A VIEW FROM THE BOTTOM by Burl N. Corbett
The legal profession loves to quote the hoary aphorism "We are a nation of laws" to wheedle the rest of us into sanctioning their self—appointed role as our protector.
The platitude's bitter truth, however, soon becomes apparent to those accused of a crime when he or she finds themself charged with not only the primary offense, but a slumgullion of barely applicable sister charges, an obnoxious practice of flinging every conceivable allegation against the mighty wall of the law in the hope that one or more will stick. Yes, there is no question that America is a nation of many laws, but is it also a nation of justice, of common sense? Many would say no.
Politicians, many of them lawyers, have historically pandered to the electorate's understandable fear of crime to win election and then reelection. On their hustings, they thunder, "We are engaged in a war against !" (insert the name of the latest bugbear bedevilling the public weal), conveniently neglecting to cite its cor- ollary: That in any war, truth is the first casulty. In the traditional model of this
"war," the police defend civilization's "front line" while the lawyers and judges act as impartial referees and umpires to ensure that the "battle" is fairly waged. Who better, after all, to oversee the rules of “¢oﬁ$5£" than those who wrote them? And so it goes, round and round in an endless chase the bloodhounds of justice doggedly pursue the latest suspects, of which there is never a shortage. When there are laws against nearly everything, then nearly everyone is a criminal.
I came to prison at the age of sixty, my only previous criminal offense a twenty- three—year—old DUI conviction. I had raised a family, operated a successful masonry business, and was fairly conservative. Therefore, I expected on my arrival to en-
Corbett counter large numbers of inmates loudly proclaiming their innocence. Instead, I was surprised to find that very few did. The vast majority readily admitted their guilt, although sometimes the crimes that they actually committed and those for which they were convicted were not the same. Most of the men were either stoically serving their time, hoping for the elusive bird of parole to fly over the razor—wire fences and alight upon their shoulders, or spending much of their days in the never—ending pur- suit of the elusive snark, a legal loophole. In the Nation of the Incarcerated, the national pastime is pro se jurisprudence: its season never closes.
During their slow journey through the "system," a goodly percentage of inmates are represented by public defenders, often cynically belittled as "public offenders."
It remains a jailhouse truism that the typical public defender office is staffed with incompetents, overworked drudges, and shell shocked veterans building up pension time. Occasionally a fortunate defendant claims a sighting of that rara avis of the legal profession——a young, talented rookie who will fight like an idealistic badger for his client——but like reports of the mythical snark, such accounts are usually dismissed as apocryphal. Rightly or wrongly, the average public defender is largely regarded as either an untrustworthy pawn of the district attorney——with whom in cer- tain impoverished counties they sometimes share office space——or as an untalented nonentity toiling before the bench, putting in time and gaining experience much as future chefs serve apprenticeships in the culinary trenches as dishwashers and line cooks. However, the analogy can only be extended so far. An error in the kitchen re- sults in a ruined meal; a mistake in the courtroom can ruin a life.
Many defendants complain that as a result of their public defender's continual
. exposure to deceitful clients, many of them have lost the ability to recognize an dhonest person when he or she encounters one. In the jaded eyes of wary defense at- torneys, the very act of asserting one's innocence is often assumed proof of its
Corbett opposite. It is a no—win situation for all concerned. An initial knee—jerk assump- tion of guilt can adversely prejudice a public defender's perception and lead to overwhelming pressure upon his client to accept a plea bargain. If a hesitant de— fendant displays reluctance to a time and money—saving plea bargain, he'll be re- minded that an unhappy judge——irritated that "his" courtroom might be tied up in what everyone but the optimistic defendant considers a frivolous waste of time——will exact his revenge if the defendant loses. Given the reality of these grim choices, it is not surprising that many impartial observers, as well as the participants, consider the grimly efficient if not equitable plea bargain system an assembly line of piecework justice at best, and at worst little more than a sanctioned form of legal extortion.
But for the sake of the argument, let us assume that a defendant secures a compe- tent attorney of either public or private stripe and decides to go to trial. Let us further assume that the said defendant is either black or Hispanic, as is all too of- ten the case. One might suppose that after a half—century—old civil rights movement and numerous court decisions that every pool of potential jurors will reflect the racial demographic of the community. However, one would be mistaken. During a recent murder trial in Reading, Pennsylvania——a city of 85,000 and a Hispanic population of at least fifty—five percent——a grand total of twg_Hispanics were in the pool of eighty jurors, plus only one black and a single Chinese. The seasoned courtroom ob- servers agreed that this was by no means an uncommon occurrence.
