We Hold These Truths: Code-Cracking, Happy Socks, and the Future of Prisons

Lynden Harris

We Hold These Truths.

Our justice policies are not carved in stone, but these promises are. Stately, solemn, evocative, the words are engraved on these courthouse walls. To know the rights of man is to defend them.

We open the doors.

The enormous lobby is hard with marble, smooth and polished, delineated by massive columns that rise story upon story. Phrases also embellish these interior columns, words that resonate like our famously cracked liberty bell: Freedom, valiant, ideals, sword, pen.

I stare at the “life and liberty conjoined” column. A long line of people cuts diagonally across the lobby as they wait for court to open. Every one of them is darker than the vista of polished white, pink, and sandy marble against which they stand in relief, like a contrasting vein.

It is worth noting that when “white” people are shown statistics about disproportionate representation of people of color in our criminal justice system, those white people tend to favor harsher punishments. In other words, we do not see the preponderance of certain skin colors as reflecting on a troubled system but on a troubled people.

There’s a story I’ve often told, about presenting to students at a prestigious university. I related how earlier that day I’d been with a different group of students their age about a mile away. Those students were working toward their GEDs. I’d asked the GED kids, “How many children in our country do you think have family incarcerated, on probation, or on parole?” They answered immediately.

I asked the university students the same thing. How many? They started crunching numbers on their phones—what’s the population of the US? What percentage are children? How many have family in the system? Finally, a student ventured an answer: 300,000. Another offered 500,000. Then 700,000. I stopped them. “What does 700,000 children look like? Picture them. That’s more than the population of some entire states.” The university students grew quiet. I continued, “You know what the students said this morning? When asked how many children had family incarcerated, on probation, or parole, they said, All.”

All. Six years ago, the number of our children with parents—not just family, but parents—in the criminal justice system was more than 7.3 million. That’s a lot of kids.

The number should tell us something. It should tell us to look a little deeper into the who, what, when, where, why, and how of the punishment we endorse. Because that level of disproportionate impact speaks way more loudly of who we are as a people than it does of those we punish.

* * *

The clap of thunder reverberates like an explosion, but the gray, rainy day doesn’t dampen our spirits. We’re at the courthouse to welcome a young man into his new life. Today is his final hearing, a formality before being released into the free world. Let’s call him Kenny.

I’m not an expert on prisons or incarceration or their sociopolitical contexts. I’m only an expert, and I say this lightly, on relationships. Meaning, I have friends in low places. Places that offer a special kind of insight into the quotes adorning these walls.

Kenny is such a friend. He has spent the past twenty-one years inside some very unforgiving walls. He is thirty-five. I invite you to do the math.

You know Kenny.

He is exactly who you fear he may be—a child who was beaten, sexually abused, neglected, malnourished, and undereducated—a child who used drugs and alcohol to numb some portion of the pain and chaos that was his daily lived experience. A child we sentenced to die in prison.

So, whom do we punish?

As everyone now knows, the US incarcerates more of its population than any country in the world. In the early 1970s, there were about 330,000 people incarcerated; by 2012 the number was in the millions.

There’s a pretty direct line between childhood trauma and incarceration. Almost all the men I know living on death row (at least the ones guilty of their crime) were neglected, abused, or tortured as kids. Prison strikes me as an odd response to their pain.

There are many countries that look at children like Kenny not as criminals who belong in the penal system but as children in need of compassionate and effective services. They see addiction, mental health challenges, and a lack of nutrition and housing and education as issues that belong in the spheres of health care and social services, not criminal justice. In those countries, the largest mental health facilities are not the county jails, as they are (embarrassingly) in the US.

In many cultures, the prevailing attitude is “How can we help?” not “Get them out of our sight.”

When the phone rang last night, I was sitting with a friend in a hotel directly across from the courthouse. The friend is one of Kenny’s surrogate mothers. She reaches for her phone, saying, “When I talked to him earlier, he said it would be his last call today, but I knew.”

Kenny is keyed up. Pacing. This is his last night behind bars. Remember being fourteen? Can you imagine the next twenty years in prison, the 7,660 nights in a cell?

We ask what he can do to calm down and he says, “Play Sudoku, I guess.”

