Joshua B. Hoe interviews Patrice Sulton about her work at the DC Justice Lab
Full Episode
My Guest – Patrice Sulton
Patrice Sulton is an attorney, professor, and criminal justice reform advocate based in Washington DC. After working to advance racial justice in the courts and alongside grassroots movements for more than 15 years, Patrice founded the DC Justice Lab to advance community-rooted public safety reforms. She envisions rights and fights for sweeping changes to America’s criminal laws and policies. She served on the District of Columbia’s Criminal Code Reform Commission, Police Reform Commission, and Jails and Justice Task Force, including a plan to decarcerate by half and bring DC residents home to a safe environment. Patrice also teaches adjudicatory criminal procedure and trial advocacy at the George Washington University Law School.
Watch the Interview on YouTube
You can watch Episode 126 of the Decarceration Nation Podcast on our YouTube channel.
Notes from Episode 126 Patrice Sulton – DC Justice Lab
We discussed the Report of the Criminal Code Reform Commission in DC
We also discussed the Report of the DC Police Reform Commission.
We also discussed the Report of the Jail & Justice Task Force.
In addition, we discussed the RESTORE act (dealing with expungement).
Finally, we discussed the Second Look Act.
The book Patrice Sulton recommended was Privilege and Punishment, How Race and Class matter in criminal court.
Full Transcript
Joshua Hoe
Hello and welcome to Episode 126 of the Decarceration Nation 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 Patrice Sulton about her work at the DC Justice Lab.
Josh Hoe
Patrice Sulton is an attorney, professor, and criminal justice reform advocate based in Washington DC. After working to advance racial justice in the courts and alongside grassroots movements for more than 15 years, Patrice founded the DC Justice Lab to advance community-rooted public safety reforms. She envisions rights and fights for sweeping changes to America’s criminal laws and policies. She served on the District of Columbia’s Criminal Code Reform Commission, Police Reform Commission, and Jails and Justice Task Force, including a plan to decarcerate by half and bring DC residents home to a safe environment. Patrice also teaches adjudicatory criminal procedure and trial advocacy at the George Washington University Law School. Welcome to the Decarceration Nation podcast, Patrice.
Patrice Sulton
Thanks so much.
Josh Hoe
That’s one of the few times a word has tripped me up in my reading there. I always ask the same first question. How did you get from wherever you started in life to where you were fighting for sweeping changes in America’s criminal laws and policies?
Patrice Sulton
When I was in law school, I already had a really strong interest in racial justice. And I participated in a clinic program that allowed students to represent people who were charged in our criminal courts and in juvenile delinquency courtrooms. And not only was it immediately obvious that that was the racial justice issue that was most pressing for my generation, it was also something that I really enjoyed doing. It’s very similar to what I do now. All of the skills that are required of defense attorneys are required of really great teachers. And so I very much enjoyed representing people in those courtrooms.
Josh Hoe
This season, I’m trying to learn a little bit more about my guests aside from just the criminal justice reform and decarceration stuff, which is obviously pretty important. But you know, you talk to people, you get to meet up once or twice, you’d like to learn a little bit more. Do you have any hobbies or things that you like to do that might surprise people – outside of the stuff we’re going to be talking about? What are some hobbies you have? What do you like to do outside of work? I mean, I tend to just do the work myself, so I understand if there aren’t any? Wish Fulfillment. I’m hoping other people have more of a life than I do.
Patrice Sulton
My pre-COVID hobby was live music and going to a lot of concerts and festivals. And since things have been shut down, I’ve really been enjoying the outdoors more and doing a ton of hiking.
Josh Hoe
So what would you say a highlight, one of your life highlight concerts was?
Patrice Sulton
Ooh, that’s a great question. I would say – I saw Nas at the Kennedy Center with the National Symphony Orchestra. And that was really special because of the combination of styles of music and the really cool setting that it was in.
Josh Hoe
That is pretty cool. I’m kind of jealous on that one. Are there any other things, any others that stand out to you?
Patrice Sulton
I like the big outdoor festivals, lots of acts. I always think it’s fun to spend a day with friends outside and hear different artists come together and mash-up things that are new. 2
Josh Hoe
I agree. I guess probably one of my favorites was I saw Lollapalooza a couple of times, way back in the day when it was actually traveling around the country. And I remember seeing, the first time I ever saw Farside, was at Lollapalooza, and I ended up seeing that show twice. And so I got to see a lot of Farside which was a really big, big moment in the 90s. for me. I really loved it.
For people who might not be familiar, what is DC Justice Lab? I’m actually about to head to DC myself in a few days, so….
Patrice Sulton
Oh, welcome. We are a law and policy shop in DC. It sounds kind of funny that there wasn’t one before us that was really focused on changing local policy. We have tons of people focusing on making federal changes here in the city, but not very many people realize that we have a criminal justice system here in DC that is extremely vague, extremely racially disproportionate, and extremely expensive. And we’re setting out to change the way things happen in DC in the hopes that it’ll be a model for other states to follow.
Josh Hoe
And one of the projects you all have worked on is ending solitary confinement. Can you talk about the DC Justice Lab’s work on unlocking the box?
