by Katharine Blake McFarland
Nowadays, fewer and fewer occasions require the traditional letter, sent through the postal service. This is especially true in the professional context, where time is always of the essence, or at least perceived to be. But during my second year of law school, I worked at the ACLU's National Prison Project, an organization that protects the constitutional rights of prisoners—men and women ill-positioned to defend their own rights and about whom society seems content to forget—and in addition to writing and editing motions and court communications, I also read hundreds of letters. Letters written by hand, with a pencil, on a piece of paper.
The letters I read were from men incarcerated in Mississippi prisons, clients from a case that had settled years earlier. The continuing effort was to ensure these facilities' were making the changes the Judge had ordered in the consent decree. NPP attorneys made trips to these facilities themselves, but in between trips, we relied on reports from clients on the inside. These reports, though entirely urgent, could be sent only by mail.
Without exception, the letters looked dirty and smelled unmistakably institutional. A mustiness mixed with old prison food (I have eaten prison food, so you will have to trust me). I was supposed to be skimming the letters for abuses to catalog on a spreadsheet, but I have never been good at skimming. Instead, I shut the door to my office and disappeared into the pencil-written paragraphs. I heard each man's voice; I saw his hand moving across the paper. Sometimes I looked him up based on his inmate number, to learn what he was in for. Rape, murder, burglary. I became so immersed in these letters that when someone knocked on my door or the phone rang, I would startle and shake myself back to reality. My reality, that is. Well-lit, clean and safe.
The letters told a different reality: sweltering cells rife with rats, mice, and fire ants; broken bones from run-ins with under-trained, over-worked guards, too quick to use force, pepper spray, and a host of racial epithets and vulgar sexual innuendo, even (especially) against inmates with extreme mental illness; reading materials unconstitutionally confiscated; broken plumbing (“ping-pong toilets,” as the inmates called them) and flooded cells; medications unprescribed or overprescribed, resulting in sickness and incapacitation. One man woke up with a snake in his cell. One day, I read a flurry of letters, all received on the same day, describing a prisoner screaming for help. The men in neighboring cells tried to get the guards' attention. They used metal cups to bang on the heavy doors but no one responded. They did not know if this inmate was still alive. Given the track record of these facilities, this was a legitimate question.
One night I caught a cab home from work and the cab driver, who was from Saudi Arabia, asked me what I did for a living. I told him about law school and NPP and told him about the kinds of violations the organization seeks to right. “In America?” He asked. “I didn't know that kind of stuff happened here.”
This “stuff” certainly happens in America, but it doesn't happen everywhere. Earlier this year, a delegation of American judges, prosecutors, defense attorneys, and corrections officials traveled to Germany and the Netherlands to learn about these countries' prisons and courts. They talked with judges, officials, and inmates and in October, their findings were released in a report. The project was funded by the Prison Law Office and managed by the Vera Institute of Justice.
Germany and the Netherlands incarcerate far fewer people for much less time than we do in the States. The incarceration rate in Germany is 79 per 100,000 residents and 82 per 100,000 residents in the Netherlands. In the U.S., it is 716 per 100,000. This discrepancy is explained, in part, by a difference in ideology: Germany and the Netherlands claim rehabilitation as the foundational goal for their criminal justice systems. Lest there be any confusion, this rationale is entirely utilitarian. Rehabilitating offenders, they found, decreases recidivism and makes for safer communities when offenders are released. Plenty of American leaders and policy makers have been saying this for decades, but somehow these European countries found a way to do what they know works. Meanwhile, the animating principles behind U.S. policies remain, in practice, retribution (make them pay) and incapacitation (lock them up). Although there are dedicated, smart, and tireless individuals working to turn the tides, for the most part “rehabilitation” is a nice word you hear sometimes, a financial and political afterthought.
Of course, there are many ways in which the United States differs from Germany and the Netherlands, beyond the respective justice systems. Alcoholics in Amsterdam are now being paid by the government—in beer—to clean the city's streets and parks (to be exact, 10 euros, half a pouch of rolling tobacco, and 5 cans of beer per day). The country's legalization of marijuana accounts for a major disparity when compared to the U.S., where so many have been incarcerated for nonviolent drug offenses, including marijuana possession. Cross-country comparisons are difficult. But the authors of the report and members of the delegation maintain these differences do not invalidate the usefulness of comparison.
For starters, the comparison suggests the possibility of an alternative reality. Dutch and German judges sentence fewer offenders to incarceration and make greater use of non-custodial penalties, such as fines, probation, and community programs. In Germany, only six percent of offenders are sentenced to prison (as compared to 70 percent of American offenders), and 75 percent of these sentences are for 12 months or less (while the average prison sentence in the U.S. is 3.5 years). Prosecutors aren't under the same pressure to rack up convictions and have broad discretion to divert offenders away from prosecution, and they do. When an offender is sentenced to jail or prison, the conditions of his confinement aren't meant to be punitive. The punishment for breaking the law is “separation from society” itself, not inhumane conditions once confined. For this reason, inmates wear their own clothes and prepare their own meals. The jails and prisons have windows and lights, because unsurprisingly these physical conditions are conducive to rehabilitation. Education is not an elective but a requirement for both prisoners and guards. Indeed, all guards are trained for two years in subjects like conflict management and constitutional law before taking their posts. And when Dutch and German offenders are released back into society, they haven't lost the right to vote, or the right to apply for benefits. They don't lose their drivers licenses, forfeit the opportunity to live in certain housing communities, or relinquish the dream being a nurse, a school teacher, a state employee.
