Tag Archives: incarceration

Once and Always a Criminal?

Andrew Falk, left, a senior fellow at the Sagamore Institute, works with Michelle Jones on a housing policy proposal at the Indiana Women’s Prison. ANDREW SPEAR FOR THE MARSHALL PROJECT

 


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A convicted murderer is accepted into Harvard University’s graduate history program only to have university officials override the admissions decision for fear of what news reports might say, among other stated and unstated concerns: If you didn’t read this compelling story, reported by Eli Hager at The Marshall Project, a nonprofit group focused on criminal justice, and published in the New York Times, you should. It is a forceful reminder of how we fail to think adequately about the ends and means of justice.

Michelle Jones, who is starting work on her Ph.D. at New York University this fall, was released from prison last August after serving twenty years of a fifty-year sentence for murdering her four-year-old son. The story of how she managed to become a published scholar of American history while incarcerated at an Indiana state prison—with no access to the Internet—is impressive in its own right. According to Hager, not only did Jones, now 45, lead “a team of inmates that pored through reams of photocopied documents from the [Indiana State Archives] to produce the Indiana Historical Society’s best research project last year. As prisoner number 970554, Ms. Jones also wrote several dance compositions and historical plays, one of which is slated to open at an Indianapolis theater in December.”

The details of why Harvard overrode the history department’s decision to admit Jones (one of eighteen selected from more than 300 applicants) are not entirely clear. However, Hager uncovered a memo from two American studies professors who examined Jones’s acceptance (she was a top alternate) and “questioned whether she had minimized her crime ‘to the point of misrepresentation.’” One of the professors, John Stauffer, further noted that “frankly, we knew that anyone could just punch her crime into Google, and Fox News would probably say that P.C. liberal Harvard gave 200 grand of funding to a child murderer, who also happened to be a minority. I mean, c’mon.”

C’mon indeed. Probably unintentionally, Stauffer voiced one of the unspoken presumptions of America’s criminal justice system: once a criminal, always a criminal. This presumption too often becomes a self-fulfilling prophecy because of the collateral consequences those with criminal convictions face after release from incarceration, including restrictions on access to employment, student loans, public housing, and other federal benefits.

But there is more for us to consider.

The one thing we know for sure is that Jones’s possible “misrepresentation” and “minimizing” version of her crime was cause for concern. Her crime was unquestionably a terrible one. After getting pregnant at fourteen as a result of what she called nonconsensual sex with a high-school senior, her mother beat her in the stomach with a board and she was placed in a series of group homes and foster family situations. This damaged and completely unprepared mother ultimately confessed to beating her four-year-old son and leaving him alone for days in their apartment, eventually returning to find him dead. Jones was twenty when she committed this horrible crime, which a personal statement accompanying her Harvard application described as the result of a “psychological breakdown after years of abandonment and domestic violence.”

Her statement that she killed her son partly because of her own trauma and psychological breakdown speaks to an unresolved tension in our thinking about crime. On one hand, we need to believe that there are reasons why people commit crimes; otherwise, we fear that anyone could become a victim or a perpetrator of violence at any moment. At the same time, we can give only so much credence, or even thought, to the explanation of why a crime was committed; too much understanding might cause us to question our criminal justice system’s reliance on incarceration as the most efficacious response to crime.

The belief that offenders should accept their responsibility and repent of their wrongdoing is so baked into our criminal justice system that it rewards offenders by taking months and sometimes years off their sentences if they say the magic words. As a federal public defender, I have counseled clients about their allocution to the court before they are sentenced. After all the lawyers have spoken, what should defendants say in those final moments before the gavel drops? The general advice is always to avoid blaming anyone else—or even pointing to conditions beyond one’s control—because the American myth of self-reliance and autonomy requires the defendant to bear the full weight of the offense in that moment. And when defendants offer their mea culpas, they give us all permission to think that justice has been well and fairly served.

After Jones spent many of the best years of her life in prison, why should it matter now how she describes something she did a little more than two decades ago? It matters because we need to ask ourselves whether the actions of someone as bright and capable as Jones were largely the result of forces beyond her reasonable control, namely intense trauma and extreme psychological duress.

And if we conclude, reasonably, that they were, we might further ask if fifty years of incarceration was an appropriate sentence in the first place. Would fifteen years have sufficed? Would psychiatric hospitalization have been a better response? Undeniably, Jones’s crime was horrific, but she fulfilled her end of the bargain, doing everything that the sentencing court and the Indiana Department of Correction asked of her, and then some. The Sentencing Project estimates that 161,957 people were serving life sentences as of 2016. The other two million adults currently incarcerated in the United States will be released someday. If Jones is not entitled to have her debt declared repaid in full, what hope can we extend to them?

