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Michael Cohen and Michael Avenatti were released, and some Los Angeles prisons offer pay-to-stay rooms for celebrities. But a huge number of people are still imprisoned and at risk of COVID-19 just because they can’t afford cash bail.

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This is a rush transcript and may contain errors. It will be updated.

Eddie Conway: I’m Eddie Conway coming to you from Baltimore for this episode of Rattling the Bars for The Real News Network. Everybody is aware that there’s always been a two-tier prison system, one for white collar prisoners or high profile prisoners, and the other for everyone else. Well, since this COVID-19, apparently a number of those high profile prisoners has been requesting release clemency, et cetera, and they have been getting different treatment than the rest of the prison population.

So joining me today to look at this and to look at the-two tier prison system itself is Paul Wright and Brandon [Gurr 00:10:18]. So Paul and Brandon, thanks for joining me.

Paul: Thanks for having us on the show.

Brandon: Thank you, thanks for having us.

Eddie Conway: This a question for both of you, what do you make of the special treatment for high profile white collar, or whatever crime prisoners, that they’re receiving?

Brandon: I could jump in, I’m not sure what the evidence is for special treatment. Prisoners in all types of settings are extremely vulnerable to COVID. And it’s terrifying what’s happening in our minimum security prisons and our maximum security prisons and our local jails everywhere in our criminal system where people are exposed, because it’s not a system where people are allowed to stay at home obviously.

One thing we see is that people who have resources, who have good lawyers, can sometimes more effectively, using connections, just using good lawyers, push for clemency. Clemency is highly discretionary. And so in some states you can really appeal to the governor, or maybe your connections can help making such an appeal. In other states there may be an administrative body that does pardons.

Unfortunately in most states, because of tough sentencing laws passed in the 90s, and sometimes in some states earlier, there is no parole. But there are more sentences where there are life without parole sentences or extremely long sentences. And as a result we have vast numbers of prisoners across the country that are elderly, extremely vulnerable to COVID, and have no options.

I think if there was special treatment or more fortunate treatment for more fortunate white collar offenders, it may just be because they often don’t have a criminal history, they may have very good lawyers, and they may get lower sentences than people sentenced who don’t have those privileges or who get convicted of more serious offenses. And so in the news today, they were reporting how Michael Cohen, including an exchange for his cooperation, was sentenced to a low security setting.

That said, COVID has exploded in that setting and the Federal Bureau of Prisons has decided to release everyone there. So it wasn’t his special connections, but it was a facility where a thousand plus people are all being released. What I think that’s also a symptom of though, is that a lot of the releases that we’ve been seeing in response to COVID have been facilities like that, or low level offenders, people in for parole violations, people who are about to be released anyway, who didn’t have much time left on their sentences.

And we’re seeing a lot of States do triage and the only people who are being released tend to be people who are convicted of lower level offenses, who’ve mostly served their time. They aren’t doing taking more aggressive action to think about limiting the prisoner jail population in response to COVID.

Paul: Yeah, I tend to agree with that commentary and that analysis, and I think that the critical thing here is that the advantage that I think the wealthy defendants have in the setting of the corona virus is that they already have lawyers. They have counsel on retainer, lawyers that are ready to swing into action as soon as something happens. And the reality is that the vast majority of people in America’s prisons and jails are poor and they’re so poor, they can’t afford counsel and they have to rely on lawyers.

And generally, the right to counsel doesn’t attach after people are convicted, especially once they have been sentenced, that are doing their sentence, especially on guilty pleas, they don’t have a lawyer. There is no right to counsel and I think the difference is the Michael Cohens and the Michael Avenattis of the world, they have attorneys, they have retained counsel, so that even after they have pleaded guilty, you don’t have to have no appeals pending, they can readily hire a lawyer and obtain counsel.

And I think we’re seeing this already too. There’s lawyers around the country that are advertising to represent people for COVID releases and such. So I think this a situation where if you have money and you have resources, regardless of anything else, you can hire a lawyer, they can at least make the case for you either in front of a judge, or for clemency in front of the governor, or administratively in front of the agency, to seek your release under this.

