prosecutorial discretion – Frank Brown Cloud

I’ve been teaching poetry in the local jail for over a year. The guys are great students, and I love working with them… but there are differences between these classes and my previous teaching experiences. Not just the orange attire or the chance that somebody down the hall will be rhythmically kicking a cell door all hour.

When I was teaching wealthy pre-meds physics & organic chemistry at Northwestern & Stanford, none of my students died. Nobody’s boyfriend or girlfriend was murdered midway through the semester. Nobody was sitting in class with someone who had ruined his or her life by becoming a police informant. Sometimes people got teary eyed, but only over grades.

Whereas… well, when we were discussing Norman Dubie’s “Safe Passage” last December – a beautiful poem about riding in the snowplow with his grandfather the night before the old man died – we wound up talking about our families. A forty-year-old man wept: he had thought that this year, for the first time in years, he would get to spend Christmas with his kids … but, even after they let you out, they take away your license … and make you show for blow-and-go some fifteen miles away, every single day … and charge you for the classes, but those classes mean you have no way to schedule regular work hours … so they put you on warrant when you can’t paid … and then, if you make one tiny mistake …

Christmas was in two days. He’d spend another month inside.

The accumulated trauma that these guys shoulder from their past lives is heartbreaking. One of the best lesson plans my co-teacher and I have come up with uses several poems from Ai to prepare for writing our own persona poems. A former student – now released, & still sober after two months – says he still feels changed by the experience of writing in someone else’s voice. In that space he was made to feel so small, but taking a few minutes to ponder the world from another perspective let him escape. And it gave him a new view of the consequences of his own choices.

But a lot of Ai’s poetry is very difficult. She writes from the perspectives of murderers and rapists. We’ve discussed her poem “Child Beater” with several groups of men, and at least a third of the guys, every time, shared harrowing stories of their own.

On a good day, these men have long histories of suffering weighing them down.

And on a bad day? My co-teacher and I might show up with a stack of poems, start teaching class, and, mid-way through, learn that another of our students’ family members has just died. Over the course of a year, at least two had wives die of overdose, another’s partner was murdered … and, in that case, one of the killers was placed overnight in a cell adjacent to his own …

And, half an hour after my second class there ended, one of my students died.

The men do great work, both interpreting poems and writing their own, but, just think for a moment: what could they accomplish if they weren’t oppressed by so much misery? Compared to my experience teaching at wealthy universities, the emotional toll is excruciating. And I am just a tourist! After every class, I get to leave. A guard smiles and opens the door for me. I walk away.

This is their life.

And it’s my fault. All citizens of this country – all people who benefit from the long history of violence that has made this nation so wealthy – bear the blame. As beneficiaries, the suffering caused by mass incarceration is our responsibility.

So, the guy who died? He was just a kid. Nineteen years old. And he’d gone over a year without medication for his highly-treatable genetic condition. I’ve written previously about the unfair circumstances he had been born into: suffice it to say that his family was very poor. He’d been in jail awaiting trial since sixteen – he was being tried as an adult for “armed robbery” after an attempted burglary with a BB gun – and then, when he turned eighteen – please ignore the irony of this age constituting legal adulthood – the state said he had to pay for his own medication. With beta blockers, people with his genetic condition have a normal life expectancy. Beta blockers cost about $15 per month.

No, a dude whose family is so poor that he attempted robbery with a BB gun can not afford $15 per month. Sitting in jail, it’s not like he could help pay.

A few weeks after his death, I remarked to one of the other guys that he probably wouldn’t have been charged as an adult if he’d been a white kid. I told two anecdotes from the local high school: a student with psychiatric trouble amassed weapons in his locker and planned a date to do something violent. Another student participated in a food fight during the last week of school. The former was welcomed back; the latter was told that he’d be arrested if he returned to school grounds. And he hadn’t taken all his finals yet! If all his teachers had known about this disciplinary ruling in time, he wouldn’t have received a degree.

