Please forgive the delay in my latest newsletter. I have been traveling and dealing with some (exciting!) life changes. I will do my best to be consistent in upcoming weeks, but may need to call some audibles as things continue to change. Thank you for your patience.
In recent past editions, I discussed the arrest to arraignment process, bail, and what it’s like as to visit a jail as an attorney/legal intern).
Today, I circle back to jails in a tangential way. It is hard to know where to begin when it comes to discussing U.S. jails because there are so many intersectional issues, such as politics, racism, and the criminalization of poverty, protest, mental illness, and addiction, and there are just so many jails, over 3,000 of them to be exact.
So, I will begin with what I saw and experienced as a brand new state public defender as an entry point. It feels incomplete and inadequate, but it’s a start nonetheless.
Before I begin, I feel compelled to share the following premise: Our city, county, and state jails are used by those with racial, economic, and/or political power to lock away those we fear, despise, cannot and want to control, and/or do not understand.
Jails do not have anything to do with public safety or protection. They don’t. In fact, many studies show incarceration makes us all less safe in myriad ways.
As Dr. Eric Reinhart posited:
In the context of US racial inequalities and an unequal criminal legal system, we must ask this: Who is included in and who is excluded from “the public” of existing public safety rhetoric—that is, who is prioritized and who is sacrificed in the name of safety for some, whose short-sighted particular interests are falsely represented as universal interests?
Indeed, if we cared about public safety for all, we would transform who and what we mean by leadership, actively engage all stakeholders from all of our communities to identify needs, generate and/or cultivate ideas for a different, more equitable society, and meaningfully invest in communities through anti-racist, justice-oriented reparations and legislative and legal reform (or re-form—meaning go back to the drawing board and start anew). We would invest in universal access to housing, health care, mental health care, education, trauma interventions, restorative practices, violence interruption, small business support, basic income, and other such human-dignity, self-determination centered actions (I am sure I am missing many more examples because of my own ignorance and privileged worldview).
Instead, we prioritize and enable law enforcement, the criminal legal system, and carceral facilities, especially jails.
To begin the conversation about jails, I am going to share with you a portion of an email I wrote to a mentor of mine while serving as a brand new state public defender in the midst of the pandemic.
While it may seem off-topic, I think my email sets the scene, from a newbie public defender’s perspective, of what is happening in our criminal legal system, particularly with misdemeanors, and, thus, in our jails.
For context: I was living in a small, remote island community hit extremely hard by the pandemic.As a new attorney, I was responsible for the misdemeanor docket in the equivalent of county court defending clients charged with state-level offenses. Because of the free exercise of prosecutorial discretion to charge even the smallest of offenses, despite being in the middle of a devastating pandemic, the jail was full and our caseloads in the public defender office were growing steadily.
Misdemeanors are offenses for which people could be sentenced to less than one year of incarceration if they were found or pleaded guilty. In that state, misdemeanors include offenses such as theft (below a certain dollar amount), disorderly conduct, possession of drugs for personal use, simple assault, and driving under the influence. In addition, the state made the violation of a court order its own misdemeanor, separate from the underlying charge, e.g. assault or DUI.
For example, my client was arrested and charged with assault. During the arraignment and bail hearing, the judge ordered (over my objections) my client to pay bail and to adhere to certain rules, including having no contact with the alleged victim of the assault (which meant he could not return to his home until further notice) and prohibiting him from possessing or consuming alcohol (despite being physically dependent on alcohol, thus requiring medical assistance to safely withdraw from alcohol). He was released 24-hours later after posting his bail.
Two days later, my client was stopped by the police as he walked out of a local liquor store holding a paper bag containing a bottle of vodka—a bottle he purchased. The police happened to be driving by as my client exited the store and spotted him carrying the brown paper bag. They stopped him, opened the bag, checked his ID, and noted that he was under a court order not to possess or consume alcohol.
My client was then arrested, booked into jail, charged with, and arraigned on another separate misdemeanor for violating the court order prohibiting him from possessing or consuming alcohol. On that day, he became my client twice over: (1) for the underlying assault charge, and (2) for the violation of a court order.
