Leading scholars and advocates explore the far-reaching consequences of thirty years of "get tough" policies on prisoners, ex-felons, and families and communities.
by Peter Wagner,
October 20, 2002
Invisible Punishment: The Collateral Consequences of Mass Imprisonment, edited by Marc Mauer and Meda Chesney-Lind, just published by The New Press, reveals how the two million imprisoned Americans and their families are being punished by factors well beyond incarceration. Leading scholars and advocates explore the far-reaching consequences of thirty years of “get tough” policies on prisoners, ex-felons, and families and communities. The contributions in Invisible Punishment define the boundaries of a new field of inquiry concerning the impact of American criminal justice policies.
Prison gerrymandering provides perverse incentives to legislators with prisons in their districts to support punitive criminal justice policy.
by Peter Wagner,
August 1, 2002
Appeared in the August 2002 issue of the Albany NY’s Center for Law and Justice newsletter.
By Peter Wagner
New York’s budget is in crisis and prisons are a huge drain on limited resources. But when the budget- and humanity-busting 30-year-old Rockefeller Drug laws come up for review, the Legislature can’t agree on a plan to roll back these draconian drug laws. Drug treatment is cheaper and more effective than prison, but somehow the Legislature can’t find the will to save the budget and pass drug reform.
Besides the usual economic interests that accompany every bloated government program is something else subverting democratic decision making in New York State: in violation of the State Constitution, prisoners are counted for purposes of representation in the rural towns that contain their prisons. As a result, whole communities are disenfranchised from their rightful share of political power.
The Census counts prisoners were they are incarcerated, and the state uses Census Bureau population data to draw legislative boundaries so that each district will be “equal” in size. Prisoners aren’t allowed to vote, but their presence in upstate communities swells the otherwise declining population of the region.
While only 24% of New York prisoners are from the entire upstate region, over 91% of prisoners are incarcerated there. On a personal level, prisoners shipped upstate for incarceration “reside” there in only the most physical terms: the lives that prisoners must leave behind, their homes and families remain in the communities the prisoners originated from, the communities that almost all prisoners will return to on the day of their release. On a political level, it is the urban minority communities ravaged by the war on drugs that have the greatest desire to see drug law reform.
Opposing these urban communities have been the upstate prison legislators. Some of the strongest proponents of prison expansion have been upstate Republican Senators Volker and Nozzolio, heads of the Committees on Codes and Crime, respectively. Prisons are big business in their districts, and they have been using their Committee perches to lead the fight against repeal of the Rockefeller Drug Laws that caused the prison boom in the first place. The prisons in their two current districts account for more than 23% of the state’s prisoners.
Of Volker’s constituents, 3% are incarcerated (4% of his adult population is in prison). Of his “constituents” who are Black adults, over 75% are disenfranchisd. Thanks to the traditional gerrymandering in New York, Volker’s district is smaller than it should be, but with 8,951 prisoners he can safely ignore, Senator Volker can devote himself to the needs of his real constituents with a kind of individual attention that his urban colleagues can not. Lest readers think this is hypothetical or hyperbole, consider who prisoners can turn to for help: the local senator or their senator from home? Senator Dale Volker told Newhouse News Service he does get letters from prisoners with a variety of complaints, but that his real attention is directed toward corrections workers, with whom he has forged strong relationships. So much for the idea that legislative districts are drawn to protect common “communities of interest”.
Because 65.5% of prisoners are from New York City, but only a few small prisons exist within the city, 43,740 city residents are counted as upstate residents. This is a boon to prison legislators, as its concentrates their power base. Said Rhode Island State Representative Peter Palumbo of his own similar asset: “All these years the prison has caused me grief with my constituents. Now maybe it will help with redistricting.”
If the legislature wanted to fairly and democratically address pressing issues like rural unemployment, urban crime, the budgetary crisis and drug addiction, the legislative districts would be drawn on the basis of actual population. Counting prisoners at their homes and not in their cells is the only way to ensure that issues of crime policy and rural unemployment are resolved fairly by advocates from the communities actually affected. Allowing white rural prison communities to appropriate urban minority residents for the purpose of representation runs counter to any idea of equal protection under the law.
