In This Episode
DeRay interviews healthcare economist David Smith, host of the podcast The Cost of Care from Lemonada Media. Then he sits down with Alec Karakatsanis, the founder and director of the Civil Rights Corp.
DERAY: Hey, this is DERAY, and welcome to Pod Save to the People. This week, me, Sam, Kaya and De’Ara are all in different places. We’re celebrating with friends and family, finally able to see people. We’ll be back next week all together to cover the news of the week, and continue to help you see the things that you didn’t see in the last week. All these things about equity, race, and justice that we should be talking about.
For today’s episode, We had two great interviews that we’ve been waiting to share with you. The first is with Alec, the founder and the director of the Civil Rights Corps. And then, I sit down with health care economist, David Smith, host of the new podcast, The Cost of Care, from Luminato Media. Here we go.
My advice is if you chase anything, chase the question. Every morning, I wake up chasing how do we get to zero? How do you make sure every kid can learn? And how do we make sure that people have resources? I’m chasing those questions. I’m not chasing and people. I’m not chasing awards or recognition. I’m chasing those questions. What is the question you’re chasing? That’s my advice for this week. What’s your question? What’s the question you’re chasing?
David Smith hosts The Cost of Care podcast and asked, what is your life worth? David breaks down the flaws of the American Health Care System and fights for Americans, whose deaths were entirely preventable. Here we go. David, thanks so much for joining us today on Power to the People.
DAVID SMITH: Thank you very much, sir. Good to be here.
DERAY: I feel like the theme of the past year has been health in so many ways. That all of us know way more about health care or the lack of access to health care than any of us would have because of the pandemic. Can you talk about how you got into this work. What is that Horizon strategies? And then, we’ll talk about the podcast.
DAVID SMITH: I got into the work completely by accident. See, about 12 years ago, I was finishing up some graduate work in economics, and kind of had my heart set on being a godless investment banker. And ended up crossing paths with this guy named Mike Levitt, who had just left his post as the secretary of Health and Human Services for the federal government. And got an invitation my alma mater to speak alongside him.
So the setup was he was giving a talk, and then, they wanted to convene a panel. And I didn’t know anything about health care. Didn’t give a shit about health care. So I said no, initially. And then, against the counsel of my wife, when they asked again if I would do it, I conceded.
I crashed the library on a Saturday, and put together the world’s worst treatise on American health reform you could even ever imagine. But I got up on stage and I gave it. And I don’t know what exactly caught hi interest or attention. But he invited me to come into this little firm he was organizing. And I– we’ve used longer-term political aspirations. So I thought, all right. I’ll go hang with Mike Levitt and people he surrounded himself with for a year, and then I’ll go do what I really care about.
But I just found myself loving the industry. And the communist, we love these intersections between finance and sociology, and the dysfunction that can exist in those intersections. And like, nowhere on the planet will you find that worse than American health care.
So I spent a decade there. Three years ago, we had relocated to Chicago, and my interests were starting to go in a much different direction than the firm I was with. And so, again without consulting with my wife on the Saturday morning, I quit my job to go do other stuff, and just hung out a shingle. And I’m not an entrepreneur by trade like at all. I’m the most risk averse person you’ll ever meet in your life.
But I started this little business called third horizons strategies. It’s three years old. We’ve got 15 people. And our vision is maximizing human potential. And we do work in the industry, that focuses on all those people that have been left behind by a $4 trillion system that cares more about its own largesse than about people.
DERAY: What is the Medicaid Transformation Project? What is it, and why do you care about Medicaid?
DAVID SMITH: Medicaid in my opinion is the single most important program– federal plus state program we have in this country. And the reason I say that is not so much because it’s providing health care services for the underserved or vulnerable or poor.
But because I have this philosophy around health. And health being the most fundamental building block we have as a society– and if you define health across a person’s physical self, their mental self, their social settings and the environment.
Any one of those things that becomes marginalized or a whole host of those things become marginalized takes away from a person’s capacity to do stuff. To work, to go to school, to try to raise kids, to engage with neighbors and community like whatever the case may be.
And so we have major parts of this country that have not had access to those services. And Medicaid creates access to those services. Now since the Affordable Care Act just because we’ve created that access, doesn’t mean the services are good. Those services by and large do not focus on the whole person. They’re just kind of there. If you sprain your ankle or you’ve got a chronic disease.
But we don’t think about the whole person we don’t think about mental health. We don’t think about social contacts we don’t think about history and things like structural racism and racism and things of that nature. And so the medicaid transformation project was an effort to try to extend really scarce infrastructure that we have to support vulnerable communities, and extend that through technology, better evidence-based care models and so on.
So we have 30 health systems participating in this. And had about 150 plus initiatives that came out of the work across the country, which we were really excited about.
DERAY: Can you explain what Medicaid is for people. Like what is Medicaid? What is Medicare? Just so we can make sure everybody knows.
DAVID SMITH: So the two biggest federal programs that we use to cover people with a private sector might not normally cover them on its own are first, the elderly, or others that meets some unique qualifications. And that’s because the Medicare program, you generally become eligible when you turn 65, which is kind of our de facto retirement age in this country and you have access to medical services hospital services a physicians through that program.
Medicaid was passed along back in 1965, under the same bill. But it was much more of an afterthought. Like all right, we’re going to cover the elderly, but there’s still this kind of cohort of citizenry. You know, women, children, and the poor and disenfranchised that aren’t going to have any access. And so the Medicaid program was run into resistance but the big caveat is that the federal government said, all right but in order to run this we’re going to partner with states
And so a state have to elect to provide the Medicaid program. And so from 1965 until the early 80s states one by one kind of came online and providing Arizona was the last state to do it. The reason Medicaid’s so important today as a part of Obamacare– the Affordable Care Act, was an expansion of Medicaid. So the idea was that all 50 states now had to basically cover anybody that was at 133% of the federal poverty line.
