DeRay, Sam, Brittany, and Clint discuss the overlooked news, including Roe v. Wade’s vulnerability, holistic public defense, the role of consent decrees in curbing police brutality, and Mississippi’s Senate runoff race. The Washington Post’s Elizabeth Bruenig joins DeRay to talk about her article, “She reported her rape. Her hometown turned against her. Can justice ever be served?”

Show Notes:

• Clarion Ledger: What will it take for Mike Espy or Cindy Hyde-Smith to win the Senate runoff?
• Vox: With Kavanaugh on the Supreme Court, West Virginia and Alabama are ready to ban abortion
• New York Times: Sessions, in Last-Minute Act, Sharply Limits Use of Consent Decrees to Curb Police Abuses
• Washington Post: She reported her rape. Her hometown turned against her. Can justice ever be served?
• Bronx Defenders: THE EFFECTS OF HOLISTIC DEFENSE ON CRIMINAL JUSTICE OUTCOMES

Transcription Below:

DeRay: Can’t get enough of Pod Save the People? Then you should check out At Liberty, a podcast produced by the ACLU. At Liberty asks questions like, “Why do we live in a nation that is in love with blacking people up? Since when is every immigrant a criminal? And what’s next in the fight, of reproductive rights?”

Brittany: Every week they’ll be diving into the biggest civil rights and civil liberties issues of our day, with special guests like Cecile Richards, legal heavy-weight Erwin Chemerinsky, and top experts from the ACLU. They’ll cover everything from the supreme court to racial justice, and the latest on the ACLU’s efforts to reunite immigrant families separated by the Trump administration.

DeRay: Subscribe to At Liberty on iTunes or wherever you get your podcasts.

DeRay: Hey this is DeRay, and welcome to Pod Save the People. In this episode, we have the news, like always, with me, Brittany, Clint, and Sam, and then we’re joined by the reported Liz Bruenig.

Elizabeth: In 2006, a cheerleader at a high school in north Texas reported her rape. No one was ever prosecuted for her rape. In fact, the town turned on her. So the question that my article tries to answer is, “Why?”

DeRay: Now, the work for this week is celebrate the wins.

DeRay: You know, so often, we’re in this work where it’s hard, we fight more than we win, we press, we go on, and we just forget to celebrate. What happened with the mid-terms, we got a lot of good things out of that. The governorships, the state legislatures. We didn’t win all the races we wanted, but we got some good stuff.

DeRay: And even thinking about in our personal lives is that we spend so much time … especially activists … fighting and pushing, that we forget to celebrate the wins. On this episode, you’ll hear us celebrating some things with some people on the pod. And remember to celebrate the wins in the lives of the people around you, too.

DeRay: Let’s go.

Brittany: Hey y’all, it’s the news. This is Brittany Packnett, @MsPackyetti on all social media.

Sam: And this is Sam Sinyangwe, @samswey on Twitter.

Clint: And this is Clint Smith, @ClintSmithIII.

DeRay: And this is DeRay, @deray … Ay, ay, ay! See, I got you, Clint! I almost didn’t do it, but I got you!

DeRay: Anyway, this is DeRay, @deray on Twitter.

DeRay: Y’all, it’s Brittany’s birthday!

Clint: Oh, snap! As of this recording, Brittany is out here … doing it.

Brittany: Out here at 34 whole years old.

Clint: I thought she was 24, but, you know. That’s the skin. That’s that well-moisturized skin.

Brittany: I appreciate that, ’cause DeRay said I was 40, so I appreciate that, Clint.

Sam: If it’s your birthday, make some noise. If it’s your birthday, make some noise.

Clint: What did you learn this year? That you’re gonna take with you.

Brittany: What did I learn this year … Well you know, 33 was my Jesus year, and I really learned about the power of faith this year.

Clint: Can you explain what the Jesus year means, for the secular folks?

Brittany: Yes, very fair question.

Brittany: So as a person of faith, Jesus died and was resurrected in his 33rd year, and so it is a year of great significance for me, as a person of faith, and I really tried to be really intentional about getting clear on my purpose this year, which I feel like I did. And having faith enough that I could both get clear on that, and I could be adventurous and imaginative about how to live that out.

Brittany: So yeah, it was a pretty amazing year, and some things that I never even dreamed could happen happened, and so I’m really grateful for 33. I’m grateful to see 34.

Brittany: Shout out to all my fellow scorpions, anybody else celebrating a birthday this week, it’s our time! Let’s walk into it. Let’s go and be the powerful people we were designed to be.

DeRay: Clint, don’t you have news to share, too?

Clint: I do. Yeah. So I just signed a book deal. I’ll have a book coming out with [Little, Brown 00:03:47], and so super excited. It’s been a project that’s brewing in me for a long time, and I’ve been working on it for the past several months, and excited to keep working on it.

Sam: So what’s the book about?

Clint: It’s a sort of inter-generational story of black America through place, and so it’s using different places throughout the United States as an entry point with which to think about certain periods of time.

Clint: For example, in Monticello, how does Monticello exist as a place that is meant to lift up and celebrate the legacy of Thomas Jefferson, while also grappling with and reckoning with what it means for him to have been someone who enslaved his own children, and enslaved 600 people, and how do you carry both of those things at once, and how do these places talk about their relationship to that history.

Clint: And so it’s kinda going from place to place in an effort to understand how these places, and the people associated with them, talk about what this history means, and how we can understand these places as a means of better understanding our collective history as a country.

Brittany: That’s dope, Clint.

Sam: So you were going to all of these different places, spending a lot of time there, talking to people … What was the process?

Clint: Yeah, yeah. I’ve been going to a bunch of different places, talking to a bunch of different people, continuing to meet so many people who’ve been doing this for decades, and I think it’s important that their stories and their ideas and the work that they’ve been doing is lifted up, and so I hope to play a small role in that.

Sam: Dope.

Brittany: Well I think that’s awesome, and I’m very, very excited about it.

Sam: Can’t wait to read it!

Sam: And Brittany, do you have an announcement?

Brittany: Yes! I decided in my 33rd year that my purpose was to be exactly like Clint Smith, and so I am also working on a book with One World. It’s lit out here.

