There's a bright line, direct nexus, to slavery—the idea of using the law as a way to control the race, and to continue the dehumanization and the brutality.
What is actually happening inside this country's thousands of prisons and jails? We get occasional glimpses—often terrifying ones—but collectively it's as if we don't want to hold our gaze for long. And this applies to criminal justice reformers as well. With so much of the energy now on keeping people out of jail and prison, it can feel like there's a reluctance to work on improving life for the more than two million people already there.
But one group beginning to mobilize on this front is prosecutors—or at least prosecutors of the more “progressive” variety. On this episode of New Thinking, Baltimore State’s Attorney Marilyn Mosby and Washington, D.C., Attorney General Karl Racine sit down with host Matt Watkins to explain why, as it’s prosecutors helping to send people to jails and prisons, it’s incumbent upon them to advocate to improve the often dire conditions in those same facilities.
The two top prosecutors also explain what they learned on a recent tour of European prisons—Mosby notes, “you can't help but appreciate that these folks have gotten it right”—and the “bright line” running from the overt racial control in America’s past to the disparities and dehumanizing practices inside jails and prisons today.
Mosby and Racine were part of a recent international summit at the Center for Court Innovation on ‘Humanizing American Jails and Prisons.’ The event was held with funding from the David Rockefeller Fund and the Langeloth Foundation.
Resources and References
- 'Cruel and Unusual Punishment: When States Don’t Provide Air Conditioning in Prison,' Prison Policy Initiative (06.19)
- 'Can Prisons Change? Arnold Grants $17M to Spur "National Conversation" on Reform,' The Crime Report (05.19)
- 'Alabama’s Gruesome Prisons: Report Finds Rape and Murder at All Hours,' The New York Times (04.19)
- The New Yorker's Jennifer Gonnerman on living, and dying, on New York City's Rikers Island: 'Do Jails Kill People?' and Steve Coll on the larger 'Jail Health-Care Crisis' (02.19)
- 'Cleveland Judge Refuses to Send Low-Level Defendants to Jail After Inmate Deaths,' The New York Times (10.18)
- 'Reimagining Prison,' Vera Institute of Justice (10.18)
- Historian Heather Ann Thomson, 'How a South Carolina Prison Riot Really Went Down,' The New York Times (04.18)
- 'Why US Inmates Launched a Nationwide Strike,' CNN (10.16)
- 'Baltimore vs. Marilyn Mosby,' The New York Times Magazine (10.16)
The following is a transcript of the podcast:
Matt WATKINS: Welcome to New Thinking from The Center for Court Innovation. I'm Matt Watkins. What is actually happening inside this country’s thousands of prisons and jails? We get occasional glimpses, often terrifying ones, but collectively, it's as if we don't want to hold our gaze for long. And this applies to criminal justice reformers and funders as well. With so much of the energy now on keeping people out of jail and prison, it can feel like there's a reluctance to work on improving life for the more than 2 million people already there.
But one group beginning to mobilize on this front is prosecutors—or at least prosecutors of the more "progressive" variety. And I'm delighted to be joined by two of those prosecutors now, both here at the Center for a summit we're hosting on humanizing jails and prisons: Marilyn Mosby is the state's attorney for Baltimore, Maryland, and Karl Racine is the Attorney General for the District of Columbia, otherwise known as Washington, D.C.
State's Attorney Mosby, Attorney General Racine. thanks so much for joining us today.
Karl RACINE: Thanks for having us.
Marilyn MOSBY: Thank you for having us.
WATKINS: So, I thought I'd start by asking each of you maybe to give us as unvarnished a view as possible of the kinds of conditions that are found right now in your jurisdictions. Marilyn, for example, I heard you saying yesterday that you'd taken some of your staff to visit some state facilities and the experience had been, I think your quote was, “extremely heavy.”
MOSBY: No, it was extremely heavy, and I think it's really important for prosecutors. We're the ones that advocate, we're the ones that actually go in and make a recommendation for sentences, but oftentimes we have no idea how the conditions of confinement actually are. And so what I thought was really important, I brought my whole entire executive team and I intend to try to collaborate with the Department of Public Safety and Correctional Services to also include my baby prosecutors.
