Incarceration and justice

“Putting the rapist in prison is not justice.”

The man saying these words is a participant in my classes on forgiving at the high security penitentiary at USP Canaan. He was responding to my suggestion that a rape victim who forgives her assailant could also appropriately desire that he face justice for the crime. It is a point I make during these classes and one I personally affirm: when we forgive we do not have to give up on justice. In the example under consideration, justice for the rapist and, perhaps, for his victim would be his incarceration.

The class member who disagreed was quickly joined by at least half a dozen other inmates, none of whom thought the imprisonment of a rapist was justice for the victim or the offender. My astonished look signaled that I needed an explanation.

Summarized, their point was this: A prison like Canaan and most others in the country offer a much-too-easy life for someone who has done a serious wrong. Inmates receive three meals a day, a place to sleep, educational opportunities, work for pay, visits by family, and no demands other than compliance with the rules. For someone who assaults, rapes and injures a female, prison is nowhere near the level of punishment he deserves or the justice to which the victim is entitled.

“So,” I asked, “what would justice look like?”

Here I will quote the answer because it was indeed unforgettable: “The woman’s brother or father should murder the rapist. He needs to be permanently removed so that he will never again injure a woman.”

Yet another fresh insight into the thinking of the men to whom I am taking a message about forgiving. In this case, however, part of the underlying sentiment voiced by several of the inmates is the inherent injustice of their own incarceration for drug offenses. (No one convicted of a non-drug related offenses spoke up to offer an opinion about the justice or injustice of his sentence). This is certainly not a new message; I have heard it often from inmates who are serving unbelievably lengthy sentences (including life) for drug offenses. And, yes, most of them are men of color.

In an earlier post or two I have referenced Michelle Alexander’s recent book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Alexander cites depressing statistics about the arrest and incarceration of young black men for drug possession and the life-long impact of having a felony drug conviction. Black men, Alexander affirms, are deliberately targeted by police for “stop and frisk” encounters and arrested at extraordinarily higher rates than whites for drug possession even though minorities are no more likely than whites to possess or use drugs. Alexander sees a sinister racism at work — a new version of the old Jim Crow efforts by whites to control and disenfranchise blacks. (Heather Mac Donald, a John M. Olin Fellow at the Manhattan Institute, takes severe exception to such a thesis, arguing that high arrest rates and drug convictions among black American men in no way suggest racist policing or criminal justice. Rather, they indicate the disproportionate criminal activity taking place within black communities. You can read her point of view here).

Without believing that Michelle Alexander got it completely right, I am in sympathy with her thesis, and I therefore do not assume that every black or Hispanic inmate I meet who was convicted on a drug possession charge should necessarily be in prison or be serving a lengthy sentence. This does not affect the way I teach nor prompt me to take up the cause of reforming the justice system. But it does prompt me to think about what other means might lead us to the ends that justice would require.

On May 28 the New York Times published a story by Adam Liptak about federal Judge John Gleeson in Brooklyn. A former federal prosecutor, Judge Gleeson led the team that got a conviction of Mafia boss John Gotti. From the other side of the judge’s bench, Gleeson is now troubled by how the Justice Department handles small-time drug offenders. The law permits a prosecutor to call for a mandatory minimum sentence based on the amount of cocaine in the possession of the person arrested.

Judge Gleeson was required by the law to sentence “a young, small-time street-level drug dealer’s assistant” to a mandatory five-year sentence because he was caught with just over 28 grams of cocaine. (That’s equal to about 1/10 of an ounce). The law behind such sentences assumes (rightly or wrongly) that the amount of drugs in one’s possession indicates whether the offender has a “leadership role” in the criminal drug activity.

Liptak’s article points out that 74 percent of defendants charged with crimes involving crack cocaine faced a mandatory minimum sentence (in the year ending this past September) even though only 5 percent of them “led or managed a drug business.” Liptak also reports that prosecutors use the threat of a mandatory minimum sentence to get guilty pleas and thus avoid a trial. I also know from talking with inmates that prosecutors use the threat of a mandatory minimum sentence to secure an offender’s testimony against another drug offender. (One inmate I know refused to testify in exchange for a 20-year sentence, went to trial, was convicted and received a life sentence).

Let’s return now to the men in my class on forgiving who seem to think that a prison sentence for rape is not justice. On the one hand, those of them serving time for a drug conviction believe their own incarceration is not justice. On the other hand, they see prison life as too easy and therefore inappropriate for a rapist. One gets the impression that prisoners quickly come to the conclusion that prison is an injustice for just about everyone.

My response was this: “That very much depends on which side of the prison wall you are living. I can assure you that most everyone on my side of the wall sees this much differently than you do. Most of us do not think that rapists should be murdered or executed; almost all of us believe they should be sentenced fairly for their crime. At least then, we won’t worry about the rapist claiming another victim.”

One of the class members then reminded me that since women are serving as prison staff, it is possible the rapist could rape again — in prison. Another argument, no doubt, in favor of the non-incarceration extreme justice some of them advocated.

Finally, back in May the United States Attorney for the Northern District of Illinois, Patrick Fitzgerald, announced his impending resignation. Fitzgerald made a name for himself in two prominent prosecutions. First, he was the Special Prosecutor who investigated and brought charges against Vice-President Dick Cheney’s top lieutenant, Scooter Libby, for perjury and obstruction of justice in the Valerie Plame case. Then, he gained even greater notoriety for his prosecution of Illinois Governor Rod Blagojevich.

According to National Public Radio, Fitzgerald spoke about his prosecutorial victories in this manner: “You did a fair trial, you won, and there’s an empty feeling in your stomach when you realize that someone else is going off to prison. That doesn’t change,” he said. “Imprisonment is just not a good thing. It’s a necessary evil at times, and I use those words meaning both words.” NPR added this: “Fitzgerald says criminals must be locked up but that anyone who thinks prison is a productive use of anyone’s time is deluding themselves.”

Those charged with maintaining law and order have been incarcerating people convicted of crimes for a very long time. So much so that the word “prison” has become a synonym for “criminal justice.” As Fitzgerald said, it surely is, at times, a “necessary evil.” But from the standpoint of one ministering inside a prison, I also agree with his hint that there surely must be more productive ways to deal with criminals and secure justice.


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