Franklin Bynum Is a Texas Judge Who Wants to Abolish Prisons

Franklin Bynum Is a Texas Judge Who Wants to Abolish Prisons

This week on Next Left, meet a judge who believes our incarceration complex is “not a defensible system.”


Franklin Bynum is a judge. Sometimes, he even wears the black robes associated with the job. But the title and the robes don’t begin to tell his story. What distinguishes Bynum, a 37-year-old democratic socialist from Houston, Texas, who was elected last fall to serve on the Harris County Criminal Court bench, is his determination to unravel and replace the “oppressive punishment bureaucracies” that define our criminal justice system.

An able lawyer, who has served as a public defender and a defense attorney, he knows his way around the courts and the jails of Texas. And Bynum has reached the logical conclusion, as his Twitter profile announces, that “people need care not cages.”

Bynum ran for a court post last year, mounting a campaign that proposed radical reforms. He framed his advocacy with facts, figures, and humanity. It was so impressive that the conservative Houston Chronicle endorsed Bynum, along with the local chapter of Democratic Socialists of America, and he won along with a group of progressive jurists who promised to make real the promise of justice.

Bynum’s now on the bench and he has already taken the lead in proposing dramatic changes that would end the cash-bail system and other abuses. He’s our guest this week for a exciting conversation on Next Left.

Subscribe to Next Left on Apple Podcasts or wherever you get your podcasts.

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A Socialist in Every District, Jacobin, Nathan J. Robinson

Democratic Socialist Franklin Bynum is ready to get to work on the Harris County bench, Houston Chronicle, Erica Greider

For County Criminal Court No. 8: Franklin Bynum, Houston Chronicle, Editorial Board

At Least 17 Democratic Socialists Seek Office in Texas, Texas Observer, Gus Bova

What is Prison Abolition? The Nation, John Washington

The End of Policing, Alex S. Vitale

Group Therapy, Above & Beyond

You’re Gonna Miss Me,” 13th Floor Elevators

This episode of Next Left was produced and edited by Sophia Steinert-Evoy. Our executive producers are Frank Reynolds, Erin O’Mara, and Katrina vanden Heuvel. Our theme song is “Deli Run,” by Ava Luna.

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John Nichols introduction: Welcome to Next Left, I’m John Nichols of The Nation, and I’ve got a question for you. Can one judge, in one local court, change the future of criminal justice policy, not just in his hometown, but nationwide? That’s a tall order, but Texas judge Franklin Bynum is doing his part to upend the prison-industrial complex from Houston’s Harris County Court bench. He’s a Democratic Socialist and a modern day abolitionist.

John Nichols: Judge Franklin Bynum. Thanks for joining us on Next Left.

Franklin Bynum: Thanks, it’s good to be here.

JN: I want to start by taking you back to your roots a little bit. Did you dream of becoming a judge when you were a kid?

FB: No, no. Far from it. It was never anything that I actually considered, it was really just kind of time and place and circumstance that brought me to it.

JN: But your dad was a lawyer?

FB: Yeah, I grew up in a small law firm, in a little law shack. My dad grew up in a small town, kind of taught himself math on public television and he himself was the son of a USDA geologist and a public school teacher, they would travel around the state. So, really a service-minded kind of person. And eventually my dad moved to Houston, went to Rice and then was charging hard trying to make it, I guess working for an insurance company. But then dropped out and became a psychedelic rock producer, and produced the 13th Floor Elevators and some other stuff that was happening down here around that time. And then eventually I guess went to law school and started up a small law shack as I call it where he was basically helping poor people, working people kind of get some walking-around money after they got hurt. And, but the law to me was always a thing that helped people. And so that’s the environment I grew up in.

JN: You grew up in a neighborhood called Montrose, is that right?

FB: Right.

JN: And you said in one of the interviews along the way, that one of the things that kind of shaped your thinking about the law, obviously in addition to your dad’s work, was seeing people you knew, friends even, getting busted. And really having a hard time with the law.

