Mass incarceration in the U.S. is an indisputable fact, but most reforms focus on nonviolent offenses. As uncomfortable as it may be, we can't dismantle mass incarceration without changing the way we think about, talk about, and respond to violence. At Liberty spoke with Danielle Sered, who is doing just that with her organization Common Justice, and her book, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair.

Direct Download

EMERSON SYKES:
[00:00:04] From the ACLU, this is at Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU and your host.

[00:00:19] Mass incarceration in the United States is an indisputable fact. We imprison people at a rate unmatched in any other society at any time. It's even become a bipartisan priority for reform. Still, most recommendations for reducing the prison population focus on cutting sentences for minor, nonviolent offenses, especially drugs. But the truth is, more than half of people in state prisons are doing time for violent crimes. As uncomfortable as it may be, we can't dismantle mass incarceration without changing the way we think about, talk about, and respond to violence.

Joining us today is Danielle Sered. She's the founder and director of Common Justice, a Brooklyn-based nonprofit organization that provides restorative justice services to victims and perpetrators of violent felonies as an alternative to incarceration. She's also the author of Until We Reckon: Violence, Mass Incarceration, and A Road to Repair. Danielle, thanks very much for taking the time to speak with us. Welcome to the podcast.

DANIELLE SERED:
[00:01:16] Thank you for having me.

EMERSON:
Your book talks about both violence and mass incarceration. But as you point out, they are not the same thing. They're related, but it's worth disentangling them. You talk about mass incarceration as a function of the criminal legal system that's filled with all this discretion, as you said. But the problem of violence is much more deeply embedded in our national culture. Can you talk about the disentanglement of mass incarceration from violence as a concept?

DANIELLE:
So our rates of violence and our rates of incarceration have a really complex relationship with each other. Mass incarceration is a policy decision. It is a political decision. It's a moral decision. But it's not a practical decision. And it is not actually an intervention to reduce violence. Right?

One of the biggest mechanisms generating violence that you will find is prison, not just in its effects on the individuals in there, but in the constant rupture it makes in relationships and community.

It's relationship that produces safety. It's our connection with one another. And so if connections are the fibers that can weave the fabric of our community safety and incarceration is continuously cutting through them, we're left with a fabric that can't hold. As we seek to reduce violence, we have to understand that we will not become safe so long as incarceration is the defining feature of our country.

So, for example, in New York state, over the period of 30 years, New York reduced the number of people incarcerated both in the city and the state by more than half. And at the same time, the rate of violent crime reduced by more than half. Now if incarceration generated safety, the opposite would have been the case. But one of the things we have to understand is that doesn't just demonstrate to us that we can be safe without prison. It demonstrates that we can be safer without prison than we can be safer without prison, than we can be so long as it's our main response.

EMERSON:
[00:03:16] So calls for reducing incarceration and even abolishing prisons have grown louder in recent years, but questions persist around alternatives to the criminal legal system. Common Justice, your organization, is doing this type of restorative justice work every day, so I'm wondering, What does this look like in practice?

DANIELLE:
In our day-to-day work, we are in the business of doing what we believe our culture should do instead of prison, in response to violence. What that means for us is in cases where the prosecutor and the victim of a crime consent -- and we're talking about crimes like stabbings, shootings, gunpoint robberies, serious violence -- if and only if those parties consent, the responsible party is diverted into our program where they go through a 15 month intervention in which they reflect on the harm they've caused, sit with those they have harmed, and reach agreements about how to make things as right as possible and then fulfill those agreements.

And in the meantime, we work with the people they hurt to help them come through what happened to them and in their lives generally. It's our aspiration to keep the promises that our current criminal justice system makes but has never kept. And those promises include actually centering the needs of survivors, listening to what they want. Helping them through a process of healing, actually delivering on the promise of safety. So not just doing revenge in the name of safety, but doing things that actually will reduce the likelihood that someone will cause harm ever again. Truly doing accountability, not just punishment, not just inflicting pain on someone, but requiring something of that person as a contributor to the process of repair and doing all of this in a way that starts to mend the vast and longstanding racial disparities in our criminal justice system.

EMERSON:
Well, it's a fascinating approach and a problem that we all recognize, but I wonder if you can unpack a little bit more how you deal with this question of accountability. Because whenever we talk about alternatives to incarceration, especially in the context of violent crimes, the immediate question is, “Well, how do you hold these people responsible for what is indisputably some act of wrongdoing?”

DANIELLE:
[00:05:28] So we understand punishment as passive: punishment is something someone does to me. All I have to do to be punished is not escape it. It requires nothing of me.

