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David Remnick:

Last week we spent the full hour of our program on the topic of mass incarceration. I was joined for that by Kai Wright, who's the host of WNYC's election podcast, The United States of Anxiety, and we talked about how imprisonments soared during the war on drugs, and the emerging consensus that mass incarceration, whatever the intention, had caused incalculable harm, especially in Black and Latino communities. At the end of that episode, we touched on the future of prison reform, in particular the movement known as prison abolition. What it is, and maybe just as importantly, what it isn't.

 

Kai Wright:

I think the place to begin is that for a lot of people listening, I imagine just the words, "prison abolition" are probably a bit of a head scratch. What does that mean? What are you talking about?

 

David Remnick:

Kai Wright joins us again this week in conversation with two prominent advocates of prison abolition, Paul Butler, a law professor who was a federal prosecutor in Washington, and Sujatha Baliga, an attorney who leads the Restorative Justice Project. She was recently awarded the MacArthur Genius Grant for her work.

 

Kai Wright:

Sujatha, can I start with you and asked you to just sort of explain to you what that means?

 

Sujatha Baliga:

So to my mind, I come to prison abolition personally from a series of perspectives and one is from a practical place. So mass incarceration, and mass criminalization more broadly, has not met even its own stated goals of keeping us safer. Of deterring crime and harm, of rehabilitating folks who we put behind bars of effectively containing crime. And so that's sort of on the practical level. And then on a deeper level in terms of when I think about mass criminalization, most broadly, has played itself out in extremely race-based and racist ways. And so I come to prison abolition in this notion that we can have a world without prisons. We would do better to have a world without prisons.

 

Kai Wright:

And Paul, what would you add to that? This idea that, okay, well prison abolition is first off, a way to think that there's a world without prisons. What would you add to that in terms of what we would do?

 

Paul Butler:

When I first heard the term prison abolition, I thought it was crazy. I'm a former prosecutor and the idea that we wouldn't punish people who caused harm seem ludicrous. But then as I thought about my experience locking up mainly African American, Latinx people, almost all of whom were poor, and I thought about the impact that I had in my community, it wasn't at all what I was expecting. And so then I started listening to what abolitionists were talking about. And the first way I got in roll was by hearing what it wasn't, what it doesn't mean. Prison abolition doesn't mean that everybody who's locked up gets to come home tomorrow. Think of it as a process of gradual de-carceration. We let as many people as possible come home, but keeping an eye on public safety. So we do it in a way that's consistent with everybody being safe. And a lot of abolitionists have this term called the dangerous few. And the dangerous few is the idea that there is a really small number of people who may need to be supervised for the safety of everyone else. We have no idea how many people this is. We know it's way smaller than the two and a half million people who are locked up today.

 

Kai Wright:

Paul, you mentioned this idea of the dangerous few, I think you said, I imagine that will come right to a lot of folks' mind. Sujatha, if we're talking about a world without prisons, what are we talking about doing with people who are a violent threat?

 

Sujatha Baliga:

So I would suggest that the vast majority of people who commit acts of violence are actually not being incarcerated and cease their behavior without state intervention. There's far more violence happening in America today than is ever on the radar of the criminal legal system. Just taking domestic violence for example, 50% of survivors do not contact the system at all. And of those who do 20% say it made us less safe. Right? So as a survivor myself of child sexual abuse and rape, I have never, ever thought to contact the system to make me more safe. And so there were other ways in which the violence and harm that happened in my life, including direct confrontations with people who have harmed me, supported by family and community and friends and things of that nature, have prevented that harm from happening again. I'm not talking about vigilantism, I'm talking about structured processes where conversations are facilitated, that people are held accountable for being their best selves.

 

Kai Wright:

Both of you have mentioned a bit of your personal story that brought you to this work. Sujatha can you share with us what brought you into this work and it did involve the sexual assault that you've mentioned?

 

Sujatha Baliga:

Absolutely. Sure. So throughout my childhood and adolescence I was sexually abused by my father. And we were living outside a small town in rural Pennsylvania where for all of elementary school I was the only child of color in my school. I experienced a lot of racist bullying. I experienced my father being pulled over by a police officer and being questioned in ways and sort of our status as American was always really questioned. I wasn't interested in anything that was on offer. I knew a child who had been put through child protective services in someone else's home who then complained about the sexual harm that she was experiencing in her foster home, right? And so I didn't want my father locked up, or my mother and my sister to have potential immigration consequences. And I surely didn't want to be put in a home with folks who didn't practice my religion, speak my language, eat my food, only to potentially experience harm there. Right? I was a smart kid and I kept my mouth shut for far too many years.

 

Sujatha Baliga:

And so my father passed away when I was in high school and I was looking for solutions like, "What could have helped my family heal?" and there was nothing really on offer. There was nothing for me to imagine at that time, really. So I worked in battered women's shelters, as we called them back then, and worked with trafficking survivors briefly and ultimately applied to law school thinking that I would be a prosecutor because I wanted to lock the "bad guys" up. And so I had this huge wake up that these policies actually aren't doing anything. And then I thought about my own childhood and the fact that, "Hey, why am I pursuing this approach, which I myself had the wisdom to not engage in as a kid?"

