Episode 100: Willie Hortonism 2020 — Media Attacks on Prison Reform

Citations Needed | February 5, 2020 | Transcript

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[Music]

Intro: This is Citations Needed with Nima Shirazi and Adam Johnson.

Nima Shirazi: Welcome to Citations Needed, a podcast on the media, power, PR, and the history of bullshit. I am Nima Shirazi.

Adam Johnson: I’m Adam Johnson.

Nima: Thank you, everyone, for joining us today. This is officially the 100th episode of Citations Needed. We made it, Adam. Woo!

Adam: 100 episodes is a lot of episodes. Let’s go for a hundred more. After that, we can talk.

Nima: Yeah, thanks, everyone, for listening, sharing, reviewing, rating, supporting the show, whether you follow us on Twitter , Facebook or support our work through with Nima Shirazi and Adam Johnson. We absolutely could not have reached anywhere close to 100 episodes or the 50-plus News Briefs that we have without all of your amazing support and our incredible patrons who make Citations Needed possible. If you have been listening for a while and want to hear another one, ten or another hundred episodes, please do consider becoming a Patreon supporter. And hey, if you’re new to the show and like what you hear, please do visit to help us out.

Adam: You know, in the television world when you hit 100 episodes, it’s considered the cutoff for, like, syndication, right? Which is how you get that second house in Malibu.

Nima: Thrilled to have reached that milestone. And we’re not even doing a clip show. That’s how committed to our listeners we are.

Adam: You know, Fresh Prince did a clip show, like, 18 episodes into their show, which I think is, I don’t know why that’s funny to me. Creative genius of Andy Borowitz. So yeah, thank you. It’s been great. I don’t know why we keep talking like we won the Oscar.

Nima: Yes, we are the Green Book of lefty podcasts.

Adam: How dare you.

Nima: I’m kidding. Where did the, we’re the, It Happened One Night, but without all the awards.

Adam: (Laughs.)

Nima: Following the rise of Movement for Black Lives and a broader cultural awakening in the United States about just how wildly unjust, cruel, and hyper-punitive our criminal legal system is, modern reforms began to emerge across the country. The lowest-hanging fruit for reform was to get rid, of or at least radically reduce, pretrial cash bail, a system that exists to punish the poor simply for being poor.

Adam: 20 percent of people in the United States currently incarcerated — or 76 percent of those in local jails — have not been found guilty of any crime, they are simply awaiting their trial and cannot make them because they cannot afford to do so. One 2015 study found that people in jail have a net median income of less than $5,000 a year, and are overwhelmingly of course Black and Latino. Put simply bail exists not to protect the public; it exists to punish the poor for being poor.

Nima: In response to this jarring injustice, this modern-day debtors’ prison system, some states began instituting modest reforms, reserving cash bail for so-called “violent crimes” but requiring judges to consider people’s income when setting bail for other offenses. Consequently, cities like Chicago, New York, Baltimore and a host of jurisdictions began to see reductions in the number of people in jail pretrial, or in our supposed system of ‘innocent until proven guilty,’ of legally innocent people sitting in jail awaiting trial.

Adam: As one would predict, there’s of course been immediate and swift reaction by pro-carceral forces. Police unions, right-wing think tanks, conservative and even liberal media alike, and sleazy politicians eager to play to fear have attacked reforms as bringing back the Bad Old Days.

Nima: To do this, among other propaganda tricks, they’ve resurrected one of the oldest in the book: Willie Hortonism, the identification and elevation of a single sensational case of someone released from incarceration who goes on to commit a heinous crime, then demagoguing it, weaponizing it, often using racist tropes in the media, to pushback and curtail any kind of even the most modest reform.

Adam: Today we will show the various tropes the media uses to push back against the recent wave of reform, how to spot them and how to fight back against their playbook of fear and racism.

Nima: Later on the show, we’ll be joined by two guests: Clarise McCants, Criminal Justice Campaign Director at , the nation’s largest online racial justice organization, as well as , Senior Staff Attorney at , one of the largest public defense firms in the country, and co-founder of the . He is also the Founder and Director of Zealous, a power- and narrative-building project that inspires and activates public defenders to take their advocacy beyond the courtroom.

[Begin Clips]

Scott Hechinger: If you define people as the other, if you push them away just the way you’re thinking about them or you’re referring to them, it makes it easier if you’re outside the system to kind of let it go on without interfering or without wanting to, like, rock the boat. And if you’re in the system, it makes it easier to just, like, perpetuate it.

Clarise McCants: If you’ve ever been to a prison, you know how violent they are and you know how inhumane family separation by way of cages is for folks. But many people, while possibly they know someone who’s been impacted by incarceration, have never felt or seen it for themselves. And so we have to show people the ugly truth about prisons and we have to do it often.

[End Clips]

Nima: Before we get started on the media aspect of this, we wanted to lay out some basic statistics. According to Prison Policy Initiative’s 2019 report on mass incarceration, quote, “One out of every three people who are locked up tonight are sitting in a local jail, not a state or federal prison.” End quote. There are more than 3,200 jails across this country, and in them, 76 percent of those held have not been convicted of any crime.

Adam: 11 million people cycle through the American jail system every year. The Prison Policy Initiative has , quote:

Jail churn is particularly high because at any given moment most of the 722,000 people in local jails have not been convicted and are in jail because they are either too poor to make bail and are being held before trial, or because they’ve just been arrested and will make bail in the next few hours or days. The remainder of the people in jail — almost 300,000 — are serving time for minor offenses, generally misdemeanors with sentences under a year.

Nima: As the incarcerated population in this country has grown by staggering levels in the past 15 years, this is a key thing to remember: 99 percent of this growth has been the result of increases in the pretrial population. What this means is that, quote, “Virtually all of the growth in the jail population has been in the number of legally innocent people who are detained in jails.” End quote.

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Via Prison Policy Initiative

Adam: In 2015, a New York Times feature found that poverty is the most frequent cause of pretrial detention. In New York City, even when bail is set at $500 or less, 85 percent of defendants cannot afford to pay it.

Nima: This system allows for even more compounded injustice, not just people sitting in jail—sometimes for years when they shouldn’t be by virtue of the fact that they literally cannot afford to get out before their trial—but there are other terrible negative effects as well. Family life is disrupted, people can lose their housing, they can lose their jobs, they can even—take, for example, teenager Kalief Browder—lose their lives.

Adam: So today we’re going to talk about five tropes that are used to attack recent bail reform. Number one: emotionally charged anecdotes with a lack of meaningful statistics. Number two: racist language and imagery — it’s kind of the, uh, bingo free space of Citations Needed. Three: ‘reform isn’t necessary, everything’s already great,’ which is a sort of concern troll that actually ‘this has gone too far, we’re actually good now, we’ve sort of done the few token reforms, we can all move on.’ Number four: using justifiable fears to drive a wedge between liberals. This includes domestic violence, guns, and hate crimes. Number five: no accounting — and this to me is the most underrated one, which is why we have it for last — no accounting for the violence of jail itself and how much jail and pretrial detention drives further criminality such that it is.

Nima: When we talk about emotionally charged anecdotes coupled with a lack of meaningful statistics, we find that many news outlets rely on scare stories rather than any sort of evidence to make the case to their readers that criminal justice reform efforts and the people who support them are making the population and our society far less safe. Appeals to fear with the intent of interrupting and discrediting campaigns for change are nothing new. Perhaps the most infamous example, the one that created the model that since has been replicated by Republican politicians and right-wing media ever since is the George Bush campaign attack ad on Michael Dukakis from 1988: the Willie Horton ad.

[Begin Clip]

Commercial voiceover: Bush and Dukakis on crime. Bush supports the death penalty for first degree murderers. Dukakis not only opposes the death penalty; he allowed first degree murderers to have weekend passes from prison. One was Willie Horton, who murdered a boy in a robbery, stabbing him 19 times. Despite a life sentence, Horton received ten weekend passes from prison. Horton fled, kidnapped a young couple, stabbing the man and repeatedly raping his girlfriend. Weekend prison passes. Dukakis on crime.

[End Clip]

Adam: So, yeah, real nuanced stuff there. So weekend furlough passes, just to give some context, were pretty common at the time, due to the over stuffing of jails. And weekend furloughs were supported by Reagan when he was governor of California. They were very common. They obviously weren’t so much after this ad. And this ad, of course, it’s kind of lived in lore. It didn’t actually air that many times, but it became somewhat of a controversy, was replayed on news and has been part of a broader mythos of Lee Atwater’s effect on the Republican Party, which is to say dog-whistle racism. This is sort of the quintessential textbook case of dog-whistle racism, you know, a mugshot of a Black guy, weak-kneed liberals, come in to rape your daughter, et cetera, et cetera.

