What Justice?!

An interview with T. Greg Doucette on reforming our justice system. 

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By: Austin C. Yenne

Too often we hear our politicians talk about reforming our criminal justice system without much discussion on how we can go about criminal justice reform. T. Greg Doucette is a criminal defense attorney based in North Carolina who hosts a weekly podcast called "#FSCK ‘Em All!" The program talks about criminal justice reform. T. Greg was kind enough to take time out of his busy schedule to discuss some of his ideas. Below is the transcript of our interview.

How long have you been an attorney?

T. Greg: I’ve been an attorney for 5.67 years (it’ll be six years on September 7th), and got into criminal defense work a few months after that.

Did you always want to be an attorney or was this something you decided you wanted to do later in life?

T. Greg: I originally wanted to be a computer guy! I’m part of the “Oregon Trail Generation,” the mini-generation bridging Gen X and Millennials where computing really exploded during my high school and college years, so tech was always incredibly interesting to me. In 1998, I started college in computer engineering — this was back during the “processor wars” between Intel’s Pentium series and the Apple-IBM Motorola alliance with PowerPC chips. But I dropped out in 2000 and was out of college for five years. When I finally went back to school in 2005, the “war” was over (Intel won) and software was where the cool advancements were happening, with multi-core threading and mobile development. So I switched from engineering to computer science. During those five years out of college, though, I worked in a lot of different law-related jobs: I’d been a paralegal, a clerk of court, an assistant at the state agency that regulated attorneys, and even worked in the state legislature. I had seen the law from just about every vantage point. By my senior year of undergrad, I had gotten tired of the loneliness of programming (and the monotony of fixing bugs) and decided to switch to law instead. The idea was that I’d use my computer science background and become a patent attorney.

What made you want to become a defense attorney instead of a prosecutor?

T. Greg: Going into defense work happened somewhat by accident. First was a transition to litigation: the patent attorney dreams from senior year of undergrad changed in January of my first year of law school, when I got involved in a statewide trial advocacy competition for first-year students. I realized I was very good at it (and it was fun). So my focus throughout my second and third year was on being a courtroom lawyer instead of a transactional one. Back then, I thought I would become a district attorney. I enjoyed the relevant classes — such as criminal law, criminal procedure and evidence— and thought I could make a difference in the community by becoming a “minister of justice” (the actual phrase DA's call themselves). During my third year, my classmates voted me “Most Likely to Work in Public Service” because everyone thought I was going to be a prosecutor. But I spent part of that spring interning at the DA’s Office here in Durham, and I hated it. The overwhelming super majority of cases were for petty offenses — it was obvious tickets were being written to raise money rather than to protect the community. So I resigned my position so another student could take my spot and permanently wrote off ever being a DA. I started my own practice right out of law school, focused primarily on education law and business. Most of my education clients ended up having criminal charges of their own though so inevitably a defense attorney is what I became.

Do you see our federal government upholding any laws better than state or local systems? Or the reverse: state and local government upholding laws better than the federal government?

T. Greg: The federal government has a long track record of doing a better job in protecting minority rights. The various titles of the Civil Rights Act, the Americans with Disabilities Act, and other federal legislation was instrumental in ending de jure segregation, reducing sex discrimination, and so on. Federal courts relying on the 14th Amendment contributed to dismantling Jim Crow and helped reduce discrimination against the LGBT community. State and local governments are more responsive to the will of the people. The biggest example is the non-prosecution of weed offenses, although weed remains a Schedule I drug as far as the federal government is concerned. This responsiveness is often a double-edged sword: it led to rampant over-criminalization (keying off the federal 1994 Crime Bill) that exploded the jail population far faster than anything the federal government did, but justice reforms to reverse those effects are happening faster at the state and local level, too.

Studies have shown that people of color are targeted by police more often than white people. Is it the way our laws are structured that causes this or could it really be that there are a lot of racists in the police force?