While this census and redistricting practice appears to to violate the one-person one-vote guarantee of federal constitutional law, it most definitely violates the New York State Constitution which states: “no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”
In 1894 a vagrant living at the Tombs jail named Michael Cady, on one of his paid errands outside the jail tried to register to vote using his Tombs address. Under that provision of the state constitution, Cady was arrested and convicted of illegal registration. Not for registering to vote — since that was legal given Cady’s commitment was for vagrancy — but for using the Tombs address. You can not live in a prison, you must have lived somewhere else before or plan to after, argued the prosecutor. The trial judge, jury and the state Court of Appeals agreed with the prosecutor.
It is certainly ironic that the New York State Constitution required imprisonment for individuals who use prison as a residence in just the same manner that the state legislature allocated residence to the 71,466 state prisoners counted by the Census.
Peter Wagner is Assistant Director of the Prison Policy Initiative and the author of “Importing Constituents: Prisoners and Political Clout in New York” which can be viewed at: http://www.prisonpolicy.org/importing.
Letter to the editor in the Hartford Courant by Peter Wagner pointing out that government facilities such as prisons do not pay property taxes.
by Peter Wagner,
August 1, 2002
To the editor of the Hartford Courant:
Your story “Study Of Prison Project Impact Promised” reports that 6
residents spoke out at Somers Town Hall on Wednesday against a proposed
prison expansion, and only one in support. That resident said the town
needed “money for our tax base”. Unfortunately for the town of Somers,
government facilities like prisons don’t pay property taxes.
According to a Bureau of Justice Statistics Report released on Tuesday, the
number of state prisoners nationally is declining. Connecticut is alone
among its neighbors in continuing to add to its prison population. As other
states are learning, sentencing reform and reducing the number of prisoners
eliminates the need for expensive new prisons and makes limited state
dollars available to communities for more productive development projects.
Peter Wagner
Prison Policy Initiative
Springfield, MA
August 1, 2002
"The Crisis" reports on how rising incarceration is spilling over into critical arenas of black political and economic power.
by Peter Wagner,
July 15, 2002
The cover article of July/August, 2002 issue of “The Crisis” Magazine, (NAACP national publication) is on how rising incarceration is spilling over
into critical arenas of black political (electoral) and economic power, i.e. affecting the lives of African-Americans not under criminal justice control. Key issues focused on are felony disenfranchisement and the impact of census prisoner-counting practices on redistricting, as well as the relationship between those phenomena and post-reconstruction initiatives designed to take away from the newly enfranchised what had just been granted…
The article discusses the Importing Constituents: Prisoners and Political Clout report about the census counting urban prisoners as rural residents.
An internet version of the article is not yet available but you can order a hard copy from Crisis Magazine.
The Supreme Court today invalidated the death sentence of Timothy Ring because although the jury voted for life, the judge sentenced him to death
by Peter Wagner,
June 24, 2002
The Supreme Court today invalidated the death sentence of Timothy Ring because although the jury voted for life, the judge sentenced him to death. Between 180 and 800 death sentences will be invalidated by this decision.
Justice O’Connor wrote a dissent where she argues in part that she opposed reversing Ring’s death sentence because it would also reverse many other death sentences. To paraphrase the late Justice Brennan: What does O’Connor fear — too much justice?
Book review by Peter Wagner of 'Crime Control as Industry' by Nils Christie.
by Peter Wagner,
May 30, 2002
Crime Control as Industry
By Nils Christie (2000)
Review by Peter Wagner
Originally submitted to Prison Legal News on May 9, 2002
The heavily revised third edition (2000) of Crime Control As Industry: Towards Gulags, Western Style is an essential guide to understanding the incarceration boom and considering how we can turn it around. The first book of Norwegian criminologist Nils Christie, Limits to Pain, argued that the criminal justice system is in fact a pain delivery system, with the size of the system controlled not by the number of committed acts labeled as crimes but by the amount of pain that a society is willing to impose on its citizens. Crime Control as Industry expands upon that theme, and tracks how an industry has arisen to manage crime. And like any industry, the crime control industry is not about to say on its own: “Stop, we have enough of the market. We don’t need to grow.”
Christie does an important job providing an international perspective to incarceration, comparing disparate incarceration rates between otherwise similar European countries. Hope can be found in his story of Finland becoming accustomed to a high level of pain delivery and then deciding in the 1970s that its incarceration rate associated the country more with its enemy the Soviet Union than with its political allies in Western Europe. Finland’s incarceration rate quickly dropped from the highest in Europe, to the second lowest after Iceland at 54 per 100,000.