At the end of the day, we should know what our recommendations, what our advocacy is actually doing—not only to the individuals, but we should understand the impact that it has ultimately on public safety. Most of these individuals are coming home. And so I thought it was incredibly important for us to have an understanding and a deeper understanding to know what that discretion looks like and what that impact has on individuals, on families, on communities.
And so we went through every facility throughout Maryland last week, and it was incredibly heavy on my entire team.
WATKINS: Karl, do you want to talk a little bit about what the conditions are like that you're confronting in the facilities where your prosecutors are sentencing people to?
RACINE: Sure. In the District of Columbia, we have a very, very unusual situation given that the District of Columbia is not a state. What that means is that we have two sites or prisons: D.C. jail for adults and a facility for juveniles. The D.C. jail for adults really serves as a jail for individuals who are awaiting trial. That's very important. As well as individuals who have been sentenced to a term of imprisonment of less than a year. The majority of D.C. prisoners are convicted and sentenced to a term of imprisonment for greater than a year, but because we're not a state, those individuals are dispersed through the Federal Bureau of Prisons throughout the country, and so the plight of D.C. prisoners is not good.
Every bit of evidence and research confirms that prisoners who are housed in areas close to the communities from which they came, have a better opportunity to be successful in their reintegration into the community. It's not an exaggeration to say that D.C. adults who were sentenced for a period of over a year may be located as far as Washington State, Arizona, Colorado, Pennsylvania, Florida, and Texas. This is a huge strain on the life of their family members, and indeed of the prisoners.
With respect to the D.C. jail, the D.C. jail has been under court review for some time, particularly in regard to basic conditions. Conditions that include heat in the winter; conditions that include decent air conditioning and ventilation in the summer; conditions related to the amount and frequency with which those prisoners are allowed to spend time outside. And so there's serious concern around D.C. inmates in the D.C. jail and indeed there's a discussion around building a new jail in the District of Columbia.
I've got to say that with respect to incarceration and juveniles, the situation is a lot better. It's a lot better because the juvenile facility has been under court order for darn near 30 years. The court has strictly supervised the D.C. agency responsible for the D.C. youth jail. And I'm happy to report that the number of D.C. youth who are in fact in that youth jail has decreased dramatically. So, things are better on the youth side. But, of course, it should be, because we should care for kids with maximum humanity.
WATKINS: So, jails and prisons are for the most part public institutions. But they're also pretty inaccessible. We don't get a lot of reports out of them, we don't get a lot of data out of them. You guys are both heads of law enforcement in your area, but how easy is it for you guys to know what's actually going on inside the facilities that you work with?
MOSBY: So, I think that first and foremost, there has to be an awareness among prosecutors to even want to be able to go in and gather the information.
WATKINS: Which there hasn't been much of in the past.
MOSBY: Which there hasn't been in the past, and that's one of the solutions to actually trying to humanize confinement. When we're talking about humans, we should really be asking the question: why are we dehumanizing individuals that are humans? Ultimately you're absolutely right. How do we know? I went into the jails, I went into the prisons, and I work with the DOC and the Department of Public Pretrial Services, and essentially some of the prisoners complain that, “hey, they're showing you what they want you to see.”
MOSBY: And having the opportunity to go in, but there has to be an interest. So, I do intend to follow through on my visits after I've gone through with the warden and the secretary. And there were prisoners that said, “hey, come and talk to me. Let's hear what we have to say about the conditions of confinement that we're subjected to.” So, I think first and foremost, there has to be that awareness and there has to be that call for prosecutors to take an interest in it.
WATKINS: And when you expressed this interest, how is it received, say, by corrections officials who might not be accustomed to these questions from prosecutors?
