Dan Marshall

A: I would love to have you introduce yourself and just talk a little bit about the work you do. That’d be great.

D: Sure, so I’m Dan Marshall. I’m a general counsel for the Human Rights Defense Center. I’ve been an attorney for… God, way too long now, almost 20 years as a public defender doing criminal defense for a while and then on my own in my own firm. Now, I’ve been, for the past few years, working on prisoner civil rights, where, here at the Human Rights Defense Center, we fight all kinds of prisoners’ First Amendment rights, rights to receive information, prisoners’ Eighth Amendment rights—rights to not be beaten up in prison—public records, [and we] work to get information related to those things. So, that’s basically what we do.

A: Thank you so much for giving me a little bit of an introduction. I wanted to jump right in, and I wanted to talk about the history of prisons and their current role in society. So, as I was reading through a variety of articles, there was a lot of mention that the criminal justice system now is very central to new strategies of racial control. So, I was wondering how you responded to that and what your thoughts are.

D: Yeah, wow.

A: Yeah, that’s a lot!

D: That’s not a simple answer! That’s a whole dissertation right there. This isn’t just one answer because it’s very different in different areas across the country. In general, obviously we all know the statistics about how racial minorities fare much more poorly in the criminal justice system and, you know, longer sentences, harsher penalties, harsher treatment when they get out, all kinds of different stuff there. In some ways, I think a lot of people just kind of take it for granted now that that’s the way the system is without even realizing the impact it has and how it was set up in the first place. For a lot of people, it’s almost an unconscious… you know, they’re not trying to keep the man down, but that’s the way it happens just because the way the system is set up at this point. A lot of people involved in the system—prosecutors and judges and even a lot of defense attorneys—just kind of take it for granted and don’t think about what the impact of all this is, in terms of racial dynamics and society, and how it plays a role in preventing equality.

A: Yeah, so you mentioned a lot about how people don’t even mean to act on these things, but it’s embedded into the system. So, what are your thoughts on how to change this in a systemic manner and ensure that people who are a part of the system understand how racial dynamics affect their work?

D: It’s tough because very few prosecutors are out there saying, “Yes, I’m treating Black people more harshly.” A lot of people, they don't even realize it; it’s an unconscious thing. I think one of the things that is useful [is] a skill in being able to present it in a way that’s able to convince people, because again, nobody wants to be told, “Hey, you’re behaving in a racially biased way.” But all of this points to the fact that we can actually get statistics now that we didn’t have in the past. One of the things that always happens in criminal cases is you can always say, “This case is different because there’s never any cases that have exactly the same facts.” When you’re trying to break down—are you treating everybody who’s charged with burglarizing a house in exactly the same way? Well, that’s really tough to quantify because there’s a huge spectrum of how you burglarize somebody’s house—from slipping in when they’re not home and taking something and then slipping out, to breaking in and hurting people and damaging stuff, and taking millions of dollars worth of things, as opposed to something that’s 10 dollars. And that doesn’t even get to the background of the particular person who’s charged with committing a crime. So it’s very tough if you’re doing things without good statistics to be able to draw any kind of meaningful conclusions from the data that’s out there. But, more recently, some places have actually started compiling more data and putting it in a format where it’s easier to be analyzed. They obviously have new statistical ways of analyzing this stuff, with the rise of Big Data and everything. We’re actually starting to be able to draw some more conclusions and have more robust data on this stuff, which isn’t going to convince everybody, but at least it’s a starting point to show that the system is actually treating Black people more harshly. And it’s funny because, down here in South Florida, they had a study that was done a few years ago where they were comparing the sentencing in certain counties in Florida, and there were actually a few, where there was very little difference in sentencing between races. Then, in other counties, you see a huge disparity, and I think just getting it out there that this is what’s happening in a reliable format, rather than just anecdotal from people in the system, is a huge first step, but, like I said, convincing people that the data shows what they show, can be tough sometimes. That’s an important first step.

A: Yeah, I really like this discussion about data. It’s really hard to get really reliable data, and that’s even before you try and convince people and translate the message of the statistics into words for others. You mentioned one of the data points was sentencing between different races. What are some other data points you found that were astounding or something that was new that you couldn’t find out before that helps with this point?

D: This is maybe a sign that I’m jaded; I’m not sure if anything’s been astounding, here. One of the interesting things from that study was how they didn’t just break it down by races and counties, but they looked at specific judges’ sentencing tendencies. I’m not sure if you saw my background online, but I come from a science background, physics in undergrad, and I worked as an engineer for NASA for a year, so I’m very much about getting the data and proving things and seeing what the facts show, as opposed to what feels like is happening. One thing that surprises me is when you get judges who are very smart people—obviously, you don’t get to become a judge if you’re a dummy, for the most part—but even after seeing the data, they discount it. So, I guess that’s one thing that surprises me because I know one of the reactions from the judges after the study came out was very much that, “There’s reasons to explain that one away, and it doesn’t really mean a whole lot.” That sort of thing. That’s an even bigger sign that self-reflection can be tough sometimes, I guess.

