The UC Hastings Law Review published this article that I wrote about Earning Freedom. Readers may click on the publish law review article with the following link: UC Hastings Law Review Article
Federal Sentencing Reform
UC Hastings Law Journal
Revised Draft, March 5, 2015
A Suggestion for Merit-based Reductions
From a 26-year Federal Prison Insider
This essay on federal sentencing reform is based on an experiential rather than theoretical perspective. The late federal district judge Jack Tanner sentenced me to a 45- year, pre-guideline prison term in 1988. I concluded 26 years in federal prison in August of 2013. Exactly one year later, Judge Susan Illston signed an order to grant early termination of my Supervised Release. I am not finished with the judicial system, however. Despite receiving support from my U.S. Probation Officer, an Assistant United States Attorney, and a federal judge who agreed that continued supervision was not warranted, my sentence included a term of Special Parole from which even they cannot release me. I am scheduled to remain on Special Parole, under the jurisdiction of the United States Parole Commission, until 2018.
This essay will describe what I have learned from observations, studies, and personal experience with the federal criminal justice system. The essay will conclude with an argument for innovative, disruptive reforms for sentencing and corrections.
In 1987, when I was 23, three DEA agents ordered me to raise my arms and face the wall. With guns pointing at my head, I didn’t resist. I’d never been incarcerated before but I knew that my time had come.
A couple of years earlier, I saw the movie Scarface. Being of Cuban-American decent, I admired the swashbuckling recklessness of the movie’s protagonist, Tony Montana. He influenced me in a bad way and I began making inquiries on how I could earn a profit from buying and selling cocaine. Some quick market research in Seattle nightclubs gave me an idea of what buyers were willing to pay. With that information, I caught a flight to Miami to locate a supplier. The price quote I received in Miami convinced me that a substantial profit would follow if I took the risk. Believing that I could minimize personal exposure to law enforcement, I hired acquaintances to serve as couriers. They flew to Miami. They rented cars. Then they drove the cocaine to Seattle. I profited as they delivered the drugs to my co-conspirators. Since I didn’t personally handle the cocaine, I deluded myself into believing that authorities would never catch me.
Even at the time of my arrest, I wasn’t ready to accept responsibility for my crimes. All I cared about was getting out of jail. Rather than concerning myself with the bad decisions I had made, I obsessed on strategies my defense attorney would use to liberate me from the charges. I raised my right hand during trial, swearing to tell the truth. Then I proceeded to lie, proclaiming my innocence and exacerbating my problems with the law. Members of the jury rightfully convicted me on every count.
After the verdict, federal marshals led me away from Judge Tanner’s courtroom and returned me to the Pierce County Jail in Tacoma, Washington, where I had been confined for several months on pretrial detention. For the first time, the gravity of my situation began to pull me under. Having been convicted of the Continuing Criminal Enterprise statute, I faced a possible sentence of life in prison. I began to pray, but not for release. That ship had sailed. After my conviction, I recognized that the possibilities for release were nonexistent. I accepted my new reality. A lengthy prison sentence and term would become a significant part of my life, so I prayed for the strength to carry me through what would become my odyssey.
I had been a poor student in school, so I cannot say what prompted me to pick up a philosophy book that I saw in the jail’s book cart. While flipping through the pages of the heavy tome, a story about Socrates caught my attention. I could identify with the story because Socrates was in jail awaiting his execution. A trusted friend visited Socrates and offered a plot to escape. Socrates listened politely, but chose to wait in jail for his scheduled execution. The explanation Socrates gave for his decision to serve the sentence inspired my transformation.
Socrates said that he lived in a democracy and that he had to accept the good with the bad. He had the right to work toward changing laws that he didn’t agree with, but he did not have the right to break laws. Since he was rightfully convicted of breaking laws, Socrates pledged to live and die as a good citizen, accepting his punishment with dignity rather than running away from problems that his action had created.
I set the book on my chest after reading that passage. Socrates’s message showed how badly I had strayed from a life of good citizenship. Somehow, I wanted to emulate Socrates and serve my sentence with dignity. That would mean putting an end to a life of reckless pursuits. I would have to find a path to reconcile with society and redeem the bad decisions that I had made, and I would have to make that reconciliation while locked inside various federal prisons.