Brittany: So my book is currently titled ‘We Are Like Those Who Dream,’ which is a passage from Psalms, because what I decided that I wanted to put together for the world was a bible of the wisdom of black women. So it is a book for everyone, but I just believe, at any given moment in time in your life, and certainly in the political context of the world, the wisdom of black women has been sustaining, has been informative, has been inspiring generations, and so I want to make sure that it continues to do that moving forward.

Brittany: So I’m really, really excited to give this gift to people, on my birthday.

Clint: Dropping a book announcement on your birthday, and you have a book coming out in honor of your birthday.

Brittany: Totally! Yeah. Michelle Obama gave me her book for my birthday week, pretty much. Obviously. She as thinking of me—

DeRay: That was a good segue, Clint. That was really good. For a second there, I was like, “What is he saying?” I was like, “What?”

Clint: Clearly. Right.

DeRay: Michelle Obama, the photos of her on the interviews, and with the Oprah interview in O Magazine, beautiful. I can’t wait to see the tour. She’s selling out stadiums, which is wild, so it should be amazing.

Brittany: I mean, just amazing. Incredible.

Clint: She’s a rock star.

Brittany: Truly incredible. As she deserves to be.

DeRay: The other thing that is in the news that we can’t not talk about is the fires. The videos of the fires have been horrific. I just had no clue … you know, ’cause living on the east coast, that’s not something you deal with regularly, and I was in San Francisco this weekend, and seeing the smoke and smog, even down there, was just like … it just reminded me of the severity and intensity of the fires, and all the people who lost their homes. So many people have to rebuild, so I hope that there’s a plan to help them out, but it was wild to watch.

Sam: Yeah, I mean, it’s a particular reminder about climate change, and the impact that climate change can have in our lives today, as we think about long-term. And I think, even thinking about the hurricanes in Florida, thinking about the fires in California, it’s a reality that we’re living with the impacts of climate change right now, and this isn’t something we have to speculate about, but something that is very much impacting a lot of people today. So I’m hopeful that the conversations will start to shift, and people will start to come on board with an actual plan to address climate change, rather than denying its existence.

Brittany: Yeah, I think that, Sam, the point that you’re making is so right. Often, we look at natural disasters as exactly that, natural disasters that are inexplicable and not preventable, but there are so many ways in which, at the very least, the scale to which we are experiencing these things, and the frequency to which we are experiencing things, is, indeed, preventable, if not the acts themselves. So I couldn’t agree with you more, Sam, and I’m hopeful that in addition to thoughts and prayers, that we actually get some change, and active in this country, so that we can see these things decline.

DeRay: Don’t go anywhere. More Pod Save the People is coming.

DeRay: Pod Save the People is brought to you by the film ‘The Frontrunner.’

DeRay: From Oscar-nominated director Jason Reitman, who brought us ‘Thank You for

Smoking’, ‘Juno’, and ‘Up in the Air’, ‘The Frontrunner’ is based on the shocking true events that changed the path of a nation.

Brittany: Oscar nominee Hugh Jackman plays Gary Hart, the charismatic politician and overwhelming front runner for the 1988 presidential election.

Brittany: Senator Hart led George H. W. Bush in the polls by 13 points. Everyone was certain he would win. And then the world as we knew it changed, and a private scandal became front-page headlines for the first time.

DeRay: ‘The Frontrunner’s about the turning point in American history when privacy ended, and we, as a country, decided we have the right to know.

DeRay: Written by Matt Bai and Jay Carson, this is the scandal and the story that started it all. Bush one, Bush two, the Clinton impeachment, our 17-year war in Afghanistan … it all started with one scandal.

Brittany: Text ‘frontrunner’ to 26797 and buy your tickets to see ‘The Frontrunner’. Message and data rates may apply.

Brittany: DeRay, the weeks and months, and frankly, years leading up to the mid-terms were really, really stressful. I don’t know about you, but one thing that helped me get through the elections was cooking, when I actually got the chance. Not only was I enjoying good, home-cooked meals, but making the food also helped relax me in a really stressful time.

Brittany: That said, it definitely felt hard to find the time to cook, which is why Sun Basket is great. Sun Basket has been rated the number one meal kit by leading publications, and it’s no wonder why. They offer 18 weekly recipes, with options for paleo, gluten-free, Mediterranean, lean and clean, vegan … I may try out this vegan thing, y’all … and more.

Brittany: But for me, what matters most is that Sun Basket just generally helps me eat better, and it’s as simple as that.

DeRay: Sun Basket makes it easy and convenient to cook healthy, delicious meals at home, no matter how much experience you have in the kitchen, and I have, uh, no experience.

DeRay: Now you get more options than ever. Just go to the Sun Basket app and pick from 18 weekly recipes. Easily-cooked dishes like seared albacore tuna steaks with green beans and soft-cooked eggs, or black-eyed pea fritters with arugula and spicy chili mango sauce.

DeRay: With 18 weekly recipes to choose from, there are healthy and delicious options for everyone, so you can be your kind of healthy.

Brittany: Plus, Sun Basket works with the best farms and suppliers to bring you fresh, organic produce, and responsibly-raised meats and seafood. Everything is pre-measured and delivered to your door, so you can get your meal on the table in as little as 15 minutes.

DeRay: Go to sunbasket.com/people today to learn more and get $35 off your first order. That’s sunbasket.com/people for $35 off. Sunbasket.com/people.

Sam: So my news is about Jeff Sessions, who just before leaving the justice department as attorney general, he issued a memo that makes it significantly harder for the Department of Justice to hold police departments accountable for unconstitutional behavior and police violence.

Sam: So his memo imposes three stringent requirements on consent decree. So these are the agreements that we saw in places like Baltimore and Chicago and Ferguson that require police departments to implement particular reforms in order to increase accountability and reduce police violence.

Sam: And so this memo requires a couple of things. First, it requires top political appointees to sign off on the agreement, rather than career lawyers. So again, it makes it more political, less likely, particularly under Republican administrations, that these agreements will be signed off on, because of that.

Sam: It also requires department lawyers to lay out evidence of any additional violations beyond unconstitutional behavior by the police, so unconstitutional policing itself is no longer enough to trigger a consent decree under this new memo.