The Supreme Court in one of its Obamacare related decisions comes up saying, hey federal government you can’t require states to do that so states make the election. And now same thing as we saw after 1965, states, one by one are kind of coming online and providing access to that program.
We’ve got most states now with the broader eligibility guidelines. There’s still some red states that are pretty entrenched in not expanding. So their programs are a bit of a mess. But if you’ve got like 50 different states right, there’s 50 different permutations of this program. Like no two versions of the Medicaid program are the same. And it makes it really, really hard to reform that system from state to state.
DERAY: Got it. Now, take us to the podcast. Why podcast? Why now?
DAVID SMITH: Oh God. Well, I mean everyone’s doing it. Right? Like I feel like my nine-year-old daughter is going to walk in my office one day and say, hey Dad the serving podcast is the medium that I think is becoming incredibly important. And it’s not something I think we would have done on our own without a partner like, Women Not a Media, who just as you know have incredible folks, and who can really drive incredible reach.
The thing that made it feel important both in the subject and the timing is we’re kind of getting to a breaking point in this country on health care. We spend $4 trillion bucks a year on health services. That’s 2 times more per person, than every other quote unquote rich country that hangs out in the OECD.
And yet we have a five year lower life expectancy, and so we’re spending double the resource. We’re getting lower yield. That’s not all the health system fault. The punch line is like we’re spending $2 trillion on something that could be spent on something else or on other things.
And we’re getting to this place where if we don’t figure out how to solve it, It’s going to grow to a degree that it becomes much more dramatic and difficult to reform and the number of people, the lives, the years that are being left behind by the system’s disproportionate allocation of capital is staggering and there’s a way better way. Like, we a much better way to spend these resources. We just have to find the will to do it.
And so the podcast is really designed to try to break down a really complex system in a way that people can understand it. And then, equip them with information that they need both to engage the system, which is rigged in so many ways against us. And vote a little smarter when it comes to picking our elected officials, and not paying attention to the weaponized talking points of the ideologies.
DERAY: I was intrigued by the episode on maternal mortality. Can you talk about why that episode? And then, it feels like the cost of care is literally just, it feels like it has always increased. And do you think that we can actually put the genie back in the bottle?
I feel like what you hear from the hospitals and the companies or what I believe I hear from them– you’re the expert is that they’re like health care is just costly right we’re trying to subsidize that blah blah, but it’s getting more, and more expensive every year. You’re here saying it doesn’t necessarily have to be that costly. Like what is the what?
DAVID SMITH: The episode on maternal mortality, we’ve tried to find two cases that really hit the spot or was emblematic of all of the biopsychosocial defects of the system. And the maternal mortality is one of them. If you listen to the episode, you’ll note that we talked a lot about the whole perinatal experience the time from when you can realize you’re pregnant or you become pregnant until the baby’s first birthday.
And there’s a lot that happens in that period that hits at a person’s mental health and postpartum or if there have been complications with the birth. It hits on all the clinically urgent stuff that happens, leading up to the delivery and so on. But we wanted to take an angle that looked at the disproportionality of that for women of color, for Black women because there is this staggering mortality gap between Black women and women of any other ethnicity, White, white max, whatever the case may be.
And Black women will die giving childbirth five times more than a white woman. And you look at that and you say, well, we’ve been delivering babies like for centuries. There’s nothing one group of doctors knows different from another group of LB GYNs from a different part of town. How on Earth can we have that kind of dissonance? That kind of gap?
And we start to dig into it, you start to realize that there– I mean you can see these structural vestiges of racism that are replete in communities in the way we practice medicine. And it’s criminal. And so, it was a chance for us to look at the mental health, physical health, but certainly the social context that drive higher rates of maternal mortality.
The second question, what’s the what? I’ve been doing this work for a little over 12 or 13 years. And I have been in boardrooms, executive management meetings, conferences, and you’re right. Like everybody in the system has a defense.
And the truth is, most of the people in the system as they look at the different parts of the system, they’re in charge of whether they’re an insurance company or hospital or doctor or whatever the case may be. Like they have really legitimate grievances for why it’s not their fault, why it’s everybody else’s fault. And why they have to do the things they do in order to remain profitable and viable.
But when you zoom out and you look at the system as a whole, you kind of realize there’s two really big problems going on. The first is we don’t use more health care than other countries. But we do charge a hell of a lot more for it in those other countries. We pay our doctors more. We should pay our specialists more– much, much more than we pay primary care doctors or nurses.
We have the most expensive equipment. We have the most expensive technology. But it’s unevenly distributed, which means we concentrate a lot of capital in communities that might not need all of that. And we certainly don’t make those investments in underserved communities.
So we’ve created this enormous health gap or death gap that you can see in life expectancy data. Like here in Chicago– so where I’m sitting, the life expectancy is about 80 years. And if I go five miles to the East towards the city, I’ll have some neighborhoods where the life expectancy is 67 years. Like that’s in an American city. That’s crazy that we all have just 15 year life expectancy in five miles.
And it’s emblematic of this capital allocation problem that we have, which gets to the second big issue. And that’s that every time we’ve tried to extend or expand coverage to other people, we’ve created new programs. And that’s good. Expanding coverage and access is wonderful.
Every time we add a new program to the system, we create these new permutations of a system that doesn’t work well, with fundamental market economics. The competition doesn’t work. There’s no information sharing. Incentives aren’t aligned between doctors and insurance companies.
And so, you start to cascade these programs out. And you start to end up with hundreds of thousands of permutations of things that just don’t work well. And so millions of contracts running around– different rates for different populations, depending on the community, which drives this disproportionate or asymmetric allocation of capital.
And so you get some neighborhoods with little to nothing. Some neighborhoods that have way more than they need. And we spend $4 trillion– welcome to American health care.