Accountability is different. So we think of accountability as having five key steps which are to acknowledge what we've done, acknowledge its impact, express genuine remorse, make things as right as possible -- ideally in a way defined by those harmed -- and then to do the extraordinarily hard labor of becoming someone who will never cause harm ever again.

Prison is antithetical to almost every one of those steps. And so it's not just the punishment and accountability aren't the same. It's that in many ways they're incompatible because accountability is rooted in the very human dignity that prison reduces and it requires the very human agency that prison constraints.

EMERSON:
Well, one of the things that struck me so much about your book and also your work with Common Justice is not just that, as you said, we're trying to reduce something or change a policy, but you're really calling for a fundamental re-understanding of how we deal with people that have either committed these crimes or suffered the consequences of these crimes. You said this work is extremely difficult. It's a 15 month process. Obviously, that's shorter than many of the prison sentences that these people have gotten. But is Common Justice really a replicable model to achieve the kind of revolutionary change that you're calling for?

DANIELLE:
I think one of the most important questions we should ask about any intervention in the criminal justice system is, Compared to what?

We look at all sorts of interventions and measure them compared to perfection, which is not the current reality that we're dealing with. There are people in communities all over this country doing accountability work and doing healing work adjacent to or apart from the criminal justice system. And so the project isn't one of inventing anything from scratch. The project is one of linking these methods of accountability and healing to the kind of tunnels to diversion that would make them suitable to address the harm that occurs in communities.

[00:07:39] But the other thing to remember is that prison generates its own business. And so we're in the business of ending violence at Common Justice. And so we pay a lot of attention to the driver of the violence. Now, the core drivers are structural. They're racism, they're inequity, they're poverty. They're poor schools, they're poor housing, they're poor hospitals. But on an individual level, the drivers of violence are shame, isolation, exposure to violence, and an inability to meet one's economic needs. And the core features of prison are shame, isolation, exposure to violence, and an inability to meet one's economic needs. Which means we've baked into our core responses to violence exactly the things that generate them. That is not what a country that wants to be safe does.

So part of the benefit of having solutions that actually generate safety is that we halt the cycles of violence that otherwise produce more and more business for the criminal justice system. People who go to prison so frequently will come back into the system over and over and over again, just in the way it generates violence. It generates its own business. It would be like a car mechanic who like stuck a bunch of gum and dirt and grit and chipped a couple of things inside your car while they fixed one thing and you drove off and you were back next week because it wasn't running again. If you actually go through a process that repairs that car, you don't go back to the mechanic. And so one of the ways these things scale is through their sheer efficacy. Like when our responses to violence stop violence, then we have less to deal with. And then rather than a system that is dealing with a vast amount of harm we can get to a system that is dealing with less harm, partly because we have cleared out the things that we have made illegal but don't hurt anything. But also because when we deal with crime, we actually resolve it instead of just responding to it in a way that generates more.

EMERSON:
[00:09:42] And one of the central features of your approach is not just that it's survivor-centered, but also looking at the whole person in terms of everyone who's involved. So people who may be responsible for some of these violent acts, as you point out, are people who have also, in many cases suffered from violence. And you yourself has talked to have talked about growing up in Chicago in the 80s and 90s, having “survived, caused, and witnessed harm.” Can you talk about what your experience growing up means and how it led you to this work?

DANIELLE:
So I grew up in Chicago in the 80s and early 90s at a time where we saw levels of violence really comparable to those we're seeing today, in a time where, you know, people I love died when they were far too young to die and we were all too young to bury them. And it was at the time we talked about it as the crack epidemic, but it was also the moment in our history where mass incarceration was really picking up its speed.

And I remember looking at the experiences of people who were incarcerated, the shame many families felt around the absence of their family members. And so the silence that accompanied it. I remember people coming home from prison, usually worse for it, because prison diminishes us in exactly the areas of our lives where we often most need to be growing. And I saw the harm that people who were diminished in that way caused when they came home. Recidivism wasn't statistically significant outcome of a research analysis. It was our lived experience when we lived in community with people who went on to cause more harm.

I remember thinking that for all the damage it was causing to people who were incarcerated, to those of us who loved them, thinking this must be good for the victims of their crimes because those were the people in whose names we did all of this. But I paid attention then to my own experience as a survivor, to the experience of other survivors around me. And I found that actually far fewer of us than the public discourse represented actually wanted the people who hurt us incarcerated and even those who did and who got that result were never healed by it, because incarceration isn't a healing intervention. We don't get better because someone else suffers. That's not a moral judgment. It's just a practical judgment about how healing works.

[00:12:05] So in all of that, I saw both the failure of that system to actually mend any harm for anyone, including the survivors in whose name it was growing at such a rapid pace. But I also saw as a young white woman, the grave disparities in that system. Like I experienced the inequities in the criminal justice system as a beneficiary of them.