Christie traces the extent to which crime control has come to dominate the economic structure by absorbing the unemployed into the roles of keeper and kept and then supplying services to each. Limited by space, let me highlight two of Christie’s many sharp observations. First Christie argues that the applicable political economy to describe prisons is not slavery, but of the old work-houses, where the objective was not profit for the State, but for private parties to relieve the State of its unwanted population at the lowest cost possible.
The second sharp observation is that justice itself has been mechanized to cope with the influx of raw materials and remove a democratic restraint upon growth. Mandatory minimums and the sentencing guidelines have served to remove discretion from judges, turning them into little more than secretaries for the legislature. While judges are in a unique position to learn details about victims and the accused; and could adopt sentences to match the needs of the offender and the community; that takes time. Time costs money, and the industry’s conveyor must be kept moving, hence the removal of judge’s discretion.
In the United States, the combined populations in prison, on parole and on probation exceed the incarceration rate of the old gulags. Christie’s excellent book asks: Do we want a societal culture with this much depersonalized pain delivery?
Article by Peter Wagner argues that criminal justice reforms must be include a plan to address pernicious and systemic racial disparities in the prison population.
by Peter Wagner,
October 7, 2001
Written for Upstate Prison Response, October 7, 2001
The national rise in incarceration appears to have slowed, and in New York the prison population has already dropped 3% since the peak of about 72,000 at the turn of the millennium. Governor Pataki’s “right-sizing” plan includes a 9% drop in the total prison population, and the shifting of prison resources to shorten the sentences of non-violent offenders and lengthen those of “violent” offenders. Excluded from the plan to shift resources within the criminal justice is any serious attempt to examine whether high incarceration serves any valid social purpose at all.
No credible evidence has been introduced that raising the New York State prison population from 12,579 in 1970 to 71,466 in 2000 has made a change in the rate that crime occurs. Despite having more police per capita than another other state, and despite spending $1 billion a year to operate prisons, New York faces approximately the same degree of crime it has faced since the start of crime statistics in the 1930s.
What New York has done in recent decades is incarcerate an increasing number of its Black, Latino and Indigenous citizens. Minorities account for 87.6% of the growth in New York’s prison population since 1970. Within the shorter period of 1985 – 1997, the figure was 90%, higher than any other state. Whites make up 16% of New York prisons, Blacks 51% and Latinos 31%.
Since 1930, the odds of being sent to prison in New York State for a white person in a given year has actually fallen slightly, but the odds of a Black person being sent to prison in a given year has risen more than 250%. In 1930, the Black-white disparity in prison commitment rates was offensive at 4.1 times higher for Blacks. In 2000, that disparity has risen to the level of a democratic calamity with Blacks being 11.1 times more likely to be sent to prison in a given year than whites.
When you take into account the difference based on different sentence lengths between the numbers of people sent to prison and those who are actually in prison at in given time, you see an even greater racial disparity. By comparing the raw numbers of prisoners to their respective populations we can determine the rate by which people of a given racial group are in prison. Ninety seven out of every 100,000 white New Yorkers is currently in prison. For Latinos, it’s 776, and for Blacks the figure is 1,295 per 100,000. That’s a Black-White disparity of 13.4 times.
A variety of factors drive the increase in incarceration. According to one regression analysis, half of the prison growth has been as a result of an increased likelihood of a prison sentence after arrest, and one-third is from an increase in the length of prison sentences. According to that study, only a ninth of increased incarceration could be explained by higher rates of criminal behavior.
In order to break this insidious system of discrimination, all changes to the criminal law should be analyzed with an eye towards reducing this racial disparity. Both future proposals to criminalize new behaviors that were not previously criminal and all proposals to change the sentencing structure should start with the premise that society wishes to do away with racial discrimination. Currently, the magnitude and persistence of racial discrimination in the justice system gives a clear hint that it is in fact intentional. Where actual differences between behaviors by race can be identified, they should be addressed on the basis of a social problem and not as individual defects. But before any discussion can take place on that front, the more blatant discriminatory biases should be removed.
In one 1994 study of court biases, it found that more than a quarter of the imprisonment of Blacks in New York could not be explained by the numbers of Blacks arrested. This study assumed that police and policy makers did not target Black communities for increased “attention” and expected to find a constant rate of convictions for people arrested regardless of race. (If anything, impartial courtrooms would respond to unwarranted police intervention in Black communities with a lower rate of Black convictions and prison sentences.) But reality provided a different answer. Courtroom bias — the decisions made by prosecutors, juries and sentencing judges — accounted for 27.5% of the number of Blacks imprisoned in New York State.
