When you drive north on Route 1, the prison begins to loom on your right as you approach Rahway. Originally (it opened in 1901) known as Rahway State Prison, because local notables objected to being identified with a prison it became East Jersey State Prison. EJSP has served in films, no doubt because it screams prison as you approach: a central dome (perhaps in imitation of Jeremey Bentham’s “panopticon”?) with radiating spokes, it is massive and somber. It was there I was headed to teach a course called “Clues, Evidence, Detection: Law Stories,” which combined readings in law and literature, on 31 January. As I got near, EJSP came at me out of the twilight murk like an admonition.
After I parked my car–I had obtained clearance for that with the Department of Corrections–and started to approach the entrance gate on foot, the razor wire took over the visual field: rolls of it, piled up inside and atop the chain-link fence that marks the perimeter. The entrance itself gives the impression of a late and cheap addition, a small cinderblock waiting room, like something at a modest bus stop, to the right, and to the left a glass booth with the officer on duty. You give him your driver’s license and your car keys and receive in exchange a visitor’s I.D. that clips to your clothing. Surrendering your driver’s license is your last act in the divestment of all the customary supports of your identity outside prison: in the car you left wallet, cell phone, house keys, and anything else that might be lodged in your pockets. The image from long-ago reading that would come to my mind each time I went through this ritual of divestment was Faulkner’s “The Bear,” where Ike McCaslin has to leave behind gun and watch and compass and all the accoutrements of civilization for his trip into the wilderness.
I had earlier spent a long Friday morning at the orientation required by the Department of Corrections. There we learned the rules of entry: all papers and books in a clear plastic tote, no pens, only pencils, no navy blue shirts or sweaters (to avoid confusion with the wardens), no beige clothing (to avoid confusion with the inmates). I had with me the DOC “Rules for Entry”:
The following guidelines must be followed, regardless of gender:
***NO BEIGE, TAN, KHAKI, OR NAVY/FRENCH BLUE***
* NO OPEN-TOED SHOES
* NO UNDERWIRE BRA
* No transparent or fishnet clothing
* No clothing that exposes undergarments or a portion of the body considered private
I abridge, also, the following list:
The following items are not authorized to enter the Visit Program visiting areas:
*Credit cards, bank access cards, etc.
Especially, no communications were to be brought to or taken from the student-inmates. The two officers leading the orientation–one stood at the back of the room and repeated everything said by the other at the podium–were mainly concerned that no kind of relationship be formed between us and our students. No touching allowed. Only last names to be used. Absolutely no notes, addresses, phone numbers to be exchanged. The officers lugged a heavy metal box from under a table, opened it, and began to display weapons confiscated, they said, from inmates: a knife made of a Plexiglas shard, another from a ballpoint pen with a duct-tape handle, something that looked like a garrote fabricated from a piece of razor wire. We were, they said, in constant danger. Inmates were all eager to exploit any sympathy they might elicit, and any weakness we might show. They were at heart all manipulative children who understood nothing about the outside world. At the end of the session, police whistles were distributed, with instructions to remove their lanyards, since these could be used to strangle us, and to carry them at all times. I left the orientation session with some apprehension about what I had got myself into.
You sit in the waiting room, which seems to have neither heat nor air conditioning, and you wait. My class was scheduled for 6 to 8:30 p.m., but when the officer on duty received the phone call that would allow him to buzz you in varied considerably—any time from 6 to 6:30, and once, strangely, at 5:45. Then began the ritual of ingress that would call for the voice of Dante or the descriptive powers of Balzac. First a narrow corridor of cinderblock on which there are some strange murals, presumably the work of inmates, evoking flowers and landscapes, with uplifting mottos. As well as various official notices pasted over them. Then the first checkpoint: the heavy, barred entrance door slides open while the door facing on the other side of the small room slides closed. A series of airlocks, of which this is the first. Here, a metal detector and then a pat-down, then the sign-in sheet. Then they stamp the back of your hand with an ink that is visible under ultraviolet light. Then the second door slides open. Now you are in the prison, though not quite: in a vague liminal area, with a guard in a wire booth, a bench, and then the real gate from outside to inside, with a lock that opens to keys that look like something from your imagination of a medieval dungeon. In fact, there was something operatic in this second space, like a stage set of imprisonment. On about half my visits, there was a long wait in this limbo since inmates were returning from dinner and visitors could not enter until they were back in their cell blocks. Why dinner hour could not have been factored in to the start time of class was never clear to me. That was just part of what I came to recognize as the surrealism of existence in EJSP. We—most Wednesday evenings there were two or three other teachers bound for other classes, as well as my own wonderful TA—sat and waited anew since we must not be allowed to mingle with the inmates. Then, when the coast was clear and this door swung open, we proceeded onward in a wider corridor which had holding pens on both sides, with inmates waiting—perhaps for us to pass through—and the metal detector that the inmates would have to pass on their way from class. And two rows of guards—maybe as many as twenty of them, booted and pistoled—on either side of us. Then a couple more gates, and a right turn up a steep iron staircase that led to a stone arched doorway—maybe the original exterior wall of the prison—with the inscription: “Old School.” Another corridor, two bathrooms—one for visitors, one for inmates—then a desk with the duty officer who pointed you to your classroom. Windowless, dilapidated, noisy, and either cold or if you turned on the wall unit at once overheated. In the middle of one of my classes, part of the floor gave way under pressure of a desk leg, leaving a gaping hole to the floor below.
