Joshua B. Hoe interviews Laura Bennett about her FWD.US report “Freedom then the Press” on episode 110 of the Decarceration Nation Podcast
Full Episode
My Guest: Laura Bennett
Laura Bennett is a policy and research manager at FWD.us. In that role, she has helped to identify decarceral policy agendas for the organization’s state-based work and conducted research on the policies and practices that perpetuate mass incarceration. Prior to joining FWD.us, she worked on sentencing and parole reform campaigns in a number of states, including Maryland, Louisiana, and South Carolina.
Notes from Episode 110 Laura Bennett
You can read Laura’s report “Freedom then the Press: New York Bail and Media Reform.”
The books Laura recommended were:
Michelle Alexander, The New Jim Crow: Mass Incarceration in the age of Colorblindness
Jasmine Ward, Sing Unburied Sing
Tayari Jones, An American Marriage
Full Transcript
Joshua B. Hoe
Hello and welcome to Episode 110 of the DecarcerationNation podcast, a podcast about radically reimagining America’s criminal justice system.
I’m Josh Hoe, and among other things, I’m formerly incarcerated; a freelance writer; a criminal justice reform advocate; a policy analyst; and the author of the book Writing Your Own Best Story: Addiction and Living Hope.
Today’s episode is my interview with Laura Bennett, about the FWD.us report, Freedom Then the Press: New York Media and Bail Reform. Laura Bennett is a Policy and Research Manager at FWD.us. In that role, she has helped to identify decarceral policy agendas for the organization’s state-based work and conducted research on the policies and practices that perpetuate mass incarceration. Prior to joining FWD.us, she worked on sentencing and parole reform campaigns in a number of states, including Maryland, Louisiana, and South Carolina. Welcome to the Decarceration Nation podcast, Laura.
Laura Bennett
Thanks so much, Josh. I’m really happy to be here.
Joshua B. Hoe
I always ask the same first question. It’s kind of the comic book origin story question: how did you get from wherever you started in life to where you are, working in criminal justice, and writing a report about New York and bail reform?
Laura Bennett
I don’t think my origin story is as exciting as most of the comic book ones, but I can give it a shot. What I do today is heavily informed by how and where I grew up. I’m from a small town in Georgia that is, that was, and continues to be, highly segregated and deeply unequal along lines of race and income. It took me a long time, really an embarrassingly long time until after I’d left home to go to college, to understand how much racism had shaped that place, my own life and the lives of everybody living there. And I knew sort of at a basic gut level that I wanted to do something about that, you know, professionally, or with my professional life, but I did not yet have any very creative ideas about how or what that should be. So I spent a lot of time trying to learn more and more, and like a lot of people I was moved by Michelle Alexander’s argument, that mass incarceration is sort of the latest version of legalized racial oppression. And ultimately, I was jolted into action, you know, to really kind of start my professional life in this field, after Trayvon Martin’s murder. So with a clear idea of, you know, the field I wanted to work in and the type of work I wanted to do, focused on racial justice, I went back to school for public policy, got a job working as a data analyst for criminal justice reform campaigns, that as you said, in your intro, we’re focused at the state level. So I’ve now, several years in, worked in a whole bunch of states from Louisiana, Mississippi, to New York. But there have been a couple things I’ve tried to keep consistent throughout my career. First of all, I’ve tried to make sure that a lot of my work is focused in the south. That’s where I’m from. And I feel a real responsibility to help make it a better place for everybody to live and flourish. And I’ve also tried to make sure that my career is as a helper in the movement. I haven’t been in prison, and neither has anybody in my immediate family. So you know, I work at a campaign organization. I don’t think within that organization, I should be the person out in front with a megaphone or the person making the final call. When legislation is being negotiated, that’s going to impact 1000s of people. So I’ve tried to focus my work on data research policy analysis as a way to help arm those folks with the megaphones and who are making those final calls with as much information as possible. And I’ve been really lucky at FWD to take a broad view of research, work on projects like the one that we’ll talk about today. As you know, a lot of research in our field is based on data that comes from law enforcement, or jail and prison systems. And that data really boils people down to one thing, which is what they’ve been convicted of. And we want to make sure that our research pushes beyond that really limited and sometimes harmful data. So we have started to do more things like surveys, interviews, and in this case analysis of other actors that influence the criminal justice system, like the media.
Josh Hoe
You mentioned Mississippi, but you know, hopefully, you can get to Alabama and Florida too, and maybe Texas since you’re doing work in the south.
Laura Bennett
A tour of the South, there is plenty of work to be done in every place you just mentioned for sure.
Josh Hoe
As someone who does a little bit of national work, I’ve certainly become, unfortunately, way too familiar with a lot of the problems that are being faced in the prison systems in the south. Not that they’re great anywhere.
Laura Bennett
No, but there is a unique sort of cruelty to some of the prison systems in the south. It’s really been horrible to watch what’s going on, particularly in Alabama, as you just mentioned.
Josh Hoe
Yeah, I mean, you think that two, even in the Trump administration, putting out two reports on Alabama would be enough to move them to perhaps change some of their practices. But that doesn’t seem to have been the case?
Laura Bennett
No, it does not, unfortunately.
