× You have 2 more free articles available this month. Subscribe today.
The Too-Many Prisoners Dilemma
by Dan Froomkin
There’s a growing national consensus that, as Attorney General Eric Holder stated in August, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”
When Holder proceeded to order federal prosecutors to stop triggering mandatory minimum sentences for some nonviolent drug offenders, that was big news. But where were the follow-up stories?
It’s a familiar cycle. Despite the heavy toll that mass incarceration exacts every day and in countless ways on many American communities, families and of course the incarcerated themselves, the topic attracts remarkably little consistent coverage in the mainstream media.
“Traditionally, the coverage of this has been crisis driven,” says Ted Gest, the founder of Criminal Justice Journalists, who also oversees a daily news digest for The Crime Report news service.
Recently, a hunger strike in California and other protests called renewed attention to solitary confinement as a human rights issue. And questions about oversight were briefly raised after Baltimore jail guards were busted in April 2013 for allegedly helping a charismatic gang leader, who impregnated four of them, run his drug and money-laundering operations.
David Fathi, director of the American Civil Liberties Union’s National Prison Project, says he’s seen only a modest increase in news coverage of criminal justice reform despite his sense that the nation is starting to turn the corner on mass incarceration. “I’ve been doing this work since 1990 and there’s been no time that things have looked this hopeful for significant reform in the criminal justice system,” he says.
The policy debate has also gotten more compelling recently, for other reasons. The New Jim Crow: Mass Incarceration in the Age of Colorblindness – an explosive book published in 2010 – made it impossible to avoid confronting the central role of race in a system that author Michelle Alexander wrote has systematically subjugated poor people of color. And the rise of privately owned prisons has raised troubling questions about injecting a profit motive into issues of justice.
The numbers involved are, by any standard, astronomical: 2.3 million Americans, or 1 in about 140, are in custody at any given moment, the highest incarceration rate in the world, six times what it is in Canada – or China, or Iraq, for that matter.
The total number of Americans under correctional control is 7 million – or more than 1 in 50 – if you include people on parole or probation. That’s more than the entire state of Massachusetts.
Almost half of all federal prisoners – nearly 100,000 people, or enough for a small city – are serving time for nonviolent drug offenses. Add state and jail prisoners, and the total approaches half a million, or enough for a large city.
“Considering that huge number, there’s hardly anyone on the beat,” Gest says.
Crime and court reporters, still a staple of newsrooms everywhere, tend to see their role as ending after conviction. The number of reporters assigned to cover prisons and criminal justice, even part time, has dwindled due to decades of cuts, beat consolidation and lack of interest.
“They don’t see this as an important beat,” says Paul Wright, a former Washington state prisoner who founded the highly regarded Prison Legal News magazine in 1990, when he was behind bars.
For news organizations to cover the issue properly, Wright says, they need reporters with background, and sources. “Normally well-intentioned or hard-nosed journalists, they tend to take statements by prison officials or government officials at face value, with no type of critical disbelief,” he says.
“Too often, no one’s being quoted who doesn’t have a government paycheck, who doesn’t have an investment in mass incarceration,” Wright says. Without having developed knowledgeable sources they can contact, he says, “if they’re reacting to a story, all they can do is call up the [Department of Correction] spokesman.”
Wright is particularly peeved that The New York Times doesn’t have a reporter assigned to the topic. “We’ve got two and half million people locked up. Doesn’t this merit a beat?”
The Times’ latest major contribution to prison coverage, a three-part series earlier this year, was the work of a columnist for Science Times, John Tierney.
Asked why the Times doesn’t have a reporter on the beat, Eileen Murphy, a Times spokeswoman, wrote in an e-mail: “We tend to cover big picture issues related to prisons and criminal justice from our various desks, national, foreign, metro and even science where some of John Tierney’s reporting came out of.”
But news organizations without beat reporters are missing out on some great stories, Wright insists. “One of the things that I tell reporters is that prisons are a vast undercovered beat, and there are just so many stories to do there. They’re the least transparent of American institutions.”
The Empathy Gap
There are many isolated examples of excellent prison reporting in the American media.
But when it comes to conveying the full scope of mass incarceration, including its day-to-day reality and the effects on prisoners and their families, the mainstream media still has a ways to go.
