Seeking Justice
11/16/18 - Criminal justice reform is about more than police and prisons. It's about changing the way prosecutors do their jobs. It's about schools, community centers, parks, drug treatment and other resources that stop or delay interactions with the criminal justice system. It's about letting people vote and letting go of trumped-up claims of voter fraud. Lawyer, reporter and criminal justice reform advocate Josie Duffy Rice helps us think through the system, and the role we can play in fixing it, beyond our Law and Order: SVU imagination. Please note: beginning at 45:30, Amina and Josie discuss SVU, including the ways the show (in)accurately depicts sexual assault allegations. The conversation is not graphic, but words like rape and rapist are used, and we discuss how survivors are treated by police and the justice system.
Transcript below.
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CREDITS
Producer: Gina Delvac
Hosts: Aminatou Sow & Ann Friedman
Theme song: Call Your Girlfriend by Robyn
Composer: Carolyn Pennypacker Riggs.
Associate Producer: Destry Maria Sibley
Visual Creative Director: Kenesha Sneed
Merch Director: Caroline Knowles
Editorial Assistant: Laura Bertocci
Ad sales: Midroll
LINKS
Josie’s writing on The Appeal
Josie’s oped in the NYT
For Keeps bookstore in Atlanta
Josie on Twitter
TRANSCRIPT: Seeking Justice
[Ads]
(1:32)
Aminatou: Welcome to Call Your Girlfriend.
Ann: A podcast for long-distance besties everywhere.
Aminatou: I'm Aminatou Sow.
Ann: And I'm Ann Friedman.
Aminatou: I talked to friend-of-the-pod Josie Duffy Rice who . . .
Ann: Ugh, one of my favs. Sorry.
Aminatou: Mm-hmm, like big, big, big fav. She's a reporter for a great site called The Appeal where she covers prosecutors, prisons, and everything under the criminal justice umbrella. Long-term kind of advocacy around issues that are really hard like voting rights and criminal justice policy.
[Theme Song]
(2:29)
Aminatou: Hi Ann Friedman.
Ann: Hello. Period. After. Every. Word. What's going on?
Aminatou: [French]
Ann: You know, I'm good over here. [Laughs]
Aminatou: Listen, I can't believe ten years of friendship and I haven't gotten you to say hello back. We're going to work on this, okay?
Ann: Muy bien.
Aminatou: Muy bien. [Laughs] You know what? I'll take it. One step in the right direction. One good step in the right direction. I'll take it. How you doing over there?
Ann: Oh, you know, I'm like -- I am post-election, post-tour decompressing still. I'm getting ready to go on a little vacation. You know, good things. Like honestly also just coping with the fact that the year is basically over. That's like wow, can you even believe?
Aminatou: Right. You know, I always say I thrive in Q3 but Q4 does not exist if we're honest so . . .
Ann: Right. Q3 has also flown.
Aminatou: Yeah, like Q4 is literally how -- like did I get my shit in time to send my Christmas presents by December 24th? That's my entire goal of Q4.
Ann: Yeah. I mean and the deck is stacked against anyone with international people they've got to send to.
Aminatou: Girl.
Ann: Your deadlines are so early.
Aminatou: Girl, the deadlines and then the customs people who are always trying to make me pay for duties. Like mm-mmm. Mm-mmm. I have learned to game that system though. It's all good.
Ann: Mail fraud? You're condoning it?
(4:00)
Aminatou: Listen, it's not mail fraud, okay? But I'll talk to you about it offline. [Laughs]
Ann: After we're recording. After we're done here.
Aminatou: USPS please don't come for me. Oh my gosh, well I'm very excited about today's episode.
Ann: Tell me.
Aminatou: I talked to friend-of-the-pod Josie Duffy Rice.
Ann: Ugh, one of my favs. Sorry.
Aminatou: Mm-hmm, like big, big, big fav. Josie is a lawyer, a journalist. She writes essays. She's a reporter for a great site called The Appeal where she covers prosecutors, prisons, and everything under the criminal justice umbrella. She also has been writing about race, gender, culture, and criminal justice, like that intersection with politics forever. You've probably read her work in the New York Times and Atlantic and Slate. Josie is killing it all of the time. She's also and she's really been -- you know, you've always articulated so well about how part of having friends is that they influence like your thinking around very big issues sometimes. And Josie is somebody who has completely rewired how I think about criminal justice issues and how I think about especially like race and gender and how they intersect there. She's somebody who has just dedicated her life to this. And so it's really exciting to talk to her about these issues and also think about them as a long-term kind of advocacy, you know, around issues that are really hard like voting rights and criminal justice policy. So yeah.
(5:40)
Ann: A true thing that I do is I do not make a tweet or an Instagram post about any criminal justice issue without first checking Josie's feed to be like "What are the experts saying?"
Aminatou: [Laughs]
Ann: Like I'm not even kidding, I use her as personal don't put your foot in your mouth fact check because you are so right. She knows these issues in a way that I feel is just not . . . is just very underrepresented in kind of mainstream news consumption. And Justice in America, her podcast, has become such a valuable resource for me as I deepen my understanding too.
[Interview Starts]
(6:12)
Josie: My name is Josie Duffy Rice and I am a journalist with The Appeal.
Aminatou: And what is The Appeal?
Josie: The Appeal is a criminal justice outlet that focuses on publishing articles about the criminal justice system that identify the actors and the places where most of the mass incarceration action happens. So most of what happens in the criminal justice system happens on the state and local level. The players that are most responsible are the prosecutors along with obviously police but also state legislators, city councilmen, your mayor, the sheriff. And often these positions are not getting the sort of attention necessary to hold them accountable. And so The Appeal tries to bridge that gap.
Aminatou: Yeah. I would say most of your advocacy work really centers around voting rights and criminal justice policy.