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DERAY Is there a part of the system where we are managing cost without compromising the integrity or quality of services delivered?
DAVID There are pockets of that. There’s tons of evidence around pilot initiatives, demonstration projects where we’ve hyper focused on something with kidney disease or managing diabetes. And we’ve wrapped services around the physical, the mental, the social to really drive holistic health for those individuals.
And when we’ve done that, we’ve actually done a pretty good job at it. We’ve lowered costs. We’ve improved outcomes. We’ve improved life, which should be the fundamental metric. And I’m optimistic we’re going to see more of that.
The biggest misalignment, in my opinion, we have throughout the whole system is around this concept called fee for service, which basically means most insurance companies or Medicare as administered by the Federal government will pay a set fee for services.
And it creates the wrong incentives because essentially what we’re doing is we’re incentivizing, doing things. We’re incentivizing services. We’re incentivizing the kinds of services that happen when people are sick. So you have one part of the system that does really, really well.
When we’re all developing chronic disease, we need to be on dialysis or we need insulin or whatever the case may be. And another part of the system, whether it’s the government or insurance companies that does really, really well when they pay less.
If you’ve got that kind of misalignment where one part does well when we’re sick, one part does well, well, well, well. There’s this constant tug of war going on between those two entities. And so the fundamental thing we have to do is change our incentives.
You started the conversation talking about pandemic, COVID-19. And one of the things, I think, that’s coming out of this is we’re learning that public health, this idea of paying to keep people well, of incentivizing activities that promote health across that physical, mental, and social self is indispensable.
And so I’m cautiously optimistic we’re going to continue to move in the direction where those incentives are aligned. The government’s got to play a big role in that. And I think the Biden administration will. But the market’s going to have to play a big role.
And it’s going to move a lot of T’s. And rule number one of human beings, don’t lose their T’s. And so there’s a lot of intransigence in my industry and it’s going to take some really courageous leaders to stand up and do what’s best for communities and patients over what might be best for shareholders, stakeholders and just the earnings on the TNL.
DERAY Can you tell me what up-coding is? You talk about this, like what is up-coding?
DAVID So think you go in and you have an interaction, let’s say you’ve had a pain in your stomach for a few weeks and it’s starting to worry you. All right, I’m going to go into my primary care doc and we’ve got things going on.
And so you go, you check in. The nurse takes you to the back. They start to take down all your vitals, your information. The doctor comes in. The doctor has like a 10, 15 minute interaction with you.
And they’re cataloging everything you’re seeing in the interaction, then they’re going to do some scans, a couple of times the doctor might come back in and review that stuff with you. Every single second of that interaction is recorded into a medical record.
So what’s going to happen is you’re going to leave and deal with whatever information you got. And then somebody is going to be sitting in the back room. And they’re going to say, all right, they’re covered by this insurance company and this insurance company pays for this amount of money for the state.
So all right, we did this. We did that. We did this. Oh, maybe we kind of did that. Yeah, OK, I’ll say we did that. And they’re submitting claims for those services to the insurance company. The insurance companies looking those claims and they’re saying, OK, do I really believe all those things happened? Do I really believe all those things are necessary?
Sometimes the insurance company will just like pay without even asking a question or scrutinizing the claims. In other cases, the insurance company also back to the provider and say, wait just a second, Mike. We don’t think you did these two things. We don’t think these two things are necessary to do.
So you went to the doc. You left. Maybe you paid $0.25 for a copay, but you’ve got all the back and forth happening on your behalf that you’re totally unaware of. And at some point once he’s three months down the line, you’re going to get a bail for it.
And in some cases, maybe the insurance companies covered it all. And in other cases, the provider might come back and say, hey, we did this stuff for you. You should be really grateful. But the insurance company is not paying for it. So you’re on the hook. Good luck.
And the latter happens way more to people than the former. And it creates just tremendous amounts of stress, financial hardship. It can lead to bankruptcy for a lot of Americans.
DERAY That’s so nuts. How would you know? Is this like a you just you need to pay really close attention to the statement when it comes on? How would you even know if you got up-coded? Because most people, the doctor says they did it. You’re not even double checking that. You just sort of like, OK.
DAVID Yeah, I hardly ever look at these statements historically. I’m starting to a lot more now. Look, I’d say there’s two moments in the medical exam. Let’s call a medical event any interaction with the health system. Seeing a doc, nurse whatever.
I think there’s two really important things a person can do to try to protect themselves. The first is being very proactive patient. This should not be the responsibility of patients. Let’s just be super clear about that. But if the game is rigged and we’re playing rigged game until we get it fixed, here’s the rule for the right game.
You’re kind of in constant contact with your insurance company. You’re making sure that the place you’re going is and that work. You telling your insurance company what you’re going in for. They may be telling you to take another step in advance whatever the case may be. But you’re in communication with your insurance company.
So you’re kind of lockstep with them about what’s going on, where you’re going, who’s in and out-of-network, different procedures, so on and so forth. You should ask them the kinds of things you should and shouldn’t be engaging in. Might even be worth calling them while you’re sitting there with your doctor, with your doctor waiting for a minute.
So you’ve got everybody kind of on the same page about this. This is your care. You’re the consumer. You bought the insurance company. You’re going to be the one responsible for that provider getting payment, like may require a bit of a Rosetta Stone to navigate the system, but they’ll be really clear and connected with the insurance company.
When different doctors walk in the room, if you’re seeing an anesthesiologist or an endocrinologist or an emergency department doc, how are they in your network? And if they don’t know, tell them to go out the front desk. You should constantly be pushing on that prospect to look get the system. That’s the end.
I know that sucks. I know people hate hearing that, but that’s the best way to protect yourself in the system that is rigged against you. The second thing is what you just said, which is when every time you have a medical event, you’ll get an explanation of benefits from your insurance company.