Once in the classroom, we would wait some more for the students to begin to arrive. With the help of my TA, I would arrange the chairs into an approximate circle instead of the rows they were set up in. “The call” to class seems to have gone out raggedly to different areas of the prison, so we could never tell when the complete group of twenty-five would be assembled and we could begin the evening’s work. I was teaching a B.A. class, sponsored by the NJSTEP program, administered by the School of Criminal Justice at Rutgers. I had set a cap of fifteen students for what I envisioned as a seminar. I was assigned twenty-five. All I had was a roster of their names until the first evening, when they began drifting in by twos and threes. They came to shake hands, occasionally to exchange a high-five. They greeted one another with hugs–class may have been the only time during the week they got to see friends. They gave me the first names and nicknames they wanted to be called by. They offered me coffee; some left to get water or coffee for others. Danny came in with a box of ballpoint pens from the staff office that he handed around. For ten minutes or so, it was chaos, which I soon came to recognize as a feature of prison along with its discipline. I would often recall a line from a sheet compiled by earlier teachers from comments of their students: “Be patient and flexible with students and with the craziness of the prison system.” That first class I also recalled, with some gratitude, another line from that sheet: “Nothing to be scared of; you are not in danger.” Despite the attempt of the orientation session to terrify us, I soon came to recognize that there was in fact nothing to be scared of. My students were completely loyal, devoted to the class and to me.
Here things become more difficult to talk about. I want to avoid clichés, but there are so many built into the situation–and especially I want to avoid any appearance of exploiting my students by focusing on my own experience at EJSP. They and their life histories are what matter, not my one-term appearance in their midst. I can’t sketch each one of them, each man’s appearance, what he said, and how he said it. I wish I could. But I do want to talk in a way that doesn’t come easily about education, race, incarceration, and criminal justice. The workings of Criminal Justice was in fact the subject of my course, based on one I had created for the Center for Human Values at Princeton and taught several times. “Clues, Evidence, Detection: Law Stories” generally combined in each session work on a legal text–most often, an appellate court opinion–and a fictional text that I thought addressed the same issue. So we had before us as a class some potentially explosive material: on Fourth Amendment searches and seizures (of drugs, for instance), on confessions obtained under intense interrogation, on trials and appeals, on punishment (including the death penalty), and, at the end of the course, on prison. I am an aged white man with fifty years of teaching experience behind me. It took me a couple of weeks to put to myself the obvious question: Where in American higher education, other than in prison, would I be teaching a class of twenty-five adult males only three of whom were clearly white, four were Hispanic, and eighteen black? However progressive universities may have become in their admissions policies, however invested in minority recruitment programs, in the mainstream universities you simply never face a class that is predominantly black. Do we have to go into prison to teach black students? Do black men have to go to prison in order to enter a classroom? The questions multiply.
