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What’s Next For American Prisons And Criminal Justice Reform?

Five activists, including singer John Legend, debate what’s next for criminal justice reform and the role that tech and data can play.

What’s Next For American Prisons And Criminal Justice Reform?
Clarence Wardell III, John Legend, DeRay Mckesson, Malika Saada Saar, and Adam Foss work on different aspects of justice reform but align around the role that better data can play in spotting problems and signaling solutions. [Photos: ioulex]

Police shootings of unarmed African-Amer­icans have inspired outrage, but that’s just one of many ways America’s criminal justice system is tilted against people of color. Today, a growing movement is challenging structural racism that has millions of Americans in a cycle of incarceration. We gathered leaders from different parts of this fight—singer John Legend, who founded the “Free America” campaign; activist DeRay Mckesson; former prosecutor Adam Foss; Obama Administration data expert Clarence Wardell III; and Malika Saada Saar, Google’s senior counsel on civil and human rights—for a conversation with Fast Company’s J.J. McCorvey at the Fast Company Innovation Festival in November.

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You each have a distinct perspective on criminal justice reform. Broadly speaking, what is the way forward for the movement?

John Legend: We have to understand that while we talk about criminal justice and presidents and national politics, most criminal justice decisions that affect real people are made by district attorneys, state legislatures, governors—people on the local and state level. Most of the prison system, the budget, and the actual population of the system are not federal. Presidents and Congress affect federal law, but so much of the law that affects criminal justice policy and the communities that are impacted by it is done by state and local politicians. We have to be aware of what they’re doing and push them. We have to get involved in DA races, mayoral races, and police commissioner and sheriff races.

Adam Foss: To put some numbers to it, 2.3 million people are in jail and prison, and 10% of those people are in federal prisons. So 2 million people are in state and local jails, put there by state and local prosecutors and overseen by state and local sheriffs.

DeRay Mckesson: As for the issues around policing, what’s really hard is that there’s not much data. Any number you’ve ever heard about police violence comes from local media reports. That means if you get killed in America and no newspaper writes about it, you are not in the data set. That is wild.

Malika, you recently joined Google and have been working on a lot of these issues. What role should tech companies play in rebuilding trust between communities and police?

Malika Saada Saar: We like to disrupt, and if anything needs to be disrupted, it’s mass incarceration. One very powerful and practical approach companies can take is banning the box [removing questions from employment applications about whether people have been convicted of crimes]. [Google] did in March [2016]. I heard someone say that culture always eats policy, law, and regulations. So how can we be part of this cultural shift in understanding the human cost of mass incarceration? At Google, we enabled children of the incarcerated to send digital love letters to their mothers for Mother’s Day, to their fathers for Father’s Day. It was this opportunity to use our platform to give voice to children who have been so deeply hurt because they’ve lost their mother or father to prisons.

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Malika Saada Saar

John, you’ve been touring the country and visiting prisons, listening to what inmates have to say. What have been some of the most surprising insights?

JL: I grew up with family members and friends who have been incarcerated. I didn’t look at this problem as something that wasn’t connected to my own lived experience. But I wanted to go and see the human toll for myself and be able to communicate that. We just disappear these people from society. Most prisons are pretty distant physically from our cities, which makes it easier for society to ignore that we have so many people warehoused in them. Families are having a hard time reaching them physically, and the emotional toll, the financial cost for our society and our communities, is tough to watch. I would cry but also be very pissed off. We need to get pissed off. We need to understand that what we do in America is radically oppressive. We are the leading incarcerator in the world. There’s nobody better at locking people up than we are. We need to confront that, because that’s being done in our name. Our money pays for it; our politicians are enacting these laws. If that’s what the land of the free and the home of the brave is known for, why aren’t we saying more to do something about it?

A lot of people are sentenced to jail and prison for low-level offenses. That makes me think about the movement to decriminalize marijuana. Most of the people who are able to start businesses based on these new regulations are not people of color, and simultaneously we have a lot of people of color behind bars on marijuana charges. Will the legalized marijuana movement ever get more inclusive?

