interviews
In Conversation with Chief Justice Bridget Mary McCormack
by Chief Justice Bridget Mary McCormack
September 27, 2020
This interview with Chief Justice Bridget Mary McCormack , Chief Justice of the Michigan Supreme Court, was conducted and condensed by franknews.
I am the chief justice of the Michigan Supreme Court. I was elected to the Court in 2012. And in 2019, I was selected by my colleagues to be the chief justice.
How is the CDC eviction ban being implemented throughout Michigan?
Michigan has 242 trial courts, including 103 district courts where eviction proceedings are heard. And different judges are interpreting and handling the CDC guidance differently.
One of the things my colleagues and I are going to be talking about over the next few days is whether there is a reason for the Supreme Court to issue any administrative order so that we have uniformity.
It concerns me that different people are having different outcomes in different parts of one state.
That doesn't mean that issuing an order that governs everybody is the right thing to do, but it is something that we have done throughout this pandemic. In fact, we've issued 19 emergency administrative orders to help the courts figure out how to do business in this new world, including one to address the eviction backlog when Michigan's eviction ban was lifted. So it might also make sense for us to figure out if there's a uniform way we should give trial courts instructions on what to do.
What has been the overlap of the CDC guideline and Michigan’s efforts?
The governor issued an executive order back at the end of March and it expired sometime in July. District courts started to process eviction cases then. The Michigan Supreme court issued an order for how to process that backlog and the process for addressing pandemic evictions that included a diversion program.
The Legislature has allocated a significant amount of funding for addressing that backlog — $60 million was allocated to our diversion program. That money goes towards direct payments to satisfy outstanding rent due as well as to fund additional legal aid lawyers across the state to help people connect with available resources.
We had a statewide process for both addressing the backlog and helping folks find their way to funding when the CDC guidance came out. So now, there is Cares Act funding on the table that the Legislature needs to have spent by the end of the calendar year, but the CDC guidance makes it really hard to figure out whether you can still help the tenant and the landlord access the funding or not.
What steps has the Court taken to ensure that tenants do have counsel?
I should say that normally they're not entitled to government-funded counsel.
Eviction cases are civil cases, and nobody is entitled to government-funded counsel in civil cases.
In criminal cases, if you can't afford a lawyer, you are entitled to counsel at the government's expense. That's not true in civil cases.
In this emergency diversion program, a chunk of the funding was directed to legal aid lawyers. The diversion program requires courts to connect a tenant who is facing eviction with a legal aid lawyer so they can figure out if they can access funding to satisfy the outstanding judgment. But, again, that is not a process that is required and it only happens in places where a judge has set up their own eviction diversion program, and they have a legal aid office that works with them on it. It's not something that happens in nonemergency COVID times.
Are there parts of this that you hope extends to the future?
Hopefully, it helps both tenants and landlords. Not every landlord is some big corporation. Some of them are people who are just renting one apartment to try to cover their own rent. What we are seeing is an economic crisis of people who can't afford rent because they've lost their jobs or been impacted by the COVID-19 crisis in ways that they can't pay their bills. If they get evicted, and there is no market for someone to fill that place, that is only going to extend the problem.
We also know it is disruptive to public health to have people without homes. We know that people are better off at home. A diversion program makes a lot of sense in figuring out how we solve this economic crisis and public health crisis. Whether it continues beyond is above my paygrade.
And why do you feel like it's so important that tenants do have access to legal aid?
So they can fully understand what they might be legally entitled to ask a court for, or more acutely in this case, so they can find their way to funding that might actually help them. What they need more than anything is money. The legal aid lawyers throughout the state know exactly how to get them help if they're entitled to it.
Frankly, if we had a little bit less regulation of the bar, we could have non-lawyer navigators helping people to get funding.
This is one of the areas where we should be thinking long term — if we're not going to be able to afford lawyers for every person facing eviction, are there other ways we can help them get the information they need?
