New Book: “From Black Power to Prison Power”

Here’s a new book likely of interest to readers of this blog (h/t: Al Brophy at the Faculty Lounge): From Black Power to Prison Power, by Donald F. Tibbs (Macmillan, 2012):

This book uses the landmark case Jones v. North Carolina Prisoners’ Labor Union to examine the strategies of prison inmates using race and radicalism to inspire the formation of an inmate labor union. It thus rekindles the debate over the triumphs and troubles associated with the use of Black Power as a platform for influencing legal policy and effecting change for inmates. While the ideology of the prison rights movement was complex, it rested on the underlying principle that the right to organize, and engage in political dissidence, was not only a First Amendment right guaranteed to free blacks, but one that should be explicitly guaranteed to captive blacks—a point too often overlooked in previous analyses. Ultimately, this seminal case study not only illuminates the history of Black Power but that of the broader prisoners’ rights movement as well.

Prisoners’ rights to unionize last came up on this blog during the Georgia prison strike (?) of 2010. You can read the full Jones opinion here.

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Historian Rebecca McLennan on “When Felons Were Human”

Thanks to a reader who sent me this article by Berkeley historian Rebecca McLennan, which traces the nineteenth-century legal and political changes that have enabled twentieth-century Americans to write prisoners out of the categories of “human” and “citizen.” McLennan writes:

Why do the courts, lawmakers, and majority opinion ignore the mounting evidence that a large-scale human rights crisis is underway in the United States? Why, on those occasions when news media document the most extreme prison abuses, do few of us conceptualize them as human rights abuses? Why, in a country where mass movements mobilized in both the nineteenth and the twentieth centuries to protest and change prison conditions, is there so little public concern over prison violence, overcrowding, the long term use of indefinite isolation, and the de jure and de facto erosion of prisoners’ civil rights?

In the course of my work as a historian of American law and society, I have pondered these questions frequently—enough to realize that, as formulated here, they’re in need of considerable refinement. But the history of America’s various modes of legal punishment leads me to suspect that our general failure to recognize certain prison abuses as human rights abuses is largely a consequence of the exceptional and degraded legal and moral status of convicted offenders. If we understand human rights as inalienable rights that flow from the mere fact of being human, it is hard to escape the conclusion that here in the United States prisoners and convicted offenders more generally do not count, at least in the eyes of the law and a vocal minority of opinion-shapers, as fully human. This drastic erosion of prisoners’ status transpired in the last twenty years of the 20th century and is the result of complex social, economic, and political forces. But, as I’ll suggest here, the courts and lawmakers of the nineteenth century helped lay the legal pathway to this dismal state of affairs by reviving and modernizing the early medieval legal fiction of the convict’s civiliter mortuus (civil death).

The article is well worth a read. McLennan is the author of a history of nineteenth-century punishment, The Crisis of Imprisonment, which I also highly recommend to anyone interested in the deep past of the American criminal justice system. A theme of that book is how widespread popular dissent led to the dismantling of systems of imprisonment at several moments in American history.

The Path Not Taken in Oklahoma Sentencing Reform

Jim Campbell had a fascinating story in the Tulsa World this week about a set of bipartisan legislative proposals in the 1990s that could have brought Oklahoma’s prison system back from the “tough-on-crime” brink — only to meet with resistance:

Richard Kirby, [Gov. Frank] Keating’s legal adviser and delegate to the legislative panel, said the governor initially “had a lot of hope for it.”

“Then he was beginning to hear concerns from the law enforcement community about certain aspects of it,” said Kirby, now an Oklahoma County associate district judge. “One thing I heard was that the matrix required nine felony convictions before any time in prison. I think the matrix was a problem for a lot of people. The DAs were not brought in for the first part.”

The article is well worth reading in full — some of the story will be familiar (like high-profile crimes spurring bad policy reactions), and of course you’ll have to read between the lines of the quotes offered by self-serving politicians, but Campbell provides a detailed account of the interplay between federal judicial oversight, legislative incentives, the district attorneys’ lobby, and other political factors that make Oklahoma an illuminating case study. The piece is part of the ongoing Oklahoma Watch project on the state’s highest-in-the-nation female incarceration rate, which you can learn more about here.

UPDATE: Aaand it looks like this history could be repeating itself in Indiana.

The Paradox of Prison Conditions Litigation

Heather Schoenfeld of Northwestern Law has a new article out entitled “Mass Incarceration and the Paradox of Prison Conditions Litigation” (h/t: Legal History Blog). From the abstract:

In this article I examine how prison conditions litigation in the 1970s, as an outgrowth of the civil rights movement, inadvertently contributed to the rise of mass incarceration in the United States. Using Florida as a case study, I detail how prison conditions litigation that aimed to reduce incarceration was translated in the political arena as a court order to build prisons. … The findings suggest how “successful” court challenges for institutional change can have long-term outcomes that are contrary to social justice goals. The paradox of prison litigation is especially compelling because inmates’ lawyers were specifically concerned about racial injustice, yet mass incarceration is arguably the greatest obstacle to racial equality in the twenty-first century.