A: Yeah, it has to be difficult when they’re the ones that are the targets of this data. I’m guessing these judges, the ones that were discounting the data, were those that were in places where there were huge disparities in sentencing.

D: Yes, and this also goes to the second part of what we were talking about where you have to present it the right way to people too. It was a newspaper here that came out doing the analysis of the stuff, and they were trying to get readers, and they published it in a sensational way, and it came out in a way that was not constructive and was almost like an attack on the system. Obviously, for some people, it rubbed them the wrong way. That’s not the way to convince people to change their actions.

A: On this note of reform and activism, what do you think is the best way to bring about change in the system and inform people who are part of the system that something is wrong, without being overly critical? How do we do that?

D: Well, there’s no single answer to that. I think it’s tailoring the pitch differently to different people because at HRDC, we work with a bunch of different organizations on these types of things. It’s not all, what you would think of as, liberal, progressive, civil rights organizations that we work with. Certainly, there are a bunch of those, but there are also, what you would think of as, conservative and libertarian-type groups too. And the pitch is different for different types of people that you talk with. The progressive groups are worried about people’s rights and the disparate impact on race. For the conservative groups, it’s usually either about limiting the government or saving money because we are spending huge amounts of money incarcerating people that we don’t need to be spending. So, for conservative Republican type groups, that’s a much stronger motivation. So, you have to fine-tune the pitch to the person you’re talking to.

A: Yeah that’s super interesting. I always assumed that people who were working with the Defense Center were progressive people, people who were advocating for prisoner rights. I don’t think I ever made that connection that there were other motives. I think it’s good that people are working with you for a wide variety of reasons. People who are concerned about the money aspect—how do you serve them specifically?

D: So, it’s in a few different ways. For example, some of the conservative groups have been going around to different states and have been making a little bit of progress in some very conservative states—Louisiana, a little bit of Florida—of trying to reduce the prison population by showing that incarcerating someone until they’re 60 years old doesn’t make a lot of sense because after they’re about 35, it’s very unlikely that they will commit crimes anymore. That kind of thing. Pushing for legislation lessening the punishment for some crimes as well. We also work with them in terms of legal cases where, for example, the CATO Institute is a very conservative libertarian group which has been really, really, really pushing to eliminate qualified immunity for police officers. In cases that have been before the Supreme Court, we’ll help them out by filing amicus briefs. We had a petition where we were trying to get a case before the Supreme Court about our publications in jails and they assisted us with that case.

A: I wanted to talk more about your specific line of work when it comes to representing these folks, specifically in the courts. I wanted to start at the basic level to get a good understanding, since a lot of this is new to me! Firstly, on paper, what are the main differences between constitutional rights of a free citizen and someone who is incarcerated?

D: For somebody who is not incarcerated, in order to have the government be able to pass a law infringing on your constitutional rights, for the most part, the government has to pass what is called strict scrutiny. It’s a legal term that basically says that whatever the law is, it has to be very narrowly tailored to address whatever important government interest is at stake, so that, first of all, there has to be a government interest, and then it has to be narrowly tailored to support that government interest and it can’t infringe anybody’s rights beyond that. It’s a very high burden for the government to get over in order to be able to infringe on someone’s constitutional rights. In prison, it’s a much, much lower standard. It is not strict scrutiny. There’s a US Supreme Court case from 1987 called Turner v. Safley, which lays out the test that a prison or a jail has to pass in order to infringe on someone’s constitutional rights. Basically, as long as the rule or regulation is reasonably related to the jail’s interest, then it passes. It’s a little more complicated than that; there are other factors as well. In practice, that’s essentially what it comes down to. The courts all say [that] they have to give a lot of deference to the jail, so, in practice, it leads to the jail being able to do almost anything they want, even if it infringes on somebody’s rights.

A: So then, how is there a balance between the government overseeing what the jail does, which may not even happen in many cases, and the jail getting a free pass to do whatever they want?

D: That’s one of the big fights that we fight, trying to get the courts to actually exert some oversight over the jails and not allowing the jail to have carte blanche to do whatever they want to do. It varies from place to place and judge to judge. Some judges are willing to exercise oversight more than others, so it can be a fight sometimes.

A: Right now, if there is oversight, what are some things that, at the very minimum, there is oversight of?

