70 Million

Are Some of the Formerly Incarcerated Owed Reparations?

Episode Summary

To close out season one, we invited two legal experts, Christina Swarns, President and Attorney-in-Charge of the Office of the Appellate Defender in New York and Scott Hechinger, Senior Staff Attorney & Dir. of Policy at the Brooklyn Defender Services, to look at what it would mean for the United States to provide financial reparations for individuals who have spent most of their lives behind bars. Moderated by 70 Million’s creator and executive producer, Juleyka Lantigua-Williams, the discussion considers current and plausible pathways to bring reparations, restitution, and other types of restorative justice to the formerly incarcerated.    

Episode Notes

To close out season one, we invited two legal experts, Christina Swarns, President and Attorney-in-Charge of the Office of the Appellate Defender in New York and Scott Hechinger, Senior Staff Attorney & Dir. of Policy at the Brooklyn Defender Services, to look at what it would mean for the United States to provide financial reparations for individuals who have spent most of their lives behind bars. Moderated by 70 Million’s creator and executive producer, Juleyka Lantigua-Williams, the discussion considers current and plausible pathways to bring reparations, restitution, and other types of restorative justice to the formerly incarcerated.    

Episode Transcription

Mitzi Miller: If you've been listening to 70 Million and feel inspired to get involved, grab some of the useful resources on our site, 70millionpod.com. There you'll find syllabi, episode transcripts, toolkits for modeling reform efforts, and scores of online links from our partners. We've made it easy for you to keep learning about criminal justice and become active in the reform. 

70 million adults in the United States have a criminal record. I’m Mitzi Miller and this is 70 Million -- an open-source podcast about people, and communities, taking on the broken criminal justice system. This season, we'll chronicle how local jails compound the problem, and what residents are doing about it. 

Montage: “Here I am with the judges and attorneys and, you know, police officers...” 

You can have the most beautiful resume and they’re still going to label you as a felon.”

“I wanted to be able to, to dig in, roll up my sleeves and figure out what could be done about this issue.”

You’re not letting us be human, like, you’re not letting us just be regular girls.”

For 20 years all I heard was shut up inmate. And now all of a sudden I have a voice.” 

Mitzi: For our last episode this season we thought we'd switch things up a little bit and bring you a conversation that tackles a big idea. We wanted to look toward the future and at the same time to reflect on what we've learned about the criminal justice system in the first nine episodes of the podcast. So, we wanted to ask a question that's kind of a logical extension to a lot of the reforms we've been exploring so far. What would it mean for the United States to provide reparations or restitution for people who've unjustly spent part of their lives behind bars? This one question of course brings up other questions. What form would it take? Who would be eligible, who would pay, and how? To help us take on this thorny discussion, we reached out to two brilliant legal minds. I'll let them introduce themselves. 

Christina: I'm Christina Swarns. I'm the Attorney in Charge of the Office of the Appellate Defender in New York City. Before I came to OAD I was the Litigation Director for the NAACP Legal Defense Fund, and while I was there, I represented a man named Duane Buck, whose case I argued and won in the United States Supreme Court. 

Speaker 4: I'm Scott Hechinger, I'm the Senior Staff Attorney and Director of Policy at Brooklyn Defender Services, a public defense firm representing about half of everyone arrested in Brooklyn, 35 to 45,000 people a year. I bridge the gap, so I'm both in court but also work on policy and so try to elevate the stories of my clients and elevate their voices to have broader impact. 

Mitzi: We also recruited the creator and executive producer of 70 Million, Juleyka Lantigua-Williams, to help guide this conversation. She's been writing about criminal justice for years and her commitment to educating the public and keeping the dialogue open is always on full display. Oh, and she loves a good debate. Now, here's Juleyka, Christina and Scott. 

Juleyka: Hi Christina, hi Scott. 

Christina: Hi, Juleyka. 

Scott: Hey there. 

Juleyka: Thank you so much for coming today. 

Scott: Thank you for having us. 

Juleyka: I know you guys are super mega busy, so I really, really appreciate your time. Our conversation, sort of like our prep conversation, just gave me so many things to think about and so I still want to sort of look at what would a restitution or reparations for the formerly incarcerated look like? So we'll start sort of like with the question of, has this ever been done before? 

Scott: Do you want to take, get us started, Christina? 