Sam: And then finally that it requires that each of these agreements has a sunset date, meaning that … you know, in the past, it was that the agreement would stay in effect until the police department had demonstrated that it had made all of the changes required of it. Now there’s actually just gonna be an end date, so whether or not the police department actually makes the changes that they agreed to make, the agreement will just end. It will terminate at a particular date.

Sam: So this is part of a broader strategy. We talked about Jeff Sessions and some of the actions he’s made in the past. Ordering, for example, a review of existing consent decrees. Well this impacts future consent decrees, and it’s a reminder of the power that the federal government has to address issues like police violence, and how it is making conscious choices to allow those forms of violence to continue without any type of intervention, or making those interventions less likely to actually happen.

Sam: And we know that these interventions work. For example, VICE News did an analysis of police shootings data for the 40 largest cities, and what they found was that police departments that had Department of Justice intervention, that were put under consent decrees, actually had a 27% reduction in police shootings. So this is definitely a intervention that has proven effective in saving lives, reducing police violence, increasing police accountability, and now those interventions will be much harder for the Department of Justice to actually implement in the future, because of these types of restrictions that Jeff Sessions put in place.

Clint: So part of what I think this reflects is how the Trump administration’s general strategy around parts of the Obama administration’s legacy is sort of decimating and stripping away the enforcement mechanisms, and the teeth of things, rather than a whole-sale erasure of a program.

Clint: In some instances, they do. Obviously they completely left the Paris Climate Accord, they completely left the Iran Nuclear Deal, but for so many of these things, like Obamacare, they weren’t able to repeal Obamacare, so they essentially just continue to chip away at it and make sure that premiums continue to increase, and that co-pays continue to increase, and Trump himself said, “We’re gonna make it so that Obamacare … ” make it so it’s unpopular and doesn’t work, so that they can ultimately try to repeal it, which it doesn’t look like they’ll be able to do now because of the house control of Congress, but …

Clint: You know, and so for this, they don’t say that they won’t investigate police brutality, they just make it so that it’s limited in scope, so that you have to have it signed off by a political appointee, which, as you said, Sam, is fundamentally different than having it signed off by a career employee.

Clint: So this is a strategy that they have continued to use in an effort to decimate and roll back the effectiveness of things that the Obama administration had put in place, and I think that we’re gonna continue to see this used as a strategy. Especially now, since they can’t do a lot of work legislatively, because of split control of Congress.

Brittany: Things like this kind of exiting present that Jeff Sessions gave everyone to diminish the power and use of consent decrees is a perfect example of just how many things can happen in an instant with a memo, with a change of a single regulation, that can wreak havoc on the progress that we have been making, not just in criminal justice reform, but in truly keeping communities safe.

Brittany: And if that is the work of the Department of Justice, then we have to be people that continue to hold them accountable, no matter who’s in that seat.

DeRay: Who celebrated when Sessions was gone? Hint: everybody. But the marijuana, the cannabis businesses, really had a spike when he left.

DeRay: Canadian cannabis company Tilray saw its stock jump 30% the day after Sessions left, and stock for companies like Canopy Growth and Aurora Cannabis grew 9%, and there were also gains for cannabis funds like NASDAQ’s Alternative Harvest Marijuana Fund, and the Horizons Marijuana Life Sciences Fund.

DeRay: So it’s been interesting to think about what it actually does to economies. Side note: who knew that NASDAQ had an Alternative Harvest Marijuana Fund? That is … it’s just wild to watch …

DeRay: You know, we arrest more people for weed than all violent crimes combined, and to know that that’s true, and then see things like NASDAQ have a marijuana fund, is just sort of absurd. I hope that these places are also fighting for decriminalization across the country.

DeRay: But it’s interesting, about 62% of Americans actually support marijuana legalization, which is up from 31% in 2000, so the new guy they got there, there’s no indication that he’s better than Sessions, but it is interesting to think about some of the things, like marijuana, that might not be on this guy’s radar, and states might be able to do what they wanna do.

Brittany: So as we continue to pay attention to what’s happening in this administration, we can’t take our eyes off of the Supreme Court. Now that Brett Kavanaugh is seated on the highest court in the land, there are states that are readying themselves to ban abortion.

Brittany: Essentially, overturning or weakening Roe versus Wade is what many people believe will happen now that Brett Kavanaugh’s on the court. Many people believe that there are enough votes for this, and when Brett Kavanaugh was in his nomination process, one of the things that anti-abortion activists liked to say was, “We don’t know what he’s going to do once he’s on the court.”What overturning or weakening Roe at the Supreme Court level would allow states to do is to practically automatically ban abortion in their states.

Brittany: So there are different ways that states are doing this. Voters in Alabama approved a measure that gives personhood status to fetuses, and on the same day, voters in West Virginia actually backed an initiative that states that nothing in its constitution, quote, “secures or protects a right to abortion, or requires the funding of abortion.”

Brittany: So essentially, both of these measures would allow these states to more easily ban abortion, but they are not the only ones that are up to this.

Brittany: Louisiana, Mississippi, North Dakota, and South Dakota all essentially have what are called “trigger bans,” which means that if Roe is reversed, abortion would automatically become illegal in those states.

Brittany: And then there are nine states that have pre-Roe abortion bans on the books, which means that as soon as Roe is overturned, they could see abortion be illegal as well.

Brittany: We’ve talked before about the dangers of banning abortion, because as a reminder, if Roe versus Wade is overturned, if states make abortion illegal, abortions will not stop. They will simply become far more dangerous, they will become deadly, and we know that it is mostly poor women and women of color who suffer disproportionately from the complications that back-alley abortions can bring.

Brittany: And so I wanted to bring this back up again, because we discussed it a lot as Kavanaugh was in line to get on the Supreme Court, but now that he’s there, the danger is even higher.

Sam: You know, this is a reminder that ballot initiatives can go both ways.

Sam: As we celebrate the victory in Florida for Amendment 4, restoring voting rights to 1.4 million people through a ballot initiative, we also are seeing in Alabama and West Virginia, ballot initiatives that passed there that make it easier for the state to criminalize abortion if Roe v Wade is overturned.