Introspections led to my plan for reconciliation. During those awkward weeks between my conviction and sentence, I reflected on the influences that led me to such reckless decisions. Then I made a commitment to emerge from prison differently, as a good citizen. But how would a sentencing and prison system respond to such a commitment? Although still at the earliest stages of my journey, I did not perceive a methodical, deliberate path to atonement in the sentencing and corrections system.
I projected far into the future, trying to envision my release date. I questioned whether actions during confinement could convince law-abiding citizens to see me as something different from a convicted criminal. The sentencing or corrections system may not notice, but I reasoned that if I were to focus on: (1) educating myself; (2) contributing to society, and (3) building a support network, the possibility existed to lead a meaningful, relevant life. That three-pronged, measurable approach became my path toward reconciliation. As the late Professor Norval Morris, a former Chairman of the National Institute of Corrections and mentor of mine advised, I aspired to earn freedom through merit.
Socrates gave me direction. Regardless of sentence length, I vowed to live as a law-abiding, contributing citizen. I could see the future. The vision gave me strength, an inner liberty that I wanted to share. To memorialize my commitment to reconcile with society, I wrote to the journalist who covered my trial for the newspaper. He visited me in the jail and published a front-page article about my proclamations of remorse. My prosecutor expressed cynicism, saying:
“If Michael Santos spent every day of his life working to reconcile with society, and if he lived to be 300 years old, our community would still be at a significant net loss.”
Judge Tanner agreed that an appropriate sentence would reflect the severity of my crime and past decisions. He did not subscribe to any stated commitment about working toward reconciliation. He sentenced me to an “old-law, ” pre-sentencing guideline term of 45-years.
A sea of imprisonment separated me from my return to society. Inspired by Odysseus, who ventured into turbulent seas without friends or possessions, I focused on how I wanted to return: a good citizen. I had a clear vision. After more than a quarter century of incarceration, I intended upon release to wear a suit and tie and be prepared to contribute to a civil society. If I executed my plan well, after my release, no one would know that I served a day in prison unless I revealed the journey. Rather than a life wasted by decades of confinement, I would prepare for a life of relevance and contribution.
I had a plan to make that vision a reality. Each day I would work to educate myself, to make meaningful contributions, and to prove worthy of a support network that I intended to build. I set incremental goals, with clear timelines to gauge progress.
Visualize / Plan / Execute:
As weeks turned into months, and the months turned into years, and the years turned into decades, I executed the plan. Inspiration from great leaders like Viktor Frankl, Nelson Mandela, and Mahatma Gandhi fueled my drive to become the change that I wanted to see in the world. Steve Jobs famously said that a good artist copied ideas, but a great artist stole ideas. I stole ideas from the greatest leaders in the world. By visualizing the outcome we wanted, those leaders taught, we could establish clear plans to reach our desired outcomes. If we executed those plans flawlessly, we all could become more than and better than our current circumstances.
In contemplating federal sentence reform, we could take that same principled, innovative, disruptive approach that good leaders across our nation take to progress in business. Those leaders embrace a principled approach. They look at problems. Then they visualize the best possible outcomes. They establish plans on how they’re going to realize the outcome they envision. Then they execute their plans, keeping their goals squarely in front of them. Leaders contemplate ways to incentivize a pursuit of excellence.
As a long-term prisoner, I did not think that the sentencing system or the prison system that confined me has any concerns about how a defendant would emerge from the sentence. Rather than looking forward, the system considers only past bad acts. Once a finding is made that an individual has committed a crime, the focus centers on the crime and how harshly the system should respond. Then everyone in “the system” circles around to ensure finality, regardless of whether the sentence remains appropriate. The sentencing and corrections system fails to offer a mechanism that incentivizes or encourages an individual to atone.
