Episode 9

Episode 9 is the finale of Serial’s third season.  We return to Joshua, the teenager in custody of the Ohio Department of Youth Services (ODYS).  Facing threats of a longer sentence, Joshua doesn’t contest the invocation of his suspended sentence.  He is bound over to the adult system for an additional 6 years of prison time.

In the end, Joshua finds the adult facility to be a better fit for him.  He is put on a protected unit and mingles with ex-cops and lawyers who have landed in prison — including DeNanye Dixon, the corrupt police officer we met in Episode 6.  Joshua finds life in adult prison to be more stable and less stressful then ODYS.  He tells Koenig that both the kids and guards within ODYS are taking advantage of the juvenile system.

Koenig concludes the season by describing the “drumbeat” of the criminal justice system.   She returns to the Justice Center, taking listeners on the audio version of a long panning shot to show all the cogs moving at once: defendants, lawyers, families, police, judges, victims, and many more.  She leaves us with the enormity of the system and the urgency of the task at hand.  She concludes that if there is one take away from looking at “ordinary” cases, it’s that “something has gone wrong” within the criminal justice system.

For Koenig, as for the rest of us, the question is what to do next.  

For this last installment of SerialLand, I am also turning to the larger picture.  I’ll focus on listening, on believing in change, and on taking action.

A final note: Koenig’s recommendations are, rightfully, focused on the criminal justice system.  But throughout this project, I’ve been trying to expand the discussion to talk about economic justice.  My round up of the season and discussion of next steps on economic inequality will be up shortly at Belt Magazine — a publication focused on the rust belt’s evolution.

Lastly, a huge thanks to all of you who joined me for this project.  I started SerialLand for some friends and colleagues here in Cleveland, and there are now hundreds of you who read it every week.  Stay in touch.

On listening

Koenig is not the first person to show us that the criminal justice system is broken.  Those affected have been trying to say so for years.  Journalists and experts have reached the same conclusion through books like The New Jim Crow, documentaries like 13th, and conclusive empirical research.  I think, perhaps Koenig’s goal was to use her talent for storytelling to reach an audience that knew at a rational level that something was wrong, but did not yet know it at an emotional level.

It is hard to hear about such deep, foundational injustices in our society.  There’s a natural defensiveness that may arise which urges us to say “I didn’t contribute to this; I’m not part of the problem.”  In fact, we heard a riveting moment of this innate human reaction during episode itself.  At the sentencing of the man who shot up a barbershop, killing three, victim Alvin Wright spoke against capital punishment:

It’s a messed up situation man.  Do I agree with putting him down like a dog?  No.  That’s just me.  Ain’t nobody win.  You puttin’ him down, we don’t get nobody back.  Nothing.  It’s just, like, we keep losing.  Just, black people period, we just keep losing.  We got all these white people here.  They lookin’ at us like we in a zoo.

Instead of acknowledging the deep pain this man is expressing, the judge responds:

 Mr. Wright, I don’t look at you like that

Immediately the witness’s attitude shifts, and he has to reframe what he’s trying to say without seeming to attack the judge.

No, I’m just saying, I’m just looking at the big picture of it, look at this.  Look at this.  That’s life.  We gotta do better than that.

This moment was a perfect, tragic crystallization of the entire process we have been caught up in.  People have been trying to say for years that the system is broken.  But instead of hearing that allegation, those inside and outside the system reflexively leap into explaining why they are not the problem.

Whether you are the county prosecutor or a suburban parent who has never even been inside the Justice Center, now is not the time to say “we have the best system in the world,” nor the time to say “we’ve made a lot of improvements already,” nor the time to say, “I don’t participate in this.  It’s not my fault.”

It’s a time to listen.  Hear the stories being told.  Something is rotten in the system and it’s on every single one of us to fix.

On believing in change

For whatever reason, Cleveland is not a protest town.  There’s a general acceptance that change will not happen, so why even try.  This self-fulfilling prophecy is holding us back more than anything else.  And so, before turning to the substance of Koenig’s suggestions, I want to take a short moment to remind us of our city’s history of putting up a fight in the hopes of making a better world.

Here is a group of 8,000 Clevelanders banding together to support organized labor during the Streetcar Strike of 1899.

Courtesy of the Western Reserve Historical Society


In the 1930s and 40s, black residents who had recently moved to the city during the Great Migration formed a group called the Future Outlook League to boycott white employers who wouldn’t hire black employees.

Their slogan was “don’t buy where you can’t work.”

Members of the Future Outlook League, ca. 1938. Photo courtesy of the Allen Cole Collection, Western Reserve Historical Society.