While incarceration has devastated Black and Latino New York City residents, it has led to a tremendous boon for white rural areas. In New York State, 38 new prisons have been built since 1982, all upstate. The decline of manufacturing jobs and the difficulties faced by small farmers has led to a new rural industry: the warehousing of urban residents.
The new Five Points Supermax in Romulus is typical with 640 full-time staff and an annual operating budget of $25 million. Prisons are the main employer in many parts of upstate New York, and countless other residents work in businesses reliant on the prisons. Admittedly, land is cheaper upstate than in the city, but jobs are needed in the city as well. Readers may remember that one of the demands at the Attica prison rebellion was for the hiring of more Black and Latino guards — something that will never happen in the rural prisons which draw their workers from the local communities.
As of January 2000, there were 46,798 New York City residents in state prisons, with 95% of them (44,326) housed outside of the city. Presumably, almost all of the crimes they were convicted of were either “victimless crimes” or crimes that directly affected other New York City residents.
Two of the biggest opponents to reforming the Rockefeller Drug Laws are upstate Republican Senators Nozzolio (Chairman of the Crime Victims, Crime and Corrections Committee) and Volker (Chairman of the Codes Committee). Nozzolio’s district contains 6 prisons and Volker’s district contains 8.
The motivations of Nozzolio and Volker to fight crime and protect victims comes into question when you consider that so few of the people they label “criminal” ever came anywhere near their districts without being put in chains first.
Sources:
State of New York Department of Correctional Services, The Hub System: Profile of Inmates Undercustody on January 1, 2000
State of New York Department of Correctional Services, Characteristics of New Commitments, 1999
State of New York Department of Correctional Services Statistical Report for 1970.
City Project, Following the Dollars: Where New York State Spends Its Prison Moneys, March 2000
National Center of Institutions and Alternatives, Masking the Divide: How Officially Reported Prison Statistics Distort the Racial and Ethnic Realities of Prison Growth, May 2001.
Calvin L. Beale, Rural Prisons: An Update, Rural Development Perspectives, vol 11, no 2.
Nils Christie, Crime Control as Industry. 2000.
Bureau of Justice Statistics, Race of Prisoners Admitted to State and Federal Institutions, 1926-86.
Pataki’s rightsizing press release. http://www.docs.state.ny.us/PressRel/takedown1.html
Five Point facility press release. http://www.docs.state.ny.us/PressRel/fivepnts.html
Crutchfield et. Al. Analytical and Aggregation Biases in Analyses of Imprisonment: Reconciling Discrepancies in Studies of Racial Disparity, 31 Journal of Research in Crime and Delinquency 2 at 178 (1994).
Jerome Miller, Search and Destroy: African American Males and the Criminal Justice System, 1996.
Marc Mauer, Race to Incarcerate, 1999. Chapter 2.
New York Times August 23, 2001, p. A18.
New York State Senate Webpage. http://www.senate.state.ny.us/
Bureau of the Census, 2000 and 1930.
Statistical Abstract, 2000.
On November 7, 2000, by a 2 to 1 margin, Massachusetts disenfranchised its prisoners with a constitutional amendment called Question 2.
by Peter Wagner,
November 30, 2000
[For an analysis of the size of the disenfranchised population and its large racial disparity, see my October 2004 report Jim Crow in Massachusetts? Prisoner disenfranchisement.]
On November 7, 2000, by a 2 to 1 margin, Massachusetts disenfranchised its prisoners with a constitutional amendment called Question 2. Question 2 marked the first time that the Massachusetts constitution has been amended to take away rights from a group of people.
Maine and Vermont are the only states that allow prisoners to vote. Thirteen states bar felons for life, and many other states also restrict voting rights of those on parole or probation.