Christina: Well, yeah, sure. I'll jump in. I mean, the straight answer to the question is, there's certainly compensation sometimes for people who have been wrongfully convicted, and of course I say sometimes because in many instances there's not even that. But there's certainly some opportunity sometimes for people who have been wrongfully convicted. I think, though, your question is broader than that and it's really about whether there is some form of compensation or some form of redress for the harms caused by the larger criminal justice system and not just for individual cases of injustice. And to the broad question, the answer is no. Right, Scott? 

Scott: That is, that's right. And I'm glad that you opened it up kind of broader because when people think about reparations, but they don't call it reparations, they think about, kind of, settlements or you know, wrongful exonerations after 15 years and then making someone whole. It's definitely important to repay those people for the time that they've lost and help them get on their feet. And like you said, it's extremely rare, but the system itself has way more everyday injustices. The things that drive mass incarceration that have a violent--or a component of state violence. We tend to pay attention to the really visible, really loud, really horrific injustices like wrongful convictions, like extrajudicial killings. But we don't focus as much on the fact, like today I had a client who'd been incarcerated for the last year on bail that he can't afford. So he's incarcerated solely because he can't afford to buy his freedom. And he met his two-month-old son for the very first time in court. I got the court officers, they were nice enough to allow his wife with his two-month-old son to sit in the front row and he was very embarrassed. He didn't want to show his son for the first time that he was meeting him in shackles and so he was trying to hide them and kind of whispering, I love you, I love you. That kind of trauma. You see that all the time. Or just the fact that my 19-year-old client is terrified to walk to his corner deli for fear that he's going to get stopped and frisked again. Just the fact that someone who is released on their own recognizance, not locked up in jail, but forced to come back to court time and time again on a low-level crime that shouldn't be a crime in the first place is forced to spend her dinner money on round-trip metro fare to spend the entire day sitting in court with people who all look like her, is not even allowed to read and watches as name after name gets called this kind of assembly line justice. Um, and that kind of thinking about the expressive harm, the expressive violence that causes. So I think it's really important at this time in our conversation about mass incarceration to be thinking about broadening the scope of making people whole again. What does that mean, but also who should be repaid?

Juleyka: That's a lot, for example, to put on a ballot initiative, right? Because I'm thinking this is going to require massive amounts of organizing and massive amounts of educating and then ultimately it will require people to go and vote for some of these measures that could really redress, like you said. And so let's scale it down a little bit. Christina, I'm going to go to you and ask about, how would we even begin to calculate the damage that someone who has been incarcerated for multiple decades of their lives has sustained and then from that individual out to his family and then out to the larger community and beyond?

Christina: I mean, listen, that's done a lot in civil courtrooms, you look at somebody's career opportunities and the lost opportunities, you know, for the time that they were away. What they could have done, what they could have earned, you know, all the things that could have happened during the time that they were away. And you can calculate it. 

Scott: Civil juries also do award money for emotional harm.

Christina: Exactly. 

Scott: So there is a way to measure that. 

Christina: But, you know, that's just the beginning of the story here, right? And that we know that because there are so many collateral consequences that flow from incarceration to community, beyond an individual. So there's a stigma attached to people who have had any contact of any kind with the criminal justice system, right? There's a stigma on communities who are over-policed, and sort of brushed with this swath of criminality, right? You've sort of been touched with the criminal justice system. So it's hard to calculate, how do you get to that? How do you get to a community who has less opportunity for employment because they are perceived as more likely to be criminals simply because of race, because of poverty, because of gender. Those lost opportunity costs, the loss of access to education. We have all of these collateral consequences. Let's say you have a felony conviction, you know, you can't have a student loan, you can't have a license, you can't do all of these things. And so these are all of the kinds of broad harms that are imposed upon people in the system that would have to be, you know, assessed and determined what the cost of that is. And in a macro sense, not just per individual, because really what we're talking about at this point is a generation of people who have been swept into the criminal justice system and what is the loss of an entire generation, at least, of people. 