Josh Hoe
So we’re here to discuss your report Freedom, Then the Press: New York Media and Bail Reform, which is a good thing for me to talk about, since I actually spent a lot of time messaging during the negative campaign that you’re referring to in this report. This report is really, in many ways, about press coverage of bail reform in New York City, and New York in general. As a backdrop, we’re currently going through a similar national press hysteria about crime right now, where the media tends to favor police and law enforcement sources, instead of even usually asking criminologists, impacted people, activists, defense attorneys, or other kinds of informant sources. Where do you think this relationship, this unholy relationship between the press and law enforcement starts and what makes it so strong?
Laura Bennett
I think, honestly, that the police departments and other law enforcement agencies have been very, very savvy in thinking about their relationships with the media. There’s been some research to document this, that police departments, I think they’ve been studied disproportionately, but this is true of DEA offices as well, they really spend a lot of time and money on their communications. So they have a lot of Public Information Officers, and they hold a lot of high-profile press conferences, and they make sure they are constantly sharing out information and press releases with the media. And they understand something that the polling backs up, which is that the popularity of law enforcement officers is oftentimes tied to what people see about them in the media, much more so than it is tied to actual crime trends. So the media has been very, very receptive to that outreach, and they’ve kind of run with it. So we know that stories about crime and violence sell really well. They sell well, for reasons that certainly deserve their own podcast episodes, I think most notably, racism, and just general fear of the other in this country. So news outlets have been printing that type of sensationalized, racialized coverage of crime for decades. But it really sort of hits a modern peak in the 80s and the 90s. And you see the men who were convicted and later exonerated, for the rape of a woman in Central Park called a “wolf pack”, you see this awful super-predator term, and these terms are just used with no critique. And the reports from the police departments are taken with no critique by a lot of press outlets. And there’s been a ton of research now to suggest that that type of media coverage really strongly influences public opinion, and makes people more punitive. It makes people more likely to support the types of punishment that define mass incarceration. and that in turn, influences public policy. Lawmakers are way too willing, they’re way too willing to follow, and also share and encourage the most punitive sort of instincts of the public. So the media has become not so much an objective observer, not so much a documenter of the types of extreme punishment that have become just shockingly common in the US, but really have played a central role in the creation and continuation of those policies. Fortunately, I do think – I know you are well aware of this – there has been a shift. To some extent, you see a lot more media companies dedicating coverage, even maybe whole verticals, to covering the criminal justice system, instead of just covering crime stories, like the traditional crime beat; we see The Marshall Project arise, you see The Appeal, and that’s a big, it’s a big improvement. But there are still major problems, as you noted. I think one of the biggest ones is that law enforcement continues to be prioritized as a source even after they’ve proven to not really be an honest actor, in a lot of ways.
Josh Hoe
So on January 1, 2020, bail reform passes in New York. Why did New York need reform of its bail system? I mean, obviously, I have some thoughts about that. And, what changes did New York actually make, just to set the table?
Laura Bennett
Yep. So the reforms passed in 2019, and in the years just proceeding that, there were more than 60,000 people every year cycling through New York’s jails, just almost exclusively because they could not afford bail. Most of those people were black or Latinx. And so there was years of work being done that started really with the families of folks like Kalief Browder, with the families of people like Layleen Polanco, who had lost their lives and their freedom to this really unjust system of pre-trial jailing. So there was work done for years by these families, by other advocates, to try to say, no, this system makes no sense. It’s cruel, it’s killing people, we have to stop this. And then 2019, this big package of reforms passes. And I think one of the really exciting things about it is that it tried to build on lessons we’ve learned from pre-trial reforms in other states and localities, that if you leave discretion available to judges, they will use it, and they will use it to detain people. So the law that eventually passed in New York, although it was not perfect, it did wind up mandating release for about 90% of people arrested in New York. So that’s a big change. It says, you know, you just simply cannot set bail for these people. There’s no, there’s no loophole, there’s no, there’s no discretion. But like I said, it was only 90% of people. So there were people who were excluded. And it’s important to make note of that. And to recognize that this did not help every single person, there were a lot of folks who were excluded. They were largely people convicted of felonies that the state defines as violent, and sex-related offenses. So this reform, is like a whole bunch of others before it and since, that sort of fall prey to that faulty dichotomy, that violent versus non-violent. So you know, like I said, far from perfect, but these reforms did mandate and usher in a really big increase in pre-trial freedom, that let a whole, you know, 1000s and 1000s of more people go home to fight their cases from home with their families.
Josh Hoe
And the second part of that was a change to the discovery laws. Do you want to talk about that a little bit, too?
Laura Bennett
Sure, I can try, I always feel just a little bit out of my depth on discovery, because it feels much more sort of technical and legal to me, and I am not a lawyer. Maybe you’ll get some mail from lawyers telling you what we got wrong. But I think the basic story here is that New York had a really, really restrictive discovery process. So the law basically allowed prosecutors to withhold evidence until the eve of trial. And as you know, almost nobody goes to trial, huge numbers of people never got to see the evidence against them, never got to build a case based on what the state thought they knew about them. And so these reforms were really just extremely common sense. It’s just very much bringing New York in line with other states that have a more open discovery process where the defense and the prosecutor share information back and forth and do that much earlier in the process. So these really weren’t radical changes. But if you were to read about them in the newspaper, if you were to read what DAs have to say about them, you would certainly think that they were.
Josh Hoe
One thing you mentioned in the report was that during the legislative process leading up to the passage and implementation of bail reform, law enforcement, and prosecutors, as part of law enforcement, were part of that process. A lot of times you hear the Prosecutors’ Association say, we don’t make the laws, we just enforce the laws. Do you want to talk a little bit more about how law enforcement is actually involved in the passage of laws?
