This is Democracy – Episode 22: Prison Reform

Speaker 1: This …
Speaker 2: … is Democracy.
Speaker 1: A podcast that explores the inter-racial, inter-generational and intersectional unheard voices living in the world’s …
Speaker 2: … most influential democracy.
Jeremi: Welcome to our new episode of This is Democracy. Today we are talking about one of the most difficult issues in our society today. It’s an issue that we often avoid, the question of prison reform. How do we treat people in our prison system, how has our prison system changed over time, and what can we do about it? We have with us my colleague and friend, Michele Deitch. She is really the expert on these issues in Texas, and one of the leading experts in the United States and the world. She was just telling me about some comparative work she’s done in foreign countries as well. Michele is a professor at the LBJ School here at UT and at the law school, as well as an individual admitted to the bar at the Supreme Court, which is really cool. It’s good to have you here, Michele.
Michele: Thank you so much for inviting me, Jeremi.
Jeremi: My pleasure. Before we start with Michele, we have a poem from Zachary. Zachary, what’s the title of your poem today?
Zachary: “Roll Me Away.”
Jeremi: “Roll Me Away.” Well, let’s roll on to it. Go ahead.
Zachary: Behind the steel and the moon is high, I sing softly to myself in tones of a secret romance with the lost breeze. I used to fight against the wind, wrap myself in long overcoats and with the purpose of many adolescent strains, walk fearsome through hail storms. The winds that used to sweep across the city streets when I was young, were young like me, embroiled in the battle between the lamppost and the stars. The first time I saw the countryside was in the back of a paddy wagon heading south on I-95, and it was maybe the New Jersey woodlands that made me sick that day. It was then when I stand out against the barred windows that I began to miss the sound of the rustle against the concrete, the muddy grass in my palms under the hot son.
Zachary: Five years after I smoked my first joint on a bus along the pier, I promised myself to the distance of freedom. Staring up at the gray ceiling on the cramped cot, I walk out of the gates in the flaming rocks, sitting in that patch of grass that I see from my window. I let the wind roll me away, and then they bang on the door to stop. Then I sulk into the mess hall and sip my apportioned gruel under the fluorescence, sit through the shakedowns, the strip searches, the sexual assaults in the next cell, and I would stare blankly at the stabbings, remembering the poetry, the poetry of the whatever isn’t this concrete place that keeps out the warmth and sucks in the cold into the warm hearts of aging teenagers lost among all of this overwhelming America.
Zachary: I howl like Ginsburg for all of us dying in bare madness cells, for all the lives sucked into the concrete. I sing like the sweet voices I once remembered close in the faraway lands of my dark skin against the rising of the sun. I weep, America, for all the lost. For the lost men, I weep. For the lost teachers, doctors, writers, I weep. For the lost memory, I weep. For the lost history of where we are, I weep. But mostly, America, it is for all the forgotten reasons.
Michele: Wow.
Jeremi: That is very powerful, Zachary. What is the message of your poem?
Zachary: That we’ve imprisoned so many young people for small infractions, and we’re imprisoning so many people, we’re always forgetting about it and none of us can remember why we do it, and why there’s so many more Americans in prison than other countries.
Jeremi: Why are you so concerned about this?
Zachary: I think it’s really scary to think that so many people who are not that much older than me are put in prisons for small things that often, in cases where they’re often the victims, not the criminals.
Jeremi: Well, on that powerful note, Michele, is this true? Does this happen in our society?
Michele: Wow. First of all, let me just say, Zachary, that was some poem. That really reflects a tremendous amount of understanding of what’s going on in our country. Thank you for that. Sure, there’s a lot of truth to that. I think that the real question in our country with regard to prison issues is, and you touched on all of them, Zachary, it’s who’s going into our prisons, why are they going in there, how long are they staying, and what’s happening to them when they get in there? All of those are real problems.
Jeremi: Right, and has this been a problem for a long time? Have we always put so many people in prison?
Michele: No, that’s what’s been really strange. For the first couple of hundred years in our country, the prison population was a very, very stable low number. Then something changed in the ’70s and ’80s, and we completely changed our relationship with incarceration. If you look at a graph of this, the numbers just spike just exponentially in the ’80s. In the space of about 10 years, we compressed about 100 years’ worth of growth that we would have had in the previous century.
Jeremi: Wow.
Michele: That happened for the next three decades.