On the Imperial Past of America’s Prisons

If you’re interested in the deep past of America’s carceral state, and/or American imperial history, then you may want to take a look at Colonial Crucible: Empire in the Making of the Modern American State, a 2009 edited volume put together by Alfred McCoy and Francisco Scarano and published by the University of Wisconsin Press. (At the moment, I happen to be making my way through McCoy’s important — and dense — other recent book, Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State, also out from Wisconsin in 2009.)

Colonial Crucible is a series of essays about ways in which the United States’ Pacific and Caribbean empire shaped U.S. policy both abroad and at home. In the publisher’s words,

the essays in this volume show how the challenge of ruling such far-flung territories strained the U.S. state to its limits, creating both the need and the opportunity for bold social experiments not yet possible within the United States itself. Plunging Washington’s rudimentary bureaucracy into the white heat of nationalist revolution and imperial rivalry, colonialism was a crucible of change in American statecraft. From an expansion of the federal government to the creation of agile public-private networks for more effective global governance, U.S. empire produced far-reaching innovations.

Of particular interest to readers of this blog might be Part 2, “Police, Prisons, and Law Enforcement,” which includes essays on American penal practices in colonial Puerto Rico, the prohibition of opium in the Philippines, policing in the Philippines, and, again in the Philippines, the Iwahig Penal Colony, opened in 1904 to alleviate overcrowding in Manila’s central penitentiary.

New Blog from the Alcohol & Drugs History Society

FYI: the Alcohol & Drugs History Society has launched a new blog, Points.

The Interplay of Prisoners’ Rights Litigation and Privatization in Texas

Craig Malisow of the Houston Press offers an interesting historical perspective on Texas’s turn to private prisons:

In 1978, Judge William Wayne Justice of the Eastern District of Texas presided over a class action lawsuit filed on behalf of all Texas prisoners against the Texas Department of Corrections (as it was then known). Two years later, Justice ruled that TDC violated prisoners’ constitutional rights in six areas. The department and the prisoners entered a consent decree regarding the necessary improvements.

The changes were slow to come, a problem exacerbated by the rapidly increasing number of inmates. “By the mid-1980s, Judge Justice had become so impatient with the pace at which the state was changing its prison system that he demanded that the state pay a daily fine in excess of $800,000 if it did not improve its efforts to comply with the mandates of the decision,” according to the Abt report.

Freaked out by the potential financial hemorrhage, lawmakers in 1987 passed the first bit of legislation that would allow the TDC — rechristened the Texas Department of Criminal Justice in 1989 — the ability to contract with private vendors for the housing of prisoners, parolees and juvenile offenders.

To follow all things Texas criminal justice, bookmark Grits for Breakfast, and if you’re interested in private prisons specifically, do the same with Texas Prison Bid’ness. I don’t write as much about Texas in this space as I do about other big states — partly because I happen to live in California, but mainly because Texas prison/jail issues are covered so much more knowledgeably and comprehensively over at Grits.

Prison Higher Education Programs: An Unfunded Unmandate

A letter in today’s New York Times, from Vivian Nixon of the College and Community Fellowship, relates the Georgia prison strike to a broader problem — the dearth of funding for prison higher education programs:

Georgia inmates contend that access to educational opportunities beyond the G.E.D. will better prepare them for re-entry and decrease crime and recidivism. They’re not the only ones who know this to be true.

Reports released by the United States Education Department, the Justice Department and state correction departments all recognize the myriad benefits of educating prisoners. Since 1994, incarcerated students have been barred from receiving Pell grants despite the fact that prisoners received less than 1 percent of all Pell grant dollars awarded and that postsecondary education has proved to be the most successful and cost-effective way to reduce recidivism and increase public safety.

It’s worth keeping in mind exactly what happened when President Clinton signed the Violent Crime Control and Law Enforcement Act, which authorized almost $10 billion of federal grants for state prison construction while in the same stroke cutting off the $200 million of annual Pell grants that had been going to prisoners because God forbid we allocate 3/5 of 1 percent of the annual outlays of a relatively modest federal program to prisons! In 1994, there were over 350 higher education programs in prisons around the country, with about 40,000 inmates enrolled. (Note that there were also only about a million prisoners, compared with about 2 million now.) Within a year of the act’s passage, as well as copycat acts at the state level, there were fewer than a dozen. Congress and President Clinton collaborated to all but eliminate higher education programs in American prisons. Few federal statutes have so thoroughly and immediately achieved their aim.