MOSBY: So, I can tell you, at least from my experience last week I was approached by one of the individuals, one of the corrections officers—actually, she was a case manager—and basically stated, “this is the first time that any prosecutor has actually come to this prison.” And we went to every prison that we could, with the exception of super max, and said that this is the first time anybody has even taken an interest in the conditions of confinement for our inmates. And she thanked me for it. And so, I think that this is something that we definitely have to take up. This is an issue that, as you've stated, is impacting people on a daily basis and ultimately has an impact on public safety.
WATKINS: Karl, how do you go about having that impact? I mean, what kind of levers can you pull as a prosecutor to try to improve conditions in these facilities?
RACINE: Well, look. I think what Baltimore State's Attorney Marilyn Mosby did is nothing short of remarkable, and it speaks, frankly, to her unique leadership in the space. If you were to caucus prosecutors throughout the country, my hunch is that less than 3 percent of them have visited the facilities to which they are sending people every day.
WATKINS: That's an astonishing number when you consider it's prosecutors who are sending people to these places.
RACINE: Well, that's right, and there's a little bit of a numbers game in the way that we put things in our mind. For example, when you ask for somebody to go to jail, you might say one year or two years. The fact that you're using the numerical signal one or two may seem slight, but what you're looking at is 24 months. And if you add that up in days, those are a lot of days. And so, what we have to do, I think, as prosecutors is follow Marilyn's lead and understand very well, not only about the places that we're sending folks to, the harm that might flow therefrom, but also the duration of incarceration.
The United States is an outlier in several ways in criminal justice. It's an outlier in the sheer volume of prosecutions. It's an outlier in regards to the mass incarceration that it follows. And the United States is also an outlier in regards to the length of sentences. Nowhere in the modern world, do countries follow the United States in how it incarcerates people. It's time for a change, and part of the barrier to change is the complete opacity, lack of transparency of prisons.
WATKINS: And so is this a matter of where you guys use your bully pulpit as prosecutors to highlight these conditions or there have been a few cases of judges—I think there was one recently in Cleveland—saying, “I'm not going send to any people on low-level charges to this facility anymore. It's too dangerous.” Is that something you think about?
MOSBY: It has to be something that you think about. Prosecutors are the ones who decide who's going to be charged, what they're going to be charged with, what sentence recommendations we're going to make.
Furthermore, the way in which we can actually utilize our platform is to understand and identify those individuals that don't need to be in those detention facilities, those pretrial detention facilities. And we have to be willing to call these conditions out. And then to legislatively advocate for better conditions, and more humane conditions. And you asked for examples. I mean, not in Maryland, we don't have the death penalty, but in some states we still do.
We can advocate for the eradication of the death penalty. We can oppose solitary confinement where individuals are actually housed in six-by-eight cells by themselves for 23 hours a day. That is a problem, and research has already indicated that psychologically this is a problem. This is a method of torture. It's unacceptable. When you talk about increasing the wage of prisoners, advocating for family connections, additional career skills, professional development that transcends beyond the prison walls. Those are all opportunities for prosecutors to step up.
WATKINS: And actually Marilyn, you've made this point a couple of times, this connection to public safety, that improving conditions in these facilities is a public safety issue. That connection is not always clear to people. People tend to think, “oh, the more people we put in jail and prison, well at least we're making ourselves safer,” but I don't think that's the case. You want to make that connection explicit?
MOSBY: In most of these circumstances, these individuals are getting out of prison. To treat them and to dehumanize them and to have an expectation that they're going to come out and then they're somehow going to be able to assimilate back into society when we have now put a scarlet letter, they're walking around with a scarlet letter, is just, it's incomprehensible to me. We have to look at this from the perspective of: how do we ensure that these individuals feel that they can assimilate back into society? How do we ensure that they have family connections and professional skills to be able to properly assimilate? And unfortunately we have not taken that approach as prosecutors. We haven't thought about that.
WATKINS: What are people doing all day in the facilities in your jurisdictions? We know there's plenty of evidence that programming, education has a huge impact on helping people reroute their lives when it's needed, but what's actually going on, on a day-to-day basis in your facilities in that regard?