JL: I hope so. California is trying to do a better job than some other states at making it possible for people who were arrested on marijuana charges to get their records expunged and be able to participate in the legal economy that they were participating in when it was illegal. All of the states need to take on similar regulation.

AF: It’s a grave injustice that what five years ago was getting people sent away for double-digit sentences is now a cutting-edge, moneymaking machine.

Adam, I imagine you’ve had to make a lot of these decisions as a former prosecutor. What can be done to encourage prosecutors to pursue alternatives to prison sentences for low-level crimes?

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AF: I want to talk about what you ended the question with: low-level crimes. There’s this narrative about low-level, nonviolent drug offenders. We’ve been saying it for years: Let’s let those people go free. When do we start talking about populations of people that maybe did something violent—not because they are violent people, but because they lived in a place where their day-to-day was consumed by violence, their conditioning since they were kids was kill or be killed? In a flash, they do something violent, but that doesn’t make them “violent offenders.”

As a prosecutor, we have a ton of autonomy, but we don’t know anything about the populations that we’re serving. We don’t know anything about where they come from, or the collateral consequences of conviction. It’s a training issue, and on the back end, it’s a metrics issue. When my boss was considering me for a promotion, he didn’t see how much time I had spent out in the community, because we don’t collect that data. He wanted to see how many trials I had, and how many of those I won. Neither one of those equates to anything about safety or justice or accountability. When we start giving people different metrics, then people can be evaluated not by how many trials you won, but by how many people’s lives you made better. That will be a 21st-century system of prosecution.

DM: Most cases don’t even go to trial. Our televised myth of how criminal cases proceed is Matlock and Perry Mason and Law & Order—this dramatic situation that goes down. But most of the time someone like Adam is just deciding, sometimes with a public defender or whatever counsel that the accused has, at which level to charge them. Most of the power is in the district attorney’s hand. The judge just kind of puts their stamp of approval on whatever the district attorney decides. A back and forth about the evidence almost never happens. The DA has the power to be more merciful or more harsh. Adam chose in his career as assistant district attorney to think about the consequences of locking people up for a long time, and he was able to improve some people’s lives who may not have had that chance if he wasn’t involved.

Clarence Wardell III

Clarence Wardell III: What you measure drives a lot of behaviors. As a country, we’re okay with collecting crime data, but we’re not good at talking about the presence of justice rather than the absence of crime. That’s how people think policies like stop and frisk are okay. We’re only looking at one side of the equation. We’re not good at collecting all the data and understanding it right now.

What are some of the ways that data collection could be improved?

CW: Oh, man. One of the things that worries us in this push for more data transparency and collection is how we analyze and use this data. Right now, the conversation immediately goes to things like predictive policing. But even if we were to say, “Tomorrow all the police departments will share their data,” is that even good stuff? The tools that a lot of police departments have are rudimentary. As we collect more data, we need to be cautious about where we’re getting it from, what type of biases are inherent in it already, and then if we’re smart about that, maybe we can make some better decisions.

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MSS: I work at Google, so we have to talk about data, but before I came to Google, I was a human rights lawyer working on issues of women and girls behind bars. Those stories, those lived experiences, have to be part of the conversation. I worked with women who were shackled during labor and childbirth. I talked to one woman who, when she was transported from Kentucky to Tennessee, at seven months pregnant, had a belly shackle over her during transport. Our girls—our daughters—who are bought and sold for sex are criminalized, arrested for prostitution, even though they are not of age to consent. These girls are put behind bars for essentially being subjected to commercial serial rape, and they’re disproportionately black and brown. When we talk about overcriminalization of our youth, when we talk about the consequence of mass incarceration on our children who are black and brown, we don’t talk about these girls. We don’t talk about what they have experienced. We don’t talk about the sexual abuse–to-prison pipeline that is the girls’ story. Yes, we need the data, without question, and we need data that doesn’t reproduce bias. But we also need to be able to bear witness to women and girls whose lives are broken because they are criminalized.