D: Well, one of the stronger parts of the oversight is in religious practices. That stems mainly from a law Congress passed back in the 90’s that explicitly gave a little stronger protection to religious practices than other constitutional rights. So, there is a little bit more protection there. A lot of our cases deal with the First Amendment Free Speech rights, so we have been developing the law in that regard. You know, more hits than misses—we have had successes—but it hasn’t been an easy path for it or anything. The courts have already ruled that incarcerated people don’t give up their First Amendment rights when they go into jail, and so we’re trying to make sure that prisoners have access to literature, magazines, self-help materials, legal materials, those kinds of things while they’re in prisons and jails. Jails come up with a myriad of reasons for why someone can’t have a book in jail, most of which are strained at best, and outright BS sometimes. And you’d think it would be in the prison’s interest to have people reading, so they have something constructive to do while they’re there, as opposed to getting into fights, but unfortunately, a lot of places don’t see it that way.

A: What have been the most BS reasons you’ve heard that they did not allow people in jails to have reading materials or books?

D: Sure, sure, so this one is my favorite. This one wasn’t us; this was another person that they did this to. So the Federal Bureau of Prisons has this rule that you’re not allowed to have anything with maps in it because they say that if you have a map, it will help you escape, because it can help you decide where you’re going, or whatever, which is ridiculous. In this particular instance, they used this rule to prohibit a prisoner from having a map of the moon. So, yeah, that’s kind of the craziest one I’ve ever heard of.

A: What other incentive is there for people who are incarcerated to not have educational materials?

D: There’s a whole slew of reasons, and you know, no one’s going to say, “We don’t want them to have an education.” It’s always about how they can smuggle contraband into the jail through a book, even though the book is coming from us in the mail, and obviously, we’re not putting contraband into the stuff we’re sending to jails. Or they can use the book as a weapon or they can have the book as paper and rip it up to clog toilets with, even though the jails themselves are giving them paper. There’s prohibitions on free books. There’s prohibitions on bulk mail. There’s prohibitions on whether or not you’re an approved vendor. It goes on and on and on and on. Most of the reasons are usually undercut by the other stuff the jails are doing themselves, like they don’t want them to have paper, except they can buy notebooks from the Commissary, that sort of thing. So, usually when we get down into the nitty gritty of the case, you can usually show that their reason is not well-thought out at best and pretextual at worst.

A: I’d also love to hear more about what HRDC does in relation to the First Amendment. How did this movement start with this specific Amendment and what work has been done so far?

D: Sure, so it was founded by our executive director back in 1990, when he was actually in prison. He was a prisoner in Washington state. While he was there, he started his own newsletter, which was Prison Legal News, and it has grown into what it is today with thousands of subscribers. It was almost immediately censored by the DOC [Department of Corrections] there. At the time, he was just distributing it to his fellow prisoners in the prison. On his own—he was not an attorney, but he learned the law as he went—he started fighting them about the censorship. He won there, and he has been expanding the reach of the newsletter ever since and has been running into censorship ever since. So, the First Amendment cases we do are generally to open prisons and jails up, so prisoners can get our publications and other publications that will help them and enrich their lives. It will also assist them when they’re released back into society.

A: What roadblocks are you currently experiencing or consistently experiencing with First Amendment rulings?

D: Well, it’s tough because virtually every county in the United States has its own jail. Each state has their own prison system as well, and the Fed has their own prison system. Part of the frustration is that since things are so compartmentalized and each jail is its own separate unit, basically, there’s no one place where you can win and yay, our materials get in all across the country. It’s constantly fighting the same battles over and over again in different places. On top of that, once you win the battle, some places backslide. We’ve had a couple places agree to let in our materials and later, they’re back to censoring us again.

A: That sounds frustrating to say the least. I understand there’s also Eighth Amendment protection. When was this first implemented and what is the context around this in prisons and jails?

D: The Eighth Amendment plays out in a bunch of different contexts, and it’s been developing over the years through the Supreme Court. There are certain basic protections from the Eighth Amendment that are in place. Prisons and jails can still pretty much do anything they want, but there are a couple places where the Eighth Amendment pops up fairly regularly. One is in excessive force cases, where the guards beat somebody up or kill them, and they have questions—Was the force excessive? That kind of stuff. The other scenario that comes up over and over and over again, and this happens because no one wants to spend money on prisoners, is that prisoners have an Eighth Amendment right to adequate medical treatment while they’re incarcerated. Of course medical treatment costs a lot of money and costs a lot more money as prisoners get older and older and older. No one wants to spend that money, so the medical treatment that prisoners actually get is woefully inadequate, almost everywhere. So, that’s a repeated theme as well in terms of the Eighth Amendment.

A: I wanted to talk more about the medical systems that are in place in prisons and jails. What is your understanding of the level of care they provide and when they treat a patient on-site vs. off-site? I also understand that there are so many delays that happen, even when someone’s life is in danger. So I was hoping you could speak a little bit about that.

