At times it appears as though activists and organizers have begun to make meaningful strides toward ameliorating the four decades of horror caused by mass incarceration. Undoing tough-on-crime initiatives—which created racial disparities in sentencing, mandatory sentencing, and sentences of unprecedented length, among other things—would go a long way toward undoing mass incarceration itself.
In California, where I am incarcerated, one can understand why voters might believe that recent legislative actions have brought the state closer to fulfilling its promise of equality and justice for all. Over the course of the past fifteen years, many caged Californians have been able to go home thanks to legislation, while others have been able to avoid incarceration entirely or received shorter sentences. Some of these legislative changes include a softening of the notorious three-strike rule; various propositions reclassifying certain felonies as misdemeanors; the reinstatement of rehabilitative programming in prisons and access through them to earned-timed credits; increased availability of commutations and resentencing; the closures of decrepit prisons; and, most notably, enactments geared toward eliminating racial disparities in sentencing. Consequently, countless people have received deferred sentences and thousands more have been released from prison. The impact has been huge: over the course of the past fifteen years, California’s prison population drastically declined from approximately 175,000 to 93,000 people.
And yet, those who remain incarcerated in California have, by and large, failed to receive any of the promised benefits of the legislative and policy changes aimed at improving our quality of life. This is because while legislation has made clear the will of the people, the actual details of how these policies get enacted is left to prison administrators themselves to determine. No surprise then that, against the backdrop of a legal framework in which the courts have granted vast latitude to prison officials to curtail the constitutional rights of incarcerated people for any reason that can be claimed as serving a “penological interest”—coupled with an old-school, pervasive culture of sadism among correctional officers—change has been slow to arrive.
For example, there has been legislation passed that mandates increased, and increased access to, programming. Yet prison officials have mostly determined to offer these programs only to those whom they feel have exhibited exemplary (read: compliant) behavior. In my prison, anyone with any disciplinary infractions (which can basically be anything, since they’re totally arbitrary) are excluded from programming. This negates the intention for these programs to serve a rehabilitative function: as a result of capricious prison discipline, those who most urgently need these programs are almost guaranteed to be unable to access them.
By and large, the public has no idea how completely prison officials have subverted their legislative will. They believe that passing a law means it actually has to happen. Reactivating the power of the people to work toward meaningful change thus requires engaging in education around what it is actually like to be incarcerated and subject to the will of prison bureaucrats, to whom the courts have given such exceptional undemocratic—and, as it turns out, anti-democratic—powers. In what follows, I share my own experiences of being subject to the arbitrary will of prison administrators and theorize about how that unchecked power endangers public safety.
To set the scene for this discussion, it will be helpful to review some key moments in the history of prison reform movements in California.
In 1852 San Quentin would become the first purpose-built prison in California. Its aim was reformation, enacted through bodily mortification. According to Eric Cummins, author of The Rise and Fall of California’s Radical Prison Movement, the means by which prisoners at San Quentin were reformed consisted of “rawhide floggings, straitjackets, [and] gas from chloride of lime spread in their cells. Sometimes [they were] treated to the ‘derrick’, a block and tackle from which the prisoner was suspended by his handcuffed wrists. Especially stubborn inmates got the ‘ladder’, a device to which they were stripped [naked] while a high-pressure stream of water was directed at them.”
According to Cummins, the brutality began to be somewhat curtailed in 1858 when then-governor John B. Weller directed the warden of San Quentin to provide Sunday services. This sparked a movement away from physical torture to employ “moral education” as a means of reforming California’s prisoners. By November 1868, the idea of a “prison school” had set and the “regenerative power of the word of God became a focal point in the reformation of San Quentin’s prison population.” Cummins goes on to detail how, two years later, in 1870, the nation would see its “first meeting of the Congress of the National Prison Association, where speaker after speaker called for the ‘moral regeneration’ of prisoners rather than the ‘infliction of vindictive suffering’ and recommended the release of the prisoner when the ‘moral cure’ had been effected and ‘satisfactory proof of reformation’ was obtained.”
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By the end of the nineteenth century, the rhetoric of prisoner reform had cemented itself in the politics of crime and punishment. Yet it would be some seventy years before the recommendations of the 1870 conference were implemented. From 1940 through 1970, San Quentin would see some of its most significant reforms. A number of behavioral modification experiments were implemented, and college and arts programs were introduced into the prison setting in an effort to reshape its function as a rehabilitative center. Even the self-help programs that had been underground prisoner study groups prior to the 1970s (e.g., Alternatives to Violence, AA, NA, cultural studies, etc.) were now permitted.
