Q: How has the law been used to discriminate against impoverished people and African Americans?
A: I think of law in general as a system of preserving and protecting power anywhere laws have ever been written since the first civilization wrote the first law. And the people who always struggle most under that system are the poor, plus any social, racial, or ethnic minority.
One exception being where majorities live under colonial domination – in those cases, the colonizers use the law to exploit whole populations under their control. I mean, I believe we have to have laws, but I recognize that historically they have been manipulated to protect the interests of power and wealth, and that is absolutely true of American law, beginning with the Constitution.
There was a golden opportunity to erase slavery, right at the outset of America’s foundation, but the authors compromised and surrendered their egalitarian principles to the economic interests of landowners who depended on slave labor and the ongoing trafficking of human beings.
Q: What roles do prisoners play in county and community services?
A: That depends on whatever county or state we’re talking about, so I’ll just use Knox County, Tennessee, as an example.
Keep in mind that usually around 70% of local incarcerated populations here are pretrial detainees, people in jail on a charge they haven’t been convicted of, and can’t afford bail.
The remainder are being held on probation violations or ICE holds. So if you can’t make bond or you’re held on a VOP, you might qualify for a work program. And there is a lot of interest among prisoners to get on work crews because they get pretrial credits off their sentence, they get out of their cells, and if they’re lucky, get to go outside.
What they don’t get is paid or reimbursed in any way for their service on those crews. They’d rather work for free than not at all, and I don’t blame them. But they also, like all local jail detainees, have to pay for phone calls and jail visits with family, which are all video and all expensive.
The same county that works them for free makes them pay for visiting their kids so the county can get a fat kickback from the corporation that provides the tech. And the City of Knoxville is complicit too. They lease a work truck to the Sheriff in exchange for providing free labor to do city work. And this is the irony: This unpaid prison labor includes maintaining the Odd Fellows Cemetery, where many freed slaves are buried.
Q: How did the 13th Amendment affect the local prison population?
A: The 13th Amendment bans slavery, except as a punishment for a crime for which the person has been convicted, right?
Well, in Knox County, people who haven’t been convicted of anything work for free and pay for visits and commissary. Actually, their families pay for visits and commissary because it’s kind of hard to pay for stuff when you’re in jail working for no compensation.
But when I’ve complained about it, both to the County Commission and City Council over that truck lease, they say, “But they LIKE working! They’re not slaves, they’re volunteers!” So, go Vols, I guess, is their attitude. If nobody has to work, if they just choose to work while being trapped in jail, the system is perfectly moral. Everybody sleeps well.
Q: What sort of impact does our current penal system have on recidivism?
A: Statistically, I don’t have any data for you on that, and there are lots of variables in answer to that question (National models, state-by-state, urban versus rural, etc.)
However, anecdotally, I can tell you in my thirty years of criminal defense practice for poor people, nothing in Tennessee – and I mean nothing – has been done to curb the levels of poverty that put people most at risk of breaking laws and becoming incarcerated.
In fact, the system does all it can to increase their poverty with insurmountable court costs. Not paying fees or fines gets your driver’s license revoked. Getting your license revoked means it’s nearly impossible to work almost anywhere in the state.
People who are poor when they go to jail come out poorer. That’s been a problem forever. But, with the acceleration of for-profit prison models – private jails and prisons that do little more than warehouse people with no real supervision or protection – have come big money corporations that have taken over all the state and county-run prisons.
Commissary companies increasingly monetize every basic human need, down to shaving cream. Communications conglomerates package family contact with prisoners for investors’ portfolios. People running the system no longer even pretend they care about stopping recidivism.
We’ve moved past trying to break the cycle of recidivism to a culture of creating incentives for jailing more and more people. And there is nobody in leadership anywhere, in either big political party, who is even a little serious about trying to reverse that trend. They talk about it, but they don’t do anything because felons can’t vote for them.
Q: What similarities have arisen between previously enslaved people and poor whites regarding the expansion of the industrial-prison complex?
A: There’s a great book by journalist Shane Bauer – American Prison – that goes into depth about the history of American slavery as an underpinning of the prison industrial complex, which of course is all about embracing diversity if it means filling up prisons.