Jeremi: Is this because of the drug war?
Michele: It’s partially because of the drug war, but I think it’s a mistake to blame this on any one factor. Certainly by the time the ’80s rolled around, we started having a very different attitude towards drug crime, with the Rockefeller drug laws and other federal sentencing guidelines really imposed very tough sentences for drug crimes. That did fill up our prisons, including very low level people committing crimes, but it’s not just that. It’s not just that.
Jeremi: Why is it so racially inflected? I mean so many more African-American men are in prison, a much higher proportion of the population, even a higher proportion than the number of crimes they commit, right?
Michele: Absolutely. All the research shows that different races commit crimes at exactly the same number. It’s not a matter of one racial group is committing more crimes than another. Those disparities start very early in the process. You see those disparities in the form of policing. Where do the police police, right?
Jeremi: Right.
Michele: They’re not going into gated neighborhoods. They’re going into the communities where people are out on the streets and the crimes are more visible. They’re policing more, they’re arresting more, and then there are systemic issues such as the ability for people without means to afford attorneys or to pay bail. You see these disparities sort of doubling on each other and keeping people incarcerated, and then you start seeing those disparities play out in sentencing patterns as well.
Jeremi: Zach, you had a question?
Zachary: Has there been more crime since when we see this spike in prison growth? Is it also correlate with the spike in crime, or is it just more arrests?
Michele: Well, those are really great questions. One of the factors that happened in the ’70s and the ’80s was that there was an increase in crime, certainly a perceived increase in crime. There’s some questions because there are differences in how those numbers were reported, but yes, there was definitely an increase in crime, which led to an increase in fear on the part of the public. That led to changing attitudes towards crime. Building prisons and putting people in prisons is not the only response to an increase in crime rate, and in fact, we kept on putting people in prison long after those crime rates started going down, and we now have crime rates that are at historic low levels, but we still have the highest incarceration rate in the world.
Jeremi: Why is this happening?
Michele: There are so many ways to answer that. Let’s start with the fact that in the United States, I think we have a very punitive culture. Our attitude towards crime, towards personal responsibility … We think that the only way we can hold people accountable is by punishing them in very painful ways. I think that’s part of it. Other countries don’t have that same attitude. We tend to see drug crime as a crime, as opposed to a public health issue, for example. That’s starting to change, particularly with the opioid epidemic, but it’s certainly the case that we see it that way. I think that we don’t understand all the ways that we could be holding people accountable other than through incarceration.
Jeremi: In a certain way, it’s a kind of lazy policy approach. It sounds good when you’re running for office to say, look, I’ve locked more people up.
Michele: You know, I think that a lot of politicians don’t know what they can do to stop crime.
Jeremi: Interesting.
Michele: This is something that is tangible. They can point to the fact that they paid for a new prison, and say I built that prison, as if building a prison is what solves crime. That’s like saying we’ve got a lot of disease in this country, so let’s build more hospitals.
Jeremi: Right, or quarantine more people, right?
Michele: Right. Why don’t we get at why that crime is happening, or the diseases are happening? It becomes a very politically viable solution for a lot of politicians.
Jeremi: Sure, sure. Is it fair to say there’s also a prison industrial complex, that there are people who benefit, including workers in certain communities sometimes, from these prisons?
Michele: Absolutely. Yes. Everyone benefits at some level from incarceration. You get rural communities that get a prison put in that community. It becomes a source of jobs. Research shows it’s not as much economic development as everyone thinks, but at least there’s a perception that there’s economic development from that. You get the companies that use concrete, you get the ones that make vests, you get the ones that provide food, you get the ones that provide metal. I mean running a prison is a small city. It is a city, so it needs all the services and industries that go into any other living environment. Yes, people benefit from that, workers owe their jobs to this. Then you’ve got private companies as well that are benefiting from it.
Jeremi: Sure. They profit from it.
Michele: They profit from it.
Zachary: They skim. How do they find a balance between … how do politicians justify spending on for-profit companies when they’re spending not that much less, and then they’re getting a lot worse return?
Michele: That is a very profound observation, Zachary, because in fact the research shows that even though private prisons were sold to law makers as a way to save money and get a better product, research shows they’re not getting either one. It’s actually costing us more, and they’re getting worse outcomes for it. In fact, in recent years, a lot of policy makers have moved away from using private prisons. They still exist, for sure, but they’re not quite as ingrained as they were some years ago.
