Is the Road to Prison Reform Paved with Good Intentions?

By David A. Love
Published by The Black Commentator
October 11, 2007

The nationwide problem of prison overcrowding provides a perfect opportunity for society to examine real prison reform. Exorbitant prison spending threatens to cripple state budgets, as lawmakers in many parts of the country allocate more funding to lock up their citizens than to educate them and provide them with essential services.

With over 2.2 million people incarcerated in its federal, state and local institutions, no other country imprisons as many of its people per capita - or in absolute numbers for that matter - as the United States. As a result of failed policies driven by the politics of fear and racial scapegoating - the war on drugs, tough-on-crime measures, and draconian sentencing guidelines — America's prisons are an emerging national crisis. After spending years forsaking the concept of rehabilitation in our criminal justice system, in favor of retribution for its own sake, we know that the system is overburdened and overwhelmed. And many have concluded that the old ways are not serving us well.

In California, the three-strikes rule and a powerful corrections officers' union have created a burgeoning prison population. Over 172,000 prisoners are housed in 33 facilities designed for only 100,000, costing the taxpayers more than $8 billion annually. Inmates do not receive adequate healthcare, and recidivism is high. A three-federal judge panel will determine if the California prison system requires a population cap, releasing thousands of inmates and alleviating the deplorable overcrowding.

Meanwhile, the California Department of Corrections and Rehabilitation recently announced a new policy that would free thousands of nonviolent parolees who are unlikely to re-offend. The program would remove certain parolees from supervision after six months rather than the usual three years. And ex-convicts who are no longer under the supervision of the system cannot be sent back to prison for violation of parole.

And similarly, Pennsylvania Governor Ed Rendell is proposing alternative sentencing for nonviolent drug offenders, including early release, drug treatment, and recidivism prevention programs. This, as the Keystone State faces a crisis of prison overcrowding, with a legacy of tough sentencing and life without parole that has broken up families and ravaged poor communities, yet has done nothing to address the troubling homicide rate in cities such as Philadelphia.

As the least regarded among society, prisoners are not a high priority among lawmakers and those who promulgate public policy. And many believe that prisoners deserve any punishment they receive above and beyond their prison sentence. But in order to halt the revolving door of recidivism that plagues our prison system, society must pay attention to the civil rights and quality of life of prisoners and strive to rehabilitate them.

The purging of religious and spiritual materials from prison libraries on the grounds that blocking inmates' access to such books will stem the spread of terrorism - as reported in the New York Times on September 10, 2007 - is misguided and unconstitutional. That the federal government wants to fund medical experimentation on prisoners — following a report last year by the Institute of Medicine, part of the National Academy of Sciences, which recommended a return to such practices — is unethical, unconscionable and barbaric.

Although they are deprived of their liberty, prisoners are entitled to the same basic constitutional rights we all share. However, the Prison Litigation Reform Act of 1996 (PLRA), enacted by Congress ostensibly to put an end to frivolous prison litigation, has crippled inmates' ability to seek redress and protect their rights in the federal courts. The PLRA requires:

• an exhaustion of administrative remedies
• restricts the courts' authority to provide relief when prisons violate the law
• requires that prisoners suffer a physical injury in order to recover for mental or emotional injuries
• imposes a severe cap on attorneys' fees

The PLRA is a roadblock for valid claims of prisoner abuse, and must be repealed.

And when prisoners are released, they are subjected to punishment above and beyond their original sentence. Ex-cons lose their right to vote in some states, cannot obtain licenses for certain professions, and are denied financial aid for college because they have a felony conviction. It is difficult for these individuals - predominantly of color and mostly poor, unskilled and uneducated - to rebuild their lives and support their families when society stands in their way.

America is at a crossroads on the issue of prison reform. Locking our problems away has not made society whole. The failed "law and order" stance must give way to a smarter and more thoughtful approach that examines and tackles the interrelated problems of poverty, low education, joblessness and crime. We cannot continue on a path that does not address the root causes of America's ills, fails to reduce crime, and bankrupts us - not only economically, but spiritually and socially - in the process.

Copyright © 2007 by David A. Love

State Should Take Leadership Role In Prison Reform

Jackie Lee Thompson after his 1969 arrest at age 15, and in 2004 at age 49 (Elmira Star-Gazette)

By David A. Love

Published in the Legal Intelligencer

Monday, March 26, 2007

Pennsylvania is a leader in prisons, ranking second nationally in per capita growth in prison spending. Prisons cost Pennsylvania taxpayers more each year, but with little to show for it. Now is the time to seek alternatives to this drain on the state’s resources.

According to the Pew Charitable Trusts, the number of inmates incarcerated in Pennsylvania's prisons will increase 17 percent— from 42,345 in 2005 to 51,596 by 2011. Meanwhile, the commonwealth spends $33,814 per prisoner per year, far more than the national average of $23,876.