D: So, it’s bad. In fact, the depositions I was doing earlier today was in a case where a prisoner literally starved to death in the Florida Department of Corrections. One of the groups we are suing is Corizon, the private company that was providing medical services at the time. It’s inconceivable to me how medical staff can sit there and watch—obviously, starvation is not a quick thing; it happened over many months—and they just sat there and watched it happen. The fact that something like that can happen in the United States is just nuts to me. Again, it’s all about saving money because a lot of places have contracted out medical services to these private companies. These private companies make more money by providing less medical treatment, and the prisoners lose out.

A: What is your opinion about private correctional healthcare companies that are for-profit and who are also very obviously underperforming in what they are promising to provide?

D: They’re bad. The private companies are of a relatively recent vintage. Before then, the jails themselves had their own doctors and nurses and were providing care, but it still wasn’t great. The whole underlying problem is that providing medical treatment costs money, and no one wants to provide the money. It doesn’t really matter if it’s a private company or if it’s the jail system itself. If you’re not really providing the money for it, the treatment is going to be bad.

A: It’s hard for me to wrap my head around that idea because then it seems like we’re in this broken loop, where we need healthcare, but we don't have anyone to provide the money for it. Specifically, talking about healthcare and the funding for it, how is this something can be remedied so that people can actually receive proper healthcare?

D: If I knew the answer to that! Ultimately, the answer is probably a combination of things. Number one is trying to convince the legislature to provide more money for it and convince them that it’s actually a priority. They do stupid things with it sometimes, like the saying, An ounce of prevention is worth a pound of cure. There’s so little prevention going on, that they could save a lot of money by doing prevention and not having to spend way more once the problem arises. If there was a way to convince the legislature to fork over a little bit more money, that’d be nice, but I’m not holding my breath on that. It is kind of useful to reduce sentences because obviously older prisoners have more medical problems, so if fewer people in their 60’s are incarcerated, then that helps. Unfortunately, that’s helpful, but that’s not going to solve the problem by itself. Ultimately, it takes a smaller jail system and more funding, and of course, no one wants to give more funding to medical treatment to prisoners.

A: For the facilities that do have some sort of medical services inside them, who is responsible for paying that?

D: For the most part, it’s coming from the government. For people who are incarcerated, they do try to charge them. Even in jail, for the guys who are making around 10 cents an hour in their jail job, if they have money, they will charge them co-pays to see the doctor in jail. Very few prisoners have the money to really pay for medical treatment. So for the most part, it’s coming from the government’s budget.

A: What services are actually provided? I was also reading an article where there were so many people on this one waitlist about 2 years long, just to see an eye doctor. Have you dealt with any cases like that?

D: We get hundreds of prisoner letters all the time. A lot of them are about medical things, so I hear stories about that all the time. Unfortunately, we have very limited resources, so we’re not able to take anywhere near where we would like to to change that kind of thing. It varies a lot place to place, too. Some places are horror stories like that, and other places are bad, but not quite that bad. That’s another thing that comes along with jails being their own unit. You get the bad ones and the relatively not-so-bad ones, even though none of them are really great.

A: Of those cases that you receive that’s related to something that’s medical, how many of those are dependent on the fact that the correctional officers, or whoever is overseeing the jail, didn’t do anything? How often is this the case where it’s in jail staff’s hands?

D: A lot. We see a lot of cases where a prisoner will have something that is a serious medical thing. They go see the doctor, and they are given Tylenol. This happens over and over again, all over the place. It’s easy and cheap to give a prisoner Tylenol, as opposed to the actual medical treatment they need. So you’ll see guys who have cancer, and they don’t know they have cancer, but they’re exhibiting the symptoms of cancer, and they go see the doctor, and they get Tylenol or some other pain medication. There’s a lot of “put a Band-Aid” over some very serious problems like that.

A: How are these for-profit correctional healthcare companies protected in courts to still be able to be running?

D: It’s complicated, but basically, they get sued a fair amount. However, the lawsuits don’t add up. To them, it’s a cost of doing business. The main thing is, even having to share out million dollar verdicts, in some of these cases, it’s still way less than the money they’re making on the contracts. So, it’s almost like overhead to them. That’s the biggest thing. Most of these cases usually end up settling; they don’t usually go to trial. Most of them settle for some amount of money or other. The big, big numbers usually come at trial. That’s a very small percentage of the cases. If Corizon mistreats somebody or doesn’t treat somebody and they die, and they only have to pay $20,000 or $50,000 dollars out of the multi-million dollar contracts, that’s not necessarily a huge disincentive to them. The big, big numbers make the headlines, but that’s not the routine outcome.

A: It doesn’t seem moral to me that things can be settled with huge amounts of money, like these settlements or cash bail. Is the incentive of these systems to shove it under the rug? What is the main incentive, and who is controlling it?