I think a bedtime story may help, so I tell him how my mother, a great lover of Sudoku, left home at seventeen for a secret job in Washington, DC. The army had found her at NC State, where the total number of women was fewer than fifty. Everyone in her extended family was completely horrified. They did not think an unchaperoned female should be allowed such freedom; they predicted dire outcomes. Everyone except her own mother, who said, “Go! Go discover what’s yours to do.”

“Your mother was pretty brave,” he says.

“It was wartime,” I agree, “bravery was required. Go work your Sudoku and remember, all puzzles have solutions.”

He says he may go find some other guys and give them hope.

I hope Kenny will find what’s his to do in the world. I hope he cracks the code of freedom and beats the odds. But Kenny has never cooked a meal, never taken a yoga class, never been to a play, never had his own phone. His life has not been one of enrichment. The first few months he was in jail, Kenny gained forty pounds. That’s how malnourished he was. Jail was the first time in his life he had three meals a day.

What do we punish? Poverty springs to mind. Mental illness. Addiction. Trauma.

We are a punishing people. It feels good to punish someone; it activates what researchers call the “punisher’s brain.” We’ve all felt it. When it comes to others, it feels good to champion concepts like individual choice and personal responsibility while ignoring actual, tangible, real-life givens. When it comes to others, that is. Not when it comes to ourselves.

The US, meaning us, seems focused on increasing harm to these others (families, offenders, victims), but there are countries, such as Portugal, that focus intently on harm reduction. What a beautiful phrase, harm reduction. Our own policies, alternately, typically behave like the overstressed parent in the cereal aisle, beating their wailing child while yelling, “Stop crying!” Has that ever once worked?

There are so many numbers here, and a frightening amount end with million. But when we talk about the future of prisons, we’re really talking about the future of people. People who, let’s be honest, we’ve never really cared about. I think we would feel differently if we were talking about our own specific future. Our own child’s future. I think we would envision something radically different for them.

By opting for punishment as the best educational choice and prison as the best punishment, we’ve managed to lock people in a setting where they get better at what brought them there in the first place, or, as one friend said, “you go to prison and learn to become a better criminal.” We isolate offenders, not for emotional healing and education, but so they learn from more experienced men how to take what was not offered.

When Kenny was congratulated on getting a second chance, he quietly noted, “I never got a first one.” The dialogue between those words and the ones on the courthouse walls is uncomfortable as heck.

A mighty impressive team of attorneys has been involved in Kenny’s case for more than a decade. One is here from Brooklyn with her young son. Twelve years ago, she did not believe, really, this day would ever come. Other attorneys and social workers have arrived from Alabama, Missouri, North Carolina. They all want to witness the moment Kenny walks free.

Another woman, a cake decorator with a prison ministry, met Kenny when he was a kid at the juvenile prison. He is one of many young men she has elected to pray with, write letters to, visit. Today, she is jubilant.

Kenny’s codefendant, now a pastry chef, is also here. The ministering cake decorator helped him pipe his first frosting rose. She still has the photo on her phone. My friend, who has been bingeing on British baking shows, asks the pastry chef about something called a wagon wheel, which sounds suspiciously like an upscale Moon Pie. Tarts, shortbreads, biscuits—the courtroom opens, but now we are all looking around for something made with butter.

Kenny enters the courtroom in shackles that force him to walk like an old man. Shackles? Really? I doubt this final day he is much of a flight risk. The hearing takes maybe fifteen minutes. The judge reviews details with the clerk and attorneys, and Kenny shuffles back through the tunnel to the jail. It is very anticlimactic and just what everyone wants. No surprises.

His codefendant, small and slight despite specializing in pastry fillings, has been free for two years. I think it is brave of him to return to this courthouse, but he replies that the past two years have been their own kind of painful. “We went in together; we should have come out together.”

The wheels of the gods of justice grind exceedingly slow. Perhaps they are rusty and need to be oiled. We should talk to the pastry chef. For now, we can only wait.

When do we punish? As a parent, I think we sometimes punish when we lack the imagination (or just the patience) to notice better solutions. Punishment is one pathway to learning, but how often is it the best?

When Kenny was fourteen, he and a friend beat someone. Brutally. At a party overflowing with alcohol and drugs. The older man died. Because of this, Kenny was sentenced to life without parole—in other words, to grow up in a prison and die there.