And if you call the insurance company in advance, you should be pretty good at kind of reading that document in the context of what happened in the visit. And you want to be really sure that they’re not submitting for things that either weren’t done, you asked them to not do.
Or if endocrinologist walked in, but they were there for two minutes. And there was a 30-minute log for fees for $1,700. Call the insurance company. Push back on that stuff. You’re the witness to what happened in the setting and you do have a lot of power in being able to push back based on that account.
Either of those two things fail and you find yourself in a really compromised position. There’s patient advocates, there’s journalists. We’ve been trying to Shawn a lot of this stuff through the show. So start reaching out to people that can make noise because typically when you start to make a little noise, provider’s back down, insurance companies back down. And you have an easier path to getting things resolved.
DERAY I’m always interested in people who start podcasts because I remember starting mine. How has it been sort of telling these narratives and interviewing people? What’s that’s been like for you? It’s such a different way to be in the world.
DAVID It’s been incredible. I am. I don’t know how much of this show you’ve had a chance to listen to, but I am. I started this with show with my own personal narrative which was the first time I’d really been public about a lot of these things.
And I come from a family that had its own intergenerational trauma. My dad had a chronic disease called chronic fatigue syndrome. He got hooked on opioids and over the course of a few years. My dad, brother and sister all basically died from opiate overdoses.
And so that has been seminal in shaping my life as a human being, as a parent, a husband. And it’s informed so much of my thinking about the work we do in under-served communities through my business and other initiatives. And so just the opportunity to use that definition of health.
And how health really can be transferred into generationally along all these axes has been one of the most cathartic and rewarding experiences of my life in a way to channel my dad’s no really difficult life in a way that I hope honors him.
The interviews, there’s certainly a lot I know about the industry, but there’s way more I don’t know about the industry. And so I’ve had these amazing opportunities to learn from people about the way they see the system, the way they see health the way they see people that have expanded my thinking.
And there’s been this amazing opportunity to emotionally connect with the real world experience, so many people across the country. Even if anything, after the weeks we’ve been doing this, even more stuff about why things are the way they are because they don’t have to be this way. We know better.
We have what we need to do and be better. And so the fact that we’re not better means we’re getting in our own way. And it just requires a lot of good people with the right motivation. But I think to drive that kind of change and transform. But it’s been a really rewarding experience. And one I’ve been really grateful to have.
DERAY What comes next? At it’s best, what do you want the podcast to do?
DAVID I think I’d love for us to continue to find ways to tell these stories to dig into the complexity of the system. And I think the part you have a rigged game, we have a rigged system, how do you interact with that system in a way where you can protect yourself, your family, your assets and not be screwed over by the medical industrial complex? I think that’s objective number one.
The second is, as we continue to operate in this environment of misinformation that’s everywhere. And again the ideological weaponization of all things health care, how do you cut through the noise and have an independent information fact based view on the system and one that you can reconcile with your own values and beliefs so you can be a more effective voter?
And not just a voter by yourself, but be able to share that information with others and your family and your community so we can collectively represent ourselves better electorally. I think the third big objective I have is like we have to define health differently in this country.
Health should not be the thing that happens like after an event. It’s not a sprained ankle. It’s not a chronic disease. When we’re born, we enter this world with this infinite level of capacity. And we’re bound by our genes and then we’re bound by our environment.
And as we go through life, those first 10 to 20 years, we get shaped in really profound ways. And it starts to either enhance or diminish the delude what we can do with our capacity. And then any time in life where we had a physical, mental, or social impairment, it removes a piece of that capacity.
And health is the fruition. It’s the maximization of that capacity, which means we have to redesign our social systems, our care systems, our mental health systems to be more holistic and comprehensive to optimize our collective ability to hit our God given human capacity.
And I think that point is so important for us as Americans because we have huge communities across this country that start at an enormous disadvantage without quote unquote help. As I just defined it, has been marginalized.
And the inability to focus on that keeps us from economic development, social interconnectedness, and all the other incredible things that can happen if the efforts were true.
DERAY There we go. Cool. Well, we consider for the pod, can’t wait to have you back.
DAVID Thank you very much, sir. Appreciate it.
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DERAY And now my conversation with Alec Karakatsanis the founding director of the Civil Rights core. Learn a ton about him. He does such incredible work mainly through the court system to fight for justice. Here we go.
Alec, it is so good to have you on the podcast.
ALEC Hey, DeRay Great to see you.
DERAY So we met in what feels like the way back in Ferguson in 2014. I must have met you with Tom Harvey, is that how I met you?
ALEC Yeah, we first met. I think we were actually even sharing a house at one point after Michael Brown was killed in Ferguson and we were both there doing work every night and coming home late and trying to really get a sense of how we could build something in the community there.
And that’s when I started working on my cases against the Ferguson Police Department.
DEARY I feel like that was such a wild moment that they like too many memories to fled all the time. I’m like, whoa, that was nuts. Had you started the Civil rights core by then?
ALEC I had started a different organization sort of later morphed into civil rights core. And so I had just quit my job as a public defender actually. And got a grant to go around the country suing the police and judges and courts and prosecutors for jailing people illegally just because they couldn’t make payments.
So I came to Ferguson after you had gotten there. A couple of months after Michael Brown was murdered, some people were in the streets every single night because Ferguson’s police had 3.6 arrest warrants for every household most of which were against black people and for unpaid debt.
And so I came there to try to figure out how we could stop them from arresting and caging human beings just because they couldn’t make payments.
DERAY How did you get to the fines and fees issues? Was it because you had defended people for whom this was an issue or did you read like an article and it changed your life? How did you even start to understand that issue?
ALEC When I first graduated from law school, I became a public defender. And I was representing people first in Alabama and then in Washington D.C. who were very poor and couldn’t afford a lawyer. There’s a lot of attention rightly so on all of the human beings who are put into cages in this country.