And so this Willie Hortonism has lived in the conscious or subconscious of both politicians and reformers ever since, which is to say it created a fundamental moral hazard, which is that if you’re a politician who’s going to give one centimeter on criminal justice reform to make it slightly more humane or slightly less likely to incarcerate people, that in the event that a person you quote-unquote “let go,” or a person you refused to prosecute, or a person you let out whose sentence you commute or pardon, that if that person goes on to commit some other offense, they will run ads nonstop showing how you let this person go.

Nima: The entire effort to change the system therefore is painted as being not well-intentioned, right? That it has negative, dangerous, disastrous, sometimes deadly consequences and therefore should be abandoned altogether and we should just keep everyone locked up forever.

Adam: Well, right, so you have a, this is what Dick Cheney first—there’s, like, the 1 percent principle, right? That even if there’s a 1 percent chance that Iraq has a nuclear weapon or whatever, that that justifies the war. And some people even use it for climate change. And even if there’s a 1 percent chance of climate change, it justifies X, Y and Z. There’s a 1 percent chance someone may go on to commit a crime the smart thing to do politically is to just keep them in jail. Now the implications of this are obvious and why it’s bad is obvious, and we’re going to sort of go into that because now we’re seeing the early stages of actual real reform. It’s still very, very modest. It’s still not abolitionist, it’s still not really changing much and there are criticisms that it’s in fact very token, but there are reforms. Cook County’s jail population has reduced by something around 20, 30 percent in the last few years, since 2017, 2018. So we are now seeing the beginning of the backlash, we are seeing the beginning of, it’s always kind of there, there’s always a white noise of bail reform demagoguery. But over the last few months, we’ve seen it really ramp up, especially in New York State, which on January 1st began a series of reforms, one of which was they increased the age for which you cannot have parole from 18 to 25, and they instituted pretty meaningful bail reform throughout the state, which is, which basically says that you cannot be held for nonviolent offenses for bail you cannot afford, and right on cue, this has led to several scare stories in the New York media.

Nima: Right, right. Perhaps unsurprising to listeners of Citations Needed, one of the most flagrant manipulators of this kind of attack is the Rupert Murdoch-owned New York Post. The Post and its editorial line is obviously not a fan of any kind of criminal legal system reform, let alone bail reform. Unless that reform somehow puts more people in jail and more cops on the street with fewer regulations or accountability.

Adam: On October 5th of last year, a man in Chinatown killed four homeless people, injured another and he had a long history of mental illness problems. So from October 6th to October 16th, the New York Post ran six articles, an editorial, two opinion columns and three news reports that blamed bail reform and specifically the Bronx Freedom Fund, which is a pro-bail reform advocacy group, for this man’s crime. One piece was headlined “Manhattan DA twice let Chinatown ‘killer’ Randy Santos slide,” sort of suggesting a kind of weak-kneed district attorney had let Santos slide through the cracks.

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Nima: In one of these articles, the New York Post spoke to Dennis Quirk, the president of the state’s court officer’s union, who declares quote, “Criminals are doing this because they know there is no punishment,” end quote.

Adam: Yeah. So one thing to point out here while we’re talking about this, and this’ll come up again and again, is that the one thing people don’t understand or they do and don’t care to relay it to the readers, is that bail is not supposed to be a punishment. Bail is a form of insurance to make sure people show up to court dates. It is not in and of itself supposed to be a form of punishment. So you’ll see this time and time again where these people say, ‘Oh, these people got off. They were let go, no punishment.’ But of course they’re not being let go. They’re being released on their own cognizance to come back and then potentially once they’re actually, you know, convicted of something, they will spend years in prison.

Nima: Yeah, yeah. No, that’s right. It’s just a bond. And so to make this even more clear, people who can afford bail will be released before their trial. Right? As long as you have the money, you can get yourself out on bail if that’s what the judge says. And so like it’s not just that now vicious, violent criminals can get out and couldn’t before. The people who could afford it before were already going to get released on bail anyway. Right?

Adam: Yes.

Nima: Whether you have the money to pay for bail, that’s it.

Adam: Yeah. That’s the thing is there already has been bail reform for decades for people who are rich, they’ve already been able to get out. And this is the thing people don’t understand is that all bail indicates is not guilt or innocence or the severity of crime. All it indicates is whether or not you’re rich or poor. And the New York Post columnist Bob McManus, who is this really, this kind of right-wing dullard, jumped on this Chinatown killing as well saying, quote, “[Santos] is a poster child for a return to ­aggressively custodial approaches both to mental-health treatment and public-safety policy.” He used anti-poor pejoratives to describe Santos as a quote a “vagrant,” “derelict,” “beggar,” “addict,” and “scammer.” And so you see this kind of anti-poor rhetoric, but I want to be very clear here. This is not, of course, just a feature of the New York Post. The Daily News has also been beating this drum. The Daily News has run several editorials in the first weeks of January when the bail reform came down saying that it had gone too far, uh, that it’s time that Albany quote-unquote “reconsider.” So this definitely is not unique to The Post. The New York Daily News is as bad, if not worse in many ways. They have an image of a Black man being taken out of jail by two white police officers, and the headline is “ No-Bail Fail. Suspect in 3 assaults tossed back in jail for new mayhem hours after being freed.” His mayhem, by the way, his quote-unquote “mayhem” was aggressively panhandling on the subway.

Nima: Oh, my God.

Adam: And so this is, uh, this was from mid-January of this year. This is a bipartisan, The Daily News is a liberal paper or kind of bipartisan reactionary, of course, most of it comes from the Right, but liberals, especially pro-carceral liberals at the Daily News are just as guilty in many ways.

Nima: We should also point out that this is not unique to the city of New York. In Adam’s hometown now, Chicago, we also see this kind of weaponized rhetoric across media. So a column from last August 2019, written by John Kass in the Chicago Tribune, does a lot of this same kind of box-checking. It hits all of these major anti-reform tropes to attack what, as we’ve said before, is some good albeit relatively modest progress toward real incarceration reform. The headline of this article laments, quote, “Father of teacher robbed in Lincoln Park questions $100 bond allowing alleged attacker to walk: ‘Is that all she’s worth to them?’” Kass writes in the piece itself that the person arrested allegedly “slammed” a woman to the ground and attempted to steal her phone, was permitted to, quote, “walk free on bond on a robbery charge. One hundred bucks, cheap at the price.” End quote.

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Excerpt from “Father of teacher robbed in Lincoln Park questions $100 bond allowing alleged attacker to walk: ‘Is that all she’s worth to them?,’” Chicago Tribune

Adam: But again, this is not supposed to be a punishment. He’s still going to go to jail for several years most likely. What they’re banking on is the average reader and viewer of course not knowing this. So Chicago CBS 2 ran a story, which we actually did a News Brief on, that did something very common that is worth sort of highlighting itself and we’ll, we’ll circle back to this in point five. But they used fears about gun violence to demagogue recent reforms. It’s a really, like, very clever form of sleaziness, and CBS 2 Chicago and CBS 2 New York are very good at this. They had a segment called “Officials Address ‘Vicious Cycle’ Of I-Bond Violations After Violent Weekend.” And so the report begins with B-roll of a police car and then talks about all the gun violence in Chicago that weekend. Then they quote a police union representative talking about how I-bonds are making Chicago less safe. Now, these two things are not related because 0 percent of the people that weekend who had committed gun violence were out on I-bonds. So these are bonds that are part of bail reform that basically says you can go and come back, right? Now this is a problem for CBS 2 News. There’s no actual connective tissue between the two, but they really, really want to connect the two. So they reach back to a battery case from three years prior and say that this person later went on to have a gun violation two years later. Now, the problem with this is that bail reform came in in 2017. This story is in 2016. Violence in Chicago keeps going down every single year since bail reform has happened. And so they have to basically reach back into the nostalgia file and they call it an investigation, which is always hilarious to me because they just basically have some police union rep send them an Excel spreadsheet and then they, like, do some B-roll video of an Excel saying a ‘CBS 2 investigations,’ they’re not going to investigate, they’re just republishing what the fucking police union told you. But they have to sort of have the tropes, you know, like they’re meeting Deep Throat in a parking garage in Foggy Bottom. It’s like, no, you’re just republishing what the police union told you to publish. But there’s no connective tissue, right? And so they had to kind of make one up. And you see this a lot, it’s all innuendo. It’s very innuendo based. And that innuendo is of course designed to confuse people into thinking that violence in Chicago is resulting from bail reform. But again, there’s zero empirical evidence that supports that. And in fact, 97 to 99 percent, depending on the statistics you listen to, of people who are out on, who get out, quote-unquote “out on bail,” never go on to commit any other violent offense or never go on to commit a violent offense. Um, of course it does happen cause statistically it has to happen. But there’s no indication that there is a relationship between bail reform and increasing crime. And indeed in many ways there is a decrease in crime. And we’ll explain why that is later.