Prior to November, one in eight Black adult men were denied the vote in the United States. Massachusetts’ Black prisoners will now add to this number. Unfortunately, Massachusetts is not alone in the reactionary movement to disenfranchise prisoners. In 1998, Utah voters stripped prisoners of the right to vote.[1] In March, the New Hampshire Supreme Court reinstated that state’s ban on prisoner voting after a lower court decided that the ban violated the New Hampshire constitution.[2]
Disenfranchising prisoners and ex-felons is not without impact to the electoral system. The permanent disenfranchisement of felons in Florida may have given the election to George Bush. When the Supreme Court ended the Florida recount, Bush won that state by only 537 votes.[7] In Florida, Bush won the white vote, 57% to 40%, but Gore won the black vote, 93% to 7%.[3] Blacks make up one-third of all disenfranchised people in Florida.[4] Even a small turnout by prisoners and ex-felons could have changed the balance of Florida and therefore the national election.
More importantly than changing outcomes, at least in terms of legal strategy, is the effect of felon disenfranchisement laws on Blacks. In the United States, 2% of the adult population is disenfranchised, but for Black men the rate is 13.1%.[5] In Florida and Alabama the Black adult male rate is over 31%. Prior to a 1982 Voting Rights Act amendment, proof of discriminatory intent was necessary to strike down a state law disenfranchising voters. The 1982 amendment clarified the law to hold discriminatory effects to be adequate proof.[6] This avenue has not been completely litigated.
However, in the political sphere, more use can be made of public policy arguments. Disenfranchising prisoners serves no purpose under any theory of criminology and serves negative purposes under some theories. Under deterrence theory, prison itself is the deterrent, and denial of the vote pales in comparison to denial of physical freedom. Crimes are not prevented under threat of losing the vote. Felon disenfranchisement can’t be called a form of retribution because it’s universally given to felons regardless of their sentence, and in some states continues after the sentence until death. The last defense of the disenfranchisers is often an argument to defend the “purity of the ballot box” against fraud. But most prisoners are not in prison for election offenses, and there is no evidence to suggest that prisoners would commit electoral fraud more than non-prisoners. Rather, these defenders hint that prisoner’s could vote in blocs or overturn criminal laws. These reactionary arguments fail given the historically low voter turnout of Massachusetts and Maine prisoners. In addition, it is blatantly unconstitutional to deny people the vote based on what they may vote for.
Disenfranchising prisoners works against any efforts at rehabilitation. Studies have shown that allowing prisoners to gain an education and increase family visits reduces recidivism. Participation in the political process similarly increases the prisoner’s integration with the outside society.
“Getting tough on criminals” may be politically popular in Massachusetts, but if the citizens of Massachusetts want to actually do something about crime, they are going to need to stop demonizing prisoners and start looking at why crime happens in the first place.
Footnotes:
1 “A key non-voting bloc: felons” Gannett News Service November 17, 2000
2 Fischer v. Governor, 749 A2D 321
3 The San Francisco Chronicle November 15, 2000, Pg. A23.
4 “Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States” (1998) Sentencing Project, 514 Tenth Street NW Suite 1000, Washington DC 20004, p. 9.
5 Ibid.
6 Alice E Harvey, Ex-felon disenfranchisement and its influence on the Black vote: The need for a second look. University of Pennsylvania Law Review, January 1994, 142 U. Pa. L. Rev. 114
7 The Nation April 30, 2001, p. 11
[An earlier version of this article was published in Mass Dissent, a publication of the Massachusetts National Lawyers Guild.]
Report in Mass Dissent by Peter Wagner on a 'Disability and the State' panel discussion at The Rebellious Law Conference in 2000.
by Peter Wagner,
April 1, 2000
Originally published in the April 2000 issue of Mass Dissent.
By Peter Wagner
The Rebellious Law Conference at Yale in late February sponsored a lively panel on how the state oppresses those with disabilities. The new welfare law denies the disabled benefits. Despite the fact that prisons cost more and are less effective than treatment, state governments have slashed mental health budgets to build more prisons. The result has been more public demonization and oppression of the mentally ill.
The Rebellious Lawyering 2000 Conference was held at Yale Law School on February 25-27. The opening address was by UCLA School of Law Professor Gerald P. Lopez, author of Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice. The keynote address was by Peter Neufeld, co-founder and director of “The Innocence Project,” which currently represents more than two hundred prisoners seeking post-conviction release through DNA testing. Four WNEC students attended the conference.
The theme of the Rebellious Lawyering conference was “Innovative Advocacy for a New Millennium.” Explicitly or indirectly, all of the speakers talked about why lawyers and law students need to think “outside the box” of traditional legal work, be it in challenging oppressive laws or challenging traditional — and sometimes ineffective — methods of standard leftist organizing. All the speakers stressed the importance of serving our clients, an unfortunately radical concept in the legal profession.