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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What Is Innocence Worth?

lorish innocence FLAT

In its recent Nelson v. Colorado decision, the Supreme Court affirmed what might have seemed to require no formal affirmation—namely, that a person whose criminal conviction is overturned on appeal is entitled to the return of any fees, court costs, or restitution paid to the state as a result of the conviction. Previously, the state of Colorado required an exonerated defendant to file a separate civil suit and prove actual innocence by clear and convincing evidence before funds would be repaid. Having a conviction overturned on a mere legal technicality would not suffice for financial recovery. The central question in the case—which was decided six to one in favor of the petitioners, with Justice Clarence Thomas dissenting—concerned due process.

While it was notable that the Supreme Court took up such a seemingly self-evident case, the Court did not address the question of compensation for periods of wrongful incarceration. Justice Ginsburg, writing for the majority, explained that the “[petitioners] seek restoration of funds they paid to the State, not compensation for temporary deprivation of those funds. Petitioners seek only their money back, not interest on those funds for the period the funds were in the State’s custody.” Justice Ginsburg continued: “Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction.” She made it clear what compensation is and what it is not: While compensation may be the return of something wrongfully taken, it is not necessarily compensation to be released from prison in which one was held for no lawful reason in the first place. Compensation is something more—an award for loss, suffering, or an injury. Continue reading

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Laugh Track: An Interview with William T. Oree

William T. Oree is serving twelve years to life at Attica Correctional Facility. He is the founder, writer, and editor of The Prisoner’s Lampoon, a self-published prison comedy magazine; his work has also been published in The Harvard Lampoon. He and his comedy writing partner are shopping a pilot script called PEN * PALS to production companies in Los Angeles. He is the inventor of “jailhouse comedy,” a blend of edgy, often raw humor with a little Shakespeare thrown in for good measure.

The Hedgehog Review: Obviously, your current situation informs much of your work. What do you use about prison in your comedy or theater performances?
William Oree: In the comedy genre I created, jailhouse, I have to be authentic. I have to tell the truth about the good, the bad, and the ugly aspects of incarceration. I write and perform material that is raw, zany, and politically incorrect. This truth would speak volumes in any forum, but especially so in prison.

Tell us about some of the topics that you want to address in your comedy.
I have had great success cloaking highly charged political, social, racial, and sexual issues in comedy. I have addressed everything from the Black Lives Matter movement to prison rape. I don’t mock the seriousness of these issues. Instead, I expose the racial divide that is at the center of so much of what I treat comically.

For example, I wrote a sketch for the “Disturbed Recesses of My Mind” issue of The Harvard Lampoon (May 2016) in which I relate the travails of a man who was arrested for sucking out the fillings of all the fruit pies in his neighborhood supermarket. He was arrested and prosecuted but neither the judge nor the district attorney recognized that he had a sugar addiction. They saw his actions solely as a crime for which incarceration was the only recourse. Thus, the idea of addiction became neither a medical nor a health issue but a social problem for which the only solution was going to prison. To me, it is comically obvious that what this guy needs is treatment not a jail cell.

In that same issue of the Harvard Lampoon, I had a piece, “Save America: One Crackhead at a Time,” in which I challenged society to address substance abuse through a skit about a family who invites a crackhead into their home and he gradually begins to relieve them of all their creature comforts. The point is dressed in humor, but I wanted to shock the audience into recognizing that they can address society’s ills by being proactive, no matter how silly it might seem.

Are there any subjects that you just won’t touch? Why not?
My sister was murdered under conditions inaccurately described as “domestic violence.” I find no humor in violence against women and children. When it comes to interfering in other people’s relationships, my instinct tells me to get involved—I’ve had heated arguments with many other prisoners who disagree. Many simply turn a blind eye to domestic violence. Sad. At the same time, I have to add that many of my fellow inmates have said that they would interfere to help a woman or child being attacked by a “stranger.”

What was your life like growing up?
I’m not sure if I ever grew up. My childhood was marred by two suicide attempts, the murder of my teenage sister, living with alcoholic parents, being in the foster care system, and the lack of hot running water. Because of my family’s situation, I became a sort of family “hero,” developing certain survival skills and protecting my siblings from starvation, molestation, exploitation, physical, emotional, and spiritual abuse, and the shame associated with being the children of alcoholics. I became an unashamed liar and a thief, stealing to put food on the table. I essentially sacrificed my childhood for the well-being of my family.