Sam: So thinking about direct democracy and ballot initiatives as a strategy to make change, but also the limits of that, and how that process can be used to put in place policies that are actually harmful to communities, that reduce access to reproductive health care.

Sam: And so moving forward, in many of these states that have trigger bans, and many of these states that have existing law in place that would go into effect, reducing access to abortion in these … 12 states, I think it is, in total … just thinking ahead of time, as these states now going to session, as these legislatures with new … more democratic legislatures, state legislatures going to session, hopefully there will be a lot of organizing and a big push to make sure that those rights are actually protected, and to ultimately put in place laws that can withstand any action by the Supreme Court, at the state level, to protect all residents from being impacted by that decision.

Clint: Yeah, and I think … you know, earlier I was talking about how one of the strategies of the Trump administration is to sort of take away the teeth of certain endeavors or certain projects or certain initiatives or certain parts of previous sorts of legislation passed under different administrations, and I think what we’ve seen over and over again is the Supreme Court taking a similar tactic.

Clint: This is another tactic that is gonna be used in the context of abortion. It might not necessarily be that Roe v Wade is completely overturned. It might be, we don’t know. It’s too early to say, but it doesn’t necessitate that Roe v Wade is completely overturned.

Clint: What the Supreme Court can do is refuse to strike down what is continuing to be really restrictive and onerous policies around abortion in specific states, in ways that these places, as Brittany has alluded to, now feel a different sort of permission and a sort of implicit validation with which to proceed on reducing and restricting reproductive rights.

Clint: Even if Roe v Wade is not overturned, the Supreme Court can refuse to strike down restrictions that make it incredibly dangerous and incredibly difficult for people in states across the country. So it’s certainly something to keep an eye on.

DeRay: I’m mindful that in West Virginia, it was 52% of voters that supported Amendment 1, and in Alabama, it was 59% of voters. I think that there’s still room for public opinion to shift on these things.

DeRay: I’m still sort of shocked that even in 2018, there are all these people who … It’s one thing to say that you won’t get an abortion. It’s another thing to say that nobody should be able to get one at all. So I’m hopeful that both Roe v Wade won’t get overturned, but also that we won’t see these trigger laws, which are also in place in four other states … in Louisiana, Mississippi, North Dakota, and South Dakota … that we won’t see these proliferate.

Clint: So we all know that an arrest and a criminal charge alone can have a really devastating impact on someone’s life.

Clint: For example, in New York state, more than one in three people arrested are never convicted of a crime or an offense, but they suffer really dramatic consequences as a result of that arrest alone. The collateral damage and the instability that results can have far more devastating an impact than any of the direct penalties that one might experience as a result of a criminal conviction or incarceration.

Clint: And what’s interesting is, there’s this new study that has been conducted by the University of Pennsylvania and the [RAND 00:23:38] Corporation, that looked at half a million cases in the Bronx criminal court over a 10-year period, and it compared outcomes between clients of the Bronx defenders, which is a holistic public defense model, and the Legal Aid Society, which uses traditional defender models and emphasizes the criminal representation.

Clint: It found that implementation of a holistic public defender model in the Bronx, it reduced sentencing length by 24%, it reduced incarceration rate by 16$, it reduced pre-trial detention by 9%, and it reduced the time that clients spent behind bars by 1.1 million days, collectively.

Clint: So the Bronx holistic defense model is designed so that each client has a team that works to address both the case, in addition to the underlying causes of justice involvement in the first place, and that ranges from drug addiction to mental illness to housing instability, and their team represents the client wherever they go. Whether it’s criminal, immigration, family, or civil courts, recognizing that involvement in any of these systems is a huge risk in ensnaring people in other systems, that all of these different things are connected.

Clint: The study also revealed that by employing a holistic defense model, it saved New York tax payers an estimated $165 million. And despite a really significant release rate, defendants who receive holistic defense services were shown to commit no more crime than those who were incarcerated for longer periods.

Clint: And so this is a really fascinating report, and really important in so many ways, because we talk on the podcast all the time about how we can’t understand the justice system without understanding the larger social and historical sociopolitical context in which this system operates, and that’s on a macro level, but also on a micro level. We can’t understand a specific person’s involvement in the justice system without also understanding the way that eviction has shaped their lives, the way that immigration policy shapes their lives, the way that access to social programs shape their lives, access to health care shape their lives. So all of these things, we recognize intuitively, are connected, but there are very few models that operate in ways that are holistic. I think we’ve seen some in the context of schools, but we don’t often see it in the context of adults.

Clint: So one of the things that the Bronx defenders has done so well is to recognize the intersectional nature, if you will, of what it takes to get someone out of the claws of poverty, and this is a really, really important report, and something that I hope lots of public defenders across the country, and lots of states across the country, take note of, in terms of when they think about what sort of defense opportunities, and what sort of legal assistance to provide those who are living in poverty, so that you’re not only providing them defense attorneys, but that you’re providing them a system and a structure in which they can be removed again from the claws of poverty in ways that are sustainable, and recognize the different points at which they might be pulled back in.

Brittany: What I found so fascinating about this report was the fact that people who require government appointed defense attorneys are often just not even brought into the conversation about criminal justice reform.

Brittany: As we talk about ending mass incarceration in the general sphere, we often discuss drug sentencing, we talk about sentencing reform, we talk about cash bail reform, but we talk very little about the system of public defenders, and the needs of people who require public defenders. Part of the reason for that is because there’s actually not much research on it, so this is a pretty groundbreaking study, in that it finally gives us longitudinal data on not just why that role is so important, but how to actually engage in public defense, or publicly funded defense, that is effective.

Brittany: As you already shared, Clint, there were a lot of really important learnings from this, but I didn’t realize how much this was missing from the broader conversation on criminal justice reform, and I’m gonna take it upon myself to do more learning and understanding on this particular topic, because it seems as though this is one of those times when we treat people as if they are voiceless, instead of simply passing the mic.

Brittany: There are needs that people have in those communities that we’re clearly just not listening to, and this is another opportunity for us to amplify the voices of people currently living in low-income circumstances, as they interact with a criminal justice system that often requires them to have public defenders that are over-burdened, underpaid, and under-resourced, but that are doing their part … like the Bronx defenders … to create solutions to these challenges.

