94 Chiraag Bains

Joshua B. Hoe interviews Chiraag Bains about voting rights and criminal justice reform

Full Episode

My Guest: Chiraag Bains

Chiraag Bains was, at the time of this interview, the Director of Legal Strategy at Demos.org  Currently he is the special assistant to President Joe Biden on Criminal Justice Policy.

From 2010 to 2017, Chiraag served in the Civil Rights Division of the U.S. Department of Justice. As Senior Counsel to the Assistant Attorney General, he supervised matters from the Special Litigation, Voting, Housing, and Appellate Sections, and helped lead DOJ’s work on criminal justice reform. He co-wrote the Ferguson Report and sued Ferguson, Missouri, over unconstitutional policing and court practices; served on the senior DOJ team that worked to end abusive solitary confinement practices; and led the Division’s strategy on bail and court fines and fees reform. He was also a member of the Sanders Biden unity panel on criminal justice and has run five marathons and, I hear, likes to bake

Notes From Episode 84 Chiraag Bains

Chiraag was the director of legal strategies at Demos.org

The DOJ Ferguson Report was the result of an investigation of the Ferguson Police Department.

The Recommendations of the Sanders-Biden Unity Task Force preceded the 2020 election.

Learn more about Mays v. LaRose on Demos issue page.

Harris County Texas was accused of preventing ballot access inside their jail.

Read more about the “Right to Vote” Constitutional Amendment.

Chiraag suggested people read “Let My People Vote” by Desmond Mead and “Prisoners of Politics” by Rachel Barkow.

Rachel and Desmond have both been guests on the podcast.

Full Transcript

Josh Hoe

Hello and welcome to Episode 94 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; and the author of the book Writing Your Own Best Story: Addiction and Living Hope.

Today’s episode is my interview with Chiraag Bains. At the time of the interview, Chiraag was the Director of Legal Strategies at demos.org. But just a few weeks after our interview, he was appointed as Special Assistant to President Biden for Criminal Justice Policy. Chiraag wanted me to clarify that our interview happened before he joined the administration and that nothing he said during the interview reflects the views of the administration.

Chiraag Bains is the Director of Legal Strategies at demos.org. From 2010 to 2017, he served in the Civil Rights Division of the US Department of Justice, as Senior Counsel to the Assistant Attorney General, where he supervised matters from the special litigation, voting, housing, and appellate sections, and helped lead the Department of Justice’s work on criminal justice reform. He co-wrote the Ferguson Report and sued Ferguson, Missouri, over unconstitutional policing and court practices. He served on the senior DOJ team that worked to end abuse of solitary confinement practices and led the division strategy on bail and court fines and fees reform. Chiraag is also a member of the Sanders/Biden Unity Panel on Criminal Justice Reform, has run five marathons and I hear he likes to bake. Welcome to the Decarceration Nation podcast.

Chiraag Bains

Thank you, Josh. It’s good to be here. And that’s putting me to shame because it’s been a while since that last marathon.

Josh Hoe

Oh, yeah? Well, that’s still five more than I’ve ever done. So you’re way, way ahead of me.

My first question is always about origins. If you ever wanted to share the story of how you became a criminal justice superhero, this is the time. How did you get from wherever you started in life to being the Director of Legal Strategies for demos?

Chiraag Bains

I appreciate the question. It’s been a journey. But I think it’s really rooted in my immigrant identity. I’m the child of immigrants, I was raised by my mother, who moved from India to the other side of the planet, to make a better life for herself and her children, first to Canada and then to this country. And immigrants believe in the promise of America, we do love this country, and its people for that promise. That’s true of me. But we also live the ways and kind of observe the ways – with a bit of an outsider perspective – on how the country doesn’t live up to that promise. So as I studied history in school, and then law, and even more deeply as I engaged in the practice of law, I saw the many ways that America falls short of that promise; there’s really a disconnect between the rhetoric and the reality of American democracy. And so my work, my career, has become the project of making that reality meet that rhetoric. And I’ve spent a lot of time doing it through the government, using the power of government. I believe government can be a force for good in people’s lives; [but] in many ways, through the criminal legal system, it causes a disaster in people’s lives. And so I’ve been interested in how we change that; hence, my work at the Justice Department. And then I came to Demos after serving in government, because I think the solutions to our problems in this democracy and in our criminal legal system, have to be driven by movements, have to be bottom-up, and not just informed by, but actually developed and co-developed by those most impacted. And that’s the way I try to do my job at demos.

Josh Hoe

And how did you come to that conclusion? What was the moment that crystallized that for you when you were working in government or whenever you decided to move in a different direction?