Laura Bennett
Absolutely. Law enforcement, every phase, from police departments to DAs to COs, in my experience at least, working in state capitols, often do weigh in on law, or on legislation, even though there may be times when they say, oh, we’re just here to enforce it. What you actually see happening in the Capitol is quite a lot of advocacy and lobbying. And, those folks have a lot of power. There’s actually some new research out from UNC about this, about the political power, particularly of prosecutors, and I’m sure you will not be surprised to hear that they do have a lot of power, the bills that they back are really likely to pass; the bills they oppose are really likely to fail. And that’s the same in New York. So, you know, right from the jump. A couple years back before bail reform even passed, there were hearings being held for the public at the capitol, DAs were coming to testify, other law enforcement came to testify. There were constant press conferences being held in the Capitol by district attorneys and sheriffs and other folks to make their views about bail reform and discovery reform and other issues known. Lawmakers met with them and listened to them. And, and frankly, you know, as we talked about, this law did exclude a lot of folks. It did not impact everybody. And those exclusions that remain in the law are largely there because law enforcement asked for them. So to say this was done with no input, it’s just not true.
Josh Hoe
I often say as someone who works on state issues quite a bit, that I’ve never seen any piece of legislation passed where the prosecutors hadn’t weighed in on it, law enforcement hadn’t weighed in on it. So that always causes a lot of disconnect when you hear them say things like that. So almost immediately after bail reform passes, and it’s implemented in New York, we start almost immediately to see massive pushback in the press. And a lot of it seemed almost planned and orchestrated. The first stories I personally saw tied some earlier, violent anti-semitic attacks, to a slapping incident, including some anti-semitic utterances by a woman named Tiffany Harris. What did you notice when you were doing your research? What did you notice in the press during the immediate aftermath of the passage and implementation of this new reform?
Laura Bennett
You’re absolutely right, that the press started before the reforms were implemented. I mean, I think we can look back to even September of 2019. And you start to see these stories saying, Man released because of bail reform, it’s like, What are you talking about? Bail reform does not go into effect until January. And I think what we saw is that the folks who had opposed bail reform, knew that a lot of people were going to be released, they knew that when people are released from jail and prison, those stories, if they’re written in a sensationalized way, get a lot of clicks. So they were ready, they were ready with cherry-picked stories that were designed to stoke fear. And I watched this happen in New York, it was certainly not unique to that place. I remember I worked in Louisiana on a big sentencing reform campaign, and there was a provision in the law that passed that made a retroactive change to earn time. And so a whole bunch of people were slated to get out on the same day, because that retroactive earn time, you know, said their time was up. And the folks who would oppose those reforms started publishing their names and their conviction information in the newspaper, and so that same kind of thing starts happening in New York. But I think the thing that I noticed the most, and that was one of the most shocking things is that the stories that were being touted were really often just not true. Very, very often the people that these stories would claim were released because of bail reform, were actually just released at the discretion of the judge; judges have always had the ability to charge bail or not charge bail, to let somebody go home on their own recognizance. And that is actually something that judges did very often, but not often enough. But very often, before bail reform passes in New York, and this is probably unique I think, particularly in New York City, but about three-quarters of people, before bail reform passed, went home, no bail, to await trial there. And so, that kept happening. So even in cases where the judge could ask for bail, they often wouldn’t, and folks would go home like they always had. But law enforcement acted like every single person who was released from jail was released because of bail reform and bail reform alone. And so that’s what we saw happening. And it was just a torrent that started in September, and it has not let up.
Josh Hoe
I remember debunking a lot of almost in real-time would read through the articles, and you can almost immediately if you had been paying attention, could debunk the article and figure out why it wasn’t bail reform. It’s almost like a weird kind of crossword puzzle game that you do every time, as they were coming out. The weird thing to me, though, in a lot of ways, is the lack of context. What I like to always say when I’m talking to legislators and other folks, is that the real question is, how many people committed new crimes or recidivated, before reform, compared to after reform? And there was none of that. People have always recidivated; it’s a question of the relative context of the recidivism, related to the reform, and so I think you’re right that this seemed not only dishonest in the cases they picked, but also just entirely lacking in context. Am I wrong?
Laura Bennett
Oh, You’re absolutely right. I mean, now that we’ve had enough time to go back and take a look, it turns out, as you just said, that there is no, there has been no increase in folks getting arrested after they’ve been released, people are showing up to court, all the things that research told us would happen. That of course, bail reform was not going to harm public safety, that all turned out to be true. But you don’t see in these sensational articles, you don’t see mention of that. And I guess I shouldn’t speak with such a broad brush, there were some outlets that were doing a better job. But you see a lot of articles that are: this person is released and rearrested. Half the time, that’s not even true. And when it is true, there is no context around it, as you said. And so it’s just a really, really harmful sort of cycle that we see playing out in the media, and it’s still happening. Right before I logged in to talk with you, I got another headline, that was just like all the ones we’ve seen before.
Josh Hoe
Yeah, it was so frustrating. And I think you could probably tell some, you’ve probably seen more examples of this than I have since you were doing this research. But you know, there were times when the same outlet, the New York Post being the one that comes to mind the most, was putting out multiple articles about this terrible bail reform and all the people who’d committed crimes. And at the same time, they were putting out articles about how the police statistics didn’t even back their own stories.