FB: Yeah. It was friends of mine growing up and it was also my neighbors. I mean, the Houston Police Department was notorious for targeting gay people for being gay, right. Targeting gay clubs. The Lawrence v. Texas Supreme Court decision was actually organized in my neighborhood at a gay bar: There were some closeted sheriff’s department employees drinking after work saying, “You wouldn’t believe what came through today. It was arrested for sodomy, and I haven’t seen one of those, ever.” And so they started talking, and there happened to be a lawyer from [LGBTQ rights organization] Lambda [Legal] nearby who I think might have been working at the bar. And so they organized this Supreme Court litigation that for the first time recognized gay rights, just here at a gay bar in the neighborhood I grew up in. So it was always a pretty radical neighborhood. It’s a neighborhood where if you were different, and the world was less than kind outside of the walls a few blocks, away so to speak, it was a place you could be.

JN: So you grew up in a pretty progressive neighborhood. But it wasn’t far away that you saw the impact of law and the impact of the criminal justice system. Another thing you said, that as a young man, you were particularly struck by your local district attorney going for death penalty cases.

FB: Right. Here in Houston, we sent more people—in what’s called the “modern era” of the death penalty starting about in the ’70s—we’ve sent more people here in Harris County to death row than, I think any of the other states. And it was just a machine down here and it was really hard to miss if you were paying attention at all. And it was a very oppressive environment to be in. And when I was a senior or so in high school, we had a death row exoneree come in and tell us his story. And I remember sitting on the front row just really enthralled. His name was Clarence Brandley, and it was really listening to Clarence that led me on a path to ultimately be a criminal defense lawyer and be a capital defense lawyer.

It all kind of came full circle in my last capital trial before I became a judge, during jury selection, I stood up and told the jury my story, my origin story. The prosecutor had told her story about being on the softball team and how “being on the jury, it’s like being picked for the jury team.” And I got up and I said, “Clarence Brandley came and spoke to me in high school and I actually will miss his funeral this week to try this case, and I think that’s what he would’ve wanted.” And then the prosecutor objected to my story, right. Even though it’s really no different than her story except for the substance of it, and the judge sustained the objection. And so sometimes I like to tell that story and say, “Well, I get to tell the story now, because I’m the judge.”

JN: That is a twist on it, and also it’s interesting that your story was the one with substance.

FB: Right, exactly. That was relevant to the case at hand, right?

JN: Did you do a number of capital cases?

FB: Here and there. I mean, the thing is thankfully they are more rare, and so I worked on death capital teams both at trial and appellate and post-conviction. I handled capital trials, but the thing is that, capital litigation in Harris County these days is far less death capital litigation and far more what’s called non-death capital litigation, even though you die in prison. So it’s kind of a strange way in which a reform has had this really kind of perverse outcome where, because you get an automatic sentence at the end of a non-death capital, if they elect not to seek the death penalty, in some ways the trial is shorter and there’s less process for the most severe punishment because the trial’s over and there’s no punishment phase, right?

JN: You just go for life in prison.

FB: Right. And they can overcharge the cases, right. If they charge that many death cases, they just wouldn’t have the capacity to do it these days. But they can charge all these non death capital cases and then just to try to hammer people down for high sentences.

JN: And you were in LA and in Houston, is that right?

FB: I went to UT in Austin and then I moved to New York, and actually one of my first jobs out of college was being a civilian complaint review board investigator in New York. So I learned early on that that particular model of police oversight was not a very good model. And I tell people that, because they’re still, I run into people that say, “We need a civilian review board.” And I’m like, “Well, let’s talk about that because those have never worked.” And, yeah, then I did, I moved to LA, I put all my stuff in a truck. I moved to New York when I wrecked my car the last couple of weeks in Austin and got a check for more money I’d ever seen, about 2,500 bucks. And I was like, “Well, all right, great. I’ll get out of town with this.” And somehow made it work, and the trip to LA was something like that too.

