SERMON: Colleges for Crime/Warehouses for the Unwanted: Why American Reform Institutions Won’t Work By Jack Lawrence

The song you just heard is about prison life in TDC, where its author, Huddie Ledbetter, better known as Leadbelly, spent much of his life. The Midnight Special was a train which illuminated his cell at night. He wrote several other songs which made many millions for the bands which recorded them: Goodnight Irene;Black Betty; Cotton Fields; Gallis Pole, and so on.1 But Huddie Ledbetter himself died a broke and broken man. However, when I interned as an inmate attorney at TDCJ in 1986, his cell was still considered 'sacred ground.'

Another Beaumont attorney recently confided in me that the new growth industries in Jefferson County are toxic waste and toxic people. What hurts me worse is that it’s being done in the name of Jefferson.

The last time I was here, on the first anniversary of Sept­ember 11th, we talked about the logic of forced conclusions.Since then, we’ve realized that forced logic about weapons of mass de­struction or Al—Quaida connections, can lead to grave decisions. Today, we look at the logic of ‘instrumental rationality,’ which means establishing one’s goals and then, independently of legal rules and norms, making legal decisions according to their contribution to predetermined goals.2 Some well—known examples are designating juvenile and insanity proceedings as civil in order to circumvent the trappings of Constitutional due process; and abolishing rehabilitation as a penal philosophy, in order to likewise abolish good conduct time, early release, and parole.

For instance, a teenager brought to trial as a juvenile delinquent is usually charged with something which would be a crime if he was tried as an adult. But, because when the Sup­reme Court looked at this issue, we still baby—sat juveniles until we could release them again, and may have actually pro­vided some counseling, the Court decided to make parts of the Bill of Rights inapplicable, by labelling juvenile proceedings as quasi-civil, quasi-criminal. To prove to you that this new exception is as big an oxymoron as it sounds, here’s what my law professor, Irene Rosenberg, has to say about it: Accused citizen John Doe will still appear at 8 a.m. on Monday morning before a quasi—Judge who will enter a quasi—ruling depriving John of his quasi-liberty, and until trial, he will be held in a quasi-cell, where he will take his meals with the other non—criminals. In other words, you haven’t lost this Jeffersonian liberty because we’re trying to help you, and ‘Boy, you’d better like what we’re doing for you, too!’ The roads running to Hades aren’t just paved with good intentions anymore—there’s now a cafeteria plan of platitudes, lawyers, probation officers, heav­ily—armed teachers, and guards to watch you do your homework.

Speaking of homework, let’s study this a minute. At the end of 2002, there were 6,732,000 people under criminal sentences in the U.S., of whom approximately 2 million were incarcerated. Through June 30, 2003, Texas had 164,222 people incarcerated, third highest among the states. Through 1997, for all state prisoners, 68% did not have a high school diploma, of whom about 26% obtained a G.E.D. while in prison. Of those still without either, 52% were under 24, 66% hada learning disability, and 59% had a speech disability; 47% were drug offenders.

You probably remember the saying kids had, "Tune in, turn on, and drop out," —to which the corollary was, "...but don’t get busted." About 40% of violent offenders had not finished high school.

Against that backdrop, I talked to Jim McGlothlin, the Director of Centurion Ministries about 3 years ago, —they do exactly the same work as Barry Scheck in reversing death penalty convictions, and he told me that before DNA testing came along, Scheck and he estimated 8% innocent on death row in Texas,—but now, the figure is believed to be closer to 15%. Therefore, I ask, since, in Texas, capital cases get the best defense attorn­eys, and guaranteed appeals into the Court of Criminal Appeals, then how much higher is the rate of innocence in the general population?

Even though it was not my choice, my law school doctoral writing assignment was the relationship between the new sent­encing guidelines and correctional philosophy. Today’s topic is timely because, since June 24th, at least 4 federal circuit courts of appeal have declared the 1987 Sentencing Guidelines unconstitutional, and the degree of prison overcrowding now actually exceeds the level we had when the Guidelines were adopted as its panacea, —even with new prison construction.