Laura Bennett
Wasn’t that wild?
Josh Hoe
You could probably tell a bunch better stories than I can. But that’s the one that stood out in my mind during all of this.
Laura Bennett
I have to say that I did not expect the New York Post to be the outlet that debunked the NYPD on this one. Because as you said, they were sort of the primary paper that was running these headlines and their editorial board was vociferously opposed to bail reform and calling for it to be rolled back. But you know, what we saw was almost immediately, in January, just a few days after the reforms went into effect, you see NYPD top brass come out and say, oh, bail reforms [are] leading to a spike in crime, it’s causing all these new shootings. And you know, they’re still saying that. But months later, in July of 2020, the New York Post got a hold of a bunch of data from January through June, I believe. And what they saw is that one person who had been released because of bail reform had been charged with a shooting in the first half of 2020. So that’s just an entirely, you know, just categorically wrong claim. But they have not stopped making that claim. As you said, we’re now seeing what we saw happening in New York last year, we’re now seeing happen on the national stage, where all these different criminal justice reforms are being blamed for an increase in homicide in some cities. And it’s not true. I mean, this is a tragic, absolutely devastating increase. And the experts on this are saying, Okay, this is happening across jurisdictions, this is certainly not limited to places that have implemented criminal justice reforms. And it’s actually, I think, a much more common-sense explanation that I hear most people having, which is that we are going through severe economic and social instability right now because of the pandemic. And there’s an increased prevalence of guns. But instead of focusing on that, we still see the same people blaming bail reform, even though the New York Post, no friend of bail reform, has said it’s just simply not true.
Josh Hoe
I went through this crime stuff, the homicide increase, and went to the top 100 cities, found out which ones had Republican mayors, which ones had tough-on-crime prosecutors, and found that almost all of those cities, were strangely enough, experiencing the exact same increase in homicides and domestic violence that everybody else was. And you know, that’s just me doing the old Google search. So one of the things that seems really strange to me about how this all went down – and I have my own suspicions – is that people on my end of the street, [the] working toward reform in the legislature end of the street, get so invested in getting the reform passed and implemented. The ones that happens you kind of move on to other things, but do you have a theory after looking, you’re doing media analysis and other things, as to why it seemed like the people on the reforms, the activists, people who’d worked for it, seemed to some extent to be largely out-foxed by just, no pun intended, by the “copaganda” reaction? Or at least were caught to some extent flat-footed by the sheer volume of press against bail reform, etc.
Laura Bennett
Absolutely. I felt like after the reforms passed, everybody knew. I don’t think anybody was too naive to think that there would not be a backlash, I think a few different factors conspired to make it really difficult. First of all, I don’t think any of us were expecting it to start so early. Well, before the law had legally taken effect. So, you know, there were sort of plans to figure out okay, we expect this opposition coming, let’s start getting a plan together. But by the time we were doing that it was already happening. So by then we’re kind of creating the plan as we’re also trying to implement it. And there’s also I think, to some extent, a funding issue, which is that I think a lot of funders in the criminal justice space sometimes say, okay, we’re gonna fund this campaign to win this big legislative victory. But you can lose those legislative victories so quickly, if you don’t give people the ability, the time and the space, to really work on implementation and on protecting those reforms. So I think that there are sometimes tough incentives in the fund that funders create. But yeah, I think partially, it was a little bit of being caught off-guard because of how early it started. But there’s also just the fact of, you know, when a person is arrested, the police have proved to be very willing, in a lot of cases, to immediately contact the press about that. And there’s no harm, there’s no downside for them. But for that person who’s been arrested, you know, their lawyer is most likely going to advise them to say, Hey, listen, you have an open case, I would not go talk to the press about this. And so it becomes very hard to combat the narrative because you’re asking people who are, who have open cases where they are facing these same law enforcement officials to speak out about the injustice of what’s happening to them. And so there’s a real strong power imbalance there, where there’s no downside for a lot of law enforcement officials to go to the press, but there is meaningful downside for the folks who are being impacted by the system to talk to the press about it. So, you know I’m really proud of the work that so many organizations did pushing back. I think one of the highlights of the campaign that I can remember is, there was an awful article in CBS that used the term “HIV attack” to refer to an instance of a man who was arrested for spitting at a police officer. And the police officer went to the media – I guess actually it was his boss who went to the media – and said oh, he’s gonna spread HIV with his saliva, which, you know, is totally ridiculous, no science to back it up. A terribly homophobic headline and there was immediate, the same day, there was a protest at CBS’ offices, the headline was changed, the article was changed and the reporter was actually let go. And so there was a lot of powerful organizing happening. But I do think there is a real power imbalance in terms of which stories or incentives, you know, people are incentivized to go to the press with, and frankly, in who the reporters listened to. We would pitch over and over again and say, please come talk to us, come talk to other advocates, come talk to folks who have been through the system before, and we were not getting very many calls from reporters, but certainly, law enforcement was.
Josh Hoe
So as you mentioned earlier, one of the bad things about this is that it really does have an effect on public opinion. And after the turn of negative press tied to bail reform, public opinion began to shift strongly against bail reform. You suggested in the report that the shift in public sentiment is much more likely to have been caused by the torrent of negative articles about the reforms. I agree with that. What was the basis for that conclusion?