Nima: Not wanting to be left out, CBS 2 in New York ran its own scare tactic story just before the new laws went into place in the state, like, right before they went into effect. Here’s an article published December 31st, 2019 at 11:58 PM, two minutes before the new laws went into effect. And the headline is this, quote, “Manslaughter, Arson, Hate Crimes — See All the Crimes Suspects in New York Now Get Released For Under Bail Reform.” End quote. Yeah, ‘Happy New Year, everyone. You’re all gonna die.’ (Laughs) Uh, this is basically what it’s saying. The piece says, quote:

As New York celebrates the start of 2020, a host of new laws are taking effect at midnight — including one releasing scores of potentially dangerous suspects from jail and back onto city streets. New York’s bail reform law eliminates pretrial detention and cash bail for the vast majority of misdemeanor and non-violent felony cases. Hundreds of offenses such as stalking, grand larceny, assault as a hate crime, and second degree manslaughter will no longer be eligible for bail or pretrial detention.

End quote. And CBS 2 New York also put out a video piece on the same thing, which starts like this.

[Begin Clip]

Anchor: With the new year, New York’s bail reform law takes effect. Supporters say the old system unfairly targeted the poor. Critics saying it’ll put criminals back on the streets. CBS 2’s Ali Bauman is here with more on that. Ali.

Ali Bauman: Well, the proponents argue this will close the disparity between people who can afford to pay bail and those who cannot while also dramatically lowering the number of people incarcerated. But the key controversy is that in many cases, judges will not have discretion to hold suspects in custody even if there’s evidence the person is a danger to the victim or the public.

[End Clip]

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Adam: So they bring on this guy, Mark Peters. He was a former commissioner of New York City’s Department of Investigation and was fired by de Blasio after six months. He had concluded he had misused his power and punished a whistleblower. This is now the CBS 2 legal voice, I think he’s referred to as “Urban Affairs Expert,” which is a great sort of racially coded term. He is a former prosecutor. He’s a longtime prosecutor. And so of course they go to him and he says, ‘Yeah, the reforms have gone too far. We need to reform them.’ And he’s kind of presented as this neutral observer. But he of course both has bad blood with the mayor and is a former prosecutor. And of course we never hear from anyone who’s not a former prosecutor because God forbid, and this is all about ‘setting people free’ and again they play to ignorance and prejudice about what it means to be set free, which is again, a very temporary state. You were still going to jail for many years.

Nima: Peters is quoted saying, “So someone can walk up to someone on the street, punch them in the face, and if they haven’t done lasting physical injury there’s no bail available… they’ll be let out that day. They can go punch someone the next day,” end quote. So yeah, no, there are all these street punchers out there, an epidemic of punchers out without bail!

Adam: So then in the new year, immediately you saw a torrent of stories. We just don’t have time to get to all of them. But CBS New York 2 had the grossest one and the most extreme one, one they actually had to retract ’cause it was so bad. On January 9th of 2020 CBS News released a headline or a story allegedly about a Port Authority police officer who was arresting a man who they somehow knew was HIV positive, who they claimed spit in the mouth of the arresting officer, allegedly. This is all assertion by the police union and this is what CBS 2 New York’s headline was on Twitter: quote, “RELEASED AFTER HIV ATTACK: a judge has let a suspect back onto the streets after police at LaGuardia say the attacker spit into an officer’s mouth knowing they had HIV — sparking more outrage at another bail reform controversy. More here” with links to it. Now the backlash to this was they deleted this tweet and tried three more versions of it, all of which had some iteration of the story, but they, I guess they realized HIV attack was a little bit on the nose. They eventually retracted the story, apologized, allegedly fired the reporter who worked on it. Although I emailed him to ask him who it was and if they had any evidence they actually fired anyone and they never got back to me. So I don’t think they did.

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Nima: Yeah, they’re like, ‘As long as there are no followup questions, uh, we fired someone.’

Adam: There was no byline under the piece, understandably so. This sort of shows that what they’re doing and what CBS 2 has been and what CBS 2 is, is also in, in Chicago, and I assume there’s dozens of versions of this throughout the city. We just don’t have the resources to, to track them all. But I think what they’re obviously doing is they’re just a spigot for the police union. The police union calls up CBS 2 and says, we got another bail reform story. And my guess is they even probably just copy and paste the police blotter, the kind of police, the press release by the police union, this isn’t even the police, it is the police union, which is more overtly fascist. And in this case, they kind of went too far. That they, they forgot that the person telling them this was probably, you know, the police have gotten pretty good at calibrating their racism, but I think their gay panic hasn’t been dusted off in a while. And so they sort of overreached here with “HIV ATTACK.”

Nima: Yeah. No, that’s right. It was just really clunky. It was in-artfully done.

Adam: Yeah, they were just releasing that some, you know Monster Energy-drink-fueled, buzz cut, wraparound Oakley police rep guy who sent them this claim and they didn’t really edit it for content and just went “HIV ATTACK.” Now there’s another problem with this, which is one of the major elements of this controversy, which is (1) how does the police union know if someone’s HIV positive? Presumably they have access to that record. And (2) why are they leaking people’s HIV status to the media? and (3) and I think more importantly, why is CBS 2 New York releasing the HIV status of someone who’s, well not that it really matters, but hasn’t been found guilty of anything? Now they didn’t say his name in the story, but a quick search, about a five-minute search, you could easily find the guy’s name ‘cause you have the time and place of arrest by the Port Authority police. And this caused a backlash. There were protests outside the studio the next day. They, again, like I said, they allegedly fired whoever did it, retracted it. But this really shows the police and police union to local media pipeline that really is just trying to find these Willie Horton cases. These one-off cases of people released who are out on the quote-unquote “streets” and this is all due to a bunch of weak-kneed, bleeding-heart liberals and they can keep finding these one-off cases and keep jumping on them and then scaring otherwise sympathetic liberals.

Nima: No, exactly. And so this actually fits very neatly with our number two trope: the racist language and imagery, which we’ve been discussing, that really gets back to that initial Willie Horton ad. Part of that ad, the part most people remember actually, is the mugshot that’s shown on screen of William Horton dubbed “Willie” in the ad script by Reagan/Bush adviser, Lee Atwater, to add some down-home racialized classism to the mix of course. So mugshot photos of mostly Black and Latino people published in the media, something we’ve discussed a lot on Citations Needed. These are plastered online. They’re part of TV news reports. This continues to be a feature of bail reform fear-mongering, of inciting visual panic based on implicit bias. Here are just some examples. On January 10th, 2020, New York’s ABC 7 showed an African American man being perp walked out of a precinct by two white cops in a story headlined “Homeless man charged in 3 random attacks in Manhattan released.” The New York Post, the next day, January 11th, 2020 had an article, headlined quote, “Controversial bail reform springs serial robbery suspect — who then pulls off fifth heist,” end quote. And six days later, on January 17th, 2020, The Post again published the suspect’s mugshot under the headline, quote, “Accused six-time bank robber freed by state bail reforms is finally jailed — by the feds” end quote. Of course, you have to read the actual article to find out that the suspect doesn’t stick up banks with a gun but rather passes notes to bank tellers saying, ‘This is a bank robbery, big bills please,’ that he got a whopping $2,000 total from all six of these heist attempts. And actually that the reason he is now again in custody is that he turned himself in. But The New York Daily News does this, too. The same day as that previous Post report on January 17th, 2020, The Daily News had an article headlined “Accused NYC burglar released again and again and again thanks to new bail law.” The piece, which includes a photo of a black man in a hoodie — obviously — begins this way, quote, “An accused serial burglar was able to steal packages from Brooklyn apartment buildings over and over around Christmas thanks to the state’s new bail law, the Daily News has learned.” End quote. I think my favorite part of this article is when it says with regard to a smash-and-grab theft by the same person from a sunglasses store it says this, quote, “He had a rock — a burglary tool of choice — in a suitcase, according to a criminal complaint.” End quote.

