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Podcast: Rebel Lawyer

by Katie Wolf

on 26 January, 2018

Amid the political fights over border walls and illegal immigration, we’re talking today to one lawyer who has found himself caught at the center of the struggle.

Andrew Free is a Civil Rights and Immigration attorney based in Nashville, Tennessee. He works on protecting the rights of immigrants held at for-profit detention centers throughout the country. Today, we discuss his past work, the instincts that drive his practice, and his focus on social movements.

Read more about “Rebellious Lawyering” in our blog post.

How to Listen

Join us as we sit down with the country’s best attorneys to talk about their processes and practices, as well as their outlook on the always-changing legal landscape. New episodes every Friday!


 

Transcript

KATIE WOLF: Amid the political fights over border walls and illegal immigration, we’re talking today to one lawyer who has found himself caught at the center of the struggle. This is the Filevine Fireside, I’m Katie Wolf. Today we’re talking to Andrew Free, a civil rights and immigration attorney. Andrew is based in Nashville, Tennessee but works on protecting the rights of immigrants held for profit detention centers throughout the country. Thank you so much for talking with us today Andrew.

ANDREW FREE: Thanks for making the time Katie.

KATIE: On your website you have written, and this a quote from your website “We believe rebellious lawyering can bend the arc of history towards justice” And that of course is referring to Martin Luther King Jr’s statement that the arc of the universe is long but it bends toward justice, but I want to ask you, what does rebellious lawyering mean and how does it achieve that result?

ANDREW: Well, I think rebellious lawyering means a lot of different things to a lot of different people, so I wouldn’t pretend as though I could give a comprehensive definition. But the way that we work, and what it means to us, is that we are going to use our positions of privilege as legal advocates, and as people with certain access to courts of law, to resources, we’re going to use that position of immense privilege and responsibility to try and open channels for people who traditionally don’t get access to those avenues. The history of civil rights litigation is proving that things that haven’t been done before, can be done.

KATIE: So, can you give me an example of what rebellious lawyering means around the work you’ve done regarding these for-profit immigration detention centers?

ANDREW: So, one of the daily struggles that immigration lawyers and immigrants’ rights advocates and immigrant communities deal with, is the increasing criminalization and incarceration of non-citizens and suspected non-citizens. That incarceration comes from a place of intentionality. It is not an accident that the solution to what is a perceived problem with unregulated migration is incarceration. We believe that part of the incentive to incarcerate is, you’ve taken away from the public the tremendous power to deprive someone of their liberty, and you’ve placed that power in the hands of a private for-profit corporation that is accountable only to shareholders. So, what that means, practically speaking, is more people in more places get arrested for more things than they used to. Those people’s existence suddenly has a price tag whether it’s the federal average of 120 dollars a night, or whether it’s 350 dollars a day for each person in the family, in immigration prison in Texas, that commodification of immigrants becomes a problem because it leads to enforcement outcomes and for years we have a congressionally mandated detention bed quota of 34,000 beds each night. The only instance in law enforcement in which a jail must fill a certain number of beds in order to keep operating within its legal mandate. Now that legal mandate went away earlier this year, but the bed quota still exists in the local contracts for facilities where ICE has guaranteed that they will pay for a minimum number of beds at each, that many of the facilities, the majority of facilities operated by these private prisons and what that means is that ICE has an incentive.

KATIE: To fill those beds.

ANDREW: To incarcerate.

KATIE: It sounds like one thing that rebellious lawyering means, is instead of getting stuck within the minutia of a legal problem, to take a step back and look at how systems function, how society functions, how politics functions, how capitalism functions, and work with an eye toward those larger systems as well.

ANDREW: I think that’s exactly right. I think in order to fully address humans as humans when you’re representing a client, you have to understand root causes, and you have to understand what the systemic, governmental, societal factors, that are in some sense determining what’s going to happen in your client’s life. And I’ve had many instances earlier in my career where we’d get what was a nominally favorable outcome for a client, who was then left wanting because oftentimes in our justice system the way that justice occurs is through the writing of a check, or through the releasing of someone from prison, but it doesn’t occur through an apology, and it doesn’t occur through the reformulation of a system that created the problem in the first place.