At a certain point I realized that the problem of my lifetime, the problem I cared most about was in my hometown. And even though I might rather live somewhere else, this is the place I needed to be. And so yeah, I came back in late 2008, early 2009, and started a solo practice, because I knew I could do it, because I grew up watching my dad do it in a different kind of way. But it’s a hustle being a solo lawyer and I knew that I could do it. But there was no public defender’s office in Houston when I moved here. We were the largest city in the country without one. So finally they got one funded, right. It was after the economic collapse, and finally the county needed the money from the state for indigent defense. And so they got a public defender’s office and I was one of the first ones and helped kind of build the office up.

JN: And then you went back into private practice after being there for a while.

FB: Yeah, about three years. And I’m a lousy desk employee.

JN: And at some point along, you after going back into private practice, it hit you to run for a judgeship. What made you decide to run for judge?

FB: There was a huge civil rights class action filed here in federal court called O’Donnell v. Harris County where this woman, Miranda O’Donnell, was found by an organization called civil rights court that is bringing similar cases across the country, but this was the biggest one. And the county really… And now I had been working in this system for many, many years, right. Just like pleading people to get out, pleading with judges and prosecutors to show some restraint, which they wouldn’t, right. They were extracting guilty pleas from people in full holdover cells, right? The holdover cell is the jail cell attached to the courtroom. And every morning I would go in there and there’ll be about 40 or 50 people, usually black and brown people, always poor people, because the reason they’re there is because they’re poor. Because if they weren’t poor, they would have paid to get out like the people sitting on the benches in the courtroom. Who were also afflicted by this misery, but none more than the people in the holdover.

So I walked in and battled in these full holdover cells for many years, and then this lawsuit comes along. And the county really digs in and a really indefensible way. And the federal court judge sees the problem and the issues, this really strong relief. And at that point I saw an opportunity because I never wanted to be a judge, but I saw that the system as it was, was going to be destroyed. And I knew that there would be a new system built in its place. And I saw that I had the opportunity to try to see the demolition through, and see the design of something different through also. And so that’s ultimately why I did it.

JN: And you were running for what is best described as a low-level judgeship, not some super-powerful Supreme Court position or something like that. But you felt that just coming in as an individual or as perhaps part of a group of individuals—new judges—that you could have a real impact.

FB: And I know that I can because I saw it happen every. And this is something… Texas is a strange place about judges, because Republicans in Texas have long understood that judicial positions are political positions here. They are elected in partisan elections. They use judge positions as a way of getting into politics and building a base. And so John Cornyn was a judge. Greg Abbott was a judge. Louie Gohmert was a judge in Texas.

JN: The US senator, the governor and a prominent member of Congress…

FB: Right. Like all pretty reactionary people. And so I think that a lot of the fictions that we tell ourselves about judges, particularly federal judges across the country, in Texas [they] are a little bit exposed by the partisan nature of the elections and the elections themselves. There are still rules, but it’s a different kind of place down here. And so I ran a different kind of campaign. I decided that I would campaign in front of the county jail during visitation hours and tell people that I was a socialist, that I was a prison abolitionist, and that I was trying to end pretrial detention. So the level of court that I ran for this level of court where the lawsuit was pending, it’s cases above a traffic ticket and below a felony. But that’s a lot of cases, and it’s a lot of the cases where the worst stuff happens. People being locked up for driving while license invalid, just straight-up poverty offenses. Because the reason their licenses suspended is ’cause they owe these surcharges. Low-level stuff where people are spending way too much time in jail. Like the misdemeanor system is really the part of the system that is the least defensible. I mean it’s all not defensible, but the misdemeanor system in particular. And I think it also is where something is really illustrated and that is what this system actually is.

The system defends itself, the greater kind of what I call, what many call the punishment bureaucracy. It kind of defends itself by saying, “Oh, what about the murders, right?” But really the system is really bad at solving those cases and bringing them to a fair resolution. It’s actually like abysmal at it. And the bulk of the system is the stuff that falls into my level of court. Where police are used as private security basically for every gas station, parking lot, and Walmart self-checkout and on and on. Where police force is deployed against social problems that the state has decided for one reason or another, that we are going to deploy police and prosecutors at and not actually solve any underlying problems or even addressing their underlying problems. We’re just going to cycle masses and masses of people through. That’s actually what the system is, while it says it is something completely different that it’s really bad at.