Skeptical defendants are blithely assured not to worry, that justice is blind, and that no matter whom is impanelled——regardless of their race or nationality——they will arrive at a just and fair decision after a thoughtful examination of the evidence and the respective honesty of the witnesses and the defendant himself, if he chooses to testify on his behalf. It is said that truth is the mortar that binds the foundation
Corbett stones of our judicial system, but is it so easily found? Twenty-six hundred years ago, the Greek philosopher Diogenes combed the ancient agoras in an unsuccessful search for an honest man. Yet today we expect a jury of twelve average citizens to part the seas of conflicting testimony~—some of it predicated upon arcane legal technicalities——and determine the veracity of not only the witnesses for both the prosecution and the defense, but validate or reject the opinions and conclusions of a host of doctors, psychiatrists, and experts from a bewildering variety of special- ized fields. After trying to sort out this confusion of information, under extreme duress to arrive at a correct decision, the jury is asked to perform a task that has stymied philosophers throughout the ages: decide what is true. And if they fail, which is sometimes the case, the resultant injustice creates another bitter judicial heretic.
Not long after I arrived at state prison in 2009, I thought of Jack Abbott's book about his years in prison, In the Belly of the Beast. Older readers might recall Mr._
Abbott, perhaps. In the early '80s, Norman Mailer——a gifted writer but a poor judge of character——was impressed enough by Mr. Abbott's lurid bildungsroman to arrange its publication. After a relentless patter of fawning reviews by the usual liberal suspects, Mailer convinced a gullible judge of Mr. Abbott's rehabilitation and secur- ed his release. Shortly thereafter, Mr. Abbott fatally stabbed a fellow dishwasher during a minor squabble. Mr. Mailer is now dead, and Mr. Abbott faded-back into a well—deserved obscurity in another prison, but the title of his book——if not the content——still produces a certain resonance. What could be a better epithet for a self—perpetuating entity which, if it could speak, would noisily bellow for more and more food to appease its constant appetite? The ceaseless clamor of the voters for an unrealistic level of safety has resulted in a deluge of inflexible laws and Dra-
Corbett conian sentences. The ballooning numbers of convicts, of course, require a balloon- ing army of workers to transport, feed, clothe, house, and, above all, guard them.
As a result, the nation's prison system——once considered a necessary—if—distasteful civil ministration—-has evolved (devolved?) into a growth industry, an indispensable part of the economy. Entire rural counties across the land look upon their local prisons as fondly as a pampered nephew regards his benevolent uncle. And, best of all, they don't have to feel guilty if they forget his birthday.
At sentencing, judges usually assure the dispirited, shackled men before them that they will benefit from the numerous programs and educational courses available at state prison. This is a common promise, one that may even be fulfilled at some individual institutions. But all too often the inmate discovers when he arrives at his
"home" prison that the few behavioral modification programs have extremely long waiting lists, and that some of the occupational instruction classes have been "tem- porarily" discontinued because of budgetary shortfalls. Even those fortunate to en- roll in a particular course frequently learn that a siXty—hour course, for example, is in actuality closer to a forty—hour affair, given that every class starts late
" and generally due to "counts," bureaucratic bumbling, or unforeseen "emergencies, ends early for the same reasons. And there are always the cancelled classes on Fri- days and Mondays when the unionized instructors use a "sick" day or "personal" day to customize their own three—day weekend. These missed classes are supposedly "made up," but continuity is lost and momentum destroyed, as well as lengthening the wait- ing time for those on the sign—up lists. Is it any wonder that the majority of pris- oners scoff at the efficacy of the ballyhooed programs and only attend them if order- ed by the court or as a means to earn a few cents an hour?