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Video still from NY Daily News story “Accused NYC serial burglar released again and again and again thanks to new bail law”

The Post actually covered the same story with the headline “‘Brick Man’ is NYC’s newest bail reform poster boy” and the article begins this way, quote, “There’s another bail-reform poster boy in town — and cops call him the Brick Man!” It goes on to say that the suspect, quote, “was arrested Dec. 23 for three burglaries in Brooklyn earlier that month — and got a Christmas gift courtesy of Gov. Andrew Cuomo’s new bail law when he was released Dec. 25.” End quote. All of these reports of course seek comment from former cops and prosecutors. The Channel 7 ABC report, for example, quotes former NYPD chief who is now an ABC news consultant, Robert Boyce, by saying this quote, “We have to keep the public safe” end quote, and he laments what he calls quote, “turnstile justice” end quote, which I think obviously reminds me of the Sideshow Bob campaign ad from the Simpsons with the people leaving prison via escalators and revolving doors and, like, a ski lift. Yeah, brought to you by Sideshow Bob. Boyce in this piece, this ABC piece adds this quote “People are at risk and police cannot be everywhere. Someone is going to randomly strike someone, knock a tooth out. This is unacceptable in our city. We are not going to let that happen.” End quote. Meaning, of course, that setting bail is seen as a method of policing in itself. Of course, no mention is made in these articles of building or funding programs to help people living in poverty or with mental health problems. No, no. It’s always just about keeping people locked up indefinitely.

Adam: The third trope, which you see kind of pop up here and there, it’s a minor one, but it’s worth noting is the idea that actually reform is already done, we don’t need to do anymore, and that anything else is excessive. So The Daily News, which is again broadly seen as a liberal outlet, published an opinion piece last summer about Queens DA candidate Tiffany Cabán, who ultimately lost the recount and did not win the election. The piece was written by Peter Moskos, a professor at John Jay College, which is very intertwined with the police world. He insisted in the op-ed that Cabán’s reforms would at best be redundant and at worst extremist. He writes that New York City has, quote, “achieved tremendous accomplishments preventing violence, improving policing, decreasing jail populations and more. These achievements came from the hard work and dedication and experience of some of the very people now being dismissed as part of some neo-liberal cabal.” So that there was this token reform done and we were done, let’s all go home. This is sort of the equivalent of saying, ‘All right, we’ve got Brown vs. Board of Education in 1954, uh, Martin Luther King pack up your bags, go home.’

Nima: Yeah, no, exactly. ‘Racism is now over. Good job, everyone.’

Adam: Yeah. And of course the US jail population is still five, six times out of whack versus the quote-unquote “Western world.” So it’s, like, we’re not even remotely close to getting anywhere near par for the rest of the world. And for some people they’ll sort of come out and say, okay. And again, the CBS 2, uh, analyst Mark Peters said this too, he’s like, ‘Well, you know-’

Nima: Mark Peters, Urban Affairs Expert!

Adam: Urban affairs correspondent, he said, ‘Okay, you know, we’ve got some reforms, but they’ve gone too far, gone too far.’ Uh, so the fourth trope, which is using liberal concerns such as domestic violence, hate crimes and gun crime to kind of create a wedge, right? So you have this do-goodie liberal who’s sort of sympathetic to Black Lives Matter, who kind of knows the rhetoric. Maybe they’re a gentrifying yuppie, they sort of are sympathetic, but they have kind of liberal wedge issues, which is to say they’re very concerned about gun violence. They’re very concerned of course about domestic violence. And the media will use these concerns, these good-faith and understandable concerns to drive a wedge between them and supporting bail reform. Because of course it’s important to note, and this is something that is really important to emphasize, is that if you want to get the U.S. prison population to par for the rest of the world, you’re going to have to let bad people out of prison. You cannot just pick away around the margins with the proverbial two joints or low-level offenses. That if you’re really serious about bail reform, you need to have a really messy conversation about what our system looks like and who is and who isn’t in jail.

Nima: Last May, the Chicago Tribune did an investigation documenting cases where people released on individual recognizance bonds — that is non-cash bail — later committing domestic abuse. The obvious implication of putting this investigation and the subsequent articles together is that criticizing bail reform in general, that brought about in part by Cook County State’s Attorney Kim Foxx, that basically any move toward reform gets focused on largely by the media on the most negative consequences of that reform and, you know, thus this investigation, it doesn’t tell the stories of course, of people who are released and therefore their families are still secure, or the people didn’t lose jobs and they still went back to court after their allocated time and then documenting the very normal process that went on. Rather those effects of reform are backgrounded or ignored and foregrounded are the most negative consequences. Right? To stir up opposition to these even modest efforts.

Adam: Yeah, and The Daily News did this too, which is a focus on people convicted of domestic abuse and the Chicago Tribune did a story where it was very sympathetic portrayals of women who were beaten by a man who was released on bail, which of course you’re going to find invariably, right. This is designed to muddy the waters and to prevent meaningful reform. And so this is now something you’re seeing more and more and you will continue to see more of this. But this is not necessarily very empirical. So there’s an article in February of 2019, an opinion piece in City Limits, the website City Limits, by Leigh Goodmark, the director of Gender Violence Clinic at The University of Maryland Law School, who points out that when you get in the realm of domestic violence, it’s not so simple. So first you have the concept of unemployment. A common result of pretrial detention is that people lose their jobs, which heavily correlates with domestic violence. Additionally, victims are frequently criminalized as well. One survey showed that one in four victims are arrested or threatened with arrest after reporting domestic abuse to the police. So hyper, hyper-carceral, hyper-police solutions to these social issues, also criminalize victims themselves. Now there are, of course there are, this is a very complicated conversation and it’s certainly worthy of nuance, but the people focusing on these cases of domestic abuse, gun violence, etcetera, are not really concerned with having a nuanced view. They are concerned with muddying the waters and preventing the momentum of reform.

Nima: Yeah, no, no one is saying like, ‘Can you believe who’s still out prowling the streets?’ And to drive a wedge, as we said earlier, between those who would generally support or have already supported this move to reform. But when you raise up the most negative consequences, it’s meant to scold those supporters to, like, shame them into thinking, ‘Oh, my God, we need to rethink this.’ And the end result is of course, ‘Okay, never mind. Keep more people locked up.’ Period. End.

Adam: So the fifth point, and this is the one I kind of really think is the hardest one to get across to people’s heads, is that the anti-reform articles and the way the whole thing is set up, right? Because we see violence in the quote-unquote “streets.” It’s reported on, it’s harped on, it’s got headlines, it’s got sensationalist coverage, it goes viral on Twitter. We don’t see violence that happens in prison. So we only get one side of the equation. And one of the things reformers and abolitionists have struggled with is trying to convey to people that the other side of the equation of putting people in jail is itself extremely violent. And that it’s violent in many ways. Number one, of course, being in jail itself, it also separates families. We talk a lot about child separation lately, but there’s no bigger regime of child separation than our prison system. It destroys communities, it destroys relationships, it destroys fathers and sons, mothers and daughters, grandparents and grandchildren, et cetera, et cetera. And so we only get one side of the equation. And this is something that reformers have been trying to get people to understand.

Nima: As John Pfaff, a law professor at Fordham University, detailed for The Appeal, there are real and urgent stakes at play here. He wrote, quote, “People are and assaulted in prison. arise or worsen in prison. Prison is a and STDs …The risk of death from a drug overdose upon release.” End quote. Prison leads to a much higher aggregate unemployment rate. It severely limits economic mobility. It has been linked to PTSD, it both causes and is caused by drug addiction, which is oftentimes exacerbated through, uh, being in jail or subsequently being put in prison. So the idea that prison is itself, the place where people allegedly go to be punished and then obviously quote-unquote “reformed,” right? To atone. This is such a fucked-up starting premise because so much of it relies on not knowing anything about what prison is actually there to do, which is to further destroy life, further destroy hope, rather than create a system where there are opportunities for people to live healthy lives, even though they did something against the law.

Adam: So specifically with pretrial detention, there’s several studies that are shown that pretrial detention leads to more criminality for two reasons. Number one, peer pressure of being in jail. You’re more likely to meet other people who commit it. But the most important one is when you go to pretrial detention, you lose your job, you lose education, you drop out of school. The biggest indicator, the biggest predictor of criminality is a lack of a job and a lack of education. So we, we rip people from their schools and from their jobs for several weeks, months, often years, and then they’d come out and then we wonder why they go commit further crime.

Nima: That’s right. Not to mention the fact that, um, Pell grants, which allowed people who are incarcerated to take college courses and continue their education while they were incarcerated, the destruction of Pell grants and their availability for people who are incarcerated was done by the 1994 Clinton Crime Bill. This itself shows that prison is not there to help people. It is only there to further harm.

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Bill Clinton signs the Violent Crime Control and Law Enforcement Act in 1994. (Denis Paquin / AP Photo)

To discuss this and so much more, we are now going to be joined by two guests, Clarise McCants, Criminal Justice Campaign Director at Color Of Change, the nation’s largest online racial justice organization and , Senior Staff Attorney at , one of the largest public defense firms in the United States. He is also the founder and director of Zealous, a power- and narrative-building project that inspires and activates public defenders to take their advocacy beyond the courtroom. Clarise and Scott will join us in just a moment. Stay with us.