D: Cash bail is a whole different issue. There’s different incentives for different issues. For cash bail, I do think there’s a kind of sense of "this is how we have always done this"; this is how things work. On the other hand, I can definitely say that I’ve seen judges use cash bail—like in Florida, unless you are charged with a very serious crime, like murder, you are entitled to a reasonable bail before you’re convicted. Judges can’t just say, “No bail!” They get reversed on that. So what the judges often do when they see someone who they don't think should be getting out is use cash bail as a way of keeping them in jail. They set the bail so high that it’s something that the defendant can definitely not make. They keep them incarcerated in that way. There’s some of that going on too.

A: I read an article on the Prison Legal News website about prisons releasing people to avoid paying their medical bills, something that’s called releasing them on a medical bond. How often does this happen?

D: It happens. I don’t think it’s that common. It’s usually for prisoners who don’t have really serious charges because in most places, sheriffs are political—they’ve won their election, and they’ve won sheriff. They don’t want to be the guy who releases someone on medical release and have the guy go and commit more crimes. The people who are released like that are generally very, very low risk to be offending again. So, it happens, and it has picked up with the whole pandemic. That’s been happening more, but it’s still a very small percentage of the prison population.

A: What about some of the deals that courts make as well? What is your experience, when you are in court, with plea deals? What exactly is the court trying to accomplish with plea deals? Are these reasonable oftentimes or not?

D: The plea deals are with the prosecutors, so the judges generally don’t really get involved with the plea negotiations. Some judges will, but for the most part, it’s with the prosecutors. The judges are under huge pressure to move cases because that’s one of the main metrics that they’re judged by—are their cases backed up? What are their numbers? For the most part, judges will approve almost any plea deal between the state and the defendant. I was a public defender for almost 9 years, and I’ve done thousands of cases, and I can probably count on one hand the number of plea deals I had a judge reject in my cases. So, the judges want to move the cases—that’s their primary goal. The prosecutors are also under the pressure of wanting to move cases. In a lot of cases, especially because of the wave in the 1990’s on “Get tough on crime” and laws with mandatory minimums and that kind of stuff, the prosecutors are sort of hammered in when they get cases with mandatory minimums in them as to what type of plea offer they can make. The prosecutors, aside from that, have a variety of different incentives, and it varies from place to place too. The thing that drives a prosecutor in Palm Beach, Florida is probably a lot different than some rural county in Alabama. So, it really does depend where you are.

A: I wanted to talk about mandatory minimums too. I was wondering if you could explain what they are and how that has affected our current state of mass incarceration in the US.

D: Sure. Back in the 90’s, there’s the “Tough on Crime” political movement, where people thought that sentences were way too short, and offenders were getting out way too early and committing more crimes. A lot of places passed mandatory minimum statutes, which, to put it most simply means, if you committed an offense and you’re found guilty of it, you have to be sentenced to at least x number of years. It varies from place to place which offenses those apply to and how long those are. For the most part, they are way longer than is, in any way, necessary to protect the public. So, you end up with people in prison, way longer than they would have previously up until the mid-90’s, which of course balloons the number of people who are incarcerated. The two factors that determine how big your prison population is are how many people get convicted and how long their sentences are. When you jack up the length of their sentences, that means a lot more people are in prison. These mandatory minimum sentences did that. We’ve got a lot of people who were convicted 20-25 years ago, who really, aren’t that much of a threat to society anymore if they were released, but are serving very, very long sentences. We’re still paying a lot of money to keep them in prison.

A: Thanks so much for that explanation. Now, a big question is how COVID is affecting prisons and jails. How has that impacted your work as well?

D: Yeah, well, it’s having a huge impact on prisons and jails. We’re seeing all over the place where there are huge infection rates and people getting sick. Just like all of the other medical treatment, they’re not getting much of it. It’s virtually impossible to do social distancing at prison or jail. No one’s wanting to pay money to provide masks, and you can’t keep 6 feet away from people. If someone tests positive, it’s impossible to separate them from the rest of the population. Some places aren’t even doing that much testing. For a while in Palm Beach County, they were saying, “Oh, we don’t really have that many cases here,” but they weren’t really testing for cases. It’s a stick-your-head-in-the-sand, kind of thing. Just like the medical cases in general, COVID is running rampant at the moment.

A: I was wondering about mental health as well. Within the past couple of years, Obama banned the use of solitary confinement as a punishment for juveniles. How often is this still used for adults?

D: Very often. Like everywhere. There are guys in prisons that have been in solitary for years. Obama banned it in the federal system, but it happens in state systems all the time. We actually just had a case in Palm Beach County again, where we litigated here to prevent the sheriff from putting juveniles in solitary confinement in the Palm Beach County jail. We actually settled that one little over a year ago now. The sheriff agreed to change his practices so that didn’t happen, but it happens all over the place in the United States. As it’s being researched more and more, we’re finding out how truly harmful it is to kids and adults, and it just continues on. Many who are running prisons and jails are those who came up through the system. And so, changing their practices is tough to do.

A: What are some of the reasons why people could be sent to solitary?