But there’s not a lot of attention, at least at the time, on some of the other things that the criminal punishment bureaucracy was doing to people. And one of the things it’s doing all over the country, police and prosecutors and courts are charging people money and making an extraordinary amount of money, billions of a year off the very poorest people in our society.
And keeping them in a cycle of death, jailing, poverty. And there’s all these private companies that have gotten in on the action and are collecting these debts. And so it was really a problem that I saw not a lot of focus on when I was a public defender.
And so one of the areas that I wanted to work on when I started my own organization was all of the ways in which the police, and the prosecutors, and the courts were actually trapping people in cycles of poverty and even jailing hundreds of thousands of people across the country just because they were too poor to pay their debts.
DERAY How was law school for you? So I know you went to Yale and then you went to Harvard Law, was law school which you thought to be? I get, people ask me all the time. They’re like are you going to go to law school? I’m like, I don’t think I’m going to law school. But how was that experience for you?
ALEC It was a weird, weird place. If you’re like me and a lot of other people, you go to law school because you have some conception of justice and fairness and you want to work on the problems that are urgently affecting people’s lives all over the country.
And yet in law school, it’s really a system that’s designed to justify the status quo. If you look at the American legal system for the last couple of 100 years, it’s always been a place where the powerful have justified and rationalize the horrible things that they’re doing, whether it’s justifying the theft of land and the genocide of indigenous people who are justifying the ownership over the black body or justifying denying women the right to vote or denying people the right to marry If they’re in love with someone of the same sex.
All of these things were actually concocted and justified by our legal system in our courts. In law school, you learn about all that stuff as if it’s perfectly natural. For me, like take the issue that I work on perhaps the most now which is the deal system in the US.
When you talk to people who haven’t gone to law school like my grandmother and you talk about how there’s 450,000 human beings in a cage every single night away from their children and 3,163 local jails just because they can’t pay money bail, just because they’re poor, people like my grandmother say that’s incredibly unfair. Doesn’t make any sense. Why would we be jailing people and separating families just because they’re poor?
But in law school that becomes a problem for lawyers to come up with technical legal justifications and rationalization. And so it’s three years in law school of learning how it’s actually OK to keep people in jail just because they’re poor. And it’s an entire system that’s constructed by lawyers, by elite professionals to justify some of the most grotesque injustices in our society.
So for me, it was wonderful to meet a lot of other great people. And it was really fascinating to learn about how our legal system operates and reproduces injustice. But is a very uncomfortable and weird place as well because you feel like you can’t really assert things that all human beings know to be true because there’s this technical system of rationalization that prevents you from acknowledging even the most basic truth.
DERAY There have been more sort of organizations fighting around the issue about reform in the past two or three years. And I remember ever happening. Before I talk about some of the things that people have said against this moment, can you make the case for why bail reform makes sense?
ALEC When I started working on the money bail system, was actually, shortly after I met you. I represented a woman named Christie Don Button who became the first person in modern American history since the rise of mass incarceration to challenge the American money bail system on equal protection and due process grounds.
And I met Christie in a local jail cell in rural Alabama on January 15, 2015. And together we filed the first big challenge. And since then, so much has happened as you noted. And I think the basic injustice of money bail can be seen in Christie’s case. So Christie was arrested for shoplifting at a Walmart.
If she had a few dollars to pay a for profit commercial bail bond company, she could have been released from jail. And she would have been with her two young children. But because Christie was very poor, while she awaited trial and while she could fight the shoplifting charges, she was kept in a jail cell.
And she was so distraught that she was screaming and crying and asking where her children was. And because Christie was poor, she couldn’t even speak to her family because the phone system in the jails all across the country has been privatized for profit.
So some of the largest multibillion dollar telecom companies have agreements with local jail that they get a kickback and a cut of the local jail and local Sheriff of every dollar that’s spent on phone calls. They charge exorbitant rates for you to talk to your family.
And they actually get rid of in-person visits. So you can no longer even see or touch your home, your loved one, all to encourage people to spend money. But if you’re a person like Christie who couldn’t even pay a couple dollars to get out of jail, she didn’t have any money to even find her family.
So she didn’t know where her kids were. And she was distraught. And she was crying so much and they got so upset with her crying. But they brought her to a little hallway where they keep a chair, and they don’t have any cameras in this hallway, and they strapped her down to this chair and they started tasing her body over and over and over again.
And when I met her, I took photographs of all these taser wounds across her body. And mind you, this is not an isolated case. This is what I’ve seen in virtually every single jail that I go to across the country where people are being detained because they can’t pay money bail.
There are people who are naked and chained to door handles and chained to benches. And sleeping on top of each other in mucus and mold and feces and blood and urine. Everywhere people don’t get sunlight and fresh air. They don’t get toothbrushes in many places around the country. They don’t get mental health treatment.
They don’t get exercise, all of the things that you and I take for granted every single day. And all of this is happening because our society has decided to make your liberty prior to trial when you’re still presumptively innocent contingent on whether you can pay money. And so what happens is for most people like Christie is you’re arrested.
And you come to a court or to the jail and they tell you pay off a certain amount of money and you’re free to go. But if you can’t pay this money, you’re going to be stuck in jail until your trial. You’re not going to be able to even help your lawyer out in the community prepare your defense.
And the reason why bail reform is so important is that this actually has devastating results. Not only do people get worse results in their cases, they’re coerced into pleading guilty for things they didn’t do, they’re likely to get longer sentences. They lose their jobs even if you’re in jail for a few days.
If you’re working a relatively low income job, you don’t have vacation days, you don’t have sick days. If you’re in jail, they just fire you. You lose your job. For many people, they lose their housing. They can’t pay rent. They don’t know where their kids are. They interrupt their medical treatment and their mental health treatment.
So these are really devastating consequences. And we actually know now that keeping people in jail for even a few days makes them more likely to commit crime in the future. It’s also really expensive. Detaining people in jail costs billions of dollars every single year. And detaining people just because they’re poor cost billions of every single year.
