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Play the Long Game

DeRay, Sam, Brittany and Clint talk about how the government shutdown is affecting federal prisons, hunger on college campuses, the DOJ’s implication that immigration is linked to terrorism, and Bennett College’s financial vulnerability. Law Professor Lara Bazelon joins DeRay to discuss restorative justice for those who have been wrongfully convicted.

Show Notes:

Transcription below:

DeRay: Before we get started go over to crooked.com/events to get your tickets to one of our upcoming live shows. We are in Philly and New York City for Black History Month and then we head out west in March. The ticket supply is limited, and Brittany, Sam, Clint, and I plus our special guest want to see you there. Boom.

DeRay: Hey. This is DeRay. Welcome to Pod Save The People. In this episode we’re joined by Lara Bazelon to talk about her latest book Rectify: The Power of Restorative Justice After Wrongful Conviction.

Lara Bazelon: What’s so interesting about the use of restorative justice in the context of a wrongful conviction is that everybody is a victim in a certain way. The people who were horribly, horribly taken advantage of and had all these things happen to them, they feel like perpetrators because they participated unwittingly in this catastrophe, which was the wrongful conviction.

DeRay: Then we have the news with me, Brittany, Clint, and Sam as usual. You know, the thing in my heart right now is I was in my house and it was messy because I was traveling and I left really quick, and so I came back home, and it was clothes from the dryer that I left on the table because I was going to fold them. What I did, I just took a couple hours and I actually cleaned up. I did all the laundry and folded everything and put it where it’s supposed to be, and took the trash out, and did all the things. I say that because what I normally do is I just move things around. I’m like, “Oh, I’ll just put the pile of clothes over here. Nobody is coming over anyway.”

DeRay: But there’s so much peace, freedom, and power in actually putting things where they need to go, and actually attacking the issue head on and really cleaning up as opposed to just moving things and hiding things. I think about how I’m trying to go into 2019. There are some things that I’ve just been putting off. I’ve been moving them around. I’m like, “I’ll do this, I’ll sort of do this.” Instead of just tackling it head on and dealing with the thing.

DeRay: I think that sometimes we don’t deal with the thing because we’ll always be busy if we keep rearranging stuff or we feel like there’s infinite times. It’s like, “Oh, I’ll get back to the clothes. I’ll do it later. Nobody is going to see it.” But the reality is that I’m going to see it, and because I’m coming into a place every day where there are these piles of things, that actually changes the way I think about the space. I think about that in the work in general is dealing with some of these issues that we should just attack head on changes the way that we enter into all the spaces that we go into.

DeRay: What I want to share this week is tackle the pile of clothes head on. Clean up the things that need to be cleaned up in your life head on. Don’t just move things around, put them in closets, do your work. Let’s go.

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

Sam: This is Sam Sinyangwe @Samswey on Twitter.

Clint: This is Clint Smith, @ClintSmithIII.

DeRay: And this is DeRay @deray, D-E-R-A-Y on Twitter.

Brittany: I know I’m in St. Louis. I know Sam is by a very sad-looking Plymouth Rock outside of Boston. All right DeRay, you couldn’t get to DC because of the snow, and Clint, you had to shovel your snow for the very first time. I got stuck in the house for like half a day in St. Louis, because this snow is really here, all over the place. Winter has come. Clint, how was shoveling that driveway, now that you’re a homeowner.

Clint: Shoveling snow is trash. It is not the cool thing. You see shoveling snow in the movies, and it’s like Hugh Grant shoveling snow, and then the woman comes up and she’s like, “You look like you could use a break and get some coffee.” It’s like none of that happens in real life. It’s-

DeRay: Were there no neighborhood kids Clint? Are kids not coming around … I feel like an old person and be like are there not kids in the neighborhood that you can pay to shovel your snow?

Brittany: Pay them $20 and they come shovel the snow.

Clint: Not in 2019, everybody on Instagram. Kids are just scrolling.

DeRay: I’m lucky that I missed the snow but what I did not miss was the experience of seeing Plymouth Rock for the first time. I was at the data for Black lives conference this past weekend in Boston and on the way back decided to take a detour and see Plymouth Rock. It’s about 30 minutes outside of Boston. I’m expecting like this massive cliff with a massive Boulder and some sort of plaque and a monument and something. You hear about this in the history books and there’s this mythology about Plymouth Rock and the Mayflower and of course that mythology has a different connotation depending on how the pilgrims interacted with folks who arrived, but seeing the actual thing. I don’t know if any of y’all have seen it but it was so tiny and disappointing. I don’t even know how to … It’s probably I’m going to say like 8 feet across and maybe like 2 feet wide.

DeRay: It has a 1620 on it because that’s the year of the Mayflower, and that’s it, right.

That’s Plymouth rock and I don’t know why I haven’t seen any pictures of it until now but I was just disappointed.

Sam: I always thought Plymouth rock was a metaphor.

Brittany: It seems like a metaphor for all colonizers. That they had delusions of grandeur and things may be smaller than they appear when it comes to, I don’t know folks taking over your land and engaging in genocide and enslaving people etc. The really crabby part about maybe not Plymouth rock but certainly the snow is that there are furloughed workers all across DC who just got hit with the snow and so for folks were already having trouble making their bills, having to Stock up on groceries, being stuck in the house, kids being out of school. All of that really racks up and here we are at the point where I do believe we’re now in the era of the longest shut down in history. Is that right?