How did you end up in Attica?
Two reasons: I escaped from a New York City jail where I was being held for trial. Also, I received a twelve-years-to-life sentence for being a habitual offender—in New York, three or more felony convictions qualifies you for a life sentence.

Did you do theater or stand-up on the outside? If so, in what sorts of circumstances?
My theatrical training started in my youth. As a child of alcoholic parents, I developed the ability to adopt different personas in order to protect my family. For example, when confronted with bill collectors and landlords I’d do all the talking for my parents. From an early age, I seemed to be able to make people trust me and I became a skilled liar. I discovered that adults will usually listen to a child’s pleas when they won’t listen to those of a grown-up. I recall practicing how to sound like a responsible, middle-class, educated adult.

By the time I got to high school, I was active in drama club. If I didn’t get a speaking part in the school play, I worked as a stagehand. I learned how to be a stage manager and lighting designer. After high school, I started a break-dancing troupe, the Max Factors. We later moved to the Boston/Cambridge area to perform. Break-dancing was new, and we made a name for ourselves performing at the many colleges and universities in that area. But break-dancing didn’t last too long and, lucky for me, I knew how to network. Through my connections, I found odd jobs at local college drama departments and I worked as a lighting assistant and stage manager assistant. I eventually received a stage management internship at American Repertory Theater, but I walked off the job after insisting their techniques were inferior. Still, I made friends with a movie actor there who worked as an understudy for the role of stand-up comic. He invited me for drinks at open-mic night at a local comedy club. A few drinks later, I was onstage telling the story of my life and making people laugh. Unfortunately, when I returned to the club the next week, I was unprepared and failed to get even a giggle.

Who were your role models? How were you influenced by these people?
One was a police officer who taught me how to act my age—I was twelve—when I was trying to act like a thirty-something. Also, there was the founder of the Fortune Society who taught me to create an opportunity where there were none. [Since 1967, The Fortune Society has worked to assist ex-offenders as they return to society.] And there was the neighborhood crackhead who taught me that my life should not be defined by how many times I’d be knocked down, but by how many times I get up. Last but not least, a stand-up comedian who taught me to write, rewrite, and rewrite again.

You have said “to be an effective comedian, I have to meet the audience where they are.” Can you say a little more about this?
To be effective in comedy, you must know your audience. My audience is literally a tough crowd. Murderers, drug lords, thugs, and lost souls. Because my audience is in a state of psychological, sociological, and physical captivity, I have to craft my sets accordingly. I can’t simply tell jokes.

You can never be sure of what will work with a jailhouse audience. If the day before, the correctional staff assaulted a well-loved and respected inmate, the mood of the population could be restless and belligerent. Part of my craft is knowing how to elucidate the sordidness of daily prison life with humor. Truly, a tough task! I have to mix it up—a sketch here, a narrative there, followed by some Shakespeare, or something polemical. Because my audience is fluid, I have to move like water!

When you specialize in jailhouse comedy, there’s an abundance of material all around. I often say, jokingly, that I perform under duress—you can’t afford to bomb before an Attica audience. These guys have killed for less! But seriously.… In my comedy, I can address many distasteful prison conditions: strip-frisking, cavity searches—I’ve gotten a lot of laughs on that one, believe it or not! The jailhouse brand of humor emerged from just this kind of raw and edgy material.

As a performer, how do you keep people interested in what you are doing?
I have discovered that the average time a prisoner will engage with my routine is between five and fifteen minutes. That’s why I never lead with my best stuff. I often employ a strategy that works up the audience by sprinkling my sets with diatribes about current social or political topics. Polemics are alive and well in prison. This is often the means by which prisoners relieve their aggression in a safe and healthy manner. If all else fails, I pull out a few monologues by Shakespeare—you’d be amazed how much prisoners appreciate iambic pentameter. Plus, peel back the layers on just about any Shakespeare character and you’ll discover a polemical impetus.

In your work in Attica, you depend on collaboration, with fellow inmates and colleagues on the outside. What sort of collaborations have you had with people on the outside?
I collaborate with anyone willing to match my commitment to performance. At present, I am working with another prisoner who has started a performing artist program in another facility. He is awesome! I’m also working with a volunteer community college professor and the artistic director of the Glimmerglass Festival [an opera festival in Cooperstown, New York] to make Attica’s theater arts program a success. The Glimmerglass opera company has performed twice for the prisoners in Attica and I think this led to the prison administration’s approval of our performing arts project. My writing partner, Sierra Katow, is a Harvard graduate who appeared on the NBC reality television show Last Comic Standing in 2015. I wrote to her out of the blue and she wrote back, requesting samples of my work. Today, we write sitcom pilots together.

