The penitentiary is where all bad . . . black children go who will not listen and who constantly disobey. If you do not heed my words and listen carefully, you‘ll end up eating only bread and drinking water. And somebody who does not love you is going to tell you what to do every minute of the day.
All of my life my grandmother’s words have resonated throughout my psyche, as if they were scripturally based. Now, having lived a while, I know why she shared her wisdom with me, an African American kindergartner. Back then, the thought of a bread-and-water-only diet was repulsive and unacceptable. Today, the thought of being told what to do twenty-four hours a day, seven days a week is equally unpalatable.
Yet recent statistics confirm the validity of her penology perspective. When black prisoners from selected states were compared with the general black population nationally, a study found that the black population comprised 11.9 percent of the total U.S. population while black prisoners comprised 45.3 percent of the penal population. See ". . . And Justice for All": Ensuring Public Trust and Confidence in the Justice System, ABA Standing Committee on Judicial Independence, 11 (2001) [Quoting Andrew Hacker, Two Nations Black & White, Separate, Hostile, Unequal (1992)]. Is there a solution in sight to this incarceration phenomenon?
Who Goes There?
Most people know freedom is not really free. That is, freedom requires genuine responsibilities that must be exercised constantly. Penal institutions operated by federal and state governments are alternative places to live and work for people who are incapable of governing themselves in a "free" society. Self-imposed discipline is a prerequisite to living in a democratic society where rules abound. However, governmentally imposed discipline results primarily from the individual’s failure to police, correct, and conform him- or herself to the democratic standards by which we are all expected to live.
Penitentiaries are swollen with a disproportionate number of young minority citizens who chose to risk their freedom for financial gain. Although poverty or the lack of financial resources alone does not necessarily make incarceration inevitable, poverty and ignorance together may be the perfect equation for such an outcome. While most people prefer to live their lives free of poverty, the incarceration trap exists for some who select drug dealing as their method for escaping impoverishment. An examination of the close link between drugs, money, and violence in ill-fated crimes demonstrates that unless responsibility and the ability to make rational choices is deliberately taught, inmates and inmates-in-training will continue to flood American prisons. Despite the common misconception, triumphantly escaping poverty commands neither drug dealing nor incarceration.
When criminal laws were changed to make penalties tougher on criminal offenders convicted of drug-related crimes, unprecedented numbers of nonviolent offenders were sent to prison. See Steven Donzinger, The Real War on Crime, The Report of the National Criminal Justice Commission, 116-17 (1995). Our prisons are filling up with more and more desperate inmates who must complete longer sentences under various get-tough-on-crime laws. The problem is underscored by the realization that they must serve at least 85 percent of their sentences without the possibility of parole, and if the incarceration is their third, it could result in a life sentence.
Unfortunately, laws meant to punish offenders also negatively impact the lives of others including the offenders’ families, penal employees, and society in general. The emotional and financial devastation of families left behind by these inmates cannot be ignored. Correlative issues in this setting include the recruitment, hiring, and retention of prison staffers qualified to supervise angry offenders; the construction of enough prisons to humanely house these offenders; and the attendant social and financial costs to society. Therefore, early intervention must include accurate information about penology.
From Impact to Prevention
Prevention may sound idealistic and costly, yet modern corrections systems present appropriate settings for applying Benjamin Franklin’s wise quotation, "an ounce of prevention is worth a pound of cure." Consider education as a preventive measure against criminal activity. Grim statistics confirm the intersection of correction and education for some inner-city minority children. Incarceration appears likely where education falls short. See Finesse G. Couch, Not Just Another Brown Analysis: A Call For Public Education Reform, NCCU L.J. Vol. 20, No. 2, 148, fn. 22 and text (1992). Surely, educating Johnny is cheaper than incarcerating Johnny, and most reasonable people would rather see a book in Johnny’s hand than a gun. With an education, Johnny could be a productive, contributing member of society, paying taxes and taking care of his own family.
Unlike public schools and prisons, which are governmentally sponsored and operated, crime prevention is not necessarily a function of local, state, and federal governments. All societal institutions should consciously coalesce to promote and sponsor incarceration prevention programs. Private enterprise, corporate conglomerates, and the faith community should be equal participants because every facet of American life benefits when streets are safe, children are safe, and citizens can enjoy constitutionally protected freedoms.