In my case, that rigidity in “corrections” repeatedly thwarted and obstructed my progress. Rather than encouraging a pursuit of excellence, providing pathways that would yield growth and productivity, the system repeatedly sent the message “You’ve got nothin’ comin’.” Our system of sentencing and corrections maintains an immutable commitment to policies and procedures and precedent, but those policies and procedures and precedent focus solely on past bad deeds rather than the possibility of actually correction through reform and improvement, or future good deeds. It is a fundamentally different system from anything else in America: the institutionalization of failure versus a focus on actual promotion of law-abiding, contributing citizenship.
From my perspective, the criminal justice system felt far apart from the principles of an enlightened society. In America’s broader society, we believe in the power of the individual and incentive. We invest in an individual’s future, encouraging every individual to aspire to reach his or her highest potential.
Prisons, in contrast, extinguish hope. They systematically obliterate the identity of each individual, blocking all incentives for reconciliation, growth, or a brighter future. Prison policies and procedures emphasize the ugliness of the past and dismiss all interest in future outcomes.
Prison administrators replace names with registration numbers for every individual in prison. They dictate where the prisoner will live and with whom the prisoner will share space. They determine what job the prisoner will work, what clothes he will wear, when he will communicate with society, what he will eat, and when he will eat. They tell him that the “security of the institution” is paramount to all else until the sentence is served. Regardless of what “good” the individual aspires to accomplish, the system focuses only on the past. As such, the sentencing and corrections system seems exquisitely designed to perpetuate the high recidivism rates and subversive subcultures that prison spawns.
Earlier Calls for Reform:
During the early years of my sentence, I felt inspired after reading “Factories with Fences,” a commencement speech that the late Chief Justice Warren Burger gave to graduating students at Pace University. In his 1983 speech, Justice Burger urged students and leaders to work toward improving outcomes of our nation’s criminal justice system by placing more emphasis on education and training and less emphasis on creating a system that warehoused humanity. Justice Burger lamented that during the previous “ten years the prison population in America has doubled from less than 200,000 inmates to more than 400,000 inmates.” He said that: “If we had begun twenty-five, thirty-five, or fifty years ago to develop the kinds of correctional programs that are appropriate for an enlightened and civilized society, the word “recidivist” might not have quite as much currency as it does today.”
Unfortunately, a sufficient amount of leaders did not share Justice Burger’s vision for a smarter criminal justice system. Sentencing reform took a different course, abolishing indeterminate sentencing practices and extinguishing hope along the way. Prison population levels soared. Recidivism rates soared. Costs soared.
Professor John DiIulio argued from that economic standpoint. Incarceration rates were a bargain, he said, when we took into account the costs of criminal behavior. From his perspective, when it came to people who broke American laws, we should “Let ‘em Rot” and that “Three Strikes was the Right Call.” Our nation’s commitment to mass incarceration led to longer sentences and fewer mechanisms for relief.
Instead of reforms that would lead to the type of “enlightened system” that Justice Burger advocated, a 1995 bill known as the “No Frills Prison Act” became the norm in our tough-on-crime environment. In that climate, when judges sentenced people “to the custody of the Attorney General,” marshals delivered defendants into a system where entrants should abandon all hope, as in Dante’s Inferno. To paraphrase George Bernard Shaw’s wisdom revealed in “Man and Superman: Don Juan in Hell,” when man has no hope, he has no reason to work toward a pursuit of anything, much less excellence.
Sentencing Reform and Prison Reform:
Leaders who contemplate federal sentencing reform may want to consider the relationship between sentencing and corrections. If our nation is ready to embark upon the types of reforms that would lead to an enlightened, effective criminal justice system, then we should reform both—sentencing and corrections systems. Like leaders of good companies who embrace creative thinking and innovating solutions from all quarters, prison and sentence reform should begin with a clear idea of the outcomes our nation aspires to achieve from both sentencing and a corrections system.
Effective reforms might begin with some fundamental questions:
• When we measure justice, do we serve society best with absolute, determinate sentences?
• Should our sentencing and corrections system provide a mechanism that would allow defendants to work toward earning increasing levels of liberty through merit?
• Although a defendant’s criminal actions may warrant a lengthy sentence at the start, should the system review incrementally whether the sentence remains appropriate?