Tell us about your theater arts program at Attica. What was the origin of the program and its goals?
The Glimmerglass opera performances at Attica helped the prison administration recognize the value of a theatrical arts program. But I also campaigned for three years to get the program approved. During that time, I performed Shakespeare at as many inmate events as I could. Finally, I became recognized and acknowledged for my dramatic abilities. I think it helped to be able to show the administration that I had the promise of assistance from a fellow inmate and a drama professor and Glimmerglass’s artistic director, Francesca Zambello.

We recently received approval from Attica administrators to move ahead with the program. I have many goals for the program, but my primary objective is to establish an empathetic and caring community through theater arts. In a healthier environment, therapeutic ideas, such as conflict resolution, just work better. I have seen countless instances of how drama can be successful in helping people explore personal issues.

Recently, you performed Shakespeare at an Attica event. What was that like?
That performance took place at the Attica Lifers Organization picnic. I performed Mark Antony’s speech over the body of Julius Caesar, beginning with “But yesterday the word of Caesar might / Have stood against the world. Now lies he there, / And none so poor to do him reverence…. ” and going on to “Oh, now you weep, and, I perceive, you feel / The dint of pity. These are gracious drops.” I became so caught up that I actually had tears in my eyes. But it was wonderful—the prisoners loved it, the outside guest loved it. Even the corrections officers applauded—that was a first. I was just happy to be able to get through the scene without having the white bedsheets fall from my shoulders!

You are working with a partner on the outside to develop a cable show. Are there any developments on that project that you would like to share?
My comedy writing partner has decided to shop our PEN*PALS sitcom pilot script to a few production companies in Los Angeles. While I do a lot of writing, Sierra does all the heavy lifting. I am honored and blessed to have a professional partnership with her. She also edits my self-published magazine called The Prisoner’s Lampoon which specializes in jailhouse comedy. Before we send out any edition of The Prisoner’s Lampoon, we send out samples to introduce its rather unorthodox content. We do this because my work has been labeled “objurgating”—to which I respond that an objurgating title obfuscates the obstreperous nature of jailhouse comedy.

How have you found that performing changes the discussion when it comes to certain issues? Have there been times when your approach seemed to go nowhere? Why do you think that was?
Some time back, I wrote a dramatic piece about Florida’s Stand Your Ground Law. In the piece, I reversed the roles, having George Zimmerman in a hoodie walking through Trayvon Martin’s neighborhood. This went nowhere. Naturally, I knew that in a correctional facility where half the population is black and more than a third Latino a subject like this might be too delicate to address at all. But I wondered: What if I had written this piece as a comedy sketch? Would it have been more successful?

In the final analysis, we are all prisoners in one form or another. Whether in our careers, in personal relationships, or in our ties to the “good life” (home, car, education, family, financial security)—we believe we have freedom of choice, but do we really?

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What Attica Prisoners Want Harvard Law Students to Know

lennon-frat-boy-and-rikers_flat

The last great book I read made me cry and grind my teeth and pace my cell. It was written by a Harvard Law School graduate. It was Bryan Stevenson’s Just Mercy. With the best education in America, Mr. Stevenson chose to “get close to,” defend and ultimately save the lives of people on death row. People on these kind of missions—playing a bigger game in life—make murderers like me melt.

My name is John J. Lennon and I am a thirty-nine-year-old prisoner serving twenty-eight years to life at Attica Correctional Facility in western upstate New York. I was convicted of selling drugs and shooting a man to death on a Brooklyn street in 2001. I’m sorry for killing him, I’m sorry for it all.

That said, I’m not just a murderer. Today I’m also a journalist. Years ago, I fell into a couple of opportunities at Attica. In a privately funded pilot college program, I learned how to think better. In a creative writing workshop, I learned how to write clearly. Since then, my words have appeared in publications that make them matter. Continue reading

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Throwing Away the Key

When he was eighteen, Rene Lima-Marin and a friend robbed two Colorado video stores of around $11,500 in total, threatening the employees of both establishments with a gun. Both men were charged with two counts of first-degree burglary and three counts of aggravated robbery. Under pressure from years of rising gang violence in Denver, Colorado’s 18th Judicial Court answered the growing public outcry with tough, new sentencing protocols. Lima-Marin found himself labeled a chronic offender, likely to commit further crimes if he remained free. Offered seventy-five years if he pled guilty, he decided to risk going to trial, hoping that a lenient judge would find some or all of the evidence inadmissible. That didn’t happen, and Lima-Marin ended up paying what the National Association for Criminal Defense Lawyers call a “trial penalty”: a far greater sentence resulting from the efforts of prosecutors to make good on their threats to add extra charges if an individual goes to trial. Convicted, Lima-Marin was sentenced to ninety-eight years.

