We . . . turned our courts into giant unthinking machines for sweeping our problem citizens under a rug. . . . [I]nstead of dealing with problems like poverty, drug abuse and mental illness, we increasingly just removed them all from view by putting them in jail.”
~ Matt Taibbi, “Cruel and Unusual Punishment,” Rolling Stone
Criminal punishment was at one time often very public: we whipped or executed outlaws before throngs of onlookers, or displayed them in the stocks in the public square. Now we spirit the condemned away to hidden prison cells, forgotten by the rest of us, a modern-day form of ostracism. The punishment of convicts occurs behind closed doors, much of it in secret.
Adding to the cloak of invisibility is the popular media, which saturates us with fictionalized and misleading versions of what prison and the people inside it must be like. The new show Orange Is the New Black, about a yuppie serving a prison sentence in upstate New York, portrays prison conditions as pretty bad – unpalatable cafeteria food, insufficient hot water, noisy bunkmates, sexual harassment – but (with some exceptions) kind of in the way that seventh grade is pretty bad for the new kid in school with bad acne and an out-of-style wardrobe. There’s a light humor behind the horribleness of the experience, which – like seventh grade – the show depicts as a “temporary” plight: the protagonist has a sentence of 15 months, another main character has a 34-month sentence, and a guard mentions a crack dealer sentenced to 9 months and – as an example of a truly extreme sentence – another inmate sentenced to 4 years. There’s a nice enough looking library and contact visits with family members and a functioning hair salon. An inmate with sufficient clout can barge in on a guard sitting on the crapper and demand new kitchen equipment from him with impunity. This skew is understandable — the show is supposed to entertain us, not traumatize us.
Films like The Lincoln Lawyer and TV shows like Law and Order depict prisoners themselves as deranged, irredeemable, or just plain hardened. They’re tough guys (and gals) that really aren’t too fazed by the whole prison experience – or at least not worthy of sympathy if they are.
The Reality (or at Least One Tiny Sliver of It)
Last month I made my latest prison visit. After a two-hour drive under California’s cloudless sky, my firm’s partner, a summer fellow, and I pulled into the visitors’ parking lot at X___ State Prison, the fourth correctional facility I’ve visited in this state. We had come to meet with two clients, each serving a life sentence under California’s three-strikes law, and each appealing their sentence under Proposition 36. The third strike for each was heartbreakingly trivial.
(Until the passage of Proposition 36 last November, California was the only state that gave out three-strikes life sentences for nonviolent offenders. In California, convicts with prior criminal records have been sentenced to life in prison for stealing a $2.50 pair of socks, a slice of pizza, a pair of baby socks, or five children’s videotapes from Kmart. The typical third-striker in a California prison is homeless, mentally ill, and, of course, a person of color.)
In a tiny cinderblock visiting room, we met with the first of our young clients. He talked animatedly about what he would do once he got out of prison: care for his daughter, raise horses on his uncle’s ranch. He knew everything there was to know about horses.
“The city is not for me,” he said, and indeed it had not done him very many favors. Born to a drug-addicted absentee mom, he had spent his youth caring for his younger siblings and disabled grandparents, doing odd jobs wherever he could get them. He fell in with the wrong crowd as a teenager, got high one night, and got into trouble.
He showed us the novel he had just written in prison. “Gotta keep busy,” he said. He wrote it in one month. He had already found a publisher.
A large part of these meetings is about managing expectations. Though Proposition 36 prohibits imposing a life sentence for someone who has not committed a “serious” offense, those already serving such life sentences have an uphill battle in appealing their sentence.
Another part of these meetings is balancing the need to temper expectations against the need to keep the client motivated to stay on good behavior, to maximize their chances of success. It can be a tricky balance.
“I have a good feeling about this appeal,” he told us at the end of our meeting. “That’s what’s keeping me going.”
Our second client was only four years older than the first, though he seemed much more. Otto (we’ll call him) was a tall but frail-looking man, his spine curved under the weight of an invisible burden. He wore a goatee and glasses with small rimless lenses that magnified his large gentle eyes. He looked child-like and scholarly at the same time; in a way he was both, and neither.
His background, like our first client’s, read like that of so many others in his shoes: born in poverty to a drug-addicted mother and a murdered father, he became enamored as a youth of the seemingly glamorous lives of the criminals around him and was sentenced first to juvenile detention and then prison before he was 20. Prison was a shock to his system: he witnessed routine guard-on-inmate and inmate-on-inmate brutality, including the murder of close friends, and developed PTSD. He received a life sentence for fleeing the wrong way down the highway after a cop pulled him over for speeding (to get to his hospitalized pregnant wife) and triggered his PTSD by pulling a gun on him.
As he shuffled into the visiting cell, Otto’s left hand clutched a clear plastic garbage bag, which he set beside him on the ground as he took his seat. The bag contained a thick stack of papers held loosely together by a rubber band, and a paperback book.