Scott: Yeah. I think what you're bringing up is this idea of aggregate harm and aggregate injury. You can--it's easy or it's possible to be able to measure how much, in money, you know, 18 years incarcerated is. So John Thompson, for example, who was incarcerated for 18 years on Death Row, was seven times almost put to death, was paid by New Orleans, $18,000,000. Well, New Orleans DAs appealed it. It went all the way up to the Supreme Court and found that even in a case like his where there was a clear, what looked like intentional violation of withholding evidence, the Supreme Court still overturned his jury award. And this is an amazing guy who was dedicated to helping folks re-enter society coming out of being wrongfully convicted on Death Row. And he was going to give all that money to his organization and it was taken away from him. I just remember, though, what he--I met him and what he said to me was that just hearing Ruth Bader Ginsburg, a Supreme Court Justice, read her dissent from the bench and tell his story was as good as getting that money. Having his story he told was as important. So I think that then ties into, what form can reparations take? Like, we can pay people back. Again, it's easier from the individual standpoint than communities. But there's other ways, and I think legal ways and practice ways, to be able to do what I think reparations are for in large part when you look internationally, which is both: increase accountability for the actors that are perpetrating the bad stuff and also enhancing agency for the people who are victimized. So as a public defender, I'm really glad that we're starting to talk about the people who are arrested, so, the accused. People who previously were thought of as being these, like, kind of, scary criminals, as victims because they are. And you know, what I see is every day the system is really designed at this point, not even designed, it's more in practice, it suppresses stories, suppresses the individual through guilty pleas and through all kinds of other forces that intersect to drive guilty pleas and deprive people of their day in court, both in criminal court and civil rights court, but it also insulates bad actors from any kind of accountability. And so to your point, Juleyka, just thinking about, you know, is this something that we could put on the ballot? The truth is yes. If you break down the system into the sum of its component parts, you can actually focus on individual practices, but also laws that can not only provide prospective redress, but in that process give people the good sense that their tragedy and their horror and their pain did not happen in vain. 

Juleyka: So I'm thinking, of course, of Florida, because Florida is about to have a ballot measure in which they can decide whether or not to re-enfranchise over a million formerly incarcerated folks. And it's quite controversial. So is this a type of redress that you're both thinking about? 

Christina: Absolutely. There's no question about that, right? The criminal justice system has said that, you know, once you have been involved, we're going to remove you from civil society. That is the disfranchisement, totally rooted in the history of--the racial history of this country, and slavery and post-slavery. To keeping black people, frankly, out of the civil society, out of power structures. Absolutely. Um, so yeah, to the extent that we're able to undo those laws and allow people full and equal access to the franchise and access to, for the power structures and in the decision making, then that is a significant way of re-empowering people and putting people back where they should have been in the first place. 

Scott: Right. I mean it's--there's 47,000 laws of restriction that keep people who are criminal justice involved, not just coming out of prison with convictions, but just arrested, accused. The franchise is one of these things that just gives this really important sense that: I am not marginalized. I'm not the other. I am part of this society. Which can go a long way to stemming this cycle of crime, rearrest. For those that are interested in public safety, it can drive down recidivism. It's something that I'm really excited about happening, but there's other things that are, again, in court, that are happening in court that people can push their district attorneys who are elected to do and the new elected officials coming after November to do. Things like, for example, ending cash bail, ensuring that people are not locked up solely because they can't afford to buy their freedom. 

Juleyka: So let's talk a little bit about money because bail is one form of shackling folks to the legal system. But then we have this thing called LFOs, which is not a very sexy acronym for legal financial obligations. And I have, you know, in the course of writing about criminal justice, interviewed people who have basically taken themselves out of the labor economy so that they could fight against tens, sometimes hundreds of thousands of dollars in legal obligations after they have already served their complete sentences. So what do we do with this? 

Christina: You know, listen, this is a topic we could probably spend a day on, right? We had an entire justice system in Louisiana structured around, paid on the back of fees and fines. Literally. 

Juleyka: Yep. 

Christina: So there was a perverse incentive, if somebody came in to make sure they wound up with a fee and a fine because that was what was driving, you know, paying for the cost of the actual system itself. It is insane. Right? This is poor people, you know, people who have the least ability to pay for this and have served their time, as you have pointed out. You're being asked to pay for--people have been asked to pay for time in jail. People are being asked, you know, to pay for their probation. They're being asked to pay for drug treatment. They're being asked to pay for electronic shackling. They're asked to pay for literally every piece of their contact with the criminal justice system. It is literally paying for your own incarceration and you know, control by the criminal justice system. 

Scott: You're also paying for your public defender.

Christina: Absolutely. 

Scott: Which is really odd considering that there's a 6th amendment right to have a lawyer. It isn't for the full amount. It isn't like my hourly wage. There's like a certain amount of money, but it's a tax for the system. 

Juleyka: Ok, so let me give you a really concrete example of an institution, right? Because as I hear you talk, my recurring question is, well, who pays? Who gets to figure out what is owed and who gets to write out that check if it's in the form of a check, right? And we've talked about other, different forms of restitution, reparations, but let's talk for example about Georgetown University, which has been in the news recently because your sister, Christina, broke this unbelievable story. So can you give us a recap of the story and then we'll go from there. 