Most people I’ve spoken with over the years didn’t even realize we sentenced children to these deaths, much less that there were thousands of such sentences. Maybe I’m overly optimistic, but I think you could pretty much ask any eighth-grade parent, and they’d come up with a better solution for their kid.

A team of visionary attorneys decided to contest this practice. They argued all the way to the Supreme Court where, in 2012, a majority ruled that children couldn’t be mandatorily sentenced to die in prison.

In 2016, the Court decided this ruling applied retroactively. Thousands of prisoners who went in as children were entitled to new sentencing hearings. Hearings that considered their age and other mitigating circumstances.

This will not come as a shocker, but children are not adults. Human brains do not fully develop until age twenty-four. If you’ve ever raised a teen, you will doubtless have wondered at times whether they had a brain at all.

Besides age, what are the other mitigating circumstances? How about when a child has been beaten repeatedly, by parents, stepparents, random boyfriends? When they’ve been hospitalized from those attacks? When they’ve watched their stepfather beat their mother with a 2×4 and permanently disable her? When a child has been raped and sexually assaulted? By multiple people? When they’ve witnessed family members murdered? When the child has never had a bed, much less a bedtime, and has been forced to forage for food their entire lives? When they’ve been introduced to drugs and alcohol as preschoolers? When they are fourteen and can’t read?

Is anyone surprised when a child (or an adult), subjected to these kinds of experiences, reacts with uncontrollable violence when they feel threatened? A family member of a death row resident observed, “When your whole life is designed to break you, someday you’re gonna break.”

In our criminal justice system, something like 95% of cases are resolved by plea-bargaining. This matters. Pleas are handled by prosecutors, not judges. This means that even if one is innocent, it’s almost always better to accept a guilty plea with a specified sentence than risk going to trial and trying to prove one’s innocence. Exonerees—innocents who refused to plead guilty—often say that given the chance for a redo, they would take that guilty plea. In a heartbeat.

When I asked incarcerated friends about the future of prisons, they sent pages of ideas. Exclude testimony from “jailhouse snitches,” false statements obtained in exchange for reduced sentences, or for money, food, drugs. Institute bail reform, so poor people don’t languish in jails for years waiting for a trial. Reform probation fees so fewer people return to jail simply because they couldn’t pay their probation costs.

A prison officer in another country was shocked to hear that our offenders pay for their own probation fees, drug treatment, and so forth. “That means people with money would get a better situation, could get out sooner and afford to stay out. That seems wrong!” Wrong and also accurate.

From snitches to mandatory sentencing to cash bail, our system is a hot mess. Consider the real case, one of countless such, of a young woman whose boyfriend gets busted for trafficking pills. He convinces her to work with his crew to sell drugs to raise his bail. She is seventeen, a survivor of domestic violence and pregnant with his child. Before sentencing, she gives birth. The crew gets four years. The boyfriend gets out. And she is now a single mom sentenced to twenty years.

I wonder whether anyone reading that paragraph says, “Oh, that makes sense.”

There are other countries, including Germany and the Netherlands, whose 95% statistic describes something different, the percentage of prisoners sentenced to two years or less, two-thirds of which sentences are suspended. In these countries, the focus is on identifying the missing pieces—mental health, addiction, educational support—while the person remains in the community. Or in readying them for reentry.

I wonder what the future for that single mother or her child might be, were they living in one of these countries.

We decide to take a break from all the marble, which is beginning to feel oppressive, especially to our backsides. Someone has discovered the court café, which does not serve pastries but does offer Kind bars.

Everyone tries to work, but each text or phone call interrupts with the force of a fire alarm—is he being released now? Now?

Finally, Kenny calls. What’s taking so long? He is hungry but has sworn never to eat jail food again. His codefendant relates a famous meal with some gray-blue chicken and dumplings. He ate them anyway. We suggest Kenny do the same. The afternoon looms long.

What’s the holdup? Paperwork. Past prisons, property, parole, probations—emailed, scanned, faxed. The attorneys try to track where the paper trail was lost, but it’s tough from the outside. The paperwork was sent but not received. It was sent again. The paperwork is sitting on a desk. The paperwork can’t be found.

Kenny calls again. An attorney encourages him, “We are looking at minutes, not hours.”