Laura Bennett
Sure. Siena does a lot of polling in New York, they polled the public about bail reform in April 2019. Support was above 50%. They asked the exact same question on January 21 of 2020, 21 days after the law took effect. Support had dropped by 21 or by almost 20 percentage points. So that’s 21 days after the law takes effect. We know from data that people who were released because of the reforms were returning to court at very high rates, they were very, very rarely being rearrested. So it does not seem likely that the decline could have come from people’s real-world experience of the laws, but from instead what they were reading in the headlines. So, you know, there’s a lot of research to back this up now from Sara Sun Beale and lots of other folks to show that this type of coverage can and does influence public opinion and it makes people more punitive.
Josh Hoe
And not surprisingly, after all this happened, and all the public sentiment changed without much evidence, the Governor used some pretty serious strongarm tactics. I seem to remember him threatening COVID funds to roll back large portions of the bail reform bill. Do you want to talk about what happened there?
Laura Bennett
Yeah, I think this is the most important part of the conversation. I really want to step back and just think through the cruelty of what happened here. So you’re right, that the Governor certainly advocated for rollbacks, and the legislature, many legislators did as well. And the legislature did wind up passing a rollback to the reforms that they knew were going to send more people to jail. This happened in April of 2020, as COVID is just ripping through New York City in particular, and eventually through New York State. By then we knew that jails were among the most dangerous places to be during this deadliest pandemic in modern history. That law that passed made more charges eligible for bail, and it also did something very sort of nefarious, that was a little bit less obvious in the law, which is that it broadly expanded people who could be detained after they were initially released. It’s a little bit technical, but it essentially said, Any person who is charged with a misdemeanor or a felony that involved harm to a person or property, who is initially released, if they’re later arrested for another misdemeanor or felony that involves harm to person or property, they can be charged bail, and jailed. And that is a very broad term, involving harm to person or property. And we know that it’s being used really broadly, to incarcerate a lot of people. And that is all like I said – I think it can’t be emphasized enough – all of this is happening during COVID. You see New York’s jail population going up during COVID, which is unusual. Many other states were – they were not doing enough of it, they were doing it too slowly – but they were trying to get people out, and New York is actually locking more people up.1
Josh Hoe
The report said that since the rollback, the number of people held pre-trial increased 31%. Is that correct?
Laura Bennett
It’s higher; now the number is even higher. There are almost 3000 more people in jail every day today than there were before the rollbacks went into effect. And it’s just unconscionable. And now you see the effort to close Rikers is being imperiled by this because you’ve got a jail population that’s back up above the size they say it needs to be to close Rikers. So it was really almost, it was almost unbelievable to watch it happen in real-time.
Josh Hoe
We talked about this a little bit before, but over the last several years, the research really isn’t on the side of any of this, the research suggests that New York, New Jersey, Kentucky, DC, Philadelphia, California, several other places that [have] bail reform, not only didn’t increase recidivism, it didn’t even increase failure to appear tickets. Has there been any actual evidentiary basis you’ve seen for the connection between bail reform in New York and increased crime at any level? Have you seen anything in any of this work?
Laura Bennett
No, absolutely not. You’re right, that there is really a broad literature on this. And one of the main studies that documents this actually came from New York, after New York City had made some changes to its bail practices that let more people go home. And what folks saw is that public safety was actually improved by that. So there is no, there is no public safety argument to lock people up before trial. Places that have instituted bail reform and actually seen decarceration have not suffered any ill effects in terms of public safety. But that did not stop column after column, inch after column inch, being filled up with that very claim, even though there was really plenty of evidence to show it was both not true in New York or any other jurisdiction that you want to look up.
Josh Hoe
So if I’m following this to its conclusion correctly, official and police sources push this mostly false narrative so effectively, that they were able to reverse a new law that probably would have helped a lot of real people, and they did not actually protect public safety at all in the process. To what motives do you attribute this campaign? I can only imagine what they get out of it, but I’m sure you have some theories.
Laura Bennett
I think we’ve seen this happen a lot just historically in the criminal justice reform movement, that a lot of actors at every stage, you know, practitioners in the criminal justice system, are going to defend the status quo. I think in a case like bail reform you had discretion being removed from certain actors in the system. And I have yet to meet an actor in the criminal justice system who wants to have their discretion taken away. So I think that’s part of what’s going on. And there was also a lot of racist dog-whistling happening in this campaign. I mean, dog-whistling is honestly generous. The word thug was used just constantly by opponents and by reporters. And so – and you touched on this earlier – but these stories get clicks, and a lot of media outlets, – again, I want to be sure not to to make it sound like it was everyone because it wasn’t – but a lot of media outlets continued responding to that incentive, even though a lot of times they knew that the actors they were talking with had not told them the truth in the past, and they were still printing unfact-checked stories. So it was, I think, a combination of a lot of different things. But I think there were some really perverse incentives for media there. And then some real just opposition to any type of change from many, many law enforcement officials.
Josh Hoe
Just a couple of weeks ago, we saw Bill, a couple days ago, we saw Bill Bratton in the New York Times talking about how the crime increases because of defunding the police, when we all know that very few people have actually defunded any police departments, in fact in New York the police budget, I believe, is $10.2 billion.
Laura Bennett
Right, and it’s going up most places. So it’s really disappointing to see such easily disprovable claims just continue to be reprinted. And, you know, I think this New York example is just a case study of the harm it causes. It’s not just rhetorical; people have paid for this with their freedom, and.