Some educational courses do provide a useful purpose, however, as opposed to those
Corbett that merely offer the same old set of boring hoops to jump through. The GED course is one such notable exception, and it is often mandatory in many states for those lacking a high school diploma. Whether it is given much weight in today's exacting marketplace is debatable. But it's better than nothing, as the blind pig grunted when it found a single acorn. K
At my home prison, the traditional vocational courses have become endangered species. The barber school has closed for lack of an instructor, and the auto body shop has also shut down for unspecified reasons. For the talented, there is a com- puter technology and repair class, and for the rest a warehouse and material handling course that upon completion awards a dubious certificate attesting that the graduate is qualified to shuffle cardboard boxes reasonably well and operate a few kinds of forklifts, easily learned skills that are typically aquired on the job. As a carrot at the end of the stick, attendees are paid for what passes as a princely wage-- twenty—five cents an hour——and this swells the waiting lists to the point of burst- ing. This humble gratuity, however, is actually counterproductive as far as boosting graduation rates. Graduation means an end to the easy money, and it doesn't take a genius to figure out that it's better to fail the course and retake it again, even if it requires another long wait. Who knows?, by then inflation may drive up the hourly renumeration a few pennies higher! This is called "gaming the system," and is adept- ly practiced as a time—honored method of survival.
Many of these rehabilitative courses and programs were conceived during an era of relative prosperity. But when the public learned the many hidden costs of mandatory sentences and the attached bureaucracies that attend them like flocks of glut- tonous seagulls pursuing a garbage scow, they demanded reductions in everything ex- cept the number of incoming prisoners. That flood—-by God!——must never be impeded!
As a penny—pinching result, since the state employee union is an immovable obstacle
Corbett to any personnel cutbacks, most of the fat—trimming comes off the hides of the in- mates. Across our nation, it appears, unions are slowly withering from obsolescence, dying relics of another age and a different economic model. Everywhere, it seems, except in government. And what else is the prison system other than a vast, flound- ering conglomerate of the mediocre struggling to oversee the unmanageable? At heart it's a cumbersome—but—creakingly—efficient governmental bureaucracy that excels at maintaining control while retaining the common rat's uncommon proficiency of self- preservation.
Many of the treatment programs for sex offenders and other types of anti—social transgressors are based upon the twelve—step model of Alcoholics Anonymous, an or- ganization whose self—admitted "success" rate is no higher than a charitable ten per- cent, so it's fair to question their effectiveness. But apparently the true believers of AA and their uncritical supporters have convinced a large majority of judges that their semi—religious approach is the light at the end of whichever tunnel the social miscreants have failed to transverse. If the Old West wagon train guides had been as inefficient as AA has repeatedly demonstrated itself to be, the pioneers would have perished of thirst in the deserts of Utah and Nevada or devoured themselves to the last man amid the snowbound passes of the Rockies. But since these questionable pro- grams also provide employment for legions of psychotherapists and psychologists who might otherwse be fretting over unpaid college debts, they have become sacred cows.
Ineffectual as these various programs might be, inmates hoping for parole must attend them. So, they participate in the farce, obtain their ornate certifications and doubtful sheepskins, and meekly play the game in order to impress the parole board, whose decision will determine their fate. Lord Acton, the nineteenth—century
Englis historian, famously remarked that "power corrupts, and absolute power corrupts
Corbett absolutely," a singular insight given that he never faced a parole hearing. Every inmate, unless he opts to "max out"—-serve the entirety of his sentence——or convince an appeals court to overturn with prejudice his conviction, will have to eventually face a parole board, whose decision is final. Charged by the courts and pressured by public sentiment to reject maladjusted inmates anxious to conclude their enforced sabbaticals to resume preying upon the populace, parole board members are cynical by nature and skeptical by necessity: saccharine sob stories and phony tales of redemp- tion will beat uselessly against their stony shores. But for genuine penitents with records of sterling behavior, the parole board represents society's willingness to offer select petitioners a second (or third, or more) chance. In a small nutshell, this is the current theory of rehabilitation, but like all dogmas it has its heretics.