So every single turn, it’s really, really bad public policy. It makes us less safe. It destroys people’s lives. Every year it separates millions of children from their parents. And separates people from their churches and their schools and their jobs.
So on virtually any metric you look at, Dre, the money the system makes absolutely no sense.
DERAY Now, what do you say to people who would say that in some places where we’ve gotten rid of money bail, we’ve actually detained more people than were detained when money bail was present? Money bail might not be the best thing, but what we put forward as alternatives haven’t turned out to be that great either.
AELC That is such an important question. And that question is actually why I wrote the book Usual Cruelty, which I hope we get a chance to talk about as well because a lot of what’s going on is the same people who are in power who created the money bail system, those are the same people now calling themselves reformers who are actually trying to put a different label on the same old injustices.
So in many places around the country where they’ve done something called bad reform, it’s actually a hidden attempt by those very same people to accomplish the same ends. So what do I mean? For all the people in these places that are detained because they can’t pay money, they’re now detained without bond. So they can’t even get out.
And for the people who used to get out on bond who paid a for profit bail company, now what these companies want to do is they don’t want to call it a bail bond, but they require you to pay for drug testing and pay for GPS monitoring and supervision fees.
And so the same aggregations of wealth and corporations are making the same amount of money off the same populations and calling it bail reform. They’re just changing the name on the side of their business. So what we do all over the country is we don’t just say we want to reform the money bail system, we say what are the values that we care about?
Well, we want people out of jail if there’s not an absolute need for them to be there. We want to minimize the extent to which people are in cages and separated from their families. We want to minimize the extent to which predatory corporations are extracting wealth from low income Black communities and brown communities and poor communities.
And so the principles of actually meaningful bail reform involves getting as many people out of jail to save as much money, and time, and cost to the government as possible, and making sure that those people are getting the resources that they need, whether it’s a safe place to live, good health care and addiction treatment, and treatment for their mental illness, and not just being exploited by large corporations who want to make a profit off of supervising them prior to trial.
So this is a very similar point that I try to make in the book with all areas of what’s called criminal justice reform. When you look at, I know you’ve been doing a lot of work around Brianna Taylor’s death and so-called reforms to the search warrant and process.
There are groups of people who have a vested interest in so-called reforms that actually don’t fundamentally structurally change the way the police are working. And the same is true with the bail system. There are people who profit a lot off of bail system.
And people like prosecutors and judges and police who need to keep people in jail prior to trial so they can coerce them into pleading guilty quickly because our system is so crowded with cases that it can’t possibly provide a jury trial to everyone. So they need to find a way to coerce people to pleading guilty.
So these are the interests that benefit from reform that is reform in name only. That is changing some of the labels on the bad things we’re doing to people, but that isn’t actually changing the way that we’re treating people.
DERAY So in places where more people are detained after the end of money bail, you’re saying that we’re just swapping out one bad system for another?
ALEC That’s exactly right. Let me give you an example. We had a bail reform movement that a lot of people have forgotten about, it was actually in the 1960s. This is a huge issue for Bobby Kennedy and his attorney general when running for president. And a lot of mostly white male lawyers and judges we’re talking about the unfairness of the money bail system for people who are poor.
And that culminated in Congress passing the Federal Bail Reform Act, which essentially got rid of the money bail problem in federal courts in 1984. And on the day they passed that act, 24% of all people charged with federal crimes across the country were detained in jail just because there are poor.
So it’s a big problem. Like one in four people charged with a federal crime were detained. But as you and I are talking right now, Dre, in federal courts 36 years later, even though we got rid of the money problem, the detention rate is now 72.4%.
So we’ve actually tripled the rate at which we’re detaining people. And what’s even more wild is people who are arrested for federal crimes now are even more disproportionately black, more disproportionately Latinx, and more disproportionately poor.
So we’re actually jailing people, black people at higher rates by a factor of more than three. Then before we did the so-called bail reform, so, Yeah, they’re just putting a different label on the same problem. And in many cases the reforms are making it worse.
DERAY So what should we do? What is the answer to the money bail? There can be a lot of people who agree with you here, like this is wild. And they also are nervous. And this is like in New York. They hear these stories like somebody got out because Alec is over here trying to make sure people get out of jail that they get out and kill somebody and I don’t want that. So people feel stuck.
What do you say about that? When people are like they believe you and they are nervous, the fear mark going around you’re going to let people out of jail and they’re going to hurt more people, what do we say to that?
ALEC First of all, there is just a tremendous amount of propaganda around this coming from the police and other interests who benefit from the criminal system. Very, very few people who are released prior to trial ever commit a new offense, let alone new serious offense.
So in Washington D.C. where I live for example where we don’t really use money bail anymore, about 98% to 99% of people every year for the last 15, 20, 25 years who’ve been released prior to trial have not committed a new serious offense. It’s just a very, very rare problem.
Of course, there’s always going to be outliers. There’s always going to be some very unfortunate cases where someone does something to hurt someone else. But that’s going to happen to people who aren’t on money bail either. We can never fully eliminate all the risks to our society.
In fact, if you look at what the actual data shows, it’s detaining people away from their families, having them lose their jobs, stop their mental health treatment, stop their drug treatment, it actually makes them more likely to commit crimes later. So by jailing all of these people, you’re actually hurting public safety.
So that was one of the big things in New York. The police unions and the prosecutors unions, they kept fear mongering saying, if we do bail reform, we let more people out, we’re going to create more of a risk to society. And the evidence is exactly the opposite.
The more people you put into the jail system, the more people you track there, the more people you prevent from getting a job and supporting themselves with their family, the more people who you send out on the street because they lose their housing, that is what leads to more crime.