Sam: It is officially the longest government shutdown ever.

Brittany: Which is indeed shameful. Especially given that it’s over a made up crisis fueled by racism and xenophobia.

Sam: I’m glad you brought that up Brittany because many news outlets as we know have been talking about the shut down and who the shutdown has been affecting, how it’s been affecting them I we’re hearing all these stories about tens of thousands, hundreds of thousands of people who were struggling, who are going without a paycheck, who might suffer from like very real material ramifications in terms of not being able to feed their family. People will be evicted from their homes, people are already making choices between food and medical bills so-on and-so forth. I think it’s important that we know that this is having a real impact on people’s lives. One of the spaces that it is continuing to impact people that we do not often hear about is prisons. For my news I’m talking about some great reporting that’s been done by the Marshall Project and they’ve been bring attention to and illumining how the federal bureau of prisons is currently operating without funding because of the government shutdown.

Sam: It has furloughed up to half of its 36000 person staff including many who provide therapeutic programs for prisoners and other services that are considered not to be essential. The agency is currently asking its remaining employees to keep working unpaid. Focusing on maintaining security even if that’s not usually their primary job or the job that they were hired for. You often have people who are now in positions in which they are asked to do a job that they’re not necessarily qualified or hired for and that compromises the safety and security of folks in the prison. At some facilities the people who are incarcerated there have had visits canceled with their families because of lack of funds, there are folks who are terminally ill and who’ve been waiting compassionate release to die at home alongside their families, now they have to wait even longer because their applications are going unread because the people who serve and administrative capacities who typically read those applications are no longer coming to work because they’re not deemed essential.

Sam: And there’s at least one instance in which a prison had to reportedly stopped ordering food and toiletries for people who are incarcerated there to purchase at the commissary. That creates a real … More than inconvenience that creates a health risk for a lot of these folks. Lastly it’s really important remember that the first step act that passed last month I believe that we talked about on his podcast, there’s some good, there’s some bad but it’s seen by most people as a net positive. A tiny positive for criminal justice and criminal justice reform. Now implementation of many parts of the first step act are put on hold because again so many of the administrative folks who are responsible for putting into place so many of the bureaucratic things that would make the wheels go on this are not working. Then that means that people who should be coming home and being released from prison are having to wait for who knows how long for that happen.

Sam: I just wanted to bring up how is government shutdown while it is very clearly impacting hundreds of thousands of people, if not millions of people across the country it is also impacting so many of the folks that we often forget to bring up

DeRay: What is good about the Marshall Projects reporting is the way in which it centers folks who are incarcerated and the impact that the shut down is having on them. That’s a direct contrast with some of the reporting that we’ve seen from other news outlets that have actually reported in ways that try to depict folks who are incarcerated as somehow benefiting from being fed during a government shutdown while the prison guards are not being paid. There’s an article NBC news that came out last week and the title is inmates eat holiday steak during shutdown while prison guards go unpaid. There was another article from USA Today with the title Government Shutdown: Federal Inmates Feast on Cornish Hens Steak as Prison Guards go Unpaid there was this whole genre of reporting over the past week that has depicted what was going on as somehow folks who are incarcerated living sort of a lavish lifestyle while the prison guards have to work in the context of a shutdown not being paid

DeRay: Now, mind you folks who are incarcerated are working without being paid as well and that is just the norm for them, that’s not something that’s unique to a shut down and surely we should be sympathetic to folks who are working in the context of this shut down but it is particularly interesting to see the ways in which the media in general has been sympathetic towards everybody impacted by the shut down except for folks who’ve been incarcerated.

Brittany: What worries me so greatly is that if for this administration the idea of a child going without food is not enough to inspire empathy or sympathy then most certainly the needs and the humanity of the very people that they relish locking up wouldn’t inspire that kind of empathy or sympathy. You know we were for good reason very worried when Jefferson Beauregard Sessions became Attorney General of the United States. Because of his racist history, because of his history with the criminal justice system, because of his support of mass incarceration and here we are with William Barr the new nominee for Attorney General having written papers and dissertating in so many different forms and fashions a push for more incarceration. That’s literally the title of a paper that he wrote. Quite frankly these folks don’t care about anybody but themselves especially the folks that they’ve been trying to lock away and have been working to lock away for so long.

Sam: One of the things that I’m mindful of when we think about the shut down are all the ways that people just don’t even think about that federal government operating. It’s one of the frustrations that I think the four of us actually had during the election is that people in 2016 were like, “Everything is local, federal government doesn’t really matter.” This is a great example of you seeing where it does matter. I’m fascinated with the way food stamps are administered at the national level as with their funded and they’re administered at the States, what’s going to happen with food stamps because of the shutdown is that the February allowances are actually going to have to go out at the end of January, so around January 20th. Which is a big deal because the federal government has only ever released a snap funds early for a state. They’ve never actually done it across the country. If there’s any administration that you have no faith in the actual administrative capacities, it’s this one.