Unfortunately, even national mass prevention efforts may not eliminate the massive prison industrial machine that exists in America today. Incarceration is profitable for vendors and service providers whose businesses flourish because of this captive audience. Wall Street investment houses and private firms realize profits from the "iron triangle" that exists between "government bureaucracy, private industry, and politicians.’’ Since prisoners are the raw material driving the system, the players in the iron triangle or the prison industrial complex push policies that increase prison incarcerations and expand the criminal justice system. See Steven Donzinger, The Real War on Crime, The Report of the National Criminal Justice Commission, 85-98 (1995), discussing an article by Thomas Paulette, Making Crime Pay: Triangle of Interests Creates Infrastructure to Fight Lawlessness, Wall St. J., May 12, 1994, at A1.
Many businesses thrive on the supply of goods and services to the prison population and the production of goods and services by this population. But when all is said and done, are inmates and their families better off? Is the country really safer? Perhaps policymakers should no longer ignore the impact of crime policies that erode family stability, divert dollars from smaller classrooms, and create excessive expenses under the guise of public safety. Id. at 30.
Already in North Carolina, the impact of get-tough-on-crime legislation has led the North Carolina Sentencing Commis-sion to issue a cautionary report to state lawmakers. The state may be strapped for cash and facing a prison population that is outpacing the number of prison beds. The report is designed to correct the flaws left by "three-strikes-and-you-are-out" legislation. In hindsight, filling prison beds with nonviolent offenders may be unduly harsh and expensive, given the dramatic 67 percent increase in the state’s prison population during the past decade. Wade Rawlins, Rules Could Free Prison Beds, News & Observer, Feb. 12, 2002, at 1A.
Can Tough Love Work in Prisons?
For those who have passed the point of prevention, we must implement alternative forms of intervention. "Tough love" is typically used to corral loved ones who have gone astray from the values by which law-abiding and respectful people should live. If "tough love" were woven into the American penal system, it would, in part, probably resemble the cognitive behavior intervention program that North Carolina Correction Secretary Theodis Beck has implemented for state inmates. Under this program, inmates are taught to make responsible choices based on logic and reason, the underlying rationale being that quality choices will likely affect their ultimate quality of life. Also, teaching inmates how to make better choices for themselves may impact the recidivism rate because inmates who yearn for freedom will learn the life skills they need to enjoy that freedom longer, once it is earned again.
When tough love works, the "offenders" become enlightened and learn from their errors. In the penal context, if get-tough-on-crime laws worked, masses of enlightened inmates would reunite with their families, better equipped to live disciplined lives in a free and democratic society. Yet, the reality is that more likely than not, tough love and getting tough on crime have very little, if anything, in common. The impact of get-tough-on-crime laws on families of inmates left behind and their children who are inclined to repeat the same cycle of poverty and ignorance mandates additional analysis and evaluation. Can this cycle be reversed?
Whether the cycle can be reversed is not certain. Divine intervention could instantly cure the ills prisoners encounter before, during, and after incarceration. Instantly their educational, economic, and emotional needs could be met without budgetary restrictions. Short of divine intervention, the solution is more elusive. But the value of education and encouragement as compared with incarceration is evident from the countless triumphant stories of the millions of citizens who courageously face life daily with limited resources. Incarceration is not a viable option for these citizens who have found ways to embrace the ambitious desire to succeed in life despite the obstacles.
When I first heard of the penitentiary from my grandmother’s tough love lesson in penology, it was a big word for a scary place with a bad menu. Now, as I understand it, the penitentiary is a big place that houses scary numbers of people who have been convicted of a variety of crimes. The way laws are written today, some inmates may never get another chance to learn about freedom. Breaking the cycle of ignorance and poverty will help place inmates, their relatives, and particularly their children in positions where they can achieve success. Relevant education, positive exposure, and candid communication will ignite the reversal of this monstrous cycle that has overtaken too many in this country.
Finesse G. Couch has practiced law in North Carolina for eighteen years. She is the executive director of the North Carolina Inmate Grievance Resolution Board where she directs the mediation of inmate grievance appeals and analyzes penal policies. Ms. Couch is a graduate of Duke Law School and North Carolina State University.
Grievance Appeals in North Carolina
Humane investigation and mediation of inmate grievance appeals precede the inmates’ mandatory exhaustion of North Carolina’s Administrative Remedy Procedure. Grievances may involve any action, condition, incident, policy, or procedure affecting the conditions of confinement. Recently, a unanimous U.S. Supreme Court reiterated the requirement that inmates must exhaust states’ administrative remedy procedures in most instances prior to filing lawsuits over prison conditions. Booth v. Churner et al., 206 F.3d 289 (2001).
Appeals typically involve specific disputes and allegations by inmates about peer and staff misconduct, inadequate clothing, food, medical treatment, personal property, assignment, classification, etc. Although plush accommodations are not generally the legally mandated standard, conditions of confinement must pass constitutional muster nonetheless.