Sam: Yeah, and I think … like you said, Clint … we know that poverty requires a comprehensive solution in order to actually address, right? I think when we talk about education, over the past several decades, I think the literature has sort of evolved to recognize that. That not only do kids and families need high-quality education in the classroom, but also they need access to healthy foods, they need a stable environment at home, they need a community that is able to invest in and support them, and that has the resources to do so.

Sam: All of these things, we see policies attempting to address, policies like the Federal Promise Neighborhoods Program, and others that are comprehensive in their approach. But then when we think about adults, oftentimes, there is less of a investment. People are comfortable investing in kids, to some extent, but when it comes to adults … and particularly those impacted by the criminal justice system … oftentimes, the resources and supports that they get are very thin, and are very focused, sort of narrowly, on defending them from a particular charge, but not really taking into account all of the other needs that people have who enter the criminal justice system, and also who exit and are released from the criminal justice system.

DeRay: And this also reminds me of why I have a visceral reaction when people talk about, like,

“Oh, this, insert here, is the most important part of the criminal justice system.” Some people say, “Prosecutors are the most important part,” and, “Sentencing is the most important part,” and, “Policing is the most important part,” and the reality is is that all of it matters, it just matters differently, and when we play this game of “the most important part,” we often overlook some of the parts that just don’t get as much play as others.

DeRay: So, when you think about last week’s episode, where we had the public defender from Chicago talking about the judge deputizing her defenders when people come to police stations. That is novel, interesting, we should be doing that in more cities across the country, but I didn’t even know that was a thing until we talked to her.

DeRay: This study was another thing that … I had never really heard about holistic defense as a program and a strategy until this, and what happens when we continue to participate in this idea of “one thing is the most important lever,” because that’s actually just not true. The criminal justice system is so complex that all of the levers matter. So we should talk about how they matter differently, as opposed to saying one is the most important.

DeRay: My news is about the senate race in Mississippi. The election’s gonna be on November 27th. It is a special election, because Cochran resigned due to health issues. There was somebody appointed, Senator Cindy Hyde-Smith, and Mike Espy is running against her.

DeRay: Now, I had no clue that Mike Espy, a black man who used to be the former Secretary of Agriculture, was running for senate. This would be a huge win if he gets it, and I’ve actually been shocked at how this just hasn’t been in the public conversation. I only know this ’cause I randomly saw it online, and I did some research, and I was like, “Oh, there is a senate race still happening,” and one of the things that just happened that brought this race into the news a little bit more is that just this weekend, Senator Cindy Hyde-Smith said at a rally, she said, “If he invited me to a public hanging, I’d be on the front row,” and everybody’s like, “Who makes lynching jokes?” That is—

Brittany: Sorry, what?

DeRay: Like, who—

Brittany: In Mississippi, no less. With a black opponent, no less.

DeRay: Yeah, but, who says that?

DeRay: So her response was, “I referred to accepting an invitation to a speaking engagement, and referencing the one who invited me, I used an exaggerated expression of regard, and any attempt to turn this into a negative connotation is ridiculous.”

DeRay: So needless to say, Cindy Hyde-Smith needs to lose. We support Mike Espy, and please check out Mike Espy’s campaign page so that we can get him to win.

DeRay: Now, Espy and Hyde-Smith both received 41% of the vote on election day, which is why they have a run-off on November 27th.

Brittany: I think this is a reminder that we should never leave anything off the table. That maybe some of us heard of Mike Espy, but just figured a Democrat, and a black man Democrat at that, was not going to win a statewide election in Mississippi. Maybe we just didn’t see Mississippi as a place where a blue wave or a black wave could take place. Maybe, frankly, we just have not been paying enough attention to the domestic south, let alone the global south, to be having conversations about what is possible in the deep south, and in a state like Mississippi.

Brittany: So I’m wanting to pay more attention to this run-off because it really is coming down to turnout, and turnout often comes down to money, to making sure that we support candidates who have the ability to move a place like Mississippi forward.

Sam: Mississippi and the senate race that is ongoing there is illustrative of broader political dynamics, and how race interacts with politics in the south. What fascinating is that Mississippi has the largest proportion of black residents of any other state in the country.

DeRay: Really?

Sam: 38% of Mississippi’s population is black.

Sam: So you would think, with 38% of the population black, and black people tending to vote overwhelmingly for Democrats, that that would actually make Democrats more competitive in the state, instead of being referred to as such a deep red state, but actually what we see happening, when you look at the exit poll data for this past election, that white voters vote for Republicans to the same extent that black voters vote for Democrats.

Sam: So the 58% white population of Mississippi just sort of overwhelms the power of the black vote in Mississippi, and that indeed happens all too often all across the south, where you have a white majority, but a sizeable black population, and you have the white majority essentially voting overwhelmingly and almost unanimously for Republicans, and that being sort of the reason why we see so many Republicans across the south and statewide office.

Sam: In the exit poll, 85% of white voters voted Republican, and 83% of non-white voters voted Democrat. So you see this sort of diametrically-opposed political dynamic happening, where the slightly larger white population sort of tends to win statewide.

Sam: All that being said, there is an opportunity for Democrats to win, and that all comes down to turnout, as you said, Brittany. Because there are about 800,000 voting-eligible black residents in Mississippi, and this past election, the total turnout was about 800,000. So if every black voter voted in Mississippi, the Democrats would win every time.

Sam: So I think the question is, how do we support the organizing happening on the ground there to make sure that we can get as close to that, everybody voting, as possible.

Clint: Yeah, Sam, and just building off of what you said, it’s not only that Mississippi has more black people per capita than any other state in the country, it’s that they also have more black elected officials than any other state in the nation, but that is often on a local level, so that’s school board members, council members, aldermen, mayors of small towns.

Clint: But it has not elected a black candidate to statewide office in more than 140 years since reconstruction.