The first consequence was one I had already considered, but not really faced: all of our discussions of American criminal justice would be racialized. What that meant would only gradually come to the fore when the class came to some of the most troubling issues in criminal procedure, confessions and sentencing in particular. We began talking about the finding of clues–deciding what details could be made to function as clues–using a couple of Sherlock Holmes stories, then moving on to how courts interpret evidentiary rules and especially Fourth Amendment searches and seizures. I had prepared a course reader, but I was not able to give the students an assignment in advance of the first class–the absence of the ability to communicate with students in between weekly classes was not only a frustration; it became as well an emblem of the inside/outside difference. In a world ever more defined by technology, the utter ban on it at EJSP cast the prison class into a time warp. Since there could be no student preparation for the first class, I decided we would take turns reading aloud from “The Adventure of the Speckled Band,” one of the great Sherlock Holmes tales, identifying what we thought were clues as we came upon them, asking how what the baffled Watson saw without understanding was in Holmes’s eyes taking shape as a narrative–as a connection of suggestive details that pointed to the path taken by the crime (in this tale, literally the path of the swamp adder from Dr. Grimsby Roylott’s room through the ventilator he has pierced into the next bedroom, down the dummy bell pull, to the bed clamped to the floor).
The class turned into a kind of ideal demonstration of the virtues of close reading. But the bell rang before we had finished. The students lined up in the hallway, while I was told to wait in the “library,” a room with a few bookshelves of battered paperbacks. Half a dozen guards appeared. Walkie-talkies crackled. Orders were given, and the columns of inmates from the different classrooms (I think there were five, but I never knew for sure) began to move. Wait time was required between each movement of inmates. Finally the teachers were given the all clear. We went down those echoing iron stairs, turned left and walked the gauntlet between two rows of blue–more guards were posted on our way out than on the way in. We detoured around the metal detector the inmates had just passed through and arrived at the locked gate. When we had all assembled, it opened, and we moved to the next checkpoint. This door slid open, and we were back in the room where we had passed through security coming in. We signed out and showed our hand stamps under ultraviolet light. Then the door on the far side slid open. We were in the outer corridor now, with only one more locked door. We were buzzed through, I surrendered my pass and took back my driver’s license and car key, and we found ourselves out in the open in the cold January night. Fresh air. Freedom. I am naturally somewhat claustrophobic. Even when I grew accustomed to the entrance ritual every Wednesday evening I always experienced a certain tightening of the chest, a tensing of the body. And I won’t easily forget the sensation of leaving afterward, the sense of free movement of the body. Even the drive home down Route 1, infested with dying strip malls, seemed weightless. But I was always also plagued by the oppressive thought of those who could not leave. Why had punishment happened to them and not to me? By what right had they been taken from the world? The answer is obvious only on the level of fact and occurrence: they had been judged to have committed crimes. But what kinds of choice did they have in that?
Our work on clues, evidence, and detection over the next couple of weeks led to our thinking about the legal doctrine of “inevitable discovery,” which (as expounded in the Supreme Court case Nix v. Williams in 1984) says that although evidence that has been discovered illegally cannot be used (the “exclusionary rule”) it can be admitted if the prosecution can prove that it would “inevitably” have been discovered by other, legal means. This is a way around the problem of tainted searches where courts believe in the suspect’s guilt and want to find a way to convict despite the exclusionary rule. The “inevitable discovery” doctrine, much used in drug searches, suggests that legal as well as literary narratives tend to be end-oriented. Where you come out at the end–where you want to come out in the end–can dictate the narrative you construct toward that end. It really is a narrative issue: you need to beware the difference between living and telling. Telling may give a coherence and teleology to the world that it lacks in reality. The class had no problem assenting to this.
We moved on, through Sophocles’ Oedipus, an early and great detective story, and a seemingly contrapuntal tale by the African American Pauline Hopkins–Talma Gordon, about miscegenation–to classic cases of search and seizure under the Fourth Amendment: phone tapping, heat sensors to detect hot lamps for growing marijuana, drug-sniffing dogs on the front porch, rules for searching cell phones during a “search incident to arrest.” A group of students was assigned a presentation each week–I had to let them constitute groups of inmates who had at least a theoretical possibility of meeting between class sessions, although this didn’t always work out. More and more, they were getting it, finding the key issues to focus on. The students, I discovered, were encouraging and protective of one another. If I missed a raised hand in the back of the room, someone would point it out to me. If I called on someone who thought it wasn’t his turn to speak, he’d defer to the person he believed had been waiting longer. I sensed a group dynamic grounded in greater solidarity and less competitiveness than most of the classes I had taught. An emergent consensus among them reflected their deep suspicion of the state and its claims to have clean hands in these cases. This became more pronounced as we moved into the section on guilt and confession.