Like when I was an adolescent, I did foolish things because I was an adolescent. That's what we do. I was arrested for those things and I was met with enormous mercy in ways the people I loved, even some of the people I did those foolish things with, were not. And so I understood very early that those disparities in the system were not about the character of the people in their courtrooms, were not about like my better merit in any respect. They were about my race. And so for me, that meant I had to find people who were fighting those inequities and join with them and fight until we won or I died, whichever came sooner.

But the other lesson in it is that that system could mete out completely different responses to me and my peer, even though we were almost exactly similarly situated: same charges, same public appointed attorney, same judges, same courthouse. That means that there is always in that system an escape hatch for the people whom we don't want to punish. Like all of these systems have been built with escape hatches for people with power and privilege who do not want to be subject to the worst of what those systems do.

And in those escape hatches is a lesson of where there are vast amounts of discretion, where prosecutors could end mass incarceration tomorrow without a single law being changed because they always have a way out of mandatory minimums because they can just change their charging decisions and in doing so, arrive at a completely different set of options for how they're going to treat a crime. My experience of being let go from that system taught me something about that system's capacity to let anyone go if at any point the actors in it choose to.

EMERSON:
[00:14:25] Violence is deeply embedded in our culture. It's valorized and associated with masculinity and power. And in all these sort of ways that our our culture really reinforces the importance of violence and makes it so prevalent in our society.

So rooting it out is actually quite a monumental task. And it brings me even to think about you. I know that you recently gave birth. I also am a parent and just thinking about in terms of parenting in an everyday sense, this restorative approach and trying to reduce violence really does require a fundamental readjustment in how we respond to violence, whether it's perpetrated by a kid -- and we sort of try to teach them how to work through their feelings in a less violent way -- but also on a societal scale where we really accept and embrace violence in many ways.

DANIELLE:
I think that's exactly right. The thing that I believe stands the best chance of getting us out of a culture defined by violence is reckoning with what we've done. Whether that's a small thing, like you say with kids, whether it's like when a kid hits another kid, there is a version where you just punish that kid, where they just have to do a time out or something like that, or you spank that kid. And there's a version where that kid not only might have to do a time out, but have to do something to acknowledge and repair what they've done to the other kid. Right?

So it's not that they're just separated. Rather like here's your obligation to repair. Right? And if it's a little kid, you go, you say, sorry. Maybe you write, you draw them a little picture. It doesn't have to be that deep.

On a societal level, I think the same is true. I think there is only so much we can accomplish by moving forward differently. I think to really transform the violence that defines us, we also have to go backwards. We have to reckon with our history. We have to reckon with our founding violence and genocide and slavery right on its heels. We have to reckon that the ways in which that founding violence has morphed rather than diminished over time through convict-leasing, through Jim Crow, through mass incarceration as we know it and been institutionalized in things that aren't overtly violent but are generative of it, like redlining and other kinds of economic inequity that concentrate violence in certain areas and among certain people.

[00:16:44] The process of moving forward into a different future, to my mind, will require that we deal with the past. Like we wouldn't let somebody who had killed someone come to court and just pinky-swear that they were never going to kill anyone again. Right? We would have a feeling that something had to be done about what had happened. We can't say that to an individual person who's killed someone. And as a nation that killed countless people, that inflicted pain and torture and separation in families as the way we built our initial wealth, as the way literally that we built the buildings, many of them in which we carry out these courts are built by people who were enslaved. And so unless we are willing to also go backward and do the extraordinarily hard national work of repairing and acknowledging that history, I think the degree to which we can transform in the future will be profoundly constrained.

EMERSON:
Well, turning for a moment to recommendations for reform. We talked about how some very important efforts are ongoing at the ACLU and other partner organizations in terms of trying to push for sentencing reform, ending the war on drugs, electing progressive prosecutors. And these are all very important steps. But it strikes me that they don't get to this sort of deep revolutionary type of change that you're also calling for.

And I wonder if you can talk about what is the cost of incrementalism, this idea of reform versus revolution? Can we sort of exclude violent offenders from this round of reform and then bring them in later? Or is it really imperative that we deal with the root of the cause now?

DANIELLE:
[00:18:22] So I think it's a “both-and.”

I think every reform we ever make is going to be incremental. Right? Unless we're talking about like full on abolition and reparations, and even then people might say if we're not also dealing with climate change and capitalism, that that’s incremental. Right?

So policy is the realm of the incremental. That's just what it is. And it's the realm of compromise and that's what it is. And you shouldn't do policy work if you don't like compromise. Right? It's just not the space for purity. And like, you don't walk through a field of shit in your white boots and look surprised on the other side when they're not pristine anymore. That's what policy is.