RACINE: I think that's a great question, and again with D.C., I don't have visibility with respect to the overwhelming majority of adults who are not located in the D.C. jail, because again, they are in the Federal Bureau of Prisons. What we do know is that President Obama hired a very talented educator and named her the Chancellor of Education of the Bureau of Prisons. Well, was only two to three months after Jeff Sessions got into the job where that position was eliminated. Why would you ever not want to educate and/or provide vocational opportunities to the men and women who, as Marilyn Mosby indicated, are going to be released at some point.
WATKINS: And are human beings.
RACINE: And more importantly are human beings. Why don't we take a page from what other healthy jurisdictions, other countries do? They emphasize education, work opportunities, skill attainment, so that those individuals can come back and not only be able to take care of themselves and their families, but have a real good reason to no longer get involved in any criminal conduct.
I can tell you what we're doing in the juvenile space. We at the office of Attorney General, partner with the Department of Human Services and we have a diversion program where we have diverted well over 2,600 kids in the last four years. Those kids have gone into a rigorous diversion program that focuses on family functional therapy, mentoring and guiding, showing young people experiences that they wouldn't have if they just stayed in their neighborhood.
Eighty percent of the young kids who've gone through the diversion program have left it without being rearrested again. These programs are also economically viable. The diversion program costs about $4,000 per kid. Incarceration for a year, or supervision via probation for a year, can run you $35,000 to $75,000. Why not choose the humane approach, the common-sense approach, and the economically feasible approach?
WATKINS: There's a lot of different answers to this question of what can be done to improve conditions, and a big one, obviously as you guys are both doing, is trying to shrink the front door of the justice system from the very beginning. But do you have the sense that part of the answer might be also building new, better, hopefully smaller facilities as well? I mean, as you see New York City's involved in this big debate right now about replacing Rikers. At the same time, you have activists concerned, like, “hey, you're just building new jails and that's going to be more beds and they're going to get filled.” Do you see new, more humane facilities potentially being part of the answer?
RACINE: I think fundamentally the first question has to be: do we need another prison and how much resources are we considering allocating for that objective? Then I'd like to have a conversation about where those resources might be better spent to lead to more decarceration as opposed to mass incarceration.
After we have those conversations, and if there's still a need for a prison, then I think you've got to go smaller and focused on education, on skillset attainment, as well as engagement with that prisoner—man and woman's—family, so that that deprivation of liberty will be the punishment, but that support systems will be in place so they can be successful when, as Marilyn's indicated, they're eventually going to return to society.
WATKINS: A group that can get forgotten in this discussion somewhat is corrections officers. Marilyn already mentioned speaking to a corrections officer who was very grateful for the fact that she was even showing interest in these facilities, but it's often said that everybody's serving a sentence in these facilities, including corrections officers. We know they have problems with alcoholism and trauma. How much do you see this as also being an issue for them as well?
MOSBY: So, I think it's definitely an issue for corrections officers. These are individuals that are working in these conditions. I think that there's a historical context that we have to also take into account when we talk about the “us versus them” mentality that is very much instilled, not just in corrections officers, but in our idea of criminals. When we think about why we've been able to dehumanize individuals from the very beginning and the outset of even the abolition of slavery, we cannot ignore the legacy of tolerance that we've had for racial inequality and the brutality of slavery. We can't ignore the 13th amendment, which has pretty much carved out an exception for criminals to the imposition of servitude.
And so, when you talk about changing that culture, it is extremely important, but I think what we also have to really acknowledge in the correctional officers and having gone to Europe and Portugal is that, when you do the comparative analysis, those corrections officers are trained for two years. They have a theoretical experience and practical internships prior to actually going on the job. Psychological sort of experience.
And the very basic eligibility for corrections officers, at least in my state, is that they have a high school diploma and a GED. And the killer that I was told last week was that they have to take a polygraph. That in and of itself is something that we have to be able to properly train and properly compensate our corrections officers, so that they know that it's not this “us versus them” mentality when they're going in and dealing with humans on a day-to-day basis.