Josie: Yeah.
Aminatou: Also I should say for the record you are my smartest friend on all of these issues.
Josie: Oh, thanks. Not just in general? [Laughs]
Aminatou: Listen. Listen, you are a lot of people's smartest friend so let somebody else take some credit okay? But you know, you have largely shaped a lot of my thinking around criminal justice policy so . . .
Josie: That's good to hear. The propaganda is working.
Aminatou: The propaganda is working. Because you know me, I have a degree from Law & Order. That's the extent to which I know about the law so . . .
Josie: Me and you and Olivia Benson are on different sides of this fight. Although I also love Law & Order, let's not get it twisted. The point you make is really important which is that most of what you see about the criminal justice system is sort of this Law & Order narrative, right? Like there's a bad guy. Here are the people really wanting to take him down. He goes to trial. The defense attorney's kind of sleazy. Like the motivations of the system are so simple, so straightforward, and so much of what we see represented in the criminal justice system on TV, the general stories you hear. But in reality like everything else it's just much more complicated and I think much more disconcerting. And so that's sort of what we hope to do and what I've been trying to do for the past eight or nine years in various capacities.
(8:35)
Aminatou: You wrote a piece right before the midterms about how voters around the country are punished.
Josie: Yeah.
Aminatou: And how the prosecution of individual voters for fraud . . .
Josie: Right.
Aminatou: It's about a larger trend to intimidate most people about voting in general.
Josie: Right.
Aminatou: And I'm wondering if you could unpack that a little and put it into context of the last -- the midterms that we just had.
Josie: Sure, sure. So this -- I was mostly writing about Georgia where currently the fight to figure out who is going to be governor, the fight to ensure that all the votes are counted, continues. What you see all the time from the right is this claim of voter fraud, right? That people are bussing people in, getting their friends who aren't citizens to vote. People are voting in two or three places. This is a narrative that has been going on for 15 years now, yeah.
Aminatou: Right. There is always a meme. There is always some sort of meme that Republicans push around the fact that undocumented people, or as they like to call them illegals, are flooding the country to vote or whatever.
Josie: Totally. Right. Right. Yeah.
Aminatou: And it never actually pans out.
Josie: No it doesn't.
Aminatou: Where is the evidence of all of it?
Josie: There is really no evidence of it, and when you think about it it doesn't make much sense, right? Like if you're here and you're undocumented why would you risk your entire life for one vote? Like everybody knows it's important to vote. You also know that your one vote . . .
Aminatou: For the love of democracy, Josie! Some people risk it all.
(10:00)
Josie: Right. You just love democracy so much. Right. Right. And so you see this sort of pattern of people claiming voter fraud and not being able to drudge up any evidence. And actually the Heritage Foundation, a super-conservative organization, did a database of voter fraud to prove that it exists which actually kind of ends up doing the opposite because it's like a few hundred cases, some of them don't even seem to qualify, and it's over 20 years. That's billions of votes we're talking about. It's not actually having an impact on elections and it's really not even happening.
Aminatou: Why do you think it's so pervasive? That it's so pervasive for one side to push this narrative so much.
Josie: You know, it's interesting because it's strategy and it's strategy in a very interesting way which is you think the right would take a strategy of just trying to build a coalition of people to vote for them. You know, you would think that the answer to -- you know, this idea that to win they want less people to show up to the polls to me seems like a strategic failure for them to actually appeal to the American people. But part of it is imparting fear and imparting fear in communities where the criminal justice system has been particularly harsh. And that includes the communities I wrote about which are the South Georgia counties where there are just a couple thousand people. The towns have very few people in them. The district attorney's office has a couple ADAs. But these are small, small, small communities.
And in the main one I wrote about a woman named Olivia Pearson in 2012, who is a big get out the vote activist in her small town of Douglas, Georgia which is in Coffee County, she was at the polls and this woman asked her how does the machine work? The woman wasn't even at the machine; she was kind of walking towards it. And Olivia Pearson was like "You just put your card in the machine and you go through and make your selection and they give you your card." And she signed a sheet of paper -- even with that little help Olivia Pearson signed a sheet of paper saying "Just for the record I helped this woman figure out how her machine works." Four years later she's indicted on felony charges for voter fraud but also some -- a couple of charges that aren't actually even in the Georgia statutes, that aren't even against the law. She was threatened with years in jail.
Aminatou: Wow.
(12:24)
Josie: She was forced through two trials. She's on the city council. She lost friends and relationships and the local papers were not very kind to her about it. What it does to your reputation, right? Just to your day-to-day life to be charged with four felonies for something like this is kind of immeasurable. Eventually she was acquitted but it took two years. And this is just one of the ways that we see the criminal justice people used as a weapon against black and poor people, and especially in rural communities. Because what this does is it tells everyone in the neighborhood if you go vote you're risking arrest.
Aminatou: Yeah. And the thing about it too that you were so good at pointing out in the op-ed that you wrote is that this case is obviously very unusual. You gave an example of a woman in North Carolina who printed to be her dead mom so she could vote for Donald Trump twice. [Laughs]
Josie: Yeah.
Aminatou: I'm like that's actual, real voter fraud. You were out here Weekend at Berniesing so you can . . .
Josie: Your mom. It's vile.
Aminatou: So you can make America great again.
Josie: My favorite part of this story is that woman said "I didn't know that she couldn't vote," first of all.
Aminatou: [Laughs]
Josie: And then she was like her dying wish was that she voted for Donald Trump so I . . .
Aminatou: Well if it's her dying wish I guess, you know what I mean?
Josie: Yeah. I mean we all know . . . we know that.
Aminatou: Man, if God -- if God wanted her to vote for Donald Trump he'd have kept her alive.
Josie: That's what I'm saying.