Chiraag Bains

I don’t know that there was one moment, but there are a few episodes or just a few series of observations that sort of helped me get there. Serving in government there’s tremendous power. We opened investigations of the Chicago Police Department, of the Baltimore Police Department, put them under a consent decree. I investigated Ferguson; we sued them and made them dismiss millions of dollars in fines and thousands of cases and reorient their criminal code and their police practices. But there are also limitations because [in] governments, there are institutional actors and the decision-makers are not most directly impacted at the end of the day. So I think there’s a way in which you really do need to source ideas and follow the leadership of those who are most impacted to get the boldest, biggest solutions we need. It’s not going to be just a few investigations, or tinkering, or a few changes to sentencing law that’s going to change the systemic bias and discrimination, and racism in our criminal justice system. It’s going to have to be much bigger thinking about decarceration – to the point of your podcast – and just how we think about public safety and security in this country differently. And I learned that for us, it was also learned directly from allies in the movement that I’ve gotten to work with here at Demos, folks like Desmond Meade at Florida Rights Restoration Coalition, and Andrea James at the National Council for Incarcerated and Formerly Incarcerated Women and Girls; these are folks that I look up to, and that I try to make sure my work is in service of.

Josh Hoe

And both friends of mine, so those are good, you’re picky. I like your company.

Chiraag Bains

Alright, I’m glad I didn’t continue the list because who knows where we would have gone.

Josh Hoe

So for those who don’t know, what is the Demos organization?

Chiraag Bains

Demos is a think tank that’s committed to powering the movement for a just, inclusive, and multiracial democracy. We’re 20 years old, and we’re a think tank in that we develop policy solutions, but also legal strategies necessary to build power. We’re very focused on building power, not just sketching out bills that Congress could pass, but ones that actually strengthen movement organizations and build power for black and brown people in particular, so that we can build a democracy that works for everyone, and that we can all be proud of.

Josh Hoe

So before you were at Demos, you were at the DOJ, and I’ve done some work at trying to get reform done at the federal level, and in the Bureau of Prisons, etc. When you were at the Department, how did you find a niche doing what could be considered reform work inside an organization that’s mostly known for prosecuting folks, and not being particularly helpful to folks in prison?

Chiraag Bains

Well, one of the mightiest parts of the Justice Department, and what has been called the crown jewel of the Justice Department, is the Civil Rights Division. And that’s how I ended up at DOJ; I wanted to work at the Civil Rights Division. You know, it’s interesting that when I was in law school, I thought I would either be a public defender, or a civil-side civil rights lawyer, bringing discrimination claims on housing or employment, that sort of thing.

And I ended actually becoming something at the intersection of those two – that might not be the right way to phrase it – but practicing criminal law, but as a civil rights lawyer, and I did that by becoming a prosecutor. And that would have surprised the first-year law student version of myself. But that is a job that exists at the Justice Department; the Civil Rights Division has something called the Criminal Section. It’s a small and mighty collection of 100 attorneys and staff who bring prosecutions of police officers and correctional officers when they violate people’s rights. We also prosecute hate crimes and certain other offenses. But that was the bulk of the work, police accountability work. And I was very interested in using the criminal system to actually be responsive to the needs of communities who had experienced – time and time again – violence and discrimination at the hands of police. And so I did that work. I went there to do that work. I did it for about four years, and I worked on some pretty important cases. I had cases where a police officer has sexually assaulted or raped people in their custody. I had a case where some police officers were pulling people over on the highway that they thought looked like undocumented immigrants, so essentially, they were just racially profiling people, and then stealing their money. And they did it dozens of times, you know, guessing or betting correctly, that people wouldn’t report, until finally, someone came forward. And we were able to track them down. And several cases of assault within prisons and jails and by officers, and that was meaningful work. And it’s a kind of cry for justice, you hear often, especially in cases where people are killed by police officers. And it’s also limited. And that was an observation I had – and that this is individual accountability. It’s really hard to achieve. And even when you do, when you’ve addressed one bad actor and not a systemic problem. The work in a way lends itself to the idea that there are bad apples, and that there’s not a systemic problem. And that was not my observation from doing many of those cases. So that’s when I started moving in a direction of doing more systemic work investigating police departments, prisons, juvenile justice facilities, and also policy work where the policy solutions were to change how those institutions operate.

Josh Hoe

Can you talk a little bit about the process of doing that kind of investigating and writing the Ferguson Report?

Chiraag Bains

Sure. The Ferguson Report grew out of a civil investigation under DOJ’s “pattern or practice authority” It is part of the 1994 Crime Bill, which is rightly criticized for contributing to the increase in incarceration and the growth of the prison system in America. But that [part] actually was beneficial. There’s a piece of it that was quite beneficial. It was a bill that got folded into the ‘94 Crime Bill that gave the Justice Department authority to conduct investigations of law enforcement entities for a “pattern or practice” of constitutional or illegal violations. And that really came out of the violence and discrimination and lack of accountability in Los Angeles and other places in the 1980s. Congress had experience with that, and then into the 1990s. And after the beating of Rodney King and the acquittal of officers at the state level and the unrest that followed, people began to realize, policymakers began to realize that we need a way to address these long-standing problems of police violence and discrimination and the resulting complete lack of trust between police and communities, that isn’t just about individual accountability. And there are a lot of legal doctrines, as you probably know, Josh, a lot of legal doctrines that make it hard to sue police officers, and hard to sue police departments. And so this law gave the Justice Department the authority to open up investigations and seek judicial relief – consent decrees, court orders, to change departments. And that’s the authority that we used. So in the Ferguson case, in particular, Michael Brown was shot and killed on August 9, 2014. The Justice Department began investing that criminally – the very next day or the same day – but they had folks on the ground the very next day. That investigation was done by the unit I had originally belonged to, the criminal prosecutors. Three weeks later, we opened an investigation into Ferguson as a whole, or a pattern or practice of discrimination and excessive force, both in its police department and constitutional violations through its Municipal Court. And I can tell you a little bit about how that worked on a more granular level if you’d like.