The first student was white; the latter black.

There’s no universal standard. Maybe there can’t be – we are all “beautiful unique snowflakes,” and so every case will be slightly different. But unfairness blooms when so much is left up to individual discretion. Black students are punished excessively throughout our country. Black children as young as 4 or 5 are considered disproportionately threatening and are treated unfairly.

Prosecutors in the criminal justice system have even more power. There’s no oversight and often no documentation for their decisions. Charges can be upgraded or downgraded on a whim. A white kid might’ve been sent to reform school for his “youthful indiscretions”; this dude sat in jail from age 16 until his death.

“Yeah, but _____ always said, ‘I’m not black. I’m mid-skinned.”

(You can also listen to a podcast about his unfair treatmeant and premature death here.)

This spring, I said to one of the guys whose trial date was coming up, “I feel like, if I’d done the exact same thing as you…” I shook my head. There was no reason to go on. “But black guys get the hammer.”

He disagreed. Not with the idea that black people are punished disproportionately in this country, just that it would be his burden, too.

“Well, but I’m not black,” he said. “My family is from all over the place … I’m Native American, and Caribbean, and …” He listed a long pedigree. Indeed, his ancestors had come from around the globe: Europe, India, Africa, the Americas …

“My apologies,” I said. “And, I guess … so, my wife teaches at the high school in town, and one of her kids, his family is Polynesian … but at school everybody assumes he’s black. So he mostly identifies with Black culture here.”

“I get that,” the guy said to me, nodding. He’s a really kind and thoughtful dude. “Cause, yeah, some of it is just who other people think you are.”

His words stuck with me: who other people think you are.

We were sure he could walk. Probation, rehab, that kind of thing. We’d seen other people with equivalent bookings go free.

We were wrong. Dramatically so: he was sentenced to seven years. His family was devastated. You don’t even want to know the extent.

Soon after, I was looking up his prison address to send him a letter and a few books of poetry. On the page of “Offender Data” provided by the Indiana Department of Correction, it read,

Race: Black.

Feeling safe is great.

Ask anybody with PTSD – feeling unsafe is the pits. A perception of danger elevates cortisol, wears the body out, and makes it hard to sleep, hard to think, hard to remember anything.

And – properly wielded – state violence is the best way to keep people safe. Of course, the term “state violence” means different things to different people. I’m not talking about police officers murdering innocent people, which has led many to experience way more stress, their hearts racing whenever a patrol car is spotted down the street.

I’m only fond of state violence that protects. We Homo sapiens have a long evolutionary history as a violent species, and state violence at its best prevents violence from individuals. This is the basic idea behind Thomas Hobbes’s Leviathan.

A good practical example is the state violence that facilitated the civil rights march from Selma. The town was full of murderous individuals. Only the presence of armed federal soldiers – a clear imposition of state violence – prevented the far worse, anarchic violence that would’ve been perpetrated by locals.

At its worst, though, state violence is horrific. You get wanton destruction of life and liberty on a massive scale. Which is grim to think about, given that my own country is now helmed by a fickle racist who celebrates his own acts of violence against women.

Violence from a bad state isn’t keeping anybody safe.

Consider mass incarceration as currently practiced by the United States. Forcibly locking someone inside a prison or jail is a clear exercise of violence. In some cases, this violence keeps us safe. For instance, my mother-in-law was murdered last year. The man who killed her should be kept away from society so that he doesn’t hurt anyone else until he’s better. The brutality of this incident leads me to suspect he has some serious emotional disturbances at the moment.

But this dude has been shut inside various prisons for over nine years already… after convictions for non-violent drug crimes. When the state locked him away for all those years, were we the people made safer?

In Weapons of Math Destruction, Cathy O’Neil proffers a reason for doubt:

What’s more, for supposedly scientific systems, the recidivism models are logically flawed. The unquestioned assumption is that locking away “high-risk” prisoners for more time makes society safer. It is true, of course, that prisoners don’t commit crimes against society while behind bars. But is it possible that their time in prison has an effect on their behavior once they step out? Is there a chance that years in a brutal environment surrounded by felons might make them more likely, and not less, to commit another crime?

