This open letter is in regards to criminal justice reform, with emphasis on the state of Michigan, although most of the ideas presented below would apply across the country. Please share it with anyone who might be interested.
I have adopted two black children, which puts me in a unique position: the beneficiary of white privilege, and witness to the suffocating racism all around us. After the latest brutal murder of an unarmed black citizen, folks are protesting all over the country, but they honestly don't know what to ask for, which makes the entire exercise rather ineffective. Yes, they want officers to stop killing black people in the streets, but who can control a million men in blue? We need concrete ideas that will help. I have watched these horrors unfurl in my own home, and I have a few suggestions.
I hear ideas batted around about restructuring, they call it defunding but that is terrible from a marketing point of view, so I'll call it restructuring, the police force, so that other organizations handle mental health and homelessness, and those are great ideas, but I'm focusing on things we can do quickly, without retraining and reorganizing 900 thousand men. This is the low hanging fruit, so to speak - things we can do with the stroke of a pen - things that should be uncontroversial.
First some perspective. Why do we have three times as many people in jail now as we did in 1970, even after adjusting for the increase in population? Surely our generation does not suffer from a three-fold increase in criminal behavior. In fact, crime is on a decline. There must be some other explanation.
There are many contributing factors, but the primary force is a shift in the way we view criminal justice in the United States. In 1970, jail was for violent offenders - keeping dangerous people off the streets. Over the past 50 years we have shifted our thinking, at the hands of politicians in both parties, so that today, jail seems like an appropriate punishment for every infraction, no matter how small. We sleep at night, with our conscience suitably numbed, by telling ourselves that this acts as a disincentive, encouraging people to follow the rule of law - and anyone who does not follow these simple rules deserves their fate. We conveniently ignore the fact that most of these rules involve money, e.g. purchasing car insurance, and thus, poor people cannot possibly follow the law. We conveniently ignore the fact that some of these rules involve addiction, which is not a choice. Even if there were no racism whatsoever, this shift in policy would increase the prison population considerably . Combine this with the racism of the police and the judges, who enforce the laws unequally, and we have a million innocent black men in prison. That's 46 thousand nonviolent inmates in Michigan alone.
You might think riots are caused by a dozen black citizens gunned down by police, but no, black families all over America are already furious that their breadwinner is in jail for smoking weed, or something equally trivial, and they are on food stamps and welfare, and their children are growing up without a father. Prison does more than destroy the inmate; it disrupts the entire family, and the fabric of our society. Given our undercurrents of oppressive incarceration, George Floyd is merely the match that lit the can of gasoline.
Have you read Charles Dickens? He wrote about a country, 19th century England, that subscribed to unfettered capitalism, combined with strict adherence to the law.
“What a fine thing capital punishment is! Dead men never repent; dead men never bring awkward stories to light.”
The result was widespread poverty, with wealth concentrated in a powerful minority, and debtors prisons, and workhouses, as Scrooge references in A Christmas Carol.
“If they'd rather die then they'd better do it, and decrease the surplus population.”
Dickens wrote these books so we would not make the same mistakes; perhaps we should read them again.
Ok, I said I would ask for specific measures. Here they are, in no particular order.
Drug use is not a crime. So says the medical community with one voice. Strike these outdated laws from the books! This is currently the strongest force for sending black people to jail. Prison is not an effective treatment for addiction, all it does is incarcerate for months or years, then saddle the victim with a felony for the rest of his life, so he can't secure employment or housing. He wasn't a criminal before, but he is now, according to the state, and he can't even feed his family.
Expunge all prior drug felonies. When I hear the feel-good slogan "Hope not Handcuffs", I want to vomit. Where were you when a black man, with his third drug felony, and mandatory minimums, was forced to spend 15 years in jail? This new compassion only arose when heroin reached the white community. “Those weak-willed lazy black people in Detroit are criminals, but my little angel daughter isn't a criminal - she's just sick. She needs medical care - not a felony!” If our compassion was sincere, and not just another form of white privilege, we would expunge every prior drug offense, and let some of these people out of jail. Without felonies on their record, our brothers and sisters can go back to work, and take care of their families, which is what we want them to do.
Refund all fines and costs from earlier drug charges that have been expunged.