That said, I think the thing that we never have to do and that we almost always do is we concede on narrative and values anytime we've made a judgment that we have to concede on the pragmatics about the policy win. And what I mean by that is say we are winning something that is for juveniles. We could just say incarcerating young people is counter-productive and we don't want to do it any longer for these reasons. And these are the things we can do instead. But we don't do that. We say don't incarcerate young people. They're not like adults. Like they can still change, not like those adults who have become set in their ways and are permanently dangerous, that we advance nonviolent reform for nonviolent crimes by saying don't lock up people who do drugs because you'll put them in prison with all those violent people who will make them worse by sheer proximity to their evil.

And so we win, by contrast. We win by advocating for a group of people, often by comparing them to a group whom we regard and lift up as being less than or worse than them.

And so I think the question about incremental reforms is, does this reform harm somebody? And does this reform make it harder for us to win the next thing? If it doesn't, then incremental reforms can be of great use, because getting ten people free is not a small thing. Any of us who do the day to day work with people who have been incarcerated, whose loved ones are incarcerated, know that a single person's freedom is of value and no amount of pristine philosophy is ever going to change that.

[00:20:45] So I think, for example, about the campaign to reduce the incredibly racist marijuana arrests in New York City. That campaign was not about how marijuana isn't dangerous and kids will be kids and THC doesn't hurt your brain. And this is really not the bad guys. That campaign was about racial disparities in policing. That campaign said very little about marijuana. Basically said everyone smokes marijuana and only black and brown people get prosecuted for it and that's wrong.

And so in that campaign, it laid the foundation for other campaigns that would work on issues of racial inequity in the system.

And then I also think that as we are doing the work of shrinking the thing that destroys us, we have to always simultaneously be building the thing we want. Like Lyft and Uber don't grow by running attack ads on taxis. Right? They're not like taxis are nasty. Who even likes yellow? Right? That's not what they do.

What they do is they say, what do people want from taxis? What are they currently getting from taxis? What are things they don't want that are features of taxes? And then they go through and they try and make sure that they give at least all the things people are currently giving, they give at least one of the things people want and don't get. Or they reduce one of the negative side effects that people are experiencing and don't like, and that if they do that people will migrate to there not because they've explained how taxis are crap, but because they've offered something else in its place. And so I think it's really important, as a movement, that in this kind of “both-and” space that we are always doing the work of shrinking at every point we can, the system that causes such pervasive harm, and at the same time, doing the work of building the things that we want to take its place.

EMERSON:
[00:22:36] That’s really compelling and practical advice for advocates to make sure that as they're battling for their piece of reform, they don't throw anybody under the bus. I'm wondering if you also have any advice for our listeners, people who may not be on the forefront of these debates around criminal legal reform, but certainly want to see a country that is less reliant on incarceration to deal with violence and all the other issues that we use incarceration to address. What can an average person, an At Liberty listener, do?

DANIELLE:
I think there are a few things. I think one is to look for the solutions that already exist around you and throw your weight behind them. In every neighborhood, there are people people go to when something goes wrong who know something about how to handle it, who know how to diffuse the violence, who know how to help people grieve, who know how to help people reach agreements, whatever those things are. And so I think one thing is like find those people and ask what you can do to help. Throw your weight behind the people who are building the new world in the shell of the old.

I think the other thing for white people, in particular, is that we have to talk to our families people of color to not need us to talk to people of color about racism. And they don't need us to unfriend our families on Facebook as some great demonstration of how much we hate white supremacy. If anything, they need us to hold our people closer, like to find the people in our lives who hold the most racist, the most hateful, the most fearful views and to help transform them.

And then I think the last thing is to work with people, to animate them around a positive vision. Like one of my mentors growing up said, it's really hard to get people excited about fighting for a shit sandwich, easy on the shit. And I think a lot of our criminal justice reform is that we're like we want the sentence to be five to eight instead of ten to fifteen. And of course, we do. And at the same time, it's a shit sandwich, easy on the shit. And surely if we're going to eat a shit sandwich, the less the better.

[00:24:52] But there's also the thing saying, how do we fight for food that will nourish us? Like, how do we fight for what we want? And I think every time there is an opportunity to fight for what we want and not just what we want less of, we should take it.

EMERSON:
Danielle Sered, thank you so much for your time, for your insights, and most of all for your great work with Common Justice. And we really appreciate you taking the time to speak with us.

DANIELLE:
Thank you so much for all you do.

EMERSON:
Thanks very much for listening. If you enjoyed this conversation, please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. You can support the show and the work of the ACLU by donating at www.aclu.org/liberty. ‘Till next week, peace.