Mass Incarceration: The Shame of a Nation
Santonio D. Murff was awarded Third Place in Essay in the 2019 Prison Writing Contest.
Every year, hundreds of imprisoned people from around the country submit poetry, fiction, nonfiction, and dramatic works to PEN America’s Prison Writing Contest, one of the few outlets of free expression for the country’s incarcerated population. On September 18, PEN America will celebrate the winners of this year’s contest with a live reading at the Brooklyn Book Festival, BREAK OUT: A 2019 PEN America Prison Writing Awards Celebration.
Mass Incarceration: The Shame of a Nation
United States District Judge William Schwarzer has never been known as a light sentencer. So to see his usually stoic demeanor crumble into choked tears on the bench shocked a San Francisco courtroom to silence . . . (1)
Judge Lawrence Irving, a career crime fighter, had been face-to-face with criminals and the consequences of their actions for decades when he abruptly retired, stating: “If I remain on the bench, I have no choice but to follow the law. I just can’t, in good conscience, continue to do this.” (2)
Judge Jack Weinstein also publicly refused to participate further, describing “a sense of depression about much of the cruelty” that he’d been party to from his exalted position on the bench. (3)
Judge Stanley Marshall, always considered a fairly harsh sentencer, echoed similar sentiments to a reporter, admitting: “It’s killing me . . .” (4)
What could reduce a sitting judge to tears or force another into retirement? Leave one depressed while slowly spiritually killing another?
Mass Incarceration, the shame of our nation, is the callous and calculating culprit guilty on all fronts. The much bemoaned mandatory minimums, three strikes, and habitual laws have worked hand in hand with overzealous, ambitious, and sometimes unscrupulous prosecutors to explode our prison population over 30 years, from around 300,000 inmates in 1982 to a ridiculously embarrassing 2,300,000 in 2012.
Supreme Court Justice Anthony Kennedy best summed up the distraught judges’ misgivings at a 2003 American Bar Association’s annual gathering, when he stated:
“I can accept neither the necessity nor the wisdom of Federal mandatory minimum sentences. In all too many cases mandatory minimums are unjust!” (5)
Testimonies and protests from sitting, retired, and Supreme Justices across our mighty nation—those Honorable souls of wisdom and integrity who we’ve entrusted to relegate justice—have agreed with Supreme Court Justice Kennedy’s further condemnation of a foul and failed system “whose resources are misspent, punishments too severe, and sentences too loaded.” (6)
So why, then, are these draconian sentencing practices and laws of injustice still on the books? Why were they enacted to begin with? Most importantly, how are we going to repeal them, clear up this embarrassing blemish upon our national souls, and abolish this great shame that has left us guilty of putting more of our countrymen, women, and children in chains than any other civilized nation in the history of the world? (7)
As I attempt to stimulate an open and honest dialogue (in hopes of creating a movement that will encourage change through sensible sentencing practices, a more conscientious focus on care rather than cages, and rehabilitation instead of revenue), I will answer those questions and more. We will delve deep beneath cold facts and figures usually exercised by academics, in order to unearth the real motivations of the people succeeding behind those numbers. We will also meet some of the real people suffering behind those numbers, too.
We will explore the driving force behind the prison industrial complex and the why of it all. We will examine the necessary steps we must unite around and execute as a nation to fell this $80 billion behemoth that feeds upon the stolen potential and dashed dreams of U.S. citizens. This sinful corrupter that has sunk us so low that we are now investing in the failure of our young and forsaking our righteous creed of freedom and justice for finances and jobs.
The forefathers would be appalled, as should we all.
“Four score and seven years ago our forefathers set forth on this continent, a new nation, conceived in Liberty . . .” It is time for us to return to those founding principles, and distribute them equally to all. It is time for us, as patriots, to put aside all fears, differences, and grievances, and do what is best for our country. To first understand how and why we—the world’s lone super power—ended up with a prison population that dwarfs every other civilized country on the planet, we must look back to another dark, challenging period in our young nation’s history.
As we triumphed then over the twin tyrants of hypocrisy and bigotry, so too, shall we find our way to taste victory against the malevolent machinations that have divided and maligned us with mass incarceration, the shame of a nation.
The year was 1865. . . .
It was a long and bloody struggle, full of heroes and heroines of different hues and heroics. They risked it all, some even making the ultimate sacrifice to dine on the sweet fruit of freedom and hear the laughter of liberty on the lips of all from sea to shining sea. And then, with the mighty stroke of a presidential pen, the 13th Amendment to the U.S. Constitution freed some four million slaves.