It is important to say, however, that whatever buy-in these expanded programs received from prison administrators was largely in their capacity to serve as a carrot: programs that had previously been illicit but fully prisoner-controlled, and therefore beyond the reach of prison administrators, could now be brought under the umbrella of official prison management and thus co-opted for control purposes. If prisoners fell out of favor with prison administrators, their access to these programs could now be blocked as punishment. Even still, this buy-in from prison officials was never more than extremely limited. As the reform movement progressed, guards’ contempt for the prisoner class intensified, as the notion of rehabilitation threatened the hierarchical order and punitive nature of the prison. With each measure, guards felt they were losing more and more control over the prison population and their ability to exercise brutal force.
In response, the nature of punishment shifted. It quickly became clear how participation in programming would, under this new paradigm, come to possess high stakes in considerations for whether parole and commutations were granted. In response, the nature of punishment shifted. Guards seized upon these new avenues for subjecting prisoners to even more ridicule, micromanagement, threats of false disciplinary reports, and meddling. They evolved from physical brutality to psychological brutality. They were correctional officers now. Though, to be clear, it was never a complete abandonment of the physical for the psychological. In some cases, it was more rebranding than anything. The “hole” became an “adjustment center.” Meanwhile, paramilitary structures, nonlethal arsenals, and an array of prisoner disciplinary measures offered new tools of torture, both physical and psychological.
Unsurprisingly, prisoner intellectualism flourished under these circumstances, as illustrated by the story of Caryl Chessman. In the 1950s, Chessman, a condemned prisoner at San Quentin, became well known as the “King of Death Row.” Sentenced to die after having been convicted of seventeen counts of robbery, sex perversion, and attempted rape, the rehabilitative environment allowed for him to become a self-educated attorney, author of three best-selling books, and a philanthropist, donating tens of thousands of dollars to numerous charities. He was by all accounts a model prisoner. Through his writings and advocacy on behalf of other prisoners, he indicted the rhetorical language of the 1870 conference which claimed the goal of California prisons should be to release prisoners who demonstrated “satisfactory proof of reformation.” Chessman’s books and other writings sought to offer insight into the causes of criminal behavior—as a product of larger societal failings that themselves needed to be reformed—and convinced the public that he had been rehabilitated. Still and yet, his deeds were ignored. On May 2, 1960, after eight stays of execution and some ninety-four other prisoners executed, Chessman met his fate in San Quentin’s gas chamber.
As Cummins so eloquently writes, Chessman, like so many California prisoners since, would “use the rehabilitation rhetoric of the prisons to subvert their own imprisonment.” Cummins goes on to point to the central hypocrisy of the prison system revealed by Chessman’s writing: “At the center of the maelstrom was an unrecognized contradiction in the design of the rehabilitative prison, which insisted that prisoner reform and long-term prisoner custody [i.e., life and death sentences] were compatible. They were not. The notion of a prisoner’s reform by definition required his release.”
The old guard of prison officials remains alive and well, despite their new guise as corporatized administrators and correctional officers. They continue to not only despise the notion of prison rehabilitation, but also do everything to prevent and oppose prisoner access to resources that would assist in our transformation. So much so that the administration often denies access to rehabilitative programs in a number of myriad yet effective ways; their tools include transfers, staff shortages that keep prisons running on permanent lockdown (in today’s parlance, “modified program”), and outright refusal to release prisoners to attend class. They publicly attest that every prisoner has a customized road map to rehabilitation, yet in reality, through an administrative shell game, block access to rehabilitative programs for all but a select few.
Unfortunately, this tightening of access to programming has to some degree been enabled by the unintended downstream effects of prison reform legislation and court rulings. After the Supreme Court upheld the Ninth Circuit Court of Appeals’ ruling in Brown v. Plata (2011), the California Department of Corrections and Rehabilitation was forced to drastically reduce its prison population. It would also cause prison officials to roll out a series of behavioral modification programs intended to incentivize good conduct. Beginning in 2012, the entire security custody classification system changed to allow lifers without parole (and now death-row prisoners) to be housed in lower-security prisons. Next, lifers and LWOPs would see our family visits (and conjugal visits) reinstated. But access to programming required a behavioral override that would only be granted if we were disciplinary-free for a year and remained so.
Likewise, when Senate Bill 261 was passed in 2015, thousands of youth offenders serving life sentences were released on parole. Thereafter, Governor Jerry Brown granted nearly 300 LWOPs commutations, and lawmakers empowered district attorneys across the state to resentence thousands more for “exceptional” behavior. To qualify, one needed to have no disciplinary reports within five years and participation in educational and self-help programs, among other considerations.
