likely to take (seriously) reports of domestic violence and sexual assault cases. Women bring positive benefits to policing, and they have the potential to alter the way police officers police.
TCR: Do you need to strike a balance between male and female police officers?
RABE-HEMP: Yes, definitely. More than just a balance. My book celebrates the positive attributes of female police officers but it in no way takes away from celebrating the success of male officers. The argument I’m making in the book is that women make a unique contribution to policing as well.
TCR: How can female officers help deescalate police violence?
RABE-HEMP: I think the big point is communication. There are a lot of stories in the book about how female police officers talk suspects into cop cars instead of going hands on. The suspect will literally put themselves in the back of the car. So increasing communication skills and problem-solving skills is one option.
TCR: One interesting point you make is that it may actually be safer for female police. You write that “sex norms may also dictate that potentially violent citizens may feel it is heroic to attack a policeman but cowardly to attack a policewoman.” Can you expand?
RABE-HEMP: In our analysis of police-citizen interactions, we found that women were at no greater risk than male officers at being assaulted except in a very small subset of cases, and in those cases, the perpetrator was involved in domestic violence and alcohol. In those situations, women were more likely to be assaulted or attacked by a community member, but other than that, there was no greater risk between male and female officers.
TCR: You discuss at length the important role women play in addressing crime victims, specifically, victims of sexual assault and domestic abuse. You quote one patrol officer stating “I don’t want the guys to tell the girl she deserved to be raped” and further re victimize the individual? Should women be the ones to respond to these calls of sexual abuse?
RABE-HEMP: This is a great debate within the research world, and the truth is I don’t have the answer to that. Recent research [from the University of Illinois in Chicago showed] that agencies with more female officers were (more) likely to take cases of sexual assault, and they were also more likely to clear those cases. One [possible] reason: when agencies look like the communities they police, citizens are more likely to report those crimes to the police. So it might just be having that image for the community changes the likelihood of them reporting crimes.
We need more research before we can answer that question. But right now, what it looks like is having agencies that are more representativem and having more female officers, may encourage community members to come forward, especially with crimes of sexual assault or domestic violence.
TCR: What do you think the future holds for women in policing?
RABE-HEMP: In the book. I tried to not shy away from the challenges faced by women police, but those obstacles are no match for the women who wear the uniform today. I met the bravest women who are absolutely dedicated to their occupations, families and communities. In 2015 women were heading the DEA, the Secret Service, the D.C Metropolitan Police Department, the Washington field office of the FBI, and the Amtrak police. Within large agencies today, woman are breaking those top command spots and these are all indicators that women are making great strides and promotions. It seems that simply by doing police work the way they do every day, women are inspiring the next generation of female police officers to step up and follow in their paths.
TCR: What about the high reported rates of domestic abuse involving police? What needs to be done to address this issue?
RABE-HEMP: Domestic violence is a pervasive problem in our society and it is not unique to policing or to any type of occupation. We see domestic violence in all types of families. One thing that can be done, is for us to be aware of the signs and make help available, and encourage those who need assistance to get the help they need.
TCR: Do you see policing changing in the near future? And will women police officers play a role in that change?
RABE-HEMP: Policing is an old institution and the more things change the more they stay the same, but I do see that right now police are attempting to be more community- friendly and more community-focused. I think our consumer model in our society is driving policing as an institution to have that focus. Women are making great strides within policing, and they are going to influence not only how we do police work, but will act as catalysts for change within [police] organization. That is inspiring other women to step forward.
Megan Hadley is a staff reporter with The Crime Report. She welcomes readers’ comments.
Three Dallas men freed after being exonerated for crimes they didn’t commit dedicated the rest of their lives to saving others in the same situation. Filmmaker Jamie Meltzer tells their story in a PBS documentary to be aired Monday.
Christopher Scott, Johnnie Lindsey and Steven Phillips served a combined 60 years in prison for crimes they did not commit. But when each of them was finally exonerated, they did more than just celebrate their newfound freedom. They decided to put their hard-won knowledge of the criminal justice system to help others in the same position, by forming a detective agency to do the kind of investigation that would otherwise be unaffordable to victims of wrongful convictions.
But their organization, called the House of Renewed Hope, offers services not usually associated with private eyes. Not only does it fight for innocent people in prison; it supports the exonorees once they get out. Their story is told in “True Conviction,” a documentary directed by Jamie Meltzer, which is scheduled to be shown Monday on PBS stations.
Scott and Meltzer sat down recently to talk with TCR’s Julia Pagnamenta about how the film was made, and about why it takes a combination of detective skills, prison-honed patience and sheer stubbornness to succeed in their chosen mission.
The Crime Report: Jamie, how did you become aware of Christopher Scott, Johnnie Lindsey, and Steven Phillips, and the work they were doing on behalf of wrongly convicted people?
JAMIE MELTZER: A friend named Michael May, who was a reporter in Texas, had done a story about the Dallas County exonorees. At that time, in 2012, there were more than 30 exonorees. Then he told me that Chris [Scott] and a few of the other guys, were about to start a detective agency, an investigation team to look into other wrongful convictions. I thought that was a brilliant, really interesting idea. As a documentary filmmaker you are looking for a really compelling story as a way to shed light on a larger criminal justice issue. This seemed like the perfect vehicle for that. Then I spent an afternoon with Chris and about a dozen other guys who were all exonerated. Just being in that room was really moving. It convinced me that this was a story that needed to be told.
TCR: And the criminal justice system was new to you?
MELTZER: I hadn’t had any experience with the criminal justice system or thinking about it too deeply. Like most people, until it affects you personally, it’s sort of unfathomable that what happened to these guys would happen. Of course, after you spend time with the exonorees, you realize it can happen to anyone. Steven Phillips is a white guy who is wrongfully convicted, but the film really is about structural racism in the criminal justice system. There are many more African Americans that this is happening to. It made me ashamed that I had never thought that this could be a danger.
TCR: Chris, can you talk more about your relationship with Steven, who was wrongfully imprisoned for 25 years on a sexual assault case? In the documentary you explain that Steven helped you out once you got out of prison in 2009. He gave you $20,000 to help you start your new life.
SCOTT: Steven gave me that out of his compensation money because he [had gotten] out before me. He had already lived the experience of being an exonoree, and he knew the challenges it would take to get through those dark and trying times. He just pretty much took me under his wing and told me how to survive and live again. He said, “Don’t let getting wrongfully convicted hinder you.” [It’s] supposed to make you stronger, supposed to make you want to do things that help you change the criminal justice system. So his experience gave me my experience, and that $20,000 helped me from the time that I got out to the time I got compensated. That was just Steven’s good nature.
TCR: The documentary gets some incredible access that you wouldn’t typically see on screen. For instance, there’s a moment when you visit Steven Phillips in jail after he gets arrested [a second time] because a police officer searches his car and finds drugs.
MELTZER: We were very persistent as a production team. When Chris and the guys want to interview someone for a case, it’s very hard to turn them down because they have such a compelling back story. As for me, the filmmaker, I would just follow up. It wasn’t that big of a deal. I remember within that jail environment Steven was in, he made really good friends with the warden because she understood his story. She was just a good person and she responded to the story.
CHRIS SCOTT: Steven was dealing with a drug situation. When people get exonerated they still have demons that they are fighting and it’s easy to slip back into that mode, so being able to capture Steven in jail maybe did him some good because he knew we were there for him. TCR: What happened to Steven’s case? The documentary ends before his case reaches a verdict.
MELTZER: It gets dismissed.
SCOTT: Illegal search and seizure.