Josh Hoe
In some cases, much more, with their lives. You say in the report that there were three parts of the process of this campaign: first, releasing inaccurate information; second, using dehumanizing language; and third, relying exclusively on law enforcement sources. So first, how do you think that people working for reform can be better-positioned in the future to combat or to influence the media campaigns?
Laura Bennett
I think I learned a few lessons from this. One was – I know I’ve touched on this a bit so I won’t repeat myself too much – but I do think that advocates will benefit from expecting this to happen earlier than you think it could even be possible. And I know the folks in Illinois who have fought so hard to get their pre-trial laws changed, are going to be going through this and I know they’re getting ready. And I’m really glad to know how much powerful organizing is going on up there. I think having defined roles is important. You know, somebody’s got to track all this press so they can know what to respond to. We had folks who knew the law really well, who were at the ready to say, Nope, that’s not true. And other people who are really good at talking to reporters, on call to say, You call that reporter, you call this reporter, you call the other reporter. So I think making sure that the folks who are going to be involved in the implementation push know exactly what they’re doing is important. We did learn that. I know that bill was partially rolled back, but we did not lose the whole bill. And we did not see risk assessment introduced or some of the more sort of insidious things that were being threatened to happen. So I think to some extent, we learned that fighting back can help; if you stay on reporters enough, some of them will start to call us, some of them will start to be a little more critical of the information they’re receiving from law enforcement. But I think one of the key things is not to just stay living in that constantly defensive posture of always saying I’m just responding, responding, responding to the bad stories all the time, to try and explain the positives, to trying to just reject the premise that pre-trial jailing is useful or good for public safety and just reminding people of how many people are at home, how many people are with their families, how many people are not catching COVID because of these reforms, and to stay on that positive frame as much as possible. I think that’s something that can be really helpful and that we tried to do but did not always, I think, live in that positive space as much as we might have wanted to.
Josh Hoe
I think we used to call that going on offense instead of remaining on defense, which I think is actually a good strategy. I thought I was gonna ask why language was so important just to hear what your take on it was. But we’ve covered that to some extent. So I think one question is, what can we leverage on our side, that matters as much to the press or reporters as the sensationalist language they use because that generates clicks? How can we break into that you know, that financial ecology that seems to, you know, because they have an incentive to say it in the most lurid way possible because it makes people want to grab it?
Laura Bennett
Totally. And I think this is an area that the organization I work for has tried to do a little bit more research on and dig in a little bit more on. So this research actually hasn’t been released yet. But it’s coming soon. So I’m happy to talk about it a little bit. As you know, so many directly impacted people – from Eddie Ellis, and I’m sure before him and continuing long after – people have been explaining how this language, this awful language, these horrible headlines, hurt them and make it harder for them, you know, to thrive after they’re released. So we’ve tried to build on those efforts, working with a lot of folks who have led in the field, to try to push the media to do better. And the contribution we tried to make was to document these trends. So to see how is the press, how are our media outlets talking about directly- impacted people, and to do some kind of public opinion research to test the effect of that language, or how it affects public opinion, and you will not be surprised to learn that it has a major effect on public opinion. So we saw that news, most major newspapers, are still using really dehumanizing terms. Using the kind of headlines that are, that as you said, are clickbait and that that language really does bias people against directly-impacted people and against reform. And so I think, I know, this is a bit of a long and roundabout way to answer your question. But I think that there are increasing numbers of reporters who I think are trying to turn a critical eye to the criminal justice system to report on some of the harms that are happening inside that system. But they’re often still using these words like felon, convict, inmate, to do so. And I think, I hope, that when reporters hear that those terms are actually really biasing, they’re the opposite of objective, they are creating, you know, punitiveness. I hope that hearing that will urge more reporters to say, Okay, I’m trying to be objective here, I’m trying to just present some information about the system, I need to clean up my language if I want to really be objective. So I think that’s one thing we have worked with some experts in the field to try to dig in a little bit more and I hope the media is receptive. In terms of the profit-based stuff, I have to believe that there are other things that people like to click on that aren’t so harmful. So I really would encourage news outlets to see, okay, sure, people click on crime stories. What else do they really love to click on and maybe, you know . . . I understand that there are these incentives, that it is tough out there for media outlets right now to make money. But if there were a slightly less . . . what if there was an issue that did less objective harm that folks could identify and use to say this is the thing that we’re gonna do to get a lot of clicks, friendly, non-harmful, and leave these . . . like cat videos, let’s do more of those.
Josh Hoe
Stop saying convicts and give us more cats!
Laura Bennett
. . . maybe I’m really on to something here. No, I obviously know that cat videos are not the answer. But I do think it’s incumbent upon news outlets to say we have been told now, we have been shown by so many people, objective proof that this is harmful. We’ve got to figure out what is the other thing that can help us pay the bills that does not strip people of their . . . contribute to the stripping of freedom from people.
Josh Hoe
Do you think there’s room for maybe boycotts and divestment kind of organizing?
Laura Bennett
That’s a really great question. Certainly, like I said, there was some organizing, protesting that happened around some of the really most egregious outlets. And we did see responses to that. People did not like having people with signs outside of their offices, you know, calling out their harmful headline. So I’m sure I’m no great expert on how to pull off those types of tactics really well. I’ve mostly lived in more of a nerdy data and legislative world in my career, but I’m sure that is a powerful tool that can be used.