When you have a health care issue, you don't see a specialist every single time. Sometimes the nurse practitioner can help you, sometimes a physician's assistant can help you. In law we have only one professional that is public-facing — a lawyer. It might be that this is the opportunity to think about how we can diversify the kinds of professionals who can help people with legal problems.
When you say, "if we can change the regulation to the bar," what does that mean exactly?
It just means that right now we only license lawyers and it doesn't have to be that way. There are a couple of states, Utah and Arizona, who have pilot projects where they are experimenting with licensing professionals to help people with legal problems who are not lawyers.
We're never going to get to a point where we have enough lawyers to assist everybody with every civil legal problem. Eight out of ten people in Michigan can't afford lawyers for their civil legal problems.
Maybe there are other ways we can make sure that they are connected to resources, understand their rights, and understand what's available to them, short of having a fully licensed lawyer to represent them.
Is there anything else that you think is important for people to know about their own rights in this situation?
In Michigan, I'd say to take advantage of our statewide diversion program and get connected with your local legal aid office. Make sure you access the funding that the Legislature has put aside for you. This is what it's there for. Let's make sure we take advantage of it.
interviews
Everything Must Go
by Alec Karakatsanis
June 23, 2020
This interview with Alec Karakatsanis, Executive Director of Civil Rights Corps and author of Usual Cruelty, was conducted and condensed by franknews.
frank | Can you introduce us to the work that the Civil Rights Corps does?
Alec Karakatsanis | Civil Rights Corps is a small nonprofit organization based in Washington, DC. We seek to use litigation to change the brutality that is inflicted on people, predominantly people of color, by the criminal punishment bureaucracy. We have led a lot of the fights around the country challenging the cash bail system. We have also done work around prosecutorial misconduct, on the militarization of police and some work around the indigent defense system.
More broadly, we are an abolitionist organization that is trying to get our society to think critically about the purpose of the criminal punishment bureaucracy. We push people to think about what kinds of divestment we can make from the current system, and what kind of investment can be made in other areas to help communities flourish.
Has your work changed since the protests began after Geroge Floyd’s murder?
I think it's important to take a step back and think about what our jail and prison system looked like a few months ago in order to understand this moment.
This is the staggering number of people the police are ripping away from their communities and putting into a bureaucracy of cages, courts, lawyers and police officers. Almost all of these jails are places of unspeakable horror. Virtually every one that I have visited over the country is covered in mucus, feces, blood, mold and urine. They are incredibly overcrowded and cramped. There is a total lack of hygiene or adequate medical care.
When COVID hit, our work gained a new urgency. Suddenly a viral pandemic was threatening to sweep through all of these horrific facilities. We reoriented ourselves. We brought a number of big class action lawsuits in major cities on behalf of human beings confined in jails. We challenged the jail's utter failure to protect the people inside. These are extraordinary stakes for our clients and their families. To give one example, after we filed our lawsuit in Chicago, seven people died of COVID in the Cook County Jail.
In the last few months, a lot of our work has shifted towards trying to tell the story of what's happening inside these facilities. Most people have no window into them. They don't know the extent of the brutality inflicted upon people every single day.
What was the original ask from your organization? Mass clemency? Medical release?
There's really two different asks. One is basic improvement of conditions - soap and hand sanitizer, basic ventilation, and basic protocols for responding to medical emergencies more quickly.
Adjustments within the prison, within the facilities.
Yeah. We also want as many people released as possible, so that medically vulnerable people aren't confined in a place that could kill them.
People can't socially distance in jails and prisons, so the infection is spreading like wildfire. That is horrible, not only for those who are incarcerated and their families, but also for the broader public. If you have a contagion in the jail, with the churn of people going in and out of jails, chances are that it's going to be transferred back out into the community. That is a critical realization - that there are public health consequences from throwing human beings away into cages.