Documentary filmmaker Jamie Meltzer learned about the House of Renewed Hope from a reporter at the Texas Observer. Photo courtesy PBS
MELTZER: Basically the police officer looked him up and somehow saw that he was convicted but he hadn’t been convicted because his record should be expunged.
SCOTT: I guess [the police] thought they had probable cause. He had a shotgun in the car window, and shotguns are legal [in TX], but maybe the cops were just suspicious. As Steven said, the cop Googled him and sees that he is a felon. Steven said, I am not, so the cop says OK, we are going to search your car. The judge dismissed him because he said it was evidence [obtained as] fruit of the poisonous tree. It should have never happened. He got really lucky. The crazy thing is Steven missed a trial date because he was in the casino, and the judge looked at his Facebook page and sees a picture of Steve at the casino the day he was supposed to be in trial, but the judge still let him make it. So in actuality you can look at [Steven’s case] as having that white privilege. Because if that was an African-American guy he would have been hung, and that’s why I am glad Steven is part of my team because it shows you the racial bias. Steve got away with it, but the average black guy is not going to get away with none of that. He is going to go to prison.
TCR: Do exonerees receive any form of help or support when they get out of prison?
SCOTT: Exonorees get nothing. It’s just like, “hey, we let you go.” [You don’t get compensated] until you get declared innocent.
TCR: Which can take a long time. How long did it take for you?
SCOTT: I think mine was the quickest. I think I got exonerated in 90 days. But other exonorees, it took them a year or two, or three or four years, to get fully exonerated. I think for me it was so quick because I was the first non-DNA case, and it was two of us, so they wanted to set a precedent. People with non-DNA cases now have a fighting chance. With me being released, it just showed them that even though you don’t have any DNA, you can actually be found innocent.
TCR: Chris, you were in prison for 13 years. During that time, did you think you would ever be exonerated?
SCOTT: At one particular time I didn’t, but as the years went on, I thought something has got to break, something has got to happen, but I never knew a guy that came back and confessed to capital murder, so that was the only thing I had to live for. I was wondering will the guy [the man responsible for the crimes] ever do it? Eventually he did.
TCR: How did he go about confessing the murders?
SCOTT: The first time he confessed was kind of weird because he confessed to my brother, not knowing the guy was my brother. My brother worked at the barber shop, and [the man] came into the barbershop talking about the case, and my brother overheard him and said this sounds like my little brother’s case. They ended up meeting in the yard and he showed him a picture of me, and he said, yeah, that’s the guy who’s in prison for me right now, Christopher Scott. But that happened in 2002, and I didn’t get released until 2009. I do seven more years.
TCR: What did your brother do with this information?
SCOTT: He wrote an affidavit and we sent it to the district attorney’s office, and their response was, there is no way we are going to accept this affidavit because we’ve never done a non-DNA case before. There is nothing to prove that you didn’t commit this crime. It took until 2006 until we got the first African-American district attorney in the state of Texas, Craig Watkins. He took it upon himself to see if there was anything he could do about this non-DNA case.
TCR: What was your experience like, getting out of prison after serving 13 years for a crime you didn’t commit?
SCOTT: Well, being in prison, everything is pretty much controlled. You’re in a controlled environment. You can only think so far out the box. And being free is having the freedom to do exactly what you want to do. It’s about cherishing those small things in life, and it’s crazy because in prison you are limited.
Steven said that when he first got out he stood in the potato chip aisle for about 45 minutes because he was mesmerized by the varieties. I was the same way with ice cream. In prison, you got vanilla, chocolate, strawberry, maybe Neapolitan, that’s it, you don’t have the sherbets, or the mixtures of ice cream, or the butter pecan, praline and cream.
TCR: Jamie, you started filming “True Conviction” in 2012, and what makes the documentary so compelling is that by following the lives of the three exonorees, viewers witness these incredible, often traumatic events unfold. Steven, for instance hadn’t been arrested when you first started filming. And you were filming the scene in court where Chris’ son gets sentenced to seven years in prison.
MELTZER: That’s the power of documentaries, you are along for a journey, and you connect with amazing things people are doing, like Chris and his team. Neither of us knew what was going to happen.
TCR: Chris, was there ever a moment where you were thinking, or you told Jamie, I don’t want this to be captured?
SCOTT: I wanted the world to see [how] me being taken away from [my son] at a young age affected him. Because at the age of 16 is when he caught his first charge, and went to prison for it. And him knowing I wasn’t there, he was like, you were all I had. Once you left I had no one to depend on, so he started depending on himself and turned to a life of crime.
I know that if I hadn’t been wrongfully imprisoned my son would have never [committed the crime]. I would have been able to raise him right, raise him properly in terms of doing the right thing in society. A lot of times when kids get in trouble it’s [because they are] from a broken home. Because their dads aren’t there to show them how to be a man. It triggered a lot of emotion. I wanted this to be captured because the world needs to see that this happens and it destroys [the lives of] everybody that it touches. TCR: The documentary captures the cyclical nature of this destruction. There is a lot of footage of you caring, and raising your grandson.
SCOTT: My grandson is the same age that my kids were when I left [for prison].
TCR: The documentary follows the story of two men who claim to be wrongfully incarcerated, Max Soffar and Isaiah Hill.
SCOTT: Isaiah Hill’s case came to me because his cellmate wrote to me. He was accused of aggravated robbery over $150. The way he expressed himself about being falsely imprisoned, and then the emotions he had, [I knew] this is not a guy who is lying. . So I took it upon myself to help him as much as I could. We were working on Isaiah’s case for at least three years, trying to help him get exonerated. We located the guy who had supposedly committed the crime, Don Wallace. TCR: After serving 40 years, Isaiah Hill wasn’t exonerated?
SCOTT: He got paroled because [Don Wallace] wouldn’t confess to the crime. There is no way in the world that [Isaiah Hill] committed these crimes because Isaiah is mentally challenged, he’s illiterate, so I don’t see him concocting something like this to commit a robbery. So from day one I believed him. He was locked up in Brownwood, TX. It’s a racist town. We came to realize that Isaiah was set up. We even proposed to Don Wallace that we can get a letter from our attorney saying you won’t be recharged. But he would not do it. He said he had beaten nine aggravated robbery cases, and I was [thinking] —those nine cases you beat, you probably got nine innocent people in prison behind those nine robberies.
TCR: Because he wasn’t exonerated, besides not getting his name cleared, Isaiah didn’t get compensated?
SCOTT: He can’t get compensated.
MELTZER: He gets social security.
SCOTT: We made sure he got some kind of income.
MELTZER: But he’s doing really well. He got out in 2016, and it took a year after that to get the ankle monitor off.
SCOTT: And now he’s married.
TCR: And what about Max Soffar, who maintained he was wrongfully accused of committing a triple homicide in Houston bowling alley?
SCOTT: He was on death row for almost 40 years. Michael May, the reporter from The Texas Observer who brought us to Jamie’s attention, told me about him. When I first encountered [Soffar] I believed him. Because for a person to give you that much detail about the case I got the feeling he was telling the truth. Like we said in the documentary, Max Soffar was a habitual liar. He fabricated a lot of stories, so I think they just got tired of him crying wolf, and eventually they closed the case.
TCR: He was convicted based on his confession, which has been proven to be an unreliable method of extracting information.
SCOTT: He had three different confessions, and none of the confessions met each other, or had anything to do with the case itself. But when you have a prosecutor who said God made him convict Max Soffar without any physical evidence, then you know there is a problem. How can god allow you to convict somebody without any evidence, and allow him to be put on death row?