At the end of government-backed slavery, in the aftermath of the Civil War, there was a need – especially in the South – for free labor. That’s how prison work farms and convict leasing developed.
Convict leasing is the concept on which the now-defunct Brushy Mountain State Prison was founded. They were used as coal miners – which, of course, led up to the Coal Creek War, but that’s a whole other story.
Prisoners even built the original structure for Brushy. But, in the South, the vast majority of convict slaves were Black. And it was in the aftermath of the Civil War that legislatures began producing criminal laws to incriminate and incarcerate Black people. Not explicitly, but they knew what they were doing.
Those same laws ensnared poor whites as well, so, over time, criminal convictions used to enslave poor people absorbed both races. But the one constant is that Blacks have always been disproportionately oppressed by all penal laws in the US, in or out of the South.
There are still work programs in prisons, and prisoners of all races are used by companies outsourcing jobs for free labor. Examples today include prisoners being used to fight brush fires, prisoners being used to produce face masks during the pandemic. If they are paid, they are paid pennies on the hour. There’s nothing wrong with prisoners having jobs if they are getting paid minimum wage, same as any worker, but that’s not at all what is going on.
Q: Has law enforcement perpetuated or benefited from this discriminatory legal system?
A: The short answer is, yes, they benefit through an endless stream of federal grants that have resulted in most police organizations turning into de facto paramilitary units over the course of a few decades.
These police organizations are outfitted, trained, and armed like infantry. They get gifts from private companies, too, like Brinks giving them armored vehicles. But the real drivers of this system are sitting in Congress, state legislatures, and the Supreme Court. I would say that if you look at the whole of the criminal justice system, you see a machine that drives discriminatory laws and the discriminatory application of those laws.
Law enforcement officers are doing their job: enforcing a lot of bad, racist laws. So, big surprise that the culture of law enforcement draws a lot of racists into its ranks and that the framework of law enforcement across federal, state, and local agencies is bent to target poor communities, especially communities of color.
For example, law enforcement organizations get DOJ grants to round up drug dealers, right? So, you have all these task forces running around where they know they will catch the most drug dealers in impoverished areas of town where many people of color live.
Meanwhile, the legislatures churn out zero-tolerance laws that target drug dealers in high-density population areas for the strictest sentencing laws for nonviolent offenders. So, while in that sense law enforcers derive some benefit through grants that create more of them and give them bigger guns and even tanks to roll around in, the people who really perpetuate these laws are the politicians who want to look tough and who more and more are just transparently racist in the laws they create.
Q: Are there adequate legal services in Appalachia for indigent clients?
A: To be blunt, no. I was a public defender for thirty years in Knoxville. During the course of my career, I was fortunate to work in an office full of really committed indigent defense workers who were serious about their jobs, and our internal leadership fought hard to make sure we had the staff, the resources, and the facilities for giving our clients the best possible representation.
Throwing in a half-brag here, Knoxville’s public defenders were and are considered as good as you can get in indigent defense, and there are a lot of other public defender offices where that is true. But even with good lawyers and staff, we were breathing through straws at times when caseload management got tight. And we had to fight all the time to keep what we had.
Now, that’s an example of a good public defender office. There are some jurisdictions in Tennessee where I think the public defender offices are underwater. But there is more to indigent defense than public defenders; there is a whole sphere of the private bar with good lawyers in private practice who provide legal representation to poor people. Those are the lawyers that legislators and judges abuse the most. And, by extension, they often abuse their clients.
If you are a private appointed lawyer in an indigent case, you are entitled to compensation. The hourly rate for those lawyers is embarrassing. It hasn’t changed in over thirty years. How many cost of living increases have occurred in three decades?
And with the pittance these lawyers get, they still have to get judges to approve their fees before sending in their fee claims for reimbursement. Some judges actively slash their fee claims and basically tell the lawyers they think they’re lying about how hard they work. Or maybe the judges don’t think you should work that hard for poor people. But that is the culture among the powerful, across all three branches of government: Poor people don’t matter.
They won’t pay lawyers to help the poor because, to them, the poor don’t matter. So no, legal services in Appalachia are inadequate, but not for lack of ability or commitment on the part of lawyers. It’s the culture of contempt for the poor and the exclusion of the poor that is a foundational element of power in the South.