• When incarceration or supervision is no longer appropriate, should reforms include mechanisms for a formal review that could include release?
• How can we test whether we improve community safety and health through inflexible sentencing and corrections systems or innovative systems designed to incentivize a path to reconciliation?
• Does society benefit more from a system that requires defendants to serve every day of the sentence, or from a system that releases offenders when further confinement or supervision serves no useful purpose?
We should aspire to a system that enables more people in prison to earn their liberty through measurable, incremental steps. Effective sentencing and corrections reform would incentivize a pursuit of excellence rather than measuring justice exclusively by the turning of calendar pages.
During the 26 years that I served, mechanisms did not exist to encourage people in prison to work toward preparing for the challenges that would await a return to society. Ironically, the infrastructure of confinement actively discouraged a pursuit of excellence, and the sentencing system supported that role of the “corrections” system. In fact, I would posit that our corrections structure is designed to encourage a release only into our society’s underbelly.
Authorities at the highest level repeatedly and actively discouraged efforts I made to earn academic credentials. While I studied toward a master’s at Hofstra University, prison administrators blocked the university from sending books I needed, or they blocked me from using typewriters or computers to complete assignments. They blocked me from visiting with academic scholars who had become mentors, citing rules requiring an individual to have a prior-existing relationship for visiting privileges. After graduating, I began working toward a Ph.D. at the University of Connecticut. A warden put an end to the “nonsense” of further study, saying the special requirements my schooling required “interfered with the security of the institution.” He and his colleagues told me that they did not care anything about opportunities I aspired to create for a career upon release. Their only concern was preserving security in the institution. My formal education and aspiration, costing the U.S. taxpayer nothing, costing the administration or prison nothing, was somehow a threat to the prison’s status quo.
The sentencing system proved equally rigid. Several defense attorneys volunteered hundreds of hours in a quest to bring relief to my sentence. They encountered resistance from a sentencing system that did not provide a relief valve for cases where continued incarceration was not warranted. Without parole, executive clemency represented the only mechanism for relief.
Acts of Executive Clemency have been rare, especially since our nation made its commitment to mass incarceration. Ironically, when our nation’s prison population was much lower, U.S. presidents were much more generous in their willingness to use their Executive Clemency powers. For instance, between 1964 and 1969, during the Johnson Administration, the federal prison system confined fewer than 35,000 people. They had the possibility of relief through the United States Parole Commission. Still, President Johnson received 4,537 requests from inmates for Executive Clemency. He commuted sentences for 226 inmates, or nearly 5% of those who submitted a petition.
Ironically, while federal prison population levels surged, U.S. presidents grew less inclined and more timid in forgiving sentences through pardon or commutation.
During President George W. Bush’s eight-year term, the Federal Bureau of Prisons housed more than 200,000 people at all times. He received a total of more than 11,000 petitions for Executive Clemency. Unlike the people confined during President Johnson’s administration, people confined during President Bush’s administration did not have access to relief through the U.S. Parole Commission. If President Bush commuted sentences in the same proportion as President Johnson, he would have commuted 547 sentences. Instead, President Bush commuted 11 sentences, including his colleague Scooter Libby.
In a sentencing and corrections system that presides over more than 200,000 people, Executive Clemency as it currently operates is not a viable relief valve. Sentencing and corrections reforms should consider the reality that our current system does not allow for prosecutors or judges to grant relief, even when they find that continued incarceration no longer serves the interest of justice. Rather than introducing a new “precedent” or complication of letting people out of prison for merit-based behavior, prosecutors and judges all-too-often show an allegiance to “the system” rather than to the pursuit of justice.
Completing my Sentence:
After the Bureau of Prisons blocked my path to earning a Ph.D., I turned my attention to writing for publication. Mentors from the academic community introduced me to publishers. Those publishers opened opportunities for me to continue executing my plan. By then I had earned my academic credentials. Through publishing, I felt as if I were contributing to society. My writing chapters and books, more people became aware of my work and I built a stronger support network. Indeed, as a direct result of my writing, I received thousands of letters, including one that changed my life again.