In the blink of an eye, a nation within a nation was created. Having been forbidden by law to learn how to read and write under penalty of death, over 90 percent of the freshly liberated slaves were illiterate. Having never known the liberties and responsibilities of freedom, they were mostly at a loss for what to do with themselves. And the country was at a loss for what to do with them.
The U.S. Constitution and the Bill of Rights were written by Caucasian men aged 21 years or older for Caucasian men aged 21 or older. The United States of America was founded by Caucasian men who intended for Caucasian men to forever govern and rule their new nation. Honest Abe Lincoln best defined the mindstate of the times when he stated: “Someone must rule. And I, like any man, am for the White man being the ruler.”
So, following the civil war, the question of the day was, “What institutions, laws, or customs would be necessary to maintain control now that slavery was gone?”
Legal scholar Reva Siegal dubbed it “preservation through transformation.” A process through which white privilege (and rule) is maintained through rules (laws) and rhetoric change. Black Codes, Grandfather Clauses, poll taxes, vagrancy laws, convict leasing, Jim Crow—these were are all forms of social controls created by politicians, implemented by the courts, and bolstered and enforced by the law (police officers) for the first century after emancipation in order to keep the newly freed slaves disenfranchised, marginalized, and enslaved into a state of second-class citizenship at best; and a new, modernized for world eyes form of slavery at worst. (8)
The struggle continued . . .
The year was 1965 . . .
Only 100 years later, educated and elevated with everything but a true knowledge of self, nationality, and sovereignty, the new Black nation of ex-slaves had caught its stride. At a loss no longer, Black progress and pride was on the rise. All across the land, they were refusing to be denied the inalienable rights to life, liberty, and the pursuit of happiness. They were demanding equality and a say-so at the polls.
The sleeping giant had awakened and was proving that they were willing to die so their children could enjoy all the liberties, rights, equalities, and privileges that every other American citizen enjoyed. By the hundreds, the thousands, and the millions they came. Different characters, different faiths, different schools of thought—but they all came demanding one thing: Change!
The Black Muslims of The Nation of Islam were manifesting highly educated, faithful, and fearless entrepreneurs who were boldly calling the wilderness of North America out for her devilish treatment of the so-called negroes . . .
The Black Panther Party for Self Defense—the vanguard of the Black militant groups like The Revolutionary Action Movement, African Liberation Day Movement, and The United Slaves (U.S.)—were marching with assault rifles, shotguns, and a firm understanding of the U.S. Constitution and State Penal Codes, demanding equal justice under the law. J. Edgar Hoover, then head of the FBI, called them the greatest threat to national security.
A Black King came with a righteous dream. His fiery, poetic prose moved millions forward with him—Black, White, and Other—to prick the conscience of a nation still struggling to find its way. Their nonviolent protests and prayers were met with such savage barbarics that the true patriots, true souls of righteousness came together, once again, to inspire the mighty stroke of that presidential pen, and do what was right, and live up to the high principles espoused by the forefathers in two of the greatest documents ever written: The U.S. Constitution and The Bill of Rights.
Again, it had been a long, bloody struggle full of heroes and heroines of different hues and heroics, but change did come in the form of granted privileges as The Civil Rights Bill of 1964 was signed into law. Jim Crow, like slavery before it, had been dealt a death blow. The question of yesterday was again revisited with a vengeance: What new institutions, rules, and customs would be necessary to maintain control now that Jim Crow was gone?
Are the patterns becoming clear now? And the why of it all?
Allow me to make it even clearer. Prisons became the new institutions. Mandatory minimums, three strikes, and habitual laws became the new rules. Bigotry and hypocrisy remained the customs. “Criminal” became the new racially coded rhetoric. And, yes, mass incarceration became the new tool . . .
And now that we know the why of it all, let’s get to the who!
J. Edgar Hoover launched COINTELPRO, a top secret Counterintelligence Program, which was ultra-successful, through nefarious and illegal means, in its objective of neutralizing government dissidents and organizations opposed to the status quo of white supremacy. Malcolm X, the face and voice of the Black Muslims, was assassinated. Martin Luther King, the face and voice of the Christians and The Civil Rights movement, was assassinated. The Black Panthers and other militants were infiltrated and decimated.
The civil unrest and rebellions of the 1960s and ’70s were over. The majority of Black Leaders, the nurturers and guiders of the youth, were dead or in prison. The majority of the remainders settled down with their pacifiers of civil rights and integration and went back to sleep. The ever vigilant and conspiring ruling elite got busy with their plans for forming a new system of social control.