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Nima: We are joined now by Clarise McCants and Scott Hechinger. Clarise and Scott, thank you so much for joining us today on Citations Needed.

Clarise McCants: Thank you for having us.

Scott Hechinger: Good to be here.

Adam: So we, uh, we’ve spent the last half hour detailing all the recent panic around bail reform, both in New York, in Chicago and Washington, DC, other places. Obviously a lot of the focus you had done is in New York. So I want to kind of start there and we’ll kind of work backwards from there. So bail reform such that it is, and this is very modest reform as most of these reforms are, it’s about 10 minutes old in New York State, but it’s already seen a kind of full-blown media attack. It began on January 1st from The Daily News, New York Post, many of which we referenced earlier, and a kind of lighter form of propaganda in The New York Times with some of the sort of reverse-engineered crime-trend pieces that they’ve tried to pawn off. Now the tabloids, The Daily News and New York Post, which are considered the conservative and liberal papers, respectively, have relied on per usual, this kind of Willie Horton, one-off sensationalist cases of bad guys released who’ve been let go and who’ve got off and done some horrific thing, or people that did a horrific thing that are then let go and that’s per se menacing and per se sinister. What has y’all’s response been to these stories? I think for the last few weeks they’ve gotten ramped up more and more, they’ve put pressure on lawmakers to talk about walking back some of these reforms. How is the reform community in New York State dealing with these, this media barrage and what’s the kind of general impression of who’s driving it and why?

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Scott Hechinger

Scott Hechinger: So you mentioned January 1st, but the reality is bail reform was getting slammed well before the bail laws even took effect when crimes were happening in the lead up to the new year. And even before bail reform was getting slammed, which kind of exposed the lie of this now fear-mongering. But there’s also coordinated efforts that started right after April when the law was signed and before it went into effect. And the reality is bail reform didn’t just happen, right? Despite the fact that the pro-carceral forces are saying this happened and was rushed through, it happened in the middle of the night. No one had been paying attention.

Adam: Oh, they love that line.

Scott Hechinger: Yeah, I know. Look, advocates fought for decades, years, let alone the months leading up to what happened last year. They put their blood, sweat, and tears in it. Defenders, directly impacted people, survivors of crime, organizers and they fought because bail jailed people for their poverty and skewed case outcomes. People who were in jail, you know, plead guilty at far higher rates and those that are out. And those that are in plead guilty to longer time and worse crimes, and it disproportionately impacts Black or brown communities. And so it wasn’t just like a win. You know, a lot of people talk about reform like a win. Like this, you know, we won this thing. It’s a battle. But really, like, what really happened was, like, legislators did the right thing. Prosecutors and the NYPD Commission they’re not lying, that they weren’t in the rooms or listened to, they were listened to, but they just didn’t get what they wanted, which is a new thing for them and they continued to fight. Right? And so in many ways, you mentioned this, like, in many ways it’s relatively modest. I mean it’s monumental in the sense that something passed at the strong objection of DAs for the first time. But in other ways, it’s really a continuation of the same trends of decarceration, of decreased crime rates, was relatively incremental. We’re talking about ending cash bail for misdemeanors and nonviolent felonies, increasing services pretrial. Violent felonies, you can still get remanded and have bail set. But the impact on the advocacy community, look, the advocates are fighters, right? They are focused forwards. They are focused on priorities like making parole fair, raising the age of youthful offender adjudication, getting ceiling provisions in for people that are not just up to 18 but up to 25, marijuana legalization and solitary. But we also, the other reality is spending a significant period of time now and a lot of injury trying to push back against the fear, which is an extremely powerful force. Remind lawmakers, who literally just months ago made decisions based on reason, not fear, to, like, remember why they did this and not change simply because there’s stuff in the tabloids. Like one thing I saw just now from a close colleague of mine, Jared, who literally months ago was on a hunger strike up in Albany for solitary reform, tweeted this, “Got three hours of sleep, mostly just nightmares about clickbait headlines amplifying law enforcement lies causing rollbacks of bail reform. Worked till 2:00 AM last night and again from dawn this morning. Breakfast was pizza and root beer at 2:30 PM. Bleh.” So we are fighting. We are committed to spreading the truth, encouraging lawmakers to have spine, to have patience for change to weather this storm we want to be focusing forward, but it’s certainly taking a lot of energy and time.

Adam: Yeah. Just to clarify, for those who aren’t familiar with New York City, the quote-unquote “tabloids” there are really the papers. I know a lot of places people think the tabloid is something you see in the grocery store but the tabloids, they are considered quasi-respectable journalism, and they’re sold everywhere and they’re very popular. High circulation. Both are top-ten newspapers in the country. So just to try to, I know some people live outside the bubbleI as a man of the Midwest now.

Scott Hechinger: But don’t call them tabloids to the people who write for the tabloids because they will get really, really offended.

Adam: Yeah.

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Clarise McCants (J. Scott Applewhite / AP)

Clarise McCants: Yeah. I mean I think Scott really summed it up. I think, you know, the only thing that I would add is just that on our end I think it’s extremely frustrating that we are going back to the same kind of justifications that we really pushed for when we passed this law around what we know actually makes communities safer and folks kind of just pretending like they don’t know that, and still pushing for changes to the bill that would possibly end up with, like, even more people locked up pretrial than before we had the law. And that was the exact opposite point of enacting bail reform. I think the conservative media, police and prosecutors, they have a much easier job of literally just lying before the law went into effect. We saw the New York Post spreading stories about how criminals were going to get released and get Mets tickets as a part of the new bail reform. And you know, we literally just looked around like what? Where did they get that from? (Laughs.) And like what?

Scott Hechinger: They called it “crook coddling” and these, and they’re talking about like teenagers who are going to see the Mets game for the first time as part of supervised release.

Clarise McCants: One time. This happened one time years ago and they are like, you know, saying that this is what’s going to happen for 900 people who are being released in December. And so for us, right, like, it’s going to take also a little bit of time to, like, show what really are the success stories around people being released pretrial. We’re only days into the law being enacted. Meanwhile, they are able to just rely on lies to scare people.

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Adam: Yeah. So ‘cause I think this kind of gets to what the real kind of fundamental problem is with how you talk about bail reform. And you know, institutionally there is more money lately. You know, disclosure, I work for a, my other gig is I work for a publication that deals in bail reform and um, we have these talks, there’s conversations about, okay, how do you rewire people’s heads? Because fear is always easier than explanation or sympathy, right? It’s kind of like entropy, it’s always easier to have disorder than order. It’s always easier to destroy than it is to build. And the way in which fear works is that it’s cheap and it’s easy, and you can do it very, you know, just go find some bad guy who did something, right? And one of the things we talk about the primary barriers to reform is that people fundamentally don’t view prison itself as violence. They don’t see the harm of prison tearing families apart, getting rid of breadwinners, increasing people’s fathers, or go to prison, of course, are more likely to commit crimes, et cetera, et cetera. The violence of prison itself, solitary, the violence of solitary confinement, et cetera, et cetera. How do people in your line of work, you know, especially with the new projects you’re launching, which we’ll get into, how do you convince these kinds of people on the fence who maybe support bail reform in theory, right? Their hearts bleed a little bit and they, you know, they watched Thirteen and they, and they feel bad about it, but once these tabloid stories start coming, they all run for the fucking hills. How do you convince them to radically rethink the way they view our incarceration system?

Clarise McCants: I think obviously we have to expose the truth. We have to lift the lid. If you’ve ever been to a prison, you know how violent they are and you know how inhumane family separation by way of cages is for folks. But many people, while possibly they know someone who’s been impacted by incarceration, have never felt or seen it for themselves. And so we have to show people the ugly truth about prisons and we have to do it often. One thing we know about how attitudes and cultural notions change is that it doesn’t happen overnight. It’s not going to take one video that we create showing what the truth is for people to just get it. It takes many messages over the course of a long time for people to truly be transformed. And it takes being saturated and inundated with those same messages over and over and over again. And if you think about it, it is how we got here in the first place. The ideas that people have about crime and punishment and how normal it is to treat humans like animals didn’t happen overnight. It’s very deeply ingrained in the American psyche. And it started with the founding of this country on the backs of enslaved Africans. You know, the widespread acceptance of treating humans like animals has really ties in slavery. And I’d argue that the very notion of what a criminal even is in America is rooted in anti-Blackness and the stories that white people created about the depravity of Black folks in this country. And you know, many people have talked about the 13th Amendment and that giving roots to the carceral system of slavery. So I don’t feel like I need to go too much into that. But yeah, we know that the establishment and massive growth of the carceral system that we know today is rooted in slavery. And the vitriol, the fear, the zealous dogmatism we see tied to holding onto and maintaining the system of incarceration and law and order is the same kind of vitriol, fear, and dogmatism that we saw in efforts to maintain the institution of slavery. And so all that to say, right, that transforming attitudes is going to take just as much persistence and saturation as it took to us, for us to get here. But at the same time, I think about an article that Joshua Dubler and Vincent Lloyd wrote for The Guardian in 2018 about how prison abolition was a real possibility in the ‘70s and that the prevailing political consciousness, you know, including attorney generals and Republicans, were folks really saying that prisons were a moral abomination and that we needed to close them. I just say that to say that it’s not impossible to shift consciousness even though it’s going to take repeated exposing of the horrific nature of like what prison is. But I think it also is going to take saturation of messages that activate the imagination around what a better system looks like, and how much safer communities are, and how much lives are changed by not jailing people and investing in communities instead.