We had a prime suspect [Paul Reid], but he died on death row of natural causes.
MELTZER: We went to Nashville and met the public defender for Paul Reid. There’s a scene about him in the film. He killed eight people in a similar way, so Chris and the guys interview a couple of people who know different things about Paul Reid, and there’s a lot of evidence. If he was alive they would have gone to him.
TCR: And Paul Reid was already in prison for the other murders he committed?
SCOTT: He had seven death sentences.
TCR: So if Reid was already in prison, what did he have to lose by admitting to the murdersSoffar was wrongfully serving time for? His silence kept an innocent man in prison.
SCOTT: I just think a lot of people don’t want to confess. This guy already had seven sentences, why not come forward and confess, but it’s just him feeling that that’s the one he got away with.
MELTZER: Well, he also said he was innocent of the things that he did do. He wouldn’t want to admit to having done this other thing when he hadn’t even admitted doing the crimes he was convicted for.
TCR: But in Paul Reid’s case there was evidence that pointed to his culpability?
MELTZER: There’s a lot of evidence that points to it, the problem was that at Max’s trial they wouldn’t let him bring up anything about Paul Reid. If Max hadn’t died, there was about to be an appeal.
SCOTT: Yeah, in three days.
MELTZER: They could have brought that up in a new trial, and maybe the jury would have thought differently of the confession.
SCOTT: One of the key witnesses never got a chance to testify and new evidence was discovered before he died. We knew Max didn’t do it; we just didn’t have enough to prove that he didn’t do it.
TCR: Did you know when you first met him that he was sick?
SCOTT: No, not when we first interviewed him, but a year or so later we found out that he had liver cancer.
TCR: At Max Soffar’s funeral, which the documentary captures, Chris, you say in his eulogy, “the state killed him.”
SCOTT: He was trying to get exonerated and get better health care. Maybe he could have gotten compensated and paid medical bills for his cancer treatment. But he didn’t make it.
TCR: Did you ever meet with Texas Gov. Rick Perry on issues of wrongful convictions?
SCOTT: Yeah, a couple of times. I didn’t like him then, I don’t like him now. The only time we really met him was dealing with the legislation of compensation, he signed the Timothy Cole Act.
TCR: Your organization is billed as a detective agency, but the services you, Johnnie, and Steven provide extend far beyond investigative work. You provide each other with emotional and financial support as well.
SCOTT: I just put myself as the man with many faces, you know? Because at the end of the day, you have to be a detective, you have to be a counselor, you have all those faces, because even dealing with someone like Isaiah Hill, we had to make sure he was right. We had to make sure we got his birth certificate, his social security card, identification. We had to make sure he had his doctor’s appointments. Made sure he got his meds, so we were doctors, lawyers. We were everything to Isaiah, and to our other clients we are the same way.
TCR: Johnnie, who was wrongfully imprisoned for 26 years on sexual assault charges, died since the documentary came out. Chris, do you want to talk about him?
SCOTT: Johnnie had the same passion I had, to free as many people as we can before we leave this world. And Johnnie was the guy who asked good tough questions, but was able to reason with people. We were like good cop, bad cop. I think I was the bad one because I pretty much applied the pressure. He’s pretty nurturing, he looked for the good in pretty much everybody.
TCR: Since Johnnie’s death, have you had any other exonerees come on board? How are you at House of Renewed Hope managing this workload?
SCOTT: No, I didn’t bring any new exonorees on, because our visions are different. We all have different things that we’re good at. Some are good with lobbying with legislation; some are good with reentry, some with investigating cases. I think we all got out and got our own feel of things. You know, I had Steven and Johnnie to help me, but the majority of the people who helped me get exonerated from the district attorney office also work with my organization.
TCR: Although exoneration is the ultimate goal, life post-exoneration is full of challenges. As an exonerated person, is your record fully expunged or do you face the same barriers in registering to vote and finding employment—answering questions about former incarceration on official forms for instance—as someone whose been formerly incarcerated?
SCOTT: I vote every year. My record is expunged. I don’t check any boxes. Some exonorees are not fully exonerated, so they have to check that box, but most of us don’t.
MELTZER: But a lot of exonorees still have the same challenges. Johnnie was in prison for 26 years, and Steven 25 years, and they got out as older men with all that time taken away from them and no way to develop a career. And Chris has done all sorts of entrepreneurial things since he got out, but he’s also had this time taken away from him. From 27 to 40, that’s a pretty important time to develop a career.
That’s the whole point of the compensation, and why it’s needed. If you are struggling with PTSD, you actually need more support. That’s the thing, the parolees get support, they get a little bit of money, it’s not necessarily a great program, but it’s something. Exonorees just get out, that’s why [Chris’ organization] is so important.
TCR: Right, there is not a state-supported system for exonorees, unless they start one for themselves.
SCOTT: Yeah, I think a lot of people look up at Dallas County exonorees because of the [foundation] that we’ve laid. It’s a brotherhood. It’s no longer about us, we’re out, and we’ve been compensated. We’ve been living our lives for 10 years now. We want to pave the way for the men and women who’ve been left behind. Things are much better now than when we first got out. There are more exonorees that you can go to for support and help. We can be each other’s psychiatrists. I can lay on your couch, you can lay on mine, and I can pick your brain because I know pretty much the questions to ask you. What’s going to make you mad? What’s going to trigger your anger? What makes you happy?
And kudos to the women who deal with us because we are screwed up. We are not whole. There is something still missing. I don’t think we’ll ever be completely whole again.
“True Conviction” will air on PBS Channel 13 on Monday, April 30th at 10 pm EST and can be live streamed here.Julia Pagnamenta is a TCR news intern. She welcomes comments from readers.
Calvin Buari, convicted of a double murder he didn’t commit, was a casualty of over-zealous prosecutors in New York’s tough-on-crime era of the 1990s. In a conversation with The Crime Report about his new podcast, “Empire on Blood,” investigative journalist Steve Fishman tells the story of the battle to clear his name.
Calvin Buari spent 22 years in prison for a double murder he didn’t commit. He was a notorious crack dealer in The Bronx, N.Y., when he was arrested, which made the struggle to prove his innocence─and find allies who could help get his case heard─that much harder.
But when he persuaded veteran journalist Steve Fishman to investigate, his fortunes changed.
Buari was exonerated in May 2017, seven months after his conviction was vacated and he had left prison. The story of Buari’s search for justice is told in a recently released podcast, “Empire on Blood.” The seven-part podcast takes listeners back to the New York of the 1990s, when the city was reeling from a crack epidemic and 2,000 murders a year, and newly elected Mayor Rudy Giuliani came to power promising “tough-on-crime” strategies. But it also offers troubling lessons for today about the collateral damage of those strategies.
In a conversation with TCR Deputy Editor Victoria Mckenzie, Fishman reflects on his seven-year-long investigation, on how he battled his own doubts about the case at the beginning, and on what his podcast reveals about the workings of the criminal justice system.
The Crime Report: Why were you obsessed with this case?
Steve Fishman in the studio (courtesy Panoply Media)
Steve Fishman: I resisted the obsession for a long time, but I guess the origin story, because I’ve thought about this a bunch, is the first call with Cal. He had been put in touch with me by a guy I knew, Emel McDowell, who in fact had won his innocence after being convicted of a murder at the age of 17. Emel says to me ‘I think Cal is innocent,’ so Cal picks up the phone and cold-calls me. And there he is at the other end of the line. Having had some experience with prisons, I can picture Cal on the payphone, standing with these inmates behind him waiting on line for their 15 minutes. And he’s kind of racing through the details of his case and all of this evidence, and it’s a blur—even if I really wanted to I couldn’t have deciphered it.