Part of our legal strategy is to really force people to think: Do we have a really good reason to take this woman away from her child and put her in a cage during a viral pandemic? If we don't, did we have a really good reason before the viral pandemic? Those are the kinds of questions that we've been trying to ask with our litigation and push into the broader cultural conversation. Especially in this moment, as people realize that these jails are disproportionately full of Black people, people of color, poor people and people with mental illness.
I wanted to talk more about the criminalization of poverty. How do you explain how our current criminal justice system functions to generate revenue from the poorest people in the country?
Various interests profit off of people at every stage of the process. There are all kinds of financial incentives to punish people.
The police are basically paid to make arrests.
There is also this thing called civil forfeiture, which basically allows the police to seize, keep, and sell private property. When they arrest you, without you being convicted of a crime, they can take the cash out of your wallet or confiscate your car.
Early in my career as a public defender, I was involved in a case where the police were stopping people on the streets and taking their money, or claiming the car someone was driving wasn't theirs and taking the car. They would then send these people a letter and say you're welcome to challenge the seizure, but you have to pay us 10% of the value of the property that we took. That is just for the privilege of challenging it. If you're too poor to afford your car payment, you can’t afford to pay 10% its value to get it back. We succeeded in getting that system struck down as unconstitutional, but it is still going on all over the country.
So the police have all these ways of making money, but then it gets even bigger.
How so?
Prosecutors have these things called diversion programs, which means they say if you pay them x amount, they won’t charge you, they will dismiss your case. Rich people can pay, and the system makes money off of them. Poor people can't pay, and they get prosecuted.
Of course, there is the multibillion dollar cash bail industry.
And in many places, if you can't afford to pay the fines and fees that you owe after your traffic conviction or your criminal conviction, you're put on probation. You owe a monthly fee for probation every month, around $30 or $40. When you are on probation, they can drug test you any time they want - every drug test costs you $20.
People get trapped in a cycle of debt. The scheme looks like this - you get a $200 speeding ticket. If you can't afford to pay it, you are put on on probation. Now you owe a private probation company $40 a month - plus your original ticket. Let's say you can only pay $20 toward that. You would never be able to fully pay that off. We saw this in Ferguson. When I went to Ferguson after the death of Michael Brown, the city of Ferguson averaged 3.6 arrests per household. Almost all of those arrest warrants for unpaid debt to the city for this kind of like scheme that I've just described.
Can you sort of simplify the cash bail system?
Historically, bail was an unsecured money bail - meaning that you only owed money if you didn’t show up. Around 1900, we saw the rise of the for-profit commercial money bail industry in the U.S., and with it, the rise of secured money bail. A secured money bail means that you have to pay money before you are even let out of jail.
That's what you sort of see play out on TV. You're arrested, you're brought in and you're told you're free to go back to your family if you hand us some money. Of course, most people who are arrested in this country are very poor and have no hope of paying that money. That is where for-profit bail business comes in. If you pay them 10% of the bail, they will pay the rest. It's kind of like an insurance policy. The companies get paid back in full when you show up to court, but you never see that 10% again.
There are really two problems with the cash bail system. Number one, most people are too poor to pay even 10% of the bail set. If you are charged with a $10,000 money bond, you would have to have a thousand dollars in cash laying around. So, you are just stuck in jail just because you are too poor. Number two, if you can pay, you are paying into a for-profit money bail industry. Take the city of Los Angeles.
And that's just one police department in one American city. The cash bail system monetizes your personal liberty.
Who profits?
That money goes into the hands of the for-profit American money bail industry, which is really controlled by a small group of insurance companies. Prosecutors and the courts, as I mentioned, also benefit every time someone pleads guilty, because they usually pay a fine or a fee that goes back into the court system. They want to coerce as many guilty pleas as possible.
And if you can't afford to pay bail, are you allowed to be held indefinitely?
Well, when we say “allowed,” our team is working to show that it is unconstitutional to keep a human being in a cage just because they can't make a payment. We struck down this system in California two years ago. But you are right, that's exactly what's been happening. If you can't make a payment, you're kept in jail, even though you're presumed innocent until your case ends. And if you want to take your case to trial, it can take a long time.