Jeremi: Just to fully flesh out this picture of what’s happening, because so many of us are ignorant of it, the area I know you’ve done a lot of work on, what happens once someone is in the system?
Michele: Oh boy. There’s so much that we could talk about on that front. Let’s be clear that there are differences between jails and prisons, and because many of your listeners may not know the difference, jails are basically the local facility where someone is held after they’re arrested, and usually it’s primarily for people who are pre-trial or who are serving very short sentences.
Jeremi: It’s temporary.
Michele: It’s meant to be very temporary, whereas prisons are state-run facilities and it’s for people who are convicted and serving longer than, in most cases, a yearlong sentence.
Jeremi: And run by a state or the federal government in some cases.
Michele: Or the federal government, correct. People have very different experiences in both of those settings. Of course your experience will be dependent on your classification, meaning how you have been designated in terms of how dangerous you are, what kind of services and programs you need, what kind of facility you go in. Any one image I give you of what someone’s experience is may not match someone else’s, but for the vast majority of people who are incarcerated, they are going to have an experience that is pretty, I would describe it as boring, punctuated with moments of real fear, where they don’t get many services or programs, their lives are incredibly dreary and routinized, and they’re deprived of most privileges that we would all want to see. For those people who are in more extreme circumstances, there are people who are locked up in solitary confinement for many years on end. I have personally met people who have been locked in solitary confinement for 20 or 30 years.
Jeremi: Oh my gosh. 20 years?
Michele: 23 hour a day lockup without human contact.
Jeremi: Oh my gosh.
Michele: You will have many people who are in fairly dangerous facilities where they have to really worry for their safety. Many people have experienced sexual assault. It’s widespread in incarcerated settings. People who need mental health treatment, which represent an enormous proportion of people who are incarcerated, they’re not getting those services. Our jails, in fact, have become the main place or the main holding place for people with mental illness in our country, more than any other …
Jeremi: We put them there and just lock them away.
Michele: Our jails are literally our mental health facilities in this country.
Jeremi: Gosh, gosh. Is it fair to say that oftentimes the jails create more criminality by encouraging this and putting criminals together in a sense, right?
Michele: There’s that, but I think the bigger issue is that we’re not treating the underlying reasons why people are going into prison. We don’t ever look at root causes. What’s caused their drug use? What’s caused their criminality? We don’t get at those issues, and prison and jail is a very traumatizing experience. People come out worse, and do we want these people coming back to our communities, living next door to us, being in the movie theaters with us, without having been having those issues addressed?
Jeremi: Wow. Wow. What can we do about this? I know you’ve been working hard on this. I know you teach about also, Michele. It’s hard enough to understand the problem, but if we can get our citizens to understand the problem, a new generation, Zachary’s generation, to take ownership over this, what would you advise them to do? What are the alternatives?
Michele: We need to start by putting fewer people in prison and jail, and realize that that’s not a solution to our problems. We need to be looking for community-based programs and services to address the underlying needs. When people are cycling through the system over and over again, it’s telling you it’s not working. We need to find ways to address those issues.
Michele: For those people who need to be locked up, who we’re really afraid of, and not just angry at, then we need to come up with places that can address their needs while they are removed from the rest of the population. That doesn’t mean being punitive while they are in those settings. We need to find ways to give them programs and services. We talk about rehabilitation, but so many of these people have never been habilitated.
Jeremi: Right, right.
Michele: They’ve never had the education, they’ve never had the family relationships or the guidance of the mentorship. They’ve never had the vocational training. There’s a lot more we could do with programs and services while they’re locked up. We need to get away from the idea that the more time we take out of someone’s life, you know, 20 years, 30 years. We throw out these sentences like those 10 years are meaningless. We need to realize that we don’t need sentences that long. People actually age out of crime, and we are keeping them locked up long past their crime active years, so we could be doing a lot more to get people out sooner, which reduces the costs for the public, and gets better outcomes for these people, because the longer they’re there, the more harmed they are.
Zachary: It doesn’t help the victims or help anyone to just have them sitting there if they’re not being rehabilitated, because they’re eventually going to come back into society.
Michele: I think most victims will tell you that what they want is for this person never to commit another crime again. The more that we can be giving them the programs and services that will keep them from committing crimes, the more we’re serving the interests of the victims.
Zachary: Some of them are victimless crimes, too.