In 1858, our region witnessed the famed Oberlin-Wellington rescue, in which an integrated group of abolitionists rescued John Price, an escaped slave, from federal custody.  Because of their efforts, John Price fled to freedom in Canada rather than being returned to the South under the hated Fugitive Slave Act.

Thirty-seven rescuers were indicted and detained in Cleveland.  But the city rallied around them.  Thousands came to public square, protesting the rescuers’ detention and supporting their actions.  Speakers, including lawyers, judges, and the Governor of Ohio spoke to the crowd about the injustice of the law and the obligation of men to stand up in the face of unjust rules.

It is still good advice today.

On taking action

If we believe change is possible, where do we go from here? Koenig lists a number of suggestions.  I’ll take each in turn, pointing out the concrete steps Northeast Ohioans could take to effectuate them.

I’d say go minimalist, don’t pile six charges onto a single crime when one charge will do.  Don’t overcharge to force a guilty plea . . . . Get out of the punishment business and turn towards the urgent problem of fairness.

Unfortunately, absent a radical change in Ohio’s criminal code, there is no legal way to prohibit overcharging.  So long as our complicated web of statutes punishes similar conduct under different laws, prosecutors will be able to stack charges.

However, if Cuyahoga County elected a reform-minded prosecutor, he or she could enforce a discretionary policy within the office to achieve the same effect.  Philadelphia recently accomplished this task with the election of Larry Krasner.  You can read a recent summary of his work here.  And, as Koenig recommends, Krasner has also moved the Philadelphia prosecutor’s office away from a retributive, punishment-based model.  Change is possible, with the right leadership.  The Cuyahoga County Prosector is up for re-election in 2020.

Don’t lock anybody up unless they are demonstrably violent.

Jurisdictions all around the country are taking this piece of advice and eliminating cash bail.  This goal is completely achievable in Northeast Ohio.  Summit County implemented these reforms more than 10 years ago.

Moreover, Cuyahoga County already realizes its system needs fixing and has already appointed a Bail Reform Task Force.  In March 2018, the group released its report, which specifically recommends that “money bail should not be used to simply detain defendants.”  In June 2018, a coalition of stakeholders created the “Cuyahoga County’s Criminal Justice Council” to implement the report’s findings.  Unfortunately, the group doesn’t have a dedicated social media stream as far as I can tell.  Their first meeting was announced through the Court of Common Pleas twitter, but a second public meeting hasn’t been announced there.

If you believe in these reforms, this group needs to hear from you so they feel the urgency of eliminating cash bail.

Admit that police officers lie under oath. . . . Cops, prosecutors, judges, lawyers, call out the colleagues who degrade your profession.

I hope to do my part within my profession, and I hope others pledge to do the same in theirs.  But we particularly need law enforcement to step up to this role.

Keep obsessive track of who exactly is being charged with what crime, how their sentence shakes out and what their life looks like in three years or five years.  Take note of the color of their skin and how much money they make.  And don’t shove what you learned in a drawer and forget about it. Don’t be insensibly tempted, as Charles Dickens wrote, into a loose way of letting bad things alone to take their own bad course.

The Juvenile Justice Coalition, the Bail Reform Task Force report, and numerous other watchdogs have all recommended the same thing.  We need more data.  But, to my knowledge, nobody has taken the lead on it.  The proper channels to begin a data project would probably be the Cuyahoga County Criminal Justice Council mentioned above or the County Council Public Safety & Justice Affairs committee.  This committee doesn’t have a next scheduled meeting, as far as I can tell, though the representative members are listed and could be contacted individually.

Pay assigned attorneys and public defenders at least twice as much as you are paying them now. Judges, stop choosing assigned attorneys.

Though the state of Ohio is responsible for some reimbursement, Cuyahoga County Executive Armond Budish and County Council largely set the budget for the public defenders.  In 2017 the office got a desperately needed $1.3 million annual boost, but it is not enough to reach the standard of lawyering that we should see in on the defense side.  Money is limited at the county level.  The County would need to pass tax levies or find other cuts to increase the funding to the Public Defender’s office.

As for assignment of counsel, the Ohio Supreme Court has taken up the issue.  But it is most likely the purview of Administrative and Presiding Judge John J. Russo to enforce the appointments process among his judges.

Citizens, mix up the bench.  Stop electing judges county wide.

