Ep. 34 – Criminal Justice Reform in the Trump Era: A Conversation with Michele Deitch

[0:00:07 Peniel] Welcome to Race and Democracy, a podcast on the intersection between race, democracy, public policy, Social justice and citizenship. On today’s episode of race and democracy, We are very excited to be talking to Professor Michelle Dyke, one of my colleagues at the LBJ School of Public Affairs and also a professor at the law school at the University of texas at Austin and really one of the uh country’s foremost criminal justice reform researchers, scholars practitioners, um who has over 30 years of experience working in the criminal justice system. She specializes in independent oversight of correctional institutions, prison and jail conditions, managing youth in custody and juveniles in the criminal justice system. There is much more, but I’ll stop there. Professor Dish Michelle welcome.

[0:01:02 Michele] Well, thank you so much for having me, Paniel. I appreciate it.

[0:01:05 Peniel] Well, I want to talk about the moment that we’re in and the way in which your work relates to that moment, and that moment really is this national reckoning on criminal justice reform, um everything from uh youth and and juveniles who are in adult prisons, the length of prison sentences, three strikes and you’re out um gender and and sort of gender discrimination in prisons, women’s prisons, people of color and the criminal justice system. So I’m going to start with, I saw uh and very much enjoyed your ted x talk at Amherst.

[0:01:41 Michele] Um

[0:01:42 Peniel] you gave a wonderful, it’s about 20 minute talk on um

[0:01:45 Michele] your own

[0:01:47 Peniel] personal realization and you’ve been working in in criminal justice reform for decades. But this realization that something was wrong in terms of youth um in adult prisons and sort of youth sentencing. And I want you to discuss that.

[0:02:01 Michele] Sure, Well, I still remember the moment at which I found out that kids could go into the adult criminal justice system. I’ve been working in this on criminal justice and prison reform issues for many, many years without realizing that kids go into the adult system. So I started digging into that issue and found out that, um, all over the country, there are laws that permit youth to be transferred to the adult criminal court, and in most cases they would be held in adult jails while awaiting trial or adult prisons if they were convicted. And of course, as you would expect, the research shows that it’s it’s terrible for them to be in these facilities. And can you tell

[0:02:44 Peniel] our listeners why? Why is it bad? Well,

[0:02:46 Michele] um, first of all, they are very ill equipped for that setting. They are much more susceptible to being physically or sexually assaulted by other prisoners, um, also in an effort to keep them safe. Many corrections officials isolate them from the adults and now it’s federal law that they have to do that. But um, but in doing so they end up putting them in. What is the fact of solitary confinement and you can imagine for a young person, 14, 15, 16, even 17 years old, what that might do to them to be isolated like that. So it leads to mental distress. Many of them experienced mental illness as a result, many of them become suicidal. And uh, and so we’ve just seen horrible, horrible results as a result of kids being in adult adult prisons and jails.

[0:03:41 Peniel] And why does the justice system treat juveniles at times like adults? What? Well, I think

[0:03:46 Michele] during the nineties, during the tough on crime movement, there was very much a sense of you wanted to toughen up sentences all across the board and kids were no exception. There was this prevailing, uh, message that adult time for adult crime, um, which sounded really good, but it actually makes no sense at all. Um because we know that kids are different um and they’re different in so many ways. And now the Supreme Court has started to realize that um and has acknowledged, it says we have to sentence youth differently than adults. Uh They can’t be subjected to the death penalty for uh for crimes committed under the age of 18, and they also can’t get life without parole sentences, mandatory life without parole sentences even for even for homicide crimes. Um And that’s because their brains are less fully developed than adults, which means it has many consequences. One is that they’re less culpable for their criminal activity, but the other is that they’re still changing and they are much more susceptible to rehabilitation and uh and their character is still is still forming. Um So all of those factors lead us to want to sentence them differently and treat them differently.