KATIE: I want to take one more step back and just ask you, how did you come to this place in your life? Were you just going to law school and decided, “I’m just going to be a rebel lawyer”, or what is it that brought you to this moment, to the work you’re doing?

ANDREW: You know, I think about that sometimes. Usually when it’s late at night and I am tired of writing or researching the thing that I’m working on, and I would rather not do it anymore that day. And I think back about why I’m at this place in my career. I graduated from law school having worked during the summers, a lot of law students get practical experience over their summer, and I worked at two of the largest law firms in the United States. My plan after graduating from law school in 2010 was to go and work for one of these law firms and I had the offer, and I had the sign on bonus, but because of the economy, they deferred all of us for 6 months to start in January of 2011, and during that time I began working for an immigration and civil rights lawyer here in Nashville and I can remember vividly the day that I realized that I couldn’t go and work in the really plush, awesome, offices in San Francisco where I was going to work. And it was the day that we decided that we were going to get a green card holder, a lawful permanent resident out of a county jail. He was stuck in this jail subject to an ICE detainer, an immigration request from the federal government to the county government to hold him. Well the detainer requests, they’re supposed to only be valid for 48 hours, and this jailer, this sheriff, decided that that didn’t mean anything. So we decided no, that means something, that’s got to mean something. We filed a petition for writ of habeas corpus, and I’ll always remember the feeling of walking into court with the attorney that I worked for at the time and seeing the way that the tables had turned. After the judge stopped the hearing, during the jailer’s testimony, because he saw that there was no way that he was going to be able to rule in favor of the county, he ordered the man’s immediate release. I went to the jail and watched the big heavy doors slide open and I watched him walk out. Every time I think of that I get goosebumps because it was such a stark contrast between him in the courtroom in his orange jumpsuit, and him walking out as a man with dignity, in his street clothes, and walking free.

KATIE: Oh man.

ANDREW: And that was the moment I realized there was never going to be anything like helping a person regain their freedom by forcing the government to give it to them.

KATIE: That’s beautiful Andrew. I’ve never been grateful for the great recession until now. That it indirectly got you into this work. Would you tell me a bit about how the for-profit immigration detention system is different from just what we think of as the regular criminal justice system? I mean it looks like people get arrested and then are prisoners, but actually people are detained, and then are detainees, what are the differences there?

ANDREW: Yeah, I want to just preface this discussion, prisoners don’t have it so great either. Oftentimes county jails and state prisons are really poorly run, and prisoners and detainees in those facilities are abused and forgotten, and so I don’t mean this critique of private prisons as a suggestion that incarceration by a public entity is necessarily the solution. I’m for decarceration and abolition but that’s a separate discussion. So, having cleared that brush, I think that the main differences between private for-profit detention particularly in immigration and public detention, detention that’s performed by a democratically accountable entity is that oversight piece. The private detention companies have an incentive to minimize the amount of money that they spend on care, protection, safety, for the people in their custody. And that motivation is that if they can undercut their competitors, then they would be able to enhance their profits. Time and again what we see is the failure to adequately staff, adequately provide and care for, adequately secure private immigration detention facilities and this is the root of it.

KATIE: I want to ask you about another distinction, so the 13th amendment outlawed slavery, but said forced servitude was still okay as punishment for a crime. You’ve done some work around forced labor in these for-profit immigration detention centers, haven’t you?

ANDREW: That’s right.

KATIE: Because, extensively if they’re not being punished for a crime, then how is it that it’s still legal to do forced labor?