Clint: So it’s as you said, the population is there, and we know from exit polls over the past … this election, the election two years ago, and really over the past two decades … that black people are among the most progressive voting block in the country, if not the most, and specifically black women, and it’s really a matter of how do we, as you said, support the work of registering folks to vote, and not only registering folks to vote … I think part of what this past election really illuminated, for me, is that it cannot simply be that we get people to the polls, it cannot simply be registering people and encouraging them to go vote, but it also has to be about political education.

Clint: I saw so many stories of people in Georgia or Florida who were first-time voters, and they were like, “Oh, I came, and I came to vote for Stacey Abrams,” and, “I came to vote for Andrew Gillum,” or, “I came to vote for Beto O’Rourke,” but they had no idea of so many of the things … the things where people who were down ballot, and so we had this sort of star power that got people out to the polls, but we didn’t do enough to educate people on the amendments, on the specific bills or specific legislation as it relates to their specific localities, and I think that that is a … it was a really important piece of organizing.

Clint: To be clear, there are many, many organizations and organizers who are doing this

incredibly well, but I think in our public discourse around registering people to vote, what we have to include in that is not only simply getting people to vote, but making sure they understand the ballot initiatives and then amendments and the candidates who might not necessarily be at the top of the ticket, but who in some ways impact their lives in a far more direct way.

DeRay: That’s the news.

DeRay: Hey, you’re listening to Pod Save the People. Don’t go anywhere, there’s more to come.

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DeRay: And now, my conversation with Liz Bruenig.

DeRay: Elizabeth, it is so great to have you here today on Pod Save the People.

Elizabeth: Thanks so much for having me on.

DeRay: Now, I wanna talk to you, because I remember reading the story that you wrote … and I’ll have you tell us about how you got to this story … the original article was, “She Reported Her Rape, Her Home Town Turned Against Her, Can Justice Ever Be Served?” And I remember reading it, and not only the story itself, but the way you told the story, was something that I just … I had always understood the way that bullying worked, and shunning, and things like that, but I’d never seen a story told that was true in that way.

DeRay: What would be your summary of the story, for people who haven’t read it?

Elizabeth: So in 2006, a cheerleader at a high school in north Texas, in Arlington, Texas, reported her rape less than 12 hours after the incident took place. It was reported to an adult, it was reported to classmates, and it was reported to the police.

Elizabeth: She submitted to a sexual assault exam, she gave a full account of her events to police, there were toxicology reports, and there was a full medical workup gathering forensic evidence. There was semen recovered from her body, as well as several other injuries.

Elizabeth: Despite all of that, no one was ever prosecuted for her rape. In fact, the town turned on her. And so the question that my article tries to answer is, “Why?”

DeRay: Now one of the things that the article does that’s so jarring is paint the picture of how people turn on her, from the lingo that people use to make fun of her, to just how pervasive it was. Literally, a community turned on her.

DeRay: And then the followup that was written, where people later were like, “That was wrong, I shouldn’t have done it,” … was there anything that you learned that you didn’t know, or that surprised you in the process of just going through and documenting the shunning?

Elizabeth: There definitely were surprises. I knew … I had known, because I was also a student at the high school that the kids had used these sort of in jokes, these acronyms that they would paint on their cars to make fun of her, and I had known, of course, that there was graffiti spray-painted on the side of the school about her, because I was there the day that that happened. And I knew what people said in the hallways, and I knew the stories that they told.

Elizabeth: What I didn’t know until I went back and started doing interviews was that adults had been a part of this. I thought it was limited to kids. I assumed that adults in the community didn’t even know. I thought, “How often are teenagers completely transparent with their mom and dad about what’s going on at school?” Especially when it involves something like a sexual assault at a party where there was quite a bit of alcohol and some drug use.

Elizabeth: As it turns out, parents did know. Adults did know, and adults were involved in making fun of this girl, and in shunning her, and in moving her out of her school into another school, and making her the problem instead of the kids who were abusing her. And there was quite a bit of adult involvement.

DeRay: Now let me read a sentence from your piece that I want to talk to you about. You write: “Making sense of her ordeal meant tracing a web of failures, lies, abdications, and predations. At the center of which was a node of power that, though anonymous and disperse, was nonetheless tilted firmly against a young, vulnerable girl.”

DeRay: I wanted to know from you, how do you think this story reflects the way a system deals with survivors of sexual abuse? Is there anything that we can learn about the overall system?

Elizabeth: Yeah, absolutely. I think that one thing that really came to the fore when working on Amber’s story was that these cases … sexual assaults … are very difficult to prosecute. Even sexual assaults that are what you would think of as a slam dunk, where there’s instantaneous reporting, there’s forensic evidence that supports the victim’s narrative, there are witnesses who support the victim’s narrative … even in those cases … district attorneys know that these cases can be hard to bring before a jury, because there is just a lot of ambiguity. When it comes down to it, there are only two … or three, in this case … eyewitnesses to the actual event, and because people have a lot of preconceived notions and prejudices about what a real sexual assault should look like.

Elizabeth: You know, a Sunday school teacher walking home from church gets grabbed in an alley by a stranger. That’s kind of the classic notion of what a sexual assault looks like. But the vast majority are not like that, they don’t involved strangers, and they don’t necessarily involve what you would think of as coercive violence.

Elizabeth: And so the court system, the legal system, the criminal justice system, they still kind of haven’t adapted, in a lot of cases, to being prepared to present these sorts of cases that are actually the more common kinds of sexual assaults.

Elizabeth: And I think the other side of that coin is, as a society, we interpret and inability for a district attorney to proceed with a case … in this case, the grand jury didn’t return an indictment … or a jury returning a “not guilty” verdict, or acquitting someone … we associate all of that with very strong evidence that what the victim said wasn’t true. We have a hard time thinking, “Well, the criminal justice system just maybe isn’t perfectly set up to handle cases like these.”

Elizabeth: And I think those kinds of social failures really came out in Amber’s story.

DeRay: In the article, you do cite a report that highlights some of the disparities in numbers, and note some of the challenges in Arlington and Austin, with regard to moving forward in the justice system with these sorts of complaints, or allegations, or charges.

DeRay: How much do you think culture plays in that? What’s the role of culture? And I ask because what your piece did for me was sort of push me to think about, what does it mean when, as you just said, all these adults and young people shun victims who do everything that you’re supposed to do, right … like you’re supposed to report it timely, she did that … and still didn’t see justice. So is culture a big factor, or not, or like … I don’t know, help us think about that.