In 2002, Carole came across my work. She was living in Oregon at the time and I was incarcerated in New Jersey. Carole wrote me a letter. That letter ignited a correspondence. The correspondence turned into a romance. Carole and I married inside of a federal prison’s visiting room on June 24, 2003. We became a team, with her acting as my liaison to the publishing world. Royalties earned through my writing supported Carole, and she returned to school to earn multiple nursing degrees. I’m incredibly grateful to have found the love of my life and to nurture a marriage while I served a 45-year prison term.
On August 12, 2013, I turned my 312th calendar page, my 9,500th day as a federal prisoner, concluding my obligation to the Federal Bureau of Prisons. When I walked out, I had a bachelor’s degree from Mercer University and a master’s degree from Hofstra University. I had a massive support network, including a loving wife. Numerous career opportunities awaited me. Yet with regard to the system of sentencing and corrections, all that mattered was that I served my term to the “expiration date.” The system did not differentiate between individuals who worked to emerge as law-abiding citizens and individuals who kept up with the latest in reality television.
This fundamental flaw in the system’s design results in few people preparing to emerge from prison as contributing, law-abiding citizens. The system encourages prisoners to think about release dates rather than how they can prepare for the lives they will lead after they return to society.
A few weeks after concluding my obligation to the Bureau of Prisons, I began lecturing at San Francisco State University. I taught a course called The Architecture of Incarceration for criminal justice students. Teaching and speaking became part of a new commitment I made to work toward improving outcomes of our nation’s criminal justice system. I was grateful to receive support from The California Wellness Foundation and The Michael G. Santos Foundation. Our collaboration strove:
• To teach defendants strategies they could use to prepare for a law-abiding, contributing life regardless of current circumstances.
• To build bridges that would help formerly incarcerated individuals transition into the job market.
• To educate America’s civil society on why mass incarceration has become one of the greatest social injustices of our time, leading to societal breakdown and intergenerational cycles of failure.
I’ve encountered arguments from cynics who hold the position that few people who were serving lengthy sentences could sustain the level of discipline and energy that allowed me to grow during my imprisonment. My position is that if we were to truly reform our nation’s sentencing and corrections system, we would see many more people working to earn freedom. When we build institutions that extinguish hope, and we cut off all mechanisms to incentivize a pursuit of excellence, we foster a system that few people can overcome.
If we want to change the outcome of high recidivism rates and intergenerational cycles of failure, we must change the system in ways that incentivize people to grow.
As I mentioned at the outset, my views come from a different perspective than any of the distinguished professionals who spoke before me. I do not have the academic pedigree or training as the scholars who contribute to the law journal. More than one out of every two breaths that I’ve taken on this planet has come from inside federal prison boundaries, and those experiences shape a rather unorthodox perspective.
Although the concept of incentivizing excellence does not exist in the federal sentencing system, the concept is not without precedent. In the 1800s, Alexander Maconochie introduced a system known as the “Marks” system at a prison he led on Norfolk Island, a penal colony that confined prisoners in brutal conditions off the coast of Australia. Maconochie aspired to reform those conditions.
Like any innovative leader, Maconochie began his reform by conceptualizing the best possible outcome. He wanted to create a system where people would learn to live in accordance with the values and laws of society. Accordingly, he replaced the brutal system that extinguished hope with a system through which the prisoners of Norfolk Island could earn “marks” through merit. Prisoners who earned a sufficient number of marks could use them to earn gradual increases in liberty, including a “ticket of leave,” or parole. This system allowed prisoners hope that they could improve the conditions of their lives.
Like many innovative reformers, Maconochie faced enormous resistance. Many in his society, as in ours, firmly believed that a criminal justice system should remove rather than restore hope. From that perspective, systems of sentencing and corrections should be for societal revenge rather than rehabilitation or redemption. Despite reports showing the promise that Maconochie’s merit-based system could offer, authorities removed Maconochie from his position and Norfolk Island reverted to its former brutality.
During my tenure as a long-term prisoner, I knew some wardens and prison administrators who wanted to implement reforms. But as Mr. Maconochie found, they too encountered resistance that proved too entrenched to overcome.