Josh Hoe

Sure. Maybe a better question for me would be after you’ve been through this process, and you wrote the report, which I think everyone would concede, was very, very important to what’s happened since – what do you think has come out of that work? Where do you think we’re at? I mean, obviously, we just had another gigantic-  [after] George Floyd- a huge outbreak of concern about police violence. And we’re having a lot of internal debates about the right way to address this problem; some people think it’s about language, some people think it’s about literally changing the structures of what we do . . .  what’s come out of that work? And where do we need to go now?

Chiraag Bains

Yeah, so it’s a really good question. It’s important that we look back on this work and really understand what the impact of it was. We opened 25 investigations of police departments during the Obama Administration, which is a record level of activity. We entered 15 different consent decrees and other out-of-court agreements. These consent decrees were extensive and were really aimed at changing police departments in a fundamental way. Their hiring and promotion practices; their policies; their use of force practices; and accountability systems, to include community oversight. So a lot of resources went into that. I’d say they were effective in reducing police violence and discrimination, and that we actually have metrics to back that up. When you look at the years after a consent decree compared to before, you see drops in deadly force and less lethal force as well. It’s just one example. At the same time, I think there are real limitations to these cases. Number one, there are some 18,000 police departments in the country, so while 25 was great, It’s also a limited impact. And so we actually need more of these kinds of investigations. And I think that the new administration coming in . . . I hope that they will prioritize this and do more of them. The second thing, though, is I think we need to do these cases differently, try to make them more community-oriented. There was a real hunger on the part of community members and advocates, people who had had the greatest experience with police violating their rights or not being responsive to their needs, to be at the table, to be involved in crafting the solutions. And we made strides in that direction, taking recommendations from community members. Several of them in several cases produced what’s called a people’s consent decree that we then integrated as much as possible into the actual consent decree, but I think there are ways to be even more community-oriented about it so that the solutions are driven by those who are most impacted. The third thing I’d say is that we need structural solutions to how law enforcement and criminal justice works in this country. And that’s the world of policy, for the most part. And I think that’s where the movement has really moved in the last few years: what does police funding look like? What are the constraints in law on police use of force, not just leaving it up to police to determine their own practices? And I think that’s where the conversation needs to be; we’re starting to see some movement on that in Congress, I think there could be much more. And I guess the last point that I’ll make about this is that for me, that’s why the democracy work is so important. At Demos, I do a lot of work with my team and our partners on protecting voting rights, to include the voting rights of people who come into contact with the criminal legal system. And I think that’s critical. So the failures of our democracy are also an explanation for why our criminal legal system is as oppressive as it is, and why it’s as shot through with racial bias as it is. And so that’s got to be a locus of solutions as well.

Josh Hoe

We’ll get to the voting question in just a second. But we’re, hopefully, apparently, coming to the end of a pretty unique last four years. You are part of the Biden/Sanders Unity Panel on Criminal Justice Reform. So I feel like I’ve got to ask, what was that process like?

Chiraag Bains

It was good. Because there was real engagement on the issues. You know these task forces were set up when it became clear that Joe Biden would be the Democratic nominee for President and Bernie Sanders would not. And they brokered these task forces, which do a first cut at what became the Democratic National Committee’s platform on which all Democrats in the country are ultimately connected to in some way, and which has the stamp of approval of the nominee. And so there were six different task force forces and appointees from both Senator Sanders and then Vice President, now President-Elect Biden. And it was really serious engagement. I have to say that I think people might wonder from the outside if this was just for show, is this just for news stories? But no, we spent hours together, hammering out what the recommendations would be, and turning over the evidence, and we didn’t agree on everything; but there was serious engagement. And you had a lot of firepower in that room. People like Eric Holder, former Attorney General; Bobby Scott, Representative, and longtime criminal justice reform advocate from Virginia. And so it was a good process. And the recommendations that came out were . . . I think there were some very strong ones. And I just want to highlight one of the ones that I’m particularly proud of was a recommendation to end mandatory minimums. Another was a recommendation to fund alternatives to 911 and police response for non-emergency situations that really call for health care workers or social workers, setting up a 24-7 service, and putting federal funding into that. So it was a good process. And I’m proud of what came out of it. And I do hope that some of that becomes policy in the new administration.

Josh Hoe

One of the promises made by both President-Elect Biden and Vice President Harris and their criminal justice platforms, I think was carried through was about the federal death penalty. And we’ve just seen the current administration execute more people than have been executed at the federal level in more than 50 years combined, and in the last year, executed more people than all 50 states combined. Having seen this work up close, do you have faith in President-Elect Biden’s promise to stop using the federal death penalty?