This time, he remained in jail for three days because he could not afford bail. The correctional officers had to monitor my client’s alcohol withdrawal to ensure he did not require immediate medical intervention as can happen when a person has a physical dependency on alcohol. Though he got the tremors, he needed no other intervention.
When he was released, the cycle began anew. At this point, my client was innocent until proven guilty of the alleged assault, yet he has already spent three days in jail and counting. Over the course of the next two months, while we awaited both the resolution of my client’s case and my client’s admission into substance abuse treatment, he became my client five more times—all for allegations that he possessed or consumed alcohol in violation of a court order.
Eventually, though he contested the assault charge and we were still waiting for evidence in the case, my client asked me to enter into a plea negotiation with the prosecutor because he needed to stop the cycle. The instability and stress was exacerbating his addiction which compelled him to drink and in turn caused another arrest—and so the cycle went. My client was willing to accept the many collateral consequences that would come with a guilty plea just to stop the arrest-jail-bail cycle.
This is but one example of many. It was in this context that I wrote to my mentor the email below four months into my work as a public defender.
The (slightly edited) email:
Misdemeanor cases move faster, people are usually in crisis, and misdemeanors change lives. Why is this a training ground for brand new attorneys when the stakes are so high, even if those stakes differ from those of felony cases?
Everything about this system is infuriating, outrageous, and degrading. I am disgusted by the way the prosecutors, judges, and others in the system talk about my clients as "offenders," completely disregarding their humanity and the very real struggles they face every hour of every day.
Judges, prosecutors, pretrial officers, and law enforcement act as if checking the box on a court order prohibiting my client from consuming or possessing alcohol all of a sudden eradicates three generations of alcoholism in the family. When my client inevitably violates that condition of release, sometimes to prevent the onset of alcohol withdrawal that could kill them (no detox center in my town), theyare spoken about as if they are either willfully disregarding the court’s orders, or are without possibility of rehabilitation, never acknowledging the untenable position my client is in—choosing between their health (and possibly their life) and their compliance with a court order.
I said to just today—imagine, if the courts could heal addiction by checking a box on a sheet of paper, there would be lines out the courthouse door. No one I have encountered to date wants to live in the throes of addiction. But, to the court, it's a personal failure not a public health crisis or medical issue.
Meanwhile, my client accrues 3, 4, 10 violations of conditions of release, each their own separate misdemeanor. I have people who are my clients TWELVE times over. Why? Because she is an alcoholic, she has a court order prohibiting her from drinking, we live in COVID times, and it takes months to get someone into treatment due to procedures and waitlists.
My clients have often lived through and survived more than the people judging them ever have, and yet my clients persist. They go on. My clients have to find places to stay, meals, clothing and are still able to make their court-ordered appointments on time. God forbid they miss an appointment with a pretrial enforcement officer. Clearly they are defying the court. No, clearly they are fighting to survive. The biggest decision I had to make today was sweats or jeans. My client had to choose between bus fare to comply with a court order and a meal.
When I hear that my client is a danger to the community, my answer is—actually, we are the danger. What we are doing right here is making the community more dangerous. When we make it impossible for a person to catch their breath, root themselves, gain some stability without the government breathing down their neck and throwing them back into jail every time they “mess up,” we cause them to lose jobs, children, benefits, and many other forms of security. Families disintegrate.
WE are creating this cycle of violence. WE are making our communities more dangerous every time we undermine a person's stability. Every time we make them feel sub-human. Every time we judge them on past actions without any consideration of how far they have come. Every time we release them from jail or prison with nothing but the clothes on their backs—no support, no housing, just a rap sheet. It is the cruelest game of chutes and ladders there is. WE make that so. Not our clients.
A heavy caseload means I know my clients less well. It means I don't get to listen between the lines, to pick up on all the layers of what is happening. A heavy caseload means that I make a person who feels invisible and under a microscope at the same time continue to feel like they are not cared for or valued, even by the person who is supposed to be in their corner, regardless of what they have allegedly done.
A heavy caseload means that I make it constitutional for the government to crush my client. I am present and "effective" because I showed up after having talked to my client once or twice. Just enough to absolve the government of crushing my client.