A brief historical overview of the whole plethora of stopgap reform measures which have always characterized reform institutions in the U.S. should help understand the current trend toward overcriminalizing both petty offenses and sexual conduct, warehousing people sufficiently that their probation and parole fees finance a huge revolving door bureaucracy, and experiment­ing with reform based on highly theoretical, but extremely inept, theories.

Both the penitentiary and the modern asylum are American Quaker in origin. The asylum was popularized by Samuel Tuke’s 1813 book on the York Retreat.3 The penitentiary derived from the Quaker and much earlier monastic practice of putting a person in a solitary cell with a Bible until he became penitent.4 DeTocqueville is well-known for writing Democracy in America; his other book concerns our penitentiary system,5 in which he notes the advent of the stricter, more regimented Auburn system contemporaneous with more ameliorative Quaker reforms6 in Pennsylvania.

Under the Elizabethean Poor Laws, the Lord helped those who helped themselves. It was not until the muckraker period that American welfare policy ever developed along lines that some are unable to help themselves. An interesting aspect of some early state-run institutions was that many had a workhouse sitting next to it. Because sentences were indeterminate, inmates were not released until they had learned a suitable job skill. They were then returned to their place of settlement or birth, where a job was waiting. The Overseers of the Poor made sure that adequate charity was available, and because there were few problems with reentry into society, there was an extremely low recedivism rate. However, in many jails. and almshouses, conditions were so pathetic that the sordid squalor that inmates endured was comparable to a dungeon.

Now, Dorothea Dix was the daughter of an itinerant Methodist minister who ran away from home at age 12 to live with her wealthy grandmother in Boston. She arrived in time to hear and know Aaron Bancroft, Henry Ware, Jr., William Ellery Channing, and the Emersons. Also, she frequently accompanied her Unitarian uncle Thaddeus Harris in his ministry to the Boston Female Asylum and the East Cambridge jail. She became the governess for the Channings, who preached reform, —but Joseph Tuckerman not only preach­ed about social justice and poverty, —he actually had a ministry to the poor which helped feed and clothe them, making over 4,500 house calls in 4 years, and her renewed interest led her to teach Sunday School, again at East Cambridge, in March, 1841. The rest is history.

Under the Poor Laws, 'visitors' usually consisting of churchwardens or the overseers of the poor, had a roving commission to inspect facilities,7 but rarely contested the status quo. However, in Quaker—sponsored asylums, the trustees were frequently the Board of Visitors, and released those unnecessarily detained. If you read Michener’s Texas, you also know that Quakers were the only people which many Indian tribes would allow to run their reservations. Just saying you care may not be enough.

While Dorothea Dix was in England, her health failed, and Channing sent her to the wealthy Rathbone estate to recover, where she met many social activists over dinner, among them, Samuel Tuke and Elizabeth Fry, both Quakers, and at at a time when Fry was single—handedly opening English prisons to inspection. Later in life, Dorothea would frequently laud Elizabeth Fry’s work.

The Quaker visitor’s rights movement, which encouraged visits by family and friends at the inmate’s cell began to be enacted in American state codes, as a result of Dix’s crusade. Dix herself even lived in a facility, and saw to the rehabilitation of inmates herself, just as Robert McKenty did at Eastern State Penitentiary. Rehabilitation means self-sufficiency and can only be taught personally and graciously. In 1844, Dix and William Henry Channing, Wm. Ellery’s Unitarian cousin, concurred that crime and madness were related, and that penal institutions could remold people from bad homes. Her book, Remarks on Prisons and Prison Discipline8 was seen by Samuel Gridley Howe as a way to move the Boston Prison Discipline Society, which DeTocqueville describes as dominating early reform, -away from the Auburn system of steady labor and whipping.

Despite Dix’s contribution to the moral treatment of insanity, and housing the insane in state asylums rather than jails, her most overlooked contribution, because it survived only briefly, was that while families could visit their pris­oner at his cell, prison conditions remained civilized. But, as Sophonisba Breckenridge noted, these informal mechanisms were replaced by state boards in the Twentieth Century,9 and these rapidly became bureaucracies, -eventuating, of course, the next reform movement, itself embodied in several books, particularly: Deutsch, Albert, The Shame of the States (1948) for asylums, and a Presidential Commission on Criminal Justice Standards & Goals,10 which standards Texas adopted in 1978, but largely wrote out of existence as Ruiz v. Estelle,11 was winding down.