Changing the way Common Pleas judges are elected would require a change in Ohio law.  Ohio Revised Code Chapter 2301 sets the schedule and process for judicial elections in County Common Pleas.  With the current statehouse, I’m guessing there is little appetite for this type of sweeping change.  I would be happy to be proven wrong, but considering that representatives in the statehouse are having their mics cut for trying to talk about racial implications of expanding “stand-your-ground” gun rights in Ohio, I’m not hopeful for a conversation about how county-wide judicial elections creates a less diverse bench.

Absent state-wide changes, the next best thing is better citizen engagement in judicial elections.  Currently, the levers of power in Cleveland are the Democratic endorsement and, to a lesser extent, Judge4Yourself and Plain Dealer endorsements.  If you want to help shape these nominations, get engaged with your City or Ward Democratic club, which will host judicial candidates throughout the primary process.  That’s the best way right now to amplify your voice on judicial nominations, since the Democratic endorsement is often a ticket for judicial nominees, and the Democrat’s nominating process begins at the City and Ward Club level.

Moreover, Judge Gaul’s stellar endorsement by all the Bar Associations has raised questions for many about Judge4Yourself’s lack of transparent.  I would hope that in future cycles, the groups that participate in the judicial ratings open up about their endorsement process, particularly in light of a recent report that raised questions about whether candidates of color were getting a fair evaluation on the platform.

Finally, it cannot hurt to engage in a little citizen reconnaissance.  Come down to the Justice Center and watch these judges in action.  It’s open court.

And overall, slow down.

It’s not totally clear who Koenig wants to slow down.  But I’ll take a moment to plug one intriguing recommendation put forward by Michelle Alexander, author of The New Jim Crow: a plea bargaining strike.  “Go to trial — crash the system” she wrote, in her New York Times Op-Ed.  Alexander pointed out that the entire system relies on plea bargaining, and if defendants refused to participate, the system would grind to a halt.

Calling for a plea strike is certainly not my place, since the strike would put other people’s futures on the line.  But if it is organized by those who are willing to take the risks, it should be taken seriously by those of us outside the system.

Doubt yourselves.  And I know how corny this sounds, but imagine every person in the elevator cars are part of your own family and reflect on the far reaching pain of prosecution.  Also, don’t tape anybody’s mouth shut in court.  That happened.  Consider getting rid of the grand jury.

Yes, a local judge did duct tape a defendant’s mouth shut.

Getting rid of the grand jury may sound far-fetched.  But concerns about the grand jury’s secrecy and one-sidedness have gone back more than a century.  (Writing in the Yale Law Journal in 1906, one lawyer wrote that, “[t]he consequence [of the grand jury system] is an unlimited domination to popular prejudice; to party, if not personal interest and affection; to false humanity; to caprice under all its inscrutable modifications.”)  Again, this isn’t a change we should hold our breath for in a deep-red Ohio statehouse.  But the problems with grand juries are still worth discussing.

In sum, Koenig’s list is a good start.  And if I may be so bold, I will add two other recommendations to the list:

First, listen and support the people directly affected by the criminal justice system.

For example, Fred Ward is a community organizer in Glenville who has previously served a lengthy prison term.  He founded the Khnemu Foundation Lighthouse Center in his neighborhood in 2012.  He “serves hot meals and offers classes to help other ex-offenders with training and job development skills.”  He is active on criminal justice reforms throughout the region and help lead the effort unseat Prosecutor Tim McGinty after the non-indictments in Tamir Rice’s case.  As we move forward from the end of Serial, it is worth listening to and centering his work and the work of others who have been directly impacted.

Second, connect with others already doing work in this space.

There are already groups working to affect systemic change on criminal justice, such as our local chapters of the NAACP and ACLU.  After Issue 1 failed at the ballot box last week, there is interest in passing some of the same reforms through legislation at the statehouse.  The Columbus Law Department and Franklin County Prosecutor have supported the bipartisan reform efforts.  Cleveland’s Law Department and the Cuyahoga County Prosecutor have not, to my knowledge, issued their support, which could be a point of local pressure.

There are also groups working to provide direct services to those caught up in the criminal justice system.  The best way to get plugged in may be to attend the Greater Cleveland Re-entry Leadership Coalition which has representatives from numerous organizations around town.  Their meeting schedule is available and set through 2019.  (Yes, Cuyahoga County has a lot of coalitions and meetings.  No, they aren’t panaceas.  But they are a good place to get started).

In the end, these suggestions may feel like a lot.  But they are doable.  Cleveland is a small enough town that if you show up and get the work done, you’ll be surprised at how often your voice is heard.  In some ways, SerialLand is a great example of that.  Show up, get involved, and I believe we can make a difference.