Yes, I’d say there’s a chance. I doubt many people would disagree. Even those responsible for locking dudes in prison sometimes acknowledge that they’re doing the wrong thing.

While C. J. Chivers was researching his New York Times Magazine article about Sam Siatta, a marine who returned from Afghanistan with severe PTSD and no support, Chivers met with Jason Chambers, the prosecuting attorney whose office sent Siatta to prison. (After returning from the war, Siatta tumbled into alcoholism, and one night broke down a stranger’s door while stumbling home drunk from a party.) Many thought Siatta should be offered treatment instead of prison, but the prosecutors were unyielding. Siatta was socked with a six-year sentence.

Until, that is, Chivers arrived. Once Chambers learned that a reporter was investigating the case, he promptly offered to vacate the conviction. Siatta was released that week.

From Chivers’s article:

There was a question to explore: Why did Chambers propose exactly the resolution to the case that his office had resisted for two years?

Chambers described a criminal-justice system that resembled an overworked mill. His office handles almost 5,000 cases a year, he said, and it was not possible for him to follow each of them closely …

…

From his point of view, Chambers said, the plea deal in the works was not actually a large shift. Siatta had received the minimum sentence for a Class-X felony and would soon plead to more than the minimum sentence for a felony one class down. “From a practical standpoint, it is a big change,” he said, because Siatta was out of prison. “From a legal standpoint, it is a hair’s width apart.”

And for society, Chambers added, the new arrangement was probably safer. If Siatta were to behave well in Shawnee [prison], he would be eligible for release in less than three years and would return with virtually no counseling or care for his PTSD. Now Siatta would be under state supervision for several years, receiving care throughout. “The rationale for me became, ‘What makes people safer over the long term?’ “ he said. “Is it treatment or just getting him off the street?”

Chambers is almost certainly correct: we the people will be safer if Siatta is given treatment instead of more time in prison.

Of course, our jails and prisons are so flawed that the same is probably true of most everyone sent away.

There’s even data showing how much less safe incarceration makes us. Individual prosecutors and judges have an inordinate amount of discretion, and defendants are randomly distributed among them… which means we’ve inadvertently conducted something like a controlled study. When a dude is busted for possession, he might land the judge who’s hard on theft but soft on drug crimes, in which case he’ll walk. Or he might land the judge who comes down hard on drugs and get four years in prison.

It’s absurd that a coinflip decision – which judge you’re assigned to – is the only difference between four years and freedom. From the perspective of justice, this is a nightmare. But from the standpoint of science, it’s great! Who doesn’t love controlled studies? Equivalent people are being assigned to receive either prison time or freedom, basically at random, which lets us compare how they fare afterward.

When Michael Mueller-Smith combed through the data for over a million defendants, he found that locking people up increases the likelihood that people will need expensive government services after release and increases the likelihood that people will commit future crimes.

Oops.

It seems quite likely that the choices made by New York state prosecutors – locking a then-harmless poor dude away for a decade – led to my mother-in-law’s death.

And yet. I’ve been trying not to end these essays on a dour note. I certainly don’t mean to imply that everyone who spends time in prison becomes somehow tainted. So I’d like to close with advice from James Trent, whose lovely personal essay “A Visit from an Outsider” recently appeared in The New Yorker.
Despite being labeled with scorn by our criminal justice system and shunted away for decades on end, Trent resolved that even in prison he would do and be his best. He knows he’s made a positive impact on people’s lives during his time there. And he advises we do the same:

… when you have a bad situation occur in life you can choose to become bitter or better. Choose to be better!

Frank Brown Cloud

Justice through words.

Tag: prosecutorial discretion

On race and our criminal justice system.

On preventing future crime.