David Rothman, who many consider to be the leading authority on Nineteenth Century reform movements, gives us a picture of the recurrent spiral or vicious cycle which prevents enduring reform:

Nevertheless, the growing irrelevance of a rehabilitative program.. .did not bring about their dissolution. Despite their faults, [asylums] contin­ued to dominate the care and treatment of the deviant and dependent classes....The appropriations were usually not sufficient to prevent overcrowding, but they were adequate for housing an increasing number of inmates. Not until the end of the century was there... the beginnings of a noninstitution­al response to the problems of poverty, crime, and insanity....

...Neither the custodial quality of the treatment nor critics insistence that incarceration diminished the likelihood of rehabilitation diminished [the criminal sentence’s] importance. For one thing, the reform theory encouraged a complacency that all too predictably made incarceration an end in itself, so that after a few decades officials interpreted the mere presence of men in cells as itself valuable. For another, the type of convict...prompted wardens to define their task in terms of custody... officials were satisfied just to prevent riots and escapes....

...By positing that the origins of deviancy lay in the weaknesses of the criminals’ early training and...corruptions.. . in the comunity, [they] ...made rehabilitation seem not merely a feasible but almost a routine matter. This viewpoint...fostered an attitude that ultimately deluded officials into believing that punishment and isolation were complete answers to the problem of deviancy. The first generation usually re­membered that these were to be means to an end; their successors made them the sum of the program....

Further:

...The state prison indiscriminately housed all classes of convicts together, making no distinctions as to the nature of the crime or the history of the criminal....The fine points of a reform plan became ir­relevant to security requirements....

And officials found it difficult to preach moral reform to men who would spend a good part of their lives behind walls and in cells....As an inmate facing year after year of incarceration turned uncooperative, wardens increasingly devoted attention and energy to the peace and security of the institution.....

[Adapted from: Rothman, David J., The Discovery of the Asylum Little, Brown, & Co., 1971, pp. 237—251.]

This trend has returned due to federal legislation giving states funding to build new prisons called the Truth In Sentenc­ing Act of 1996. In Texas, if an elected judge sees an empty bed space available, he’ll fill it. Hence, elected politicians eagerly create crime waves’ so they can do something about it.

Due to expansion of the Civil Rights Acts in 1964, class actions briefly improved prison conditions, until the Pennhurst decision in 1984 basically told Federal courts to keep their hands off state institutions.12

During the period of expansion of the Welfare State, the Poor Laws, and charitable immunity, by which churches had always managed charity, were cast aside. And during moratoriums on both prison construction and on the death penalty,13 the Quakers almost staged the comeback which would have completely reformed the criminal justice system, if they had not been derailed when their reforms were being legislated, the usual stumbling block since Dorothea Dix's reforms were vetoed by Franklin Pierce in 1854.

Andrew von Hirsch had been meeting with a Quaker Study Group since 1972, and had become gravely concerned about the marked disparity of criminal sentences. The Supreme Court had just read the requirement of proportionality into the Eighth Amendment,14 a position from which they largely retreated 8 years later,15 and so a movement arose to make the punishment fit the crime-comparable conduct should be treated comparably. For example, Colorado gave 20 years for destroy­ing a house with fire, but only 10 years if explosives were used; California’s sentence for burglarizing a car was greater than for car theft.16 The Quakers also favored alternative sent­encing and intermediate sanctions as a means of reintegrating the offender into society, including work release and community service.

At the same time Congress wanted to use fairness and reduction of disparities as a justification for guidelines, the guidelines presumably would reduce expenses by reducing overcrowding and abolishing parole, and with it, the elaborate bureaucracy known as the U. S. Parole Commission.

However, to abolish parole, Congress also had to abolish early release based on the accrual of good conduct time, which had, since the mid—Nineteenth Century been the proven incentive by which you both preserved order and led the convict toward rehabilitation. So, to be consistent, they also abolished rehabilitation as a sentencing goal.