JN: And in this case, being a socialist actually helps you to kind of see the whole picture, I would think, as regards criminal justice as it fits into all the other injustices.

FB: Right. In the sense that I can see root causes and I want to talk about root causes and I don’t have the magic kind of power to make it all go away and redirect all of these resources that are directed to police and prosecutors to care. But every day it’s something that I am trying to do, kind of on a person-by-person basis, which kind of is the job of judge. It’s a really powerful job and it’s a really human job, a really humanist kind of job. As much as I don’t really have a whole lot of warm and fuzzy kind of like liberal feelings about process and democracy in the way that some people do—in the sense that those things alone are going to save us—I do really doing the job see the value of at the end point of power, that there is this individual determination. And the great ones are the ones that are fair and merciful and kind and caring and all of those things and righteous. I mean, what are the things you want in a judge? It’s a great character in a democratic society. To, at the last moment be like, “No, you’re not going to do this. No, police, you’re not going to do this. No, this is wrong.” It’s a great, really underappreciated feature of our system.

JN: One of the things you’ve done is to kind of amplify attention to this level of judgeship, and show a different way to run for it. You started your campaign, more or less, collecting signatures (to get on the ballot) outside of the courtrooms, or around outside the courthouse. As opposed to the way that so many judges do, which would be passing their papers among other lawyers and among the elites.

FB: Because that, yeah that was the whole reason I was doing it. It was really more of an organizing job, but we were organizing around electoral position, but an electoral position with a specific plan in mind. It’s like, we have this opportunity to take this bench and do this. And I think that talking about how people on the left or liberals or however you want to characterize it, over the years have used and misused the judiciary. That also appears in this story too because the strategy of liberals over the years has been high-stakes civil rights litigation in federal courts, and then getting these pronouncements that something is wrong, and then there’s no political follow through. And the federal courts are unwilling or unable—a little of both—to actually follow through and see that the problem is ultimately remedied. It was the problem of Brown v. Board of Education. It was the problem in all of these things. And so when I saw this bail lawsuit happening, I’m like, “Well it’s not enough.” Federal courts are great at disrupting systems and I saw this system was disrupted, but I knew that we had to build a political and an organizing… we had to build a base of power and follow through on the disruption.

JN: And you ran on a very clear platform—you spelled it out on your website, campaigning, you even got attention in The New York Times and other places—of really a lot of radical interventions. And what’s interesting is that you took the time to spell it out, to have the discourse to such an extent that you got some very mainstream endorsements, including that of the Houston Chronicle.

FB: I think that what I want to do is ultimately, and what the greater movement wants to do, is ultimately a really popular thing. When I was campaigning around the county and when I was telling them what I wanted to do, I don’t think I found a single person who when they heard it didn’t like it, because nobody likes a system of wealth-based detention. I mean, it’s crazy: The median income of Houston is somewhere just south of 200 percent of the federal poverty guidelines. So any type of system that requires a payment is going to result in the detention of a whole lot of people. And that’s not the way anyone wants to live.

JN: And so you proposed a lot of interventions that begin, at the least, to undo a wealth-based system of justice. Tell us about a few of the things that you spelled out on the campaign trail and that you have continued to talk about as a judge.

FB: The main thing that we did was that we changed the local rules. Every court has local rules. Every court everywhere has local rules. And those local rules are kind of subordinate to the state laws and then whatever federal, constitutional, whatever higher, broader laws that people think of as the laws, the implementation of those is typically in a court, in local rules. And you can imagine that those are a real mess of some really bad practices put into writing.