Patrice Sulton
Yes, we’re part of the national Unlock the Box Campaign, which is aiming to end the use of solitary confinement nationwide in a period of 10 years. And you may have heard a lot about DC jails over the past year because it got a lot of attention. Since we had for the first time, a handful of white people incarcerated in our jail, as a result of [Jan 6].
Josh Hoe
They were all super surprised to find out how bad jails are, weren’t they?
Patrice Sulton
Right. Everyone was surprised to learn, we don’t have a separate rich white jail, you have one jail that’s full of poor black people, and they are treated extremely poorly.
Josh Hoe
And I don’t know if you’ve had this experience. But what I’ve talked to people who go into this January 6 jail thing, the first thing I say is does this mean that you’re going to become an advocate for jail reform? They’re always like, uhhhh . . .
Patrice Sulton
It is so interesting that you know, we do have a lot of high-profile folks who get arrested protesting here. And I’m always shocked that they don’t have a strong reaction to the conditions of confinement here, so much so that they speak out about it and take it up as a cause. But it never quite happened the way it happened this time. And as unpopular as that group might be and as unfounded as some of their claims about being treated worse than others might be, their descriptions of what happens in our jail are pretty accurate. The food is bad, the confinement is that bad, the treatment is that bad. And so I’m glad to have the attention that we have had on it since November.
Josh Hoe
Yeah, it’s like the only thing I’ve ever agreed with any of them on is that the conditions in jails are terrible, which they are. Did they, I just wish that they, you know, would take that another step and realize that, that they shouldn’t just care about that for themselves, but they should care about it in a larger sense. So one of the things that always seems to come up in these solitary confinement battles, for lack of a better term, is that departments of corrections, oftentimes insist, and usually legislators go along with the idea, that they have to have a lot of security exceptions. As you’ve been doing this work, have you been running into that problem? Do you have any thoughts about how to get past that, because that seems to be what ends up happening in a lot of cases? They’ll pass some reforms. But the reforms include, you know, clauses that are big enough to drive solitary confinement cells through, and so you end up maybe not doing as much as you’d hoped to do. Are you dealing with that? Or do you have any thoughts on that?
Patrice Sulton
Yes, that’s the only problem, right? This is very different than our other campaigns. There’s no pro solitary movement. There’s no one who’s out here saying this is a really great idea to torture people en mass and cause lifelong consequences. What we have is a shortage of imagination, and will, to change things for the better. And what has happened in DC, is that we have a whole bunch of different labels for restrictive housing, where when we complain about solitary confinement, the department is able to say that’s not solitary confinement, that it’s protective custody, or administrative segregation, or gender segregation, or whatever else it is.
Josh Hoe
And so we are really stuck in the same room eating the same loaf, whatever they want to call it. 3
Patrice Sulton
Absolutely. So what I’ve tried to do, and the legislation that we’re hoping to see introduced is to make clear that we’re talking about two different things. One is anything that confines someone to a cell, right. So if you have people locked down in there with a cellmate for 23 hours a day, that still counts for what we’re trying to end; and two, is isolation from other people. So even if you have someone who’s able to leave their cell periodically throughout the day, if there’s no meaningful human interaction, that is also something that we want to make sure doesn’t happen. And we’re trying to make sure that the exceptions to that rule are as narrow as possible and as narrow as necessary to reduce harm. Everything we do is aimed at a harm reduction approach.
Josh Hoe
Sounds familiar. I say that quite a bit myself. About a year ago, you were part of a report about decentering police to improve public safety. Before I ask more about that report, can you talk with me a bit about something that’s really been in my head? And maybe you don’t have an answer to this. But I’m asking because I’m hoping you might, you know. George Floyd gets murdered. Millions of people take to the streets, we have legislators kneeling and wearing Kente cloth. And in the end, what we got was more police funding almost universally, I’m laughing, just to stop myself from crying. You know, your report actually makes the argument, the report you’re a part of, actually makes the argument that attempts to reform the police in DC, historically have often resulted in increased policing, and increased funding for policing. Have you thought about why we get in this situation where no matter what we do, the answer always seems to be more police?
Patrice Sulton
Absolutely, I’m glad that you pointed that out. Because here in DC, not only did we have people making statements that they care, we had a mural painted on the street, talking about Black Lives Matter. And we have seen no change in the last year with respect to policing. And it’s frustrating that in a year that there was so much public interest in this, in a way that I’ve never seen before in my career, we had no changes in law and policy whatsoever. We’re relating to policing. And we actually saw a proposal to increase funding for police again. What I suspect – not being the most politically savvy, right, I’m a policy person more than a politics person – is that it’s helpful to someone who needs to place the blame for a specific incident or a rise in violent crime, to be able to say I asked for more funding. And that’s the reason that this happens, is that we didn’t have enough funding. It allows you to point fingers at whoever denied the funding. And that makes me frustrated because some of the push for more funding in your departments doesn’t even feel genuine, doesn’t even feel honest, we are at almost $600 million after our police department goes over its budget. And we have 30 other police agencies in the city, almost, if you include all the federal agencies who do make traffic stops, who do make arrests in DC, they’re not just working in the White House. And it’s just such a massive, massive number of police. And as all of the black people are being pushed out of the city, that department weighs even more heavily on the remaining few who can afford to be here.