More than 11 years ago, on August 9, 2003, Justice Anthony Kennedy delivered the keynote address to the American Bar Association’s annual meeting in San Francisco. Justice Kennedy challenged attorneys to tackle the issue of sentencing and prison reform. He said the subject of reform “is the concern and responsibility of every member of our profession and of every citizen…. And, as I will suggest, the energies and diverse talents of the entire Bar are needed to address this matter.”
I had been imprisoned for 16 years when Carole, my wife, sent me Justice Kennedy’s speech. I hoped, albeit naively, that his “call to arms” before this august gathering would result in an examination of an incredibly rigid and change-resistance penal system.
I hoped that his “disruptive” address would rattle enough cages that some among our nation’s jurists and attorneys would begin a systematic challenge of our nation’s draconian sentencing laws.
I hoped that his reminder that “(A) people confident in its laws and institutions should not be ashamed of mercy” would resonate with enough jurists and lawyers that, through them, we would move toward a more just nation and away from a complacent mindset of immediate and long-term incarceration as the answer to all corrections.
And yet, 10 years later, on August 12, 2013 (ironically, a year to the day that I walked out of prison after 26 years behind bars), Attorney General Eric Holder appealed to this same group in this same city on this same issue. Once again, one of our nation’s leaders was attempting to disrupt legal complacency. The Attorney General reminded the nation’s lawyers that “too many Americans go to too many prisons for far too long, and for no good law-enforcement reason” and once again, challenged them to move the moral arc of our nation closer to justice.
When San Francisco State University invited me to join the faculty as a lecturer, I saw a huge opportunity to contribute to reform. As with public speaking and writing, teaching leverages thoughts that others may consider when contemplating a better way.
The title of the course I taught was “The Architecture of Incarceration.” Rather than discussing building designs and materials, I wrote lessons to teach students about the evolution of societal sanctions in western civilization. At the conclusion of the course, I wanted my students to understand the influences sentencing and corrections systems have had on our society.
To begin the course, I lectured on Plato’s famous Allegory of the Cave. In using that analogy, I wanted to illustrate a difference between perceptions and reality. I asked for several students to participate in the exercise by volunteering to stand at the front of the room. I had them face the wall in front of them, and used a project light from behind to cast shadows on the wall, just Plato described.
For the purpose of our dramatic exercise, I explained to the class that our student volunteers had been chained to a post inside of a cave for their entire lives. They lacked an ability to see anything but the wall directly in front of them and the shadows on the wall. Because they had never known anything besides those shadows on the wall, the “prisoners of the cave” reasonably believed that the shadows on the wall were real objects rather than shadows.
After the exercise, students in my class understood Plato’s analogy. When it came to our nation’s sentencing system or our nation’s prison system, I explained, many people in America were equally blind—particularly if they were young. They were like Plato’s prisoners of the cave.
I explained to the students that since the early 1970s, our nation began advancing its commitment to incarceration at unprecedented numbers. So for the entire duration of my students’ lives, the only response to crime they knew was incarceration. Prior to the 1970s, I showed through statistics, we incarcerated at roughly the same rates as other developed countries. In 1970, we incarcerated at a rate of 166 people for every 100,000 people in the population. At that time, we understood and accepted that prison was not an appropriate response for every transgression of law. But those times have changed. Today we incarcerate at a rate of more than 700 people for every 100,000 people in the population. We lead the world in the number of incarcerated citizens both per capita and in total.
Since the students who enrolled in my class were not born prior to 1980, our nation’s commitment to mass incarceration shaped their knowledge of sentencing and corrections. Like my students, many people in our society wholeheartedly believe that we should sentence for the exclusive purpose of punishing those who break society’s laws. They do not reflect on costs, ancillary consequences, or alternatives that could lead to better outcomes than unacceptably high recidivism rates.