Josh Hoe
So another problem that we’ve touched on a little bit is that every time you turn on the television, or every time you open the paper, but mostly when you turn on the television, and they’re talking about a crime issue, the panel of experts is going to be an ex-prosecutor, an ex-FBI agent and a current law enforcement agent. where you said that was, you know, whenever I was trying to respond, it was a struggle to get, you know, alternative voices heard. How do we start to get activists, directly-impacted people, defense attorneys, criminologists, people who have done research in the area, how do we get their voices included? I’m just asking you, because you wrote the report; I’m sure you don’t have the answers to all the world’s problems. But what are your thoughts on how we get them to start diversifying their panels?
Laura Bennett
It’s such an important question and such a hard nut to crack. Part of the reason we wrote this report was that we hope that – I mean, maybe this is naive – we earnestly sort of hoped people would, some reporters would read it and see and think, Oh, right. Maybe I should have called this researcher or that grassroots organization and asked them a question. So I think part of the goal of this report was simply to say, Please, to make an earnest plea to do more of that, because I don’t think, it should not be incumbent upon everybody who has been, who has had an experience with the criminal justice system to dedicate a bunch of their time to calling up reporters and saying, Please call me next time this happens. That really feels like putting the burden where it does not belong. But I do think that trying to just simply raise awareness about this issue is the tactic that we’ve chosen to take. And, you know we’ve seen some success in the media starting to recognize where it’s messed up in other areas. So you see -I guess I’m going to go back a little bit to language choices here – but I think some of these examples are broader than just language choices. So you see a lot of news outlets stop using the term illegal immigrant completely. You see the New York Times saying, maybe we shouldn’t always be referring to women as Mrs. husband’s name. You see the LA Times say, Wow, as this country is starting the work of going through a racial reckoning, maybe we need to do the same thing with our newspaper. The Marshall Project spent a whole bunch of time talking about how little critique was given to the term super-predator. So I think when you see outlets doing that, trying to let them know that it’s a good thing and that we want to see more of that is one way, but really, the tactic that we’ve chosen, at least organizationally, is just to try to shine a light on it in the hopes that some folks who want to do better will.
Josh Hoe
We’ve spent a lot of time talking about, in a sense, saying here are some potentially at least bad actions, if not bad actors. But you know, at some level, we are the people who seem to be addicted to fear-of-crime stories; we are the people who created Willie Horton. At some level, is the problem? there’s an awful lot of Karens and Kens out there, too. At some level is the problem our refusal to move beyond 50 years of tough-on-crime? Is there a part of us that just seems to love it so much that we can’t let it go? Is the problem us? How do we change the narrative when so much of it might actually be us, and I’m mostly talking probably about, white folks like myself.
Laura Bennett
And myself. I think you’re absolutely right, that we are a major part of the problem. I think to fully eliminate it or root it out, we’re going to have to do a lot of reckoning with racism, I think that’s where a lot of this stuff is rooted. I just think that our punitiveness as a nation is born of racism to a large degree. And that’s going to, unfortunately, take a long time to do. But in the interim, it’s really undeniable that the media is playing a role. I think there is enough evidence to support now that the headlines do make people more punitive. And so it is incumbent on the media not to just say, oh, we’re just taking people as they are, and acknowledge that they are, they are a part of creating and perpetuating this problem. And it’s not just the news media. And you know, like I said, I tried to say, it’s not all of the news media, but it’s also not just the news media. And I think Color of Change did some awesome work on this, to kind of demonstrate how it shows up in the sphere of entertainment and scripted television. There is just so much inundating us all the time, like so many of our television shows are about police, and they really, I think, excuse a lot of really harmful behavior and make it seem normal and make it seem necessary. And so I think, it is certainly incumbent upon people, why even make it seem heroic? Oh, absolutely, absolutely. So I don’t, I don’t want to let us off the hook, I certainly don’t want to let white folks off the hook and say we shouldn’t be doing more work to try to rid ourselves of these instincts. I think the media is complicit at all levels and can can help solve the problem, but help start addressing the problem by just changing, you know, at a base level, the language, but also the types of things they cover and the types of folks they talk to when they are covering this topic.
Josh Hoe
I’ll definitely include a link to the report and to almost everything we’ve talked about in the show notes. But in a perfect world, if everything went the way you wanted it to, what impact would you like to see your report have on New York and on the national discourse on this stuff?
Laura Bennett
So I think after everything I’ve learned going through that campaign as an advocate, and then writing this report, the thing I hope for most actually is – I’m going to borrow a line from Rachel Barkow – who said that reporters really need to stop acting as stenographers for the police. And that is, I think, the practice that I saw as being one of the most harmful, most insidious, and really carrying on, or carrying over to every place I’ve ever worked, every issue, every campaign I’ve ever worked on. And so I hope that this report, in some way can help contribute to addressing that particular issue.
Josh Hoe
And another question I like to ask is, if you had a magic wand, the power to change anything you wanted, what would you like our criminal justice system to look like?
Laura Bennett
I think that most people when they think about what a criminal justice system should do, is that it should address, I guess, address and help repair harm. I don’t think our criminal justice system is very good at doing any of that. It is very good at causing harm.
Josh Hoe
Yes, it is. I can tell you from firsthand experience, yes, it is.
Laura Bennett
So I know this is a really basic and high-level answer. But I think that what we should be striving for is a system that does not harm people. And that’s sort of the bare minimum, but we are so far away from that. But I think it’s a good goal to always carry with us.
Josh Hoe
This year I’m asking people if there are any criminal justice-related books they might recommend to others; do you have any personal favorites?