Aminatou: That's what I'm saying. But the thing about that case that is fascinating is there the prosecutors refused to pursue charges, right?
Josie: Right, right.
(13:55)
Aminatou: Because it is to their discretion. Prosecutorial discretion, a thing I learned about in Law & Order.
Josie: Yes, thank you. And also from me.
Aminatou: [Laughs] Right. Please, I mostly learned about it from you.
Josie: And Law & Order.
Aminatou: Right. It's a thing that they get to decide whether it is a big deal enough that they can press charges.
Josie: Yeah.
Aminatou: And so in this case they decide not to for whatever factors, mostly whiteness factors.
Josie: Right.
Aminatou: But, you know, I was just wondering if you could talk to the role that prosecutors play in this larger conversation?
Josie: Yeah. So, you know, when we think about the criminal justice system we often talk about police on the front end and prisons which is the back end. And it makes a lot of sense that we focus on those two things because the reality is that that is where a lot of the physical harm, the physical impact of the system is seen, right? Police brutality, shooting unarmed black kids on the front end and then just terrible conditions of prison on the back end. What we often do not talk about is the middle which is the prosecutors who have an enormous and probably more than any other player in the system amount of power to drive trends in criminal justice. And they have been the main driver of mass incarceration.
So there are places nationwide where prosecutors don't prosecute like low-level drug possession, right? It's just not a priority of theirs. There are other places where they will prosecute you as far as the law will allow. You can be in Brooklyn and have one experience after an arrest for a certain low level crime and in Manhattan and have a totally other experience because prosecutors really have the power to decide whether or not they're going to bring charges.
(15:40)
And you see sort of the best prosecutors, the most progressive ones, Larry Krasner in Philadelphia or Kim Fox in Chicago, you see them take these kind of strong stances of we're just not going to prosecute this little stuff. It fills up our jails. It gives people criminal records that they don't need. It starts this trend of a cycle of being part of this criminal justice system that's so harmful and it's a waste of our time. Like it's a waste of our space.
Aminatou: Right.
Josie: But then you see places in the same states where they'll go after that stuff all day. You know, the voter fraud one is interesting because that prosecutor who didn't prosecute the woman about the Donald Trump thing, like good. It's not -- that's a stupid thing to do. You got caught. The vote didn't count. You don't need to be going to prison for that. You don't need a criminal record. Maybe you need to do some kind of community service or something and call it a day. That actually I think is a good call. It's the people who go after these crimes that I think are making the major mistake.
And it's not a mistake; it's intentional. And like you said it's intentional to -- it's about race and it's about class and it's about intimidating people in a state where voters have been intimidated for, you know, 100 years.
Aminatou: One of the things that's always been super interesting to me about the work that you do and the conversations that we get to have in private is that it has really challenged me to think about what I think about crime, you know? And how I feel about justice in a deep way.
Josie: Yeah. Uh-huh.
Aminatou: The example of voter fraud is great because nobody should go to jail for doing voter fraud. How do we -- in a society where bad things happen all of the time how do we make sure that the people who are victims of crime get to be heard and get to be . . . like they have a say also in the system?
Josie: Right.
Aminatou: And that they are treated with compassion as well. Because it's like we're . . . I know about restorative justice. I want to say intellectually that I believe it. But the truth is, you know, the rubber has not hit the road for me on that.
Josie: Right.
(17:55)
Aminatou: So, you know, you're somebody who thinks very smartly about this. And so for people who are just like civilians, that are not like engaged with the larger questions of the law, what are ways that we can start thinking differently about these issues and we can start addressing a way to live in a more just and compassionate society?
Josie: Right.
Aminatou: But that is also rooted in justice.
Josie: Yeah, so I think it's a really important question because a lot of this work focuses on the person who is accused of committing a crime. And it's important to also be clear about the importance of someone who has had a crime committed against them. My answer to this would be I think pretty fundamental. One is that to me there's a difference between consequences and punishment, right? And so if someone does something -- steals my purse, right, I think there should probably be consequences for that depending on what the various forms of that look like. Sometimes restorative justice is the answer; sometimes it's not. Restorative justice is not perfect either.
Aminatou: Can you explain restorative justice? Because I failed to do so.
Josie: Sure, sure. So restorative justice is this idea that -- it's sort of an alternative to the criminal justice system, and it is less adversarial and more what I would say is people trying to get to a solution. So in the restorative justice process -- and there are various forms of it -- generally it's about the offender in a situation and the victim being able to communicate about what harm was done to them and express it in an environment that is safe and productive. And for basically both parties to be able to have a conversation where the person who has committed a wrong can hear the person who they harmed and the person who was harmed can be clear about what kind of consequence or what kind of result would rectify the situation for them or attempt to rectify it.
(19:50)
So it's a lot more of almost like mediation or negotiation in a way that most things in the criminal justice system are not. What I will say about your question about thinking about victims, one thing is I find that the criminal justice system thinks about victims only when what the victim wants aligns exactly with what the system wants. So, you know, if I get my purse stolen from me and I go in and I say "I want this guy to be prosecuted for the highest level robbery," or whatever the charge is, at that point maybe the prosecutor says "Okay, that's -- we'll go forward with that," or whatever. Like if I say I want them prosecuted to the fullest extent of the law often prosecutors are then thinking about what I want.
If I go in and I say "I actually want this guy let off, like this is not a big deal to me. In fact let's try to figure out a program he can get in or whatever. Is his family hungry? Is that why he stole my purse? What's his deal? Is he in therapy?" Whatever. Then suddenly what I want tends to be less important. And you see that all the time with death penalty cases, right? Where a victim will say "I want this guy sentenced to death" and then they become a big central part of a case -- or a victim's family because obviously usually the death penalty is the person is dead so they're probably not talking unless they're that woman's mother voting for Donald Trump. But anyway . . .
