Dawn was just breaking on the morning after Christmas. It was snowing profusely, and the whole world looked grey. A thin blanket of snow covered the ground. I peered through the window every few minutes as the snow fell and accumulated. By nine o’clock, there was about four inches on the ground. I was particularly struck by the massive beauty of nature in progress. I wonder how many more seasons I’ll have to take it all in and appreciate it. It is majestic. I turn 45-years-old this year. It will be different when I’m released. Then, I will be able to view it unencumbered by arbitrary institutional limitations. Of course, I’m sure to encounter new limitations to replace these, but hopefully none that will inhibit my prerogative. There are big chunky snowflakes, and small ones like frozen mist, and every size in between. Birds are flying around scavenging while semi-wild rabbits dash through the frozen whiteness in panic or curiosity. The rabbits are semi-wild because they’ve learned to panhandle the prison population as we exit the chow hall. A hidden camera would ruin every stereotype if you could see all the big, tough looking, tattooed prisoners sneaking some food out to their favorite bunny. The breeze swirls more flakes as new snow falls. Nature. I wonder where my 26 years of incarceration fits into this nature? And why have I spent the last 20+ years without incurring any disciplinary actions? Who is being protected from me and why?
When I was 18, I made the poor choice that led to my incarceration. The circumstances preceding my felonious decision might seem to some as if I’m making excuses, so I only disclose the sanitary version: I was bullied. I do accept responsibility, though. Without me and my truck the crime wouldn’t have happened. I am culpable. My crime partner was a 26-year-old backyard brawler with a criminal record. I was a high school dropout. Despite the obvious differences in our ages, maturity, and histories of mischief, I was described as the “mastermind” at my trial. Of course, that notion was laughable, but my crime was no laughing matter. It was horrible, inexcusable, and unforgivable. I am now and will forever be genuinely sorry.
My crime partner, the guy who facilitated the burglary and assault, was released earlier this year. I drove the getaway vehicle yet remain incarcerated. I’ll begin serving my 27th consecutive year in a few days. Again, “Who is being protected from me and why?”
That question inspires others, like: How has mass incarceration grown so aggressively that it swallows up teenagers for lifetimes? The answer is that mass incarceration has permeated our entire culture. Actually, it has become the culture. Terms like “mass incarceration” and the “prison industrial complex” are commonly used to describe the overarching nature of criminal justice in the United States. Unfortunately, they are glaringly accurate, while mildly underscoring the tragedy of the “American justice” experience.
Mass incarceration directly or indirectly affects every community in the United States. Prisons are densely populated with people from marginalized communities while new communities are generated around prison complexes. Marginalized communities have traditionally been relegated to, for the most part, voicelessness, while the new organized and unionized communities resulting from these prison industrial complexes have a stentorian voice, growing political power, and cultural influence. This inequality of voice/political power helps to explain the rapid growth of mass incarceration. When have marginalized communities ever known equality? So, what’s new for them, right? Then, there are the indirectly affected communities. They cover everything from manufacturing and distribution of goods and commodities to service industries. Examples range from maintenance materials and personnel for prison upkeep to the construction of brand-new state buildings and complexes. Every manufacturing company that produces a product worn, used, distributed to or consumed by staff or prisoner has a stake in mass incarceration–as does every law enforcement-related profession. These include the police, corrections, lawyers, judges, politicians, and all their support systems, commodities and staff. Absent mass incarceration, millions would be jobless.
The term “criminal justice reform” in various instances is being used to mislead some folks into believing that the perpetually elusive concept of “just” justice is on the way. Well, please forgive me for being jaded but it isn’t. Even if there was a potential package of legislation being presented this year that constitutes genuine sweeping reforms that would introduce legitimate equitable justice you would most likely vote against it. Why? Because terms like “public safety” and “justice” continue to be used by public manipulators to cultivate, facilitate, and perpetuate the institution of mass incarceration. People are easily swayed because emotions, specifically fear and anger, are directly connected with these and a variety of similar terms. People are just as easily duped into thinking a few tweaks to the “system” is all we need. So, legislators periodically pass a new bill that rearranges a few words in an antiquated law, and voila! All is supposed to be right and equitable . . . but it’s not. The term “criminal justice reform” is bandied about to convince distracted people that help is on the way, but it’s a farce. It’s merely a blanket to cover or conceal the hurt, the cracks, the ugliness, the disparities, and ultimately the “mass incarceration.” Like this morning’s blanket of snow that covered all our landscape’s blemishes, it’s temporary. Politicians have promised equitable reforms since the birth of democracy. I don’t think they’ve ever intended to deliver. Instead, they hope their empty promises will serve as a distraction for “just” long enough to quell societal passions.