In my second class on The Architecture of Incarceration, I lectured on the ways western civilization responded to lawbreakers prior to the 1700s. I began with an excerpt from Michel Foucault’s book Discipline and Punish: The Birth of the Prison. We discussed the societal value of responding to crime by decapitating people and placing heads on stakes, burning people alive, or pouring molten steel into holes drilled into their bodies. They enjoyed talking about the gruesomeness of such corporal punishment. After all, my students were “criminal justice” majors. They accepted that “tough punishments” were the appropriate response.
In the following class, we discussed reforms spawned by the Enlightenment era that began in the 1700s. Prior to that era, western civilization reserved its use of jails as holding places until a finding of guilt. Once guilt was determined, authorities would carry out the sentence of corporal punishment. Yet leaders of the Enlightenment movement believed that we could do better. The result, I explained, birthed the expansion of the prison movement. Judges began sentencing people to confinement rather than to sentences of corporal punishment. By the end of the class, my students understood prisons to be a significant change, or reform, from inflicting pain or death.
As our class transitioned to the study of sentencing and corrections in the modern era, I took a poll. On a scale of 1 to 10, I invited the students to rate the level of sentencing reform that western civilization experienced during pre- and post-Enlightenment eras. I received unanimous feedback that when societies transformed their sentences from corporal punishments to confinement, it was a transformation of the highest order, a 10. Certainly, my students claimed, prisons were a much more humane punishment for criminal behavior than corporal punishment.
But there was more. I asked my students to use that same scale of 1 to 10 for the purpose of describing the level of sentencing and corrections reform that has taken place over the past 200 years. Their answer helped me to illustrate the dearth of meaningful reform that has taken place since we began relying on the Prison System. The students finally understood what I meant by using the analogy of Plato’s cave. People struggle to accept alternative views or reforms if they’ve been conditioned for too long. I challenged my students “to emerge from the cave” and help advance the cause for meaningful sentence and prison reform.
To paraphrase Abraham Maslow, when the only tool we have is a hammer, we see every problem as a nail. We still measure justice by sentencing many of the people who break laws to time in a cage. Rather than considering the best possible outcome that our system of sentencing and corrections could produce, we only consider the length of time that a person serves. Meaningful reforms would lead to a better outcome. Rather than focusing exclusively on the bad acts that an individual was found to have committed, effective reforms would also place some emphasis on incentivizing the offender to work toward reconciliation and earning liberty through merit.
Isn’t that the pay-for-performance approach that has made America great?
Despite calls to action for prison reform and sentence reform from luminaries like Justice Kennedy and Attorney General Holder, I am not optimistic. The vested interests in holding to the status quo are vast and extend beyond politics. A massive economy has been built around locking people in cages and perpetuating intergenerational cycles of failure, and many interests profit from this system. To keep it growing, our system now brings white-collar offenders to prison for multiple decades.
This must change. We must begin to disrupt. We should disrupt the current system that measures justice by the turning of calendar pages. Instead, we should incentivize excellence with the types of merit-based programs that Alexander Machonochie implemented on Norfolk Island. Realistic, concrete change would include opening opportunities for people in prison to work toward earning increasing levels of liberty through merit. For example:
• Earning academic or vocational credentials could open objective pathways to increasing levels of liberty;
• Contributing to society in meaningful, measurable ways could lead to increasing levels of liberty;
• Building support networks of mentors could lead to increasing levels of liberty.
Since I don’t have much hope in government officials following through with reform, I’ve launched my own initiative. To bring reforms, we need to unite the voters. I am expanding my base, speaking to any audience that will listen. I speak in schools and universities. I speak to business organizations and government groups. I speak with media representatives and on social networks. Now, I can say that I even speak in law symposiums, with my own call to action.
Like Justice Kennedy and Mr. Holder, I am convinced that we must work together to end mass incarceration. Our massive prison system is wicked, a toxic influence on the life of every American citizen. As Senator Jim Webb once said, our prison system is an embarrassment, a national disgrace.
I may have only recently concluded 26 years as a prisoner, but I will be heard through my grass-roots effort to improve outcomes of our nation’s criminal justice system. Because change in this system will not begin until concerned citizens express their disgust.
I am only one voice, but I am disgusted and I will be heard. Will you?