Turns out, I am not a fan of serving as the government's absolution for destroying communities and then blaming the community for its own destruction. I feel complicit every day.
I could rant and rave all night long, and frequently do. The misdemeanor calendar—it breaks my heart every single day as I stand with my clients who are fighting for their lives.
Thank you for reading. Until next time!
I intentionally include myself in the “we” because I, as a white, middle-class, highly educated, heterosexual cis-gendered woman, benefit each day from these systems and structures as they stand even as I work on and outside myself to make change.
For example, take a look at a report out of Suffolk County, Massachusetts where the “presumption of nonprosecution for a set of nonviolent misdemeanor offenses had  beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates.” Amanda Y. Agan, Jennifer L. Doleac, and Anna Harvey, “Misdemeanor Prosecution,” National Bureau of Economic Research (March 2021), available at https://www.nber.org/papers/w28600. See also Eric Reinhart, “How Mass Incarceration Makes Us All Sick,” Health Affairs (May 28, 2021), available at https://www.healthaffairs.org/do/10.1377/forefront.20210526.678786/; “Punitive Excess,” The Brennan Center for Justice, available at https://www.brennancenter.org/series/punitive-excess; Don Stemen, “The Prison Paradox: More Incarceration Will Not Make Us Safer,” Vera Institute of Justice (July 2017), available at https://www.vera.org/downloads/publications/for-the-record-prison-paradox_02.pdf
Reinhart goes on to state: “With this in mind, I propose two intertwined emphases for reframing public safety: “carceral-community epidemiology” and the meaning of violence and government’s responsibility to protect communities from it.” Eric Reinhart, “How Mass Incarceration Makes Us All Sick,” Health Affairs (May 28, 2021), available at https://www.healthaffairs.org/do/10.1377/forefront.20210526.678786/
I lived on a small, remote island in Alaska with a permanent population of approximately 12,000. It is an island where the trauma and violence of colonization is still evident—the remnants of a World War II internment camp for Aleutian people, the landless Native Alaskan communities, and the only Native Alaskan reserve in Alaska (Metlakatla). Fishing, logging, and tourism—all industries deeply affected by the pandemic—are the primary sources of income, so naturally island residents experienced unprecedented unemployment and financial distress over the last two years. As a result, the island saw a surge of substance abuse and drug overdoses, violence in the home, homelessness, and mental health crises. At the same time, the island has minimal resources with one small overnight shelter, minimal access to mental health care, one very small rehab center, and no detox center. In sum, the community was suffering, people were dying, and our caseload at the public defender was growing rapidly.
As opposed to actions by Suffolk County District Attorney Rachel Rollins and Baltimore City District Attorney Marilyn Mosby, both of whom discovered that nonprosecution actually helped the community and disrupted recidivism before it began. See Amanda Y. Agan, Jennifer L. Doleac, and Anna Harvey, “Misdemeanor Prosecution,” National Bureau of Economic Research (March 2021), available at https://www.nber.org/papers/w28600; Saba Rouhani, Catherine Tomko, Noelle P. Weicker, Susan G. Sherman, “Evaluation of Prosecutorial Policy Reforms Eliminating Criminal Penalties for Drug Possession and Sex Work in Baltimore, Maryland,” Johns Hopkins University (Oct. 19, 2021), available https://publichealth.jhu.edu/2021/baltimores-no-prosecution-policy-for-low-level-drug-possession-and-prostitution-finds-almost-no-rearrests-for-serious-offenses.
I will circle back to these issues in upcoming editions. For now, I will simply state that my client decided that he was ready for treatment, however the process of getting his assessments and applications completed, along with the significant waitlists at every facility meant that it would take us, at minimum, three months to get him into a program.
I intentionally use they to be inclusive of all gender identities.
Thank you for the perspective, Amy. Your frustration and arguments come through.
Wondering if you have ideas on small steps we can take, including how people like me, who don't deal with problems like addiction, can become better allies? I think there are a lot of people out there who can take in what you say and want to change it, but don't know how. This feels cultural and generational.
Do you have any positive examples you can share in a future post?