Adam Foss

AF: When I came in as a prosecutor, I was just as equipped to be a tax attorney; I just went to the DA’s office. I received no training—just thrown into a courtroom. It’s like, “Here you go, use what you learned on television and what the person who started six months ahead of you is telling you. . . . ” We’d get these cases, like a young girl who was in Target shoplifting with a bunch of older men. And I look at this case and I’m like, I’m going to divert your case because I’m a progressive prosecutor, I’m going to give you some community service, and see you later. Another prosecutor might put her on a path to state prison. Neither one of us was talking about all the red flags that this girl was being trafficked. It wasn’t until my fifth year as a prosecutor that I learned that human trafficking didn’t mean that there were bands of women coming over the border from El Salvador and being sold. It was happening in my neighborhood. That’s an opportunity that we have in a data-driven, solution-oriented system. You need to learn this stuff before you even walk onto the job. We just didn’t know that trafficking was a thing that we could be stopping not by punishing these girls for shoplifting but by saying, “Aha, here’s a clue.”

JL: Nearly every woman that we met when we visited prisons was a victim of some sort of abuse.

MSS: Ninety percent.

I want to go back to use of force and technologies that can be used to hold police accountable. We saw in the recent shootings of Alton Sterling and Paul O’Neal that officers’ body cameras failed to capture footage of the incidents; a bystander’s smartphone did. When Boston tried to start a pilot program for wearing body cameras, it was a volunteer program—and not a single officer volunteered. What needs to change about the way these potential solutions are implemented? If it’s not body cameras, what other technologies can we use to help hold law enforcement accountable?

DM: The activist community is split on body cameras. Some people feel like it’s another form of surveillance in communities. The reason [some] people support it is that there’s never been an officer held accountable without video, whether it was the body camera or a dash cam or cell phone. Without video, it’s like it didn’t happen, right? So we think that is important. What I would say about the data piece is that there’s so much data that is already out there that we haven’t figured out how to assemble yet. Right now there’s no public database of all the elected officials in the country. Doesn’t exist. There’s no public database of bail. You can’t find: How did judge X set the bail in communities? The bail amounts are public—they are in court documents somewhere—but we haven’t figured out how to aggregate that stuff. It’d be interesting to think about how we do that. My organization, Campaign Zero, created the first public database of use-of-force policies in police union contracts. We had to FOIA [Freedom of Information Act] all the police departments and put [the information] in one place. It was 2016 when we did that. Late to the game, but nobody had done it before.

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JL: There are a lot of things that we aren’t very good at collecting that would be useful for policy makers to know, and for the community to know to hold them accountable. What kind of charges did the district attorney recommend? And then, if [the accused] gets locked up, how long did he or she serve and what percentage of their original sentence?

DeRay Mckesson

DM: But we know the rainfall in every city in America. Pizza Hut knows where your pizza is.

AF: To give some real-life experience why that is, when I went to ask for bail for somebody in a courtroom, I’d write it down on a manila folder with a ballpoint pen. That manila folder would stay in my file cabinet until the case was over. That information was never input anywhere. After the case was disposed, it went into a box that went downstairs, and after five years that box went somewhere else. Five more years later, that box was destroyed. It’s inertia. It’s this idea that we don’t have the resources to give me an iPad in the courtroom so that when I’m inputting bail, as soon as I write out what my bail is going to be, it’s going somewhere and it’s staying there.

MSS: I was trained that you always document so you can make sure that the world will bear witness to the human rights abuses committed. One of the reasons I’m excited about being a human rights lawyer working in tech is because we can bear witness in ways that were unimaginable before. Our mobile devices have changed the conversation around police brutality, and that has become a public-square conversation. We are now able to use technology to bear witness to each other’s lives, to document abuse not just within one community, or one country, but in a global context—and then share it on these global platforms. I think about what happened in Ferguson, or Baton Rouge. Technology is about being borderless. It’s about surmounting walls. I mean, if the 20th century was the history of how walls and boundaries define us and diminish us in so many ways, the 21st century is about how we can surmount those walls. Tech is part of what allows us to do that. Every human rights abuse, every genocide, every act of rape, every war crime happens in an atmosphere of isolation and silence. Tech allows us this powerful opportunity to disrupt that silence, to disrupt that isolation, so that we understand what is happening.

About the author

J.J. McCorvey is a staff writer for Fast Company, where he covers business and technology.

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