Chiraag Bains

Yes, I do have faith in that. I mean, the platform position, as you pointed out, for both of them was to end the federal death penalty. That’s actually not new for the Democratic Party. It’s been in the DNC platform for at least one additional cycle, maybe more, that we should end the death penalty. I think it is common ground among Democrats and obviously among progressives, that the death penalty is just a blight and a shame on our justice system, and that it is irredeemably marred by racial bias. And so I do have hope; I don’t expect that they will proceed with any executions. I think what we’re seeing right now from the Trump Administration, the rush to kill people before the end of this administration is shameful and is a particularly shameful way to end what has been a fairly horrific last four years.

Josh Hoe

A lot of people on the progressive left have a lot of doubts about if Biden will follow through on his criminal justice campaign promises. Having been a consultant, do you have any thoughts here?

Chiraag Bains

Well, you know, I can’t say what the President-Elect will do. And we don’t actually have an Attorney General nominee yet, at least not as of this moment where you and I are speaking. I think those are going to be relevant data points. What I’d say about this is, it’s not enough to take it at face value, that these things will happen because they are they were said. I mean, people in the movement and [those] who are directly impacted, have to hold this administration accountable, just as every administration should be held accountable. So I think it’s important that advocates keep calling the question; hold the administration’s feet to the fire and call them out when they’re not living up to campaign promises. That should be par for the course for elected officials. And I certainly appreciated, I really did actually appreciate, when I got criticism that came my way, the Justice Department’s way when I was there; it’s important to know how you’re not measuring up and to know what people think about it.

Josh Hoe

In theory, people who are arrested in this country still retain the right to vote until they’re determined, through sentencing, to have committed a crime. But that’s not really the reality. Am I correct?

Chiraag Bains

You’re absolutely correct. The reality is that the right to vote is illusory and essentially nominal for people who are detained pretrial. There are half a million people who are detained pretrial on any given day in America, and the vast majority of them are likely eligible to vote, they are citizens of voting age, who don’t have a disqualifying felony, or in their history, or who have had their rights restored since having one. And yet, by and large, they do not get ballots when they are in jail pretrial at election time. It is an enormous problem with our democracy. And it is one that deepens the racial inequities within our democracy, because our criminal justice system, including our pretrial population, is disproportionately black and brown people and Native American people.

Josh Hoe

Could you talk about Mays versus LeRose in Ohio?

Chiraag Bains

Mays versus LeRose is a landmark lawsuit that Demos brought with its partners in 2018 against Ohio over the rights of pretrial detainees to vote. In Ohio, if you get arrested in the five days leading up to an election and are held in jail through the election, there’s actually no way for you to vote; you can’t get to the polls, they won’t take you there. You also can’t get a ballot. And this is not just that you are unlikely to get a ballot, which is the case in jails across America all the time. And in every election, there’s actually no legal way for you to get a ballot – a mail ballot or an absentee ballot – the deadline to request an absentee ballot in Ohio is five days before the election. And so if you’re arrested on the Friday before the Tuesday election, there’s no way for you to mail in or hand-deliver to the Board of Elections an absentee ballot request form. And so what we did was . . . we saw this as an outright denial, a complete denial of the fundamental right to vote, clearly unconstitutional under the 14th Amendment. We brought a lawsuit [and] bringing the lawsuit was pretty challenging. The reason that this was a first-of-its kind case, is that there are a lot of legal doctrines that make it hard to bring this kind of lawsuit. One of those doctrines is called mootness, that the court will say if you bring a lawsuit too late, you bring it after the election when the election is over, there’s no relief, you know, you can’t vote, there’s nothing we can do for you. So the case is moot. Another is ripeness. If you bring the case too early, alleging that there’ll be some harm because Ohio has this law that doesn’t let people get ballots in the last five days, the court will say it’s not right, you have to bring this case when the harm is happening to you. And the courts have also said that organizations can’t bring these claims, that they actually have to be brought by the individuals whose rights are denied. So what we had to do in this case was look at the voter rolls and look at people or jail booking sheets to see who had been booked into jail in that period and was coming up for arraignment and was registered to vote. And then we went to arraignments in multiple different courts in Ohio and found out who was held, detained without bail, or on bail, they couldn’t afford. And then we went into jails and tried to meet folks, introduced ourselves, and let them know that we were interested in bringing this kind of a case if they wanted to vote, and we identified clients, two clients in particular in this case, who said that yes, they absolutely were intending to vote. One of them actually had been asking correctional officers about how to vote, given that he had been arrested in this period. And we got them to fill out handwritten affidavits that day in jail, the night before the election. And then we prepared our briefs, writing briefs late at night and in the car, as we drove across the state to get into federal court and file our emergency motion or relief. We had a hearing in front of the judge on Tuesday, while in-person election voting was going on, and the judge held that we were likely to win the case, and actually ordered that ballots be hand-delivered by election officials to our clients so that they could vote, and they did vote and their votes counted that day. And they stood in for a class. And the case continued. You know, that was a big victory. That was a first-of-its-kind victory, defending the right to vote, with the court saying, yes, Ohio’s law on pretrial detainees not being able to access the vote was unconstitutional. And one interesting thing about this that helped us, and that was a basis for the case, was that if you find yourself unexpectedly hospitalized, which is another form of, quote-unquote “confinement” – as far as Ohio law considers it – you can get a ballot as late as election day itself. And you can request a ballot as late as that afternoon and they will get you a ballot and you will vote on election day. But they don’t do that for people whom the state has jailed, even though people who are incarcerated, are in pretrial, only can’t get to the polls because of the state. And, of course, the state knows exactly where they are, so could easily deliver ballots to them. So that was the basis of our lawsuit. We ended up winning at the District Court, getting an injunction that was historic; and unfortunately, then losing at the Sixth Circuit Court of Appeals. The Court of Appeals said there was no violation of the right to vote, essentially, because these individuals could have voted during early voting in Ohio. I found this completely astounding.