 

Kai Wright:

It's such a striking thing you're describing for you as a kid. You're saying you are in active harm and you're aware that the thing that we're supposed to do to stop harm, which is call the police, wasn't going to help you, it might actually hurt you.

 

Sujatha Baliga:

Yeah or even tell my teachers or even tell a grownup outside our family. I knew not to tell anybody. And you know, of course, part of that is the nature of child sexual abuse. The fundamental failure of the criminal legal system as it relates to survivors is that it doesn't encourage us to tell the truth. I cannot imagine something closer to gaslighting than the experience of being cross-examined. Abolition to my mind isn't just about ending the prisons. It's about ending binary processes which pit us as, "Us them, right wrong. Somebody has to be lying. Somebody is telling the truth." And that is not the way that we get to healing.

 

David Remnick:

That's Sujatha Baliga talking with Kai Wright about what's generally called restorative justice. Now Kai, how does restorative justice work? What happens?

 

Kai Wright:

Well, David, would first off understand that restorative justice is just one solution. It's one way to think about how we can deal with the harm we do to each other outside of a punishment model. And that's a really important step. It's just not about punishment. It's rather about accountability for what you have done and repair. And so think about it for particularly with violence, for instance, most violent crime, the overwhelming amount of violent crime happens, in intimate relationships. So that means we have to first even just think about the language we use, right? So in restorative justice, it's not victim and criminal and perpetrator and things like that. It's survivor, it's person who did harm. It's not about efficiency either. This could be something that takes a few weeks, it can be something that takes a few years. It all is driven by the survivor. And what does the supply ever need to feel like that the harm that has been done has been repaired.

 

Kai Wright:

So some examples are someone who has been a survivor of domestic violence, they may say, "Listen, I want the person who harmed me, I want them to go volunteer at a domestic violence clinic because I want them to learn about what they did to me." Everything about it is about accountability and restoration and repair as opposed to exile.

 

David Remnick:

Okay, got it.

 

Kai Wright:

Paul, you worked for years as a federal prosecutor, as you mentioned earlier. At what point did you look up and say, "You know what, this just, it's not working." When did that come to you?

 

Paul Butler:

I wanted families to be safe, communities to be safe. I wanted people who caused harm to be held accountable and I wanted the process to be fair. And I learned through my day to day work that's not what the criminal legal process is about. And so sadly, one of the ways that Sujatha's experience is not unique at all is that she didn't choose to involve the criminal legal process. I saw that day to day as a prosecutor. We used to say that the only people who got prosecuted were either dumb or had bad luck. So if you look at what is called a clearance rate, that's when the police they solved the case. It doesn't mean the person gets convicted, it just means the police think they found the "bad guy", for homicide it's 60%. That means that 40% of people literally get away with murder and homicide has the highest clearance rate.

 

Paul Butler:

So I think people know that if you call the cops and tell them someone stole your iPhone, they're not going to track down your iPhone. And it turned out that what I was doing, just putting as many people in jail as I could, it was counterproductive. I was sending them to a finishing school for criminals.

 

Kai Wright:

And that was really your perspective at the time. You were like, "This is the work I'm here to do, is really just lock up as many of these criminals as possible."

 

Paul Butler:

And the damn thing was, I loved it at the time that I was doing it. I tell that person, "You, say you're guilty. Don't make me go through the trouble of putting you on trial and I'll give you a good deal. If you do go to trial and you lose and you're going to lose, I'm going to throw the book at you."

 

Kai Wright:

Because you've got all the muscle in the world?

 

Paul Butler:

And the result of that muscle is that 95% of people who are prosecuted plead guilty. Justice Kennedy said, "We don't have a trial system in the United States. We have a plea bargain system." I said that I wanted to be a prosecutor because I don't like bullies. I stopped being a prosecutor because I don't like bullies.

 

Kai Wright:

Then you had, as I gather, an experience where you found yourself on the other end of that. Can you describe that experience for us?

 

Paul Butler:

So I got arrested. And I got prosecuted for a crime that I didn't commit. The judge told the jury, "This is a dispute about a parking space and neither one of the people has a car." Things worked out fine. The reason that things worked out fine for me and my little misdemeanor case because I had the best lawyer in the city. Kai, I literally prosecuted people in the same courtroom where I was being prosecuted.

 

Kai Wright:

That had to be weird. Did they even notice you?

 

Paul Butler:

It's very reminiscent of slavery the way they bring you out in chains and almost everybody who was brought out were African American men. And I was thinking, "Oh my God, what if the judge recognizes me during this arraignment?" The judge didn't even look at me. I wasn't even a human being to that person. I was just a cog in the system.

 

Kai Wright:

A big part of the work you're describing when we talk about getting people out of the court system and instead finding new ways to deal with each other, to repair the harm. It does sound like it really depends upon everyone in the community or at least everyone involved being willing to do that work. That the whoever has been harmed has to be willing to participate. People have to have the time and the bandwidth to participate even if they've been in the middle of what might've been quite traumatic situations, I have to imagine that you've come up across times when that just doesn't work. When people can't or won't show up in that way. What then?