Early on the afternoon of the 2nd day, a “Disability and the State” panel discussion was held.
Russ Overby of the Tennessee Justice Center described his work trying to get disabled clients exempted from the welfare and workfare requirements of Tennessee. Overby and Heather Barr of New York City’s Urban Justice Center explained how the welfare program’s purpose is to frustrate people so they will leave the welfare rolls, and not to help them get jobs. For example, the welfare office will require a large number of appointments before benefits can be received, and the workfare requirements of 40 hours of “volunteer” work do not take into account the difficulties the poor have with transportation and childcare.
A variety of different studies were cited by Overby, showing that 40% of families on welfare have a long term functional disability; another that 23% had psychiatric disorders and a third said that 75% had slight to severe mental health problems. According to Overby, welfare clients are reluctant to disclose their medical history to the State, so the exact number of people with disabilities who are on welfare is unknown.
But the lack of data is not the problem with the workfare requirements. While federal law does allow a number of people with documented disabilities to be exempted from the workfare requirements and 5 year limit on benefits, even the National Governors Association concluded that the number of people with disabilities outstrips the number allowed to retain their benefits.
Russ Overby criticized politicians for claiming that because the welfare rolls are down, that poverty must have been defeated. To Overby, that’s “like curing the measles by painting over the spots. The research about the numbers leaving the rolls does not address the question of where those families go.”
“Rikers Island is the largest psychiatric facility in the country” began Heather Barr of the Urban Justice Center’s Mental Health Project, where she does advocacy for people with mental illness who are in the criminal justice system. Barr summed up the state policy since the 1970s: “we demolished the mental health system at the same time we skipped merrily down the path of criminalizing everything.”
Years ago, behavior that would have been considered annoying, such public urination, is now treated as a criminal offense — including in a city like New York without public toilets. Other mentally ill people are arrested for public drinking or panhandling. Barr reported that when she sees arrest reports that read “resisting arrest and disorderly conduct” the likely truth is that a person was talking to himself and the police told him to move along and he didn’t.And like the rest of the prison system, there is a general exemption for white people when it comes to ending up in prison. As Barr pointed out, behavior that would land a Black or Latino in prison will often not lead to prison for a white person.
Rikers Island holds 20,000 prisoners, or 130,000 over the course of a year. Around 20% of those have a serious mental illness, and 80% have substance abuse problems. The Federal DOJ estimates that 16% of all prisoners are mentally ill, and NY State estimates 10% of its prisoners are mentally ill. But Barr takes those numbers with “serious skepticism” as they count only those who have been diagnosed and receive treatment, whereas many are ignored by the system.
New York State has quite openly replaced it’s mental health hospitals with prisons. [See Chart 1] Ms. Barr believes that many of the people released from the closed state hospitals are the same people who are now incarcerated in the state prisons. When the hospitals were closed, the state merely released the patients into the streets without building community centers or other resources. Ms. Barr also warned that deinstitutionalization is not something confined to the 1960s or 1970s, but rather continues today, with
500 hospital beds closed in New York State last year. At the same time, New York allocated $360 million for 2 new supermax prisons with psychiatric wings.
Chart 1
1973
93,000 in NY State Hospitals
12,500 in NY State Department of Corrections
2000
5,000 in NY State Hospitals
72,000 in NY State Department of Corrections.
Prison costs society more than “crime”
Ms. Barr is currently representing a man charged with jumping a subway turnstile, denying the city $1.50. The prosecution’s deal? One year in prison. This would cost the state $69,000 for his incarceration. This is clearly not a rational way to deal with the cost to society of a jumped turnstile.
Former Rikers Island and Attica prisoner and manic-depressive David Gonzalez explained that he is now in a program that subsidizes his housing to the cost of $34 a day. The subsidized housing creates a personal stability which makes it possible to remain free of drugs and alcohol and receive treatment for his manic-depressive disorder. For the cost of $34 a day, society gets another productive member, in this case a strong advocate for the mentally ill with the Urban Justice Center. The other alternative, espoused by many politicians, is to pay for society-denying incarceration at more than twice the price.
Prison is a harm, not a treatment.
Heather Barr described what happens when the mentally ill go to prison. Mentally ill prisoners are frequently victimized and isolated. When they are unable to follow the rules, punishment often takes the form of segregation — 23 or 24 hours a day locked in your cell alone.