The first thing an aspirant parolee needs besides a clean behavior record is a
"home plan"——a detailed report on where and with whom he intends to live for the duration of his parole. For many, who may have effectively burned their bridges to family and friends, this can be a formidable obstacle. Some may have no other option
" a group home whose than to join the long waiting list for a bed at a "halfway house, regulations may be only slightly less stringent than a prison. But even for those welcomed home by forgiving relatives, there is yet another hurdle to clear: If the parolee's mentor has any kind of criminal recQrd——even a decades—old DUI——the "home plan" can be summarily rejected. Even an unwise admission by the home owner that he or she enjoys an occasional beer after work may result in a prudish thumbs down to the applicant's home plan. And otherwise acceptable plans have reportedly been denied because of the presence of a large dog on the mere supposition that it "might" bite a visiting parole officer! Finally, if the would-be parolee's intended home is in publically—supported housing, his home plan will be automatically turned down. Many state legislatures, not content with just enacting harsh sentencing laws, have also
Corbett imposed punitive regulations that prohibit felons from living as temporary guests on the taxpayer's dimes. These seemingly vindictive and arbitrary decrees have the effect-—intended or not——of narrowing the needle's eye through which parolees must pass.
Besides leaping these formidable barriers, it is helpful if the parolee can prove that a future employer is lined up. The opportunities for fradulent attestation that this stipulation creates are mind—boggling. It would be an unimaginative person indeed who couldn't convince a friend to open a business on demand. In fact, in the construction trades there is an oft—repeated joke about how the mere ownership of a hammer, ladder, and a pickup truck qualifies one as an instant roofer. At any rate, in a slumping economy even legitimate businesses are not hiring proven workers, let alone a sight—unseen jailbird. But the system insists that each role must be played with all seriousness, and so the show goes on despite a plethora of bad reviews.
Even when parole i§_granted, the parolee often feels that his parole officer wants him to screw up, wants him back in prison so the whole tiresome process can begin anew, thereby maintaining the constant turnover necessary to fuel the ever- thirsty system. (And to provide jobs, of course.) That's a cynical take, for sure, but it's difficult to conclude otherwise after hearing tales of revoked paroles be- cause a visiting officer finds two empty beer cans in the outside trash can at a parolee's home. It doesn't require the skepticism of Voltaire to suspect that the parole system needs repeat customers to justify its existence.
All too often, despite finding a job and a home, many parolees are disheartened to discover that in their enforced abscences the world has moved on, leaving behind many of their old, unsolved problems. Not only must they shoulder financial burdens both old and new, and attempt to mend emotional wounds, they must do it while laden with the additional baggage of a criminal record and the scarlet letter of incarcer-
Corbett ation branded on their psyches.
Many law—abiding citizens like to pretend that they are open—minded and forgiving, compassionate champions of the downtrodden, yet in their secret hearts they still nurse grudges from grade school and resent careless remarks uttered at a high school dance. Although ex—convicts might wish that mercy will "drippeth as the gentle rain from heaven," they will more likely encounter a perfect storm of indifference, dis- regard, and outright hostility. Worse, they are apt to find that the trust and love that they squandered is as impossible to restore as one's virginity.
Post—prison life is hard for every parolee, but for those who live in the country it is harder still. If not employed, a parolee will be pressured to find a job, a nearly impossible task without a car. If he has lost his driving license or never had one, even access to a vehicle is meaningless. A misdemeanor charge of driving without a license is a guaranteed ticket back to prison. And stranded parolees soon discover that their friends and families are busy with their own complicated lives and have neither the time nor inclination to chauffeur them around. To compound the difficulties, parole officers demand that their charges appear weekly at their of- fices, which might be twenty miles away or more. Slowly but surely the noose of des- peration tightens as the parolee's lack of money and resources drag him down.
City dwellers have it easier finding transportation, but on the other hand run a higher risk of reverting to their old ruinous habits. The seductive songs of the sirens——pushy drug dealers and corner barrooms——incessantly tempts backsliders to dally at their isle, have a friendly snort, a leisurely toke, a quick drink or two, or three or more——always just one more. And hanging over both the city mouse and his country cousin like the sword of Damocles, is the perpetual threat of parole revocation, a threat that can sometimes precipitate the very behavior it is in-
Corbett tended to prevent. It is easy to see why many parolees regard their parole as just another form of punishment rather than a golden brick road to redemption.
In the university of penology there are many schools, and a popular one maintains that if a man hasn't learned his lesson after five years of confinement, he never will. Either he is hopelessly stupid or what used to be called "just no damn good," two afflictions that are generally considered incurable despite lengthy sentences.