Probation and parole must be completely free. A white person has on average 10 times as much wealth as a black person. Every ticket, every fine, every cost, is racist. There is no other way to say it. How many black people are sent back to jail because they can't afford to take a drug test or pay a fine? I've seen court mandated drug rehabilitation classes that cost $800. Remember, $800 to us is $8,000 to a black family. Tell me, do you have 8 thousand dollars to spare, even if the alternative is jail?
Tickets, fines, costs, and forfeited bonds, must not fund the police or the courts. They should go to other programs, perhaps rehabilitation, or housing the homeless, or fixing the damn roads. If you let tickets fund the police, what do you think the invisible hand will do? Americans worship capitalism, but they don't understand it. Cops will write tickets for every trivial matter, mostly on black people, who can't defend themselves in court. It is inevitable.
Prison labor must cost the company the same as minimum wage workers. You can give the money to the prisoner, or keep some back for housing and other expenses, that is a matter of some debate, but the company that hires these workers must pay minimum wage. If the employer pays less, what do you think the invisible hand will do? Companies will foment a climate of fear in the general public, and fund the campaigns of judges and prosecutors who are "tough on crime", and lobby politicians to create mandatory minimums, or other systems of justice that create an army of low-wage workers at $9 a week. If prisoners work for anything less than minimum wage, our criminal justice system becomes slavery 2.0. My son says that in some respects, it is even worse than traditional slavery. I thought this was absurd, until I listened with an open mind. “At least the slaves had a family to go home to at night. We don't even have that. And slaves had more food, and better food. Masters had incentive to keep their slaves healthy; jailers barely keep their inmates alive on bread and bologna. I lost several pounds a week when I was in jail, and nobody gave a shit. Ditto for medical care. They won't even fill a cavity in jail; they're answer to every dental problem is extraction. I could go on and on.”
For-profit prisons should be illegal. The reasoning is the same as above.
Driving is a right, not a privilege. This is the opposite of the mantra we keep hearing in Michigan. Well this isn't Chicago or New york. We have no meaningful mass transit, and we never will. You expect people to work, and go to school, and go to the doctor, and for God sakes go to the drug testing center as a condition of probation, and they're suppose to do it without a license, or a car? No - driving is a right. It's a right that can be lost, like many other rights, by several DUIs for example, but we should nonetheless view it as a right, not a privilege. With this in mind, it is illegal, perhaps unconstitutional, to remove a person's license for anything other than bad driving. That means you don't lose your license because you couldn't pay a ticket. You don't lose your license because you didn't pay child support. You don't lose your license because you don't have car insurance, which you couldn't afford. You don't lose your license as disincentive for some other trivial violation. You don't lose your license for any reason at all, other than 12 points, and points are only assigned for egregiously bad driving. Loss of license is a powerful tool to send black drivers to jail, since it is easily lost for reasons of poverty, and these people still have to work to feed their families.
Since driving is a right, the police cannot impound a car and then hold it hostage for $200 plus proof of insurance. If the car must be insured with a new policy, we might be talking about $600, which is $6,000 to a black person. Yes, sometimes a car is held for investigation, but when that process is complete, the car must be returned to the citizen at no cost. Impound is a racket that is the envy of the mob. It sucks the life out of the poor, and it has to stop.
Speaking of the license, what kind of insult is it to pay $125 reinstatement fee? Whose idea was that? You know what it costs the state to reinstate a license? A bit has to change in a computer database. One bit - from no to yes. That's it. It costs ..... nothing! The $125 fee is the rich putting their foot on the neck of the poor. And remember, that's $1,250 to a black driver. If the governor was serious about race relations, she would make one call to secretary of state, and establish a new process for reinstating a license, on line, for a $3 processing fee. She doesn't even need legislative approval to do it; she only needs compassion. Dickens would be amazed at the way modern technology is used to keep the poor in their place.
Driver responsibility fees, instituted by Governor Granholm, (a democrat), was an insult to the sensibilities of any caring human being. They have since been eliminated, but we should refund the money that was extracted from the poor in an extrajudicial manner, in the name of "personal responsibility". in particular, please send a check for $5,000 to my son.
Don't base car insurance on credit score. For most companies, that is the primary factor in determining premiums, and it is blatantly racist. My car insurance is more than my mortgage, and the drivers in my house have no points, no tickets, no accidents. This is one of hundreds of examples of how we trample upon the poor, and keep them in their place.