One other thing that’s also worth noting is that many of the low security prisons are dormitories. They are not cells where prisoners are isolated, and so it’s a one-two punch where the prisoners in these low security facilities, which are open dormitory, similar to army barracks and things like that, are the ones where people are most vulnerable to COVID, because it’s impossible to isolate people.

But it’s interesting though that in the South, especially, and pretty much all the former Confederacy States, Florida, Georgia, Louisiana, Mississippi, they actually have maximum security prisons that are open dormitories. And in these facilities, warm but extremely dangerous, but this comes down to the desire to lock up a lot of people and do so as cheaply as possible.

And you have prisoners in these maximum security facilities, many with serious health issues, that are being locked up in these dormitories and they are not being released. So I think to the extent that we’re seeing the two-tier system of criminal justice at work, one for the rich and one for the poor, I think right now what that’s translating into is, who can afford counsel and who can’t, who can hire a lawyer to get in and advocate for them quickly and who cannot. And I think that’s where that’s playing out.

And then after that, because it doesn’t matter what your criminal history is or what your health conditions are, if you don’t have anyone that can advocate for you either in front of a court, or a person in a position of power that can actually do something about the sentence.

Eddie Conway: Okay. Well, in California now, I understand they have a prison system where you can pay to stay in a better prison environment than the average prisoner. It’s like a two-tier prison system. Brandon, can you talk a little bit about the two-tier prison system? The information you just gave is very important. But I wouldn’t… I guess I would say I wasn’t aware of it. I knew there was special treatment in country clubs and Fed camp release centers and so on, but it sounds like it’s more. Brandon, can you talk a little bit about that?

Brandon: Sir, I haven’t heard of what you’re talking about in terms of California prisons and two tiers, I’m not sure what that’s all about. I wanted to mention something that is more pervasive in the country, that we haven’t talked about yet, where money really matters. And that is, we’ve talked about prison so far, but there’re also jails. And there are a huge number of people in our jails every day, and in many states, what decides whether you are detained in jail versus realeased is whether you can pay cash bail, or whether you can make a payment to a bondsman.

And that’s a quite direct way that if you have the resources, then you’re not in a jail setting. Jail settings are extremely dangerous in terms of COVID, lots of open settings, lots of people held and in groups, and lots of turnover. There’s enormous turning in jails. On average jail stays, people may be in jail for a few days, maybe a few weeks, it may depend on the charges, or if they can make the cash bail. And so it’s an enormous number of people that are all together and then going back to the community. So it’s an enormous public safety risk to the community.

And again, in many parts of the country, what decides whether you are in jail or not is whether you can make cash bail. Now, in some States they have actually addressed this during the emergency. So the California Supreme Court said that bail can now be set at zero, other jurisdictions have said, “Look, we’re just going to cut way back on arrests. We’ll start giving citations as an alternative to arrest.” So in some places you see that jail populations are way down compared it to how they were a few months ago.

But in other places you still see people in jail for pretty minor offenses. And in fact, you see people in jail specifically because of poverty, because you have people in jail held in, basically, contempt type situations where they haven’t paid fines and fees. And so that’s another way that poverty can land people in jail. Some states have said, “Okay, we’re going to do emergency relief. We’re going to suspend fines and fees and court debt during this emergency.” Those types of measures should be taken more firmly.

But again, when you turn from prisons to jails, you’re also looking at an incredibly dangerous situation. The places where COVID has spread the fastest, the epicenters of COVID, are places like the Cook County Jail in Chicago, obviously people were all worried about Rikers in New York City and the rapid spread of COVID there. And again, people are often in jail because they’re poor.

Eddie Conway: Okay. Paul, there’s information out there that some families are being charged exorbitant rates to receive phone calls from their loved ones or support people in prison, can you talk about that a little bit?

Paul: Sure. The prison phone market is controlled mostly by two companies called Securus and Global Tel Link. And these companies, their entire business model is based on monetizing human contact between prisoners and their families, and they charge ridiculous rates for their phone calls. Up to 15 and $20 for a 20-minute phone call is what prisoners families are paying.

One of the things that’s interesting is that in reaction to the COVID crisis, as part of the CARERS Bill that was passed by Congress, one of the provisions in there is the Federal Bureau of Prisons is allowing prisoners to make free telephone calls. And that’s been one of the few signs of decency that we’ve seen out of the Federal Bureau of Prisons during this crisis, and it’s one that we’re hoping that states and jails would follow and allow prisoners to remain in touch with their family without financially exploiting them.