Aminatou: [Laughs] Thank you for tying that all back.
Josie: But that's when you will see someone say their family wants somebody to be put to death to the jury. This is what they want. Victims matter, right? When they say that they don't want someone to be sentenced to death you tend to get a different answer in cases where the death penalty is on the table. So that's just to say that I think that we can really care about victims. We can really hear victims, right now especially in this moment women, and address the harm that has been done to them and ensure that there are consequences. The question is punishment -- unnecessary punishment for extended amounts of time in a system we already know has not been able to handle that level of power responsibly, right?
Aminatou: Right. Right.
[Music and Ads]
(24:58)
Aminatou: We talk a lot on our show about issues that women should know about, right?
Josie: Right.
Aminatou: That they should be active in advocating for and should really be paying attention to. I was wondering if you could guide us in discussing issues -- where women's issues and the criminal justice system overlap that you think are really under-discussed?
Josie: Yeah.
Aminatou: We have an audience that cares about this stuff and I can say in my own life even finding something as small as -- or small to me at least -- as knowing that, you know, there are programs to bail out moms during Mother's Day . . .
Josie: Right, right, right.
Aminatou: Was something that I . . . like I felt so dumb and self-absorbed that it's something I had never thought about.
Josie: Right, right, right.
Aminatou: And have seen firsthand the difference it makes in people's lives.
Josie: Right, right, right.
Aminatou: I'm just curious about issues that you deal with in your work that you wish more people knew about in that intersection.
(25:55)
Josie: Yeah. I think, you know, it's a great question and I think there are a lot . . . to your point of stuff you haven't yet thought about I do this day in and day out and daily I'm like oh my gosh, I had never actually thought about it as a solution. I had never understood that was a problem. So that's kind of the joy and the tragedy of this work; you're always learning new things. But there are so many issues that disproportionately affect women right now.
I think so fundamentally, right, we send a lot of women to prison and we send a lot more women to prison than we ever have. In the last 40 years the number of women in prison has grown by 800% and in a lot of places they're the most rapidly-growing population going to prison, being involved in the criminal justice system. They're more likely to go for a drug offense than men are. We're filling prisons and jails with women, so that's the first thing.
I think the second thing is that women are an integral part of the system no matter who is in prison, right? And there's an organization called SE Justice, it's run by this incredible woman Jenna Clayton, and what SE Justice really focuses on is women with incarcerated loved ones. What Gina has really identified, which I think is very important, is when we talk about bail for example who's paying the bail of someone in prison? Probably a woman. Probably a mom, the girlfriend, the niece, the sister. These women carry the weight of the system in such a way that is so pervasive. When men are being sent to prison at these astronomical rates like they have been for the past few decades these are women who now are working two jobs to take care of their kids. Women who are now taking in their grand kids when their son goes to prison.
(27:45)
For 90% of men who go to prison who have children their children are taken care of by either the children's mother or a grandmother of the children. So a woman is taking care of those children.
Aminatou: Wow.
Josie: When a mother goes to prison only 25% of the time is that child taken care of by their father primarily. Most of the time they're also being taken care of by another woman in the family. So you see it left and right that women are kind of carrying the load of the system. Another thing we see all the time is women who have their children taken away from them for small offenses who lose custody of their kids because they were caught with drugs or because low-level threat or because they are in jail and they can't pay their bail and so they're not home with their children and then they're charged with neglect. Their children are taken from them, maybe put in foster care. Someone else gets custody. You see the separation of families. We talk about it all the time in an immigration context which obviously matters so much. It happens daily here with women whose children are being taken from them for small, small offenses. In fact I don't know if you remember the story a couple months ago about the six kids in I think it was California who . . .
Aminatou: Yeah, I'm pretty sure it was California.
Josie: Who were adopted. And their adoptive mothers drove them over a cliff and killed the entire family. Three of those children were siblings who had grown up in Houston for the beginning of their lives and their mother had some cocaine charges on her record and she lost custody of her kids. Her kids were adopted by this family that obviously was not monitored with the same kind of vigilance that she was monitored with.
Aminatou: Right. Actually, you know, but the thing about the story that is actually fascinating is they were monitored. The police were called.
Josie: Right.
Aminatou: They had had a lot of contact with the system.
Josie: Right.
Aminatou: For multiple offenses. But the difference is those kids are black and the women who adopted them are white.
Josie: Exactly. Exactly.
(29:52)
Aminatou: The consequence for having contact with the system was very different for both of the parties.
Josie: Exactly. Exactly. And that woman's kids are dead now because she had some cocaine charges. It's kind of hard to even imagine.
Aminatou: Yeah.
Josie: You see it all the time with women who test positive for drugs while they're pregnant which can happen for various reasons, often because they're not getting the services they need to address their addiction. They lose custody of their children once they're born usually and not only that but they're often sentenced to up to a decade or a decade and a half in prison for testing positive on a drug test while they were pregnant.
Aminatou: Well, so listen, I feel like you and I know the answer to this right?
Josie: Right.
Aminatou: But what is the answer you tell somebody who says "well, those women have drugs in their system and they should not have their children." Because that is the simplistic way of looking at it.
Josie: Right.
Aminatou: But unfortunately a lot of people think that including people who I would say think of themselves as very progressive people.
Josie: Right. I would say that the answer to that is that it's typically more complicated than that. But that on the front end, right, these women don't have the services or the care that they need to address their addiction. So you don't get pregnant and stop being addicted to opioids. It doesn't happen. And so if you can't actually address your opioid addiction, if you don't have a system that's willing to help you figure out what the best path forward for you is as a pregnant woman who has this addiction, but the only answer to your problem is the punishment end, the consequences end, then this is never going to be a solvable problem right? It just never is going to be a solvable problem.