Sam: For those of you who don’t know much about food stamps or snap, is a snap purchases account for nearly 10% of all grocery business in the US each year. Which is a lot. Because the federal government is closed is will they even be notified? How will they be notified. Some people might think it’s an error, some people might spend the money because they might think that they shouldn’t. How will they know that they actually get the money early. The majority of snap recipients are children, elderly or have a disability. Remember that there’s like another part of government funding that’s called Funding For The Special Supplemental Nutrition Program for Women Infants and Children which provides infant formula, breastfeeding support and stable foods to low income pregnant mothers and their children. It is funded only through February. This program serves about half of all babies born in the United States and then there’s a program that you know really well which is the school nutrition initiatives which serves lunch and serves about 30 million children each day.

Sam: That only has funding to last through March right now. You know hopefully this shutdown ends soon. One of the phrases that I think is actually important in this moment is that there are some issues that aren’t left to right, they’re top and bottom. This is when we’re like, there are a lot of people that I think are part of the power structure of the republican party who actually aren’t feeling the consequences the shutdown at all. But there are a lot of people who have to be in that base who are feeling the shut down I’m shocked that they haven’t stopped this.

Brittany: I was reading about the Chippewa Indians and in particular they still receive a great deal of federal funds in order to run the programs that they determine themselves. There are things like the Indian health service, child care, food distribution, heating assistance, head start in education. All of those are currently affected by the shutdown and in 2013 where there was a government shutdown that same tribe lost one million dollars that they never recovered. We keep talking about workers that are furloughed and that is bad enough but at the very least the bill was just passed to secure their back pay but there are tribal nations who will never actually recover the funds on their own land that they should have gotten in the first place.

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

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Brittany: Me. Sorry what?

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Brittany: I want to talk to you about a place that some of you may have heard of and some of you may have not. It is Bennett College in North Carolina. Bennett College is one of the few historically Black colleges or universities or HBCUs for Black women specifically. It was founded in 1873, it started off giving Black people elementary and secondary level education. In 1873 a group of emancipated formerly enslaved people actually purchased the site in North Carolina where the college currently sits. There were immense challenges to establish Bennett and so many other HBCUs around the country to ensure that there was some kind of access to this thing called the American dream for Black people. Following an era when in many States it with illegal to teach Black people to read and rate HBCUs served as a beacon of light and they still serve as a beacon of hope access and opportunity for so many Black people across this country.

Brittany: Bennett is currently in trouble when the market crashed a decade ago they suffered from dramatically lower enrollment because a lot of those families lost their federal education support. Enrollment is actually less than half of what it was just a decade ago and that loss of funding has put the college’s accreditation at risk. It Bennett does not raise 5 million dollars by February 1st they risk losing their accreditation, which essentially means that the students that are enrolled there now and the students who want to come there in the future will have an education that while incredibly important to them will be deemed lacking value by the US government. We keep talking in society about trusting Black women, listening to Black women, voting for Black women, supporting Black woman. This is an opportunity for us to invest in Black women. This is about continuously investing in educational equity. There is still a real need for HBCUs out there. There are a number of ways that you can support Bennett which I’ll talk about in a second.

Brittany: I wanted to make sure to bring this to the pod and unthankful to but Bennett college student government association and one of my Twitter followers [inaudible 00:19:35] considers for sharing information with me throughout the last few weeks. I think it’s so important for us to do as their hashtag says and stand with Bennett.

Sam: UNCF has some great data about the impact that HBCUs have on the Black community at large. They talk about how today the nation’s 106 HBCUs make up just 3% of Americas colleges and universities but they produce almost 20% of all Black graduates and 25% of Black graduates who go into STEM field of science technology engineering and mathematics. Additionally more than 70% of all students at HBCU qualify for federal pal grants and 80% of HBCU students receive federal loans. I bring that up to emphasize this point that HBCUs are so important and so central to mitigating the impact of the wealth gap to creating opportunities for social mobility and economic mobility for first generation students and for communities who may not have had access to universities, access to college. Who are coming room communities that have been historically underserved with regard to their access to higher education.

Sam: These schools are providing a space for students who might not otherwise have an opportunity in other places to get a college degree. I think if you are really someone who was interested in helping to create social mobility for Black people donating to historically Black colleges and universities is one of the best places that you can put your money.

DeRay: The organizers need a total of 5 million dollars by February 1st and they’ve raised already more than a million. They need folks to close that gap and invest in Black women, invest in Bennett College, in HBCUs HPC use obviously a great cause and a far better cause than some of the things that are currently being invested. So for example that racist wall and that has raised more than 20 million dollars on the GoFundMe. By the way that money can’t even be used to fund the wall because they can’t give that money to the government to build the wall. Yet 20 million dollars they were able to raise. If they can raise 20 million dollars for that, we need to come together and raise this remaining fewer than 4 million dollars in order to close the gap here.

Sam: Now one of the things that’s interesting about Bennett is that since 2005, 8 southern colleges have appealed their loss of accreditation and only 1 has succeeded. Bennett is in a tough situation in this moment. There really is only one other place that’s ever successfully gotten through this phase, where their accreditation has been challenged because of the budget. They essentially have to show that they have enough money to keep the institution open for a while and if they lose the accreditation the challenge for them, they won’t necessarily have to close immediately but colleges and universities that aren’t accredited can’t take any federal funds. Pal grants, federal student loans and other federal monies as payment for tuition or other school expenses and nearly all of Bennett students get financial aid. The week February 18th is when the appeals panel will convene around their accreditation. Bennett’s leader has said that they will sue to try to hold off losing the accreditation in the process, but they are in a really tough position.