Despite the American Bar Association’s testimonials which favored intermediate sanctions for up to 2 year sentences, and their opposition to abolishing parole, these Quaker ideas were doomed. Congress also enacted 28 U.S.C. § 994(g), which re­quired that the Guidelines could not result in exceeding Federal prison capacity, with the understanding that if they did, they would be dismantled or revised. But, by their effective date of 1987, a number of conservative judicial appointments had taken office, who also usually sentenced to the upper end of the sent­encing range, and the Federal prison population doubled within 3 years.

These events led to rehabilitative programs, such as the Comprehensive 500-hour Drug Treatment Program (18 USC § 3621(e)) by which you could earn 6-month early release, and, more recently, a return to parole for select offenses.

Just when it begins to look like Congress is making sense again, it enacts the so-called Truth-In-Sentencing Act,17 which requires states accepting federal money to build new prisons to also increase the average amount of time a convict serves for an aggravated offense to 85% of his sentence. Even though hormonal changes definitively preclude most people from continuing to of­fend past about 45 years of age, and one’s average life-span in Texas prisons is shortened to the early 50’s, this law makes sure that, if you were ever a rebel without a cause, you will die in prison. Texas requires you to serve 88% of sentence length to assure that we do not fall below 85% on average and lose our fed­eral funding.

Many of the new budget-cut prisons are built of cinder-block. One side effect of this appears to be vermin infestations with spiders and so on. One such facility I recently helped litigate also had lots of infintigo, athlete’s foot, jock itch, etc. They probably were setting laundry temperatures too low so no one would be scalded, but also could not hose down the slab with pressurized hot water because cinder block is so porous.

Incidentally, the 13th Amendment abolishes involuntary servitude everywhere except in prisons. Texas continues to be one of the very few states which does not pay prisoners something for their labor. When prisoners are released they are given a check for around $100.00, and street clothes which frequently identify them as being recently released. In the old days,—i.e., through 1987, they received a Hawaiian shirt which no one else would wear.

Short of a miracle, you will not see ameliorative prison reform, and only marginal death penalty reform, in Texas. Our politicians have assumed such issues lack popular support.

Despite prison ministries, the only Texas churches and groups whiich still have volunteer activists which monitor jail conditions. are the Jesuits, the Quakers, Congregationalists, the Unitarians, the ACLU, CURE, and the Presbyterians. Other churches still dispense charity, but few are concerned with reform.

Just as my paper suggested in 1987, the way to assure proportionality, a rehabilitative setting, and adequate conditions for all institutions, including nursing homes, and schools for juveniles, is an independent institutional ombudsman with broad investigative powers.18 You cannot continue to have the fox guarding the henhouse, and profit cannot become a central motive for housing prisoners, as occurs with out-of-state prisoners who are housed in the downtown county jail.

Within the last century people also believed that illegitimate pregnancy was attended by insanity, and that in families with a hereditary taint, one most frequently found “ugliness, dwarfishness, hunchback, squint, hoarse laughing, hobbledyhoism," and like departures from the ideal.19 [Discuss handout.]

The greatest baseball player yet, George Herman Ruth, would never have been allowed to leave reform school if someone had not seen his talent at baseball on a reform school team. Back then, once the Yankees won the World Series, they still had to defend their championship in Japan, and take on all comers, -which is why they played the best prison team every year at San Quentin. Isn’t it odd that in a game there, Ruth hit the longest home-run ever measured, over a very high prison wall, some 640 feet out into the desert. Do you think he was trying to show anyone there what they could do? Just as with Leadbelly, Ruth was the exceptional misfit for whom, in the words of the poet:

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For people viewing this on the Church’s website, you might be interested in a comparison of verses from The Prisoner of Chillon, by Lord Byron, as follows,

ETERNAL Spirit of the chainless Mind!
Brightest in dungeons, Liberty! thou art,
For there thy habitation is the heart—
The heart which love of thee salone can bind;
And when thy sons to fetters are consign’d—
To fetters, and the damp vault’s dayless gloom,
Their country conquers with their martyrdom,
And Freedom’s fame finds wings on every wind.
Chillon! thy prison is a holy place,
And thy sad floor an altar—for ‘twas trod,
Until his very steps have left a trace
Worn, as if thy cold pavement were a sod,
By Bonnivard! May none those marks efface!
For they appeal from tyranny to God.