The other thing is the reality is a lot of these children whose parents test positive at some point for drug use, the impact that that has on the child -- I know that sounds crazy to say . . . it might not even have an impact on the child. But the reality is we're drawing a connection to their ability to love and care for their child from something that is not a direct correlation. So we don't always know. You know, often there are no signs of withdraw from the child once they're born. Often this happened at the very beginning of the pregnancy.
(32:10)
Aminatou: Right. The larger point is again it's about paternalism, right?
Josie: Right.
Aminatou: And it is we have decided that there are decisions the state can make for certain people.
Josie: Exactly.
Aminatou: If they are a certain race or if they are from a certain class or a certain socioeconomic background.
Josie: And the state has not earned it. That I think is exactly the point. The state has not earned the right. You know, the state does not treat poor people, people of color, women, families, mothers with the sort of respect necessary and provide the sort of services necessary to have earned the ability to take your child away with almost no due process and no access to services. It just is terrifying to me as a mother what is possible when the state doesn't value your life and doesn't think that you matter. And that's what we see, right?
Aminatou: Yeah.
Josie: This disproportionately affects black mothers. It disproportionately affects poor mothers. It disproportionately happens in places in the south, and this is the same place that can't even provide basic maternal care for these women and the infant mortality rates are off the charts and disproportionate to white mothers. So the answer is not for every parent who has made mistakes or has even proven themselves to have some sort of systemic problems, the answer is not always the state should take your kid. There has to be some other body or influence or ability for other interventions to happen before your child is taken from you. So those are some of the things that I think really matter for women to focus on.
(33:50)
Aminatou: Can you talk about something that you're working on specifically right now? I know that you host a podcast and it's very good.
Josie: Thanks.
Aminatou: You've had some celebrity guests on there.
Josie: I have. Everything I know from you.
Aminatou: [Laughs] Girl, you need better role models.
Josie: I'm just saying. I'm just saying.
Aminatou: Yeah, can you talk a little bit more about the podcast and the work that you're doing specifically?
Josie: Yeah. So we have a podcast called Justice in America. I host it with Clint Smith. And our podcast focuses on explaining the basics of some of the issues that people may have heard about and they know they're big deals and they know they care about them but they don't exactly know how they work. So for example bail. Bail has been getting so much attention right now and I've encountered so many people who are like "Yeah, bail reform. But also what is bail exactly and how does it work?" So we do a lot of explaining the very basics. And then we interview someone who's an expert on that topic.
So we're actually in the middle of taping season two. We're covering public defense, fees and fines, judicial elections, police reform. We have some really exciting people coming on and it's been a really great opportunity to kind of accentuatize how these systems work in theory and how they actually work in practice and point out sort of where the disparity is between those two realities.
Aminatou: I love too about the show that it is the level of expertise and of conversation that you have just really always drives home the point that if you are somebody who says they care about doing anti-racism work, and you are somebody who cares about living in a fair society with justice that matches our ideals, that these are issues you should care about right?
Josie: Yeah.
Aminatou: Like you can't say you're an ally of people of color and not care about mass incarceration.
Josie: Yeah, I think . . .
Aminatou: You can't . . . yeah.
(35:48)
Josie: I think that's absolutely true that this is a critical issue of our time. And you can see how this issue, even when we talk about the voter fraud cases or we talk about just the general state of our nation right now where we have what I would characterize as a tyrant in power, the impact of mass incarceration seems limited to a lot of people. It doesn't seem like it's going to happen to you, right? But if you let the system get out of control and then you have the wrong people in power who are willing to jail their enemies, willing to jail the free press, willing to punish people for voting, willing to punish people for basically being black and alive or poor and alive, then if you haven't stopped this system, if you haven't made it clear that the system is unacceptable, too large, and has too much power, then we're all at a loss. We're all at a risk. So that's sort of what we're trying to drive home, not only how it works but what it means to have the biggest criminal justice system on the planet, to have the most incarcerated people both per capita and in sheer number in the world. It's not something you want to be number one in.
Aminatou: [Laughs] I mean it also sounds like, you know, I say this as someone who is not deeply steeped in this work at all. Like when I think about okay, what are the things that I care about that seem completely impossible?
Josie: Right.
Aminatou: This is one of those where I'm like ooh, this mountain.
Josie: Right. Yeah.
Aminatou: You know, we're doing the work but it seems pretty . . . it seems so daunting.
Josie: Yeah.
Aminatou: But mostly because this is connected to so many things. It's connected to everything else. It's like when I start thinking about the ways the system pathologizes black people . . .
Josie: Right.
Aminatou: Or that it pathologizes poor people, and it pathologizes women, I was like oh, this is where all these intersections occur. It's like this place right here.
Josie: Right. Right.
Aminatou: And so it's like the sheer weight of that makes it seem impossible, but I don't actually believe it's impossible. But all of that to say what is giving you hope? What are you seeing around the country that you're like okay, this is something that's new. You're going to keep this energy, and this feels like there might be a light at the end of the tunnel if we keep doing this.
(38:00)
Josie: Yeah, that's a great question and it's funny because we always joke at my job. We're like okay, we're all going to take -- we're going to end mass incarceration by December. We're going to take vacations.
Aminatou: [Laughs]
Josie: It's such a clear -- the reality is this is a decades-long fight, right? We might not see the end of it. And that can be depressing. It can also sort of be . . . it can be reassuring once you see yourself as something that will continue for a long time and started way before we did. But there are some things that really give me hope, right? There are progressive prosecutors being elected in some of the biggest cities of America, and some of the places where mass incarceration was its worst. Again Philadelphia and Chicago, but places like St Louis, places like Orlando or Houston. And towns that are typically conservative, right? We're electing prosecutors that see justice in a different way and some of them are even Republicans. It's not . . . the prosecutorial misconduct field, in terms of being aware of it and getting attention, is bigger than ever and it's incredible to see where it is now than where it was three years ago.