He is mistaken. The café closes. The marble remains. Officers depart the sheriff’s door. When does the courthouse close? It doesn’t. So long as there is a judge in the house, there is hope. The judge passes us on his way out, surprised we are still there. He promises to make calls.

Someone beckons Team Kenny for a photo. A guard announces, “No pictures inside.” Then she quietly offers to take them for us. We are a motley bunch, in a peculiarly American way, multicolored and dressed in everything from jeans and sweatshirts to suits and bowties. We pose below the words, “Equal justice under the law.”

The Brooklyn attorney wrestles with whether to reschedule their flight. Her son is tired. He’s already missed a day of school. Rescheduling will cost lots of money. She books two seats on a later flight.

Moments later, the attorney beckons us. A sigh. “It’s not going to happen today.”

There is nothing to be done. Half the welcoming party cannot stay. The attorney adds, “Tomorrow, for sure” as we head our separate ways.

Where do we punish? In some rural areas, everyone knows. Schools and prisons are the last employers left, especially now that rural medical facilities are closing. Students talk about touring the prison across the street from their elementary school. How their teachers—when they had them; some students only had textbooks the entire year—how their teachers would point to the prison and say that’s where the students would end up.

When I was a child, we would drive past a women’s college on the way to visit my grandmother. My mother would say, “That’s where you’ll go to school someday.” I would protest, “No, that’s where nuns go.” I bet you’ve guessed the punchline.

When it comes to jails and prisons, out of sight, out of mind seems to be the policy. We want the incarcerated to be unseen and unheard. But these are our prisons. Our prisoners. Proximity motivates change. If we cannot see the people, the place, the practices, how can we determine whether these institutions are embodying our ideals? How can we even know enough to care?

We need to bring the public into the prisons. We need to create pathways for volunteers to offer classes in anything and everything that leads to mentally, emotionally, physically, and spiritually healthier people. Tai chi, chess, painting, storytelling, reading, math, geography, sociology—there are plenty of willing teachers. Why would we send people to a place guaranteed to make them sicker before they rejoin us? It’s clearly in our best interest to remediate those previous gaps. I’ve only known one man in prison who came with a high school diploma. Like Kenny, many were functionally illiterate.

A friend on death row wrote, “Higher education is a fundamental need that should be offered to anyone who has a desire, regardless of sentence length. It should never be too late to learn.”

We need to insist that our legislators, particularly those with oversight of our corrections, visit regularly and speak with the residents there. A legislator who visited our local prison was told by administrators he was the first representative to ever come there. In Norwegian prisons, the politicians campaign inside.

There are plenty of countries whose guiding principles for justice focus on health and success, normalcy and dignity. All punishment is values driven. What do those engraved words claim we value?

Day 2. We decide to stay at the hotel and work until called. It is like waiting for a baby that is past due. You know the baby will come, but when?

Attrition (jobs, family, commitments) has left only seven of us to welcome Kenny into his new life. We wait. Time is elastic. It must feel oppressively so to Kenny.

At some point, the ministering cake decorator appears with a promisingly oversized white box. She has purchased a bounty of treats, gorgeous with butter and berries and nuts, from the pastry chef’s bakery. Everyone agrees that we should save some for Kenny.

By lunchtime, there has been an attrition of pastries, too.

Hours pass. Midafternoon, another call. Now. We jump up and rush across the street to the jail. Where we wait.

How do we punish? Maybe the most horrific thing we do, the thing much of the world calls torture, is send people to live in a cage, alone, with no human contact twenty-three hours a day, every day, for years. As one friend said, “If you didn’t have PTSD coming in, you’ve got it now.”

But it isn’t just solitary confinement that astonishes. It’s the fact that isolation is the heart of what we deem effective. When my friend visited Kenny, she was the only visitor he’d had in ten years. Imagine ten years of your life removed from all friends and family.

We burden families in every way possible. We locate prisons in hard to reach areas, then structure visitation so that, even if family somehow finds the funds and time to travel, they’re not allowed to hug each other. How human would you feel after decades caged and untouched?

We even isolate prisoners from meaningful work, from the chance to help support those families. I’ve had friends apologize for not writing because they didn’t have money for a stamp. They are utterly dependent. One mother said, “Between my sons, I spent so many thousands of dollars. Couldn’t claim them on my taxes, though. Don’t I wish I had all that money at one time! I’d be rich right now!”