Sam: Hopefully they can survive this phase and continue to do really good work.

Brittany: Here is how you can stand with Bennett. You can follow that hashtag, stand with Bennett and Bennett is spelled B-E-N-N-E-T-T. You can also go to their website bennett.edu to donate. If you use cash app, their cash tag is stand with Bennett. It is confirmed and verified and that money will go to the school. Or, if you want a text to give, you can text belles, B-E-L-L-E-S, because they are the Bennett belles to the number 444-999.

Sam: My news is about a report that the department of justice produced. Attempting to link immigration and terrorism. Back in 2017 Trump signed the executive order the muslim ban. As part of that executive order it actually to require the department of justice to produce a report that investigates the relationship or alleged relationship between immigration and terrorism. That report was produced last year. As soon as it was produced, it was clear that there were a range or errors and misstatements and misrepresentations of the data on the relationship between immigration and crime and terrorism. For example, in the report it said that immigrants were convicted of 69900 sex offenses between 2003 and 2009. Well, it turns out that that was a lie and that the data actually that they were referring to was from a period between 1955 and 2010. 55 years of data produced that 69000. That was one error.

Sam: They made many more errors. For example, they claimed that there were hundreds and hundreds and hundreds of immigrants who were suspected of terrorism, international terrorism. Well it turns out that more than 100 of the people that they were referring to actually didn’t immigrate to the United States, they were extradited here. The United States brought them here intentionally as part of an investigation. There were a range of errors. The federal government was called out on making those errors when they produced the report and they were sued under the information quality act. Which requires the federal government to produce data and information in a way that is true and not intentionally mislead or misrepresent or lie to people. Under that lawsuit that actually for one of the first times in history has gotten the Department of Justice to admit that it lied to people, or at least misrepresented the truth in their words.

Sam: Michael Allen the deputy assistant Attorney General for policy management and planning wrote a letter a couple weeks ago to the groups that have sued the federal government saying, “In future reports the department can strive to minimize the potential for misrepresentation.” Now what they have refused to do is actually change the report. To correct the report or retract the false statements made in the report. This is an example of what happens not when the federal government doesn’t collect data. But what they’ve chosen to do is to skew the data and report the data in a way that intentionally misleads the public that intentionally seeks to demonize immigrants in order to justify the government’s … The Trump administration’s agenda.

Clint: Sam I didn’t know what the information quality act was until you brought up and until you were talking about in the context of this article. I just think it’s fascinating that we have a law on the books that directs the office of management and budget to issue government wide guidelines to “provide policy and procedural guidance to federal agencies for ensuring and maximizing the quality, objectivity, utility and integrity of information disseminated by federal agencies.” For the last 2 years we have been inundated with misinformation devoid of integrity, devoid of objectivity, devoid of quality. Incessantly and the fact that I’m hearing two years in that this law exists, which should have been brought up, seemed to be like at every other day of this administration but here we are.

Brittany: You know it’s so interesting because Sam when we all first started working together on campaign zero and mapping police violence, one of the biggest problems that we were fighting was the lack of information from the federal government. The federal government was not collecting information on, for example police violence and police killings, among other things. Primarily a lot of data that would be useful to marginalized communities that the federal government simply did not prioritize collecting and through a lot of work and advocacy protest and lobbying. Now to Clint’s point that the issue is not so much lack of information as much as it is complete misinformation. Intentional misinformation and I’m not sitting here saying the government has never misinformed people before or withheld information or given people information that was misleading, I’m certainly not saying that. But what I am saying is that it feels like an all out assault. An insult to our collective intelligence because they’re literally saying we know we were wrong but we’re not going to change it.

Brittany: Why are we not going to change it? Them correcting things would absolutely not the support the narrative that they’re trying to create or the agenda that they’re trying to push. Which is why we have to be all the more vigilant but it also means that our vigilance is not just against fake news and info wars and Russia. It is also continuously against this administration that wants to intentionally mislead the people.

DeRay: This like a hallmark propaganda. Sarah Huckabee Sanders was on Fox all places. Fox news Sunday and she said … She was being interviewed by Chris Wallace and she said we know that roughly nearly 4000 known or suspected terrorists come into our country illegally and we know that our most vulnerable point of entry is at the Southern border. Chris Wallace he was ready and he goes wait, wait, wait. I know the statistic, I don’t know you were going to use it but I studied up on this. Do you know where those 4000 people come, where they’re captured? Airports. She goes not always. Then Wallace says, the state department says there hasn’t been any terrorist that they found coming across the Southern border with Mexico and she has nothing else to say so she just repeats the 4000 line. Also I don’t know if you saw recently that El Chapo. Who thought that El Chapo would be used in the fight against the wall is that during the El Chapo trial his team has said they smuggled a lot of drugs and none through the border.

Brittany: He was like, hey we came through all the legal way so I personally know this isn’t true, I can attest to that.

DeRay: Or the tunnels but the wall is not going to stop the tunnel. El Chapo is reminding us that the wall don’t matter and he is arguably the most successful living drug kingpin in the world. We have the administration lying. The data shows that the wall is not going to do anything and they have just been making up stats around terrorists. I’m mindful that the people who shot up schools, the people who shot up movie theaters, malls, they didn’t cross any wall they were already here. We aren’t doing anything around gun violence at the national level or a host of other issues that could actually help if we are focused on the outcomes. For the right this has never been about the outcomes around violence, it’s always been around the outcomes around bigotry and hate. My news this week is about food and insecurity on campus. For the first time the federal government has done up a survey study of studies that highlights food and security on college campuses in a significant way.