You know, we're starting to talk about police brutality in a new way. We're starting to change accountability for some of these people. And that's the real goal here, right? If you're running to be the head prosecutor in Chicago where you have the biggest jail in the nation and you have a history of both higher than average levels of violence and astronomical police brutality and wrongful convictions and malicious prosecutions, in places like that where now the DA was elected not by the police union or by people in the kind of law enforcement community but she was elected with the support of Black Lives Matter and with the support of community groups on the ground, black communities.
Aminatou: Wow.
(40:10)
Josie: That to me is a major win because it means that like to get elected again they have to approve of her, right? They have to stand by her. She has to appeal to them and this is a black woman who grew up in public housing in Chicago who really understands sort of both sides of this coin. And she sees this problem for what it is. It's a problem that obviously again sometimes there have to be consequences for people's actions. Often there have to be consequences. She's not arguing that nobody should ever face criminal penalties but she's . . .
Aminatou: I mean this is the joke in our group chat, right?
Josie: Yes.
Aminatou: When I always tell you that you like crime too much. Like Josie . . .
Josie: Amina tells me that I'm the queen of crime, that I love crime.
Aminatou: You love crime! I was like the jails are not going to fill themselves. Too much crime.
Josie: I do love people accused -- who allegedly committed crime. I love all of that. [Laughter] Minus some. No, I think what she . . . what Kim Fox in Chicago identifies is something you and I have also talked about, right? Which is it's actually not going to be a problem she solves.
Aminatou: Yeah.
Josie: It'll be a problem solved by social services, by affordable housing, by a job market that gives people opportunity, by a local government that's responsive to the people, by better parks and after-school programs for kids, better schools in general. These are the things that keep people away from being involved in the system. Once someone's in a courtroom it's too late, right? The opportunities to keep them away from the system are gone now. And so there's always other opportunities to keep them away post- this certain incident or reentry opportunities but what you want is nobody to ever step foot in that courtroom in the first case. And that's actually not the prosecutor's job; that's all the other people's job. And so I think the hope I see is a rethinking of what criminal justice means. It doesn't mean that we're going to solve it tomorrow but there is a path forward and it is exciting.
(42:15)
Aminatou: You are somebody that is always pushing. You're always pushing on really hard issues all the time and the times are pretty dark.
Josie: Yeah, they are.
Aminatou: How do you take care of yourself? You're raising one of my favorite children on the entire planet and I see the toll that the work takes on you.
Josie: Yeah.
Aminatou: And so I'm just wondering how, you know, how do you go home when you know all of this stuff all the time?
Josie: First of all kind question for my -- from this amazing podcast where you care about people's hearts. [Laughter]
Aminatou: Listen, we need our best fighters to be fit all the time. Part of that is taking care of yourself.
Josie: It's funny because all my friends from law school are like immigration attorneys and public defenders and doing these jobs that make mine look like a cakewalk. So part of it is a question of relativity. You know, I'm not taking clients into a courtroom every day where I know that they're probably going to get deported no matter what I do. So in a lot of ways I'm lucky.
On the other end of that is that it's a tough field. It can be very, very, very depressing and it can be very discouraging. But for the grace of God -- what is it? But for the grace of God go I?
Aminatou: God go I, yeah. That thing. [Laughs]
Josie: Yeah, that thing. That thing that they say. I think that that's what I try to keep in mind. So part of it is trying not to work too much and watching The Good P lace as much as possible when I'm stressed out.
Aminatou: Josie, the idea of you not working too much is the funniest thing I've ever heard in my whole life.
(43:50)
Josie: I know. I know. When you're working in the system every single day you realize there are people sitting in prison, solitary confinement, death row, people who haven't seen their families in 20 years. People who have serious mental health issues that the jails are treating instead of a real facility. People who've lost their kids and families and friends to drug addiction in a system that prioritizes punishment over treatment. People who can't get a job because they served ten years and now nobody wants to hire them. People who didn't see their kids grow up, you know? Because they were serving time for something that they were probably serving too much time for.
And when you think about all of those people what can you really do but fight? Especially when there are people serving time in prison right now for decades for stuff that the president is doing. You know, for cheating and lying to people on a smaller scale. And so the injustice and sort of the tragedy of it is both depressing but also motivating because I am lucky enough to be sitting here having this conversation with you. We're lucky enough to be able to talk about this stuff every day. I've heard from people in various iterations of my work over the years who are like nobody cares about us. Nobody cares about me. Nobody's listening. And so it's important to me that people know that I'm listening and that there are people out there who are fighting. And also I ate ice cream for breakfast. That is my self-care.
Aminatou: [Laughs]
Josie: That's my real self-care.
Aminatou: That makes me so happy. Ugh, I'm so glad that when I get caught for fraud you're who is going to bail me out.
Josie: Oh my god, girl. I've got you.
Aminatou: Thank you. Oh, also, very serious question.
Josie: Yes?
Aminatou: Best and worst ADA of Law & Order: SVU.
Josie: Oh my god, this is so -- okay, best I think is what's the guy who just left? Barber?
Aminatou: Barba? You think Barba was the best?
Josie: Yeah, because that woman was the worst, the blonde one.
Aminatou: Okay, here's what I'm going to tell you. First of all the ranking is Alex Cabot.
Josie: Okay, right. Correct.
Aminatou: Is that who you think is the worst?
Josie: Yeah, the blonde one. Your favorite.
(46:00)
Aminatou: Oh my gosh. Well I mean there are many blonde ones. I like that one.
Josie: Yeah, the one who -- was it actually . . . what's his name in real life? Bobby Flay.
Aminatou: She had to go in a witness protection program.
Josie: I know.
Aminatou: She had to go to a witness protection program.