Josh Hoe
Just to follow this along a little bit. One of the things that seem to happen in this narrative is that all of the press and the police media outlets, and the prosecutor’s media outlets, point the finger, it’s the criminal justice reform that’s causing the crime. But really, if you look at things, there’s been relatively little reform, the data doesn’t really bear that out. And we spend in the neighborhood of $120 billion a year in this country on policing. But policing has never seemed to be even considered as complicit or part of the problem. I don’t even know if I have a question here. I just don’t know. What are your thoughts? The whole thing just blows my mind.
Patrice Sulton
My thoughts are that we have decades of empirical evidence at this point that aggressive policing is the problem, right? That we can show, right? We’ve measured that if you meet community violence with state violence, it doesn’t make it better, it makes it worse. And that has been the most frustrating part of the dialogue back and forth with folks who paint a picture of reform versus safety. When the people who are trying to rethink the role of police and prosecutors and prisons in our communities are trying to do the same thing, keep communities safe, reduce harm, and make sure that everyone can live as freely and as well as possible.
Josh Hoe
That’s a great bridge because at the beginning of the report, I was just about to ask you about this, there’s this great paragraph, public safety is far more than just the absence of crime. People are truly safe only when we have the space and opportunities to thrive. Now, this is apparently a controversial statement in some circles, but I think it’s pretty important. What do you think public safety really means? Let’s start there.
Patrice Sulton
I love that you pointed to that statement. If a person has nowhere to lay their head and go to sleep, how can they feel safe? If a person has no idea how they’re going to feed themselves or feed their families, how can that feel safe? That is not the common-sense definition of safety. It’s only the definition we use when we talk about policy, that we’re looking at crime stuff. That we’re looking at how much of the harm that’s inflicted in the community has been met with a police response and counted. It’s a weird metric to use. Nobody thinks about their own personal safety and well-being in these terms. And so what we’re imploring our government to do is to think about safety, the way we all think about safety, and make sure people have what they need to feel safe, which I don’t think many people would say, is a person with a gun, helping me do what I need to do day to day, right. We have this appearance of security that gives people a false sense of safety. And we need investment in those things that actually put people where they need to be.
Josh Hoe
Well, I know that usually, the narrative goes that we’re putting people in prison or in jail as a form of keeping the community safe, almost never does that actually make the community safe. And then those members are put in a place where they’re definitely not safe. I know, I’ve been there. And so it just seems confusing at best that for some reason, we’ve made this shorthand, that this is actually a system that produces safety. It’s very weird to me that that is the case. Can you talk about how the report re-envisions public safety? I know the report had over 90 recommendations, so I might be asking a lot here. But could you kind of give us an overview or a summary?
Patrice Sulton
The first half of the report is really about where investment needs to happen, right? What supports need to exist, there are things that maybe feel obvious to all of us: people need jobs, people need homes, and people need access to education and opportunity. But we put a really fine point on what that means in DC, which agencies, which opportunities, which neighborhoods are in need of which support. And then the second half of the report, which is where I light up and get my energy, is about what we do about state violence because that’s violence too. And how do we place limits on the authority of police officers to interact with people, and traffic stops, pedestrian stops, search warrants, and all these other scenarios? We don’t have to live with this constitutional floor, we can do a lot better in curtailing what police are allowed to do. And very few states are taking that approach, of saying we’re going to give people additional rights, beyond what the Supreme Court has had time and interest to decide. So far, we’re going to make clear that we don’t need you going into someone’s home looking for drugs and currency. We don’t need you stabbing someone on the street because you thought that they were making furtive gestures or looked nervous in front of a police officer. And we don’t need you pulling people over and pulling them out of their cars, because their tail light bulb went out when that’s how light bulbs work. Right. And so my energy is really around those changes because I think they’re the biggest changes, and I think that they will result in the fastest outcomes for everyone who lives here.
Josh Hoe
It seems odd to me, you know, even when I’m talking to Republican friends, I’m like you’re supposed to be for limited government. Why do you want these people who have literally the power of life and death over you to have zero accountability, which seems to be the norm? I mean, we can’t even get qualified immunity suits on these folks. In essence, you know, one out of 1000 it seems actually get, even when they do something that seems egregious, even face any consequences, it seems like almost in the old 007 James Bond sense, a license to kill. I’m not even saying that in hyperbole, I think in a lot of cases, that’s actually been the case. So it’s around the one-year anniversary of the report. What conclusions did you come to – I know you’ve mentioned some of them, but what do you think the most important thing to getting police accountability is? And second, what impact is the report having or has had so far?
Patrice Sulton
The first thing that I want to point out is that accountability is not just about punishing the officers. I hear from our police chief about oversight and accountability and proposed reforms. He has, on several occasions, painted it as if we shouldn’t do anything to officers unless they’ve done something really, really bad. And oftentimes, we’re talking about accountability and redress. It’s about taking those officers out of a position where they have a badge and a gun and a license to inflict harm on other people, which is a very different issue than whether you get to keep your pension and your friends at the department. And so when we look at conduct both on duty and off duty, we are missing this independent oversight because the police don’t want to be punished the way community members are oftentimes punished for the exact same kinds of infractions. And to me, it’s not really about punishment at all. That’s not how I go about problem-solving. It’s about removing your authority to inflict harm on others when you can’t exercise that authority responsibly or safely.