A simple credit check must not lower your credit score. What kind of insanity is that? It's the rich with their foot on the neck of the poor again. You didn't get the loan, but because you had the effrontery to ask for a loan, “Please, sir, may I have some more?”, your credit score drops, and now it's even harder to get a loan.
All tickets, fines, and costs can be satisfied by community service. Florida is working on this idea. It is fair across the board. It is not disproportional or regressive.
All police have body cameras, and car cameras, that operate whenever they are on duty, and the images are stored in a third party system that cannot be tampered. In two of my son's charges, the officer's video was blank, conveniently blank, during the alleged offense. Surprise surprise, he was found guilty on both counts. We need an overwhelming amount of evidence to find a black person innocent, and these videos can sometimes provide that evidence, so cops simply turn off their cameras, or doctor the videos after the fact. With no physical evidence, judges allow the case to proceed nonetheless, taking the cop's word, because he surely wouldn't lie, whereas the black defendant, with a record, can't be trusted. The prosecutor badgers the defendant until he takes a plea, often still a felony, when in reality, the case should have been thrown out for lack of evidence. Our legislature and our governor must stand up and insist that police cameras run at all times, and if a video cannot be produced, the charge is automatically dropped. This has to be as iron clad as our Miranda rights.
Along with proper justice in the courtroom, cameras can keep us safe, or at least, bring the truth to light. Remember, a citizen recorded George Floyd's murder, it was not a police camera. This has been the case in every documented instance of police brutality. But a citizen is not always standing by with phone in hand, and when he does, a cop often takes the phone and smashes it, so that their actions do not see the light of day. Thus police cameras must roll at all times, for our safety.
An outside review board looks at every traffic stop, or at least every traffic stop involving a minority. This is rather like sending a questionable baseball play to New York for review, except every traffic stop is questionable. If the stop is unwarranted, or if the police abuse the driver or his passengers in any way, or if the subsequent search is unwarranted, any charges resulting from the traffic stop are dismissed. Furthermore, the driver's car is returned without cost (impound often costs $200), and the driver is compensated $500 at the department's expense for his inconvenience. Black people are sick of being pulled over and detained for no cause. This review process must be as iron clad as our Miranda rights. By the way, it extends to motorcycles and bikes. Yes, my son was pulled over while riding his bike. That's how racist the police are. I don't have time to go into what happened when he started driving! Suffice to say, he is still followed and harassed, even to this day. As Michigan's lieutenant governor Garlin Gilchrist expresses, “It is exhausting!”
As a general rule, nobody should go to jail for nonviolent offenses. This is even more important with covid-19, since jail could be a death sentence, but setting that aside, we need to return to 1970, when jail was for violent offenders only. There may be a few exceptions, habitual and flagrant white collar criminals like Kwame Kilpatrick, but these are rare. It is absurd and cruel to lock someone up in a cage like a wild animal, because he didn't pay his fines, or he didn't purchase car insurance, or he didn't pay a traffic ticket in a timely fashion. Without debtors prison to fall back on, the conservatives start bloviating about disincentives. “If they don't have to pay, they won't. How you gonna make them pay?” Well just try thinking for more than five minutes. Try thinking outside the box (i.e. the jail cell). Glom onto their tax returns. If they can afford to pay, and choose not to, they usually have tax returns. Failing that, garnish wages, up to but not exceeding 25%. If that doesn't work, then they just don't pay the fine and we suck it up. It's honestly not that important. What fiscal sense does it make to lock someone up at 30 grand a year, and disrupt an entire family, because he owes the state two thousand dollars? A junior high school student can figure that out.
Everyone is allowed to vote - felons, inmates, everyone! If you're a citizen, you can vote. This right is central to our democracy. Maine and Vermont allow inmates to vote, and they have not descended into lawlessness and anarchy. Inmates are counted in the census, and thus amplify the representation and the votes of those who run and profit from the jails. Some cities have over ten thousand inmates, who can't vote, but amplify the votes of their jailers. When votes are not equal across the country, our democracy is threatened. In particular, if inmates could vote, there would be more pushback against prison labor at $9 a week, abuse within our prison system, and mass incarceration over trivial crimes or no crimes at all. One by one, states should allow their inmates to vote, and eventually, this sacrosanct right must be codified in the Constitution.