 

Sujatha Baliga:

Getting the right people in the room is a bit of the work, right? If a crime survivor says, "Listen, I don't want to be in the room with the person but I want to send in my cousin instead to talk to him or I've written a letter and I want somebody else to read it or I want to be on a speaker phone or I want to be in the next room listening in and then maybe if I feel comfortable halfway through I'll come in." Like anything that can accommodate that person feeling safe and good about the participation.

 

Kai Wright:

Right. Can I ask you both to sort of actually answer some of these questions about like how do we do it? Because I think for a lot of people that's a question, "Well what does this really look like?" Okay, so prisons are gone and say you have someone who has, let's take the worst case scenario, that is a violent offender, they're repeat violent offenders I've been a victim of. And I say, "Hey, I want them punished." What happens now? How does that unfold?

 

Sujatha Baliga:

So my organization Impact Justice, we're working with seven jurisdictions across the nation right now and we're looking to build it out to 21 ideally over time where we are helping build a diversion programs, restorative justice diversion programs. And we've gotten quite a few up an off the ground already. And so what we've seen after hundreds of cases have been done in places like Oakland and San Francisco and Richmond, California now in many cases have gone through a program in Nashville, Tennessee, we're starting up in Miami, where we're seeing amazing results. So the recidivism data is astounding. In Oakland, California, we've seen a 44% reduction in recidivism. So this is a pre-charge process where these cases don't even go to court at all. To be clear, like there's no attorney's assigned. We're never labeling this person, "The defendant." We're never stripping them of their humanity, but rather immediately handing them over to communities that they are already embedded in and living in and really helping them come to a deeper understanding of how to be accountable without feeling lousy about yourself. But instead getting to feel great about yourself when you fix stuff that you mess up. Because people mess up. We are humans and we make errors. Some of them are small, some of them are huge. They are all capable of being healed and addressed.

 

Kai Wright:

So Paul, I mean certainly the money is where the rubber meets the road on so many things. And part of this is we're talking about, I mean, states and federal systems would have to defund themselves to fund these things. You've been a prosecutor, you're a law professor at Georgetown University, how radical and crazy of an idea are these things to your colleagues?

 

Paul Butler:

Most of my colleagues, like most Americans now, understand that the criminal legal process badly needs reform. And so even when they hear about not abolitionist projects, but just common sense proposals from people like the Brennan Institute in New York, which says that 40% of people who are incarcerated right now can come home and we wouldn't even notice it. These are people who are mainly in there for nonviolent offenses, drug crimes or low level violent offenses like theft or people who've aged out of any propensity to cause violence. There are literally prisons that are opening up assisted living facilities. This is how it's going to work. Three steps; moratorium, de-carceration and ex-carceration.

 

Paul Butler:

Moratorium, stop building the cages. Just don't construct any more prisons and I think a lot of people understand why that's a responsible project. De-carceration, finding ways for people to come home who are locked up now. And the last step is ex-carceration preventing people from being incarcerated in the first place. And people get that. One of the things I tell them about is the $1 million blocks in New York City. This organization Justice Mapping project, they did this map of New York and they highlight blocks, just one city block, where the government is spending $1 million just to lock up the kids and young people on that one block. And so I say, what if? What if rather than spending that money putting people in cages, it was spent on health care, on better schools, on job training. Wouldn't that make us all safer?

 

Sujatha Baliga:

A person who talks about this so beautifully is Danielle Sered, who runs an organization called Common Justice. And she just wrote a book and it's really beautiful, this description that I've heard her say on multiple occasions, "If you put a bunch of people in a desert and they're walking across the desert for months and then suddenly there's a hamburger stand there, you can't say that just because everybody's lined up for hamburgers that nobody's a vegetarian or that this is the best hamburger stand in this desert, right?" And that is what we do for survivors with justice. We say that justice is punishment, that justice is a trial. And if you don't get this person to go away for as long as possible, there is no justice. No one has interrogated the question about whether or not survivors actually want that. Have we ever taken starving survivors to a buffet and then take a poll about whether or not people chose this or that food? Or even to ask people what they want when they're not starving.

 

Kai Wright:

So is this a... What do you think? Is this a five year turnaround? Is this a 10 year turnaround? Is this a 50 year turnaround to get people to see it that way?

 

Paul Butler:

Unfortunately, I think from history about the abolition of slavery, in the United States, conservatively 200 years. So while I wish it could happen tomorrow, I understand that any abolition movement takes a long time, requires a lot of dedication. But what I can say with confidence is that in 100 years we're not going to be locking human beings in cages because we'll understand then, as we understand about slavery now, that it was immoral and we'll also understand about prison, that it just didn't work.

 

Kai Wright:

Thank you both for joining us.

 

Sujatha Baliga:

Thank you, Kai.

 

Paul Butler:

Thanks for having us.

 

David Remnick:

Law professor Paul Butler. And we heard from Sujatha Baliga who leads the Restorative Justice Project. They spoke with WNYC's Kai Wright. Kai is the host of WNYC's podcast, The United States of Anxiety. The new season starts January 30th.

 

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