Josh Hoe
You’re singing to the choir on that. I talk all the time about the difference between accountability, amends, and punishment. You know, I think they’re very different things, and each is very important for different reasons, although I tend not to ever embrace anything, I’m not big on punishment, of the three of them. In that trilogy, I leave the punishment part to other folks, because I’m not a big fan of that. Is there anything else? The second part of the question I asked was about do you think it is having an impact, or will it have an impact? Or, what do you think’s going to happen as a result of the report in DC?
Patrice Sulton
I do think that it will have an impact, I think it should have had a bigger impact than it has to date. I think it’s very unfortunate that there’s been so little action taken as a result of this blueprint that was published an entire year ago. And when you look at a jurisdiction like this, that has such a terrible criminal legal system, and so many opportunities to fix it, right. This is not a place where we have a bicameral legislature or a bipartisan legislature. This is a place where everybody who is in leadership calls themselves progressive, says that they embrace these principles, and then does absolutely nothing, because they either are terrified of doing it politically, or they don’t have to. And so I am hopeful that we will be able to push the proposals forward. But it shouldn’t be as hard as it has been. And we shouldn’t have to wait until after election season or after people are comfortable. Taking the risk of standing up for what we’ve known for a long time is the right thing to do.
Josh Hoe
You talked a little earlier about being a policy person, not a politics person. But a lot of getting policy work done, unfortunately, does happen in the realm of politics. And, you know, one of the things that I think a lot of people get very frustrated with, is as much as they’re supposed to be Democrats and progressive Democrats that are supposed to be on our side of a lot of these issues, a lot of times they’re not for political reasons, or maybe for personal reasons. And sometimes we have to eventually figure out how to bridge that gap or tell the story to them in a way that’s persuasive. What has worked for you? I know what’s worked in my world. What’s worked in your world?
Patrice Sulton
Well, what’s working for me, as a person who’s not a politics person, is having a great team and a great number of partners in the city. What I believed at the outset of starting the organization was that people who are directly impacted should be the ones driving the change. And I didn’t expect at all that that would be such a controversial notion, that everybody who’s in a decision-making position should listen to the people who know what happened from their own firsthand accounts. And that has been really difficult. And I’ve seen a lot of value in centering those voices, raising those voices, and amplifying those narratives. And I’m going to continue doing that because I think it’s changing the landscape of politics in DC to change who’s being heard.
Josh Hoe
So you’re also part of the District Task Force on Jail and Policing, which formed and created, I think, at least two reports. Can you talk about this process and what the task force was hoping to accomplish?
Patrice Sulton
The Jails and Justice Task Force did issue two reports. And the second one, that I had more of a hand in, is an implementation plan for how DC can decarcerate by half and bring everybody home from the Federal Bureau of Prisons within 10 years . . .
Josh Hoe
Just for a second to clarify, because I don’t think everyone will necessarily know this, one of the weird things about DC is that when people get arrested in DC, they go into the federal system. Is that not correct?
Patrice Sulton
For anything over one year, we don’t have a prison here. We do have two jails. So if you’re sentenced to a year and a day or more, then you go out to the Bureau of Prisons, and you are sent hundreds or 1000s of miles from your family and network of community support.
Josh Hoe
So sorry to interrupt, go ahead with your answer. I just want people to know that there’s a sort of uniqueness about the way the DC system works.
Patrice Sulton
Thank you for sharing that. So, yes, we have a number of recommendations about how to decarcerate by half. And some of that overlaps with what you see in the Police Reform Commission’s report because the task force looked at every intercept of the system from surveillance and arrest to what I call the center of the system, my favorite part, between bail and jail, to sentencing to reach sentencing. And each of the recommendations in that report have been brought to the council’s attention and brought to the mayor’s attention and to other actors’ attention, as well. And again, we’ve seen very little action on the recommendations there.
Josh Hoe
The task force was centered around anti-racist values. I never really thought in my lifetime, we would come to a political moment where that was particularly controversial. Again, I’m just laughing to stop from crying. So are things really as bleak as they seem? Or are these the last desperate dying gasps of an empire built largely on racism? What, what are we, what are we seeing here?
Patrice Sulton
I think it is important to groundwork, particularly work with a lot of different stakeholders, in principles of anti-racism. We worked recently on a racial equity impact assessment tool for people working on gun violence prevention policies. And in there, we discussed the importance of grounding work in history and anti-racism. And so this group that came together, which was part of the council mandate, you know, thought about that, and its work. Some of the people that could take action on these recommendations were in the working group, the task force, which was very different from the police Reform Commission. We had people from the Council, we had the Director of the Department of Corrections at the table. And these things were all voted on and then put on a shelf.
Josh Hoe
So does that mean you think it’s bleak? Or do you think the last desperate gasps of a dying empire of racism? I’d like to hope it’s the latter. But I’m pretty sure it’s the former.