[0:05:07 Peniel] Now, you talk about in your Ted X talk these these young people that you met because you’ve visited prisons for decades, both for your own research, but taking classes to prisons, um they were talking about fear of HIV. Um it was really very, very moving. Um just even listening to that talk, why do you think um the criminal justice system has actually allowed young people to be at risk and be so vulnerable within the criminal justice system? Um within the context of being under 18, some of these kids were as young as 12 years old. Um what do you think was going on there? Is it just a tough on crime? Because you mentioned that you saw a lot of black and brown faces to when you went in there, which I which I know the data shows us to the research. But what do you think it is? Well,

[0:05:55 Michele] I think that society has treated these kids as throwaway youth and there’s this assumption that they have no value to us anymore. And it’s this notion of it being other people’s kids. You know, if we’re our own kids who got into trouble, whether it was smoking marijuana or committed a crime, we would never think it’s okay to treat them like that.

[0:06:15 Peniel] And you said your daughter was 12 at the time?

[0:06:17 Michele] Yes, there’s uh, it definitely hits home when you realize that these kids you’re seeing in a jail or prison are the same age as your own Children. And it’s very hard to do. And how can

[0:06:28 Peniel] we policy wise start viewing these other kids as our own kids? What are your recommendations and you talked about that and then talk sure.

[0:06:36 Michele] First of all, we have to start treating kids as kids. We have this magical thinking going on that somehow the crime they’ve committed makes them an adult, but they’re not. So we need to look for ways to keep them in the juvenile system and find programs and services and ways of dealing with their criminal behavior that is going to be more effective at turning them around. Um, So, and in fact there’s plenty of change going on in this area. Most of my work in this uh in this field was happening in the uh late uh late two thousands and early 20 tens. And um in fact, the uh many, many states have started changing their policies in this arena and trying to keep more kids out of the adult system. One of the main ways in which that’s happening is through what’s called raised the age reforms, um, many states uh had lowered their age of juvenile jurisdiction, criminal responsibility so as to keep more. Um, so as to allow kids to go into the adult system as a default measure starting in some states at age 16, and in places like texas at age 17. But those states have started to change their laws to say you can’t put kids in the adult system as a default measure until they’re 18. Texas is now one of only four states that allows kids to be tried as adults for all crimes starting at age 17.

[0:08:11 Peniel] And you know, when listening to you even now and hearing your Ted X talk, I thought about the Central Park Five, um, and Ava Duvernay’s um wonderful film, but also uh Sarah Burns documentary on the Central Park Five. And these were five uh young african american and latino latin X boys who were accused of this really reprehensible rape and assault of of of a white jogger. But but they weren’t they weren’t guilty. It turns out they were there was a coerced confessions and some of them did go to adult juvenile, especially Korey wise for years. He was in Attica and and suffered unbelievable, horrific. So when you watch um when they See Us by Ava Duvernay, I think it really cast a strobe light on what you’re talking about in terms of its a real miscarriage of justice and injustice. It’s something sort of immoral when you see people going through that in their case they were innocent. But I think even those folks who have and you you mentioned this in your Ted X Talk, even those who are guilty deserve better treatment.

[0:09:15 Michele] Absolutely. And that’s true for everyone. We put in our criminal justice system that we’re doing an incredible disservice to them by treating them the way we do. Um But you’re absolutely right. A horrible miscarriage of justice in this case. No question that it was infused with racism, but we need to be finding more ways to keep kids out of the adult system and to do a better job with those youth in the juvenile system and for adults that go to the adult system as well.

[0:09:47 Peniel] Now, I want to shift a little bit because you’ve done great work right here in Travis County. Um and you’ve you’ve chaired the Travis County Sheriff’s Advisory Committee on Women’s Jail, which proposed to reimagine gender responsive facility for women. Um and I know you teach courses on this and you have all kinds of P. R. P. S. And and these these these professional reports and and helping um LBJ students connect with these with these actors uh in Travis County. Um I want you to talk about that work. What this, this work right here, We’re in Travis County austin um texas. Why is that important one in terms of reimagining um the Travis County jail system. And what does it mean looking forward for like sort of this? How will criminal justice look in 10 years connecting it, whether it’s gender, whether it’s juveniles, folks of color, what are we trying to get to