DeRay: What they find is that there are a lot of students who are at risk of dropping out because they literally don’t have enough food to eat. There just wasn’t a lot of good data and how many. There still isn’t great data on how many. What the government accountability office today conducted a review of 31 studies that met their criteria, which meant that the studies have been conducted in the United states since 2007 and didn’t have sever methodological limitations. 22 of those 31 studies estimate that more than 30% of students are food insecure. That is wild. You think about the first time students, first generations students, students who are raising children and single parents are the most vulnerable to be enrolled in an institution and not know that they’re going to have a meal. Like 3 meals A-day at least. One way the schools had been planning to combat food insecurity is by food pantries. I honestly didn’t know that universities have food pantries.

DeRay: It seems to me that if you know food insecurity is a problem with a subset of your students that you would like I don’t know they’d be a meal plan or something but there aren’t even enough food pantries on campuses where food insecurity is particularly high. What I also didn’t know is that some students are eligible for food stamps so a snap or food stamps doesn’t allow you to participate if you are enrolled in school for more than half time. There are some students who meet basic [inaudible 00:32:03] for snap eligibility, students who are younger than 18 or older than 50 who have children, who work a minimum of 20 hours a week they’re also eligible. One of the pushes is for if the government at actually do more outreach so that they can help people who are snap eligible and enrolled in school actually take advantage of the full benefit. There are some middle class students who are “too rich for pal grants but too poor to afford college.”

DeRay: The $100000 salary ish rate. That they aren’t getting financial aid but they actually don’t have enough … Families don’t have enough money to stave off food and security. I though this is fascinating something that goes unreported, I wanted to bring it here.

Brittany: I’m really glad that you brought this up DeRay, in particular because it feels like in education spaces we often talk about single strategies, when in reality anyone who has spent any time working in schools whatsoever knows that there is not a single strategy to ending educational inequity. There are so many variables at the level of higher education and we often treat young people who graduate from even the most challenging circumstances once they get to college we treat them as though you’ve made it good luck now you’re on your own, you got it from here. There are important organizations like Braven and others who are peeling back the layers on this and saying, “Hold on we have a lot of young people who are having a very difficult time staying in college, doing well in college.” For every reason from the cultural transition to yes the financial burdens. My hope though is that again is we look at multiple strategies.

Brittany: That one of the strategies that’s employed if that colleges that operate together in sports leagues, various accreditation organizations in various regions of the country, they get together and support one another in figuring this problem out.

DeRay: In addition to colleges and universities stepping up, this is something that the federal government could easily step up through policy and address the issue of college affordability. We know that it will cost about 75 billion dollars in order to provide tuition free college to every students that wants to go to college in the United States. 75 billion dollars could easily be funded from just taxing a small number of households that make an obscene amount of money. If we taxed income over 10 million dollars at the 70% marginal rate that congresswoman Alexandria Acosta Cortes has proposed, that would actually raise a 104 billion dollars a year more than enough to fund tuition free college. If we went back to the estate tax rate that we had in the 1960s and early 70s, that would raise 85 billion dollars. More than enough to provide tuition free college. These are things that about 16000 households in total would be taxed under that marginal tax rate and could provide all of the money needed to provide tuition free college to all of the students in the United States who want to go to college.

DeRay: This is something that we could do what as a society that would only impact folks at the highest a level of income and society and only impact them at a marginal rate on their 10 millionth dollar plus.

Sam: Yeah, I’ll just end by saying that this reminded me of a conversation we had last year I think around Tony Jack’s research. He’s at the Harvard Graduate School of education and he talks a lot about how so many of these universities keep their dining halls closed over the holidays. For a lot of folks this is a time period in which if they are going back home they’re going back home sometimes to food and secure communities, if they’re not going back home then they’re staying on or near campus and they don’t have access to any food. That’s just not for winter break but that’s for Spring break, that’s for Thanksgiving, that’s for fall break. Some of these times are or the most stressful times for many students in ways that we we don’t fully appreciate as a public.

DeRay: That’s the news. Hey you’re listening to Pod Save the People. Stay tuned, there’s more to come. Pod Save the People is brought to you by Swell. In the new year would you say investing in oil, tobacco and firearms is a goal of yours?

Brittany: That is a hard pass. I can’t believe you even asked me that question. Come on.

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Lara Bazelon: Thank you for having me.

DeRay: Now your book, Rectify: The power of Restorative Justice After Wrongful Conviction. Fascinating topic, can’t wait to talk to you about it. I want to start with what lead you into waiting so deeply into the world of wrongful convictions. What was the impetus there?

Lara Bazelon: I think lawyering might be in my DNA. My grandfather was a judge, my dad is a lawyer and when were little my grandfather would call and ask us what we wanted to be when we grew up and no matter what we said he would always tell us, no you want to be a lawyer. I think maybe there was little choice in the matter. When I went to law school I always knew I was going to be a public defender because I wanted to represent people who no one else would represent to make sure that the system was fair and that they had a shot. How I came to the book was kind of circuitous because I was a federal public defender for 7 years and then after that I left to run a small innocence projects in Los Angeles and we represented a man named Cash. He was convicted of a murder that he didn’t commit and he spent 34 years in prison as result of that. In litigating the case to get him out I started thinking about the aftermath and what comes next, not just for Cash but for his mom.