And the isolation never ends. The “tougher” we get on crime, the longer the prison sentences, and the more our prisons resemble some surreal “aging in place” model. As one friend wrote, “In my quarter century here, I’ve watched this prison become a geriatric ward. Practically everyone suffers from a chronic illness. The economics make no sense. Why not offer a home plan or house arrest to offenders who have been locked up for twenty-five years or more?”

A home plan. Someone recently released is ten times more likely to be homeless than the general population. Are we shocked that twenty bucks and a bus pass does not make for a successful transition? How much more pragmatic to focus on supporting whatever will make their move into free society more seamless. More successful. Make them less likely to return.

After multiple visits to Norwegian prisons, from maximum to minimum security, a friend described it as “wandering into a different universe.” She spoke movingly of the administrators and officers who had so much compassion for the incarcerated, who understood that the loss of freedom was the punishment.

I think of friends inside, struggling for the right to an education, allowed only eight books, who are consistently told, “You are not here to be rehabilitated.” I think of the officer who said prisoners don’t need classes; they need to be out there “busting up rocks.”

In other countries an officer’s job is to ensure that when released, the former resident is ready. Those prisons are designed as much as possible like the free world to facilitate that return. Simple things we might not even think of: walkways that allow residents to climb hills; communal housing with gardens where residents shop for food and prepare their own meals; coffee shops; hospitable places for visitation, with toys and snacks; a little house nearby where families can spend weekends with their loved one.

Contact officers (not correctional officers) are taught that treating prisoners humanely is something they do for their own good, because callous or dehumanizing treatment will negatively affect their own mental health and families. There are two officers for every twenty-five residents. The focus is on interaction, on building a relationship, on understanding each others’ lives, families, interests. Since the officers know the people on their unit, they can tell when something is amiss.

A resident at the women’s prison who had killed her abusive husband—a common story in every country—wept when she thanked her contact officer for being her friend, her role model and mentor. Can you imagine that happening here someday? Good. So can I.

In contrast, our correctional officers currently have the lowest lifespan of all law enforcement. They have higher rates of PTSD than military veterans. Officers are underpaid, overworked, and stuck in some of the unhealthiest environments imaginable. They can be fired for having a basic human relationship with a prisoner. The officers suffer; their families suffer; the prisoners suffer.

What would it take for Americans to open their minds and hearts to the better ideas that already surround us?

It was bound to happen eventually. The doors open. Kenny walks through. He is hardly recognizable in his suit. Escorting him are two men, also wearing suits. They are a handsome trio.

The sheriff lifts his pants leg to reveal a pair of bright pink and orange socks. The sheriff doesn’t just wear happy socks, he gives each man in his jail a pair. He also collects forgotten garments from local dry cleaners, so that every man who leaves his jail does so with dignity. When he hugs Kenny goodbye, his eyes fill with tears. He reminds Kenny to keep upping his sock game.

Minutes later, we’re sharing Kenny’s first meal in the free world, the fast food spot having been recommended by a friend inside, a friend, Kenny says, “who knows how to eat.”

Kenny has a list of what to order, which is basically every item offered. He takes his time, never having ordered food before. He talks to everybody. As my grandmother would say, That boy never met a stranger.

Our table of eight is a little giddy, a little loud. At some point, Kenny notices someone’s biscuit and says, “What?! They got honey?! Y’all been holding out on me.” Not only do they have honey; they have as much as you want. He cannot believe it, nor can he believe the free drink refills.

When I cross the room for more tea, a man at a nearby table beckons me. “Is that the guy who had something overturned?” We’ve been cautioned not to talk to the press, so I hesitate, but let’s be real, not because I thought he was press. He’s a middle-aged white man wearing a T-shirt and shorts. At a fast food joint. I understand my hesitation and it isn’t pretty. Prejudice never is. But I smile and say “Yes.”

He looks at me hard for a moment and then this middle-aged white man exclaims, “FAN-tastic!” Yep. Fantastic.

Why are we, as a people, so punitive? I think the real answer is that we aren’t. At every stop along this short journey, someone stepped forward to try and help, from the concerned judge to the photographer guard to the be-socked sheriff to the supportive diner. Most people, given the option, opt-in for compassion.