Christina: Sure. So once upon a time, Georgetown University, a Jesuit institution, back in the time of slavery owned slaves. That was not uncommon for a university or a insurance company or any kinds of, any sorts of businesses, but Georgetown came upon some hard times and then what they decided to do to reestablish their financial stability was to sell the slaves that they had. And so they sold them down into Louisiana, into the south. And that bought them the financial stability they needed to continue. On the backs of this sale, Georgetown goes on to this extraordinary university that we now know it to be, but it also, you know, has this reputation as being a Jesuit institution, formed with all of these substantial values around, you know, human rights and justice. And this little known fact is that it became what it is today on the backs of the sales of these actual human beings. So my sister writes the story and she actually finds those, the descendants of the people that Georgetown sold, and not surprisingly, they are not doing quite as well as Georgetown did. Their road did not turn out quite as rosy as Georgetown did. You know, these are people who have struggled for years in the wake and the baggage that is--that we carry as African Americans in this country. And they've struggled. They certainly would never--the descendants would never have had the ability to pay for a Georgetown education. They don't have the ability to access a Georgetown education, and so once the story was told, Georgetown to its credit, is beginning to take steps to initiate a form of reparations to those families, offering their direct descendants entree into the institution. And so it's a fascinating story, I hope. It is the first of those stories because there's a lot of other colleges, universities and other businesses that could probably follow suit, that need to follow suit. But it is a very fascinating current story of reparations. 

Juleyka: So might a model like this work in the context of criminal justice reform? 

Scott: I think there's a lot of parallels. I mean, if you think about mass incarceration, this line that so many people have talked about, but kind of leading when Bryan Stevenson directly from slavery to mass incarceration, our current system is built on the backs of people of color only living in certain neighborhoods. And the system survives. It's an industry that--the bail bonds industry relies on the currency of the incarcerated court officers, and NYPD officers and the courts and prosecutor offices rely on the volume of cases that are coming through and the vast majority of people that are coming through are, I won't even say people of color. They're largely black or Latino. And again, they only come from certain neighborhoods. And so one way to potentially--it's kind of access in the reverse, is shrink the system and by shrinking the system, save resources that then are redirected back into the communities that had been ravaged by the war on drugs and by broken windows. So I think a great example is what's happened in the conversation that's happening right now around marijuana. There's a move for legalization of marijuana in New York. The first step has been certain DAs, so Cy Vance in Manhattan and Eric Gonzalez in Brooklyn, starting to decline to prosecute the vast majority of marijuana offenses in the NYPD, stopping arresting the majority of marijuana offenses because 92 percent of the people who are being arrested are black or Latino. And the next step is what's called the marijuana Regulation and Taxation Act. Not only would it legalize marijuana, but it would take the taxes from the new industry and redirect them into the communities for community redevelopment. And it would also prioritize licenses for those who are going to be starting dispensaries and taking part of the industry to communities and people, or people in communities who have been ravaged by the war on drugs. 

Christina: I would just add that the third piece of that needs to be the people that are locked up now on marijuana charges. We have no shortage of people in, you know, in state prison doing time on marijuana charges. And that money that would have been spent to keep them custody could also and should also be re-diverted into the communities as well. 

Juleyka: Okay. So let me play devil's advocate a little bit here because we have seen in the last couple of years, there is a much bigger societal acceptance of this movement towards decarceration, and state by state everybody's trying something new, something different, something innovative. Studies have shown that incarcerating people does nothing for the actual crime rate. We are experiencing the lowest rates of crime across the country we have ever experienced since the seventies, right? And so let's just make that super clear. Do we need reparations or do we need something more akin to reconciliation, a movement to sort of acknowledge the damage that has been done versus trying to assign a material value to that damage? 

Christina: So I don't think this is an either/or question. I think you need both, is the short answer. You know, when you harm somebody, this is sort of a thing that is a little subtext going on in the criminal justice community and also restorative justice, this idea of making someone whole is not just like putting bandaid on my black eye, right? It is pursuing real justice, honest justice in the philosophical sense. Identifying, owning what harm you have caused, owning that and fixing it. There are two pieces of this story. This is the South African story. This goes back to, in the wake of apartheid, the policy, the practice that they came to was, you needed both truth and reconciliation. You needed--the reconciliation doesn't work without the truth. And that is the piece that we have to have in this country to deal with what happened with, you know, the criminal justice system here. 