Our problems will not be solved by feel-good seminars and sensitivity training, (although those might help). We need to rethink and rewrite our laws, and change the way they are enforced, with an emphasis on "innocent until proven guilty". The laws change first, then hearts and minds change later. It has always been so. We had to have a bloody Civil War, because half the nation was unwilling to give up their peculiar institution. One hundred years later, nobody would dream of reestablishing slavery, but in 1861, we had to force half the states to free their slaves. In 1958 we abolished separate bathrooms, drinking fountains, and schools, sending federal troops to Alabama as needed, and now, 60 years later, these segregated institutions seem unthinkable. In this spirit, we must change the laws first, the laws that we grew up with, the laws that seem to make sense on paper, and then, 50 years from now, people will be shocked at the trivial offenses that use to lead to incarceration. People will be amazed at the pipeline that carried poor people to jail, all in the name of "personal responsibility". It is our job to change the laws today, and 50 years from now, the hearts and minds of the people will follow.
I hope the Michigan legislature, and governor, can take strong action, and gradually dismantle the criminal justice juggernaut that we have created over the past 50 years. Some things, such as mandatory minimums, must be addressed at the federal level, but most of the horror takes place at the state and local levels. We have the power to improve race relations here in Michigan, without waiting on other states or the federal government. This will lead to a better tomorrow.
Karl and Wendy Dahlke
This section is written by Mary Ellen Bennett, from her facebook page. It provides some much needed background.
In 1866, one year after the 13th Amendment was ratified (the amendment that ended slavery), Alabama, Texas, Louisiana, Arkansas, Georgia, Mississippi, Florida, Tennessee, and South Carolina began to lease out convicts for labor (peonage). This made the business of arresting Blacks very lucrative, which is why hundreds of White men were hired by these states as police officers. Their primary responsibility was to search out and arrest Blacks who were in violation of Black Codes. Once arrested, these men, women and children would be leased to plantations where they would harvest cotton, tobacco, sugar cane. Or they would be leased to work at coal mines, or railroad companies. The owners of these businesses would pay the state for every prisoner who worked for them; prison labor.
It is believed that after the passing of the 13th Amendment, more than 800,000 Blacks were part of the system of peonage, or re-enslavement through the prison system. Explicit peonage didn’t end until after World War II began, around 1940.
This is how it happened. The 13th Amendment declared that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." (Ratified in 1865) Did you catch that? It says, “neither slavery nor involuntary servitude could occur except as a punishment for a crime.” Lawmakers used this phrase to make petty offenses crimes. When Blacks were found guilty of committing these crimes, they were imprisoned and then leased out to the same businesses that lost slaves after the passing of the 13th Amendment. This system of convict labor is called peonage.
The majority of White Southern farmers and business owners hated the 13th Amendment because it took away slave labor. As a way to appease them, the federal government turned a blind eye when southern states used this clause in the 13th Amendment to establish laws called Black Codes.
Here are some examples of Black Codes: In Louisiana, it was illegal for a Black man to preach to Black congregations without special permission in writing from the president of the police. If caught, he could be arrested and fined. If he could not pay the fines, which were unbelievably high, he would be forced to work for an individual, or go to jail or prison where he would work until his debt was paid off. If a Black person did not have a job, he or she could be arrested and imprisoned on the charge of vagrancy or loitering.
This next Black Code will make you cringe. In South Carolina, if the parent of a Black child was considered vagrant, the judicial system allowed the police and/or other government agencies to “apprentice” the child to an "employer". Males could be held until the age of 21, and females could be held until they were 18. Their owner had the legal right to inflict punishment on the child for disobedience, and to recapture them if they ran away.
This (peonage) is an example of systemic racism - Racism established and perpetuated by government systems. Slavery was made legal by the U.S. Government. Segregation, Black Codes, Jim Crow and peonage were all made legal by the government, and upheld by the judicial system. These acts of racism were built into the system, which is where the term “Systemic Racism” is derived.
As mentioned earlier, explicit peonage ended in 1940, but implicit peonage began in 1970, as we developed new forms of mass incarceration. If even one black man rots in jail for smoking weed, or driving without car insurance, while performing labor at $9 a week, or accruing profit for his jailers or the courts, then peonage still exists.