What rarely if ever emerges in the news media is a visceral sense of the indignity of life behind bars for people who for the most part aren’t so very different from the people who live free.
“The humanity of the people that I work with doesn’t seem to reach the popular mindset,” says Deborah Golden, the acting director at DC Prisoners’ Project, a group that advocates and litigates on behalf of the incarcerated.
“What I see in my work that isn’t as clearly portrayed when I read media stories is that most of the people in prison are not serial killers and child molesters,” she says. “Most of the people I meet are really cool, interesting people who usually had a very crappy shot in life. Some people made really tragic mistakes. Some of them made mistakes that lots of people I know made, they just turned out differently, because they got caught.”
To the extent that the public gets exposure to that kind of message right now, it’s mostly from popular culture. “Sesame Street” this summer introduced a character whose father is in jail, part of an initiative that includes special Muppet appearances at prisons when children are visiting their parents. And one of the most riveting and discussed shows on television right now is the Netflix series “Orange is the New Black,” which casts its flawed but hardly terrifying female prisoner protagonists in a compelling and sympathetic light.
Piper Kerman, who wrote the autobiographical book upon which the show is based, says most of the people she met during her year in prison “were not there for the reasons most people think people are there for.”
Of the hundreds of women she encountered, Kerman says, “I bet I could count on two hands the number of women who I thought: ‘Yeah, she should be in prison.’ The vast majority of these women were low-level offenders, nonviolent offenders.”
The obvious question that arose, Kerman said: “What is the point? It’s expensive, it’s inhumane, it’s counterproductive. It just basically immobilizes people; it does very little else.”
Jody Owens, director of the Mississippi office of the Southern Poverty Law Center, says journalists are “not necessarily appreciative of the day-to-day struggles and suffering” of prisoners, including the fact “that far too many inmates are living in constant fear of their lives on a daily basis.”
“What people do not get is that it’s totally brutal, dehumanizing and violent,” says Wright. “And every facade and nicety of American life is stripped away.”
John Maki, executive director of the John Howard Association of Illinois, a prison watchdog group, says even a brief exposure to prison can make a big impression. “I think when you visit a prison and you go behind the wall, you talk with staff, you talk with inmates, I think one of the things you realize is that it’s just a horrible thing to do to somebody. Even if someone deserves it,” he says.
Incarcerated people still have basic rights and should be treated with dignity, he says. “There are certain things that human beings in a just society should just not be able to give away.”
The Non-Transparency Problem
One reason there’s relatively little coverage of prisons is that writing about them is a uniquely challenging proposition.
The single biggest problem: Access. “Prisons are closed institutions,” says the ACLU’s Fathi. But that’s also the biggest argument in favor of persevering, he says. “I think a lot of the problems that we have in prisons in terms of conditions, in terms of neglect and abuse, result from or at least are facilitated by the fact that they’re closed institutions.”
Beth Schwartapfel, a freelancer who often writes about prisons, wrote in the Columbia Journalism Review in March about the access problems. “How well can journalists cover prisons if they can’t get past the gates?” her story asked.
“Editors and news directors want to do these stories,” says Cara Tabachnick, deputy director of the Center on Media, Crime and Justice at the John Jay College of Criminal Justice. Journalists are naturally drawn toward people whose voices aren’t being heard, she says. “There’s an underlying commitment to that. But getting the space and the specific commitment and the time to do that is sort of a struggle.”
“It’s a totally different kind of reporting than anything else, because you’re so confined by the rules of the prison system,” says Marisa Lagos, who spent three years covering prisons for the San Francisco Chronicle and now is a city politics reporter.
And as hard as it is for print reporters, it’s even harder for photographers and videographers.
Credibility issues are also common, and not just from the prisoners. “You do have to be careful with what people tell you, on both sides of the bars,” says Frank Green, who covered prisons full time for the Richmond Times-Dispatch for more than a decade before being reassigned to courts. “Sometimes the most plausible sounding stuff turns out to be BS, and the wildest stuff turns out to be true. It’s a hard thing to cover.”
Ways to Get it Done
Joy Lukachick’s extraordinary exposés of incompetence and extortion at the Hays State Prison in Georgia started with a three-inch brief in the Chattanooga Times Free Press about the death of a prisoner there.