Maybe it was one of those moments where I was particularly open or vulnerable. I mean, his voice was filled with despair despite the fact that Cal, as I later came to know him, really learned patience and emotional control in prison. I’m imagining this guy with the whole system stacked against him running this campaign for freedom from this prison payphone. It was one of those moments where I was able to imagine, to whatever extent I could, that it must be excruciating to face those kinds of odds.
[I said] “OK Cal, send me the transcripts,” and then these 1,100 pages arrived. It turns out that not only is this one prosecution witness, Dwight, Cal’s “great friend,” really organizing the prosecution, but the prosecution is handing out deals. All of the witnesses who are brought in by Dwight have received an order of protection, which means that Cal and his defense attorney cannot know the names of witnesses who are testifying against him until they walk to the stand. So I’m reading this and I’m thinking— this is crazy! This is insane, this is unfair.
And then I read that in chambers, the judge is saying the same thing. It’s the first day of trial, and the prosecutor in chambers says he just got a phone call from a new witness, and it’s like raining witnesses… and the judge says, for all I know there’s a call out to the entire northeast, any drug dealer wanting to testify will have the charges dismissed against them!
And it just became a moment for me where you start to feel like—the system’s not fair.
It became a road that I was willing to walk. And I have to tell you, it wasn’t easy. I mean, Cal’s no angel. I liked him, I think he’s changed— but he was a guy who was boasting that he helped bring crack to The Bronx. He was a very successful drug dealer and he was ruining neighborhoods, and he needed to be off the streets.
TCR:It seems challenging to get the general public to care about the wrongful conviction of an admitted crack dealer
Fishman: It was a real problem for the audience, and it was a problem for editors— it was a problem for the lawyers that Cal reached out to! He got on the phone and told them the evidence, and when they heard he was a drug dealer, they said: “OK, best of luck.” But I came to the belief that the criminal justice world and maybe the world in general is a complicated place, and the podcast really takes that head on, and I’m proud of that.
Courtesy Panoply Media
Calvin Buari and his attorney, Oscar Michelen (courtesy Panoply Media)
I think we say, yeah he’s no angel, but what does that mean? What right does that give you as the criminal justice system [to] say, “Well, he didn’t do this crime but he did another— so let the wardens sort them out?” I think that’s a pretty live question for the criminal justice system. People are flawed. Does the past always determine the future? If you believe in rehabilitation and psychotherapy, then no.
TCR:The story also epitomizes a key moment in New York City history, the Giuliani era. Where was your crime reporting at the time? How was this different from the other wrongful convictions?
Fishman: I had reported the wrongful conviction of a guy named David Wong, who was actually in prison for a robbery that he did commit, and then was accused and convicted of a prison yard murder he did not commit. Again, it’s a guy who’s not exactly the high school honor student that you want to root for. The difference for me is that I came in after he had been exonerated and I was telling that story retrospectively. So I was involved in it as a piece of drama that I had all the pieces for.
Cal’s case was very different, because in many ways I was really a catalyst. As a journalist you’re kind of supposed to be a step back, and you’re supposed to be objective. And I certainly was a journalist, as I had to remind Cal at several points. But I was also involved in the story, and I’m going to contend that’s where some of the richness of the narrative comes from.
I started a long time ago in an eastern Connecticut newspaper called the Norwich Bulletin, and the first big story that I ever did was about a rapist-murderer. Part of my portfolio has always been writing about crime, and that’s the reason I would get these envelopes from time to time.
TCR: Who was responsible for Cal finally getting the charges dismissed?
Fishman: Maybe the podcast put a little weight on that side of the scale, because the DA knew it was coming out in a few days and maybe it was a good idea to get ahead of the story. But it was really that Cal was incredibly, incredibly persistent and disciplined. Cal’s a smart and really gifted entrepreneur. One of the things he did on the street that he could not help but be proud of— even when he’s saying “oh, I didn’t realize all the bad I did” — when you get him talking about the crack trade, he says “I was always ahead of the game, I had these marketing gimmicks, I would do sales, two-for-ones,” and there’s a certain kind of pride in his voice. But it is true that he became this quite intuitively gifted businessman.
Calvin Buari (courtesy Panoply Media)
He goes into prison at the age of 24, and spends the next 22 years there. So he really spends his adulthood in prison. And he still has this entrepreneurial gift. He’s writing business plans. He starts a fashion business in prison. And at the same time, he’s maturing. He was all about self-gratification when he was on the streets, and he learns delayed gratification, and patience, and he learns discipline— to the point where he stops even leaving his cell. He just takes his meals in his cell, and reads his books and works on his case, with a level of single-minded devotion that is way beyond my capabilities.
And then, by the way, when he comes out— he’s been out seven months or so, because his case was vacated before the charges were dismissed—he started a business.
TCR: What was your role in the reinvestigation?
Fishman: I will admit that there were a lot of moments when I wavered because Cal’s story was not something that I always believed, not in all of its details. He was a drug dealer in an extremely violent time and he operated on a corner that was dubbed the Corner on Blood [Although] Cal said he was never violent, I always found that to be a little unsettling.
The private eye on the case was a guy who actually had been the private eye on the David Wong case. You meet him in episode 5. He’s a really weird, interesting guy, I mean very colorful. He was on this case and he knew that I was interested in Cal’s case, and he said, “Do you want to take a train ride? There were these new witnesses, and he didn’t know what they were going to say. We’re at a kind of restaurant at a Holiday Inn [in North Carolina], where we meet two sisters. One of the sisters had flashbacks of the scene right in front of me, because she had been 25 feet away [from the murders]. It solidified for me Cal’s innocence. And it certainly helped Cal’s case.
Myron Beldock (courtesy Panoply Media)
So Cal gets the affidavit from her and he manages to get hooked up with Myron Beldock, the legendary attorney who got Hurricane Carter out of prison. Beldock, then 85 years old, comes off his deathbed to basically take up Cal as his last case—and then he dies. And that’s another moment that really pushes me ahead on this path. Cal is a guy who can do 100 pushups without a stop—he’s a tough dude—and he hears that Beldock has died, and he’s in tears. It was just a very emotional moment. It was emotional for him, it was emotional for me. It was one of those moments where I could actually imagine what it might be like to suddenly have this… not just a setback, it’s like your life feels it’s on a course toward freedom, and then the tunnel you’re going through collapses on you.
Cal needed an attorney afterwards. He can’t make phone calls from prison except to people whose numbers are approved. so he would call me and I would conference in people, and I ended up conferencing in Emel McDowell, the guy who initially introduced me to Cal.
Emel had written the appeal that had gotten him out of prison, and then went to work for a law firm. [Emel offered his attorney] and he finally wins Cal’s case. I was a little bit of a provocateur, a little bit of a catalyst, and a little bit of a witness.
TCR: What was your role with the new witnesses?
Fishman: It’s a good question because I was there as a journalist, and I was introduced as a journalist. Journalists don’t usually get to ride along with investigators interviewing witnesses for the first time. I was also there as somebody who had been involved in the case for a long time. I would say that I was not there as an advocate, but I was certainly there as a participant. I did not see my role as urging them to come forward, but I grilled her on her story. It was a journalistic interview, but maybe there’s not too much difference between that and another kind of interview. I wanted to know how close she was, and I wanted to know what she saw, and who she saw, and how could she be sure?