Josh Hoe

Yeah, that seems almost self-defeating logic. Why did the court hold against providing ballots? And where do you go after that case?

Chiraag Bains

Exactly. I suppose the Sixth Circuit Court of Appeals wants us all to be on notice now. Any of us could be arrested at any moment and find ourselves locked up in the days before the election. And so we had better vote as early as possible. That was essentially the logic of the Sixth Circuit’s opinion. And it just highlights how much of a struggle this fight for voting rights is, and how much we need real sweeping structural change to these statutes and have courts that are more responsive to the lived experience of people will come into contact with the criminal legal system. There’s a lot of work to do, when that’s the kind of reasoning that is prevailing in federal court.

Josh Hoe

What have y’all been doing in Harris County, Texas?

Chiraag Bains

Harris County, Texas has one of the biggest jails in the country. That was a site of some advocacy, this past election cycle; we worked with some of our partners, including directly-impacted people and the family members of people who are incarcerated in that jail, to advocate for Harris County to make voting accessible during election time. And they actually had some voting in-person on election day there at the jail. That’s an idea that was really pioneered, in this election cycle in Chicago. Cook County [Jail] became a polling place, beginning in 2020, as the result of long-term advocacy in that state – and leadership – by directly-impacted people. That’s a great solution, we should have voting at the jail. That’s a way to ensure that correctional officials can stick to their interest in security, feel like they are doing their jobs, but also make sure we’re not violating people’s rights, that they actually can access the polls. It’s a lot easier to administer than mailing ballots out to people and having them mail them back, or even walking in ballots to folks as we won in the early stages of our Ohio case.

Josh Hoe

And what about places where people with records were being removed from voter rolls?

Chiraag Bains

That’s another lawsuit that we brought. So you know, legal strategies, as you can tell, are a pretty core part of the way in which we push forward ideas at Demos. We’re a think tank, but we use the courts. And in this case – this is a case out of Los Angeles that was brought by All of Us or None, formerly incarcerated, and directly-impacted folks with currently incarcerated members and constituents as well. They brought this lawsuit against LA County for purging people from the rolls, incorrectly assigning criminal conviction, and in California, the law is that you cannot vote if you have a disqualifying felony, and you are serving your time in state prison. It used to be also if you’re on parole, but a law passed recently that changed that, thankfully. But if you were serving your time in county jail, you shouldn’t be disenfranchised. And that was the basis of this lawsuit. There were people who were incarcerated, but who were not actually disenfranchised. This is true Josh, in many states; there are many states where people are serving time with felony convictions, but not disenfranchised, including Alabama and Mississippi, and Alaska because the offense of conviction in those states is not one that’s disqualifying; not all felonies are disqualifying. But folks often don’t realize that. And in fact, government officials often don’t realize that. And so All of Us or None brought a lawsuit in California against Los Angeles. And our form of leadership and advocacy at Demos, and sort of thought leadership, is to put our muscle behind groups that are leading with direct experience, the most impacted, and so what we did is we came in to back up All of Us or None, in this case, this is their case, and we are proud to support them in it. We recently won partial summary judgment and are trying to resolve this case. I’m very thankful to be working with the folks over there at All of Us or None.

Josh Hoe

I have had Desmond Meade and Neil Volz on the podcast; could you talk about Demos’ work supporting the Florida Rights Restoration Coalition?

Chiraag Bains

Demos has a long-standing relationship working with and trying to support the leadership of Desmond, Neil, and the whole crew at FRRC; what they have accomplished is astounding, you know, getting Amendment Four onto the ballot and getting it passed at a time when very few people thought they could do it. Like a lot of people told them no, you couldn’t do it. This isn’t the right time, wait for a higher turnout election. But they did it, they pressed forward. [They got] 65% of the public in Florida, which is a hotly-contested state, not many things will get that level of support. It got a million more votes than any candidate on the ballot and it passed, ending permanent disenfranchisement in Florida; that is historic. Yeah, it’s inspiring.