There’s received wisdom that if you can’t solve a persistent problem, you’re probably asking the wrong question. What is the question we need to ask?

How about Who was harmed and How do we heal that harm? Who was harmed? Heck, who wasn’t? Kenny, his mentally ill and addicted parents, the kids in his neighborhood, the under-resourced schoolteachers, the man he killed and his family, the defense attorney overloaded with cases, the officers at the jails and prisons—the scope of the harm will bring you to your knees, weeping.

But the real healing, the real restoration, happens person to person, face to face. Policies follow people.

The truth I want to hold has a name, a family, a future beyond prison walls.

The future of prisons is already here. That code has been cracked. The future of prisons looks like food in the fridge, parenting support, mental health access in neighborhoods and churches, well-paid teachers trained to focus on children’s needs and capacities. It looks like imploded concrete structures in favor of healthy, secure homes for those whose mental health is beyond repair. It looks like Project Homecoming, where homeowners receive subsidies to rent rooms to re-enterers; like a public art gallery where prisoners used to eat; like not just Shakespeare Behind Bars, but prisoner-devised performances open to the public. It looks like community-engaged learning and work. It looks like restorative circles that understand the scope of harm. It looks like a garden, a farm, a coffee shop, a relationship between served and serving.

The future of prisons looks like you and me taking charge of what is done in our names. This is a puzzle we can solve.

The collection of quotes inside the courthouse is titled, “Let Justice Like a River Roll.”

Let it indeed. Perhaps not today. But tomorrow, for sure.

 

 

Further Reading and Resource Recommendations

1. Prison Policy Initiative:  https://www.prisonpolicy.org/. The non-profit, non-partisan Prison Policy Initiative produces cutting-edge research to expose the broader harm of mass criminalization. (You can find stats broken down state by state, as well.)
2. Equal Justice Initiative: https://eji.org/issues/children-in-prison/.This page has information on all things children and prison, from children sentenced to life in prison without parole to children living in adult prisons. (Which is about to change, by the way, because of a new federal law.)

According to the Equal Justice Initiate’s website: “Before the Supreme Court banned the death penalty for juveniles in 2005, 366 people were executed for juvenile offenses. That ban allowed EJI to focus on some 3000 people who were sentenced to life imprisonment without parole for offenses committed when they were 17 or younger. Children as young as 13 were among those condemned to die in prison.”

Most of these sentences were mandatory—the sentencing judge was not allowed to consider the child’s age or life history. Some children were sentenced for crimes where no one was killed or even injured, and many were convicted even though older teens or adults were primarily responsible for the crime. Seventy percent of those fourteen or younger who were sentenced to die in prison were children of color.

EJI launched a litigation campaign in 2006 to challenge death-in-prison sentences imposed on children. Three years later, we argued in the Supreme Court that the Constitution forbids sentencing children to die in prison. On May 17, 2010, the Court in Graham v. Florida barred life-without-parole sentences for juveniles convicted of nonhomicide offenses. The Court recognized that the ways in which children are different from adults have to be considered in sentencing. Since 2010, we have successfully represented children across the country to obtain new sentences.

We went back to the Supreme Court after Graham to argue that sentencing kids to die in prison is unconstitutional regardless of the offense. In 2012, the Court in Miller v. Alabama struck down mandatory life-without-parole sentences for all children seventeen or younger. The ruling affected thousands of people whose sentencers did not consider their age, the details of the offense, or any other mitigating factors. The Court did not ban all juvenile life-without-parole sentences, but held that requiring sentencers to consider “children’s diminished culpability, and heightened capacity for change” should make such sentences “uncommon.”

Some states refused to apply Miller to older cases. On January 25, 2016, the Supreme Court held in Montgomery v. Louisiana that Miller applies retroactively and requires new sentencing hearings for everyone serving a mandatory life-without-parole sentence for an offense when they were under eighteen. Montgomery reaffirmed that life-without-parole sentences are unconstitutional for all but the rare juvenile for whom rehabilitation is impossible.

Over a thousand people who were automatically condemned to die in prison for juvenile offenses have been resentenced because of Miller, and hundreds have been released.”

3. The following is a link about prisons in Norway and discusses countries that treat imprisoned people more humanely: https://www.businessinsider.com/norways-prisons-are-better-than-the-american-prisons-2018–6.