It’s been central to trying to release people from prison during COVID. One of the profoundly disappointing things is that there's been virtually no change in state prison populations or the federal prison population as a result of COVID. But there has been a significant decrease in local jail populations, largely because places have paused their cash bail schedule. Meaning that for most nonviolent offenses you would be released without having to pay money. In California, it is estimated that that measure reduced the jail population by 20,000 people – in California alone. As of tonight (6/10) around 7:00 PM, it looks like the courts are going to reinstate the cash bail system, which is horrific and inexplicable.
So, in normal circumstances, you just wait until trial comes and hope?
Well many people can't wait. They can’t be away from their children. They can’t be away from their family and their life. And they're told, ‘if you plead guilty today, we'll let you out or we'll give you a much shorter sentence.’
What kind of choice is that? Either you can sit in jail for another seven, eight months until the courts are ready for your trial, and risk a really long sentence, or you can take the deal and plead guilty today. That's why many people, including innocent people, plead guilty every single day in this country.
Can you talk about the relationship between police and prisons?
The police are not raiding Yale and Harvard University for drug use, they're rating poor neighborhoods a few miles down the road. They're not raiding the homes of wealthy Americans for tax evasion, they're raiding the homes of poor people.
95% of all police arrests in this country are for things that the FBI says are not serious violent crimes. We know that there are hundreds of thousands of violations of the clean air and clean water regulations by large corporations every year. We don't devote any police resources to investigate that. Instead we post police officers up in poor neighborhoods and ask them to arrest people who are in possession of a plant that they're not supposed to possess. These are the kind of choices we've been making for a long time with our policing system.
The number one arrest in most jurisdictions is marijuana possession, and it is disproportionately arrests of Black and poor people. In many jurisdictions, the number one arrest driving on a suspended license. There are 13 million licenses that are suspended in this country, not for violations, but for owing the courts debts like those I was speaking about earlier.
Our legal system and the police are choosing certain offenses to prioritize, while allowing others to get away with criminal activity. These are just distributive choices that have disparate impacts across race and class.
Police are choosing who goes to prison, with explicit knowledge about how they’ll be treated.
No question.
I don't think most people appreciate what the consequences can be. Minor arrests can result in people not being able to get a job for the rest of their life. Even if you're fortunate enough to be avoid the problems rampant in jails - sexual assault, infectious diseas, physical beatings, reentry can be very difficult because of all the consequences that our society puts on people with a criminal record.
Professionally, personally, economically.
At the beginning of this, you said your organization is an abolitionist, non profit organization. How do you see the defunding of these institutions working together? Do you feel like it's something that needs to be approached simultaneously or separately?
I think it's simultaneous. I think we need to be talking about removing resources from this entire bloated system. The criminal punishment bureaucracy is five times bigger than it ever was in this country's history until 1980. It's five to ten times bigger than it is in other comparable countries. There's no need for this bureaucracy. There's no evidence that it does anyone any good. There would be outrage if we were to scrutinize the punishment system and its return on investment by the same standards that we scrutinized schools, or medical clinics, or healthcare.
What are we getting from this? Think of the trillions of dollars we spent on the drug war. We’ve caged tens of millions of people in this country. We've separated tens and millions of children from their families. We've surveilled everyone's cell phone. We've sprayed pesticides all over Latin America. Yet drug usage rates are the same or higher in many places in this country.
The people who run the system aren't stupid. It's not like they don't know all of these things. So the only reasonable conclusion is that the purpose of these systems wasn't to reduce drug use, it was something very different.
We must significantly divest from them and then invest in the things that communities need - theater, music, art, poetry, athletics programs for children, in addiction treatment, and in safe places to live. I think it's obvious to anyone who thinks about it honestly, for just a few minutes, that we need to divest from this entire bureaucracy.