I knew well the arguments for and against Miranda v. Arizona, the 1966 case in which the Supreme Court attempted to protect the rights of criminal suspects during police interrogation. On the one hand, Miranda stands as the high-water mark in the Warren Court’s effort to enforce constitutional rights against state and local police practices, and to affirm the dignity of the individual, even when accused of crime, against the state’s need to protect society. The famous Miranda warnings were designed to give the suspect the right and the power to resist the pressure to incriminate him- or herself: the right to silence, the right to counsel. On the other hand, the more cynical interpretation claims that so long as police follow the formulas set forth in Miranda, courts will certify the resulting confession as “voluntary” without further investigation into its circumstances. Though I am one of those who think that Chief Justice Warren’s intentions in Miranda were honorable and admirable, history since 1966 has largely proved the cynics right. Well over 80 percent of suspects waive their Miranda rights; they talk to the police, without counsel, and they incriminate themselves as much as suspects did in the past. Police and the academies that train them have learned to use Miranda against its intention: to suggest that silence is guilt and that an agreement to talk with interrogators will quickly get the suspect out of the interview room and back home. Did Miranda provide a bright-line test between the voluntary and the involuntary or coerced confession? When you consider police tactics for obtaining confessions you have to conclude that “voluntariness” in the matter of suspects’ confessions remains an elusive ideal–or a mere formula. It was a liberal, constitutional solution to a problem rooted in complex psychological and social soil.
Here the class became intense, extraordinary, and at moments problematic. For most of the students, Miranda mainly represented one more tool for the entrapment of black Americans. Yes, they knew about the Miranda warnings. Presumably they all at some point had experienced the “administration” of a Miranda warning, as courts like to put it. But they all seemed to believe that there was no way they would have gotten out of the interview room without giving a confession. Miranda merely underwrote an outcome that seemed to them fated. We together watched two videos: first, Frontline’s “The Confessions,” on the case of the Norfolk Four, young Navy men who confessed to a brutal rape and murder that none of them committed. When the real perpetrator, who was already behind bars, confessed to the rape and murder, the prosecutors continued to insist on the guilt of those from whom they had obtained confessions in grueling (eleven hours in one case) and abusive interrogations. The four spent many years in prison. Eventually, toward the end of his term as governor of Virginia, Tim Kaine gave them a “conditional pardon,” arguing that it could not be a full pardon since the confessions of guilt were on record–a strange fence-sitting performance. Only in 2017 did Kaine’s successor, Terry McAuliffe, offer a full pardon.
One of the defense attorneys in the case of the Norfolk Four declares to Frontline’s Ofra Bikel: “No one in Virginia believes you can confess to a murder you haven’t committed.” That belief remains widespread despite the work on false confessions that has proliferated over the past thirty years. Confession is the most personal of statements. It issues from your own lips. How, why would you say something that was not true, that nailed you for a crime you didn’t commit? My students weren’t sure that they could articulate the reasons. But they saw the cops as able to pressure them and entrap them so that admission of guilt became the only way out of an unbearable situation. They were already branded as criminal material before they entered the interview room. As Mack formulated it in class, “A suspect is presumed guilty because he is being interrogated.”
The reasons for this became clearer in the next video we watched, Scenes of a Crime, created by Blue Hadaegh and Grover Babcock in 2012 using long excepts from the video taken by the cam in the interview room in the Troy, New York, police station, supplemented by interviews with the detectives who conducted the interrogation, with prosecutors and defense attorneys on the case, with medical experts, and with a couple of jurors. Adrian Thomas, an overweight, unemployed, depressed black man, is accused of having murdered his infant son by slamming him onto a bed. Throughout the agonizing interrogation–all in all, over nine hours–Thomas is told by the two detectives, first, that what happened to the infant was an accident and they have no intention of arresting him; second, that either he or his wife must have caused the infant’s injuries, and if he won’t confess to them, they will bring in and charge his wife; third, that they need to know just what he did to the infant so the doctors can save its life. All lies. The infant, as they well know, is already dead. And it will turn out that he died not of trauma but of sepsis–not injury but infection. Their hectoring of Thomas, who continues to assert his innocence, goes on and on. Another detective comes in by prearrangement and screams at Thomas that he has to stop lying. Eventually, Thomas agrees to take the fall to spare his wife. He is convicted at trial in 2009 and sentenced to thirty years in prison.