Josie: I know. Can we just talk about that? That was the worst plot line of all the plot lines on SVU which is really something.
Aminatou: Also how she came back as awful.
Josie: I know.
Aminatou: But also the next best one is Elizabeth Donnelly.
Josie: Which one is she again?
Aminatou: Judith Light.
Josie: Hold on, I'm looking it up.
Aminatou: Judith Light. She is the one -- come on, you know her. She is the one . . .
Josie: Oh yeah. No, okay, okay. Yeah. I think I liked her. Yeah.
Aminatou: You know what I mean? She did the bad thing then she got all the bad judges off or whatever.
Josie: Right, then she became a judge. Right.
Aminatou: Right. And the next is Casey Novak and then after that is Barba. Come on.
Josie: Okay, I like Barba because sometimes Barba is somewhat reasonable. He will sometimes be like "We're not going to win this case" and I appreciate the reality. Also weren't you the one who wanted Barba and Olivia to make it work?
Aminatou: Listen, it's not me. I thought that's what the show was doing but I was really rooting for them. But you know also Law & Order is very bad at dating attachments because they definitely wrote Barba kind of as gay in the beginning.
Josie: Right.
Aminatou: And then all of a sudden there was a woman involved.
Josie: I know. It got so . . .
Aminatou: Not to be hetero-normative about the whole thing.
Josie: Right, anything is possible.
Aminatou: I think everybody can follow their bliss. I'm just saying I don't think that's what's happening in the Law & Order writer's room, you know what I'm saying?
Josie: Can we talk about -- have you watched any episodes this season?
Aminatou: No I haven't. They're all on my DVR. I'm going to sit down and catch them.
Josie: Same. Same.
Aminatou: But I want to get back to the worst ADAs.
Josie: Okay.
Aminatou: Whoever Paula Payton -- Patton played . . .
Josie: Oh my god, I forgot about that. She was so bad.
Aminatou: Yeah, she got fired. She got fired in one episode and then Sharon Stone was so bad.
Josie: Sharon Stone was so terrible. Here's my thing about Casey Novak. Casey Novak's whole thing is she has a high conviction rate. She's like "I convicted . . ."
Aminatou: You don't like that? You don't like high conviction rates, Josie?
(47:55)
Josie: All I'm saying is conviction ratse are not synonymous with justice and prosecutors should probably be using various metrics to determine whether their ADAs are successful.
Aminatou: [Laughs]
Josie: So what about she didn't try cases where she knew that there was not enough evidence to convict. Anyway, Casey Novak gets on my nerves.
Aminatou: Who do you think would write that TV show? The TV show that's actually the woke justice TV show, you know? Where . . . because you know my pet peeve in all of legal television, and if I had a bazillion dollars one of the things that I would do is I would literally give money to TV shows . . .
Josie: To write good . . .
Aminatou: So they would never, ever tell a person who is in police custody that if they call their lawyer people think that they're guilty.
Josie: I know.
Aminatou: That is the thing that I was like if I had all of the money in the world for all these dumb legal TV shows that's what I would do. I was like I want the TV show where the minute you step in the police goes "Do you want your lawyer here?"
Josie: Right.
Aminatou: And it's a very normal interaction, you know?
Josie: Right. Because I think that -- it's so funny you would say that because we talk about this a lot at my job. It's like does art imitate life or vice-versa in a lot of these situations, which is the whole thing -- that's a great example when they're like "I want my lawyer" and if you call your lawyer it looks bad. That's an insane thing to say and also implies to people . . .
Aminatou: No, it is a . . .
Josie: But it's also what they say to you. So how do you tell the honest truth about what happens in these places and these situations? And the other example I would give is what about -- there's no middle ground, right? In any of these shows, SVU especially. You don't see a lot of the episodes where it's like a woman comes in and she's like "I was raped" and the guy was like "I didn't think that was rape. I thought she agreed." Which is a very common and much more complicated situation.
(49:50)
Aminatou: Oh, you mean the nuanced reality?
Josie: Nuanced reality. Yes, exactly.
Aminatou: Yeah, Law & Order does not trade in nuance or reality.
Josie: Right. And so what it tells people is that all rapists are sociopaths who attack you on the street. Or like callous, heartless demons who don't care.
Aminatou: Totally.
Josie: Which the reality is rape happens among very complicated situations in which women still deserve . . .
Aminatou: And it is often not a stranger.
Josie: And it's often not a stranger.
Aminatou: What always happens on SVU is somebody climbs through your window.
Josie: Right.
Aminatou: You know that thing of just like everybody is afraid of living in New York because you think somebody is just going to climb into your window?
Josie: Yes, exactly. That never happens. Right.
Aminatou: You would do better to teach everybody that usually the signs of danger are people that you know.
Josie: Exactly.
Aminatou: And that's what makes it so hard.
Josie: Right.
Aminatou: Is because they are people that you know and the dynamic is now complicated. So it's awful.
Josie: So I think that's a really big problem is that we don't have people who might seem sympathetic, who have done wrong.
Aminatou: Mm-hmm.
Josie: Which I think is a disadvantage to women who actually are trying to navigate the system, who actually have experienced some sort of abuse or sexual trauma. And it doesn't fit the sort of pattern of what we imagine a rapist to be or an abuser to be. Those are the things I would change about SVU. On the other hand I watch SVU all the time, even though I like . . .
Aminatou: Are you kidding? You and me, it's terrible.
Josie: I know, girl. I'm always -- every week I'm like Amina, have you seen . . . and it's gotten really outrageous but I can't stop.
Aminatou: But don't you think part of the reason -- I will not speak for everybody but I will say that I think a huge fascination with something like Law & Order is I think it does two things. One is that it's almost like picking at a scab, you know?
Josie: Right.