So what we did is we came in and change the local rules to say that basically everyone arrested for a misdemeanor except for these four narrow categories shall be released, period. There’s no risk assessment, there’s no fancy algorithm—the algorithms aren’t fancy by the way, they’re ridiculous—but yeah, we dispense with all of the things that even kind of more moderate reformers in other places have put into place to try to replace the system before it and just said, “No.” The law and the Constitution say that people charged are innocent, and so we want to treat them that way. We want them released right away. And so I’ve been going to these meetings trying to tell people for weeks, and it’s worked. That, no we really mean it, we really mean just turn them around. Get the information you need and turn it around.

And not just that, but we’re going back into state law and saying, “How do we reduce arrests?” Because I campaigned on reducing arrests. And one of them is that state law authorized people to get tickets, instead of being arrested for certain levels of certain categories. And so we’re working on implementing that. They always said it was a technology problem. And so I said, “Well, I’m really good at such things, so let’s start a committee.”

So we did, and the committee is basically been sitting in a room with high-ranking brass at different police agencies across the county telling me that they don’t know how to write a ticket. They can’t even fathom such a thing. “You want me to write the person’s number, name and number down, and they’re going to come answer for this? What are you talking about?” And to see it all in action has really been interesting. But it’s worked because ultimately we control the rules and people follow them. And the rules now are people are automatically released for almost everything. The only people that aren’t automatically released, are things like assault-of-a-family-member allegations and things like that. They are released, typically, because the law requires it, but they just have to see a judge first—for entry of temporary orders, protective orders, things like that—just to make sure that when they are released, that we have a peaceful status quo for everyone to be in while the person resolves their business with the court.

When we first came into the system, what you would imagine taking over a system of massive illegal detention. We had masses of people illegally detained. And so we had these consolidated what were called “jail dockets.” And when I first did those, I couldn’t believe what I saw. People in jail on $10,000 bail for marijuana possession. People being held in jail because they owed fines and fees and had a warrant out for their arrest. People who, I mean, just atrocious things. People were being held, I encountered someone who was in jail because she gave her maiden name to a police officer, or some married name, and since that didn’t match up with the police officer’s database, he was like, “Well, this is a failure to identify yourself.” And just cleaning all that up and dumping those cases and releasing those people, and telling people when they wanted to plead guilty to get out, which I did for many years. It was a battle.

But actually, you know John, there’s a story that I kind of set up earlier, that I think might tie in. And it’s this right, that we basically, remember I told you the holdover cells were full? But we were displaced because of the hurricane for two years. And we just moved back to the courthouse that has the holdover cells. We were in the courthouse without the holdover cells. But we just moved back in, and the first day that we went back, my holdover cell had three people in it. And I had seen them 50 people full for years. And I came home and cried because I had never seen in it in a way that made me understand so clearly that we had done it.

JN: When the Houston Chronicle—again, a relatively conservative newspaper, historically a pretty Republican paper—endorsed you for judge, one of the most interesting things they said was that, your courtroom could become a model for the state and even the nation. Do you embrace that concept that you may be in this one small court in Texas, perhaps spinning out ideas that could reshape criminal justice statewide and nationally?

FB: Yeah. I think that this is a hard place to be a socialist organizer down in Texas and we have the worst practices to face here in our criminal system, our criminal bureaucracy. And so in some way, it’s not surprising to me that the biggest change comes from here because we have the farthest to go and we have the hardest activists to do it.

JN: Your people have been battle-hardened, so to speak.

FB: Yeah. Iron sharpens iron.

JN: And you make the distinction that you are not a reformer, you’re an abolitionist, and you put that into the context of many struggles to abolish unjust practices and procedures. Talk about that a little bit.

FB: I was long ago inspired by great abolitionists minds. This is not a defensible system. It’s an outgrowth of chattel slavery. This is not something that should exist. And yet it’s not going to just disappear overnight probably. It’s going to take work to take the thing apart and to stop the practices. Being a judge, something I see is that, I can say all day long that, “This actually is a bad way to address this social problem and we should address root causes.” And yet people do expect the court to address the problem. Because that’s the way it’s worked. And so it’s kind of an unwinding process and that process of changing expectations.