Patrice Sulton
I’ve always been an optimist about these things. You know, part of what’s been so interesting about the timing of me being in this work is that if you’d asked me right at the outset of my career when I was representing people one at a time, whether we would see a year like 2020, in my career, I would have hoped that by the end of the time that I was practicing law, by the end of my lifetime, there would be the kind of public interest in that kind of transformative change that we got to see. And so if that moment can happen in 2020, we can make sure that it happens again, and we can do something with the momentum that was started and, and renew it and do something really constructive with it.
Josh Hoe
Do you have any theories about all the people who were out in the streets and kind of went back into the bubble? You know, how do we reinvigorate or . . . I know I’m asking you a lot of open-ended questions, but I’m just trying to get your ideas on where you think we are.
Patrice Sulton
I think people are reluctant to continue screaming into a void when that’s what it feels like they’re doing; who wants to continue talking to or talking at someone who has made clear that they’re not going to listen and take action. And so when you can provide a meaningful avenue for their voices to make a difference and make meaningful change, people are re-energized and interested again. We had yesterday, our hearing on the police department’s budget, and we had 21 people there. And the year before George Floyd’s murder, we had 22 people there. The year of George Floyd’s murder, we had 16,000 people submit testimony to the council, and the fact that we didn’t see that happen again, is not a reflection of the fact that no one’s interested anymore. People are still talking about these issues every single day. The fact is that we’ve made clear that that venue, that audience, the lawmakers in our town are not the right place to actually get things done. And that’s sad, and we need to fix that and we can fix it.
Josh Hoe
Well, I certainly hope that you do. So the group came up with, in this report, an 80-point plan to address incarceration, and problems with incarceration in the district. Obviously, in an hour-long podcast we can’t go into it, but there are a lot of good things in there. Will you boil down some of what you’re looking at here?
Patrice Sulton
It’s really a list of off-ramps from criminalization, right? We have all these points in time, where we are requiring an armed response or other state violence like prosecution or prison that we have an opportunity to say, let’s divert people away from that or give them the supports they need or just not initiate something in the first place. And so you’ll see at each of those stages recommendations to expand opportunities to move people off of the track that leads them to a cage. And that’s how we used to train students when I was a clinical professor, right? is we would talk about, it’s like your client is on this train track. And your job is to make sure that that train does not reach its destination. And you’ve got to find any point, whether it’s writing a motion, whether it’s investigation, whatever it is, to move that train off the rails. And so here we’re asking government and system actors to do the same thing, provide opportunities for people to be able to move away from what we’ve defined as the default response to everything, which is caging.
Josh Hoe
I think some of it is also that we have this weird addiction to short-term thinking as opposed to long-term thinking. Part of the intention of what it seemed like a lot of the report is talking about is to address many of the problems that cause incarceration, and as you said, go earlier in the train track, prior to them becoming a law enforcement problem. I think again, this is something that for whatever reason, becomes a political hot button. But it seems like most everything else we do, not only doesn’t reduce crime, it often creates more crime, it creates a great deal of suffering. Is the problem here about us being kind of “pot committed” to incarceration? a serious lack of imagination? short term, long-term thinking? is it something else? A combination of things? What’s your theory here?
Patrice Sulton
All of those things are certainly relevant. I would say in addition, it’s easy, right? It’s very easy to say, look, I care about this harm that was caused, and to prove to you I care about this harm that was caused, I’m going to write a bill that says it shall be unlawful to X. And I will put a very high penalty on that. And we give people all kinds of political credit for doing that. Even when they’re criminalizing something that’s already criminal even when it wholly overlaps with something that’s already punishable.
Josh Hoe
I often talk about the making of things that are already illegal, super illegal.
Patrice Sulton
It is beyond silly. But it gets the headline, right? And a lot of what’s motivating the policies that we see are, you know, how does it play out in the media, and what do people think is actually happening and not actually how effective it is on the ground. And there’s very little thought given to what that means, to attach a penalty that’s too high to something that is relatively unserious, or something that hasn’t been written carefully enough to not capture conduct that shouldn’t be criminalized at all. We had a bill introduced the year before last that had to do with, I think, ivory and rhinoceros parts, we don’t have any wild rhinos in DC that I’m aware of. But this bill was introduced and the initial introduction had a 10-year penalty, right. And you think about 10 years as compared to the number of things that are much more serious than possession of ivory, that are punishable by a lot less time. And you think about the fact that anything that’s made a felony means the person can never have a firearm again, these are some really serious consequences for something. And it’s not being thought about that way. The penalty structure that we have right now is a reflection of what is most concerning in our news, media and not a reflection of what is relatively serious, and what the punishment needs to be or what or is appropriate.
Josh Hoe
It’s almost like one of those I don’t know . . . they used to have the scenes in bad incarceration movies where they’d all ask each other what they were in for. And then the last person would be like, I’m in for murder. I’m in for this. I’m in for stealing. I’m in for rhino smuggling, rhino horn smuggling? You know, it is crazy that we just tried, you know, I don’t know if you saw the Ketanji Brown Jackson hearings. But this was what you were just talking about, this kind of political credit, or the attempt to get political credit, was on display I think fully, most fully during the Tom Cotton questions where he was like, Do you think that sentencing someone heavily for a crime is, creates a deterrent? do you think you know and it just was going down the tough on crime checklist, to try to just, you know, say, Look, I’m the “tough on crime” guy and I’m running for president? You know, how do we think about ways to get past this politicization of everything? You know, where nothing is about – what you were saying – policy, it’s all about politics.