Not long after her byline appeared at the bottom of that brief, she says, she got her first source. “A former guard came to me and gave me all these documents and told me: ‘Hey, the locks don’t work at this prison.’ And I said: ‘You’re kidding me.’”
Lukachick’s reporting then led to the uncovering of an even bigger problem: Prisoners were using smuggled cell phones to demand money from people outside the prison, threatening to hurt their family members inside. That, it turns out, is how the first prisoner died.
“As I was working on the project, a second inmate died,” she says. “Then the floodgates opened. I think I got 20 officers that called me.” Among other things, they told her what records to request using Georgia’s open records laws. And she found that for three years running, state audits had found that the prison’s cell doors could be opened with toilet paper. But the authorities had looked the other way.
Prisoners themselves aren’t entirely beyond the reach of diligent reporters, either. They are still allowed to make collect phone calls – and write letters.
“If you want to write about prisons, write a couple of stories, and then you’ll get letters, and you’ll find issues,” Green says. “In fact, I’m probably the last person in the newsroom to get handwritten letters.”
Former prisoners often have stories to tell, as well. “People who have come out, who have been there a long time, they are walking history books,” says Maki.
“It’s the trail of the collateral consequences to the family, the kids, I think, that’s the untold story,” says Ernest Drucker, a public health scholar. “Putting a face on that” is the challenge, he says.
And for every individual issue under the rubric of mass incarceration – whether it’s disproportionate sentencing for crack, outsized mandatory minimums or life sentences given to young people, the sad fact is there are lots of actual human beings living out the consequences. “Sadly it’s not difficult to find people who are doing just brutally long sentences for trivial crimes,” says Fathi.
Brett Dignam teaches at Columbia Law School’s Mass Incarceration Clinic, giving law students the opportunity to visit clients in prison and take on prisoners’ rights cases. She says legal clinics and nonprofit advocacy groups are often eager to help reporters better understand the realities of incarceration. “There are people who work at this from all different angles: reentry, conditions of confinement, sentencing, race,” she says. “There are groups in every city who are working on this.”
Dignam suggests reporters write about prisoner reentry into society. “That’s something people can relate to,” she says.
A lot of reentry programs are run by former offenders themselves. And the difficulty a lot of former prisoners experience can be dramatic.
“I’ve done a lot on people leaving prison,” Green says. “You get out of prison and you’re hammered with all of these court costs, fines, child support, you have to go to counseling, you don’t have a driver’s license, you can’t live in some public housing. To me, I think that’s an important story.”
“It’s tough when you come out, especially if you’ve been in for a long time,” he says.
Some extraordinary stories emerge directly from lawsuits. In June, The New York Times described conditions that “shock the conscience” for prisoners – many mentally ill – at the East Mississippi Correctional Facility. The story was based on a lawsuit filed in federal court by the Southern Poverty Law Center (SPLC) and the American Civil Liberties Union.
And Andrew Cohen’s riveting report on the federal “supermax” prison in Florence, Colorado was largely taken from a class-action lawsuit filed against the prison.
Owens, of the SPLC, encourages reporters to keep an eye on the dockets of prison lawsuits, and also file their own open records requests to get relevant information firsthand. “Many agencies will do regular inspections of prisons and jails,” he says.
News Pegs Aplenty
One of the easiest, most universal and yet most effective ways to draw attention to the issue of mass incarceration is to write about how much money it’s costing.
“Expense is a real way for journalists to connect the dots,” says Tabachnick.
And that’s particularly the case when members of both parties are looking for ways to close fiscal gaps.
State budget officers report that about 7.5 percent of their general fund expenditures go toward corrections. Only education and Medicaid take a higher share. All in all, state spending for corrections totaled $52 billion in fiscal year 2011.
A state’s department of correction is often one of its biggest employers. In Wisconsin, for instance, it’s the sixth largest.
“I don’t think people realize the amount of money involved,” says Lukachick. “Even if you don’t care about the people – and you should be caring about everybody – we’re talking about billions of taxpayer dollars.”
Florida is privatizing much of the state’s prison healthcare, which as the Columbia Journalism Review noted in July makes it a good time for journalists to take a closer look at the companies getting big contracts.
Overcrowding is an issue in many states – not just California, where a major court ruling has the state scrambling to ease the problem.
“When overcrowding comes, everything breaks down,” says the ACLU’s Fathi. The California courts concluded that overcrowding made it impossible to provide a constitutional level of medical and mental health care. Fathi says there are many other consequences, including violence.