WATKINS: So, you guys took this trip, as we've been referencing, to, I think, Germany and Portugal, but the Germany part was really focused more on conditions of confinement. The trip was under the auspices of Fair and Just Prosecution. So, it's my understanding that you guys visited two different kinds of institutions, as I think Marilyn said, an open and a closed one.
I talked to a colleague here who was on that trip who said, even the closed ones felt completely different from anything that we have in this country, and even if the US got all its prisons to that level, it would be a completely different model. Karl, maybe do you want to talk a little bit about what you took away from seeing these two different kinds of facilities and these different relationships, I guess, that Marilyn is talking about?
RACINE: Yeah, I think what I took away, similar to Marilyn's, I think, excellent explanation, was that the Germans have really thought about what the end objective is and clearly they've decided that the end objective is not merely warehousing people for their term of sentence. They're seeking to have folks be productive with their time, have folks learn new skills—skills that will help them have a job when it's time to leave out.
In the closed facility that Marilyn and I visited, there was for example, a massive work floor and indeed there were companies that were bringing product into that massive work floor for the individuals who are detained to work. And we could observe management, outside management, interacting with the workers, and they were making industrial products of a significant order. So, I was quite impressed in that regard.
I've got to say the facilities were incredibly clean. There were no bad smells and the guards were physically present but not physically armed. Additionally, the individual units were spacious and it appeared that the individual prisoners had key access to their dwellings. And then lastly, there was a lot of outdoor space where prisoners were encouraged to spend time out in the sun, out in nature.
WATKINS: Which is not the norm in an American institution, as Marilyn has been saying.
RACINE: It's not the norm in American institutions at all, where inmates could be inside for 18 to 24 hours, even when in solitary. We learned yesterday that Iowa had a warden who was quite innovative and she fought really hard to bring landscaping to a woman's facility in Iowa. That that landscaping reduced the tension between guards and themselves and guards and prisoners. That the incidents of conflict, tension, and physical violence dropped dramatically. And that indeed when she extended that to a male prison in Iowa, similar results also obtained. When you treat people like animals, they're going to act like animals.
MOSBY: And respond. Correct.
RACINE: When you treat people like human beings, you have a much better opportunity to get a human reaction.
WATKINS: So, the German criminal justice model in general is really different.
WATKINS: Their incarceration rate is something like nine times lower than the rate is here. You have far, far less use of prison as a response to crime. No one knows better than you guys how much work there is to do. How much of the German model do you think is translatable here?
MOSBY: So, I think it is translatable. It's about changing the narrative when it comes to corrections and criminal justice reform. When you talk about in Germany, their crime rates, their recidivism rates, their violence are much lower than ours. And one of the things that they do and that they understand is that the deprivation of liberty is their last resort. Oftentimes in the United States that's our first resort.
WATKINS: Right, even for low-level...
MOSBY: Even for low level offenses. In Portugal, they've decriminalized drugs, the possession of drugs altogether. There's no death penalty. There's no consecutive sentencing. Sentences in Germany don't exceed 15 years. There's no social pressure to appease because the prosecutors aren't even elected there.
The mission of a prosecutor in this day and age is justice over convictions. But how do we measure success? Often, time and time again, it's by conviction. So, when you look at that model in Europe, you can't help but appreciate the fact that these folks have gotten it right.
WATKINS: So, you guys as prosecutors are both, I think, have made racial justice a real focus of your work. And Marilyn has already made reference to the kind of ongoing legacy of racial injustice that defines the criminal justice system. And here we are talking about these carceral institutions that need to be humanized, that still can't treat people as human beings. So, how much do you see your work on conditions of confinement as part of this work for racial equity and more racial fairness in the system?
RACINE: Well, I think they go hand in glove, if you just look at the statistics. These recent statistics I reviewed suggest that the population of African Americans in the United States is roughly about 13 percent depending on how you look at it. Whether you look at the percentage of African Americans in the federal system, it's roughly about 48 percent. If you look at the percentage of African Americans in the federal and state and local, then you're looking about 54 percent. That disparity is significant, and it leads to a basic question: Hey, are black folks inherently more criminal in their actions and is that why they're over-reflected in jails, or is something else going on?