The nation's prisons are full of these incorrigibles; they provide the grist that keeps the grindstones of justice ceaselessly milling. But what then of the rest, the redeemable? Certainly there are the violent predators, human monsters who should never gain freedom, but for a sizable majority, however, especially the ones in prison for minor offenses, victimless "crimes," or simply parole violations, after a certain num- ber of years justice devolves into revenge. The ultimate revenge is capital punish- ment, which its critics condemn as a sad example of the state sinking to the level of its lowest offender. And although capital punishment is outside the scope of this essay, it is too serious a matter on both the legal and existential level to be put in the hands of rabble—rousing politicians or bumbling, clock—watching bureaucrats.
Pontificating op—ed editors invested in increasing circulation and learned talk- ing heads on televised political gabfests are fond of bandying about like a beloved grandchild the old saw that "prisons breed crime," as if the gloomy cellblocks are spawning the spores of malfeasance that will later pop—up in the front lawns of the crime-besieged public. To swallow entire that hoary chesnut is to also believe that barrooms cause drunkeness, whereas it is common knowledge that putting liquor in one's mouth and then swallowing it is the actual culprit. No, what prisons really breed is advanced racism. They are hatcheries where already—prejudiced inmates are
Corbett confronted with in—your—face stereotypes of different races, closed systems of re- circulating hatred and animosity; P€rfeCt greenhouses where the seeds of racial bias can freely sprout. It is a strong man indeed who doesn‘t leave prison more pre- judiced than when he arrived. In some respects, America's prisons are not much dif- ferent than its society—at—large: its vaunted "melting pot" merely separates each racial group more distinctly rather than mixing them.
Prisons also breed contempt for the law and all of its enablers: the lawyers and judges, the human gears and springs and whirring shafts that drive its ponderous wheels as they inexorably turn. The mills of God are said to grind exceedingly fine, but the millers of the law are not so conscientious. Into their maw all manner of
"grain" constantly falls, but the fineness of their milling is largely determined by the amount of the gratuity rendered unto the miller.
Prisoners raised in the mean streets of city ghettos find themselves enmeshed in a bewildering system run by people from literally another reality: sheltered college- educated suburbanites who never went to bed hungry or had to sleep in a roach—infested abandoned house full of zoned-out crackheads going bump in the night. Distressed de- fendants shake their heads with despair as eager—beaver prosecuters anxious to hang another scalp on the lodgepoles of their resumes, run multiple charges for a single offense up the flagpoles of the court in the hope that a jury will salute them. As young go—getter Assistant District Attorneys compete to impress future law firms and register another punch on their ticket to prosperity, respect, and perhaps an even- tual judgeship, it sometimes seems as if the original quarry—-justice—-becomes lost in the dust and clamor of the pursuit. But from the lowly vantage point of the de- fendant, the ostentatious parade of well—dressed lawyers is nothing more than a cha- ade performed for the diversion of the actors, rather than a deadly serious contest in which only one of the participants runs the risk of losing.
As one inches through the system, from arrest to preliminary hearings to trial and sentencing, one is struck by the easy camaraderie, the joviality, the constant friendly bantering between all involved. Everyone's role is well—defined, symbiotic upon the others, and everyone merrily performs their tasks as if under a collective delusion that they and their labors are furthering justice, whereas the typical defendant thinks the opposite. And who could blame him if he overhears some pompous authoritarian solemnly pronounce that "Justice is blind," and mutters sotto voce,
"Yeah, and deaf and dumb and up for sale to the highest bidder."
In closing, one must conclude that disgust, fear, contempt, loathing, and distrust make a poor foundation to erect a respected edifice of justice upon. One reason, perhaps, that lawyers garner an infinitesimally low approval rating is because every dissatisfied speck of grist who has had the misfortune to pass through the mills of the courts emerges with an abiding revulsion which he then communicates to his friends, family, and casual acquaintances. After unhappy reports from the legal front by several generations of offenders, large percentages of the public have formed de- rogatory opinions about America's courts and penal system. By its practice of mass incarceration, it appears as if the nation's legal system is unconsciously incu- bating the very vipers that may someday destroy it.
The seventeenth—century English empirical philosopher, John Locke, asserted that
"Wherever law ends, tyranny begins." Its corollary might state, "Where respect for the law ends, anarchy begins." And with millions of former and current prisoners alive, this is a sobering thought indeed.
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