“You have to face the fact that the whole problem is really the Blacks. The key is to devise a system that recognizes this while not appearing to,” now disgraced President Richard Nixon emphasized to H.R. Haldeman, one of his key advisers. (9)
The merits and morality of the Blacks’ struggle, and the reasonableness of their demands, were irrelevant to the Commander in Chief, as it had always been to the vast majority of those who sat in that seat before him. Especially in the southern states, blind eyes were turned to the inequalities and injustices that came as a birthright to Black Americans. A century later the “someone must rule” mentality was still prevalent among Caucasian males, and there could not be white rule without Black control.
This is the demented school of thought that we must do away with in order to dismantle mass incarceration and peacefully coexist as a prosperous nation. The great fears of amalgamation of the races, the great pains perpetuated by slavery and Jim Crow, the great hatred harbored after the civil war—we must come together to communicate and heal and ensure that our young nation will no longer have to transverse these dark roads.
I know race relations is an uncomfortable subject matter for most, and is highly emotional for others, but we had to take that short sojourn so that you can understand that our criminal justice system is not in need of mere reforms, because it’s not broken. This new criminal injustice system is doing exactly what it was designed to do; exactly what Jim Crow and slavery did before it. Mass incarceration, the new tool of control, is permanently locking a huge percentage of Blacks out of mainstream society; not only physically for a time, but also economically and politically, even after they are released from the new institutions and prisons.
And, yes, having been moved from the auction blocks to the stock markets, huge profits are still being made for the few at the expense of the multitudes.
As Michelle Alexander explains in The New Jim Crow, “The emergence of each new system of control may seem sudden, but history shows that the seeds are planted long before each new institution begins to grow.” Richard Nixon only planted the seeds, testing the soils of bigotry for President Ronald Reagan to declare our current war on drugs, which many credibly argue is no more than a war on Blacks, with a nominal amount of room for poor whites to also be sucked up by the complex prison industry.
The success of a multitude of Blacks in this same period in no way negates the argument, because, as sociologist Loic Wacquet puts it, “With each reincarnation of the controlling system, it is less total, less capable of encompassing and controlling an entire race.” (10)
Yes, the 13th Amendment did abolish slavery, but it left an often ignored loophole: Slavery to this very day is perfectly legal and appropriate for those convicted of a crime. It is that exception which was seized upon by the evil minds who redesigned what was touted as the best legal system in the world, rendering it the most embarrassing of any civilized, democratic nation on the planet.
There should not be any confusion here. The conspiracy is clear and evident for those with eyes to see; but so, too, are the smooth calculations, and numbers do not lie. Some numbers, also, are too shameful to dismiss as chance. Let us take a look at them with open eyes and hearts that are unafraid to embrace the ugly truths about ourselves and our country. Only then can we right our footing once again, and keep stepping together through the darkness, fears, and greed into the light of liberation.
Only then can we do what is right as a nation and dismantle mass incarceration.
Before we can crunch these numbers, though, I will ask you to rid yourself of any lofty notions that our prison system’s primary goals are to keep society safe and rehabilitate criminals. As the numbers will reflect, our criminal justice system of today is primarily about control and cash, but that doesn’t have to be tomorrow’s truth . . .
The vast majority of our obscene prison population consists of non-violent drug offenders. Up until 1982, when Ronald Reagan launched his war on drugs, drug usage had been effectively treated as a public health problem and was actually on the DECLINE! (11) Contrary to what most people think, the leap of our prison population from approximately 300,000 prisoners to 2.3 million had nothing to do with a spike in crime. We did not all of a sudden lose our minds and become a nation of raving criminals.
Drastic changes in our laws are responsible, particularly the addition of the aforementioned mandatory minimums, which increased the length of prison sentences to such a degree that judges literally cried, protested, and retired! One study suggests that the entire increase in the prison population is due to sentencing policy changes. (12)
For example, marijuana, as reported in Ryan King and Marc Mauer’s The War on Marijuana: The Transformation of the War on Drugs in the 1990s, is a relatively harmless drug. A 1988 surgeon general’s report lists tobacco and alcohol as more dangerous. Yet, marijuana possession accounted for nearly 80 percent of the growth in drug arrests in the 1990s.
An even more embarrassing example can be found by looking at the extraordinary increase in prison admissions due to parole and probation violations. In 1980, only one percent of prison admissions were due to violations of parole. By 2000, a whopping 35 percent of those sent to prison were parole violators. The tool worked so well that there were almost as many people returned to prison for parole violations in 2000 as were admitted in 1980 for each and every reason! (13)
The United States now has the highest rate of incarceration in the world, even surpassing those of highly repressive regimes, like Russia, China, and Iran. No other country incarcerates as many of its racial or ethnic minorities. The United States imprisons a larger percentage of its Black population than South Africa did at the height of apartheid. For all our criticisms of former socialist countries’ “labor camps,” America has more prisoners working for her than any other nation.