Just before the first time I used Scenes of a Crime in the classroom, in 2014, the New York State Court of Appeals handed down an opinion written by Chief Judge Jonathan Lippman vacating Thomas’s conviction and ordering a new trial, at which Thomas was exonerated. Judge Lippman’s reversal foregrounds three reasons the confession made by Thomas cannot be considered voluntary: the threat to arrest and charge his wife if he won’t confess (one cannot threaten that the assertion of the suspect’s Fifth Amendment rights will harm his vital interest); the claim that confession was necessary to save the infant’s life; and the constant promises that since it was an accident the police were not going to arrest Thomas. It’s a fine and just opinion. And yet it does nothing to put a stop to the kinds of interrogations routinely carried out by police detectives that, as Lippman recognizes, contain all sorts of deception and lies. He argues that “the choice to speak” cannot be eliminated by “any coercive device.” But surely Lippman knows that all interrogation is inherently coercive in the unequal power granted to interrogators and suspect. He notes that the interrogation “had as its object obtaining a statement that would confirm the hypothesis that the infant had been murdered through physical abuse.” But it is almost always the case in the interrogation of suspects that the police seek to have the suspect confirm a story they already “know.” It’s called controlling the narrative. Scenes of a Crime intersperses Thomas’s interrogation with excerpts from the “Reid Technique” training video, widely used in preparing police interrogators for their job. Like the training manuals cited by Warren in Miranda, the seminars taught by John H. Reid Associates start from the assumption of the suspect’s guilt, and help detectives create what is called a “monologue” to establish the narrative that the suspect will eventually assent to. It’s not insignificant that Thomas’s confession, like most that come out of the interview room, was written by the detectives and signed by him. Confession is supposed to represent the most personal of truths. As produced by police interrogation techniques, one has to ask: Whose story is it?
I imagine that Judge Lippman knew all this, but felt constrained by precedent–which allows all manner of police deception on the theory that an innocent person will never confess to a crime he didn’t commit–from addressing more probingly the issues of deception and coercion. All the Norfolk Four, for instance, were told by their interrogator that they had failed a polygraph test that they had in fact passed. In other cases, false reports of evidence left at the crime scene–fingerprints, blood, semen–have been used against suspects. Also false reports that confederates have fingered the suspect. The list goes on. Courts allow such techniques because they refuse to delve deeply into the psychology of interrogation and confession. See Oregon v. Elstad, a 1984 Supreme Court case in which Justice O’Connor explicitly refused to endow the psychology of the accused with constitutional implications. Courts continue to believe they deal only in rights, not in the realities of a suspect caught up in the processes of criminal justice.
So here was a class whose every member had been ground in that machinery. The voices were eloquent. As Richard put it: “The relationship between an interrogator and a suspect is one of power, manipulation, torture, coercion, and psychological warfare that most people do not see, which produces confessions that consequently destroy people’s lives whether they are true or untrue.” Stan agreed: the interrogation setting is “contrived to create a situation of intimidation, isolation, and subjugation,” forcing the suspect to relinquish his rights, subjugating him to the will of the interrogator. Danny, ever the reformist: “A criminal conviction should not be allowed to stand on a confession alone.” At the end of our discussion of Scenes of a Crime, Omar came up to me to say that he was in prison on the basis of a coerced confession he made at age fourteen. He was now certainly in his forties (those convicted as juveniles are assigned to Garden State Youth Facility, then transferred to EJSP or another prison at age thirty). Others in that and subsequent class discussions–we also considered the “the Missouri two-step” (question first, then warn) police tactic that came to the Supreme Court in Missouri v. Seibert (2004)–took the view that interrogation and confession were simply part of the machinery that the state used to put young black males in prison. J.R., Danny, Stan, Richard, Miguel, Bill–really the entire class–wanted to believe in the ideals of Miranda, but they couldn’t: they saw them routinely violated. Where apprehension or arrest and interrogation were concerned, rights were an abstraction, quickly trampled by reality. An ideal too, I sensed. For many of them, rights were a powerful definition of what it is to be an American. The way their rights had been treated merely confirmed their lack of full citizenship. Here we were in the heart of darkness: the belief (who could argue with it?) that they were less than full partakers of American freedoms.