[0:10:44 Michele] Sure. I think that what really um marks the Travis County project is a desire to treat people who are in custody with dignity and respect and what we’ve tried to do, there’s going to be a new facility for women in Travis County. And the question is, if that’s going to be built, how can we do it in a way that is not just replicating all the problems that exist in current jails and prisons? How can we design something that causes less harm is less traumatic to the people who are there? And it begins with adopting principles of dignity and respect, trying to be gender responsive, meaning actually address the underlying issues of why women are going into the adult, going into uh, into prisons and jails into the criminal justice. Why,

[0:11:38 Peniel] why are so what are some of these underlying,

[0:11:40 Michele] Well, the main problem is that 90% of women in the criminal justice system have experienced phenomenal trauma in their lives. They’ve been sexually assaulted. They’ve been experienced intimate partner violence, they have been neglected, they’ve been in the foster care system and for so many of them that trauma has um parlayed into criminal behavior. Maybe they started using drugs as a way of dealing with some of that pain. They may have entered into problematic relationships that have led to sex trafficking and such. But for so many of the women, you can draw a direct line between their trauma and uh, their criminal behavior. Um, also we know that 80% of women in custody are mothers. Most of them are single mothers.

[0:12:31 Peniel] That’s a

[0:12:31 Michele] huge, it’s a very, very telling statistic, but it means that we need to be conscious of that relationship and also the trauma that we’re doing to the Children, um, and how it traumatizes the mothers to be separated from their Children. So we need to be um, looking at ways to, first of all keep way more women out of out of custody. No question about that

[0:12:56 Peniel] is that diversionary programs?

[0:12:58 Michele] Well, there’s plenty of diversionary programs, but they need to be beefed up to. I mean, there’s there’s a lot more women in custody that need to be there, but um but for those women who do need to be in custody, our work is designed to reimagine what that looks like. So um we are trying to develop a trauma informed approach to dealing with these women and that means a few different things. First of all, it means that staff need to understand the pathways that women take into the system. They need to recognize the trauma that has led them there and the ways in which the women differ from the men, secondly, they need to recognize that um the women’s trauma affect who they are today and how they react in the moment. For many of them, it’s like they’re constantly on edge and certain triggers will make them uh react a certain way and as a result you need to respond differently to them and you try to avoid triggering that trauma. And thirdly, you need to address that trauma. Um so that they can start um dealing with their issues in healthy ways and uh not keep cycling in and out of criminal behavior.

[0:14:12 Peniel] When you think about the Travis County Women’s Prison, one, the facility that exists right now around how many women does it serve? And then the facility, the brand new facility that will be built one. When will it be built? And to how many women will it probably serve as well?

[0:14:29 Michele] I think right now there’s, I want to say it’s roughly 400 women, maybe more than that. In the current facility, the new facility is going to be a replacement facility. They’re knocking down. The women are not currently in a single building. Their spread around many buildings, which is one of the problems.

[0:14:47 Peniel] And why is that a problem than being spread around?

[0:14:49 Michele] First of all, they’re coming into contact with men in every part of their time there. They can’t even go to a medical facility without going past men. Uh Most of them are being held in what are called uh indirect supervision facilities. Um So and we know that those are less effective than direct supervision where the staff are in the uh area with them at the time,

[0:15:11 Peniel] explaining to me the contact with men jumped. What, why is that bad

[0:15:14 Michele] for many of them? Um They may be jeered at as they walk past. Some of them don’t want to be around men. So it limits their willingness to leave a particular area to go participate in programs or services. And they may see a person that scares them, someone they’ve been in a relationship with. But uh but best practices to keep a distance between them. It also means women need to be um, monitored much more carefully and escorted wherever they’re going. So there are more limited in their opportunities than the men are in the facility. Uh, also, they tend to be in the worst buildings. Um, and anyway, so this is going to be a replacement facility. I don’t know that the exact number of beds has been determined. I believe it’s going to be less than what’s currently there now.

