Wendy Calaway: Finding Hope and Fighting for a Safer, More Just Society
Courtesy of Pete Bender.
Wendy Calaway, professor and criminal defense attorney, grew up in Williamsburg, Ohio, just east of Cincinnati. She studied both political science and law at the University of Cincinnati. It’s there, in law school, where she found her passion for justice. We sat down via video conference to learn more about bail reform, overturning wrongful convictions, and what it’s really going to take for everyone to truly receive equal protection under the law.
Interview by Michaela Rawsthorn with support from Nicole Mayes. Photography courtesy of Pete Bender.
You were nominated by a student who was inspired by your classes. What do you teach?
I’m an assistant professor at the University of Cincinnati, Blue Ash campus. I teach criminal justice courses – mostly introductory level courses, such as intro to criminal justice, corrections in America, intro to courts, and a class on wrongful convictions. They’re all courses that are designed to give students an overview of the criminal justice system and to give the basic foundation so that they can specialize in the things they’re interested in.
I am also a criminal defense attorney. I’ve practiced for over 20 years. That’s the perspective that I bring to the classroom. My experience as an actual practitioner is something that is really interesting to students. I bring my work into the classroom so there’s a way for students to connect theoretical concepts with something that’s actually happening. In one class, I actually brought in a live case; it was for an honors seminar as part of a wrongful convictions class. I was working in a case where a client was making a claim of innocence. I brought the transcripts in, we were able to go to the prison to visit him, and the students actually worked on the case. They really got a chance to see how a case unfolds.
Tell us about the case you argued in front of the Ohio Supreme Court.
This was Joseph Harris’ case. I wasn’t the trial attorney; I picked up the case at the appellate level. Mr. Harris was convicted during his trial. We won his case at the first level of appeal – Hamilton County First District Court of Appeals. Mr. Harris had received a life sentence without the possibility of parole, but the appellate court overturned it because he did not have a fair trial. Then the State appealed the case to the Ohio Supreme Court.
The crux of the appeal was about expert testimony entered by the State. Apparently, at some point in the trial, Mr. Harris’ attorney was investigating using some kind of a mental capacity defense; maybe not guilty by reason of insanity or argue a competency issue. In order to [pursue that defense], a court-appointed psychiatrist evaluated Mr. Harris. But in the report by the psychiatrist, there was a lot of opinion about Mr. Harris’ personality. There was commentary in there about who he was as a person that was not relevant to the case. Ultimately, the lawyer and Mr. Harris abandoned that defense. And yet the prosecutor decided to use the information from the psychiatrist in the trial against Mr. Harris. They were essentially using an expert witness to say Mr. Harris was a bad person.
We learned about 60% of the people who are sitting in the justice center tonight in Hamilton County are there because they are too poor to pay their bail.
My argument on appeal was that it was all inappropriate and it deprived Mr. Harris of a fair trial. In the United States, we have decided that we want to convict people of crimes based on what they did, not who they are. Maybe you are a bad person. Maybe nobody likes you. Maybe your own parents don’t even like you. That doesn’t mean you committed a crime.
I argued that what the prosecutor did violated the fundamental notion that we convict people based on their actions, not on who they are. And the Ohio Supreme Court agreed.
That was obviously a great victory for Mr. Harris. It was a great thing for Ohio law because it allowed the court to definitively say, “We are reaffirming that you can only use evidence of what happened at the crime to convict someone.”
Courtesy of Pete Bender.
How did you get involved with taking on issues of justice, like that case?
When I started law school, I didn’t have a ton of direction about what I was going to do. A lot of people go to school knowing they’re going to be a public interest lawyer or that there’s some other kind of law they are going to practice. I wasn’t sure.
I did really well in law school. I was lucky enough to be recruited by big firms. I got a big firm job offer. But while I was in school, I did an externship at the public defender’s office. My mentor there was wonderful. She taught me so much about the court system and advocating for people. I saw a way to use my life to do something for people that was bigger than me: to use my education, my intellect, my ability to try to help other people. I started to reformulate my thoughts on what it was to be a lawyer; from “I am going to do this job” to “I am going to do this job, but I can also help people around me and make my community better.”
The idea that we are sending juveniles to adult prisons for life, to me, is one of the things that shocks the conscience.
I took a job at the public defender’s office when I first got out of law school. Honestly, it was really eye-opening.