Sitting in that claustrophobic classroom watching the interrogation of Adrian Thomas in an even more claustrophobic–bare and windowless–room became more than I could bear. It was as if walls were closing in on all of us, as in a Poe story. By the time it was clear Thomas had reached a point of despair from which he could only escape, at that moment, by a confession, whatever its future consequences, I turned the video off. No one asked for more. I think watching that video together, even more than the Frontline Confessions, became a touchstone for the class. We were together in finding it too painful to look at. I had, incidentally, been required to submit my videos as well as the other course materials to the Department of Corrections before the course began. I still wonder why those two interrogation videos made it through their censors. I suspect they never watched them.
Something changed in the class dynamic from our work on interrogation and confession. The students perhaps sensed my own investment in the subject; I published a book on confessions some years ago. Or perhaps for the first time they felt fully that this old white guy really was with them in the study of the failures of criminal justice. I’m not sure what it was, but from that point forward the class became somewhat more informal, at times verging on the unruly. And I began to know more about some of my students. Danny, who had trained himself in the law library (EJSP has the best in New Jersey prisons) to work as a paralegal for his mates, came to me with a case he was sure involved a coerced confession. I told him I could not myself take his petition on the case out of the prison–it was very clear I would lose my access if I did–but that I would alert the Innocence Project that it was coming. Dicky, a very tall man who sat in the back of the room and hadn’t said much, came up to my TA and me as we were leaving the classroom and explained that he belonged to the Lifers’ Club–I had seen this label on a mailbox down in the entryway–which held an annual banquet, and he wanted us to come. We accepted, though it seemed hard to imagine what a banquet would consist of in EJSP, and if we would really be allowed to attend. Later Dicky discovered that it had been canceled that year. No explanation–there rarely is in prison. Others in the class began speaking up more openly.
I had at the outset decided I didn’t want to know what the crimes and sentences of my students were: for me, my students were to be simply students. Nonetheless, this information would surface from time to time, especially in the case of Omar, who thought he might be released, I believe on the grounds that as a juvenile he had been tried as an adult, and this no longer is legal in New Jersey, and Stan, who was called to a parole hearing and reported back that our work on the tricks of interrogators had allowed him to remain calm when accused of lying by one of the dozen members of the board. He had done well. He would be released, after serving forty years. I began to understand that thirty years to life was the most common sentence at EJSP–the sentence, usually, for a crime of violence, in most cases homicide. By this point I could accept that I was probably sharing the classroom with murderers, and even to understand the circumstances in which murder might be viewed as simply a kind of mistake in a life where violence was part of one’s daily bread.
We moved on, through Ariel Dorfman’s dramatization of trauma, coercion, and confession in Death and the Maiden, to talk about trials–viewing a video of The Rodney King Trial made by Court TV: it turned out they knew all about the beating of Rodney King by the LAPD in 1991 and the trial, moved to Simi Valley, that exonerated the police officers. They were smartly analytical about how the defense managed the reversal of the narrative so clearly shown in the beating video, making it seem as though the police were merely responding to Rodney King’s threatening movements. They were smart and surprisingly attuned to feminist perspectives in analyzing a famous rape case, Rusk v. Maryland and Maryland v. Rusk–it was clear the “#Me Too” movement had not gone unnoticed behind bars. Only Miguel wanted to argue that Rusk was unfairly convicted. Then a group of them turned in a really brilliant analysis of Susan Glaspell’s classic feminist reversal of the traditional detective story in A Jury of Her Peers. Their own peers broke into applause. At their best, they displayed a maturity and thoughtfulness about human relationships that I didn’t always find in the students I usually teach. I began to think that if I could have a few more weeks, and a slightly smaller class, I could really take them far. We talked about trials, about jury nullification, about appeals. What interested them most in this section of the course was a case we read on plea bargains (Lafler v. Cooper, 2012). Close to 95 percent of cases never go to trial but are resolved on pleas, and that was no doubt true for most of them. The circumstances of the plea, its negotiation and ratification by a judge, are truly nefarious, setting defendants, whether innocent or guilty, before a kind of roulette table where they have to decide whether a trial might set them free or on the contrary bring a harsher sentence, a decision in which defendants rarely receive adequate assistance from their court-appointed counsel. Trial by jury, which so much represents the image of American justice–the focus of our popular entertainments and our belief in the superiority of our system to others–more and more stands as an ideal rather than a daily reality.