The fact that we need to focus on as Americans is that prisons are not effective in deterring crime nor in reformation of criminals. As John F. Pfaff, author of Locked In: The True Cause of Mass Incarceration and How to Achieve Real Reform, points out on page 10, locking up more people has proven ineffective in dealing with rising crime rates.
For instance, on page 12 of his book, he not only iterates how reducing the state prison population by 4 percent resulted in a staggering 10 percent decrease in crime in Pennsylvania, but studies showed that crime fell in almost every state that scaled back incarceration.
We must move beyond the unfounded fears and believe in our fellow citizens enough to tackle the policy pushers and profiteers who are succeeding at the cost of this suffering. As Pfaff covers on page 185, state prisons have become a source of revenue for the very same states who decide the policies that are directly benefiting them financially. A grotesque conflict of interest that guarantees any reforms even will be hard fought. Then we have the unions, the correctional officers, the scores of state and government officials, and all the material and service providers who will scramble to form a united front in defense of their jobs and portions of that $80 billion burden that is largely carried by hard working taxpayers.
With so many people now benefiting, if not dependent upon, mass incarceration, it may be totally unfathomable to some that as recent as the mid-1970s, some of the most well-respected criminologists were predicting a fading away of prisons. In 1973, The National Advisory Commission on Criminal Justice Standards and Goals recommended that no new institutions for adults should be built. Existing ones for juveniles should be closed. (18)
How, then, does our prison population quintuple with an expansion unprecedented in human history? Preservation through transformation, bigotry, hypocrisy, and the loophole—all working together to maintain white control at maximum profit to the ruling elite. This disturbing reality is for reasons that have nothing to do with crime trends; our judicial system has become a highly profitable (to some) machine of social control that must be dismantled, abolished like the great evils before it.
The good news is, we’re up for the challenge. We’ve been here before. Our road to redemption has been lit by other enlightened nations who enacted prison reforms with inspiring results. Results that in some cases cut their prison population almost in half—and crime only declined. But change must first begin within us!
Weldon Angelos was only 24 years old. A record producer in possession of a weapon that he never used or threatened anyone with, and yet a Federal Judge was obligated to sentence him to a 55-year mandatory minimum sentence for 3 marijuana sales!
“The Court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational,” the sentencing judge protested, but had to follow the law. It was cases like this that sent Judge Irving into retirement, and led Judge Weinstein to publicly refuse to take any more drug cases. (14)
A Washington, D.C,. mother was sentenced to five years in prison after being convicted of “possession of crack” found by police in a locked box that her son had hidden in her attic. It was after regretfully issuing this mandatory sentence that Judge Marshall told a reporter that “it’s killing me that I’m sending so many low level offenders away for all this time.” (15)
And it was the 10-year sentence, without parole, that Judge Schwarzer was forced to slap a first time offender (an Oakland longshoreman who made the lapse in judgement of giving a drug dealer a ride to a meeting with an undercover agent) that broke him down on the bench. (16)
Leandro Andrade was sentenced to 50 years without parole for stealing children’s videotapes from a Kmart. Another man was also sentenced under the controversial three strikes law: 25 years to life for stealing three golf clubs from a pro shop. The distinguished Supreme Court Justice David H. Souter hinted that the conviction was cruel and unusual with this quip: “If Andrade’s sentence is not grossly disproportionate, the principle has no meaning.” (17)
I need not belabor these miscarriages of justices; judges across the land already have. There’s not a man nor woman beneath the sun who can’t review these cases, look at these numbers, or hear these judges’ cries and protests, and understand that something has gone drastically wrong with our judicial system. Not a single one of these people left so much as a scratch on another human being, but each effectively had their lives destroyed by appallingly long, undeserved sentences. These are real people, real cases, and real judges. These are the vast majority of nonviolent citizens who make up the fodder of mass incarceration.
Professor Pfaff, on page seven of his book, Locked-In, states that the real political power behind prison growth are the public officials who benefit from large prisons, the politicians in districts with prisons, along with prison guards who staff them, and the public sector unions who represent them. We must unite and stand together with one voice and one vote to tell them, “NO MORE!”