It might be months, or years, or days,
I kept no count, I took no note,
I had no hope my eyes to raise,
And clear them of their dreary mote;
At last men came to set me free;
I ask’d not why, and reck’d not where;
It was at length the same to me,
Fetter’d or fetterless to be,
I learned to love despair.
And thus when they appear’d at last,
And all my bonds aside were cast,
These heavy walls to me had grown
A hernitage - and all my own!
And half I felt as they were come
To tear me from a second home:
With spiders I had friendship made,
And watch’d them in their sullen trade,
Had seen the mice by moonlight play,
And why should I feel less than they?
We were all inmates of one place,
And I, the monarch of each race,
Had power to kill—yet, starnge to tell!
In quiet we had learned to dwell;
My very chains and I grew friends,
So much a long communion tends
To make us what we are: —even I
Regain’d my freedom with a sigh.

-George Gordon, Lord Byron

with a Sonnet by the author, in iambic pentameter, titled in the Prometheus Bound mode:

To be as Pinel, not with a sword, but a pen,
With which to free from fetters, minds of men!
And dare to strike the issues of the age
Before men’s vision, upon the page.
To raise the torch aloft again
A beacon where no ray has been.

Portal scenes flicker—the tufted crescent goes abroad,
Now as a wingless dove, ventures the windless road;
Banners enshrine pinnacles, but lose their flame
To free light pouring through a barred frame!

Flowers bloom amongst dungeon scrawls,
Countless cantos adorn sunless walls.
Struggle ! Loss! Mourning of life!
Emboss the meshwork of dawnless strife.

As Sisyphus’ reprieve was struggle not foregone,
Prometheus’ glory only becomes martyred, drawn!

Footnotes & Bibliography

1

Songs written by Leadbelly include: “Goodnight, Irene”(The Weavers; Nat King Cole); “Black Betty”(Ram Jam, 1977); “Gallis Pole”(Led Zeppelin); “Yellow Ledbetter”(Pearl Jam, 1991); “The Midnight Special” (Credence Clearwater revival; Johnny Rivers). Leadbelly may have been the first to record ‘The House of the Rising Sun,’ orig. known as ‘The House in New Orleans.’ The Ledbetters took in Woody Guthrie as a boarder in the early 1940’s. and Huddie’s apartment became a magnet for singers and musicians who frequently held all night jam sessions there. Other famous musicians with a ‘record’ include Johnny Cash, David Crosby, etc.

2

Unger, R.M., Knowledge and Politics (1975), at pp. 89—90.

3

Tuke, Samuel, Description of the Retreat (1813).

4

Walnut Street Jail in Philadelphia (1776). In Connecticut, copper mines used for Revolutionary prisoners of war became the state prison, until a new one was built in 1827. Anyone interested in seeing what ‘jails’ once were like should visit the old Federal Courthouse building in Jefferson, Texas. (Among other things, there is no room to stand up, and light comes from a tiny window.) Another interesting jail is the old jail across from the modern courthouse in Burnet, Texas. The well used to draw water still sits in front; the era of heavy steel construction can be seen in the upstairs tank. Hemphill also retains its old county jail.

5

Gustave de Beaumont and Alexis de Tocqueville, On the Penitentiary System in the United States and Its Application in France (Southern Ill. U. Press, 1964— first pub. in 1833).

6

Ibid., pp. 46-47.

7

See 9 George IV, ch. 40 & 41.

8

Remarks on Prisons and Prison Discipline in the United States (Dix, 1845). Howe and George Emerson were Di~x’sallies in the badly split Boston Prison Discipline Society. Under both the Auburn and Pennsylvania systems, inmates could not communicate with one another; but, under the Auburn scheme, they worked side by side at steady labor, —while, under the Pennsylvania system, they were completely isolated in their cells and never knew each other. The idea of steady labor won out not because it was particularly rehabilitative, but because, due to budgetary needs, politicos believed prisons could be made self—sufficient through contracts with the private sector. In part~due to overcrowding, inmates were allowed to communicate, and solitary cells disappeared. Due to her belief in rehabilitation, Dix opposed whipping, just as she opposed debasement. Rothman, David J., The Discovery of the Asylum (Little, Brown, & Co., Boston, 1971), pp. 82, 102, & ch. 10; Gollaher, David, Voice for the Mad: The Life of Dorothea Dix (Free Press, N.Y., 1995). Much change is realized through bureaucratic capitulation to aggregate trends in prisons.