You know, there’s a lot of stories that are disheartening when you’re in the struggle for civil rights and racial justice, and democracy. But, there are a lot of wins too, and we are moving in the right direction. And I think Desmond and FRRC and the other organizations that were part of that effort, are showing us the way. So we tried to support them in their leadership. One of the ways we’ve done that recently is helping them to advocate for the least bad version of the bill that implemented Amendment Four; it ended up being fairly bad, right, it undercut reinfranchisement by requiring that people pay back every last dollar of fines and fees, every type of fines and fees, in order to get their right to vote back, and that is pure wealth discrimination and should be unconstitutional under the US Constitution. And we represented FRRC in the lawsuit that then took place in federal court, both at the trial level and at the appellate level, filing briefs to make sure that their views were in front of the court and that Amendment Four was protected at the end of the day. That was very important. The state was making arguments that if there was any unconstitutionality here or there, or if there are any problems here, then Amendment Four itself should be on the chopping block and FRRC’s voice was no, that’s the last thing that should happen. That is absolutely not what the voters of Florida intended. And thankfully, that did not come to pass. But they’re building a movement out there. Now they’re doing the hard work wearing out the shoe leather of getting people registered. And it is power-building work; [and it’s] really important to recognize that it’s not just getting people on the rolls for the sake of participation. It’s actually engaging people and building their leadership, and in particular, building the leadership of people who have been excluded from this democracy. So I take a lot of inspiration from it. I have learned a lot from that crew and look forward to continuing to work together to build this more inclusive democracy.

Josh Hoe

Here in Michigan, every single person who’s released from incarceration regains their right to vote the minute they’re released, but many times people do not understand that they’ve regained their citizenship rights, and in many states, the reality is much more complicated. How do we get people returning from incarceration better educated about their voting rights?

Chiraag Bains

It’s a good question, Josh. I think there’s a short-term and a long-term answer. The immediate answer, I think, is that we do have to invest in education. And this is a responsibility of government officials. I say this as a former government official myself. If people are confused, or they don’t know that they have their rights restored automatically as in Michigan, or if they don’t know the process or the process is unduly cumbersome to get back on the rolls, as it is in many states, that’s a form of voter suppression, and actually a state-sponsored form of voter suppression. The state has a responsibility to ensure that its citizens can participate in this democracy and that elections are free and fair, and they’re not, given how complicated and burdensome these rules are. So I think the education responsibility lies with the state. You know, the state should be registering voters as they leave prison. They should be, if they’re automatically re-enfranchised, they should be handing out “know your rights” forms about how to get back on the rolls. Public officials should be using their bully pulpit to be talking about this. [But] they often don’t, right? It’s often the other way. It’s that they are using fear tactics when they talk about formerly incarcerated folks or people with convictions. And so I think this is why the power-building work is so important. We’ve really got to center directly-impacted communities; foundations should be funding organizations that are led by formerly incarcerated and convicted persons. And we should be taking their leadership. But I think education is a huge one, and there are some really concrete things that can be done around education. The longer-term thing is that we should have our eyes focused on much bigger and bolder change and that change is abolishing felony disenfranchisement altogether. Felony disenfranchisement in America has deeply racist roots. I think it’s really important to talk about that. I know you’re a student of history, Josh, and I studied history myself. And when you look at that, in the United States, disenfranchisement laws exploded around the country in the wake of reconstruction; states hurried to create laws to strip black political power, [and to] prevent newly-emancipated black voters from exercising their vote. And this is the way that they did it, and it played out differently in different states, but they were remarkably transparent about it. In the early days, in the late 1800s and early 1900s, Mississippi explicitly disenfranchised people who committed burglary, but not people who committed murder. And the purpose of that was because they could easily prosecute and then disenfranchise black citizens. And the disparate impact that came to pass was intentional. The State Supreme Court found that the purpose was to quote, “obstruct the exercise of the franchise by the Negro race”; those are the court’s words. Same story in Virginia and New York. it’s not just a southern issue. And so I think we cannot talk about felony disenfranchisement, or penal disenfranchisement without understanding that it is deeply racist in its roots and continuing in its application, given how skewed the population is that’s policed, prosecuted, convicted, and sentenced in America. And we should demand absolute abolition.

Josh Hoe

A lot of people talk about the exception to the 13th Amendment of the Constitution, but the 14th exception is problematic, too. And it’s the 14th Amendment that allows states to disenfranchise folks. Can you talk about your proposed right-to-vote amendment?

Chiraag Bains

Yeah, you’re right about that. The Supreme Court held in the 1970s that disenfranchising people for convictions is legal and actually contemplated by the 14th Amendment. There’s some language in there. And I think that case was wrongly decided; if there were a different Supreme Court that maybe saw things differently, they could overturn that case. But the other way to change it is to actually pass a constitutional amendment to truly make the right to vote fundamental in America. There’s actually a lot of different ways in which the right to vote is not fundamental. There are all kinds of burdens that can be thrown up, voter id partisan gerrymandering has been given a green light, essentially by the Supreme Court, which has taken itself out of the equation in policing that kind of behavior. We just see a lot of ways in which the right to vote is burdened. And the court does a kind of wishy-washy balancing test, where basically it elevates the needs of election administrators over the fundamental rights of voters. So we asked ourselves at Demo: what would it look like to amend the Constitution in a way that really, truly protected the right to vote and prevented a Supreme Court that was hostile to voting rights cases from undermining it as cases came before that court. And we didn’t just ask ourselves, we asked our partners, we asked many other individuals and organizations – including some of the ones that you and I were talking about earlier – on this piece in particular about abolishing felony disenfranchisement. So our right-to-vote amendment is extensive; it states the right to vote in the affirmative. It calls for universal voter registration. It prohibits any kind of vote denial or dilution against historically disenfranchised communities. It changes the Electoral College; it makes DC a state and gives self-determination to the territories. And it ends the practice of penal disenfranchisement. Under the text that we’ve written, there would be no way to deny the right to vote based on a conviction, or based on being in jail pre-trial, or any form of interaction with the criminal legal system. And that was really driven by the formerly-incarcerated and convicted person’s movement. We work closely with organizations that are part of that community, and took their lead on it and felt, okay, we’re gonna stand boldly for this. It’s not a mainstream position, but it should be; it’s necessary to build a real democracy. And so this is the kind of vision we’re pushing at Demos.