Adam: Yeah, imagination is the right word, ‘cause it is a lack of imagination, because we literally can’t imagine another way.

Nima: So Scott, in addition to your work as a public defender, you’ve also launched this initiative called Zealous to help public defenders move their work outside the courtroom. Please tell us a little bit about Zealous.

Scott Hechinger: So, Zealous partnered with Color of Change to launch the campaign Justice Not Fear in order to push back against the fearmongering in this post-reform landscape, which is relatively uncharted waters. I can talk a bit about Zealous though. It really came out of, you know, my own practice and the practice of working in my office, Brooklyn Defender Services. Now I’ve been practicing as a public defender for almost a decade and it’s, I’ve seen, working in court every single day, how public defenders and frontline practitioners, we have a unique kind of view into the various laws and practices that devastate the people who we represent and hurt their communities. We also have really unique relationships with the people who we represent. And there’s this, like, really extraordinary advocacy potential if we’re able to get outside of court, share our perspective, and talk about things in different ways. So shift the narrative, use different language instead of calling people felons and crooks and goons, just talking about people as people, not even talking to people as our clients, but as the people who we represent. And over the last five to seven years with the support of Brooklyn Defender Services, we really pioneered this kind of form of defender advocacy, which takes those messages outside of court and across the country. And traditionally for defenders, we focus zealously and fighting inside of court and, and traditionally those in power, so lawmakers, have overlooked defender voices because they consider us crazy or just concerned about getting people out of jail. And we’ve also been kind of ignored by the communities who are natural allies, communities and people who we represent for a variety of reasons, many of which are well-founded. But the idea is we’re missing an opportunity I think across the country to really capitalize on natural justice reform. So Zealous is all about activating and inspiring public defenders to think about their role more broadly, to teach them how to be media savvy on traditional media, social media, and how to create new media, how to use language intentionally, how to communicate about what we see, how to center ourselves in the story sometimes, how to work with our clients, not just to tell their stories, but to actually engage the people we represent as partners in this broader fight. And the impetus and the inspiration for starting this came out of, really, the successes we saw in New York employing and deploying these types of strategies and last year winning bail reform and winning discovery overhaul. So in New York, prosecutors were allowed to withhold evidence until the day of trial. It was one of the four worst laws in the entire country because of defender-involved and in some cases led campaigning. We were able to do extraordinary things. What if we could duplicate or replicate that model around the country? And so that’s what it’s all about. In September of 2019 we flew in 55 defenders from around the country in, you know, ranging from chiefs in the largest office in San Francisco, Oakland, and L.A. to the first public defender in the Mescalero Apache tribe in Mescalero, New Mexico. And this next year we’re aiming to expand beyond just doing trainings but to also do campaigns like Justice Not Fear and to also push in and work with local defenders to lift up their voice and work more effectively with the coalitions and movements that already exist. So Justice Not Fear is the first campaign that we’ve actually launched and are so grateful to have worked with. We’ve been able to work with Clarise and Color of Change and it really comes from this kind of defender and defender-involved coalition experience of having fought for this and now seeing on the front lines how fear is being used, not just to roll back the reforms, but we really feel it personally, it actually hurt the people who we work with and have the opportunity to represent and serve every single day.

Nima: On the show, we talk a lot about pop culture and the effect of cultural products on kind of societal perception and narrative and the network-TV version of good guys versus bad guys, cops versus criminals surely looms very large when it comes to how people understand these issues and how news media in turn covers them. Then there’s a feedback loop there of course. So for decades we’ve had police and prosecutor shows: Law and Order, NYPD Blue, CSI, Blue Bloods. There are some, you know, blips of possibly more realistic, more positive, less egregious things like When They See Us or the film Just Mercy, you know, with streaming platforms or films that are now getting made that sometimes in the past may not have gotten made. But Clarise, I’d love to hear how Color of Change approaches culture and how working through the creation of entertainment media can also help to change some of these narratives.

Clarise McCants: Yeah, I’m really glad that you asked this question because I think it’s so important to the conversation of changing hearts and minds about the criminal legal system. So, um, Color of Change in collaboration with USC Annenberg Norman Lear Center’s Media Impact Project actually released a report that really digs into the research that we’ve done studying crime procedural shows over the past year and exposing how intentional and obviously dangerous the misrepresentation of the criminal legal system is. In the study, it included 26 different scripted series focused on crime from the 2017 to 2018 season. And we looked at shows that are broadcast on networks and on streaming platforms. And really what we did and why we did it is to really open up a broader conversation and debate about the systemic impact that these shows have when they don’t address the root causes of crime and the many factors that fuel crime. We really see these series make heroes out of the people who violate our rights. They present the powerless as people who are manipulating the system the most and they turn racism into a joke and a prompt for eye-rolling and some kind of ploy for guilty people to hide behind. And what that does is fails to present the full story and it makes it easier for the public to call for more police presence, for greater sentencing, and for more prisons, and for the repeal of bail reform instead of a cause to invest in programs and policies that will deal with poverty, expand access to health services and improve our education systems as the means to promote more safety and justice. And so when shows and films, like When They See Us and Just Mercy come to the forefront, they really are turning this on its head. And you know, I think part of the reason why is that, you know, we have folks like Color of Change, the Innocence Project, and many other organizations that actually do this work every single day in the rooms with the folks who are writing the stories and making sure that they are doing these stories just in representing the system in the way that it impacts people’s lives accurately. And I think part of what is really amazing about When They See Us and Just Mercy is that they also really go into in detail how hard it is to ensure any semblance of fairness in the system, which I think helps people to understand, right? Like, and see prisons as violence, helps them to see the legal system as violence. And you know, when I watched Just Mercy and I saw the way that they accurately portrayed the prosecutor, and when the prosecutor said, ‘We need to preserve the integrity of this conviction,’ and you know, they were able to show how disingenuous that term actually is. Oh, man. It just really made my whole life because I was just, like, finally someone is telling the truth, and they’re telling the truth on platforms that are big enough that our people will see them.

Adam: People actually see them. It’s not Sam Waterston, you know, talking about how he’s just struggling so hard for justice.

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Still from When They See Us (2019)

Scott Hechinger: It’s also like an important feedback loop. So when you have blockbuster hits and you know really, really well-produced, based-on-true-story content like When They See Us and Just Mercy, I still think, you know, that alone has, you know, people can walk into a movie theater and still walk out feeling like, ‘That is so far removed from me’ and that there’s still like a fictional aspect. I think in combination, however, with iPhone footage that we’re seeing increasingly with the court watches and folks that are reporting back the realities in real time, I frankly have been so encouraged by the reaction that my tweets are getting, you know, I tweet out things in real time that I see in court and they’re not these extraordinary, and everything’s relative of course, the extraordinary injustices of, of you know, 30 years wrongfully convicted and then exonerated after being on death row. But there are these little everyday tragedies and everyday injustices and everyday attacks by the system on mostly people of color, Black and brown communities and all really people who are impoverished. If the general public is hearing that content, is seeing it in real life and then it’s being reinforced through media and pop culture in lyrics and songs, in short justice videos like the one we just put out with Color of Change, it kind of drives this conversation forward because I think we’re at a really unique time right now. We’re at a time when, you know, people are really starting to understand that something is wrong. Now what the understanding is, of how wrong it is and what the solution should be, there’s a lot of difference, you know, and differences in opinion, but we’re getting to the point where people from all political stripes, whether you are liberal, whether you’re fiscally conservative, whether you’re libertarian, understand that there are interests that they care about that are not being served by the system. And we’re at the point where I think there’s a general consensus it’s feeling like around the non non nons, at least I thought, before the reform took effect like the nonviolent, non-sex, nonfelony cases like misdemeanors and, you know, nonviolent felonies, but it feels like we’re in this moment and we just have to keep pushing and keep saturating the market so to speak with the truth in order to combat all this fear.