Her story was very, very credible, and frankly I was kind of pleased by that, just from the point of view of having some assuredness about the story that I’d been on by that time for three or four years. it reassured me as a journalist, and because I always occupied a kind of strange space; it buoyed me as somebody who had been involved with Cal for a long time, because I knew, I knew as she said that. I knew that this really could change Cal’s life. It took another two years to get there.
TCR:One of the most striking moments for me is learning what happens to the witness who comes forward after 20 years to testify, how this innocent bystander gets punished by a pretty blunt-edged justice system.
Fishman: This goes I think to a larger question about how justice works. As you’ve pointed out it was the Giuliani era, the 1990s, there were 2000 murders a year. These guys— the prosecutor, the detective— felt they were the good guys. And they were the good guys. Somebody had to clean up the streets. And it wasn’t always pleasant work to do.
I don’t think that these guys are corrupt. I think that in the context of the times, they felt they had a mandate to act, in a sense, by any means necessary. And if he didn’t do this crime, well he did another crime. and you know what? With Cal, it was true. He didn’t do the murder, he did the drug [crime]. They were going to do whatever it took to make sure that someone like Calvin Buari was not on the streets. But the system can’t work that way.
TCR:Earlier this year, in a conversation about conviction reviews, Brooklyn DA Eric Gonzalez, commenting on the flood of murder cases of the 1980s and 1990s, said many of them were not very well investigated. The attitude was “We’ll just let the jury decide.”
Fishman: That could well be true. He probably mentioned, or maybe he didn’t, if you went before a jury in The Bronx in the 1990s, you didn’t have much of a chance. The DA had a huge advantage, and that advantage was that people were on the side of the DA. It was not a Black Lives Matter moment; it was a moment where Giuliani rolled tanks into the streets. People forget, the city was under siege. I don’t think [prosecutors] felt they had as high a burden of proof as they must feel now.
TCR: There were times during the podcast that you said either prosecutors or detectives intentionally neglected to investigate.
Fishman: I do think that there were times that… I want to choose my words very carefully here. I guess I can’t really use the word conspiracy, but listen— the main witness against Cal absolutely and definitively lied on the stand. And he lied on the stand in two regards: one is that he denied being involved in an attempt to murder Cal, and two, he lied in saying that Cal did it.
Dwight, the main witness, admitted to me that he lied about both of those things. And I really grilled him on the first one. Dwight had actually tried to murder Cal. And the fact that the chief witness against Cal had previously tried to murder him— that really seems like it would be an important fact for the jury to consider. Dwight was asked on the stand, did you have anything to do with the attempted murder of Cal, and he says no. But subsequently Dwight narrated for me how he tried to kill Cal– and so did the chief investigator for The Bronx DA! I asked Dwight, if he was surprised they let him get away with it, and he said no— that’s how the game is played. If you play by the rules, you’re always going to lose.
For me that was actually the most chilling moment in the whole walk through the criminal justice system. Because here you had the insider, the guy who really organized the prosecution, who was the chief witness. And basically he was not only saying that he lied, but he was basically saying that the system worked by allowing witnesses to lie. And I think one of the things the podcast does is really let you know how the system works.
Victoria Mckenzie is Deputy Editor (Content) for The Crime Report. She welcomes comments from readers.
For lack of alternatives, thousands of mentally ill individuals are trapped in the justice system. In a conversation with TCR, Alisa Roth, author of “Insane: America’s Criminal Treatment of Mental Illness,” says change will only happen when we reexamine our attitudes towards mental illness.
In her career as a journalist, Alisa Roth has written about people in what she calls “forgotten communities,” such as immigrants and the poor. But when she began focusing on the mentally ill trapped in the U.S. justice system, after a friend’s brother was locked up, Roth discovered what she came to realize was the most forgotten community of all.
“I can’t think of a group that’s more reviled and more misunderstood,” she told TCR. In a discussion with staff writer Isidoro Rodriguez about her new book, “Insane: America’s Criminal Treatment of Mental Illness,” Roth, a former Soros Justice Fellow, describes how jails and prisons have become the nation’s principal institutions for treating mentally troubled individuals, and suggests that strategies for developing more humane, treatment-oriented alternatives have to begin at the state and local levels.
The Crime Report: What was the catalyst for writing this book?
Courtesy Basic Books
Alisa Roth: I can’t think of a group that’s more reviled and more misunderstood than people with mental illness who are in the criminal justice system. We talk about the issue of race in the criminal justice system, we talk about the issue of poverty in the criminal justice system, but we don’t talk about mental illness. These three intersect and overlap, but we can’t think about global reform without addressing the mental health question.
As I mention in the book, I have a friend whose brother developed a severe mental illness and committed a horrible crime. As I was thinking about this whole system, it kept coming back to him. If we as a society can allow him to see an alternative outcome, and not spend the rest of his life in prison, we can allow that for other people who have done less morally or criminally complicated things.
TCR: Through the process of this book, what hurdles did you have to overcome?
AR: I chose two of the most closed systems to look into. The criminal justice system is extremely closed in terms of access, in terms of data, and in terms of information. Likewise, the mental health care system is bureaucratic and complicated. So just figuring out where treatment is being provided, and who should be providing that treatment is difficult.
Then there’s the whole health care aspect. People are not allowed to, or are unwilling to, share information about treatment. And there’s the stigma question in both systems. There is still shame attached to having a mental illness or having a family member with mental illness. We march for breast cancer or AIDS, but we don’t want to talk about mental illness and we don’t want to admit it. So, getting people to open up and say “yes, I do have this issue” or “yes, my child does have this issue and these are the struggles we are going through,” is very difficult. I am very grateful to all the people who were willing to share their stories with me.
TCR: How did dealing with this affect you, and how do you move forward after seeing what you have seen?
AR: I feel a great responsibility and duty to share these stories and spread them. I have the means to tell the world about these horrible situations, whether it’s the really awful abuses or just the day-to-day low-level abuses of being locked up with a mental illness. So, I feel privileged to share that.
Keeping that in mind was a way to mitigate the awfulness of it, but it’s traumatic reporting. I had a lot of nightmares about jail and prisons. I have a lot of friends who work in this universe, so it was great to be able to compare notes and talk about what we have seen. It is traumatizing and exhausting, but I kept thinking that I got to walk out of there at the end of the day, and I needed to take advantage of that to tell the world about how bad the problem is.
TCR: One of the subjects in your book is the practice of solitary, and you note that it is still in effect despite being considered a form of torture by the United Nations. Why do you think it is still being practiced in the U.S.?
AR: There are a lot of pieces that go into this answer. Unfortunately, we have abandoned the notion of reform and rehabilitation in our criminal justice system. We’ve moved back to the punitive notion. In some measure we think that people who are locked up in jail or prison deserve what they get. There is a dehumanizing aspect to the whole criminal justice system, and solitary confinement is part of that. If we don’t think of somebody as a full human being, then it becomes easier to do something really awful to them. If you think of this person as your brother, or our uncle, or your husband, it’s much harder to lock them in a box 23/7.
There’s also the fact that so many of us don’t know what goes on in the criminal justice system. The system as a whole is so abstract for such a large portion of our population, that we just don’t think or know about it. People have no idea that there are tens of thousands of people locked in solitary confinement on any given day. In a lot of places and for a very long time it’s just been how it’s done. It’s a very easy solution to put someone who is being unruly or difficult out of sight and out of mind. I think it speaks to a larger issue: We take people with mental illness, we lock them away, someplace we don’t need to see them. If we put them in jail or prison we don’t need to see them or step over them on our way to Starbucks in the morning. Solitary confinement is a reflection of that. But it makes everything so much worse.