But this prison phone industry, basically it’s a $2 billion-a-year industry, and it exists solely to gouge and exploit prisoners’ families by basically making them pay if they want to stay in touch with their loved ones. I do want to go back to your prior question though, I think some of the points that were made about bail I think are worth emphasizing is that around the country, 30 to 40% of jail populations are people being held in jail because they cannot afford a bail of $1,000 or less.

And the bail bond industry is another industry like the prison phone industry that exists to monetize and financially exploit poor people that’s caught up in the system. And we also see lots of people that, in addition not being able to pay bail, are also being held for noncriminal offenses. I think Prison Legal News a few years ago, we did a story that on any given day around the United States, over 50,000 people are being held in jail, not because they’re accused for crime, but because they’re too poor to pay child support.

And that’s an enormous number, 50,000 people. That’s the size of the entire Ohio prison system, for example. One of the things you did ask about jails, pay-to-stay jails in California, Prison Legal News has reported extensively on that phenomenon. And basically what they are is these are city jails in and around the Metropolitan Los Angeles area, CO Beach is one of the ones that comes to mind, where basically if people can afford to pay 150 or $200 a day, they get to stay in the jail.

And they get a cell to themselves, they keep their laptops, they keep their cell phones, and basically they can do sentences of less than a year being “in jail,” whereas they’re not risking their lives and their safety being in the Los Angeles Men Central Jail. And a lot of celebrities have stayed in these pay-to-stay jails, including Dr Dre, the famous rapper, and a lot of other celebrities have done this.

And I think that one of the things that this does is it makes it extremely difficult, I think, to achieve any type of meaningful criminal justice reform, when you have rich people that are basically not subjected to the same rules or conditions that poor people are. When the four people have to fend for their lives and hope for the best, whether it’s COVID or violence, or lack of medical care and sanitation in general, in places like the Cook County Jail or the Los Angeles Central Jail, the rich people literally buy their way out by staying in literally plush jail conditions that are more akin to a private facility. I think it makes it a lot harder to argue on the need for that because I think…

The extent, I think, that one of the things that we see is for people to reform things, they need to think, “I don’t want this to happen to me or my loved ones or my family member,” but if you’re so rich and you think, “You know what, even if I get accused of a crime, even if get convicted of a crime, this isn’t going to happen to me. The really bad stuff is only going to happen to other people. And generally, they’re poor people, they don’t look like me, they don’t talk like me, they’re not in my social circles of friends and acquaintances,” then I think it’s really easy to let those conditions continue and fester as they have in this country for the past 40 or 50 years.

Eddie Conway: Okay. Thank you for that information. Brandon, do you have any last comments that you want to share with the public?

Brandon: Sure. I know that all this is really important and powerful information. I think if folks are thinking about, “Where is COVID?” People have heard about how COVID has spread, in this epidemic way, on cruise ships and nursing homes, many of our prisons are nursing homes. They’re elder care facilities. There are enormous numbers of people that never would have received life sentences, life without parole sentences, or even 20 year sentences, in decades past.

And so we have an aging population in our prisons. The quality of the medical care is often and not good, and the quality of the medical resources, beds, hospitals, in the rural communities where many prisons are located can’t support what’s going to happen once COVID starts to spread in these facilities. And I think people like us have been warning that this is a terrible, terrible threat for a couple of months now, and we’ve seen only halting action around the country.

Even apart from the question whether people who are better connected with good lawyers can, here and there at the margins, get released, for the most part, we’re going to have many thousands of people who are already getting exposed to COVID, already getting extremely sick and not able to get care in our prisons and jails. The problem is exploding. And perhaps if there were better connected people, and if criminal justice was a topic of greater public concern, maybe it would be higher up on everyone’s list of things to respond to aggressively. So far that’s only happened very, very slowly.

And so, just big picture, our prisons and jails are the new epicenter for this COVID virus. The results are already tragic for both people in these facilities who are incarcerated, for the people who work there, for judges and lawyers, for family members. And in some places it’s already too late and COVID has exploded, but in most places it’s just beginning, and there’s still time just to take aggressive action. And I just hope that more places do respond like they should to dramatically change how people are treated in these facilities, or I’ll let them out before it’s too late.