Laura Bennett
Yes, so many. I know I mentioned The New Jim Crow at the top of this, which was one of the things that helped bring me into this moment. But I am a great lover of fiction. It’s sort of my first and biggest love. And so I’ve been excited to see more portrayals of the criminal justice system and how it impacts people and families showing up more and more. I loved seeing Unburied Sing by Jasmine Ward, which takes place in Mississippi and involves Parchman Prison, which is just this side of . . .
Josh Hoe
A really terrible, terrible prison in the United States.
Laura Bennett
A truly horrible place. And Mississippi is a place that’s really close to my heart. And so that book meant a lot to me. An American Marriage made a big splash a few years ago and I think helped introduce some people who might not have done a lot of reading on this topic to what happens when a couple is torn apart by imprisonment. So those are a couple that have stuck out to me. I think fiction has a really important role to play in increasing empathy and starting to do the work of undoing some of the punitiveness that is created by bad media. So I wanted to lift up a couple of novels.
Josh Hoe
Yeah, we don’t usually get, usually, it’s all nonfiction. So that’s good. Those are great additions. I always ask the same last question, what did I mess up? What question should I have asked, but did not?
Laura Bennett
Well, you didn’t mess anything up at all, from my perspective.
Josh Hoe
It’s always very nice of people to say that, but I really do hope that there are some things that, you know, people would like to talk about that maybe I didn’t highlight.
Laura Bennett
There’s one thing I didn’t mention that I wanted to, which is the political outcome of all this, right. So a big reason for, from my perspective, that the bail reforms that we were talking about were rolled back is that it was an election year; legislators were scared that all this bad press was going to make people vote against them in the election. And that is, I think, shockingly immoral to vote to send more people to jail because you’re worried about election prospects. But setting that part aside, what I want to talk about is the accuracy of that. And what we saw is that it’s just not true. So after bail reform passed, and even after it was rolled back, the attacks did not stop; the 2020 State Senate elections in New York were largely treated as a referendum on bail reform. A lot of the incumbents who voted for bail reform were attacked, there were super PACs that came out of the woodwork. There were millions of dollars spent on ads in the Willie Horton style, you had state legislators, like a picture of them with the words 9000 new crimes splashed over their face and ads. I mean, it was just awful. And guess what? Thirty-seven of the 39 incumbents who voted for bail reform won their seats back. The party, the majority party at that time that had championed the reforms, picked up seats, they got their super, super majority in modern history. So even though the public was certainly clicking on these articles, and did seem to respond to them, it did not change their willingness to back candidates who had supported these reforms. So all those millions of dollars spent, they did not accomplish much of anything at all. And this referendum on bail reform gave us, you know, a whole bunch of incumbents back who had supported them. So I think it’s really important to note that the political costs of supporting these reforms – a lot of people think, Oh, I can’t get called soft on crime – but a lot of people in New York were called soft on crime, which is ridiculous, but they did, and they still won re-election. So I just think it’s really important to note that the perceived political costs of reform are just not true. 1
Josh Hoe
That’s such an important thing to bring up. I mean, we just had the Philly DA election. And literally, the police were running the campaign against Larry Krasner. And we found that 80% of the people in the most impacted areas, the places most beset by crime, still voted for Larry Krasner, which, you know, if this narrative was largely true, could not have possibly been the case.
Laura Bennett
That’s right. And there was just the special congressional election in New Mexico that was also treated as sort of a referendum on, you know, increasing crime, and the candidate who was attacked as being soft on crime won that one too. So I think we’re really starting to see that that logic is faulty. And I hope that makes our electeds a little bit more courageous.
Josh Hoe
I just want to thank you so much for doing this. It was a real pleasure to have you on the podcast.
Laura Bennett
Thank you so much. I listen all the time. And I’m really honored to talk to you and to be on a list with so many people that I really admire your guest list. So thank you so much.
Josh Hoe
And now my take. So we have like 4000 people who were released to federal home confinement because of COVID during the last administration. Apparently, at any time, despite having low-level convictions, even the people who have gotten home and reintegrated successfully, finding jobs and community connections, could be sent back to prison at any time. Most famously, one of those people released to home confinement, Gwen Levi, was a 76-year-old grandmother who was returned to prison for attending a class she had previously gotten approved for but was violated anyway. Many people don’t understand that parole, probation, and compassionate releases are discretionary, which means you have very few rights, all the power starts and ends with your supervising agent. As the Supreme Court once held, you have no right to parole. Luckily, Gwen Levi was released again. But there’s a very real chance all of these people will be returned to prison sometime in the near future. And in the end, what purpose will that really serve? Friend of the podcast and former guest, law professor Mark Osler suggests that the only reliable and permanent solution is for the President to commute all of these people as soon as possible. I agree. And I’m calling for President Biden to commute all of the people who were sent home on home confinement as a result of COVID-19. I hope you will also join me and use your platforms, your personal platforms, to help spread this message. People have been using the hashtag #keepthemhome. The COVID crisis has caused more than enough suffering in prisons already. The last thing we need is to uproot a bunch of people who are thriving at home and return them to prison simply because we feel they were sentenced, so they should be in prison. Certainly, we understand by now that most sentence lengths are literally made up; they are not based on the actual science or concept of justice. And most of these people did no harm to anyone. Let’s not make a bad situation worse. President Biden, please commute these formerly incarcerated people.
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