[0:16:04 Peniel] And this is a jail, a

[0:16:06 Michele] jail. These are mostly women who are pretrial. Okay. And again, many of them probably don’t need to be there, but this is focused on how do we deal with the women who do need to be there? And that, that was the focus of our work. Um, how can we build a facility that does less harm

[0:16:27 Peniel] and how Michelle, how are you getting buy in with prison or jail officials? Travis County officials, one are they invested in rehabilitation and sort of doing no harm?

[0:16:39 Michele] Absolutely, absolutely. Our advisory committee, which was made up of local community experts, including people with lived experience, met on a regular basis over a period of about nine months with the Sheriff, Sheriff sally Hernandez and her leadership team. And we had probably 20 hours of meetings um and the entire leadership team was invested in this. We reached, we went through many, many uh hours of discussion and debate and ultimately reached a consensus around principles that should drive the way the jail operates and a real understanding of the ways that things could be done very differently.

[0:17:22 Peniel] And what are some of these principles,

[0:17:24 Michele] the principles our dignity and respect gender responsiveness, being trauma informed and the concept of normalization, um, which was something that, um in my own travels, I’ve spent a lot of time looking at Scandinavian prisons, for example, which are famously humane and uh quite different from anything I’ve seen in this country, but it brought back, I brought back a lot of lessons that I shared with the group. Um, and one of the things that I saw there was a commitment to the notion of normalization, which is the idea that people are in prisoner jail as their punishment. You don’t want to further punish them while they are there does the separation from society, that’s the punishment. And while they are incarcerated, you try to normalize their lives as much as possible and have it mirror the healthy parts of life on the outside. So if you do it, unless something is absolutely necessary to do from a safety perspective, don’t make them do something different inside. So for example, why not give people access to uh well, first of all give them some privacy, you know, single rooms, most, you know, not bunk beds. Most adults don’t sleep in bunk beds. So why would we do that to people in custody? Um Most people don’t go to the bathroom out in the open with everyone watching them, so respect that privacy give give people access to kitchens or laundry, um exercise, wellness activities. Um And in no way is this being soft on crime because people’s liberty is still being taken away from them, they can’t leave that space. So um those kinds of environments not only are better for the people who are inside, but it also creates a much better environment for the staff and it’s a much healthier dynamic between the staff and the people in custody. Um So you asked whether or not there’s been buying. Absolutely, it was not immediate. It definitely took a while before the uh leadership team stopped rolling their eyes at some of these ideas and suddenly started asking themselves, well why are we doing it that way? Oh well we’ve always done it that way. Well why? Uh huh. I don’t know. And then they started saying well let’s try things out, let’s see if this might work. And one of the things that’s been so rewarding is watching the ways in which the culture of the jail has already started changing in very profound ways even before any new facility gets built. So this is not about a new building, it’s not about the design, although the hope and expectation is that those will be much much better and more conducive to good things happening.

[0:20:20 Peniel] And when is this new building scheduled to be?

[0:20:22 Michele] I guess, that they’re going to probably break around and maybe three years or so. So it’s still it’s

[0:20:29 Peniel] still way, it’s all right.

[0:20:30 Michele] But the point is that they are making the changes now, that can really lead to a much better outcome for people inside.

[0:20:39 Peniel] All right. So we’ve talked about the local, I want to talk about just the national um, and really when we think about national criminal justice reform, um, last year, the first step act was passed, which really had bipartisan support. So President donald trump past that, but you have people who are considered liberals like Van jones, who’s who’s a criminal justice reform activists, um, the celebrity kim Kardashian supported that, but really grassroots criminal justice reformers, including people who have been formerly incarcerated people who were inmates, really supported this too. Um, I want to talk a little bit about, not just first step, but we’re having a national conversation now about this. This is 10 years after Michelle alexander’s the new Jim Crow um talked about mass incarceration, vis a vis black men, bryan Stevenson. Um the movie jess Mercy, based on his best selling book, has talked about that, and he’s a big criminal justice reform activist youth activists as well. Um why do you think this is happening at this moment? In a way where it’s 2020 and we’re really trying to I would say roll back the clock on the crime bill of the 19 nineties that was passed with bipartisan support, but even the crime bills of the 19 eighties that were passed with bipartisan support under Ronald Reagan during the crime surge with with crack cocaine and the war on drugs. And we’re rethinking all of this one, Why are we doing this? And what are some um you think interesting um policy proposals that have just been out there, not by any specific candidate, but there have been out there that you think may lead us in a different direction. Um So so how would criminal justice look in 10 years and how would that affect a state like texas and the work you’re doing?