So the solution is we need to be trying to maximize the number of people that we release, trying to minimize the Tens of billions of dollars that we’re spending on policing and jailing. And actually give people the things that they need to flourish in their lives. Investing in things like education, and drug treatment, and care for the mentally ill, and medical treatment, and safe places to live.
If you look at the research that’s really robust over the last 30 or 40 years, every dollar that’s invested in things like that dramatically reduces things like crime and instability and poverty. And actually leads to much better results across the board for a much more holistic conception of public safety.
DERAY Now I want to talk about something that you write in the book that I was like, OK, I hadn’t heard this framed like this before. So there’s a section on page 101 about punishment bureaucrats and the rule of law. And I’ve never heard the phrase punishment bureaucrats before, that was new to me.
You write a whole section talking about some of the people have been heralded as like the progressive prosecutors or people inside the system that normally hurts people. And they are doing the good work to make sure it doesn’t hurt people. You have a different perspective on that, what’s that perspective?
ALEC I think that the American criminal legal system, which, through a term of propaganda has called itself the criminal justice system because it wants you to think that either the purpose or the effect of it is justice has always been about a couple of things. It’s always been about controlling black people, punishing them, and preserving the wealth of people who own things, typically white people.
That’s why you see such incredible disparities all throughout the criminal punishment system. So I could give you hundreds of examples in the book, but just to take one example, in the 1990s it was illegal to do certain types of derivatives trading because that was considered gambling where a bunch of rich bankers paid a bunch of politicians.
And they got Congress and Bill Clinton to change the law. And what used to be illegal gambling became an accepted form of investment banking. And it actually ended up leading to the housing crisis in the next decade. But at the same time, it was still illegal for very poor people to gamble and wager over dice in the streets.
And the reason I use that example, why is it OK to gamble on the global price of wheat even though fluctuations in the wheat market can leave millions of people all throughout Africa and Asia and other countries to starve? Why is that OK, but gambling in the streets of advice is illegal and police can arrest you and cage you?
Why is it OK for example to possess the tobacco plant and to smoke it, even though tobacco kills 480,000 Americans every single year including 41,000 people from secondhand smoke alone? So tobacco kills 15 9/11 worth of people every single year. But on the other hand, it’s illegal to smoke the marijuana plant federally and in most of the country.
And when you actually look at the history of drug prohibition, opium and its derivative became illegal precisely because they wanted to give police more control to arrest and detain and deport Chinese immigrants. And cocaine became illegal the white power structure wanted to give police an extra way of controlling and caging and using the convict labor of Black people.
Marijuana became illegal when people who controlled the government wanted to figure out a way of giving police more control over Mexican-American immigrants. So the criminal law has always been what is a crime is socially constructed. And I give hundreds of more examples right in the book, but the point is that what is a crime socially constructed?
And then once you make something a crime, the government can selectively enforce it. So it’s a reason that where I went to college at Yale, every single day I saw violations of the law. Underage drinking, cocaine and marijuana use, other pills. There’s an incredible studies about how rampant sexual assault is on University campuses.
And yet these crimes are virtually never enforced against the relatively privileged and wealthy and disproportionately upper class people at universities. And seeing crimes being ruthlessly enforced with search warrants and raids and stop and frisk and brutality in the black community right down the street in New Haven.
And you can go across the board in every major American city and there’s lots of arrests every year for shoplifting and theft and burglary. But there’s never any arrests for wage theft by large corporations even though wage theft is about $50 to $100 billion a year is dwarfed by a factor of 10. All robbery shoplifting, burglary, theft combined.
And yet because it’s large corporations doing that theft. It’s never prosecuted. So when I talk about the punishment democracy, I’m talking about the entire system of institutions that we set up that many people call the criminal legal system as a punishment system. And it’s this assembly line that is run by people who have a lot of power in our society, people who have a lot of wealth. And they use it to serve their own ends.
And to me, the history of the American criminal legal system is really a history of people who have power using the criminal law to serve their own interests.
DERAY In that chapter though, you go on to suggest that this strategy of getting good people in the system might not be as big of a win as people think. Did I read that part wrong or is that not a fair summation of what you said?
ALEC I think that’s correct. People are talking about the progressive prosecutor movement as if it’s some kind of panacea. It’s going to cure all the problems of the criminal system. And I think that’s just misguided.
I was just doing a podcast with one of those new progressive prosecutors Chase Aberdeen and in San Francisco who’s an old friend of mine. And what I said to him is the progressive prosecutor movement is predicated on an assumption, which is that the prosecutors is the most powerful person in the legal system.
And a prosecutor has been the most powerful person in the legal system for years. The prosecutor decides who gets charged with what, crimes we overlook, and what crimes do we enforce. The key point is that the prosecutor has been allowed to become so powerful precisely because prosecutors have used that power against poor people and Black people.
And if you actually tried to do something very different as a prosecutor, you lose a lot of that power. So I pointed out to Chaser, San Francisco is a very unequal city. Huge numbers of people are homeless. It’s also a very wealthy city, a lot of tech millionaires and billionaires.
Many of them have multiple houses. In each of their houses many, many spare bedroom. What would happen if Chaser said, we’ve got this huge problem with homelessness. We’ve got all these wealthy people with extra empty homes. I’m not going to enforce the trespassing laws.
I’m going to make a prosecutorial discretion. Just like we haven’t been enforcing wage theft laws against large corporations, I’m not going to enforce trespassing laws for homeless people or for anyone who is hungry doesn’t have enough money for food. I’m not going to enforce theft laws. They can go into grocery stores and take whatever food they want.
This is just a thought experiment, but if he adopted that policy and said, we have a society with extreme poverty and people who don’t have any place to live and cannot afford food and diapers for their babies. Anyone in that position are not going to enforce that criminal law against them.
Well, I think he’d be voted out of office immediately. They figure out a way of stripping him of his powers. The state legislature would try to take away his powers like they did to Larry Krasner in Philadelphia, the prosecutor.