Michele: That’s true. That is true. That is very true.
Jeremi: Are there models in the U.S. or outside of the U.S. that you point to?
Michele: There are pockets of good things happening in the U.S. Certainly there’s some reform efforts going on all over the country. We’re starting to turn the tide and reduce the numbers of people that are incarcerated. There are some really good things happening abroad. I’ve recently spent some time in Norway to look at their prison system. They’re famously considered the most humane prison system in the world. One of the reasons why it’s considered that is because they treat the people who are locked up as citizens who are entitled to a very normal environment, albeit behind walls. They humanize the environment, they give them rooms, not cells, they give them the opportunity to engage in programs, they have more opportunity to engage with their families who come to visit, they can have family weekends, spending the weekend with their family, they work in jobs where they get paid, and they’re getting programs and services and education.
Michele: The people who are there that I met, they don’t feel like they’re living in a hotel. It may look to a U.S. observer as though, oh my gosh, why would anyone ever want to leave? They’ve got everything they need here. If you talk to the inmates there, they’re like, if they opened up the doors here and said we could go, I would run so fast that I’d never look back. I think that the real punishment is having your liberty taken away from you, not what happens to you while they’re in there.
Jeremi: Right, and it sounds like this model does allow more space, not simply for a humane life, but also for rehabilitation, for education, for a change in one’s perspective on the world, right?
Michele: Absolutely, and one thing that we also don’t talk about enough is how people are treated when they’re in there. It’s not just what kind of services and programs they get, it’s how the staff interact with them. Here in the U.S., there’s much more of an authoritarian approach in terms of how the staff interact with the prisoners. Over there, it’s much more of a mentor guide kind of relationship. That goes a long way towards how someone feels about themselves and their ability to reintegrate into the community.
Jeremi: This comes back to one of your earlier points about the sort of history of our system, the history of our attitudes. A lot of historians, as you know better than I do, have written about the continuity from slavery to convict labor to our prison system, so in a sense, we’re treating prisoners as slaves.
Michele: I think that it’s so important to understand that history. Our prison system is a continuation of systems of control we have had in this country for centuries. Quite literally, a lot of our prisons in Texas are built on former slave plantations and cotton fields, and the prisoners were working in the cotton fields.
Jeremi: Right.
Michele: We had this convict leasing system for many years in the period after reconstruction, and we need to understand that our system of incarceration in this country reinforces a lot of those racial dynamics that have long existed here.
Jeremi: Absolutely.
Zachary: Also the idea of making profit from these people’s rehabilitation makes it so that the rehabilitation just gets forgotten, and they’re just there to make money for the companies. Some of the same people who ran convict labor run private prisons today.
Michele: There’s definitely parallels between those systems of convict labor and private prisons. It’s a little more complicated than that. Probably not worth going into in this level of detail right now, but for sure there has always been an interest in making a profit off the backs of people who are less fortunate.
Jeremi: We always like, Michele, in our last couple of minutes, to point, especially for our young listeners, to things that we can do to improve the situation. We’re a vibrant democracy and we have a lot of young people who are engaged in trying to improve our society. This is a crucial issue, I think, going forward. What is your advice for people who care about these issues? How can they make a difference? How can they push us toward a more humane system?
Michele: I think one of the main things is to be active in contacting your legislators and those that represent you to make it clear that you want more community-based programs, you want to reduce mass incarceration in this country, that you don’t want our reputation in the U.S. to be as the greatest incarcerator in the world. You need to give politicians permission to do different innovative things and to fail. One of the big problems is that every time we’ve tried something new, all it takes is one failure to make us say, oh no, we’re not going to do that program anymore, or we’re not going to allow such and such to happen, because we’re so risk averse. Well, bad things sometimes happen, but if you want to try to do something new, you’ve got to be willing to tolerate some risks and you’ve got to give politicians permission to do that.
Jeremi: How do you do that? I know you work very closely with the Texas legislature. You’re one of their key experts. What you said makes so much sense, but a politician never wants to be able to say there was a failure. I think of Michael Dukakis running for president, and how then vice-president, George H.W. Bush went after him for the furloughing of Willy Horton, which was an experimental program, and Willy Horton was furloughed and then committed a crime. This was used by George H.W. Bush to condemn Michael Dukakis. How do you get politicians to address this?
Michele: Well, let me start by saying that when that happened with Dukakis, that was one of the reasons for our increase in population in prisons. That episode really helped make prisons or incarceration a wedge issue.