All this, of course, resulted from considerable efforts made on behalf of criminal justice reform advocates. Yet note that in both of the above examples, access to programming and eligibility for resentencing were both tied to disciplinary reports. In other words, all of these measures and more—AB 292, Prop. 47 and 57—were in part attempts to respond to voter demand to stop the California Department of Corrections and Rehabilitation (CDCR) from restricting prisoners’ access to restorative and rehabilitative programs. But all the while, CDCR has quietly used the loophole of disciplinary reports—which are given entirely at the whim of prison officials—to allow officials to continue blocking access to programs and thus undermine the people’s will.
A story may help to illustrate how this works. Earlier this year, I received a form from the prison education department. Upon reviewing it, I noted it was actually a contract I was being forced to sign in order to remain a participant in the college program. It stated that if I were to receive a rules violation report (RVR), I would be removed from the program. As I read it, I thought about the impact of such a measure. Over twenty years ago, when I entered prison, I lacked emotional intelligence and understanding of the effects of the sociopolitical dynamics created in my community. I lacked the ability to refrain from high-risk people, places, and situations. Over the years, through arduous study and participation in self-help and educational programs, I began to tackle my character defects. Had this contract existed the first ten or so years when I first entered prison, I would have been excluded from partaking in any program because I received several RVRs. As I sat there and read the contract, I thought about how it defeats the purpose of these programs even existing.
The effects of such restrictive policies, which are being adopted almost universally in CDCR, are far-reaching. If I were in a program for addiction and then received an RVR because of a relapse, I could be restricted from accessing treatment. This is not a hypothetical scenario. Delancey Street Foundation’s Restaurant Management Program, which is now being offered to select prisoners here at Solano, gained national recognition for its successful substance abuse programs. Yet its policy inside CDCR is that if you receive a dirty piss test, you get removed from the program! Get a cell phone write-up in a positive programming facility, which proclaims to offer access to enhanced program opportunities? You get removed from the program! The idea is now zero tolerance everywhere within CDCR.
This means that we as prisoners have to be “exceptional”: no speeding tickets when navigating the stress of the cage, trauma, or addiction. To do otherwise signals we remain a danger to society and thus are unfit not only for release, but for any kind of personal growth. And it makes us obscenely vulnerable to the caprice of prison administrators, who can punish us for any reason at all—including, most chillingly, attempting to inform the public about abuses going on within the prison system. This new paradigm, in other words, aims to keep us docile, under threat of being cut off from any path toward release.
Nonetheless, many of us refuse to be cowed. Thanks to prisoner activism, CDCR officials have not been able to completely prevent knowledge of this con from reaching the public. Consequently, in 2021, advocacy organizations prompted California’s legislature and governor to enact Assembly Bill 292 in an effort to discourage CDCR from disrupting prisoner participation in programs. To this end, we must ask ourselves: Why do we have to pass laws to keep prison officials from disrupting access to rehabilitative programs? What will it take to arrive at a place where prison officials are no longer able to subvert the will of the people?
I want to conclude this essay with a messy story that considers how these covert wars against incarcerated people often end up playing their final act against the backdrop of public safety. On April 3, 2022, news broke in Sacramento about a local mass shooting. Beyond the usual shock you always feel hearing about a mass shooting, there was an added element of horror for me in coming days: I knew the alleged shooter. Smiley Martin, one of the men who would be arrested under suspicion of having murdered six club-goers, had been paroled from California State Prison Solano a month prior to the incident. I knew him well. He and I had often walked the yard discussing the law.
Over the course of the next few weeks, I observed how the local district attorney and media exploited this misfortune, spinning it as an ex-convict released from prison too soon story. Not surprisingly, nothing was said about how Smiley had been subjected to psychological and physical torture at the hands of sadistic guards. The Sacramento Sheriff’s Department would, however, agree to a settlement over allegations that staff had allowed known gang rivals to surround and beat him while he was in the Sacramento County Jail. Smiley also told me that he endured grenade-like canisters of pepper spray, nonlethal shots from block guns, cages, starvation, humiliation, and denied access to rehabilitative programs that could have assisted him to identify high risk people, places, and situations.
Unfortunately, Smiley will never get the opportunity to defend his innocence in court. In June of this year, he was found dead in his cell in Sacramento County Main Jail, where he was being held by his long-time tormenters as he awaited trial. While Smiley thus is forever owed the presumption of innocence, there is no question in my mind that it was because prison officials blocked Smiley from participating in programs that he was left ill-equipped for reentry—forced to live on the fringes and thus an easy target when law enforcement needed a suspect.
When reform efforts have the effect of rendering program accessibility as a “reward,” it cannot ever be said that these efforts are well intentioned. California must find a way to permanently remove guards and administrators from their function as gatekeepers, ensuring that they no longer have power in determining who will and will not gain access to rehabilitative programs.
Image: Bernie Sistek/Unsplash