Aminatou: For people who have gone through any kind of trauma or aware of it, or just like it explores a lot of fears that women have.
Josie: Yes, yes, yes. Absolutely.
Aminatou: In this very specific kind of way and it's very salacious or whatever.
Josie: Right.
(51:50)
Aminatou: I think that a thing that Law & Order weirdly does well is it shows you the reality of what happens when women who report assault deal with the criminal justice system.
Josie: Yeah. I wonder if that's -- I wonder . . .
Aminatou: You know? I don't know. And I don't know that it's good or bad.
Josie: Right.
Aminatou: But I know that it's a thing that -- it is not taken lightly, right? It's like yes, actually when you get involved in the system here are the people that pressure you.
Josie: Right, right, right.
Aminatou: Here is what you will feel conflicted about.
Josie: Right.
Aminatou: It's like all of the men that were pro-Kavanaugh, I wish that they were the ones who watch Law & Order.
Josie: Right.
Aminatou: Because everyone who watches Law & Order knows there is no victim of sexual assault who is like "I would love to talk about it."
Josie: Yes, yes, yes. I think that's definitely true.
Aminatou: Even the women of Law & Order who have turned out to be liars when it has happened a few times . . .
Josie: Right.
Aminatou: It was always a case that was so complicated that they didn't . . .
Josie: They didn't wake up one morning.
Aminatou: Sure.
Josie: Right, exactly.
Aminatou: People are not out here pressing charges. And this is a thing that I think a lot of women have internalized whereas I'm like oh, actually it's probably like the Brett Kavanaughs of the world who need to watch Law & Order so they know assault is among us every single day.
Josie: Right. And I would say to that point I think the one thing that it probably romanticizes, or among the things it romanticizes, is the care of -- you know, the existence. I mean I don't know every SVU cop in New York but Olivia Benson, somebody who has dedicated their life to ensuring these women get justice, I don't think . . . you know, the system wears you out. It burns you out.
Aminatou: Yeah.
Josie: Eventually people start coming in and you hear case after case of women saying like "Well I reported it but they said there's no way they'd be able to prove it and they didn't really go forward with it."
Aminatou: Right.
Josie: So you see these two sorts of realities. One is in most cases we're never too lenient. We're never too easy on someone who's committed a criminal offense. We're usually too hard on them. But you often hear stories of people who just don't get any justice in a situation where they've been sexually assaulted because the criminal justice system doesn't end up giving them a lot of attention. And you see it a lot with people who are sex workers who because of their profession are treated as unable to be assaulted or unable to suffer from rape. And it is a complicated system that is not necessarily tooled towards addressing nuanced and complicated and difficult crimes. You know, the criminal justice system is built for something very straightforward and much of this is not.
(54:35)
Aminatou: Josie, thank you so much for coming on.
Josie: Thank you so much for having me. This was great.
Aminatou: And thank you also, you know, just for being my friend and for really challenging me to think about this in a way that is smarter and more compassionate and really more connected to all other issues that I care about.
Josie: Aww.
Aminatou: And thank you for the hard work that you do.
Josie: You know what I always say, Amina is the best thing to happen to me in the past five years minus Nico.
Aminatou: [Laughs]
Josie: It's like my kid, you, Zack my husband.
Aminatou: You are ridiculous. You are ridiculous.
Josie: I love you so much.
Aminatou: Can you tell everybody where they can find your work?
Josie: Yeah, so we are at theappeal.org. You can also find me on Twitter at @jduffyrice. And if you have questions . . .
Aminatou: Your Twitter is very good. Your Twitter is very good.
Josie: Thanks. Thanks. And if you have questions or thoughts you can always email me at josie.duffy.rice@theappeal.org.
Aminatou: And last plug, if you are in Atlanta . . .
Josie: yes.
Aminatou: Josie's amazing sister . . .
Josie: Oh my god, yes.
Aminatou: Rosa has opened a bookstore that is obviously black woman owned and it has incredible African-American authored, very rare books. All the classics. All the classics.
Josie: Yes, unbelievable stuff. It's really incredible.
Aminatou: All sorts of ephemera. It's amazing. It's called For Keeps Bookstore. If you're in Atlanta . . .
Josie: You should go.
(56:00)
Aminatou: If you love black women, and you all should, you should check it out.
Josie: You absolutely should check it out. It's amazing.
Aminatou: Thanks Rosa!
Josie: Thank you so much. It's @forkeepsbooks is the Instagram handle. You should check it out.
[Interview Ends]
Ann: [Laughs] Ugh, ever more alienated on this podcast for my decision to not participate in Law & Order culture.
Aminatou: Don't worry, there's always time Ann. Don't worry. Don't worry. I have deep faith that in maybe the last decade of your life when you're 153 you will finally invest in the quest of Olivia Benson. It's all good. [Laughs]
Ann: Some day. I feel like it's going to be one of those like we're both on our -- in whatever our communal retirement situation is, shriveled, old ladies, and I'm like guess what? Dun, dun. I finally get it. [Laughter]
Aminatou: Nothing would make me happier. I'm so glad Josie came on the podcast and I'm going to see you on the Internet and I hope that you have a great trip.
Josie: Oh my god, see you on the Internet but not for a couple weeks.
Aminatou: Yeah. You can find us many places on the Internet, on our website callyourgirlfriend.com, you can download the show anywhere you listen to your favs, or on Apple Podcasts where we would love it if you left us a review. You can email us at callyrgf@gmail.com. We're on Instagram, Twitter, and Facebook at @callyrgf. You can even leave us a short and sweet voicemail at 714-681-2943. That's 714-681-CYGF. Our theme song is by Robyn, original music is composed by Carolyn Pennypacker Riggs, our logos are by Kenesha Sneed, our associate producer is Destry Maria Sibley. This podcast is produced by Gina Delvac.