Lara Bazelon: Then also for the victim’s family who has told a story by the police and prosecutors that was a lie. How do they move on. I learned about this concept, restorative justice that I didn’t know anything about. The more I learned the more interested I got in it.

DeRay: Restorative justice has become a buzzword in so many places certainly in public education. How do you define restorative justice, what does that mean?

Lara Bazelon: To me it’s reframing the basic questions we ask in the criminal Justice system where we’re really focused on punishment. Who is to blame and how to put them away. Restorative justice is really at its core about re-knitting a community back together after a trauma, so it asks who was harmed, what are their needs and whose obligation is it to meet those needs?

DeRay: What does that look like in practice?

Lara Bazelon: It can look a lot of different ways. The way that I’ve been looking at it in my book is a pretty unusual way, which is to apply it in cases of wrongful conviction. I guess I should backup and talk about the more traditional uses of it, particularly in this country. As you know we’re very slow to embrace non punitive measures but in some places that are progress, so for example Oakland across the bridge from where I live in San Francisco has adopted restorative justice in over half of the Oakland unified school districts. There’s a plan in place to make sure 100% of them use it within the next 5 years. Basically what they’re doing is they’re trying to stop the school to prison pipeline so that when someone gets in trouble, rather than suspend or expel them they do these circles. I’ll give you an example, there was this boy Cedric. Who as a young teenager came to school with a loaded gun and it went off in his class.

Lara Bazelon: In normal circumstances he would have been suspended or maybe even expelled and what his school did was to not put him in the justice system, to not put him through their normal disciplinary process but instead to have this restorative justice circle that was led by this amazing guy who works for Our Joy named Eric Butler and they brought Cedric in and his mom and his dad and his stepdad and the school principal and a psychologist and all these members of the community and they kind of dug down into the root causes of what led him to that point in his life where he had brought a gun to school. It was just this remarkable moment really of reckoning not just for Cedric but for everyone in the room kind of owning up to their own piece of responsibility for how he had gotten to this point in his life.

Lara Bazelon: When he started talking about where he was coming from. He wasn’t coming from a place of hatred or wanting to harm people, he was coming from a place of he felt like he needed to get money to help his mom and he was you know headed down a path that was not a good path. At the end of this really emotional meeting what they did was basically make a life plan for Cedric. They put it up on this whiteboard and every person in the room promised to do something to help him and Cedric in turn promised to do certain things himself and in that way their community came up with a system or a set of values that was going to propel him forward in life, not headlong into the justice system but rather forward and up and out and hopefully through high school where he did successfully graduate.

DeRay: What is it been like to work on wrongful conviction cases? I imagine that you get asked to explore so many things that don’t turn out to be the things you can do anything about but then there’s a small set that find some way that you can prove that it’s wrong. What’s that process even like?

Lara Bazelon: It kind of runs on different tracks. Once you know you have a righteous case that you think you can prove, oftentimes what happens and this happened in Cash’s case is that you come up with intense and placable resistance from the state. You have the prosecutor saying essentially we’re not backing down and we’re going to fight you every step of the way. At that point what happens is this surge of adrenaline that basically lasts 18 months until you can get your client out. Pretty much every night and every morning you’re thinking about that case and you’re thinking about your strategy and you’re thinking about what you’re going to do next when you go into court and you’re thinking in a very adversarial way about what you need to do to completely dismember the state’s case and leave it in a heap on the floor.

Lara Bazelon: It’s a very high pressure, high adrenalin place to live and it’s very hard to live the rest of your life, the rest of your personal life in particular when you’re in that place. That’s one track and then of course there’s just this overwhelming feeling of relief and satisfaction and happiness when that moment comes and the judge lets her client out. Which is just inexplicable. But you also refer to these cases that you can’t prove and those cases are just so haunting. I mean I have had cases where I know my guy didn’t do it or I know this woman I’m representing didn’t do it but I don’t have the proof necessary to get them out. Without that proof you’re stuck in this holding pattern just hoping that something will break and change the trajectory but until then also knowing that you can’t get them out which is just the most horrible feeling that you can imagine.

DeRay: How do you make sure that you don’t get people too energized and you can’t follow through one of your clients, what’s that like?

Lara Bazelon: I always try and be really measured and I should start up by saying that my background is being a public defender so let’s just say I am really used to coming in second which is what we always called it when the jury convicted our clients. I’m used to being very measured and I’m not used to winning because as you know overwhelmingly, the state wins. I try and be very, very realistic but with someone like Cash it was hard for me not to inject some anon of hope while tempering it and so you have to walk this balance between you don’t obviously want your client to think that there’s some kind of percentage chance of them getting out. Any lawyer who tells you there’s an 80% chance or a 90% chance is a lawyer you should immediately fire. At the same time you need them to keep hope alive and so you have to kind of walk that tight rope.

Lara Bazelon: Then in the cases where you’re hoping for a break you have to be realistic with your client and say, “Look right now we can’t go to court because if we did we would lose and so we have to hang on and keep digging and keep hoping that something is going to break and I need you to hang in there with me.” Those are really hard conversations too.