[0:22:22 Michele] Well, I’ve got to say, as you mentioned before, I’ve been doing this work for 30 something years and a day doesn’t go by where I don’t pinch myself at how things have changed for most of my career. I felt like I was fighting an uphill battle to try to get anyone to think differently and not uh just spout tough on crime uh type messages. And so when things started changing in the mid two thousands and certainly over the last decade, it was just like, wow, suddenly the work I’m doing is becoming trendy, you know, I was at my time, I guess. Um, but so in terms of what’s motivated it, I think that the initial answer is money, It was very expensive. We started realizing that we were going broke, just locking people up and building more prisons. And, uh, the budgets weren’t supporting at number one, and the outcomes were terrible. You know, we had, uh, skyrocketed, uh, recidivism rates. Um, we didn’t seem to be feeling any safer as a result of this. So we were a lot poorer, but not any safer. So that caught the attention of a lot of folks on the, on the right who started advocating for smaller and smaller government and shrinking budgets. Um, and there was a confluence of their positions on this and the left to are coming at it from a uh more humane treatment and uh anti uh anti racism type perspectives. Um but they got to the same place for the most part, so that with that bipartisan support, it started changing the messaging and started changing the dialogue, particularly in legislatures all over the country, and it started here in texas. Mhm. I’m so now it’s become pretty much standard practice for most people in government. Certainly most advocates on both sides to support some major reforms, and I’ve got to say that um it’s no longer motivated just by money. It’s been motivated by a recognition that these other approaches work. They are much more effective. Um there’s become a greater belief in mercy and giving people second chances. So these issues well, I like to say the growth in prisons was bipartisan, and now the effort to start decarceration is also a bipartisan thing. This is not one that one party or the other can claim some kind of uh huh, you know, a special role in uh in terms of current reforms and what I’m seeing on the one hand, I’m very pleased to be seeing this focus on decarceration and a desire to depopulate facilities. And there are plenty of proposals out there, everything from more diversionary programs to sentencing reform, to not prosecuting certain types of cases. Drug cases, for example, to changing parole laws and getting more people out. Um that’s the good news, the bad news, is that what we’re mostly doing is tinkering around the edges. Um we’re not seeing huge decreases. The fact that it has stopped growing is itself a major accomplishment. I don’t want to under you know, diminish that accomplishment.

[0:26:08 Peniel] We still have two million people,

[0:26:10 Michele] still more than two million people locked up. And the kind of reforms we’re talking about are not lowering those numbers quickly enough or in large numbers enough. If we wanted to cut the rate of incarceration by 50% which is what many advocates have called for. And that’s not, that’s only rolling it back to where it was in the eighties. It’s not a huge. Not so long ago, we would have to be doing things that no one’s really talking about seriously and

[0:26:40 Peniel] what are some of those things.

[0:26:41 Michele] First of all, we need to recognize that we lock up too many people for far too long. And that means that we need to get into the population that most people think of as the violent offender population. Um, no one is talking about releasing people who are scary and dangerous to our streets, but we also need to recognize there are a lot of people who have committed crimes of violence who are no longer a risk to our communities. And yet we still have so much um, a desire for so much vengeance that we are keeping them locked up long past the time when they present a risk to our communities. Um, and you know, we’ve gotten our ounce of flesh and we need to be starting to be open to some reforms in that area.

[0:27:32 Peniel] And what about race? How race plays a role in sort of this disproportionality? I think now there’s sort of common consensus that, yes, we saw Attorney general eric holder and Attorney General, Loretta lynch acknowledge this and try to do some reforms, including juvenile justice reforms at the federal level where they had control. Um, but but race is still such a divisive topic in US politics. Where do we go?