Nima: I think what that speaks to is the extraordinary normalcy of injustice. You know, Scott, you say that it’s not, when you’re kind of shining a light on these everyday things, it’s not that they’re extraordinary except they are, or at least they should be extraordinary because of the damage that they actually do and the injustice that they speak to at such a systemic, larger level that those little things are absolutely extraordinary.

Clarise McCants: The name of the report is actually “Normalizing Injustice.”

Adam: I like that.

Scott Hechinger: Well it also, normalizing injustice, I mean there’s an interesting piece about that, right? Cause normalizing injustice and normalizing like you say, Clarise, treating people like animals, it literally, like, if you define people as the other, if you push them away, just the way you’re thinking about them or you’re referring to them, it makes it easier if you’re outside the system to kind of let it go on without interfering or without wanting to, like, rock the boat. And if you’re in the system, it makes it easier to just, like, perpetuate it. So like in court, every day, court officers who are, I got to say like in the scheme of law enforcement, they are probably like among the kindest, at least in court to the people who I represent, but they call them “bodies,” they call them “cards.” So this, in New York, a literal piece of paper follows people who are incarcerated in Rikers Island from Rikers to court and back. And if the card’s not with them, the body’s not there. That’s what they say. And so they call them “cards,” they call them “ins” as in incarcerated, they call them “jails.” And I don’t think that they do it consciously to, like, degrade these human beings. I think they do it subconsciously. To enable themselves, to, like, insulate themselves from the pain they’re exacting on humans and we see that, you know, it’s just reinforced again in the New York Post and the language, the, the words that these—I don’t know if it’s their editors or the reporters, if they just, like, cut and paste these words that are in this, like, bucket somewhere but it’s amazing how many derogatory terms they can come up with in like a six-paragraph article.

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Adam: Yeah, you should see, the way they describe homeless is a, is impressive and a kind of Der Stürmer kind of way, right? It’s “vagrant,” “bum,” et cetera. Yeah. I mean they’re, they’re obviously in the more cartoonish end, but even, even so-called liberal Daily News is routinely referring to people as gangbangers and based solely on the say-so of the NYPD.

Scott Hechinger: “Ex-cons” and “ex-felons,” which a friend and colleague of mine, Dwayne Betts, points out, it’s not even like a thing, once a felon, he’s, like, ‘I’m a felon. Like don’t take that away from me. I served my time, don’t call me an ex-felon.’ And unfortunately that’s, that’s forever. Unless you seal my case.

Adam: So one thing I want to talk about is, so you have this kind of consensus emerging around reform which has made some headway, obviously. I mean now we’re kind of in a moment now, which I think is becoming increasingly clear as a kind of The Empire Strikes Back, right? Like, there is a reaction to the reform, and I want to talk about some of the popular ways that reaction has manifested over the past few weeks and months, which is these kinds of liberal wedge issues that center around usually domestic violence, guns, these very popular liberal issues that are used to get liberals to oppose bail reform. And then lately of course there’s also been an exploitation of the antisemitic attacks in December of 2019. So can we talk about the ways in which people’s good liberal intentions are now being weaponized to push back against these reforms?

Clarise McCants: Yeah, I mean I think that it is a ploy, but it also is just not rooted in the truth about our legal system. It has never really served the needs of survivors of violence. And I can tell you as a survivor of violence, the way that the current system works does not help you at all. Um, when you look at solve rates and you look at the fact that many survivors encounter more violence when they engage with police and prosecutors, I think you have your answer there. The Alliance for Safety and Justice conducted a national survey of crime victims and surveyed them on what their views are on the justice system. And two out of three victims of violence said that they didn’t receive any help after the incident. And those that did get help, they got it from family and friends, not the criminal legal system. And by a margin of three to one, victims actually prefer holding people accountable through options beyond prison, like rehabilitation, mental-health treatment, drug treatment, community supervision or community service again, right? Like, coming back around to the things that we know actually create safety in our communities. And I think that there’s a way to cut through the noise around what happens when people harm people and talk about, well, yeah, we need real solutions for transformative justice that allow for survivors to actually be at the center of, like, determining how accountability happens and how those harms get repaired.

Adam: You mentioned the research done by Common Justice. Danielle Sered, who has, I actually was blown away by the statistics. I know I want to reemphasize this, that the vast majority of survivors of crimes and violence, the vast majority don’t support incarceration. So when someone gets up and says, ‘I’m all about victims’ rights,’ right? Which is the way to sort of flip the actual power dynamics where the prosecutor becomes the pro-victim aspect, right? That according to a Common Justice alternative to incarceration program, a full 90 percent of survivors in this program, according to this study quote, “Given the choice between seeing a person who hurt them incarcerated or held accountable through a different means, they chose the latter and 70 percent of survivors prefer alternatives to prisons such as community supervision.” Now, when I read that I was actually, I was actually pretty surprised and I think most people would be surprised. So even the very framework we operate, as you explain, is just not true. Like, these long sentences are actually not representing the victim. They’re doing the opposite of what most victims want.

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Danielle Sered

Scott Hechinger: And going back to the role of media and the role of storytelling, the role of changing the narrative, what’s interesting about that 90 percent figure is that 90 percent figure comes after Danielle Sered and her team at Common Justice engages the person who is a survivor of a crime and tells them about a number of things about the system. How, as Clarise said, prison doesn’t solve violence. In fact, as she notes in her extraordinary book and everyone should read it, Until We Reckon, Danielle Sered, um, she talks about how the very drivers of violence itself, which is shame, isolation, lack of economic opportunity, and violence are the primary characteristics of prison: isolation, shame, economic deprivation, and violence itself. So they also talked with survivors of crime about the fact that accountability is not really, it doesn’t really happen when someone is separated in time, in space, in, you know, just having to face the person who you harmed by putting you away in prison. Accountability doesn’t happen. And then trauma doesn’t get healed. And the interesting way that Danielle kind of determines this is she looked at hundreds maybe, I think it was maybe even thousands, of letters that were sent decades after, sent to the parole boards, decades after a crime occurred by survivors of crime saying it feels like it was just yesterday. And from that she kind of took that trauma is not healed, even decades later, when in this particular program it really is. And so what’s interesting is, the more information people have, hearts and minds get changed. Just to draw a parallel, it’s similar to, like, the debate around the death penalty. So if you ask someone the binary question that the general person doesn’t know anything about it, ‘Are you for or against the death penalty?’ Most people are for it. But if you provide one additional fact, like for example, the disproportionate impact on Black people, that number starts to shift. If you talk about the innocence rates it shifts even more, if you talk about the arbitrariness, shifts even more, the cost, et cetera. And so this is an opportunity to really again underscore the importance of spreading the truth and spreading facts instead of fear.

Adam: Yes.

Scott Hechinger: One other thing to say about the wedge issue that you talked about. Do you mind if I…?

Nima: No, please.

Scott Hechinger: You know beyond the fact that prison and jail doesn’t solve violence, let alone any other problem like, you know, we throw at, we’ve thrown jail at, like poverty and drug addiction and mental illness. We also know from experience that bail and jail is not necessary to keep people safe. So in a domestic violence context, I can tell you in Brooklyn for years, for basically my entire practice, the majority of people charged with domestic violence misdemeanors were released pending trial. The majority of domestic violence misdemeanors get dismissed. People are rarely rearrested while they’re out with their cases pending. Crime rates in Brooklyn have gone down. Same thing with guns, too. I mean, there was a couple, a couple of months ago, maybe it was a year ago, de Blasio came out and was challenging the Brooklyn DA’s use of alternatives to incarceration for people charged with gun possession. We actually stepped up as a defender office and actually in his support and said, ‘Look, we’re looking at data from the last, from since these alternatives to incarceration programs began in earnest under DA Gonzalez, and not a single young person who came out of one of these programs has been rearrested since for a violent crime.’ So all you need to look, if you’re talking about bail and you’re talking about fearmongering over bail reform, frankly, in Brooklyn, we’ve basically been practicing what the bail reform now requires for years, and crime rates have plummeted. I was in court recently, and I had nine cases on. All nine cases were felonies. The majority of those felonies, I think it was six out of the nine of those, maybe seven out of the nine, were violent felonies. Um, one of them was a domestic violence case. One of them was a, that case was actually a, a robbery, domestic violence/robbery, and another case was a gun possession case. Every single one of these people were released and were out between one month and 17 months. Not a single one of them had been rearrested in the meantime. They were all back with their families, or were able to keep their housing, or were in programs, or kept their jobs, and every single one of them was in the courtroom before I got there. A couple of them actually called me up and, uh, just to ensure that I was coming and knew where they were. And so this idea that bail is necessary to protect the public, or bail is necessary to ensure a return to court, or bail is necessary to provide safety to domestic violence victims is simply false. Not to mention the fact that folks are not getting sentenced to death and life in prison. The majority of people, 95 percent of people get out of or released from jails and prisons every year, and they’re coming out more damaged than when they went in. So it was just another reason. Just, like, look at the facts, look at what’s happening on the ground, look at what’s happening in Brooklyn and look at what’s happened in Brooklyn. You don’t need to guess what bail reform is going to look like. You can see it already.