Prisons are the third largest expenditure in the state budget, behind education and welfare. If current trends continue, it will surpass education spending.

Mandatory minimum sentences and harsh sentences for nonviolent drug offenders have created prison overcrowding. Recently, prisoners represented by the Pennsylvania Institutional Law Project (PILP) and David Rudovsky successfully sued the City of Philadelphia in federal court over the deplorable, unconstitutional conditions in the city's jails, including unsanitary facilities, a lack of personal hygiene items and detainees forced to sleep on concrete floors.

The state’s prison boom breeds inequities. An Associated Press investigation in 2000 revealed that blacks in Pennsylvania are more likely to receive prison sentences, or longer ones, than white defendants accused of the same crimes. Further, the black incarceration rate is 14 times that of whites, the greatest racial disparity in the nation. African Americans, 10 percent of Pennsylvania's population, are 56 percent of the inmates. This is shameful.

And as the female prison population steadily grows, the abuse and rape of female prisoners by male corrections officers with unsupervised access is an ongoing problem.

Pennsylvania's capricious parole system impedes efforts to incorporate rehabilitated prisoners into society. Parole is an illusion for most prisoners, particularly those serving a life sentence. The 1997 amendments to the Pennsylvania Constitution require that a recommendation for a pardon or commutation by the board of pardons be unanimous before it may be considered by the governor. The law serves no penological interest, and only keeps more rehabilitated people behind bars, separated from their families and communities. A coalition of organizations, including PILP under executive director Angus Love, the Pennsylvania Prison Society and others, are challenging the law in the 3rd U.S. Circuit Court of Appeals.

The dysfunction of Pennsylvania's parole system came to light when Governor Rendell recently commuted the life sentence of Michael Howard Anderson, 53, who has served 36 years for the 1971 stabbing death of William Edwards. On the day of the murder, Anderson found a butcher knife on the ground as he boarded a bus headed for a concert at the Spectrum. When a fight broke out during the bus ride, Raynard Gregory grabbed the knife from a fallen Anderson and stabbed Edwards. Meanwhile, Gregory spent only seven years behind bars.

Other deserving prisoners seek a commutation. Keith Smith, 52, has spent 32 years in prison. He has had much time to reflect on his role as accomplice to a 1974 robbery that resulted in a shooting death— he was the lookout, never entered the store and did not pull the trigger. One of his co-defendants was retried and released in 1978, while the other committed suicide in prison in 1980.

Smith is a perfect example of the promise of rehabilitation in a society that often turns its back on the concept. Smith formed an anti-violence program for youth, produced an educational video, raises money for charities, and provides Thanksgiving turkeys for needy families. Society does not benefit from his continued incarceration. Indeed, violence-torn, poverty-stricken Philadelphia needs the help of reformed men such as Keith Smith to tackle the city's troubles.

Jackie Lee Thompson, 51, was convicted on first degree murder at age 15. He was a foster child in rural Tioga County whose mother died when he was 10. On the advice of his court-appointed counsel, Thompson confessed to his role in the shooting and drowning death of a 15-year old girl. The judge told him that with good behavior and a trade, he could be paroled in a few years. Of the two other teens involved, one was tried as a juvenile, while the other was released and never tried.

Thompson has been a model prisoner. He received his G.E.D. and an associate's degree in business management, and teaches advanced computer classes. Among the most staunch proponents of Thompson's release are the family members of the victim, who testified before the Board of Pardons on his behalf.

While Anderson had received the required unanimous recommendation by the board, Thompson and Smith received the approval of only four of the five board members.

As unfair and arbitrary laws at the state level stand in the way of prison reform, draconian federal statutes limit prisoners' access to the federal courts to seek redress.

The Prison Litigation Reform Act of 1996 (PLRA), enacted ostensibly to stem a tide of frivolous prison lawsuits— such as an inmate who sued over receiving chunky-style rather than creamy peanut butter—has crippled inmates' ability to protect their constitutional rights. The PLRA restricts the federal courts' authority to provide equitable relief when prisons violate the law; imposes a severe cap on attorneys' fees; penalizes indigent prisoners; requires exhaustion of administrative remedies, and requires that prisoners suffer a physical injury in order to recover for mental or emotional injuries.

Consequently, the PLRA blocks valid federal claims of prisoner mistreatment and abuse. The ABA recently urged Congress to repeal or amend its provisions. In light of the abuse scandal at Abu Ghraib prison—the ringleader once abused inmates as a guard at SCI-Greene –prisoners' rights should concern everyone. Pennsylvania must seek bold, effective alternatives to its prison machine. The prison boom separates families and destroys communities, diverts crucial resources, and does not alleviate crime. According to the Sentencing Project, at least 22 states have enacted reforms to their sentencing, probation and parole policies, focusing on alternatives to incarceration for nonviolent offenders, expanded drug treatment, and reducing recidivism. Pennsylvania must lead the way in prison reform before it is too late.

Copyright © 2007 by David A. Love