ANDREW: That’s the question at the heart of some of these cases. The way that immigration detention facilities are so profitable is by using a captive detainee workforce that you can threaten with solitary confinement, or criminal prosecution, you can maximize profit by not having to pay people to do that work, by not having to insure against their injury, or disability, or unemployment. In one of the cases that we brought in Colorado, the allegations and the complaint are that individuals in the facility are threatened with solitary confinement unless they perform cleaning tasks. These are things that are delegated for their company to do, but instead they’re forcing the detainees to do It for no money. The company says well, we can force them to do that because they’re detainees, but the reality is that is not legally permissible, our argument is that it’s not legally permissible, and that doing so violates the forced labor perditions of the Trafficking Victims Protection Act which is actually more expansive than the 13th amendment. It’s intentionally so, it ensures that it’s not just the traditional characterization of slavery that people have in their head, but it also covers modern day forms of slavery, like making someone work when you’ve taken their passport, or making someone work under threat that their family will be harmed. It covers obtaining the labor or services of another person under threats of serious harm.

KATIE: So, with different attorneys I’ve spoken to, it sounds like labor law is difficult right now, immigration law is difficult right now, class action law is difficult right now, do you feel optimistic about some of these lawsuits you’re involved in?

ANDREW: Well, the short answer is yes. I think that what the first eleven months of this era has taught us is that we can still, for the time being, avail ourselves of the federal judiciary to redress grievances. People who’ve taken an oath and who’ve assumed lifetime tenure are fairly insulated from the current hysteria that’s gripping our politics. I think so far what has been proven is that the federal judiciary still has a role to play in how our society functions. It is getting harder and harder for us to get there as immigrant’s rights advocates. The barriers to entry to the federal courthouse have increasingly been thrown up, but I have to believe that there’s something in the common sense of most people that says if you are obtaining contracts from the federal government that you lobbied for, and if those contracts are yielding billions of dollars to your corporation and then you’re trying to save at the margin or even past the margin, and profit even more by forcing people who are in your custody to do the work that you’ve agreed to do. There’s something conscience shocking about that. I think that people might disagree about a lot of other things, can look at the law, and you can look at the way the law’s interpreted, and can agree no, that doesn’t seem right.

KATIE: I want to dig a little bit deeper into the conditions in these immigration detention centers. In mid-December, a report came out from the office of Inspector General talking about some of the conditions. Do you want to talk about what you’ve seen and what you’ve found is happening in these centers?

ANDREW: Sure. In reality, immigration detention is designed to force people to give up their rights. It is designed to negate choice and negate agency. Everything from how long you grow your beard, to when you pray, to when you eat, to when you go to the bathroom, to how much soap you can have, and in that environment that is often understaffed, things that aren’t controlled like other detainees who attack their fellow detainees. As you noted, when random inspections occurred, those inspections found horrifying things. They found mold on food, they found that detainees were not being properly screened during intake, they found that people were not getting proper interpretation, that medical grievance requests were not being honored, and it’s no surprise because advocates have been listening to people within those facilities, and they’ve been telling the government this for years. They’ve been telling the public this for years.

KATIE: Looking at some of the responses from the detention centers to this really quite scathing report from the OIG, one response I’m seeing is people saying, “Well we need more resources, we just need to put more money, we need more staff and bigger and more facilities.” Are you worried at all that some of the outcome of this could just be putting more money into this same system?

ANDREW: Yeah, I am. I think that the current incentive structure is such that the only feasible solution within policy maker’s minds is increased money to these entities. And it’s increased in their share of how many people are being detained within private prisons from something like 50 percent/40 percent a decade ago, to 73 percent. That is, 7 in 10 of all people in an immigration detention bed tonight are going to be in a detention bed that is holding the person for a profit. The key in what appropriations gurus in our movement have been trying to do, is to attach accountability to that money. So, if you are going to take this money under the guise that it’s going to be spent improving conditions, then you must prove that you’ve done so.

KATIE: So, let’s talk a little bit about changes that could happen. What do you think, I mean obviously this isn’t just a job to you, this is your heart’s passion, you’ve put a lot of thought into this, what do you think is needed to change this system into something better?