Patrice Sulton
It’s so tough. I mean, that’s a great example, right, of something that has absolutely nothing to do with what a Supreme Court justice has to decide anyway, right they’re not a sentencing court. That’s not even what they’re asked to do. And so drilling into somebody’s philosophy about how they would serve as a prosecutor, right, or how they would serve in another role, is not nearly as relevant as the average listener would think when hearing that line of questioning. I don’t think that there will be anytime soon that people don’t use this notion of strength, to make themselves look serious about the things that they know matter to voters and constituents, even when they know it’s misguided and unfounded. I think that we can move people to talking about the need to expand freedom and wellness and ability to thrive in a way that’s attractive and messaged better than we’ve been doing as people who understand the root causes of harm.
Josh Hoe
I was literally, during the time he was asking those questions, I was screaming back at my radio because I was listening to it as I was driving, the answers to all of his questions, because that’s like, that’s not how deterrence works. I mean, everything he said was totally ridiculous. And I just wanted so badly for her to just not have to worry about the politicization of it because they can’t answer any questions. That’s part of really, the art of being a Supreme Court nominee is never answering any questions, you know, but what I really wanted to say is you are wrong. And what you were saying is dumb. But you know that, unfortunately, it’s not the way our system works. I wish it was the way our system worked. Because it would really be nice. If when the whole nation is essentially listening to something, they could hear someone say the actual facts about these things that get batted around like that.
Patrice Sulton
It would be a great billboard, that deterrence theory is completely made up, it would be a great billboard, to have something that explains that aggressive policing is causing more crime, right? These are things that would make conversations easier if that was the starting point for most people thinking through these, but we just have done such a phenomenal job of making the system big enough that everybody associates police with safety and thinks of that as the appropriate response to any kind of fear.
Josh Hoe
I mean, I do this thing on YouTube, but I’m totally inept. I have a friend who helps me put it on YouTube and all that stuff. And I kind of wish that someone would do a split-screen where they’d have Cotton’s questions, and then have someone who actually knows the answers, answering all of his questions, just so it’s out there, you know, just so people can actually hear that everything he’s saying is total nonsense. Anyway, one of the goals of your report was to reduce – as you said – the incarcerated population by 50% by 2030. How do you think this is most feasible? And what are some of the really innovative things you all thought of to try to get to that target?
Patrice Sulton
So the Council for Court Excellence did a lot of arithmetic to see if that was actually a number that could happen as a result of some of these changes, and it wasn’t a number that was just pulled out of thin air. Interestingly, because we saw a decrease in the number of people arrested and charged during the pandemic, I think that we could ensure to move that timeline upright, that we shouldn’t be looking at 2030 anymore, that we should try to expand on some of the things that happened during the pandemic that we know worked well. So one thing that a lot of states do that DC hasn’t done yet is to create a presumption of citation in lieu of arrest. There are very few places where if you get pulled over for your driver’s license being expired, they handcuff you, take you up the street, book you, hold you, and charge you with an offense that’s punishable by a year in jail. And so we have a recommendation in there to say, look, there should be a presumption that in certain circumstances, which is not just the nature of the offense, but certain circumstances, right, like the need to detain someone, you should be required to issue a citation unless you can demonstrate that there was a need for full custodial arrest. So that’s kind of the earliest intercept that we talk about, is policing and traffic offenses.
Josh Hoe
At least in Michigan, traffic offenses are like 50% of arrests or something, close to that. It’s a very high amount. I don’t know if it’s the same in DC. But a very high percentage of the arrests that happen are around traffic here.
Patrice Sulton
We have a lot of traffic enforcement, many of them are pretextual stops, and many of them lead to arrest for contraband and other things like that. But it just has an enormous number of stops in DC, we had 83,000 stops in a single year in the District of Columbia. And that’s a lot of activity. And that was during the pandemic, I’m sorry, 80,000. It was 63,000 for five months, and then they did a full year of data. And that was, that was 80,000 stops. And so there’s just way too much interaction. We’ve had, we have one in seven Washingtonians who have a publicly available criminal record. I mean, that’s how big our system is.
Josh Hoe
I think sometimes when people get into talks with me about what do you do with the terrible people or whatever, which is a pretty traditional set of questions we get forced with, one of the things I say, I have lots of answers to that. But one of the things I talk about is imagining a different space. I say that you know, what we call now prisons and what we call jails are essentially trauma factories. And they don’t make anyone better, they make almost everybody worse, and they don’t address any of the problems. So one of the things I think you mentioned is that this report was building a non-traditional jail facility. What did this look like to you? And how can we reimagine incarceration if we have to in this country?