DeRay: How do people get falsely convicted in such high numbers? Is it that people are pleading out and that’s a problem or that’s the main reason? Is it faulty DNA, is it sketchy testimony. Are there any threats there?

Lara Bazelon: You’ve covered a lot of ground right there, there are some other ground though. Alarmingly in over half of wrongful conviction cases there was official misconduct which means that police and prosecutors didn’t follow the-

DeRay: Over half?

Lara Bazelon: Yeah. Well there’s that cause right, which it is official misconduct, big cause. There is false confessions where police coerce confessions out of people who in fact didn’t do what they confessed to doing. There are mistaken identifications were witnesses in good faith make an identification but it’s wrong and often times with those what’s going on is that it’s a cross racial identification because we’re really, really bad at identifying people outside of our own racial group. Then there’s actually false testimony where people go in and lie which is agonizing but true and then there’s also the basis that you cited to which is that people plead guilty when they’re innocent all the time. Those are the ones that are the hardest capture I think because first of all if you have a guilty plea it’s really hard to convince anyone to take your case much less a judge to release you and two a lot of times people plead guilty to for example time served to get out because they’re so desperate to get out.

Lara Bazelon: That’s one of the horrible things for example about the Cash for bail system which keeps people locked up who are too poor to free themselves and then they plead just to be released. In those cases again they haven’t served 10, 20 years maybe they’ve served 6 months and so no one is going to take that case and actually exonerate them. But to give you an example of how big that problem, there’s this county in Texas, Harris County. They had like many counties a real processing system where police would pull people over, they’d do these in the field drug test, tell the person that whatever they possessed was Cocaine or whatever it was. The person who would be held without bail, they would plead guilty. Then months later the test would come back from the lab and in many, many of these cases that field tests were just completely defective. It was things like Domino’s sugar and jolly ranchers that were the actual substances and not drugs.

Lara Bazelon: They started exonerating people and they exonerated over a 125 people that way in a single county. They only caught it because they actually did the test results post guilty plea and in most counties that’s not what happens. The person pleads guilty and they don’t test the evidence because they figure why should I? I have the plea.

DeRay: Is that a policy thing that we can ask for another places? Like to demanded that the evidence gets tested even if there’s a guilty plea? Who decides that and what people listening do for that?

Lara Bazelon: It’s really interesting. In that case there was the chief of the conviction integrity unit. This woman Inger Chandler. It was her policy that she put in place. She’s the real hero of the story who said, “I want these test results. I want them done.” In a lot of DA offices it really is discretionary where you’re counting on the person who’s in that position to say will hold on a minute I want to see the evidence even if we have secured a guilty plea. I think the other thing we can do is push for laws and rulings and legal motions and advocacy around the use of this so called junk science because in a lot of county’s what juries are being told is hey you should believe this field test or you should believe this bite mark matches this other bite mark or you should leave this hair matches the defendants hair and in fact none of that is true. Every day in courts junk science is being introduced and it’s being used against defendants to get them to pleas guilty.

DeRay: That’s so wild.

Lara Bazelon: Sometimes people say to me, well what can I do? I’m not a lawyer, I’m not a judge, my life isn’t directly touched by the system. What I say is you know what you can, you can be the best possible juror. You can go in and you can do your jury duty and you can go back in that room and you can be skeptical. You can stand up when you have doubt. Because the other thing that often happens is that there will be people in the jury room who will have doubt. They’ll listen to the evidence and they’ll think this sounds kind of weak. Then it will be 10 against two. And then one person will fold and then it’s 11 to 1. It’s really hard to hold out under that kind of pressure, especially when its Friday afternoon and everyone wants to go home. What I tell people is you have got to hold out, you have got to hold out and stand by your convictions.

DeRay: How do you explain your book to people? When they’re like what is Rectify about, what do you say to them?

Lara Bazelon: My elevator speech is that it looks at the Justice system when you come out the other side. What it’s asking is what is life like after an exoneration, not just for the person who is wrongfully convicted but for the original crime victims and their families. What’s so interesting about the use of restorative justice in the context of a wrongful conviction is that everybody is a victim in a certain way. For example people or wrongfully convicted were branded rapists and murderers and in fact they were victimized and they’re innocent but then on the other hand the people who were horribly, horribly it taken advantage of and killed and raped and had all these things happen to them they feel like perpetrators because they participated unwittingly in this catastrophe which was the wrongful conviction.

Lara Bazelon: Whether it was that they testified and they were wrong or just that they prayed every night that the person would be executed. They’re the only two people in the world who can truly understand a wrongful conviction from a 360 degree perspective and it’s the story told from both perspectives. As they meet each other through restorative justice practices.

DeRay: I’d love to know, you were already a lawyer way before you started to write a book or way before the book came out but in the process of writing the book was there anything that you learned that even you were surprised by?

Lara Bazelon: Yes, so this is the thing that surprised me the most. As I mentioned I am trained to be a public defender. I’m trained to represent people who are accused of really serious crimes, who are looking at a lot of time in jail or in prison and that is a training and a mindset that is very adversarial. What I did in my work as a public defender and even really through the litigation at the innocence project was not think about the victims I felt like I couldn’t, that it was upsetting, it was distracting. The only time I ever really thought about them was if I had cross examine them or how to explain them consistent with my theory of the defense. What I realized in researching this book was that you can be a good lawyer and the empathic toward victims. The best example of that is one of the cases I follow there’s this guy Thomas Haynesworth who was wrongfully convicted of raping 3 white women. He’s African American, in 3 separate incidents and sentenced to 74 years to life.