T. Greg: There’s a lot to untangle there. There are definitely racist police, and we chronicle them pretty regularly on my podcast; for example, a former police chief in Oklahoma once ran a white supremacist record label, and an officer in Chicago ran several white supremacist websites. But implicit association bias is also a factor. If you ask most people regardless of race — including most police — to picture a drug dealer, every single one will imagine someone in street clothes; most will assume the dealer is black. None will think of the white doctor in a lab coat who gave them their latest batch of opioids. Our culture doesn’t depict doctors as being bad; we have entire hit TV shows like Grey’s Anatomy showing otherwise. And that culture in turn affects how we see people and where police choose to look for criminal activity. There’s also a huge financial component. Poor neighborhoods tend to have poor schools, leading to children with an inadequate education to climb the socioeconomic ladder. Poor folks tend to drive older cars that are more prone to have issues like broken tail lights. These types of things lead to a higher frequency of police interactions, which in turn leads to a higher incidence of criminal charges. That translates into more time away from work, either in jail or in court, and more money spent on court costs, fines or attorney fees. That money then can’t be used to build wealth, contributing to continued poverty among the same people who entered the justice system in the first place because of poverty. The “system” in systemic racism is a bona fide system with lots of different inputs that have to be changed in tandem to fix the outputs.
1 https://www.cnn.com/2016/12/20/health/black-men- killed-by- police/index.html


What are some ways you think this can be combated?

T. Greg
: That’s a long list! I ran for the state legislature here in 2016 (as a Republican!) and made justice reform the main focus of my campaign. You can read through my 30-point list of proposed reforms at http://www.votetgreg.com/issue/court-reform/
Ending taillight policing, ending money bail, and making expungements automatic (no need to fill out extra paperwork or pay filing
fees) would be three reforms that combined would have an astounding impact on the community.


There looks to be a growing movement to get rid of the money bail system. What are your thoughts on this?

T. Greg: It needs to be ended. Bail has been around since colonial times, and even Alexis de Tocqueville wrote about its unfairness in his book Democracy in America — published 183 years ago! How much money someone has bears no meaningful relationship to whether they will appear in court or whether they represent a threat to the community while they await trial. The Waffle House killer initially got bond; which was later revoked after the public uproar, but does anyone seriously think he *wouldn’t* have been a threat had he put up the money? Our federal criminal system doesn’t use cash bail. Instead they do extensive interviewing and threat assessment modeling that works fairly
well. States can do the same. It’s better for people accused of crimes, and it’s cheaper for taxpayers instead of warehousing tens of thousands of people for minor offenses. 
2 https://www.nbcnews.com/news/us-news/civil- rights-groups- want-put- bail-bond- industry-death- row-n838531

What is a better way to make sure people released from custody show up for their hearings?

T. Greg: Tell them their next court date, both verbally and in a written notice they can take with them. The few places that have abolished cash bond have found no significant increase in people who “skip”; well over 90% of defendants show up. Most people realize criminal charges are serious and come back to court when they’re told.

One of the problems many people face when they're released from jail or prison is finding work because of their record. What are some steps we could take to help people transition back into society without having to resort to crime for income?

T. Greg: Additional education for those incarcerated would help. The 1994 crime bill enacted by President Bill Clinton banned education programs beyond a basic GED for prisoners; that does nothing to help inmates keep their skills sharp for when they return to society. Re-entry nonprofits also play a pivotal role in helping former inmates reconnect with the community, including links to organizations that hire those with criminal records. “Ban the Box” legislation — laws that forbid employers from forcing applicants to disclose on an initial application whether they were ever convicted of a crime — are also helpful. Employers can still run background checks and can still ask about convictions in subsequent interviews, but it at least gives those with a record a shot to prove they’re worthy of the job. And expungements should be expanded and made automatic. A conviction for weed shouldn’t follow you for the rest of your life. At some point, if you’ve stayed out of trouble, the conviction should be erased. Bad credit reports only last for seven years; it’s ludicrous that minor criminal charges last forever. 
3 http://www.businessinsider.com/finding-job- after-prison- 2017-7

Too often we see in the news nowadays an unarmed black person being assaulted or executed by cops, but rarely are the cops charged. Why do you think that is?

T. Greg: You’ve got a handful of interlocking problems when it comes to
police accountability.

1.) Many of the units who investigate abusive cops are unwilling to provide a true picture of what happened, because they’re cops, too, and they know perception matters.

2.) District Attorneys then have to agree to prosecute, even though they have a close working relationship with these same officers and rely on them every day. That’s why, on occasions when DA's *do* prosecute, you see them deliberately overcharge cases they know won’t end in conviction (e.g., charging someone with first-degree murder when second-degree murder or voluntary manslaughter would be easier to prove).