Occasionally, I am asked about the severity of my sentence. Some folks who are unfamiliar with the punitive nature of our criminal justice system have a hard time understanding my story. They interrogate me anticipating details that might help justify my lifetime of imprisonment. They don’t exist. My story doesn’t change. I was a teenager, not a criminal “mastermind.” I made the wrong choice. This is my life as I know it. The courts have had opportunities to review my punishment, but they’ve failed to reduce it to something more commensurate with the crime. My jury was given two jury instructions that were later deemed illegal. I challenged my conviction on those grounds and the appellate court determined it was “harmless error”! I was given an exceptional sentence outside the guidelines and above the standard range, and again the practice was later deemed illegal. However, when I challenged it, the appellate court responded with some legal mumbo jumbo that said even though the practice was no longer legal (which meant they acknowledged my sentence was illegal) I couldn’t challenge it! The precedent-setting legal decisions that rendered those practices illegal are mere blankets of snow hiding ugliness. They seem great, but every time the blanket of snow melts, the ugliness remains . . . like me and my continued incarceration. I’m still here . . . watching the snow fall.
Before Christmas, I read a 2017 book entitled Locked In by John F. Pfaff, professor of law at Fordham Law School. Pfaff lays out a comprehensive narrative that details the evolution of prosecutorial power. He suggests that politics and unfettered prosecutors play a fundamental role in the mass incarceration that plagues our society, a plague that I’ve experienced every day for more than a quarter-century. I do not like all his assertions, but he is clearly on to something regarding some contributing factors to mass incarceration. There was a particularly difficult excerpt for me to read. It describes a national comparative example for the most severe punishment for aggravated assault and limits it to 25 years. I have served 26 years so far . . . and counting. The excerpt is as follows:
“Newspaper accounts at the time of a high-profile arrest or conviction will generally report
the statutory maximum more than the likely guideline sentence: ‘He faces up to 25 years in
prison,’ not, ‘As a second-time offender without any additional aggravating factors, his
guideline range is probably six to nine years.’ Guidelines allow legislators to limit the
sentences for run-of-the-mill violent crimes in a less obvious, and thus politically safer, way.
Moreover, we may not want to lower official maximums, because there may be cases
where the current maximum sentence is politically (or even morally) necessary. We may be
better off in a system where the default for aggravated assault is set to ten years, but the
maximum remains twenty-five, rather than one where we lower the maximum to ten years
only to have a particularly horrific assault result in demands to raise the maximum–for all
aggravated assaults–back to twenty-five.” (Pfaff 197)
It was difficult not to be emotionally affected when I read those words and processed what they meant. In no way do I dispute that terms such as “aggravated” and “horrific” are applicable. However, so too should terms such as “first-time offender” and “accomplice” and “teenager.” I acknowledge that I am culpable for what happened. It has been a lifelong struggle to accept and process that reality. I will omit the traditional list of excuses with one simple caveat consistent with contemporary juvenile brain science: When I think back to the moment that changed so many lives forever, I see several more viable options now than I did then. That being said, it does seem a little selfish of me to whine about serving a few more years than what some law professor envisions as the most severe punishment, but it still hurt to read those words, to see them printed in text. Again, I’ve served 26 years. I think of my precious mom who is still hanging on, but for how long? I hope she gets to see who I’ve become.
Some courts have begun to recognize a diminished culpability standard for “emerging adults,” following the emergence of contemporary juvenile brain science. This new legal precedent has compelled Washington State politicians to draft new legislation (HB1344) that, if passed, would allow persons like me, who committed their offense prior to age 25 and are serving a draconian sentence, to petition the Indeterminate Sentence Review Board (ISRB) for conditional release. It seems another mediocre attempt to legally recognizing contemporary juvenile brain science, but it’s most likely a way to mitigate it. However, maybe some are finally willing to publicly acknowledge that the juvenile brain isn’t magically mature at age 18. Anecdotal evidence supporting that has been around for much longer. Why do you think car insurance rates go down after age 25?
Who knows how thick of a blanket of snow this (again, if it passes) will turn out to be. I genuinely hope it turns out to be something more than another tweak to the status quo of mass incarceration, but if history is an indication, I wouldn’t count on it. Let’s face it, the concept of political courage is an oxymoron, but that’s precisely what it will take to facilitate meaningful reform. Until then, they will continue following nature’s example and cover it with a beautiful blanket of snow every once in a while. It will look great . . . ’til the temperature rises and the reforms melt.
Birds fly and scavenge. Rabbits hop, frolic, and sometimes panhandle. Snow falls . . .
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