We’re taught stock lines like, “The United States has the greatest criminal justice system in the world.” That kind of commentary isn’t really evaluated very much. We all just kind of think it and say it. And I thought it, too. Then, I started walking into the juvenile court every day in Hamilton County and saw that our criminal justice system wasn’t very good. It was very biased against the poor and minorities. The notion that any sort of justice was going on there was a myth.
I became very passionate about trying to change that. My parents raised me to try to be useful in the world. And I saw a lot of things that needed to be fixed. We set a lot of aspirational goals for the justice system, but we are really far away from hitting those. I wanted to work to bridge that gap. I will say that now, after 20 years of working, I’m not sure how much that gap has been bridged. But I’m in there working to try and make it better.
Tell us about the work you’re doing with bail reform.
This is one of the issues that as a practitioner I’d feel like I was banging my head against a wall.
I would stand there at arraignments with my clients who had been arrested the night before. They would come in for their initial appearance, which is the opportunity for the court to tell them what they are charged with and then set their bail. I would say, “My client was indigent and he can’t afford bail.” Or maybe he could only afford $100. “Here’s the checking account information. He’s got children. He’s supporting a family. There’s no money.” And the court would set the bail at $10,000. Even when I would say, “He doesn’t have that, I need you to lower that,” the court would say, “No, it’s $10,000.”
I would get up and make arguments like, “Hold on a second. The 14th Amendment says we all have equal protection under the law. If you set the bail at $10,000 and I can afford it, but he can’t and he has to sit in jail until his court date, how is that fair?”
No one listened to that. I made the argument for years. When I got away from the practice for a couple years, I started to look at the issue more globally. I saw the problem was happening everywhere. And I started doing some research.
I partnered with a colleague who is a law professor at N.K.U. We started to collect some data; we did some court observations – just to see exactly how often this is happening. We saw the problem was widespread. We learned about 60% of the people who are sitting in the justice center tonight in Hamilton County are there because they are too poor to pay their bail.
We started to craft arguments around this that said, “This doesn’t make us safer.” Just because you have money to pay your way out doesn’t mean you’re less of a risk. And just because you are too poor to pay doesn’t mean you’re a greater risk.
Criminalizing drugs and enforcing drug laws like we do is making us less safe. Taking people who have addiction problems and locking them up is making us less safe.
There’s a national movement right now to try to address this issue. There’s litigation that’s been happening all over the country. We were going to initiate litigation too, which isn’t off the table, but we decided to try to sit down with stakeholders and build a coalition around this in our community. We had some success with it.
The City Council of Cincinnati actually passed a resolution in collaboration with us that they would not have their prosecutors seek bail at all for low-level offenses. That was a big leap forward. We still have some work to do with the county prosecutor's side of it, but we’re making some progress. The issue is getting attention. I was on a task force with the Ohio Supreme Court judges who are looking to overhaul the criminal rules to give judges better guidelines on how and when bail should be used.
There is a robust amount of research out there that shows keeping people locked up who haven’t been convicted of a crime actually makes us less safe. They’re more likely to commit crimes when they get out if they’ve lost their house, their job, their children, than if they were able to maintain that stability. We also know bail disproportionately impacts people of color. It’s a system that is propped up and infested with racism, in addition to everything else.
Courtesy of Pete Bender.
Are there other aspects of the criminal justice system that do more harm than good?
I want to talk about a case I’m working on. I’m trying to get the Ohio Supreme Court to accept the case on an appeal I lost in the First District in Hamilton County. It involves a kid who would have been 16 in like a week when he got charged with homicide. There is very, very little evidence to connect him to it, yet he got convicted and sentenced to life without the possibility of parole. The idea that we are sending juveniles to adult prisons for life, to me, is one of the things that shocks the conscience.
I ask students in my corrections class every semester, “What is something we’re doing now in corrections that might one day be considered barbaric?” They talk about the death penalty and other things. But the way we treat juveniles, to me, suggests there is no hope. I mean, if there isn’t hope for a 16-year-old, then we do not believe in rehabilitation. There is no hope. Those kinds of cases are heartbreaking.
But to answer your question, there is so much we do in the criminal justice system that makes things worse. David Simon did a documentary called “The House I Live In” [written and directed by Eugene Jarecki] that’s a few years old. The central premise is that the criminal justice system works as we designed it. It’s taking off the bottom 20 percent of our society and creating jobs for everyone. It’s a very cynical view of the criminal justice system, but, honestly, it’s a little bit hard to argue with it when we continue to do things we have done for decades that have only made the problem worse.