Nima: So before we let you both go, we would love to hear a little bit more about the project that you are working on together. Please do share that with our listeners and uh, if there’s any way that we can all get involved, we’d love to hear about that, too.

Clarise McCants: We launched Justice Not Fear, and it is a broad campaign to address the fearmongering that we’re seeing in response to criminal justice reform and just call it for what it is. We partnered with Jesse Williams, who did an amazing job speaking to this issue and talking about the history of how fearmongering got us into this mess in the first place in the Reagan/Nixon eras. And just calls out the fact that they’re doing, they’re using the same old tricks of promoting racist and polarizing images of Black and brown folks, telling one-off stories about people who we should be scared of as a way to move us away from common-sense changes to a really terrible system that needs to be shut down. And so we have released a video that kind of walks us through that and then also talks about how they’re doing it again in New York with bail reform, but also talks about how they’re doing it in other cities around the country as well. We’re seeing the same tactics being used in Chicago, in Philadelphia, in San Francisco, and places where there are people who are standing up and saying no more, to end mass incarceration and police, police unions, prosecutors, they are all coming together to scare people into holding on to our dear institution of incarceration. JusticeNotFear.org is a website that has a lot of resources that tell the truth about what bail reform actually does and how it benefits our communities. It talks about the dangers of the current bail system that we had, and it also provides some, like, tools that people can use to take action and get involved. Calling New York lawmakers to make sure that they hold the line on bail reform, taking action to sign a pledge that says that we will stand against fear and will stand for justice. And also a handy tool called Report Fear where we’re asking folks to, like, send us the stuff that you’re seeing in the media that is not true, that is spreading lies, that’s spreading fear, and share all those stories with us. Share all of those links with us. And we’re collecting, crowdsourcing that data so that we can come out with, you know, our own reporting around what’s really happening in the media and really hold the media accountable for how they have handled this situation and how they are handling this across the country.

Adam: I think the crowdsourcing media criticism is fascinating to me. We sort of have a kind of informal version of this for our own show. Like, a lot of our things will come from random people noticing things. Right? And I think that there’s so much out there, because so much, here’s the thing, so much of this comes from local news, right? And you know, there’s hundreds of local news outlets, and obviously you can’t monitor all them. And this is what, you know, at The Appeal, most of what I cover is local news because it’s where most of the damage is done. So I think some of this is really great because it scales. Because right now you can’t, there’s basically, you know — what? — half a dozen media full-time media critics in this country. So I think that’s very interesting, and I think that a very fascinating way of approaching it. I’m super excited to see where it goes.

Scott Hechinger: It’s not just for us to be able to, like, collect data and disseminate it and do what we’re going to do with it. It’s also working with folks like you. I mean, like, make sure that you’re actually seeing what’s coming in from all over the country as well. And so I think it’s, you know, our powers combined, we can defeat fear. Maybe that should be our tagline. (Laughs.) But just one thing to note, like, the impetus for this concept is that you have to be realistic. When you have a story of a horrific crime, which by the way, unfortunately bad crimes are always going to happen. Bad things are going to happen, tragedies are going to happen, with or without bail reform. It’s just, like, that’s the reality of it. The question is whether we’re going to have patience for change to see how overall, I’m confident, and the data bears it out, we’re going to be in better shape afterward, but we realize that just combating the story of fear one for one with a story of injustice is a losing proposition. So the strategy behind Justice Not Fear is really to call out, kind of break down the fourth wall and call out the coordinated, kind of, like, the tactics that they’re using so that people can see it for what it is, can see it for the the small, cynical, racist kind of historical tool that it is to perpetuate the system that, if you look at the data, it doesn’t matter where you’re at in the political spectrum, it’s hard to deny that it’s not working. So in any event, one other thing that folks can do, also something that I’m excited about, we launched a Twitter handle as well. It’s and we are going to be retweeting folks that are spreading the truth. We’re going to be calling out not just media, but politicians, police officers, law enforcement and other players for the lies and also be disseminating a lot of the articles that come into the Report Fear mechanism and tool. So follow .

Nima: That is all amazing. We cannot thank you enough for talking to us today. We’ve been speaking of course with Clarise McCants, Criminal Justice Campaign Director at , the nation’s largest online racial justice organization. You can check them out, follow them on Twitter and get on their mailing list at colorofchange.org. And , Senior Staff Attorney at , one of the largest public defense firms in the country representing about half of all those arrested in Brooklyn, New York each year. Scott is also the founder and director of Zealous, an initiative that seeks to activate public defenders to take their advocacy beyond the courtroom. Scott is also a co-founder of the . You can follow Scott on Twitter @ScottHech, that’s how it is spelled H-E-C-H. And of course check out , follow them on Twitter. It has been great to talk to you, Clarise and Scott, thank you so much for joining us today on Citations Needed.

Clarise McCants: Thank you.

Scott Hechinger: Thanks so much for having us on.

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Adam: It’s interesting to hear from people who are kind of on the front lines of that. I mean, obviously, you know, Scott’s a public defender and his whole thing is, like, testifying, testifying as to what’s going on, what’s, what is the human cost of this? ‘Cause all this for years was sort of just done anonymously, right? Countless Black and brown people just kind of run through the sausage grinder and no one cares or even notices. And so even bringing the human aspect to it, bringing the human face to it, to the other side of the equation, the other side of the carceral state, the violence of jailing and the violence of prisons and the violence of pretrial jailing specifically, is required to get people to sort of empathize here. There’s sort of a, you know, unfortunately this country, to get anything done, you have to win over a kind of squishy liberal demographic of white liberals. You know, that’s just the way it is. It’s the way the demographics have borne out. It is how the power dynamics have borne out. And so creating that moral narrative about like, ‘Okay, well it’s not just about locking people up and throwing away the key.’ There’s, like, a real human being on the other end of that and the racial aspects of that are difficult to, like, drill into people’s heads and so the people of Color of Change and what Scott’s doing and all that is basically saying, like, ‘Hey, it boils down to there’s a human being here, if you care.’

Nima: Right, but what we see in retaliation to that humanized narrative and the successes that have been seen, even if small-scale and modest against the larger system of just deep white supremacism in this nation, the kind of backlash to any sort of recalibration of that story then just recasts victims as being let down by the politicians if there is bail reform or if there are any other changes to the system that is in place. Right? So then it’s, you’re now abandoning or not respecting the people victimized by XYZ person. And it’s always taking these anecdotal pieces, which are real and which suck, but making them into the story at large and ignoring the violence enacted on entire communities and families for generations by the systems that are already at work so that you can recast who is consistently the victim. And it always winds up being those who advocate for and being used to promote the further mass incarceration of poor people, of Black and brown people, of people who do not have the resources to mount even the most meager or modest defense for their own lives, for their own case in our legal system.

Adam: Uh, yeah. So that’ll do it for this hundredth episode. Thank you so much for sticking with us for a hundred episodes. Again, we look forward to our next hundred and if we go to a thousand-

Nima: Everyone gets a Kewpie doll.

Adam: Yeah. If we’re at a thousand episodes, we will definitely be phoning it in at that point. Probably doing press releases for the Democratic Party.

Nima: (Laughs.) Yes. So thank you for this first hundred, here’s to the next hundred, if not more. Of course you can help us get there by following the show at Twitter , Facebook and the possibly most helpful thing you can do, in addition to sharing the show with those that you like and perhaps don’t like to get people to listen more, is supporting us through with Nima Shirazi and Adam Johnson. Your support through Patreon literally does make this show possible. Our crew is growing. What we are trying to do is expanding and we cannot do that without your support. So that support is so incredibly appreciated and vital for the show. And of course, as always, an extra special thanks goes to those critic-level supporters through Patreon. I am Nima Shirazi.

Adam: I’m Adam Johnson.

Nima: Citations Needed is produced by Florence Barrau-Adams. Associate producer is Julianne Tveten. Production assistant is Trendel Lightburn. Newsletter by Marco Cartolano. Transcriptions are by Morgan McAslan. The music is by Grandaddy. Thanks, everyone. We’ll catch you next time.

[Music]

This episode of Citations Needed was released on Wednesday, February 5, 2020.

Transcription by Morgan McAslan.

Written by

A podcast on media, power, PR, and the history of bullshit. Hosted by @WideAsleepNima and @adamjohnsonnyc.

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