Elizabeth: In trying to understand why Tarrant County had such a disproportionate rate of non-indictments … so basically what the study found, like you said, was that when these sexual assault cases would be taken before Tarrant County grand juries, which is the first step in a process to bringing them to trial, Tarrant County grand juries no-billed, or failed to return an indictment, on a little bit more than half of these acquaintance rape sexual assault cases.

Elizabeth: A sex crimes detective in north Texas started counting how many of her cases ended up going to trial and how many didn’t, and that’s how she came up with the knowledge that there was something really wrong in Tarrant County, compared with other places in Texas, like Austin … which I believe had a 13% non-indictment rate.

Elizabeth: What the reporting turned up is, firstly, that some district attorneys who had been in charge didn’t actually seem all that invested or convinced that these kinds of sexual assaults really deserved a lot of attention.

Elizabeth: One of the former district attorneys I interviewed in this story referred to acquaintance rape as “consensual rape,” for instance, which maybe suggests there was a little bit of a problem inside the district attorney’s office, in terms of how they dealt with these cases and how they presented them.

Elizabeth: We also found that in many cases, when assistant district attorneys would present these cases to grand juries, they wouldn’t call any witnesses to testify to the grand jury. So in Amber’s case, she wasn’t called to testify, the lead detective on her case wasn’t called to testify, and the sexual assault nurse examiner, who examined Amber and spoke to me on the record for the story, wasn’t called to testify. So we know that that hearing was pretty inadequate, and pretty incomplete.

Elizabeth: And then the other part of the equation is the grand juries themselves. At this time in Texas, grand juries were not randomly selected. They were appointed by grand jury commissioners who are in turn appointed by judges. So in many cases, these would be fairly homogenous groups of older white men who were maybe retired or had the time to devote to grand jury duty, and had their own opinions and views about what constituted a real sexual assault, and also what kind of victims deserve justice.

DeRay: That’s sort of wild that all those people weren’t called before the grand jury. It’s like … like of course the outcome sort of … It’s almost like a mockery of what we think justice is.

Elizabeth: Right. The nurse who did Amber’s sexual assault exam spoke to me and told me that she was infuriated that she was never called, because it was her view that Amber was certainly raped.

DeRay: Since the article came out, has anything changed in that county? Did these revelations shed light for other people, that you think is gonna have an impact?

Elizabeth: I think it’s hard to tell yet if the article itself is gonna have any impact. The district attorney who is in Tarrant County now is a woman named Sharen Wilson. She hasn’t commented on Amber’s case, or what the county plans to do, if anything, with Amber’s case or for Amber. But she has said that since 2013 and 2014, there has been a big change, in terms of their indictment rate for sexual assault. She says that, I think, 83% of cases, or 85 … something like that … are actually indicted now.

Elizabeth: So there are some signals that things have changed and are moving in the right direction. It’s hard to know to what degree, and whether the article itself will be a part of that story.

DeRay: You wrote, “She Reported Her Rape. Her Home Town Turned Against Her. Can Justice Ever Be Served?” Do you think justice can ever be served?

Elizabeth: That’s a good question.

Elizabeth: I think it’s hard. I know that statutes of limitation are up for certain legal actions. In Texas, there is no statute of limitation on the rape of a child, and Amber was 16 at the time, so that is how this is coded and classified.

Elizabeth: On the other hand, quite a bit of the evidence … if not all of it, the physical evidence … has apparently been destroyed, according to detectives’ records that we received.

Elizabeth: So it would be very difficult, I think, to sort of do anything with the case at this point, and—

DeRay: Why has it been destroyed?

Elizabeth: Yeah, it was destroyed in 2009, according to correspondence between an evidence tech and the detective on the case, and apparently this is just procedure for cases that are not indicted. So they have this physical evidence laying around, and I guess they, at some point, just destroyed it because that’s what they do with physical evidence-related cases that aren’t sent to trial.

DeRay: Wow.

DeRay: Do we know how much other stuff is destroyed? That seems like a whole new story.

Elizabeth: Right. There’s not a ton of clarity. The correspondence between the detective and the evidence tech just reflected that the physical evidence was destroyed.

Elizabeth: Further reporting … I believe when Megyn Kelly brought Amber on the Today Show to talk with her, her crew contacted the Arlington Police Department and they seemed to suggest that some of that physical evidence had actually survived, but they didn’t release that to me, and it doesn’t sound like they elaborated on what might still exist.

Elizabeth: We know there are still records, because we received the full police records, so there are records of all the physical evidence, but it seems like maybe the swabs themselves, and that stuff, is gone.

Elizabeth: But again, it’s not totally clear. That’s just based on correspondence between the detective and the evidence tech who he authorized to destroy the remaining physical evidence two years after the case was not indicted.

Elizabeth: Additionally, talking about evidence, Amber spent the night at a friend’s house the night of the incident, so she comes back from the shed, where she says she’s raped, wearing a skort … you know, sort of an athletic skirt/shorts combo, ’cause she was cheerleading … and she immediately reported what had happened to the homeowner, her friend’s mom.

Elizabeth: It was this 50-year-old woman, and the mom, instead of calling the police or calling Amber’s parents, just tells Amber to go to bed, and before she does that, she gives her a change of clothes. She gives her a pair of her daughter’s sleep shorts and a T-shirt. And Amber’s skort was never recovered from that house. We don’t know what happened to it. It’s gone.

DeRay: Wait, wait, wait, wait, wait.

Elizabeth: Yeah. Right.

DeRay: What do you mean you never … I don’t under … like, what do you mean you ne—

Elizabeth: So when the police arrived at the house the next day, just a few hours later, and they found a T-shirt matching the description of Amber’s T-shirt in the washing machine. But they never recovered the skort, which is where any epithelial DNA or semen would’ve been. They never recovered it. It was gone.

Elizabeth: The homeowner took it from Amber, and then it was never seen again. Amber went home wearing the clothes that the homeowner had given her, and she surrendered those to police at the hospital, and it’s just not known what happened to her skort.

DeRay: Did you talk to the homeowner?