D: Whole bunch. The main one is punishment—someone commits an infraction while they’re in jail, and they get sent to solitary as punishment. You’ll see that it’s not used just that way. If you have somebody who is not safe in the jail population as a whole, like if it's somebody who the other prisoners think is a snitch and they’ll beat him up if he’s in the general population, he’ll go into solitary. If you get someone who tests positive for COVID—solitary is kind of getting overwhelmed, but—a lot of those guys are being sent into solitary. They had no other way to keep them apart from the rest of the population. You get guys who are charged with certain offenses—on a child, for example—they are usually targets in jail, so they are put into solitary for their own protection. Former police officer gets charged with a crime—they’ll often be sent into solitary for their own protection. There’s a whole bunch of different reasons for why that could happen.

A: Is there any protective measure for how long they can stay in solitary? If so, how do jails and prisons find loopholes around this?

D: In some places, there will be protective measures, where they’ll say, like, for disciplinary referral, you can only spend x amount of time, which can range from a few days to 30 days to 60 days to… some places don’t have limits. It’s tougher when you get to different reasons. If you have a prisoner who is in there for his own protection, there’s not really a limit to that. The whole point of him being there is that he can’t be out there with everybody else. So, that’s tougher to do. Our juvenile case in Palm Beach County, it was crazy because they were dealing with kids that weren’t convicted yet. They were just charged with crimes. They were getting stuck in solitary because several of them had cases where there were 3 or 4 co-defendants on one case—they alleged that 3 or 4 kids all did the same crime basically. When they get in court, one of the routine orders is that they can’t have contact with their co-defendants. In the Palm Beach County Jail, they only had 2 different wings for juveniles. If you had a case with more than 2 co-defendants, one co-defendant would go to one wing, the next co-defendant in the next wing, and by luck of the draw, the third co-defendant gets stuck in solitary because they didn’t have anywhere to put him, which was nuts! They actually worked a rotating system there, where rather than just sticking one kid in solitary, for 5 hours, one kid would be in his cell while the other one was out. For the next 5 hours, they’d switch them out, and stuff like that. It’s not ideal, but at least it’s not solitary confinement at that point. The sheriff here, to his credit, was willing to consider alternatives, whereas a lot of places, it’s just the worst eggs end up in solitary, and they don’t have any sympathy for them at all.

A: Were there any other alternatives that were considered?

D: Well, here in Palm Beach County, it was the rotating system. Part of the problem here in Palm Beach County too, is that in Florida, they have the Florida constitutional right to an education. That just wasn’t happening for the kids in solitary confinement. They were never getting to go out to classes in the jail or talk to the teachers. So, they were violating that right as well. The rotating took care of that here. Each jail has its own peculiarities. It’s probably not a one-size-fits-all solution.

A: Of course. There’s also this idea that a lot of people who are in solitary—they know that something’s wrong. Something’s psychologically changing or they want to go see a therapist, but they’re denied this opportunity. How prevalent are mental health experts—psychologists, psychiatrists, therapists—in the jails and prisons themselves?

D: This varies a lot place to place. As part of this Eighth Amendment right to medical treatment comes mental health treatment. Prisoners have the right to adequate mental health treatment. But just like everywhere else, like, some places are better than others with medical treatment, some places are better than others with mental health as well. It’s really unfortunate because the way the system is set up, many states have cut way, way back on resources for people who have mental health issues. So, jails and prisons are where these people end up by default because there's nowhere else. We don’t have the facilities to treat those people anymore. So, they end up in prison and jail. It’s back to the lack of resources there too. A jail is not the right place to treat someone with a mental illness, but that’s where they end up and the way we have the system set up.

A: I think right now people are discussing the idea of sending people with mental illnesses to mental health facilities and treatment centers as their first option as opposed to correctional facilities. Is this just an idea or is this actually happening?

D: Well, that’s great, as long as those facilities exist, and exist to the extent that they are capable of treating that many people. In most places in the United States, they don’t. They would just be overwhelmed by having to treat the number of people who need those resources. Ideally, yes, it would be best to get the police out of the business of handling mental health as well, but to do that, there has to be an alternative. Right now, there isn’t.

A: I wanted to speak about violence in correctional facilities. I feel like, more and more, we know that it isn’t just other people in the prison population that are the ones inciting violence. I’m wondering how correctional officers are trained and how they usually treat those in prison. How do they get away with treating them like that?

D: Training varies, but usually it’s not that extensive. The problem is that a prison guard is not a hugely desirable position. It’s not great hours, and it’s low paid, unless it’s with the Federal Bureau of Prisons—those guys are paid okay. In most other places, though, it’s not a high paid job. You’re dealing with not great conditions for the most part. It’s not your regular 9-5 job. You’ve got to be in the prisons 24/7. So, it’s not a hugely desirable job. Most places have staffing shortages, so there’s not a huge amount of training. They hire somebody; they’re in the front lines pretty quickly because they need them to be. They’re not being super discriminating when they’re deciding who they want to hire. The thing that happens [is that] cops that get fired from one police force end up hired at the next one down the street. That happens with jails and prisons too.