Alisa Roth. Photo by Matthew Spence
TCR: Your book also criticizes the dangerous mistakes made by judges, and attorneys, who have no experience with the mentally ill. One example is your story of Jamie Wallace, a young boy suffering from mental illness and multiple physical disabilities, who eventually killed himself in prison due, in part, to a judge’s inability to understand his circumstances. How do we increase awareness and understanding of mental illness so that we may better avoid tragedies such as this?
AR: As awareness of the problem of large numbers of the mentally ill in the criminal justice system grows, judges and attorneys are more attuned to it. It’s not that people don’t know it’s there, but it’s as much as about changing attitudes as anything else. I talk to a lot of judges and I’ve said “Hey, in a lot of cases you’re being asked to make what’s effectively a medical decision and you’re not a doctor; you’re a judge. ‘
The best answer I heard, and it makes sense to me to a degree, is the judge who that’s what he does all the time. He takes the best information he can get and makes a decision based on that. So, he’s not making a medical judgement, per se; he’s taking the information that the psychiatrist, the therapist, and the attorneys give him and using that to make a decision. Jamie Wallace’s case was particularly egregious. He was so young, so sick, and had a developmental disability on top of it. I found it heartbreaking to think that the judge couldn’t see a way to understand. And the judge was playing very much by the rules.
Jamie Wallace was failed by the system at every level, over and over again. A forensic psychiatrist who read about him said he should never have been declared competent or even been standing in that courtroom. The judge made an awful decision, but he also made a mistake in letting him even be in that courtroom that day. You have to wonder how it would have been different if he had been wealthier, or his parents had been more educated, or if he had been in a different state.
TCR: Jamie Wallace’s story is an example of the mistakes that can be made as a result of the disorganized bureaucracy of the criminal justice system. At a time when so many are pushing for better training within that system to fix the problem, and others are fighting to keep the mentally ill out of that system entirely, which do you feel is the better option?
AR: In an ideal world, we would be able to keep everybody with a serious mental illness out of the criminal justice system. In an ideal world, we’d be able to keep a lot of people without a mental illness out of the criminal justice system. We lock up a lot of people very easily. I think that diversion is absolutely critical, but in order to make wide scale diversion possible, we can’t just look at this little tiny piece of the problem. We have to remember that we are operating in a very large ecosystem, not just of criminal justice but also of mental healthcare. We need to see wide-scale reform of both these systems so that people aren’t getting to the point where they’re so sick.
You see people in jail and prison who are sicker than a lot of people you see in psychiatric hospitals. We need to be catching the diseases earlier and treating them earlier. It’s great to train the cops to not arrest people, but if you don’t have some place for the cops to take them that’s not jail, they’re still going to wind up in jail. That’s what happened in San Antonio when they created their crisis center system. [They realized] you can train cops as much as you want, but they’re still going to take people to jail if there’s no other option. The other part of it is, as long as we are going to have people that end up in the criminal justice system, we have to make sure that when they’re there, they’re getting the treatment that they need and not just being warehoused in prisons.
TCR:A popular talking point now is de-institutionalization, starting when the majority of state-run mental health hospitals were closed during the 1960s. However, your book insists that there were other, more important, causes for the problem. Can you expand on that?
AR: De-institutionalization is a fabulous talking point. It has this very neat narrative: Dorothy Dix found people locked up in jail; realized this was not the place for them; they weren’t getting the treatment they needed; wardens were saying they couldn’t handle this; she pushed for the creation of the asylum system; everything was great until it all went to hell and we had to open up the doors and let everyone out. Then, without treatment, people were ending up in the criminal justice system. And it has a very neat solution: if this is how we got there, then all we have to do is treat the mental illness and we’ll get people out of the criminal justice system.
Unfortunately, it’s way more complicated than that. Even when you look at the heyday of institutionalization, during the middle of the last century, there were a lot of people in institutions, but it was not the majority. There were still a lot of people living at home or elsewhere, or getting treatment in the community. The population in institutions tended to be older, white, female, and very heavy on people with a diagnosis of schizophrenia. The people now locked in the criminal justice system are overwhelmingly young, male, and not white.
I think we also have to look at the story of mass incarceration. We’ve started locking up way more people than we ever did…and when you cast such a big net, of course you’re going to pull in a lot of people with mental illness. When you break it down even further and look at co-occurring substance use disorders, a very large majority of people with mental illness in the criminal justice system have a co-occurring substance use disorder. So, if we’re arresting tons of people for drug possession, drug use, drug selling, drug dealing, it makes perfect sense that we’ll pick up people with mental illness.
Using policing tactics such as “broken windows” and “stop and frisk,” allowed us to lock up huge amounts of people [and] made it easier to arrest people with mental illness. I think that the story of mental illness in the criminal justice system is as much a story of mass incarceration as it is of de-institutionalization. The one piece of the story that is important, even if we don’t quite tell it right, is that we do have a severe lack of mental health care in the community and we have made it extremely difficult to get treatment for mental illness. But it’s not that everybody was getting treatment in a hospital and now they can’t get it, we just don’t have that and we’ve never had it.
TCR: How can we get people to start viewing mental illness seriously?
AR: I think we’re starting to move in that direction, very slowly. We’re seeing more people acknowledging an issue with depression or anxiety. We’re still not seeing a lot of actors come up at the Oscars and mention that they have schizophrenia, but I think it’s becoming more socially acceptable to talk about these things. We know that people can change, and society can change. There was a time that people didn’t talk about HIV or cancer, and now we wave flags for it. We need to get over the fear and stigma [attached to] mental illness in our society. The narrative in the media and in politics that links mental illness and violence is very damaging. And it’s hard to get over that stigma when every time something bad happens somebody is out there pointing a finger at mental illness.
TCR: Are tools such as Crisis Intervention Teams (CIT), deescalation and community policing having a positive effect on the problem?
AR: Like so many things in criminal justice, there is not a ton of data or evidence-based research to show one way or another. The data in places such as Miami or San Antonio show that these things work. Miami says that it’s cut the number of officer-involved shootings. In San Antonio, the system has prevented them from expanding the jail. People who study policing say that CIT is just good policing—-going back to the kind of policing we had before “professionalized” law enforcement. It was the cop walking the beat who knew the people in the community. There’s no reason to run into every situation like it’s a battleground. Police officers always talk about how they see people on the worst day of their lives. That narrative is used sometimes as a reason why you need to be on your guard. But I’ve also heard it used as a reason to be gentle, kind, and thoughtful because they’re there to help.
Getting police to respond in a more thoughtful, more community/medically oriented way, instead of the tough, warrior way, is terrific. The big caveat is that if you don’t have the whole system set up to accommodate this it can only get you so far. You might deescalate a particular situation, but if you don’t have any longer-term solutions, you’re going to be back picking up the same person with no place to go. Often communities think CIT will be a step to solving the problem, but you have to think about how you’re going to divert, what’s the mental health treatment going to be, and how do we make sure we’re not picking people up again next week or next month.
TCR: Does change need to start at a federal level? And do you see potential for change under the current administration?
AR: The thing about criminal justice is that so much of it happens on such a local level that, on the flip side, a lot of reform can also happen on a local level. If I’m in Manhattan, and get arrested, it could potentially be a different outcome then if I’m in the Bronx or New Jersey. Because it’s so local, I think the federal question is almost irrelevant. Even the laws of involuntary commitment are handled at a local level. I think with a lot of laws, particularly with HIPAA (the Health Insurance Portability and Accountability Act) and involuntary commitment, it really comes down to a very narrow line of navigating between civil liberties and safety for the person and the public.