[0:27:59 Michele] Well, that’s really, really interesting question. I don’t think there’s anyone who looks at or works in the criminal justice system who does not acknowledge that race is a huge factor. No question about that. There’s and we are seeing some reforms that are having an impact on race. The the level of racial disparity in terms of who goes to prison is reduced significantly reduced in recent years. It’s not anywhere where it needs to be, there’s still a huge amounts of racial disparity, but the amount of disparity is decreasing

[0:28:32 Peniel] the gap.

[0:28:33 Michele] The gap is changing. However, the um we are still seeing racial disparity growing in one area, and that has to do with how long people are spending incarcerated. And this goes to this point. I was just making about how we need to start looking at people who have committed crimes of violence, um because there is so much disproportionality there. Um First of all, secondly, um parole is affected by so many factors, including um people’s criminal history which we know is infused by by race. Um It’s also affected by bias in the correction system, disciplinary events, for example, that could be racially biased. All of that goes into how long people spend locked up. And that is a serious problem. There’s another point I want to make, and that is even as more attention gets paid to the very well known statistics about how many people of color in the criminal justice system and the racial disparity. It turns out that there have been studies that show that the more you focus on that the more punitive our policies get interesting. So it actually is almost counterproductive in many cases, to talk about race and that presents a real dilemma. How do we talk about these issues honestly and not end up in a worse situation? Why

[0:29:56 Peniel] do you think the policy has gotten more punitive?

[0:29:59 Michele] I think that there is so much racism in our society that as we draw attention to how many people of color in the criminal justice system, there are many people out there who think that’s because people of color are committing more crimes, so it leads to more punitive policy. Do you think

[0:30:16 Peniel] that’s the same in terms of gender and youth to like the more we talk about

[0:30:20 Michele] like women? Okay, I don’t think so. I think that that’s a very different dynamic.

[0:30:25 Peniel] Alright, well, final question with this discussion where where do we go? Are you optimistic? Um one of the things you talked about in your ted talk was this idea of anger and whether or not we should be angry about not just, you know, youth incarceration, but just this criminal justice system that needs really dramatic reforms, you know? Um how do you feel now? Uh, in 20 21st step Act has been passed. We are talking about this. Um, there has been some positive progress, but there’s so much that needs to be done. Um are you, are you optimistic that we’re gonna, we’re gonna get there?

[0:31:03 Michele] Uh, depends what day you ask me? Um, I think if I didn’t have hope, I couldn’t keep doing the work that I do. Um, but I’m not seeing the level of reform I would like to see. Um on the other hand, I am seeing pockets of things that I find so impressive and so hope inducing. And I choose to spend my time working on two things. One is pointing out in addressing the problems where I see them, but the other is also trying to work with agencies and organizations that want to do something different because that’s where I find the hopeful part.

[0:31:43 Peniel] All right, we’ll end on that positive note, pockets of hope. We’ve been discussing the criminal justice system and criminal justice reform and prospects for criminal justice reform with Professor Michelle Dyke, who is professor of law and at the LBJ School of Public Affairs and she is an national recognized expert on correctional oversight, um, juvenile justice and um, trying to have gender equity, uh, in local jails. Um, and she’s sharing the Travis County Sheriff’s advisory Committee on women’s jails. Um, She has won numerous teaching awards, including being named to the 2019 texas Top 10 list, the top most inspiring professors at the University of texas at Austin. She’s been a saurus senior justice fellow and as the recipient of the 2019 Nicole Flame Award for significant contributions to correctional oversight, Michelle, It’s been a pleasure.

[0:32:40 Michele] Well, thank you for having me panel.

[0:32:43 Peniel] Thanks for listening to this episode. And you can check out related content on twitter at Peniel joseph. That’s Peniel Joseph

[0:32:55 Michele] and our

[0:32:56 Peniel] website CSRD.LBJ.utexas.edu. And the Center for Study of Race and Democracy is on facebook as well. This podcast was recorded at the Liberal Arts Development studio at the College of Liberal Arts at the University of Texas at Austin. Thank you.