Scott: Even if we were able to, it's not an either or. So even if we're able to fashion a way to actually repay people in monetary terms, I'm not sure that would be enough. I don't think that would be enough deterrent for the actors on the ground driving mass incarceration. I don't think it would wind up deterring the police on the ground as long as they're emboldened by these laws that criminalize basically everything from stopping doing what they're doing. So I think Christina is absolutely right. You need both to have that full sense of agency, that full sense of being able to heal, but also that accountability mechanism so it just stops. 

Juleyka: All right. Parting thoughts? Anything that you want us to walk away with as we contemplate and talk about, what is my individual role? Is it me as the voter? Is it me joining a volunteer organization? Is it me going out when there's a next Black Lives Matters march? Any parting thought about how I as an individual just listening to this podcast could possibly impact these incredibly important issues that we've been talking about? 

Christina: Yes, yes, yes. Do all of those things. 

Scott: All of the above. 

Christina: I want you to do all of those things. I think the main thing I always say is, you know, it's easy to want to shut your eyes to the criminal justice stuff because it's hard, right? It's very hard to look at and it's hard, it's all, I mean, I've said 100 times, I want to take a vacation and I used to joke, I'm going to just take a vacation at Bloomingdale's. I'm just going to walk through Bloomingdale's because that's where people, that's all they're doing there is like buying nice things. Like there's no sadness.

Scott: Getting sprayed by…

Christina: Yes, right! That's it! Like your worst fear in Bloomingdale's is that you're going to get hit by the spray lady, right? 

Juleyka: Hey, it's called spritz. 

Christina: So, I get it. Totally get why people don't want to engage in this. But if we're really going to talk about justice in this country, if we're really going to really talk about, you know, racial justice, economic justice, mental health. This is the place, this is the frontline of the civil rights movement today. And so anyway you can get involved, we need you, right? You can work in a homeless shelter, you can, you know, all of those are inroads to the criminal justice system: homeless shelter, work volunteer for one of our offices, right? Go to law school, be a social worker. I mean, there are endless ways of touching the system and making a difference, but do one of them. 

Scott: The system can seem really overwhelming, overwhelmingly bad, overwhelmingly complicated. Mass incarceration, you can't just like end it in one fell swoop. And so a lot of people, they do put their heads in the sand because they don't know what to do. And I just would encourage people to keep their eyes open, but also learn and pay attention to the issues that are lesser known and lesser visible, lesser talked about. Continue paying attention and call for justice for extrajudicial killings and the treatment of people by police and continue calling to reduce incarceration and make prison conditions, if prisons are going to be around, way better. But focus also on what is happening in the middle in court. There are all of these issues that seem like lawyers only know wonky, boring things like bail, like criminal evidence laws, like mandatory minimums, like Civil Rights Law 50-A. That sounds super boring, but it actually is the law that protects police records from any kind of transparency, one of the three worst laws in the country. And my office, and I'm leading the charge to start up actually a kind of a hub, an activation point by public defenders and our clients to talk about these issues, to teach people about them, but also to elevate the voices of the people directly impacted. The website is indefenseof.us.

Juleyka:             Thank you Scott. Thank you Christina. It's been wonderful. 

Scott: Thank you so much for having us. 

Christina: Thank you. 

Juleyka: And we're out. 

Mitzi: We want to say a huge thank you to each and every one of you, those who've been with us since we launched and those who just joined us. We know many of you have talked about the series and shared episodes with people who also care about these issues. Some of you are using 70 Million in your classrooms and some may have been inspired to get involved in reform efforts in your neighborhoods and cities. We'd love to hear all about it. Send us a note to hello@70millionpod.com. As always, you can find us online, at 70millionpod.com. It's been our privilege to report these stories for you. Thank you to everyone who wrote us, posted on social media, and supported the podcast in big and small ways. You inspire us to work hard every day. 

70 Million is made possible by a grant from the Safety and Justice Challenge at the John D. and Catherine T. MacArthur Foundation. The podcast is a production of Lantigua Williams & Co. It's edited by Jen Chien and mixed by Luis Gil. Our associate producer is Oluwakemi Aladesuyi. Our marketing specialist is Kate Krosschell. Nissa Rhee is our resource guide writer. Juleyka Lantigua-Williams is the creator and executive producer. I'm Mitzi Miller. 



Lantigua-Williams, Juleyka. “Are Some of the Formerly Incarcerated Owed Reparations?” 70 Million Podcast, Lantigua Williams & Co., October 29, 2018. 70millionpod.com