Let’s take prison. The way we use prison to incarcerate people is not keeping us safe. Most people who go to prison go there for an average length of time of about three years. Well over 90% of the people who go to prison will get out. We send people to live in cages, in extremely draconian circumstances, with no access to rehabilitation, minimal access to any kind of treatment. Then we put them right back out on the streets with no skills, no finances, and no connection to a job or community. Then we’re surprised when we have recidivism rates in this country of around 70%.
If there isn’t hope for a 16-year-old, then we do not believe in rehabilitation.
It’s frustrating for me to sit down with policymakers and say, “How does this make sense to you?” We’re spending $80 billion a year locking people up and crime rates are staying the same. We are not crime-free. We’ve had a war on crime and a war on drugs for years and years and years, and we still have the same problems we had before. Using incarceration as a response to criminal conduct isn’t making us safer. It’s making us less safe.
The way we deal with drugs is creating and maintaining a system that’s less safe. It’s obvious on so many fronts. Just making drugs illegal is creating violence on our streets. I talk to friends and family who don’t understand the work I do. They’re all afraid they are going to be victims of violent crime. But I say, “If you aren’t involved in buying or selling drugs, the chances of you being a victim of violent crime are so small, it’s like being struck by lightning.” The violence on our streets is because of drug sales. Criminalizing drugs and enforcing drug laws like we do is making us less safe. Taking people who have addiction problems and locking them up is making us less safe. It’s taking stability away from our community.
Many studies have shown that prison is criminogenic. So, when you put someone in prison, the chances that they become a criminal are infinitely higher than they become somehow reformed. But, honestly, to change that we need some kind of revolution in our society where we have a change of attitude.
When I talk to students, there is a deeply ingrained feeling that people should get what they deserve. People who break the rules should be punished, and punishment is somehow helpful or effective. But what we’ve learned from researchers tells us over and over again that hard punishment does not work to stop people from committing crimes. We are just so committed to it as a society that we can’t even imagine it another way.
Courtesy of Pete Bender.
Where can we find hope for reform?
All of that is extremely frustrating for me. Sometimes I feel like I’m just talking to a brick wall when I try to bring these things up. I think, honestly, in order to fix it, these conversations need to start in elementary school. We need to have a different way of thinking – a more creative way of thinking – about how to deal with people who are antisocial or people who aren’t able to conform themselves to the rules of society. We also need to think about whether the rules that society has set up need to be there.
It starts with education. There are so many students who come into my classroom and say, “Gosh, I had no idea. I didn’t know the system was like this.” In the words of Maya Angelou, “When you know better, you do better.” Knowing is important. Educating people on these issues is important. I don’t think most people in the country understand the depth of the corruption, the depth of the problems our criminal justice system faces. If we can teach people what’s really happening, that gives me hope.
We become educated voters. Pay attention to who is running for the prosecutor. Pay attention to who is running for office. Pay attention to the issues on the ballot. We also become more educated jurors. You are not just sitting there accepting that everything the prosecutor says must be right. Now you understand there are systemic flaws and biases in our criminal justice system. Just because somebody in law enforcement says something doesn’t mean it’s true or right or the gospel.
There are so many people out there working on this. There are public defenders across the country working in the trenches, making differences in the system one person, one client, one argument at a time. Every time a lawyer stands up in court and says, “I am not going to be part of the system today. I am not going to be part of the assembly line that just puts people in a cage.” When they resist that, they make it easier for the next person who comes behind them. People who are willing to roll up their sleeves, not be part of the “get along gang,” and are there to represent individuals inspire me. There are lawyers all across our city doing this work. They give me hope.
How can people get involved in your causes?
I encourage people to take a more active role in their community. Look into who your leaders are. It’s difficult to make [voting] decisions if you don’t know who these people are. Those people are extremely important: They’re the ones who make the everyday decisions for the system. I encourage everyone to take responsibility to get educated so they can make informed decisions about the policies they want to see for their community.
Who is an influential woman in your life and why?
I am astonished every day by the strength, the power, and the intelligence of women. I’ll resist going on a tangent here, so I will say my mother is an influential woman in my life. We’re very different. She was a traditional wife and mother; she worked very hard to raise a family and provide the traditional family environment; she made a beautiful life for us. But she showed us what it means to show up. When things got tough, she got a job to provide for us but still made sure things were taken care of. My mom was there. She was there to say that whatever problem you’re facing, you can solve it. You have the strength in you to dig down deep and find the power to survive, whatever the circumstances are that you’re facing.
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