ANDREW: Well again, I start from a place of abolition, and in a place of decarceration, decriminalization, and so I have to curb some of my policies (inaudible) outcomes, to the realm of the possible, and the practical, right? So, I think that there is not a good reason that I can understand for why civil immigration detention can’t look more like other forms of civil supervision and confinement, such as halfway houses, or group homes, and I think that there are policy formulations that could do this differently. One example though, and the most popular one among advocates is alternatives to detention and that’s electronic monitoring. I’m very skeptical of that because I think that technology is going to advance to the point where they’re going to do a company bid earlier this year and just implant some of their employees with these chips that will monitor their actions, and I don’t see a reason why the government eventually is not going to want to do that to immigrants, and I think that that’s a really scary place to be. But I think it’s proved that even that level of reform is going to be subject to industry capture, and I’ll give you an example: congress gave sort of a (inaudible) lip service from an adjudications perspective to a pilot program for alternatives to detention and specifically for putting people out in community monitoring with supervision. What the pilot programs found is that you get a much, much higher rate of people showing up at their immigration proceedings when they’re released to do a community supervision program. And when there are people who understand and speak the language of detainees, who can tell them where their court is, and how to get social services, how to get lawyers. Then they decided to expand that program and actually fund it and what happened is that the geo group, which runs the largest number of immigration detention beds in the country, it’s a private, for profit, billion dollar corporation, they bid the contract and got it.

KATIE: Wow

ANDREW: So they bought out some subsidiary and it is literally the case that they bought the electronic monitoring company, and then this Geocares community supervision program, so now what you have is vertical integration so that the person who is making the decision about whether you’re complying with your order of supervision works for the same company that profits to the tune of fifteen or twenty times more per day if you’re in detention. Even where you get (inaudible) to detention, you have smart, diversified, businesses thinking ahead and thinking about how they’re going to profit off of that too.

KATIE: I know that a lot of the work you’ve done you’ve been collaborating with social movements, do you have advice for other attorneys about how to be, not just a lawyer, but a movement lawyer, and how to get along with social movements?

ANDREW: That’s a great question. Even though I have not really lived it during this podcast, my biggest piece of advice is to shut up and listen. I think it’s super important for attorneys to just absorb and to be able to let go and allow themselves to be immersed in the experience of hearing what’s driving movements and getting more on board with that. The way I’ve described it, is if you’re interested in movement lawyering, your law practice is going to be an expression of love. Because if justice is what love looks like in public, then you know you have to have that love, that core, that base. You don’t get that, you don’t fall in love with movement by talking it to death.

KATIE: As you have grown close to different people, to people who are detained, to low wage workers, to immigrants, what are tools that you’ve developed to explain the humanity of these people both to a judge or a jury, and to the larger culture? What are tips that attorneys can use to humanize other humans?

ANDREW: That’s a really great question. The places where we have succeeded in doing this is by emphasizing the connections of our clients, or our movements, to each other, to their families, to community, and then doing that in a way that is immediately transferrable to a judge, or to an opposing lawyer, or to a policy maker. So, one of the things that is most effective about the dreamers…

KATIE: And by dreamers you mean people who came over here when they were younger than 16.

ANDREW: That’s right. That movement has intentionally rejected requests to sacrifice their parents in order for their ticket to have some sort of status. They’re young, they’re tenacious, and they have chosen not to accept a lot of what has been laid out for them, and in return they forced a political compromise that recognizes the presidency of the United States and allowed them to have work authorization and a period of time where their status was authorized. And it would have been probably expedient to trade that for permanent status in some sort of omnibus bill that would then go after and criminalize more people, including their parents. But that connection, that human connection of families affected a child does not want to have to choose between losing her mother and being able to go to college, that is something that is relatable. The pain of mothers who have to choose between maybe seeing their children raped, or recruited into a gang in El Salvador, or Guatemala, or Honduras, or risking death, or kidnapping on the way to the United States in order to seek refuge, only to be put into a detention center, and abused. That pain is something that any parent, any person, should be able to relate to, if it’s presented in that way.

KATIE: This is powerful, powerful work that you do Andrew and we are glad you’re out there fighting the fight and thank you so much for taking some time to talk with us about it.

ANDREW: Thanks guys! Let me know if you need anything else, okay?

KATIE: This has been the Filevine Fireside. I’m Katie Wolf, see you next week.