I think that thought experiment shows you how tenuous the grasp is on procedural power because if they actually started using it to challenge some of the ways in which our criminal punishment system actually enforces the basic inequalities of our world, I think we would see the real limitations.
Then Chaser also pointed out another big thing, which is that he doesn’t have any control over the actual causes of crime. He doesn’t have any control over the way the schools in the neighborhoods look. He doesn’t have any control over the investments that our society is making in people having safe places to live. He doesn’t have any control over the lack of investment in mental health care in our society, the lack of investment in health.
He doesn’t have any can over the extent to which children are being poisoned with lead, which is actually correlated with violent behavior years in the future. So there’s all of these. I could list 20 or 30 more things that prosecutors just don’t have control over the kinds of investments that we would need to make in people to create a society where people were actually safe.
And so I think it’s a mistake to talk about prosecutors and to focus on them as sort of the panacea. Of course, I like you, I think, Dre, want prosecutors who are going to be less cool. We have an extraordinarily cool society that is caging black people at a rate six times that of South Africa at the height of apartheid. And caging people five times their own historical average.
So, yes, I think it’s a good thing to have prosecutors who are less punitive and less cool and in targeting poor people and Black people at much lower rates. But I think it’s wrong to think about just tweaking a few people in prosecutors offices as any solution to this entire problem which is a much, much bigger bureaucracy.
DERAY Why a book? You’ve been a lawyer. You’ve worked in cities all across the country often focusing on issues that people haven’t focused on, why a book?
AELC The reason that I wrote the book is the concept that you were getting to your last question. I’ve been going all over the country. When we met in Ferguson is probably a really good example. And I’ve seen that there’s a lot of energy around what’s called criminal justice reform.
But I also saw a lot of the very same people who built these systems of injustice trying to promote reforms that actually weren’t going to fix the problem. And I got very frustrated with this. So let’s take the example of Ferguson. When we were in Ferguson, Ferguson averaged 3.6 arrest warrants per household.
2.2 arrest warrants for every adult, almost all of them for Black people. And almost all of them for unpaid debt. This was truly a police force that was out of control. Our clients were being arrested 8, 9, 10, 15, 20 times. And they were being held for ransom in the Ferguson jail.
They’re being told by the police, if you pay us $300 we’ll to let you go. And then when they didn’t have $300, the police would say, OK, just give us $200. And then we didn’t have $200, they would come back the next day, OK, just give us $100.
And people were afraid to leave their homes. And people were being arrested for things like having a woman sleep over in their house without a permit from the city or in many of the cities around Ferguson, black children were being arrested for sagging their pants and charge fees.
And what the solution from the Department of Justice under President Obama was to all this, Ferguson needed more money for more police. That was one of the main recommendations. Who would come to a city that has more arrest warrants than people and say you know what we need is more police officers?
And I think in the wake of Michael Brown’s murder, a lot of these same people are going around the country saying the reform that we need are body cameras for the police. Now this is a fascinating one because the idea for body cameras actually came from the police unions themselves because they understand that police control the body cameras. They are outward looking.
Even when police are caught on video doing something bad, there’s hardly ever any consequences. The body cameras are an incredible surveillance tool for the police. They get to go around to the same neighborhoods arresting and brutalizing the same people, capturing it on video, saving the video that they want, throwing that other video away, not turning on their cameras.
And they actually can use that video now in court against poor people and Black people. And when you combine the rampant use of body cameras with the new facial recognition technology and databases that police are keeping, it’s actually an unprecedented tool for police.
And the problem for police was they couldn’t get hundreds of millions or billions of from local governments to pay for this technology. So what did they do, they called body cameras a reform. And in the wake of Michael Brown’s murder and other events like that, they convinced taxpayers to pay for this new surveillance technology tool that they had wanted for years under the guise of reform.
And so I wrote the book to try to give people a set of tools for figuring out what are good reforms that are actually going to change these injustices, these racial and economic injustice to the core of the system? And what are reforms that aren’t good that are actually going to perpetuate a lot of the same problems that we’re seeing every single day in people’s lives and families?
And for me, writing the book was a way of having this conversation with people. This very difficult conversation with people all over the country. I guess, the last thing I’ll say is the analogy. There’s tremendous organizing and effort and you’ve been at the heart of this for years, Dre, around changing a lot of the ways that the criminal system operates.
And there’s a fire there. But what I see a lot of the mainstream politicians doing is kind of like firefighters. They’re setting other fires around the fire to try to stop it from spreading. And trying to promote reforms that do nothing to change the architecture of the system.
But maybe save off some of his most grotesque flourishes. But that keep the rest of it in place. And what we’re trying to do is something very different. We’re rolling a snowball down a mountain. And we want reforms that are going to get the snowball bigger and bigger and bigger and eventually change the way the entire system functions.
And that’s why I wrote the book, helping people understand the difference between reforms that are just setting a fire so you can block public support for much bigger change versus reforms that are actually going to help us create an avalanche that will really change, once and for all, the way this racist and classist system is operated for hundreds of years.
DERAY Well, thanks for being here, Alec. And we consider you a friend of the Party. And can’t wait to have you back.
ALEC Yeah, I would love to come back anytime, Dre. Thank you so much for what you’re doing and for having me on the show today.
DERAY Well, that’s it. Thanks so much for tuning in to Pod Save the People this week. Tell your friends to check it out. Make sure to rate it wherever you get your podcasts whether it’s Apple Podcasts or somewhere else. And we’ll see you next week.
Pod Save the People is a production of Crooked Media. It’s produced by Brock Wilbur and mixed by Bill Lancz executive producer Jessica Cordova Kramer and myself. Special Thanks to our weekly contributors, KaYA Henderson De’Ara Balenger and Sam Sinyangwe [MUSIC PLAYING]