We obviously don’t want to go back to the time when somebody could have a child committed to a hospital for not being religious enough or dating the wrong person. On the other hand, I think we’ve made it so difficult to get somebody hospitalized that we’re in this perpetual crisis management mode. The way it’s set up now is that you really have to be at a crisis point in order to make involuntary commitment possible. Likewise, with HIPAA, I don’t want my business broadcast all over the place. On the other hand, the very nature of mental illness means that the person is not, necessarily, capable of making decisions for himself, or even providing the information that the doctors need. I’ve heard families talk about managing to get their adult child hospitalized, but then not being able to convince the doctor to talk to them about what has or hasn’t worked in the past. As with any other illness, the more information the clinician has, the better they can treat the problem.
HIPAA is also widely misunderstood. It’s used as an excuse for stonewalling families and other people trying to get information. I think the more important question, is how do we figure out how to loosen these laws a little bit to make things easier and more effective without throwing all the civil liberties out with it. As for the current administration, I think this is a big wildcard. It doesn’t seem to be a big priority except on those occasions when something awful happens and suddenly there’s talk of bringing back asylums and more mental health care. Between seeing real change at a local level or at a federal level, I have a little bit of hope that at the local level there is potential for reform.
Isidoro Rodriguez, a staff writer for The Crime Report, covers policing and mental health issues. He welcomes comments from readers.
Some 28 states require individuals to disclose HIV status to their sexual partners or face criminal penalties. Author Trevor Hoppe tells TCR that such laws are largely the result of fear and discrimination towards victims of diseases considered socially unacceptable–a punitive approach that he says continues today in the face of public health crises such as the opioid epidemic.
Commentators often contrast today’s treatment of the opioid crisis as a public health epidemic with the punitive approach once taken toward crack cocaine addiction. But perhaps an equally stark example of how Americans have criminalized certain socially “disreputable” diseases is the justice system’s approach to the HIV-AIDS epidemic that swept through US gay communities in the 1980s.
The harmful after-effects of that approach linger today. Some 28 states have criminal statutes that require people living with HIV to disclose their HIV status to sexual partners before having sex. Trevor Hoppe, an assistant professor of sociology at the State University of New York-Albany, closely examines those statutes and the struggle to rescind them in his recent book, “Punishing Disease: HIV and the Criminalization of Sickness.”
In a discussion with TCR, Hoppe explores the origins of the HIV-specific criminal laws in the US, how local health officials became the chief enforcers of them, and why the approach to the AIDS epidemic offers a cautionary lesson for contemporary public health officials and legislators.
(The conversation has been slightly abridged and edited.)
The Crime Report: You write that HIV exposure-and-disclosure statutes in the states were largely driven by local police departments and prosecutors.
Trevor Hoppe: Legal scholars have been saying for over a decade that these laws were a result of the Ryan White Care Act or the President’s Commission on the HIV Epidemic released under President Reagan. Both of those documents did end up advancing criminal statutes targeting HIV, but as I show in the book many of these laws or bills were introduced well before those documents came into existence.
The book is really trying to show how gay men were seen by police as a threat, especially sex workers living with HIV, but also to a lesser extent gay men living with HIV who were being arrested for other crimes. Police officers wanted a tool to punish these individuals more harshly.
TCR: What was behind the belief that HIV was being spread by sex workers?
HOPPE: Studies that I cite in the book suggested that sex workers in African countries had high rates of HIV, but it became clear very early on in the epidemic that was not happening in the United States, and that sex workers in the US had much lower rates of HIV than [those in Africa]. For many years, it was prohibited for any group to do research that might be perceived as promoting homosexuality or sex work. Those things are definitely intimately linked, and have been a problem for AIDS researchers, and HIV-prevention practitioners.
TCR: In the states that have criminal statutes pertaining to HIV, is it potentially a crime to have consensual sex after disclosing your HIV status?
HOPPE: In the vast majority of states, no. The crime is the failure to disclose the status in almost all states. There are states like Louisiana and Tennessee that have more broadly written statutes that could be construed to include cases where someone did disclose, but to my knowledge they’ve not been used in that way. That isn’t to say that there aren’t cases where the person living with HIV says “I told them,” and then the person they had sex with says, ”No they didn’t.”
TCR: You write about the ways in which local health officials in Michigan used the threat of criminal action to coerce people into specific behaviors, and how they even take on an active law enforcement role. For instance, a Macomb County Health Department form requires a client to acknowledge having been informed of a positive HIV status, and that the client is aware of Michigan’s felony laws pertaining to disclosure. On the same form, clients are informed that condoms “must” be used, making it appear they are liable to prosecution for having unprotected sex of any kind, regardless of the consent, knowledge and HIV status of their partner.
HOPPE: Right, and there are health departments around the country using similar forms, so Michigan is not alone in that respect. There’s a conflation of consensual sex with criminality, and I think that’s part of public health trying to flex muscles and coerce people. But I think it does a disservice to the community, in that it really erodes trust between public health and the communities that it works with.
TCR: Besides being an early adopter of HIV disclosure laws that pertained to a wide range of sexual activities, Michigan also began using a names-based reporting system to track people who tested positive for HIV. You write that health officials also began using this list as an investigative tool to look for people who might be breaking the law, and passing these names on to investigators, which have resulted in prosecutions.
HOPPE: I think the state would say “no, we have firm policies in place,” but when I spoke to people on the ground, they made it clear that there’s a lot of leeway in how they interpret and apply those policies. So you have local health officials who were using partner services to try to track down people they suspect might have been breaking the law, and that is explicitly not something that the state health department of Michigan condones. Nonetheless, technologies are being used to that end. I think it’s just one of those things that the state health department would rather not talk about, but it’s definitely happened at the local levels.
TCR: You conducted these interviews with local health officials from 17 jurisdictions in Michigan several years ago. Was there ever any response from the state?
HOPPE: There was a series of articles about the names-based reporting, and the way it was being used, [by] an investigative journalist named Todd Heywood. The result was that the state health department said to local health departments, “You don’t have to use these [client acknowledgement] forms.” To my knowledge that was the only result, and I don’t know that local health departments are doing anything different. But the state health department certainly did not publicly say that they had to start doing anything differently. So it’s a good question and I think one still worth asking local health departments. They certainly are not excited to talk to me about it anymore.
TCR: Based on some of the interviews with health officials you included in the book, it seems they were pretty candid with you at first.
HOPPE: They were extremely candid, and I’m grateful for that, because they in many cases told me quite matter-of-factly about what they did. And that was one of the surprising things from my end in doing the study⸺how nonchalant they were about some of the practices they were engaged in.
They would never outright disclose someone’s status. They would dance around that [by asking] “Did anyone you had sex with tell you they were HIV positive?” And [the client] would say “no, nobody told me.” Then they would say, “are you sure?” And they would bring you back in for more questioning. They would try to prod you into realizing something was amiss. So they were really cognizant of HIPPA, health privacy laws, and very careful not to break them.
TCR: How did they use contact tracing to try and search for people who might be breaking the law?
HOPPE: The way that contact tracing works is that if I test positive for gonorrhea, chlamydia or HIV, they would ask me who my sexual partners were. I would tell them “Joe, Bob, and Larry.” And then they would go contact Joe, Bob and Larry and say “Someone you have had sex with has tested positive for gonorrhea, chlamydia or HIV; you need to get tested.”
But they would also ask: ‘Did Joe, Bob or Larry tell you that they were HIV positive?’