3.) The courts have created from the ether this concept of “qualified immunity,” the notion that dirty cops can’t be sued civilly unless they violated a “clearly established” right that was already identified at the time the abuse happened. A lot of civil cases get tossed out on qualified immunity grounds before they ever go to trial, so people never get a chance to clearly establish those rights for future lawsuits. And if civil litigants can’t prove their case by the lower “preponderance of the evidence” standard of proof, most district attorneys will refuse to prosecute because they assume they can’t get a conviction under the higher “beyond a reasonable doubt” criminal standard of proof.

4.) There is a deeply ingrained cultural belief that if you’re doing literally anything wrong, you “deserve” everything that happens to you. Notice how most of the public were fine with the extrajudicial summary executions of Eric Garner (“he shouldn’t have been selling loosies!”), Tamir Rice (“he shouldn’t have had a toy gun!”), Alton Sterling (“he shouldn’t have been selling bootleg CDs!”), and so on. That narrative is especially true for blacks, and black men in particular. Behavior that’s excused for whites is judged much more harshly for blacks. Compare the public reaction to the extrajudicial summary execution of Daniel Shaver (“How could he have followed all those mconfusing commands?”) to that of Philando Castile (“He shouldn’t have reached for his wallet!” even though the cop told him to get his ID).
4 https://www.cnn.com/2017/05/18/us/police-involved-shooting-cases/index.html

 

Do you think public prisons are better than private prisons? Why exactly?

T. Greg: Yes. In terms of actual prison conditions, they’re all pretty terrible; how we treat detainees has been a travesty since at least 1994. But private prisons are particularly insidious because they create an incentive effect: those businesses can only profit if the taxpayer-funded government finds new and ever-more- novel ways of incarcerating more of its own citizens. That incentive is reversed in the public prison context. A public prison is an unalloyed taxpayer expense, so we save money by reducing incarceration to the point we can shut them down entirely (see, e.g., the House of Correction in Philadelphia, I think it is).

How could we make our jails and prisons more rehabilitative for people on the inside?

T. Greg: We need to realize that nearly everyone in prison is going to be released again at some point. They should be able to pursue a higher education while they’re incarcerated (prohibited as part of Bill Clinton's 1994 Crime Bill), and the jobs they’re given in prison should give them at least occasional access to modern technologies. Someone locked away when the Internet was in its infancy has almost no employment prospects when they’re released into our tech-heavy ecosystem if they haven’t kept pace with the changes.

It's being reported that some prisons are looking to restrict reading material. Do you think there's a good reason for that?

T. Greg: No. Prison staff are always inordinately focused on control, and banning books is just a way of keeping people stupid enough to be more easily controlled. It makes it harder to reintegrate them into society when they’re inevitably released. 
5 https://www.nytimes.com/2018/01/12/opinion/books-prison- packages-new- york.html

What is the craziest case you've taken on that you weren't sure you were going to win, but ended up winning?

T. Greg: Definitely the weed defense of Eric the Entrepreneur. I re-share the story on Twitter every 4/20, but you can check out a storify’d version of it here: https://storify.com/morphorod/discussion-from- twitterrific-578ab669fcedc5fc34e4d9b3

Fun question time: You've mentioned growing up on comics, so clearly you're aware of the intense debate between who would win a fight; Superman vs. the Hulk. Who do you think would win, and why?

T. Greg: I used to say the Hulk. Having read the Doomsday line when Superman was taken out just by continually getting him away from the sun over the span of days (whack) seems like a sure-fire strategy. But then I watched Avengers: Infinity War when Thanos literally beat the Hulk out of Bruce Banner. Soooo now I’d probably have to say Superman. Which is sad because DC movies are objectively terrible! 

You've compared Republican Senator Marco Rubio to the Marvel Comics character Uatu the Watcher — why is that?

T. Greg: Uatu sees all things but is sworn to never intervene — that’s Rubio in a nutshell. This country is being run by a veritable crime family, and our constitutional framework placed the Congress at its apex precisely to ensure the Legislative Branch could rein in the Executive Branch in that situation. Instead Rubio sends out tweets, and press releases, and lets everyone know that he sees these bad things and is very deeply concerned about them … but then he does absolutely nothing about it. He’s functionally useless and getting paid $174,000.00+ of taxpayer money each year for it.
 

Once again a big thank you to T. Greg Doucette for taking time out of
his busy schedule to answer my questions. You can follow him on Twitter
at @greg_doucette. You can check out his weekly podcast FSCK ‘Em All! at https://www.fsckemall.com/