Eddie Conway: Okay. Before I ask you, Paul, if you have any last comments, let me just make one statement. Here in Maryland, several hundred prisoners have been released, or going to be released according to Governor Hogan. But it seems that they are short term prisoners with less than four months on their sentence. Similar actions have taken place in New York, in California, and to me it appears to be a PR stunt.

Most of the people that are at risk in high security prisons, they’re aged, they have at least several years, if not decades left on their sentence, they’re not getting released. And so, as we look around and see that Cook County released this, or Rikers Island released that, or California, I think it’s important that we don’t get rocked to sleep with the short term sentence releases. But anyway, Paul, you have a final comment?

Paul: Yes, I think it’s worth noting that basically what’s happening with COVID right now has been 50 years in the making. For those who’ve been reporting on and covering an advocating for prisoners rights and prison conditions in this country, which I’m going to date myself and say I’ve been doing it for 30 years, which I know you’ve been doing it longer than I have Eddie, but this is not a surprise.

And I just look back at all the previous epidemics that have swept through American prisons and jails, whether it’s hepatitis C, HIV AIDS, drug resistant tuberculosis, MRSA, and I think it’s important to know that people who run our country’s prisons and jails, they’re not medical experts, and frankly as far as I’ve seen in the past decades, they don’t really care about the medical opinions or views or practices. They’ve totally dropped the ball, they’ve always been incapable of providing anything approximating adequate medical care in our prisons and jails.

And I think that the only thing that COVID is illustrating is their base incompetence of doing anything other than locking people up and caging them. And I also think that, as you know, Eddie, this tepid response of letting a few people out, as I see it, the story isn’t going to be the 10 or 20 or 30,000 prisoners that were let out in response to COVID, but the two-and-a-half million that weren’t let out.

And I think that the irony is going to be that the greatest decarceration that may take place in the United States is going to be for prisoners dying of medical neglect from preventable disease. And I’m hoping that’s not the case, but I’d say the way things are headed, I think that will be the case that is likely to happen. But I think one thing we need to be thinking about is, who’s going to be held accountable? Who’s going to be responsible for making the decisions to keep people locked up and prevent them from getting medical care?

We’re getting reports where prisoners are being denied basic things like cleaning supplies. They can’t get masks, for example, there’s no sanitizer available, and these are all government decisions that are being made. And I think we can contrast this to other countries. The Islamic Republic of Iran, who has a horrendous human rights record with regards to its prison system, they’ve unilaterally released 85,000 prisoners. That’s over a third of their prison population, has been released because they are admitting that they cannot keep their prisoner population safe under the conditions that they have in Iran.

And the fact that other countries are taking dramatic steps to reduce and protect their prison population, I think, should come as no surprise. And I think this is one of the things that all it does is just illustrate, I think, the poverty of the response of the United States government and its local entities. But again, it shouldn’t be a surprise. We built a police state that’s caged two and a half million people, which both in terms of percentage of our population and in raw numbers, is the biggest mass incarceration that the world has ever seen at any point in its history, more than Stalinist Russia, more than Nazi Germany.

Eddie Conway: That’s the last word on that. So thank you, Brandon, Paul, thanks for joining me.

Brandon: Thank you so much.

Paul: Thank you very much, Eddie.

Eddie Conway: And thank you for joining this episode of Rattling the Bars for The Real News.

Studio: Cameron Granadino
Production: Cameron Granadino, Ericka Blount Danois

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Executive Producer
Eddie Conway is an Executive Producer of The Real News Network. He is the host of the TRNN show Rattling the Bars. He is Chairman of the Board of Ida B's Restaurant, and the author of two books: Marshall Law: The Life & Times of a Baltimore Black Panther and The Greatest Threat: The Black Panther Party and COINTELPRO. A former member of the Black Panther Party, Eddie Conway is an internationally known political prisoner for over 43 years, a long time prisoners' rights organizer in Maryland, the co-founder of the Friend of a Friend mentoring program, and the President of Tubman House Inc. of Baltimore. He is a national and international speaker and has several degrees.