As my partner introduced herself, he looked up slightly smilingly at her with his wide, patient eyes. “We’ll be working closely with your trial lawyer on your appeal, so you have a great team working for you.”
“I really appreciate that,” he said with a humble nod of his head. He was soft-spoken and gracious.
“It’s important that you understand that this is an appeal, though, which makes your chances of success very slim.”
He nodded deferentially again and said, “I know.”
“Thank you for sending all those documents,” she went on. “I wouldn’t have known all that about you from the record the trial court sent me of you – the facts around your conviction, your background, the psych report, your record of rehabilitation. We’re going to augment your record with all this stuff – it shows what a great candidate you are for this remedy,” she said.
The documentation on Otto – probation reports, reference letters, and the like – described a somewhat remarkable record of rehabilitation. A psychologist running one of the prison programs described him as one of the inmates most respected by his peers – a quiet man others heeded and emulated, as he steadily tread the path of self-improvement. A white supremacist who had previously refused to even speak to a black man had asked Otto for a hug during one of the program sessions.
“Thank you,” Otto replied. He broke out in a wide grin, almost in spite of himself, like a schoolboy receiving his first accolades from a teacher.
“Do you have more for me there?” my partner asked, pointing to his bag. He bent down and gingerly pulled the stack of paper from his trash bag. He set it on the table and started turning over the pages. “This is the certificate from the Life Skills program I did . . . and the Anger Management program . . . .” He carefully set each sheet aside as he pulled it from the top of the thick pile.
“A___ will talk to you about the rehabilitation stuff in a minute,” my partner said. “First, I’d like to go over a bit what happened at your trial.”
Otto poked through the stack of papers again. “The DA said it was an accident. He said they weren’t charging me with having done it on purpose. I can’t find the transcript. I’ve been doing research to try to find it, but I can’t find it.”
“I want you to understand, this appeal will not be a fast process,” my partner explained.
“That’s ok.” He smiled. “I’ve been here 11 years. I can wait a little more.”
He wanted to know if he would have to appear in court.
“It would be better if you could. Will that be a problem for you?”
“Well, last time I made an appearance, they had to hold me in transitional housing for 59 days. That was hard. They were transporting me quite long distances. I had a pretty good cellmate before I left. I was comfortable. But when I got back I had a different cellmate. They put me in a different unit. Also, they were supposed to pack up my things when I left, but they didn’t, so when I got back I didn’t get my belongings back.”
After all of this, the judge had taken all of two minutes to deny Otto’s appeal. Otto had not even been given the chance to speak.
“Oh, well, maybe we’ll see if we can do it without you having to appear.”
“Oh no, if you think it will help at all, I’ll go,” he said, his wide lips pulling apart into another humble smile.
The next main task for the visit was to make sure Otto was doing everything he could on his end to maximize his chances: staying out of trouble and taking active steps to demonstrate his rehabilitation. “Have you signed up for any of the programs offered here?,” the summer fellow asked.
“I’m taking GED classes. I already have a GED, but I want to work on my math, so I’m taking the classes again. I have a really hard time with the math,” he smiled again. “It’s good. The teacher really works with us.”
“Great. What about any of these other programs?” The fellow brought out the list we had of prison programs. “Drug programs, job training programs . . . .”
“Oh there’s a long waiting list for all of those. I put my name on the list, but they don’t even let people with life sentences take them. Lifers aren’t even eligible.” (“So if you have a life sentence you’re as good as dead?,” my partner asked me later.)
“Have you been staying out of trouble? Any disciplinary issues?”
“Oh no,” he stressed. “I’m very careful about that.” He was, in fact, a model inmate.
“Any drug use?”
He later mentioned that he had been caught once with marijuana, which he had been using for the back pain caused by his scoliosis.
“So when I asked you before about drugs, you didn’t consider that a drug?”
“Oh, no, I guess not. It was the only way I could sleep at night. I couldn’t use Ibuprofen because the doctors said it was destroying my stomach lining. But when they found me with marijuana, they put me in the hole for months. I haven’t used it since then!,” he said wryly. “I’d rather live with the pain.”
He writes poems in his spare time. “I want to tell young people not to end up here. I want to tell them what it’s really like.” He pulled the paperback from his trash bag. “This woman, she wrote a book for young people, about prison. She put one of my poems in the book.” He showed us the page. His eyes shone with pride.
On his left ring finger he wore a band for a fiancée who waited for him on the outside. He also had a daughter. During our entire interview, that ring stabbed at my heart – that ring and the patient, earnest look in his eyes.
When it was time for us to go, he stood up, shook our hands, thanked us, and gathered up his trash bag of crinkled papers. Then he turned away and stood stooped before the guard, his bag hanging from his hand, turning himself over to be escorted back to his cell.
“Thank you for coming to see me,” he wrote following our visit. “It is truly rare that lawyers come and see inmates. Second, thank you for taking my case.”