A: In many articles and documentaries, we’re seeing that a lot of correctional officers use excessive force on people who are in prison. Even though all of this is captured, do you think there will be any intervention?

D: That’s a tough one. You’re aware of the study they did, I think it was Stanford, where they had the college students split up into two groups—one was prisoners and one was guards.

A: Right, the Stanford Prison Experiment.

D: Yeah, and very quickly, the dynamic—even though they were all students and they knew each other—devolved into exactly what we see in prisons and jails. So, it seems like it’s almost like human nature in the way the system is set up. So, the only way is to somehow change the incentive, such that the guards have more of an incentive to restrain themselves than to beat a prisoner up or whatever mistreatment they’re inclined to do. I don’t think anyone’s found a way to change the incentive in that way yet. I mean it is a tough job. At the same time, you have to have the prisoners follow the rules and stay safe while not going overboard and beating them up. I don’t mean to imply that it’s easy. It seems like that’s the default way that things turn out.

A: Right, I think that’s something I’ve been reflecting on a lot, how it really is the Stanford Prison Experiment in real life. And that was just data for us to understand, but that is what has actually been happening. I wanted to discuss what happens after someone who was imprisoned is released and how they are able to adjust to society. Could you tell me more about your work in this regard?

D: Yeah, so our work is a little indirect. What we’re doing is trying to keep them connected—self-improvement, keep them connected with the outside world while they’re in prison, keep them learning and productive—so that when they are released, hopefully, they are more connected and they have more skills. One of the best predictors of whether or not somebody is going to be successful when they’re released or not is if they’re connected with community, whether that’s with friends or family. So that they can rely on them after they are released. One of the things we do is try to keep those connections open with friends and family while they’re in prison. In terms of that, we have a whole project about prison phone calls and phone rates. It’s another way that these private companies are just blatantly exploiting prisoners and their families by charging ridiculous rates, and ultimately that harms society by—the more you cut those connections, it makes it harder for prisoners to keep them—making it less likely for them to be productive members of society once they’re released. It’s really short-sighted in many ways. So, with our publications going in—and it’s not just our own publications. We’re trying to get rid of these policies so that everybody can get their publications in. A lot of jails have these postcard-only policies. The only mail that is allowed to go in and out of a jail is in the form of a postcard, which is ridiculous. You can’t get publications, but it’s a lot harder to communicate with friends and family in that way—we’re trying to get rid of these policies: mail policies, phone policies, video visitation policies. There are all kinds of different ways to help prisoners remain connected so that they can get jobs and have a stable life once they’re released.

A: I think the idea of staying connected is super important. For the phone rates project, if you find that there are exorbitant projects, how do you provide support?

D: There are a couple of things that we’ve done. Part of it is litigation; part of it is advocacy. A couple of years ago, the FCC [Federal Communications Commission] was looking at prison phone rates and looking at regulating phone rates. They were seeing if they could impose some maximum rates, that kind of stuff. We actually made a lot of headway in terms of limiting the amount of money that they could charge prisoners to make phone calls. Then, Donald Trump got elected. He put a new person in charge of the FCC, and they just stopped defending the new rules that they were going to put into place under the Obama administration. So, that is kind of on hold at the moment. The second route that we were working on is a class action lawsuit in Maryland against GTL and Securus that we filed with some other law firms. The lawsuit deals with one aspect of prison phone calls, where they were charging just ridiculously exorbitant rates to make collect calls from the jail to their family and friends on the outside. It was a 120-page complaint about what they were doing. Basically, it was an antitrust violation, and they were working together to set the rate. It just started. It's going to be years before there’s going to be a resolution to the case. That’s the litigation side of things.

A: I’d love to hear more about what’s in those 120 pages! What are some of the main points and some of the most ridiculous parts?

D: Part of it is that in a lot of places, a lot of states have rules where you can’t charge more for the service than what it actually costs you to provide the service. They were claiming that it costs them $15 to place a collect call, even though, we know, on the outside, no one pays $15 for a collect call. The complaint really outlines how that’s complete BS basically. They were just inflating things to rip off the prisoners. In fact, a lot of these contracts, in order to get the contract, they give a commission in the contract. It’s actually a kickback to the jail. The jail gets a cut of all the money GTL and Securus get for the phone calls. It’s a certain percentage of the money that the jail gets, but it’s only after costs. So, Securus and GTL were even ripping off the jail because they were claiming their costs were higher than they actually were. So, it’s nuts. I can send you the complaint if you want. It’s long, but it’s very detailed about the contortions these companies went through to maximize the profits.