Josh Hoe

So what is prison gerrymandering?

Chiraag Bains

Yeah, it’s a really critical issue, this form of gerrymandering, that is not actually enough a part of the conversation. It’s a form of diluting the right to vote for communities, and particularly communities of color, and actually inflating the right to vote, and the right to representation for others, in predominantly rural and white areas. Basically, the way it works is, the question is . . . where do people count for apportionment or the setting of the number of representatives within a jurisdiction and the drawing of lines for districts? So you count up the population – we just went through this with the census – and allocate representatives based on population. But the way that many states do it, and the way that the census counts people – the federal government – is that they consider people who are in prison to be residents of the place that the prison is located. And prisons are disproportionately in more rural and white areas, and they disproportionately house people from more urban areas and people of color. So that actually is a pretty direct way of inflating the representative power of people in less populated whiter communities and deflating the power of black and brown folks in particular. And it’s even more so because they can’t vote. So you can vote if it’s a felony conviction in almost every state in the Union if you’re serving time in prison, and yet your presence increases the voting power of those on the outside around you who are not from your community. That’s pretty astounding. I think it’s offensive. And it’s a pretty direct violation of basic principles of fairness and racial equity.

Josh Hoe

I know when Bernie Sanders brought this up, there was huge pushback; a lot of people pushed back against the notion that incarcerated folks should ever have the right to vote. What would you say to them?

Chiraag Bains

Yeah, I think that is kind of coming from a different frame, one of exclusion. When I hear that argument, it’s like, some people are not part of the body politic, like they shouldn’t be part of this political community. And that I think is extremely dangerous. Every time we’ve tried to cut people out of our democracy, it has been ugly, and it has been tinged with racism, or xenophobia, or both. And I think that we should reject that. We should think –  in the United States of America, in many ways, the birthplace of democracy – we should consider the right to vote to be fundamental to personhood. If you’re of voting age, you’re a member of this community; you shouldn’t be able to lose your right to vote. It’s that critical. And it’s critical that people who are incarcerated have a voice because look what happens when they don’t, when they don’t have the ability to impact elections, to weigh in, we get extremely harsh and punitive policies that don’t serve public policy. I’m sorry, don’t serve public safety. And that does serve to destroy people and their lives and their communities and to improve the political futures of certain elected officials. That doesn’t help us. Whoever you are – if you have no connection even to somebody who has been prosecuted or is serving time. That is a weaker democracy, and one with worse outcomes. So I think there are really important reasons. There are some other arguments as well that are in the mix that I think resonates with some people. There’s some evidence that having the right to vote helps reintegrate folks into society, keeps them connected to their community, and thus has public safety benefits. So I think there are some other arguments in the mix. But for me, it’s about what are the fundamentals of democracy?  It is that everyone counts, and we don’t exclude people. And we make sure we’re responsive to all communities and their families, and individuals, their families, and their communities. So that’s what I would say to folks. And that’s the pitch I’d make for a really, truly robust democracy that we can be proud of.

Josh Hoe

Probably the biggest challenge we face is confronting what has been called Willie Horton politics. Do you have any ideas for what we can all do to change the narrative in criminal justice politics?

Chiraag Bains

I think one way to come at this is that other countries do this differently. It’s not the fear tactics. It’s not necessary. And I don’t think our country has to be stuck in this cycle of fear-driven politics around crime policy and [around] public safety policy more broadly. I mean, just on the issue that we’ve been talking about, the right to vote, it’s like half of Europe and Canada, you know, states within the United States, Vermont, Maine, and the territory of Puerto Rico, allow people to vote while they’re incarcerated. Many states allow people to vote, even if they have convictions, as we spoke earlier, for certain offenses, right to include Alabama and Mississippi. So I think we should just start with the premise that it’s not some foreign concept that’s bizarre and unfathomable. We actually have it in this country and have lots of examples outside the country. And then to the broader question of how do we get outside of this fear-based politics, I think we have to start asking ourselves if these fear-driven punitive criminal justice policies have actually made us safer. And when I step back and think about what makes me feel safe in my community, it’s not that there are more than 2 million people behind bars in America. It’s not that they are disproportionately black and Latinx. It’s that where I live, there are amenities and people have jobs; I have a job and I have health care. I’m very thankful for that. But that’s what’s giving me security in my community and in my life, not the kind of over-policing and over-incarceration. And if anything, I think these criminal justice policies that have been driving now for several decades, and keeping us the world’s leading incarcerator have made us less safe by destabilizing people’s lives, alienating people from their government, and breaking up communities. So I’m really interested in how do we invest in alternatives to public safety, alternative forms of public safety? And how do we invest in communities and community organizations as sources of public safety by giving people resources and being there for them, rather than just looking to punish them anytime they step outside the line?