WATKINS: Something else that's been going on for a long time.
RACINE: Well, I think Marilyn Mosby told you the truth when she said that there’s a bright line, a clear line, direct nexus to slavery, and the whole idea of using the law as a way to control the race, to have labor that is not well compensated, and to continue the dehumanization, the brutality, and the narrative that blacks are dumb, lazy, criminal. It's outrageous that we allow the current disparity to remain, and that's why I'm proud to be working with people like Marilyn Mosby who's not afraid to point out the clear link between incarceration of black and brown people, and slavery, and intentional discrimination, and now benign discrimination.
WATKINS: So, really if there's hope of changing conditions in these facilities, it's also this larger question of changing the justice system as a whole. I mean, that work has to go hand-in-hand?
MOSBY: So, it definitely has to go hand in hand, but there has to be an acknowledgement that it exists. And often times, unfortunately, the narrative is, we're in denial. We don't want to talk about the racial inequality in the criminal justice system, which I believe is the biggest civil rights issue facing poor black and brown people in this country. In this moment, when you think about the structural, the racial, the economic inequality, that inequality that has turned into personal failure is the definition of the criminal justice system. And the reason why people are able to disassociate and to dehumanize individuals is because they look at it as if that's not me. I can't associate.
WATKINS: That's an Other.
MOSBY: That's other, that's them, it’s us versus them. And that's the mentality that we have got to get out of. Unfortunately, we've seen it even with the health policies around crime and drugs. We look at the war on drugs, which we all know in America at this point was a war on poor black and brown people and communities throughout this country. And now that we're faced with this crisis, this opioid crisis that is impacting more than just inner-city communities in Baltimore City, where 60, almost 70, percent of the population is black. Now, that it's infiltrated into the suburbs and it's hitting every demographic and every economic status, it's now a public health crisis. And we're saying we have to treat this totally differently than we have for the past few decades where we've criminalized, and we've destroyed families, and we've had an impact on black and brown communities.
And so, it first has to start with the recognition that this exists and that historical context suggests that it is associated and we have been able to disassociate ourselves because it's poor black and brown people.
WATKINS: Right. We can't solve anything until we name it.
RACINE: We can't solve anything until we name it. We can't solve anything until we're really ready with facts to bust the narrative that has been told that people of color are more violent, that there's a reason why there's a great disparity as well in wealth.
MOSBY: Or superpredators.
RACINE: Or superpredators. We need to be about myth- and narrative-busting. For example, when you talk about the opacity—a lack of transparency in prisons—take a look at what they are willing to show you and all of those ridiculous lock-up TV shows. What those shows do is they reinforce a false narrative that the individuals behind bars are beasts, beasts that need to be controlled and segregated, sometimes with force, so that they don't come out and hurt us. That is actually not factually true.
WATKINS: Well, listen, I want to thank both of you so much for doing this kind of narrative-busting, as you say, and the on the ground work that you're doing in your respective jurisdictions. And thank you so much for visiting us here at the Center and for making the time to have this discussion. So, State's Attorney Mosby, Attorney General Racine, thank you so much.
MOSBY: Thank you for having us.
RACINE: Thank you very much.
WATKINS: I've been speaking with Marilyn Mosby, the State's Attorney for Baltimore, and with Karl Racine, the Attorney General for Washington, D.C.. For more information about this episode, including our famed resources and references section, please visit our website, courtinnovation.org/newthinking.
Special thanks for this episode to the David Rockefeller Fund and the Langeloth Foundation. Thanks as well to Miriam Krinsky, Liz Komar, and Julian Adler. This show is produced and edited by me. You can find me on Twitter at @didacticmatt. Technical support is from the incendiary Bill Harkins with engineering by Max Aharon. Our music is by Michael Aharon at quivernyc.com. Samiha Meah is our director of design. Emma Dayton is our VP of outreach. And our show’s founder is Rob Wolf. This has been New Thinking from the Center for Court Innovation. I'm Matt Watkins. Thanks for listening.