A: So what I’m hearing is that phone companies are taking advantage of the prison population, medical companies are taking advantage… What are other industries that are maximizing profits in prisons and jails?

D: Basically, any way that prisoners and money is involved, there is now a private company that is taking advantage of it somehow—visitation, video visitation, phone calls. They’ll set up video visitation through GTL or Securus, those big players, and they control the video visitation. Just like making a phone call, in order to set up video visitation, you have to pay for it. There’s fees that go along with it. There’s also the Commissary that has high fees… any time money is transferred into a prisoner’s account. It used to be that you just sent a money order to the jail, and the money order would deposit the money into the trust account, and the prisoner would have the money in their account. Now, you send it to a private company, the private company takes 10-15% of it as their fee, and the rest of it goes into the account. So, some of these places are charging… to put $25 into someone’s account, you’re paying $6-$7 in fees to do it. It’s hugely exploitative in fees. A lot of it is getting put back into the jails via these kickbacks. The jails have no incentive to reign it in; they’re making money off of it too. There’s that, there’s Commissary—if they want to buy toothpaste or food from the Commissary, there are fees associated with that. Pretty much any time there is money involved or anything that can be monetized, it happens. There’s another practice they’re doing, where a lot of jails are moving to tablets in the jails. A lot of companies, like Securus and GTL, are providing these tablets for free, and then they’re charging the prisoners for the content that’s on the tablets. So the prisoners can buy books, music, video games on the tablets. This is, one, way more expensive than it would be for you and me and out in society, but, at the same time, this is another one of those, “Oh my God, are they really doing that?” sort of practices. These companies are taking free books that are online—like Shakespeare and those that are in the public domain for free—and charging the prisoners for them. That’s just the kind of thing they do. They’re taking advantage in any way they possibly can.

A: In regards to reading and education, to what extent are classes provided, if any? What is the quality of education like in prisons?

D: Again, varies a lot. In most county jails, there’s very little in terms of classes. Prisoners aren’t there for that long. We actually had a sheriff in Arkansas testify at one of our trails that, it is not his job to teach or rehabilitate anybody; he’s just there to keep them in jail. That’s the attitude in a lot of places. For jails, there’s not a lot. In state prison systems, there’s a little more. Again, it varies from place to place. Actually, one of our publications is a book of how they can do classes and participate in learning through colleges and other places via mail while they’re in prison. That’s one of the other ways they try to help out in that regard.

A: In that project, what are the layers to that? I’m sure even if someone is interested, maybe the mail would be blocked or the materials wouldn’t be allowed in. So what are the different levels to that?

D: Yeah, yeah. For sure, there are a lot of places where the prisoners just can't do that because of the regulations in the specific prison or jail. The jails that do postcards only, or if you get back to that guy in Arkansas, you couldn’t do a mail class in that jail at all. Other places are better about that kind of stuff.

A: There has been more discussion about the prison abolition movement as well as the call to defund the police. As someone who has a lot of experience in working with these systems, what are your thoughts on these ideas?

D: I don’t know if this is HRDC’s position on it, but I’m personally not an abolitionist. I do think it is a good idea, though, for the police to focus on what their main job is, which is preventing crime, responding to crime in progress, arresting people who have committed crimes. They need to be out of the business of providing mental health, responding to someone who is suicidal; that is not a crime. That person needs a mental health counselor; that person doesn’t need a police officer to come help them out. Many of the police officers I talk to as well would love to be out of the mental health business. They’re not well-trained for that; they don’t like doing that. Cutting that out of their portfolio, giving it to somebody who is specifically trained to do those things, and reducing the police department’s role needs to be done to then use some of that money to fund people who actually can help with the mental health and other things too.

A: What do you think are some of the reasons that you’re not fully on board with the abolition movement?

D: Well, I don’t think true abolition has ever been tried, recently in the United States. Even in places where they have said they defunded the police, like in Camden, New Jersey, it wasn’t really getting rid of the police. They overhauled the department, they downsized it, they changed it, but there’s still a police department there. It’s just different. I do think there needs to be somebody there to… When somebody is breaking into someone’s house, there needs to be somebody there to stop it, which is the police or what we have now, is the police. Even if it’s a little different, it’s still the police. They are certainly taking care of way more problems than what their core competency is. They should focus on what their core competency is, and we should have other people dealing with the things they’re not so good at dealing with.

A: Yes, that makes a lot of sense. My last question for you is what your message is to people. What do you want people to take away from our conversation today?

D: I guess the takeaway for me is that the system is currently set up to allow private companies and prisons and jails to work together to exploit prisoners and their families financially, but that doing so is harming society and costing it money by making it harder for prisoners to re-integrate when they're released. Everyone, except the private companies making big profits, would be better off if we fixed that.

A: Well, thank you so much for speaking with me. I really, really appreciate your time and everything you’ve said.