During one visit with the prison watchdog group Correctional Association of New York to the Attica Prison’s Special Housing Unit, Ms. Barr was unable to talk to some of the prisoners because of plexiglass covering the bars. The only method of communication was through yelling. When asked about the glass, the guards explained: “that’s for the shit throwers.” But this was half the cells in the SHU! Many of the prisoners were screaming or in a catatonic state, and the guards acted liked this was normal. When human beings are reduced to throwing their excrement to express themselves, that shows a clear failure of society to address the basic needs of its citizens.
While the New York Department of Corrections boasts of its treatment programs and state of the art medicines, all of the prisoners Ms. Barr has spoken to report that they are taking older, cheaper medications. Newer medicines have been proven to be more effective.
Barr is currently suing the City for it’s failure to do discharge planning for mentally ill prisoners. Prisoners from Rikers Island are dropped off very early in the morning with none of the medicine they were taking, no prescription for that medicine, no referrals to mental health clinics and no referrals to shelters with mental health services. They are given only $1.50 in cash and a $3 metro card. While the ex-prisoners would be eligible for Medicaid to pay for medication, it takes 3 months to get a Medicaid card. In response to a question suggesting a prioritization of getting funding for mental health services at homeless shelters over those for ex-prisoners, Barr explained that it’s the same people, with 6 or 7 of those in her lawsuit currently homeless. Outside of prison, there are essentially no services for the mentally ill.
In New York, there are no alternative to incarceration programs that are available to people with mental illness. If you are on medication, the programs will not accept you. To that end, Ms. Barr is the director of new pilot program to provide alternatives to incarceration for mentally ill felony offenders.
Demonization of the mentally ill
Gonzalez described the media backlash after a mentally ill man in New York threw a woman in front of a train. In response to the murder, New York passed “Kendra’s law” by which the mentally ill can be subject to court ordered “Involuntary Outpatient Treatment”.
But in the Kendra case, the man wasn’t refusing treatment. The underfunded system refused him 13 times in the 2 years prior to the murder. Kendra’s law doesn’t provide for more services, just more repression, and targets all of the mentally ill, not merely those prone to violence. The purpose of this law is to increase repression of the mentally ill and equate all mentally ill people with the person who committed this murder. And as Gonzalez pointed out, studies have shown that mental illness is less accurate a predictor of violence than having recently lost your job. And certainly no politicians are proposing that fired employees receive medication against their will. But the mentally ill are a population much easier to stigmatize.
The discussion section took two directions on how to strategically fight the stigmatization of the mentally ill. The first prong continued a criticism of how the power structure can use and abuse the label of mental illness to further weaken the oppressed. As Gonzalez pointed out, the label of “insanity” is used against the most radical people or to justify divorce.
Audience members repeatedly put forth the analysis that mental illness and disabilities in general are environmentally defined. Environmental stresses and demands create disabilities, and society continually changes the line between ‘annoying’ and ‘criminal’ to serve its larger purpose.
The second prong about how to keep the prison system off the backs of the mentally ill without further stigmatizing the mentally was more contentious.
Ms. Barr reported that the conservative New York Post supports her lawsuit because they don’t want the mentally ill being deposited in people’s neighborhoods by the prison system. Even putting the words “criminal” or “criminal” justice in the same sentence with “mental illness” will allow the mainstream press to twist your words. So while this kind of support makes her nervous, it’s also true that the mayor probably reads the Post. If the immediate goal is to get services for the mentally ill, it may not be
negative if other people support or grant it for their own, negative, reasons.
The most animated part of the discussion was whether using mental illness as a defense to keep the mentally ill out of prison serves to help the mentally ill as individuals or further stigmatize them as a group. A number of audience members and ex-prisoner Gonzalez argued that this creates a double standard and would increase stigmatization. Ms. Barr responded that she is a prison abolitionist, and doesn’t want to see anyone go to prison. Keeping people out of prison entirely — mentally ill or not — is more important than the question of discharge planning, but Ms. Barr could not find a legal theory to base that important goal on, hence her lawsuit.
Ms. Barr returned to the fact that prisons are not an effective way to treat mental illness. The fact that the prisons are disproportionately Black and Latino should make the fact that behavior is not a predictor of imprisonment clear.
Ms. Barr summed up the issue at the end of the session: “This is a problem of services, not a legal problem. Alternatives to incarceration are needed.”