I have a lending library in my chambers. Alex Vitale left me a couple copies of The End of Policing, and they were right there front and center for anyone that walks in, including police officers. And they’ll ask, “What’s this all about?” And I’ll be like, “Well, here’s what it’s all about: I think that we deploy police and prosecutors for social problems that they’re ill-equipped to handle. And I think that we should stop doing that. And what we’ll reach at the end of that process is something that will not at all resemble the system we have now. And it won’t be a prison system. It will be a far better society. So whatever we have now, it has to go.”

JN: Do you imagine that you might run for a higher level judgeship or like many of the people you cited earlier in our conversation, perhaps run for a nonjudicial job to kind of take this message up the political food chain?

FB: Being in these committee meetings, I certainly do kind of see the power and the value of something that I never really was interested in, which was going to similar meetings but in a legislative context or a different kind of policy making context. But the thing is, the reason I love my job is that it is really pinned down to humans. People down here that are really affected, and looking at them, telling them I care about them. Every day in my court is a really emotional kind of experience, and my 10 years before this I was a trial lawyer, which is a very emotional kind of human practice. And so I really, I’m reluctant to walk away from this level of work.

JN: It does mean a lot to tell people you care about them. I think that’s probably one of the most fundamental things that a good judge does. And also to show part of yourself. You mentioned just as we were starting this conversation that your dad was a rock and roll producer before he became a lawyer, with one of the really seminal psychedelic bands in American history, the 13th Floor Elevators. Is that a part of your growing up and your culture?

FB: It was, yeah, in the sense that we had people coming in and coming out of my life all the time. I grew up in a small law firm, my dad’s small law firm where he was just doing small car wrecks, splitting the money up, giving people some walking-around money. But also just having all these characters from his past drift in and out. I mean, there was a guy that would come crash on my couch, we called him Peyote Bob. And Peyote Bob would show up and crash on the couch. And I think that what I learned from the whole process and from my dad who I recently lost was, he really believed in people, and he really would always give somebody a chance. And he always extended a helping hand even when he had been hurt by someone. I mean, to a fault, really. He cared about other people and just put it into action every day. And that’s what I grew up with and I think that’s the part of my dad that I carry into this job.

JN: What was the, were there particular 13th Floor Elevators songs that your dad produced?

FB: You mean the big one was “You’re Going To Miss Me.” He’s on the record. He’s on the big one that’s the beginning of High Fidelity, which I guess is how most people know it, but many people know it not from that. Yeah. It’s a big kind of deal recorded here at Sugar Hill Studios in Houston.

JN: It’s really big rock and roll stuff, brother. Do you or do you still listen to that at all? What do you listen to?

FB: Yeah. From time to time I do. What do I listen to the most? I listened to, when I’m not at work, I’m trying to… I have a desk job now. And I’m so sedentary, so I listened to a lot of electronic music. And just try to pump up BPMs and move my body down the street with my dogs or on my bike or something, because sitting around on a bench all day is hazardous to my health.

JN: Totally yes. I’m liking a judge that listens to electronic music. What’s in your headphones right now?

FB: So I listened to this weekly progressive trance show called Group Therapy. And it’s also really cool, because it has kind of a humanist touch to it. Where they’re people, there’s a whole community around it. And the whole name of the show, I think talks about music as being important to feelings and moods and a way to connect with people. So I really do love that program.

JN: You haven’t been thinking about wiring the courtroom, have you?

FB: I have been actually working on improving the audio in the courtroom because there’s a microphone and people can’t hear. So I’m a hack audio engineer. My first job in high school was that I worked at a radio station here. Actually, right after deregulation, Nationwide Insurance owned some radio stations here and I was an engineer at a radio station that got bought three times in the year and a half that I worked there after Clinton deregulation. And eventually I hated one of the owners and quit.

JN: Judge Franklin Bynum, I appreciate you joining us here on Next Left, telling us a little about your experience running for a judgeship and now serving as a judge.

FB: Thanks, John. It’s nice to be here.

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