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine's son Justus. Courtesy the Lima-Marin Family via change.org.

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine’s son Justus. Courtesy the Lima-Marin Family via change.org.

What makes the case remarkable is what happened next. In what his attorney legitimately believed was the result of an appeal (but was in fact the product of clerical error), Lima-Marin came up for parole after serving only a decade of what was essentially a life sentence. Released, he immediately moved in with his former girlfriend and became stepfather to her son. He found and held jobs. The couple married, became regular church-goers, bought a home, and had a son together. Lima-Marin mentored at-risk youth and coached his stepson’s soccer team. He committed no new crimes and successfully completed his five years on parole.

Then, five years and eight months after he was released, Lima-Marin received a call notifying him that his release had been a mistake and that a judge had signed the order for his arrest. He was picked up the very same day and, after a quick hearing, was taken back to prison where he faced at least seventy-five more years before possible parole.

All students of criminal law learn that there are five different justifications for the punishment of those who commit crimes: retribution, deterrence, rehabilitation, restoration, and incapacitation. In federal criminal practice, these rationales are explicitly spelled out by statute. And yet with all of these considerations supposedly in play, the vast majority of criminal sentences in the United States are handled with two tools, sometimes combined: financial fines and incarceration (often followed by a period of supervised release or probation). Our bluntest tool—incarceration—takes account of retribution (punishing a societal wrong), incapacitation (keeping someone dangerous off the streets), and deterrence (providing a disincentive for committing this kind of criminal behavior). Financial penalties reflect the need for restoration (making a wrong right), at least in cases of fraud and theft, although for the vast majority of offenses that result in fines (driving offenses or other crimes against “society”), the imposition of a monetary payment appears to be more about retribution and deterrence than anything else. Moreover, when fines with quickly accruing interest go unpaid, incarceration often results.

But while fines and incarceration satisfy most justifications for punishment, it would be hard to argue they do anything for rehabilitation. Indeed, with many jails and prisons now offering prisoners little or no any access to educational opportunities (sometimes even basic GED classes), vocational training, or mental-health or addiction treatment, few would say that incarceration is serving any rehabilitative purpose.

Although not alone, philosopher Jonathan Jacobs makes a persuasive case that incarceration, far from rehabilitating, usually has a corrosive effect on the character of prisoners. He points to several contributing factors: a lack of autonomy, the (at least seeming) arbitrariness of disciplinary regulations and sanctions, the constant threat of violence, the lack of meaningful social interactions, and inadequate mental-health care. Additional post-incarceration hurdles faced by a convicted felon (lack of access to government benefits and loans; severely limited employment possibilities) only increase the likelihood that he or she will be driven back to crime.

The most recent Bureau of Justice statistics on recidivism provide rates for state prisoners released from incarceration in 2005, but the results are staggering nonetheless. Two-thirds of the state prisoners tracked in this study were re-arrested (not necessarily re-convicted) within three years of their release. That number jumped to three-quarters within five years of release.

The case of Lima-Marin should make us stop and ask why we punish, and what happens to those we punish. The system of parole (abolished federally and in many states) used to provide for indeterminate sentences with the possibility of earlier release depending on a defendant’s behavior and demonstrated rehabilitation. The movement to abolish parole in the 1990s coincided with the push to legislate mandatory minimum sentences, the aim of both being the elimination of discretion, and therefore discrepancies, among criminal sentences.

But uniform sentencing is both a blessing (arguably counteracting racial and other biases) and a curse (removing the ability of a judge or parole board to individually assess an offender). Perhaps more important, eliminating parole removes the political risk of a recently paroled offender’s committing a new and grisly crime and the public outcry in response. Ultimately, though, the demise of parole sends a deeply demoralizing message to the incarcerated: We don’t care what you do to try to rebuild your life while you are in prison. In a much publicized contrast to the American system, Norway caps criminal sentences at twenty-one years, extending them in five-year increments only if it is determined that an offender is not rehabilitated by the end of his or her initial term.

Lima-Marin beat the odds on rebuilding his life without committing another crime within five years after his release, and he did so after serving only about a one-tenth of his sentence. In addition to causing us to think about the sheer length of the sentence he received at age 18, might not his story suggest that rehabilitation needs a more prominent place in our thinking about the means and ends of punishment?

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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