Patrice Sulton
Sure. So I don’t want to speak on behalf of the task force with respect to how it should look, because there isn’t a ton of detail or consensus from that group about what the design of the new facility should look like. But what I can tell you I’ve learned and have been advocating for in the recent months is that there are ways to rethink how you design a space to be a healing space, if that’s what it’s supposed to do. It’s hard for me to get excited about the details of designing a cage. I’m not someone who believes that we should be putting people in cages. But what I have learned is that you can place value and assign points for planning and knowing how to think about things like CO locating services, in the same space, things like making sure that the design is such that there’s a person in each building that knows everyone there, and you don’t have 1500 people living in the same general population, thinking about things like circular economy, and how can you design something in a way that you can repurpose it as we do parks, right? Instead of just going about facility design, thinking through things like who can make the strongest locks and the best tamper-proof lighting, right? Like we have had international associations of architects say we’re not going to design any more spaces that have solitary confinement or execution chambers, because of what we know they’re used for. And we should commit to that nationwide, it shouldn’t just be the designers, it should be everyone that says we know this isn’t working. We are having a hard time figuring out how to fix it in our existing facilities. But we’re certainly going to prospectively commit to not doing that going forward. And when we’ve asked for a commitment to that, for any new space built-in DC, we haven’t been able to get it from the agency leadership at all. And I think that’s really sad. I think it’s really unfortunate when we know that others other jurisdictions outside the state, outside the states do not torture people the same way that we do here.
Josh Hoe
And the task force made some recommendations about what to do with reentry and supervision. What was kind of the crux of that?
Patrice Sulton
Yeah, absolutely. So in addition to feeding way too many people into our system, right, we’re holding people there too long, and we have way too many ways for people to be re-incarcerated. And so you’ll see recommendations in the task force report to eliminate all mandatory minimum sentences, which is consistent with several other reports in the district and should happen this year. That’s not a hard one to write. And you’ll also see recommendations for reforms to probation. We have recommendations that spell out adding things like earned compliance credits, limiting the ability of courts to revoke people based on technical violations alone, and things that we know will reduce the number of people who are sent back. DC is not different from all the other jurisdictions in the country, in that being a growing part of the system – revocations – and in that being a really significant percentage of the people we see going to prison.
Josh Hoe
And as with the other report we talked about, you said that there were people involved on the . . . things like that in your group. You said not much has happened yet. But do you see prospects for the implementation of the recommendations? Do you think some things are going to get done? You mentioned a few that were, but on the whole, it seemed like you thought it hasn’t moved much. Do you think there’s much that’s going to move forward with this?
Patrice Sulton
It hasn’t moved much legislatively in terms of things being enacted. We have seen things introduced, we’ve had bills that we’ve written that have been introduced, and are sitting there waiting for movement from our legislature. So for example, there’s a bill that we wrote about interrogation of children. There’s a bill that we wrote about consent searches, there’s a bill that we wrote about police chasing cars through the streets, there are things that are just sitting there, and after they grab the headline, there’s not enough incentive for lawmakers to actually follow through. So I think with this safe and free DC movement that we’re building, we’re going to have enough public attention around the specific proposals that need to move and not just these general ideas of taking a new approach, to actually move the needle. And so I’m looking forward to the second half of the same Council period, getting these things over the finish line and getting more introduced along the way.
Josh Hoe
One of the things I’ve said for a long time is that the low-hanging fruit really doesn’t address the problems of mass incarceration. And I think one of the really interesting new innovations, the real heart of mass incarceration, in my mind if you look at the data, is long and indeterminate sentences, people who are serving long time. One of the really interesting new innovations addressing life and long sentences is Second Look legislation. DC was one of the first places to experiment with this. Can you first talk about what DC did? And second about – I think you all are working on something called the Second Look Amendment Act. Can you talk about that?
Patrice Sulton
We’ve had three different pieces of legislation around Second Look, and what sets it apart from reforms that you might hear relating to parole, and looking back at people’s sentences in other jurisdictions says that this isn’t about an independent body, looking at people’s sentences and deciding in a dark room, whether they can be released early; this is you go back to the court, and you have a judge who is the same body that imposed a sentence in the first place, look at the sentence that has been imposed, look at the person who’s been serving that sentence and figure out whether that sentence makes sense anymore. there is no way to know, at the time you sentence someone, who they’re going to be 10 years, 15 years, 20 years later, and there’s no way to know who we’re going to be as a society either, which is a point that I think is lost a lot along the way. And so we were the first jurisdiction in this third version of the legislation to say anybody who was under 25 years old can have a second look after 15 years. And we have in this pending package of reforms, a recommendation to expand that to everyone regardless of age. And so that’s something really exciting that I’m hoping to see replicated in other parts of the country as well.
Josh Hoe
And this brings us to sentencing in general. I think, as we were talking before this interview, you mentioned you’d heard me talk a couple of times about the notion that most sentence lengths are made up entirely, which I think is 100% accurate. I’ve never had any legal scholar tell me otherwise when I’ve asked them. And I guess you’re involved in work to try to rewrite the entire structure of how sentencing happens in DC, is that correct?
Patrice Sulton
Yeah, it was even bigger than that. So DC undertook a complete revision of its criminal code, not just the penalties, but the offense definitions as well, which is a really, really cool project. It hadn’t been revised comprehensively since 1901. We never had a Model Penal Code movement in the 60s and 70s here like 29 other states did. And so we have this old updated code that we sat down and rewrote, all of the events, definitions, all of the gradations, all of the elements, redefined them in a way that’s consistent, proportionate, clear, fair. And part of that task was assigning penalties to each of these new offenses and making sure that they were ranked in a way that makes sense and that the numbers at the top and the numbers at the bottom, which there are no numbers at the bottom, no mandatory minimums in the revised criminal code, are proportionate and reasonable. And that kind of undertaking is something that needs to happen in 50 other places after the District of Columbia gets it done, without question, because no other code has penalties that have been thought about in comparison to the other penalties that exist, everything is overlapping, everything is higher than it needs to be. And that’s something that I was really proud to work on.