Fathi says he would point reporters looking for the worst prisons in the country to Mississippi. “Mississippi has some of the worst conditions that we’ve seen,” he says. For instance, at the privately-operated Wilkinson County Correctional Facility, a prisoner was stabbed to death during a riot in April. “That is a prison that is out of control,” Fathi says.
But bad prison conditions are hardly unique to the Deep South, Fathi says. Arizona, for instance, is second only to California in its use of long-term solitary confinement. A blistering ACLU lawsuit against Arizona correctional officials charges that prisoners there are suffering and dying due to extreme isolation and neglect.
Amnesty International found that more than 1,000 Arizona prisoners “are confined alone in windowless cells for 22 to 24 hours a day in conditions of reduced sensory stimulation, with little access to natural light and no work, educational or rehabilitation programs.”
National prison databases can make for compelling local stories – and perhaps none more so than the Justice Department’s annual survey of sexual victimization.
The latest survey shows about 4 percent of federal and state prisoners – and 3.2 percent of jail prisoners – reporting one or more incidents of sexual victimization in the past year. That’s a little over 80,000 incarcerated adults reporting sexual abuse annually, either by staff or fellow prisoners.
But the range among facilities is even more shocking. At some, the rate is essentially zero. But at others the rate of prisoner-on-prisoner sexual victimization alone is as high as 15.3 percent, at the Mabel Bassett Correctional Center in Oklahoma, and 9.8 percent at the Northwest Florida Reception Center in Florida.
And sentencing for the same crimes can vary widely from one place to another.
The Transactional Records Access Clearinghouse at Syracuse University examines sentencing data and has repeatedly found “extensive and hard-to-explain differences in the sentencing practices by the judges working in many federal districts.”
In August 2013, crusading U.S. District Court Judge Mark Bennett of Northern Iowa assailed the “stunningly arbitrary application by the Department of Justice” of sentencing enhancements for repeat offenders.
If Holder’s new rules are enforced, those may be applied less frequently and more consistently, Bennett wrote. But thus far, a “Wheel of Misfortune” has led to repeat offenders caught in the eastern district of Tennessee, for example, being nearly 4,000 times more likely to receive double the sentence as those committing an identical crime but caught in the state’s western district.
Not all stories about prison reform need to be depressing. As Drucker explains in his book, A Plague of Prisons: The Epidemiology of Mass Incarceration in America, New York now provides a positive example.
Harsh mandatory minimums for drug offenses, pushed through by Governor Nelson Rockefeller in 1973, spurred a nationwide trend. But over the last decade the state started downsizing its prison system. In 2009, it adopted a series of drug law reforms that included reducing the scope of mandatory sentences for many nonviolent drug offenders, restoring judicial discretion, allowing for people convicted of drug offenses to be put into treatment and so on.
The prison population is down. The crime rate hasn’t gone up.
Prisoners’ rights advocates are clear that there needs to be more reporting, and more consistent reporting, on mass incarceration. “The drumbeat isn’t really in place: This is a problem. We have to stop it,” says Tabachnick.
“I think it’s harder to make broad use of incarceration when you know what it really is,” says Maki.
“No one demands better from our prison officials,” says Wright.
Drucker says reporters should be ready for the next stage of the debate, which he says is obvious.
None of the measures Holder or other officials have announced are retroactive, leaving hundreds of thousands of prisoners serving what are now widely acknowledged as overlong sentences. Most of those prisoners are young men of color, many with children, drawn from the nation’s poorest urban communities.
“Being able to stop the juggernaut going forward is a big deal,” Drucker says. “But what about all those guys who are already in?”
One possible solution would be to do what New York did, which was cull out the nonviolent drug offenders and resentence them.
But Drucker thinks what’s needed is something more. “I think there’s an apology owed these people,” he says. And if society is ready to admit its mistakes, and acknowledge how harmful this process has been for the families, he says, then what’s required is “a way to sever the tie between them and the criminal justice system, period.”
“I think the obvious next step,” Drucker says, “is amnesty.”
This article was published by Nieman Reports, a publication of The Nieman Foundation for Journalism at Harvard University (http://www.nieman.harvard.edu), on September 18, 2013. It is reprinted with permission.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login