The results of this rehabilitative approach are unmistakable: this past summer, the Dutch government announced its plan to close 19 prisons due to a declining crime rate and a resulting shortage of prisoners. Carceral institutions that work are self-obviating. In a perfect world, a justice system makes itself obsolete.
I have never read a headline like that in an American newspaper. Federal and state facilities in the U.S. are packed to the brims and in several cases overflowing. They also have a very wide revolving door—in California, over 63 percent of felons released were incarcerated again within 3 years. Seventy-five percent of these offenders went back within the first year, and young people were the most likely to re-offend, with a recidivism rate of more than 70 percent. America boasts the highest incarceration rate in the world, and this overreliance on incarceration and “get tough” policies has created an underclass of citizens—disproportionately people of color, disproportionately men of color—who are disenfranchised and set up to fail. “The genius of the current caste system,” writes Michelle Alexander in her book The New Jim Crow, “is that it appears voluntary. People choose to commit crimes, and that's why they are locked up or locked out…it appears the system can be avoided with good behavior.” But it is not that simple because the War on Drugs didn't target white teenagers smoking pot in their parents' garages. It targeted black teenagers smoking pot on street corners. “Get tough” policies promulgated by politicians and stakeholders didn't affect Goldman Sachs associates snorting coke in the bathroom. They affected black and brown people from the poorest neighborhoods of this country, some of whom were addicted to crack, some of whom are now serving life sentences for first-time drug offenses. If the numbers don't change, one in every three black boys born today can expect to serve time in prison. As James Kilgore, a Research Scholar at the University of Illinois' Center for African Studies, writes:
Politicians have played the “law and order” card, the fear of crime card, and the middle classes across the country have responded, often lending their backing to building more carceral institutions at the expense of education and other social services.
This notion of expense is important. To keep the incarceration machinery running, taxpayers shell out tens of billions of dollars each year. Ironically, the financial costs of the American prison system are a source of its resilience. Where there is cost, there is profit. Locking people up has become a business. And this business continues to help fuel one of the most confounding logical twists in our nation's political history: the argument that building more prisons is the solution to prison overcrowding. But the argument was made successfully and an industry emerged. Private prison companies, like CCA, GEO Group, and MTC offer governments ostensibly cheaper options for incarceration, but they do so by cutting costs on staff-training and programming. Though studies have shown these “cost-savings” to be dubious and to produce reprehensible results, these companies continue to make a profit. Lately, their proliferation has been inextricably tied to the criminalization of immigration.
Their business is also bolstered by the terms of their contracts, which seek to ensure profit regardless of fluctuations in the crime rate. They offer their business to governments in exchange for binding “inmate population guarantees,” a mechanism that translates roughly as, “we'll buy your prison and run it, if you promise it will stay full.” Sometimes these occupancy guarantees require 100 percent capacity. Sometimes they extend far into the future. Ohio signed a 20-year contract with CCA to run the Lake Erie Correctional Institute with a 90 percent occupancy guarantee. 20 years, 90 percent full. Recent audits of that facility have found high rates of violence and poor conditions.
America's singular, unimaginative response to people who break the law is untenable. But meaningful reform necessitates a careful detangling of the political and financial agendas that have rendered the system what it is. It will also require a clear and honest reckoning of the system, as it is—the grime-covered cell walls, the physical pain of untreated illness, the anguish of feeling discarded, the hopelessness upon release. Finally, reform will ask us to believe in the possibility of wildly different alternatives.
I still remember the names of the men whose letters I read and responded to at NPP, and I still think of them often—though undoubtedly not often enough. “Please look into this,” they wrote. “Please, can you help.” This year, NPP and the Southern Poverty Law Center brought another lawsuit against one of these same Mississippi facilities, EMCF, run by the private company MTC. The lawsuit's complaint describes EMCF as “an extremely dangerous facility operating in a perpetual state of crisis, where prisoners live in barbaric and horrific conditions and their basic human rights are violated daily.” To close, here is a longer excerpt, describing the death of a prisoner who is named, for the purposes of the complaint, Richard Roe:
69. Richard Roe has an established history of serious mental illness, self-injurious behavior, and seizure disorder. He also suffered from bowel incontinence and neurogenic bladder and, as a result, had to catheterize himself and wear adult diapers. In order to maintain his personal hygiene, he needed daily showers. Mr. Roe was locked down in solitary confinement and officers refused his request to shower. When Mr. Roe complained or flooded his cell in protest, officers sprayed him with mace. Officers would taunt him, as reflected in a sick call request he submitted on June 7, 2010, in which he wrote:
I need to see Dr. – bad[.] Officer — said I was sick and needed to go ahead and kill myself.
He received a written response stating:
You are scheduled. You may talk with your mental health counselor and he/she will refer you sooner if needed.
70. On July 29, 2010, Mr. Roe told mental health staff that he experienced depression, mood swings, and suicidal ideation and the psychologist noted signs of abnormal mental status. The psychologist's treatment plan consisted of only three words: “Encourage behavioral compliance.”
71. Later that day, according to other prisoners in his zone, an officer asked Mr. Roe to provide a urine sample, which, because of his bladder condition, Mr. Roe could not provide. Mr. Roe began banging on his door, smeared blood on the cell door window, threatened to commit suicide, and tied a rope around his neck. Officers sprayed excessive amounts of Mace in his cell. According to witnesses, officers waited approximately 20 minutes before pulling Mr. Roe out of his cell. By that time, he was non-responsive and cyanotic. He was taken, his hands and feet bound by zip-ties, to the hospital where he was pronounced dead.
72. For several days after Mr. Roe's death, medical staff continued to “document” in the daily segregation log that Mr. Roe appeared to be “in good health and mood.”