Josh Hoe
My friend Amanda Alexander often talks about having spaces for dreams. You know, we’ve talked about a lot of specific work, you’ve done a lot of work, the DC Justice Lab has done a lot of specific reports. And just us sitting here talking, if you could dream a change, like if there’s something that you’ve thought about, what’s your dream space for creating change?
Patrice Sulton
I love Amanda’s approach to this, and I’m glad that you brought up her vision. I think about the way that we draw lines between people. And that happens in every space that I’m in, even when it’s a space where everybody is returning citizens. People draw lines between folks who have convictions for more serious offenses, right. And I think that habit of choosing a category of person to subjugate is really harming all of us. And I dream of a world where we’re not doing that anymore, where we’re not saying I’m better than this person, this person’s a thief, or a vandal, or this kind of sinner or that kind of sinner, and we’re looking at the whole person like we’ve always been taught to do with respect to any other characteristic. And the fact that we’ve decided to use an intersection with our criminal legal system, as a justification that we all accept, to treat people poorly is really sad. And I look forward to the day that we don’t do that again.
Josh Hoe
That’s a great answer. People really liked that I started asking about criminal justice-related books. Do you have any favorite books that you would recommend to our listeners?
Patrice Sulton
Oh, interesting timing, I actually just finished a book called Privilege and Punishment, which is about the relationship between defense attorneys and their clients, and how that affects the outcome of not just the disposition of the case itself, but the defendant’s life in other ways. And I really enjoyed that. I get excited about things that look at that center of the system. You mentioned adjudicatory criminal procedure at the very beginning. And that’s about, what that course is about is everything that happens between bail and jail, we’ve got lots of attention on the front end of this system, and, you know, setting bail and policing and a lot of attention on the back end and punishment. But so little attention from the public on the nerdy law part that I liked so much, which is what happens after you charge the person and before they go to jail. And there’s a lot that we could do better in that space.
Josh Hoe
What else should people know about the DC Justice Lab? And where can they find more information?
Patrice Sulton
We are on all of the social media channels as @DCJusticeLab, and you can learn about what we’re working on there. Our current list of proposals that we’re hoping to see passed this year are listed at safeandfreedc.com. And we hope that you will help us lift up those recommendations here and elsewhere. We’d love to see other places do some of the same kind of work that we’re doing here and really appreciate you having us on to share these things.
Josh Hoe
Always ask the same last question. What did I mess up? What question should I have asked but did not, which is both the humility question and also an opportunity for you to talk about anything else you want to talk about that I didn’t get to.
Patrice Sulton
I want to mention how rewarding it’s been to work with people on legislation who are directly impacted. The very first bill that we wrote together was about Criminal Record Sealing and expungement. And not only is the Restore Act, you know, right on policy, right, striking the right balance, drawing lines in the right places, it is written better in clear language, it is supported by arguments that I never would have been able to come up with myself. It generated ideas about other bills that would help people who are returning home. And it just was the first proof of concept. We’ve been able to demonstrate that you get better policy when you include those voices there. And so to the extent that we can continue to build power inside that community of folks, to know what they’re talking about because they’ve lived it. I think we all have an obligation to really put some energy and resources into that as much as the change itself.
Josh Hoe
What a great place to stop. Thanks so much for doing this. I really appreciate you taking the time to talk to me.
Patrice Sulton
Thank you so much.
Josh Hoe
Now, my take.
I just got back from the National Day of Empathy celebration in Washington, DC. A large group of formerly incarcerated activists were brought together by Dream Corps Justice, and we basically celebrated each other and each other’s work, got awards, and just had fun together. First, I want to thank Nisha Anand, Janos Marton, and everyone at Dream Corps Justice for bringing us all together for the Day of Empathy. The experience also made me really reflective, it was really incredible to feel like our work was being celebrated. I’m not sure we, as a general rule, really think very often about being celebrated. But I’d be lying if I were to say it didn’t feel really good. This work, grinding away trying to convince people to care about incarcerated and formerly incarcerated people is really hard. And often it seems insurmountable. But it can also be really depressing, hard, disappointing, sad, and sometimes wonderful work. So often, we work hard for weeks and months and even years, just to see politicians disappoint us. But what we do, is we’re celebrating, and the celebration was necessary and important. I loved being there to celebrate, and to celebrate the work of my friends; we need to do more celebration. I also want to thank all the organizations that have taken me and other incarcerated and formerly incarcerated folks in, and given us support and nurturing. For me, this has been organizations like Dream Corps Justice, JustLeadershipUSA, Nation Outside, and the Michigan Collaborative to End Mass Incarceration. But there are lots of organizations that do this, these kinds of things. And I hope whatever organizations are around you that you celebrate them and celebrate with them. Let’s all make sure to take time and recognize each other’s work, be kind to each other, and always take the time to celebrate together.
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