Elizabeth: Yeah, I sure did. As you can imagine, she wasn’t interested in talking to us. She declined to comment for the article. And she was very supportive of the boys. We do have a taped interview that she did with the police where she said that Amber was obnoxious, that Amber used drugs and was drunk, and she said that the boys were very good boys who she trusted.

DeRay: That’s wild.

DeRay: You know, another thing that you wrote was, “What motivates otherwise ordinary people to abandon all pretense of mercy when faced with the abject need for it?”

DeRay: What do you think … especially ’cause you were there … what do you think created the conditions that allowed people to treat her so unfairly?

Elizabeth: I think Amber was a vulnerable person in a lot of ways. She was known to struggle with drug use, she was known to not be as well-off as some of the girls in cheerleading, and I think that you would expect, when people encounter a vulnerable person, they sort of want to help and protect that person.

Elizabeth: But I think that there’s also this other urge that is to destroy them. To push them away, and to abandon them. Because vulnerable people, when you look at them and you treat them as human beings, you have to reckon with the fact that you, too, could be vulnerable. You, too, could need help. It could happen to you.

Elizabeth: And I think a lot of people are deeply, extremely, viscerally averse to recognizing that. They don’t wanna deal with it, they don’t wanna deal with vulnerable people who need help. The don’t want the mess, they don’t want the trouble, and they would rather think of themselves as better than that, and above it, and different, and someone to whom nothing like that could ever happen.

Elizabeth: So they rally around the people who they see as strong and upstanding, and they think they’ll get away with it. And in a lot of cases, they do.

DeRay: Have you gotten a sense of where the levers of change are? Is it that we need better laws? Is it that we need better prosecutors? Is it that we need better investigators, better policies, or simply better communities … I don’t know, what’s the what. Do you have a sense of what the what is?

Elizabeth: Yeah. I mean, I think that there have been reforms to the Texas grand jury system since this, which I think are positive.

Elizabeth: Grand jurors are now randomly selected from the population instead of appointed, so there’s a better chance of having women on the grand jury, people who have had these kinds of experiences or know people who have, people from different class and racial backgrounds, who might have different perspectives on all kinds of elements of the case. I think that that is an improvement.

Elizabeth: I think prosecutors need to be trained on how to deal with these kinds of cases. The former district attorney that I spoke to said that after detectives raised concerns about not being called to the grand jury hearings to testify, this former DA said, “After they raised a stink about that, we invited them … every single time there was a case like this, we called the detectives to testify, and they never came. They didn’t show up.”

Elizabeth: So I asked the Arlington Police Department, “Is that true?” And they said, “No. It was a lie.”

Elizabeth: So obviously there’s some kind of breakdown between the prosecutors’ office and the detectives, and so I think that in any situation where you’re handling sexual assault cases like this, that are notoriously difficult to prosecute, there needs to be very close coordination and solidarity with the detectives and the prosecutors, and I don’t think you always have that. I think they can, in fact, view each other as sort of rivals, or people that cross purposes. And so that’s a problem.

Elizabeth: And then I think that, on the end, yeah, we need better communities. We need people who think differently about vulnerable people, and we need people who think differently about how to respond to vulnerability and to people who need help, and that’s not just in cases of sexual assault, that’s across the board. This is a major deficit in our society.

DeRay: So for those who haven’t read the pieces yet, the initial piece is what we’ve been focused on so much, but there is an epilogue. Why?

Elizabeth: One thing that I wanted to do was not portray Amber as just a victim. I wanted to give her a whole story, and portray her as the full and complete, vibrant person that she is.

Elizabeth: And so I wanted to give readers a glimpse into what happens after a story like this comes out.

Elizabeth: It was very, very widely read, and I knew that readers would be curious about how Amber was doing, and I wanted to let her life go on, in a sense. One of the things that happens when you do a big investigation like this … and this is when police do it and when journalists do it … is you can kind of freeze a person in time.

Elizabeth: So there was definitely a period there while Amber and I were working on this story where she was thinking about this, talking about it, considering it, reflecting on it, remembering it every day. And it was 12 years ago. And I didn’t want that to be the end of her story. I didn’t want to freeze her in time, and I wanted to do everything I could, as a journalist, to kind of free her to move on with her life and go forward, and so I added that to the story.

Elizabeth: And she has moved on. She has moved forward. People responded to the piece overwhelmingly positively. Quite a few kids from our former high school contacted Amber to apologize for their behavior at the time, including a captain of the football team, and people who she had known. Lots of victims of similar assaults reached out to her to talk to her, and a lot of people thanked her for coming forward with her story, and since then, she’s moving on.

Elizabeth: She’s an advocate for sexual assault victims now. That’s what she’s focused on, and so she’s not frozen in this one time. And I thought that was important to get across.

DeRay: Yeah, that makes sense.

DeRay: And what’s next for you?

Elizabeth: I don’t know! I really enjoy doing this kind of investigation. I’m open to doing more investigations. I’m always taking tips.

Elizabeth: My email is just Elizabeth.Bruenig … my name … at washpost.com. Elizabeth.Bruenig@washpost.com. Always happy to hear from folks, even just to talk and say hi, and I’ve been working on the sexual abuse scandal in the Catholic church as well, and doing some reporting on that, and I hope I can contribute there as well.

DeRay: Well I appreciate you making time to talk about this. I look forward to following your stories. This one is one that I’ll never forget. It’s also one of the few stories that I’ve ever seen the wrap-around. I remember seeing the epilogue and being like, “Wow, I’ve never … This is …”

DeRay: I think you’re right about people get stuck in time, like, that was how I knew her. That was how I knew Amber. And then it was like, “Oh, I actually get to see her process other people’s responses to this,” and that’s actually really interesting.

DeRay: Thank you so much for joining us, and I consider you a friend of the Pod and hope to talk to you soon.

Elizabeth: Yeah, definitely. Thanks so much for having me on. I really appreciate it.

DeRay: Well, that’s it. Thanks so much for tuning into Pod Save the People this week. Tell your friends to check it out. Make sure, too, rate it, wherever you get your podcasts, whether it’s Apple Podcast or somewhere else, and we’ll see you next week.