9

Breckenridge, Sophonisba P., Public Welfare Administration in the United States: Select Documents (Univ. of Chicago Press, Chicago, Ill., 1927), at 373—381.

10

Corrections by the National Advisory Commission on Criminal Justice Standards & Goals (1973); also, the works of Angela Davis, Huey Newton, Elbridge Cleaver, etc.; Jessica Mitford’s Kind and Usual Punishment; also, the work of the Texas Research League in the 1950’s to reform mental health.

Of great theoretical impact was Herbert Packer’s The Limits of the Criminal Sanction (Stanford U. Press, 1968), which compared the Due Process Model with the Crime Control Model, and suggested that criminal courts were moving toward assembly—line justice. (They have.) Typical of recent adventitious reform which throws the Bill of Rights out with the bathwater, Packer also warned that some safeguards may have to be sacrificed. However, he argued against laws threatening private sexual behavior of consenting adults for the following reasons (at p. 304):

1) Selective enforcement creates problems of arbitrary police and District Attorney discretion use or abuse;
2) Extreme difficulty of detection leads to undesirable investigatory practices;
3) The existence of the proscription fosters a deviant subculture;
4) Wide knowledge that the law is violated with impunity creates disrespect for law;
5) No secular harm can be shown to result from such conduct;
6) Police corruption is fostered;
7) The moral sense of the community no longer pushes for criminal sanctions;
8) No utilitarian goal is advanced.

11

Ruiz v. Estelle,

12

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, T04 S.Ct. 900, 79 L.Ed. 2d 67 (1984).

13

Furman v. Georgia, 408 U.S. 23 , 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972)

14

Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed. 2d 637 (1983).

15

Rarmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed. 2d 836 (1991).

16

Corrections, supra, at 143; Senate Reports, No. 2013, 85th Cong. (1958); 40 Crim. L. Rptr. (BNA) 3269—70.

17

Truth in Sentencing Act (1996).

18

Due to the Civil Rights of All Institutionalized Persons Act of 1980 (42 U.S.C. §~ 6009, l997e, & 10841), HECFA mandates, etc., considerable institutional oversight is now already required, and in some states is provided by an ombudsman. In Texas, the Human Rights Commission is largely a letterhead agency (or paper tiger), primarily due to weak or zero bud­geting of most rights enforcement in the post—quarter era. The malaise of problems related to conditions, grievances, Catch—22s, disparities in treatment (or abuse), and a lack of accountability, justify watchdog agencies, which can both and structure discretion. The ombudsman's ability to justly combine both supervision and review on the spot elimin­ates bureaucratic sidestepping and fosters uniform policy application. In addition to being both a system—fixer and a problem—solver, an ombudsman can contribute other improve­ments: reduction of frivolous lawsuit petitions and paper­work; user friendly feedback; confidentiality; ability to initiate practical adjustments (by mediation), something pres­ently non—existent in Texas prisons; improved communication; facilitation; and by being an objective resource for admin­istrative reorganization in a rule—bound system. To ensure his effectiveness, an ombudsman must have full independence, and be capable of mounting full investigations alone. The need for an ombudsman is even more true with privatization. Because a § 1983 civil rights suit is not possible with a privately operated prison, there is no other way to actively enforce or promote individual rights.

19

Hamilton, Allan McLane, and Godkin, Lawrence, A System of Legal Medicine, Vol. II, pub. by E. B. Treat, 5 Cooper Union, N.Y. (1894).

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Probably the last case really dealing with the visitor’s rights approach is The People v. F. Park Lewis et al., Const­ituting the Bd. of Trustees of the N.Y. State School for the Blind, 203 N.Y. App. Div. 395, aff’d, 239 N.Y. 528 (1922).

Texas created a State Lunatic Asylum in 1858. However, a friend could still give bond to restrain “such person un­til the cause of confinement shall cease.” Chap. XCV, R.S. (1876), pp. 974—76; by 1879, the state asylum still had only 18 beds or “wards”. Chap. LVI, R.S. (1879), p. 1362.