And I would say “No.” Then they would look at the names-based database to see whether Joe, Bob or Larry actually have HIV. They would use those names and report it to investigators if they suspected one of them of violating the law.
TCR: You write that HIV statutes were part of a negotiation to get sodomy laws off the books.
HOPPE: In states like Nevada, it was a tit-for-tat agreement between Democrats and Republicans. Democrats wanted to repeal the sodomy laws; Republicans had a lot of anxiety over what legalizing homosexuality would mean for the epidemic, because they viewed it as dangerous and as they said a “cesspool of disease.” [After the sodomy law was repealed] conservatives introduced legislation immediately to criminalize HIV-nondisclosure…literally, the next day.
TCR: Is there any mens rea requirement to the exposure-and-nondisclosure laws?
HOPPE: There’s no requirement with intent whatsoever, it’s just presumed. Drunk driving is often framed in similar legal terms— you don’t have to show intent to show that you were violating the law. HIV is treated in similar ways, with intent being explicitly not part of the requirement or element under the law.
TCR: After looking so closely at how the government, the media, and the public reacted to HIV, do you see any parallels to the “epidemics” of today, such as opioids, sex trafficking, and school shootings?
HOPPE: Well, I think we are prone to panic when it comes to our policy, so HIV is not unique in that sense. School shootings are a good example. If you wanted to understand gun violence in America, school shootings would not be the place to start, because they are such a tiny fraction of that issue. But they nonetheless dominate our consciousness.
Similarly, we became stuck on these highly sensational— and maybe rightly so, emotional— aspects of certain issues that [prevent us] from stepping back and seeing the bigger picture. Homosexuality definitely did that for HIV, and while I think the school shootings that are happening are horrible and we ought to prevent them as best we can, it’s just the tip of the iceberg when it comes to gun violence.
TCR: What were the unintended results of HIV statutes, and what does this have to teach us about criminalization in the opioid context?
HOPPE: I think lawmakers had the idea that they were going to try to punish people who were out there trying to infect other people. Which seems like a good idea, right? That’s not something that we want people to be doing. But the language that they drafted in these statutes is so broad, that it encompasses behaviors that are far less nefarious, and far less harmful than what they had in mind.
It’s not just people out there trying to intentionally infect other people who are being prosecuted— it’s people who had a one-time sexual encounter with a condom, or who have an undetectable viral load, or who even (in Michigan) gave a lap dance. These are hardly the kinds of people I think those lawmakers had in mind.
Lawmakers, prosecutors, judges have no medical training. Nor are they medical experts. There are some exceptions, but [lawmakers] ought to take special caution when they try to create a law pertaining to a medical issue. The science around those issues changes quickly, and the law is unlikely to keep up with developments in the medical world. If you get it wrong, the consequences are unpredictable and, in the case of HIV criminalization, they have been devastating to many people.
TCR: You examined 74 criminal cases in Michigan and Tennessee, looking at thousands of pages of court documents. What were you looking for?
HOPPE: I was interested in how prosecutors and judges make sense of these cases. How do they describe HIV? How do they describe the defendants? I was looking for the language that they used to represent HIV in the courtroom, and to represent the defendant’s behaviors, and what I found was that they consistently compared HIV to a death sentence, defendants to murderers, and their sexual activity as potential homicide. So they used these analogies to violent crime to kind of make sense of the punishments that they meted out.
I make the argument that the language matters. The language that they use to describe HIV is not inconsequential. It sort of justifies the punishment that they dole out.
TCR: We now have plenty of research showing the extremely low risk of transmission when someone has an undetectable viral load. But these laws persist, under the same premise that people living with HIV represent a health threat. Where has science won in the courts? Some states have managed to repeal these laws.
HOPPE: Yes, but not through litigation. They’ve been repealed through legislation. California and Colorado have repealed their felony laws, and that surprised me, to be perfectly honest, in both cases. Because lawmakers really are not keen to repeal criminal statutes. I think states that have less left-leaning legislatures will have a harder time getting to repeal.
States like Tennessee and Iowa are instead moving to expand their laws to include other diseases. So I do think we’re at kind of a precipitous moment or a crossroads, where we could go one of two directions. And I don’t have a crystal ball. I’m hopeful that more states will repeal.
TCR: In places where laws weren’t repealed, were there any amendments or provisions added to HIV statutes due to scientific advances?
HOPPE: Since it is no longer a death sentence, people living with HIV can’t automatically be characterized as “homicidal” for having sex; and we know more about how the disease is transferred.
There have been amendments, but mostly they’re technical in nature and not substantive. Carol Galletly and Zita Lazzarini at the University of Connecticut have done a study looking at those amendments. But my understanding is that they’re not radical overhauls, they’re just sort of housecleaning in most cases.
TCR: Did the courts ever consider mitigating circumstances? For example, if someone had an undetectable viral load and used a condom?
HOPPE: They were raised as an issue by the defense several times. Mostly at sentencing, because most of these cases involved a plea. But I can think of at least one trial where a defendant tried to use his undetectable viral load as a defense, and it fell flat— it was entirely unsuccessful, to the court.
There is a possibility that could change, but those people don’t know what “undetectable” means. So I think until you have a judge, a prosecutor, etc, who has some basic understanding of HIV you’re going to still end up with the same outcomes. Part of the problem is that it’s not big cities that are leading the charge on this; it’s small towns.
TCR: Tell me more about small towns and rural counties
HOPPE: To me, the criminalization of HIV is a problem of stigma. Where there is stigma you’ll find criminalization. So I went into this study, for example, expecting that gay men would be disproportionately targeted under these laws because of the homophobia that drove their implementation.
But what the book finds is that it’s mostly heterosexuals– particularly white heterosexuals, but also black heterosexual men, who are being disproportionately impacted. And what that tells me is that the people with the lowest probability of contracting HIV have the highest probability of being prosecuted. So we’re working on an analysis that’s looking geographically to get to some finer points on this question.
But what I can say right now is that prevalence of HIV does not predict prevalence of HIV criminalization. Counties where there’s lots of HIV don’t necessarily have lots of HIV criminal cases.
TCR: How strong is the force of inertia in the court system, once scientifically invalid ideas are stamped into law?
HOPPE: It’s self-reproducing! Case law is really entrenched. It is very hard to grossly deviate from the course the courts are already on.
I think a powerful test case can certainly make a difference. But finding that test case that’s right, and getting it through the court, and finding a defendant who’s willing to go through that process seems quite difficult. Nick Rhoades in Iowa was an example of one of these test cases that I think made a huge difference, because he was sentenced to 25 years in prison for having sex with someone once and using a condom.
That’s indefensible, I think. And he’s also a very handsome white gay man, so he’s a sympathetic sort of defendant. So I do think that cases like that can have an effect, but they’re just so few and far between. It’s not a federal system, so it really takes one of these cases in every single state.
TCR: So to your knowledge the issue of viral count hasn’t really made it into the statutes?
HOPPE: When Iowa revised its law a couple of years ago, they did reduce the penalties in cases where someone has undetectable viral loads, but they did not eliminate it. North Carolina’s [statute] was revised to say that if you had an undetectable viral load, you did not have to disclose. It was a law that to my knowledge was almost never used– but nonetheless it’s a sign that there could be some movement happening.
TCR: Do you see states still moving toward repealing these criminal laws under the Trump administration?
HOPPE: I talk to people in states around the country, and many people on the ground are dedicated to making that happen, and hopeful that it will happen. And so, I’m hopeful for them.
Victoria Mckenzie is Deputy Editor (Content) of The Crime Report. She welcomes readers’ comments.