Jeremi: This is 1988.
Michele: In 1988. Criminal justice and harsh sentencing became a wedge issue, and there became an arms race between the Republicans and the Democrats. Incarceration is a bipartisan issue, and mass incarceration is. Both parties got us into where we are now. One of the interesting things about this point in time is that bipartisanship is getting us out. It’s starting to. This is one of the few issues that Republicans and Democrats can agree on in this country, that we need to reduce the number of people who are incarcerated and stop throwing our money away on programs and services that don’t work, and policies that don’t work. I think we’re not in the same time period that we were in when the Willy Horton episode happened, but there’s always a risk of that coming back, for sure.
Jeremi: Right.
Michele: The difference now is that there’s more support for anyone who wants to do one of these innovative programs or to reduce our more punitive policies, they’re going to be surrounded by other politicians who are doing the same sort of thing, so no one’s standing out there alone.
Jeremi: Ostensibly there are more people like you who have studied these issues who are bringing ideas to the table, also law students, right, and others that our Innocence Project program here at UT and elsewhere.
Michele: Yes. Also, politicians are becoming much more interested in research-based approaches.
Jeremi: On this issue.
Michele: Yes, on this issue in particular. On this issue in particular. As research gets brought to them by researchers, by students, by anyone, they’re more willing to listen.
Jeremi: Yeah. This might be an issue in particular where the state leaders, state politicians are ahead of national politicians, it does seem to me, because the states pay most of the cost, right?
Michele: Absolutely. Even though your listeners may well be aware of the First Step Act, which happened in Congress just last month, in fact most incarceration happens at the state level, and most of the costs are assumed by the states and local governments. We’re seeing most reform efforts happen at the state and local level. Don’t forget local governments, because that’s where jails are located.
Jeremi: That’s a good point.
Michele: It’s very easy for interested listeners, for students, for young people, to talk to their local representatives and say they want to see change.
Jeremi: So, Zachary, is this a topic that motivates your friends? Is this something you all are thinking about and can get involved with?
Zachary: I think there’s some recognition that these crimes that many people have committed are like minor and that it’s more of a health issue, that drugs are more of a health issue, but I do think that there’s still a lot of stigma around being convicted of a crime, and there’s still that sort of punitive, like they should be put in jail, sorry, prison. I think that the problem is that people don’t interact or they don’t think they interact with people who are former felons or former convicted criminals, and so they think that these people are monsters when they’ve made one or two mistakes in life, and so I think there needs to be more discussion of it in schools.
Jeremi: Right, right, right.
Michele: You know, you’ve made a really important point, Zachary, because these people are not monsters, and as more and more people are incarcerated in this country, more and more people surround them, their families, their friends, their neighbors. We all are starting to know people who have been affected by the criminal justice system, and we’re starting to understand that they’re not monsters, that people can get caught up in the system for reasons that are really outside of their control sometimes, and even if it is within their control, we still understand that there’s more to them than the worst thing that they’ve ever done. You’re right that there’s stigma around it, but I think that that stigma is lessening as we know more people who are affected.
Jeremi: Right. I always like to remind people that our society, and particularly other societies like Australia, were founded by people who were considered prisoners, and even monsters in their home societies.
Michele: That’s right.
Jeremi: These were individuals who historically proved to the world that they could not only be effective state builders, but also effective humanists themselves, and we should all remember that. You can hold people responsible and still treat then as human beings.
Michele: Absolutely. No one thinks that we should not hold people accountable for their criminal behavior, but accountable has different meanings than I think a lot of the public understands.
Jeremi: I think in a democracy, holding people accountable is resisting the temptation to treat them as monsters and resisting the temptation to lock them up and throw away the key.
Michele: We don’t have to deprive people of citizenship just because of what they’ve done.
Jeremi: Well, I think that’s a perfect place for us to come to a close. Michele, thank you for your insights today.
Michele: Thank you for having me, Jeremi. It’s been a pleasure talking with you and Zachary, it’s been a pleasure talking with you and hearing your poem as well.
Jeremi: Please join us for future episodes on This is Democracy.
Speaker 2: This podcast is produced by the Liberal Arts Development Studio and the College of Liberal Arts at the University of Texas at Austin. The music in this episode was written and recorded by Harrison Lemke, and you can find his music at harrisonlemke.com.
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