With even a quarter of the $80 billion prisons drain from the economy, new progressive institutions and jobs can easily be created, state by state. Rehabilitation programs outside of prison have been proven to do a much better job of reducing crime. People must build, monitor, and staff these facilities, which will equal more jobs and crime reduction. And, as Pfaff shows on page 88, Pennsylvania closed 2 prisons in 2013 and laid off only 3 guards. Due to drastic prison reforms, the prison population in New York fell by 25 percent in 5 years, but they haven’t closed any prisons.
We are Americans, the brave and resilient, we can and will find a way!
Between 1960-1990 official crime rates in Finland, Germany, and the United States were nearly identical. Yet, the U.S. incarceration rate quadrupled and kept rising. The German rate was stable. The Finnish rate fell by a staggering 60 percent! You should not need to ask why there was such a disparity between the United States and Finland at this point. The Finnish don’t have 60 million ex-slaves, a deplorable “someone must rule” mindset, and they never created any new systems, tools, or institutions of control.
They did what we must do, what’s best for our country as a whole. They maximized what had worked so effectively for us and poured more people and resources into treating drug usage as a public health problem. They decriminalized drugs and taxed its sales; they poured more money into education, rehabilitation, counselling, and job training and job creation. They, in a patriotic essence, chose to invest in the success rather than the failure of their young citizens and country—and all have prospered with crime being at an all-time low.
Our infant nation has suffered through enough long, bloody struggles. The ruling elite’s time is up! The prisons and profiteers’ time is up! The macho-man’s mind state of “someone must rule” is up! Hypocrisy, bigotry, misogyny, racism, sexism—and yes, mass incarceration’s time is up! Dismantling and doing away with this, our latest form of “preservation through transformation” does not start with revolution or riots, movements nor petitions. The very first step we must take is acknowledging that this newest method of social control—the maintaining of a perpetual under caste and the status quo since 1776—is wrong.
It does not take racial hatred to maintain such diabolical evils as slavery, Jim Crow, and mass incarceration. All it takes is racial indifference by the majority. The second step in shutting down and shedding the shame, therefore, is truly embracing the call of Dr. Martin Luther King to be lovestruck, to care deeply about one another.
Let that love and care be manifested in compassion for each and every individual, including the poor and vulnerable, regardless of race, religion, and sexual orientation.
That love, care, and compassion will demand action! It will demand that we motivate, through our C-4 (Concerned Citizens Contributing to Change) Movement, petitions, protests, votes, that presidential pen once more to completely dismantle mass incarceration. Only then can we begin healing and rebuilding the families and communities that it has destroyed for nearly four decades.
The Finnish have provided a blueprint. Let’s live up to our creed and highest principles. Let’s prove ourselves to be the home of the brave, as we return to the land of the free, daring to strive to top the Finnish results by reducing our prison population by 70 percent over the next 10 years! Let’s follow them into that lofty dream of a minimal-crime society where goodwill is the ruler and the criminal justice system is solely concerned with keeping society safe and rehabilitating criminals.
If we can conceive it, we can achieve it: for we are Americans!
NOTES TO PAGES 1-14
(1) & (16)—Ten Years for Two Ounces by Stuart Taylor Jr., American Lawyers, March 1990, 65-66.
(2)—”Criticizing Sentencing Rules, U.S. Judge Resigns,” Special to the New York Times, September 30, 1990.
(3) & (14)—”Two Federal Judges, in Protest, Refuse to Accept Drug Cases” by Joseph Treaster, New York Times, April 17, 1993.
(4) & (15)—”Revolt to Sentencing is Gaining Momentum” by Chris Carmody, National Law Journal, May 17, 1993, 10.
(5) & (6)—Downsizing Prisons: How to Reduce Crime and Mass Incarceration by Michael Jacobson, (New York: NYU Press, 2005), 215.
(7)—PEW Center on the States, “One in 100: Behind Bars in America 2008,” (Washington, DC: PEW Charitable Trusts, 2008), 5.
(8)—Why Equal Protection No Longer Protects: The Evolving Forms of Status Enforcing Action by Reva Siegal, Stanford Law Review, 49, 1997.
(9)—The Haldeman Diaries by H.R. Haldeman (New York: G.P. Putnam’s Sons, 1994), 53.
(10)—”America’s New Peculiar Institutions: On Prison as Surrogate Ghetto” by Loic Wacquant, Theoretical Criminology 4, no.3 (2000): 380.
(11)—Thinking About Crime: Sense and Sensibility in American Penal Culture by Michael Tonry, (New York: Oxford University Press, 2004), 14.
(12)—See Mauer, Race to Incarcerate, 33, 36-38 citing Warren Young and Mark Brown.
(13) & (18)—The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander
(17)—Lockyer v. Andrade, 538 U.S. 63 (2003).