It’s also worth keeping in mind the inanity of the rhetoric that got this measure passed. Senator Pell himself supported the use of his namesake grants by prisoners. But Kay Bailey Hutchison claimed that “Pell Grants are a great scam: rob a store, go to jail, and get your degree.” Let’s take a moment to think this through. Even if it were true, in 1994, that a person contemplating enrolling in college would find committing a robbery an easier way to do that than simply filling out an application to college, wouldn’t that have been a pretty glaring indicator that something had gone terribly awry, not with prison policy, but with the education system? But of course, Hutchison wasn’t really trading in facts and logic but in the general demonization of “criminals” that drove so much policymaking in the early 1990s.

The irony, of course, or maybe this was just the point all along, is that Hutchison was right: Hundreds of thousands of would-be college students have been denied access to higher education because of money spent on prisoners, but not because prisoners have been sucking up all the college grants. In many states prisons now receive far more government funding than colleges and universities do — even though all that government funding mostly goes to keeping prisoners idle. As California struggles to keep not just its once-legendary state university system but also the state itself afloat, it’s worth noting, as UCLA professor Chan Noriega recently calculated, that “California could send every last prisoner to a UC campus, covering all expenses, and still save nearly $2.3 billion per year.”

A Different Take on Prison Labor and the Thirteenth Amendment

As I noted in my post this morning, courts have generally interpreted the Thirteenth Amendment’s punishments-for-crimes exception to bar legal challenges to prison labor requirements. But I should have noted there is an alternative view which holds that this interpretation is a misreading. Law professor Raja Raghunath of the University of Denver has reminded me of his 2009 article in the William & Mary Bill of Rights Journal, which argues that the Thirteenth Amendment has been historically misconstrued by the federal courts, and that many forms of modern prison labor would fall under the constitutional ban of involuntary servitude, properly construed.

Prof. Raghunath’s article can be downloaded here or at SSRN. From the abstract:

Although in some states inmates may still be sentenced to hard labor, in most systems today they labor under a more general requirement that, if they are able-bodied, they must work. Reading the word ‘punishment’ in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced – which is not the vast majority of inmates compelled to work in the present day – should be exempted from the general ban on involuntary servitude. …

This article argues that the reason courts have broadened of the meaning of ‘punishment’ in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials’ actions. This article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole.

Prison Labor and the Thirteenth Amendment

An issue raised by the Georgia prison strike is whether and how much prisoners should be paid for their labor. Here’s the first bullet point from the strikers’ list of demands (which I reproduced here):

· A LIVING WAGE FOR WORK: In violation of the 13th Amendment to the Constitution prohibiting slavery and involuntary servitude, the DOC demands prisoners work for free.

As this is ostensibly a legal blog, I would be remiss if I didn’t point out that it does not, in fact, violate the Thirteenth Amendment to require prisoners to work for free. (That, of course, is an entirely separate issue from whether prisoners should be paid as a policy matter, or whether particular prisoners may have constitutionally cognizable challenges to particular work assignments — I’m speaking here at a broad level of generality.) And I’d rather risk pedantic than remiss, so here’s the text of the Thirteenth Amendment, passed and ratified in 1865, with the relevant language bolded:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

This is why states that do pay prisoners can legally pay them well under the minimum wage. From the Prison Policy Initiative, here’s a breakdown of prison hourly wages, ranging from $0 in Georgia and Texas, to 13 cents in Nevada prison camps, to $1.15 in some federal prison industries jobs.

Prisoners also face basically insurmountable barriers to forming unions. As summarized by the Jailhouse Lawyers Handbook:

Prison officials are permitted to ban petitions, like those asking for improvements in prison conditions, as long as prisoners have other ways to voice their complaints. Duamutef v. O’Keefe, 98 F.3d 22 (2d Cir. 1996). Officials can ban a prisoner from forming an association or union of inmates, because it is reasonable to conclude that such organizing activity would involve threats to prison security. Brooks v. Wainwright, 439 F. Supp. 1335 (M.D. Fl. 1977). In one very important case, the Supreme Court upheld the prison’s ban on union meetings, solicitation of other prisoners to join the union, and bulk mailings from the union to prisoners, as long as there were other ways for prisoners to communicate complaints to prison officials and for the union to communicate with prisoners. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).

Given all of these legal barriers, not to mention the practical barriers of prison life, it’s all the more remarkable that Georgia prisoners were able to organize and carry out a collective protest of any kind, much less one that lasted almost a week (well, depending on who you ask, the prisoners or the guards) and that attracted national media attention. Hopefully, their demands will draw attention to prison conditions not just in Georgia but around the country.

For those interested in the history of the Thirteenth Amendment, I’ve posted some notes and recommended reading after the jump.