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 favorites?

Chiraag Bains

Well, you know, I’ll give Desmond a shout-out. Desmond Meade has his new book out and that one is on my nightstand right now. So I’m looking forward to reading his book, it’s Let My People Vote. That book tells the story of Amendment Four, and I definitely recommend it to people. Another book for really wonky folks who are interested in the federal system, and in particular the question that you raised about our politics, is Prisoners of Politics; that one by Rachel Barkow is a good read. It’s really policy-heavy, but it has some concrete ideas about how we could do things differently at the federal level, as well as some examples at the state level – everything from charging policy through clemency tactics – that could be deployed tomorrow, in order to start shrinking our criminal legal system’s footprint.

Josh Hoe

I always ask the same last question: what did I mess up? What question should I have asked but did not?

Chiraag Bains

I think you hit it. I guess what I would just say is I would put in a plug for being bold about our policy solutions and being race-forward in the way that we talk about these criminal justice and criminal legal system problems. I think that the public is moved when they understand the racist roots and the continuing racism of the criminal legal system. And I think we need to talk about it that way. And give people solutions. I guess the other thing I’d say is that folks shouldn’t feel hopeless, right? There are concrete things that people can do, to get involved and to make a difference. And just to take the issues that we’ve been talking about today, everyone who’s listening can call their elected officials and urge them to put forth legislation that restores the right to vote for formerly and currently incarcerated individuals. There’s a bill pending in Congress right now, HR One, For the People Act, that would restore the right to vote nationwide for people with convictions after they finish their term of incarceration. We’re working on a version that’ll go even farther than that.

People can volunteer with local groups that are doing voter registration inside jails. And of course, you can donate to groups like FRRC, like Forward Justice, like Just Leadership, and many other national councils that are led by formerly incarcerated convicted persons and are serving folks who are inside right now. Those folks need to be getting donation dollars, and I highly recommend them.

Josh Hoe

Thanks so much for doing this. I really appreciate you taking the time.

Chiraag Bains

All right. Well, thanks, Josh! I appreciate it and thanks to your team and whoever else helped you. I appreciate their help as well.

Josh Hoe

Hope to talk to you again soon. Thanks again.

Chiraag Bains

Okay, talk to you soon.

Josh Hoe

And now my take.

I think it’s fantastic that Chiraag is now part of the Biden Administration.

But however not to sound like a broken record . . . to my mind, the number one concern, the number two concern, and the number three concern right now is COVID in prisons; it’s the only criminal justice issue that’s an existential threat to every single person incarcerated across the country. So in relationship to Chiraag, what’s the federal situation?

As of February 8, according to their own reporting, 3647 people have been vaccinated out of 123,221 incarcerated people in federal facilities; 2211 are currently infected and 43,916 have recovered. And remember, there’s a lot of people who seem to have caught the thing more than once. So just having been recovered doesn’t mean that you’re safe. 213 incarcerated people have died at the federal level. The current vaccination plan at the federal level provides vaccination to incarcerated people only if there are extra vaccines left over after the correctional staff gets vaccinated. So there are many facilities where not one incarcerated person has been vaccinated. And there’s a lot of facilities where the vast majority have not been vaccinated. And let’s face it, there are a lot of states where zero incarcerated people have been vaccinated, where more and more people are dying every day.

For those who don’t know, incarcerated people are dying at a rate of three times that of the general population in my own state of Michigan. 133 people have died from COVID-19.

If we cannot get people to care about vaccinations for people in prison when they are dying at unprecedented rates, how far have we actually come as a movement? Not one of these people was sentenced to die from COVID. They’re all human beings, and they have no way to look after their own health care. Their lives are quite literally in our hands. And if we do nothing, what does that say about who we are as a people, about where our movement is in trying to get people to care about the human rights of people behind bars? Sure, there are also strong public safety arguments for prioritizing incarcerated people; prisons are permeable. But at the core, this is about the human rights of our brothers and sisters inside. And this is an existential threat to every single incarcerated person. This is part of the reason I’m focusing on trying to get change at The Bureau of Prisons. I believe that it is at least possible that a strong signal from the federal level might carry more urgency at the state level to prioritize vaccinations for incarcerated people. And we should not just prioritize vaccinations, but also educate people in prisons about the safety of the vaccine. We need to bring formerly incarcerated people into prisons to get the vaccine themselves. And we need to talk with our incarcerated brothers and sisters about the need for vaccination. There is a lot of work that needs to be done and sadly, to date, not enough people are doing that work.

I care deeply about everything Chiraag and I talked about in our interview, but to me right now, the most pressing issue facing us in the movement for justice is ensuring that every single incarcerated person gets the vaccine before it’s too late. It is my hope that the Biden Administration will send a strong signal soon to the states on vaccinations. Please help push for vaccinations with your state and federal legislators. And when you talk with criminal justice reform organizations, please bring this issue up. This is literally life and death for folks behind bars.

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Thanks so much for listening; see you next time!

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