Lara Bazelon: His lawyer in her efforts to get him out forged a relationship with one of the victims and essentially went to her after the DNA test results came out and said would you be willing to be an advocate. She did that because in the other 2 cases, the evidence had been destroyed and there was no DNA. They were going to have to convince the judges that he was in fact innocent in these 2 other cases which was a huge uphill battle. The victim, her name is Janet was receptive. She was skeptical but then she was receptive to the lawyers advocacy and overtures toward her and I think part of it was that the police had come to her house, Janet’s house and told her this crushing news, which is that she had identified the wrong person and he had spent 26 years in prison. Then they left saying, well you shouldn’t worry about it because the actual rapist wasn’t a good guy but neither is the guy you identified. Which is of course offensive and in fact not true. Then they just never came back.

Lara Bazelon: She was left with a vortex of emotion but also in a total vacuum in terms of information. Thomas’ lawyer was able to provide her a lot of information about how wrongful identification’s happen. About how this case had taken all the twists and turns that it had taken and how Janet could play a part in the exoneration. Sean talks about it as a watershed moment for her because she had a similar mindset that I described to you. She realized you know I was actually a better lawyer to Thomas once I thought seriously about the case from the victim’s point of view and really did the best I could to be empathic and form a relationship. That part of the book and that learning piece for me was the most surprising and kind of the most game changing in the terms of the way I think about my own advocacy.

DeRay: Are there states that compensate people better than other states when it comes to wrongful conviction. You talked about the racial classification. Can you explain that a little better how that happens so frequently?

Lara Bazelon: So the wrongful conviction compensation statutes are all over the map literally. For example if you are wrongfully convicted in the state of Pennsylvania and you get out, the state will give you nothing, not one dime. If you crossed the bridge into New Jersey and you were are wrongfully convicted, the state will give you I think $50000 a year and some other benefits. If you’re wrongfully convicted in Texas and you can prove that and you are exonerated you get $80000 a year and then and in other States you get out lump sum of $25000 year no matter how much time you did. It’s completely random, freakish and unfair.

DeRay: What’s next for you?

Lara Bazelon: Well right now what I’m really fascinated by and I’m glad you asked is the felony murder rule and efforts to revise it sharply and in some ways do away with it. Basically felony murder says that if you and some other people decide to commit some kind of a crime, say a robbery and it goes horribly wrong and someone dies even if you’re not the killer, you didn’t intend for the person to die, you didn’t know that your co-defendant had a weapon and this is completely beyond your comprehension, under felony murder you can be convicted of 1st degree murder. A vast majority of states have the felony murder rule. In California this remarkable thing happened where a coalition of advocates convinced the California legislature to pass a bill basically doing away with the part of felony murder that I just described.

Lara Bazelon: The way that I’m looking at it is on its disproportionate impact on women because there’s a study in California that shows that a grossly disproportionate percentage of women who are doing time for murder and doing time for life without the possibility of parole went down on felony murder when they were not the trigger person, when they were not the person who intended the crime and in fact when in some cases they weren’t even present when it happened. You can kind of visualize these scenarios where they get involved in an abuse toxic relationship, they drive the boyfriend to the scene, he goes inside, something horrible happens, he comes out, they drive the boyfriend away. Some of those women are doing life without the possibility of parole. I’m really looking into can we make the argument not only that this is unfair from just the basic fundamental premise of our system but can we also make the argument that this is racially disproportionate as most or if not all criminal Justice laws are and that it has this grossly disproportionate effect on women and particularly women of color struggling in abusive relationships.

DeRay: What do you say to the people who have marched, protested, been to the meetings, testified before the council. Did all this stuff and the outcomes actually haven’t changed in a way they wanted them to. What do you say to those people?

Lara Bazelon: It’s so hard. You’ve written about this in your book but you have got to hold on to hope and the only other option is to cave into despair and let the other side crush you and I just think we can’t let that happen. If we don’t get up and keep fighting nothing is going to change and so I just think that we have to hold on to hope and we have to believe that most people are reachable and that minds can be changed.

DeRay: What’s a piece of advice that you’ve gotten over the years that stuck with you.

Lara Bazelon: I wish I could tell you that it was given to me directly. It’s a piece of advice that Bryan Stevenson gives. He founded the equal justice initiative and he has this line that he says which resonates with me. That he tells a story that he was in this courtroom just getting battered about trying to stand up for this client who was 14 and being tried as an adult. The janitor came and sat behind him and when one of the prosecutors asked in this really presumptuous way you know, what are you doing in here, he said I’m here for him and then he said to Bryan Stevenson keep your eyes on the prize and hold on. To me it’s kind of a piece with your last question, I always think keep your eyes on the prize which is another way of saying play the long game because there’s a lot of noise and there’s a lot of distraction and people will try to take you down.

Lara Bazelon: There will be days where you feel like you fell down and then you just have to get back up. If we don’t keep our eyes on the prize no one else will.

DeRay: Thanks so much for being able to talk today.

Lara Bazelon: I loved talking to you. Thank you so much for having me.

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 that you rate it wherever you get your podcast, whether it’s Apple podcast or somewhere else and we’ll see you next week.

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