I had planned that the final weeks of the course would be devoted to punishment: first the death penalty, then prison. On the first of these subjects, we read Glossip v. Gross, about whether Oklahoma could use the sedative midazolam as part of its three-drug protocol for execution since the drug called for by statute (sodium thiopental) was no longer available. The case ought to be an embarrassment to the Supreme Court for the flimsy logic and cheap polemics that inform its discussion of so grave a topic. Only in Justice Sotomayor’s dissent do we find an eloquent denunciation of the Court’s central claim: that because execution is constitutional, there must be a constitutional way to put people to death. Along with Glossip, we considered Kafka’s imagined machine (in In the Penal Colony) that automatically inscribes the prisoner’s sentence in his very flesh. The tale drew only puzzled admiration from the students. Kafka is not easy to explicate. It was my sense that the parable of In the Penal Colony lay just over the horizon for most of the class–Kafka was ahead of us in thinking about state killing. But this class was largely consumed by discussion of McCleskey v. Kemp, a Supreme Court case from 1987. I hadn’t used McCleskey before in the classroom, but it seemed an inevitable choice for EJSP. The Court, in an opinion written by Justice Lewis Powell (he late in life claimed he regretted his vote in this 5–4 decision) considered evidence presented by death-row inmate Warren McCleskey, based on a careful academic study of the racial breakdown of capital sentencing. That analysis, the “Baldus Study,” demonstrated conclusively that black-on-white killing brought the death sentence in Georgia 4.3 times more often than any other instances of homicide. It revealed a systemic bias–which Justice Brennan in his dissent demonstrated to have a long and even explicit history in Georgia. But the Court majority claimed that in order to prevail, McCleskey would have had to demonstrate an intent to discriminate in this particular case. He would need to “prove that the decisionmakers in his case acted with discriminatory purpose.” The 2,500 cases studied by Baldus involved different judges and different jurors, so how could one infer anything about an overall discriminatory intent? The Court’s decision went on to state: “We decline to assume that what is unexplained is invidious.” Ostrich logic at work.
McCleskey has been labeled one of the worst Supreme Court decisions of modern times–Anthony Amsterdam, one of the lawyers arguing for McCleskey, called it “the Dred Scott decision of our time.” I was prepared to argue that myself, of course, and to analyze the deplorable logic that caused the Court to turn away from the obvious problem needing remedy: systemic racial bias. What I hadn’t quite anticipated was the extent to which so many of my students not only knew all that but also could make the claim–it was J.R., who always sat in the back of the room, handsome in his flowing dreadlocks, and hadn’t spoken much in the early evenings of the course, who led the charge–that McCleskey created a precedent that has blocked remedies for dealing with systemic racial disparities ever since. To J.R. as to most of the class, McCleskey, which has never been overturned, stood as the clearest statement of what American criminal justice was all about: the ratification of racially biased judgment, sentencing, and punishment. This led us into a debate on the notion of a “colorblind” Constitution and the acknowledgement that the Constitution itself was fatally flawed by its provisions which treated slaves as three-fifths of a person. They wanted to talk about the post–Civil War amendments, about Reconstruction and what brought it to an end and ushered in the rule of Jim Crow in the place of the incipient transformation of southern civil society by the Radical Republicans.
The tragic history of our nation was being demonstrated to me in a way I had never before heard, even though I consider myself a child of the 1960s protest movements. Here were the incarcerated, not necessarily claiming innocence or denying personal responsibility, but simply showing me, in the text of McCleskey and their presence before me, that they had never had the kinds of chances that I, along with other white Americans, considered a birthright. Whatever they had done, they had not received the same justice as white men. It brought home to me things that I knew from my reading but not from lived experience, not from growing up in places and with people who were more likely to land in EJSP than college. More than anything else, it made me think–I knew this too, but only intellectually–of the tragic wastage our society creates. If you ride the train from New York to Washington, you see the landscape of blight and ugliness and hopelessness that American capitalism has produced. In those devastated cities that stand in procession along the Amtrak Northeast Corridor you see the conditions of possibility of black lives. There didn’t seem in my EJSP classroom to be any way to argue for an American ideal of equality. Where do you find it expressed? Not in the Constitution. Not in decisions of the Supreme Court. The way forward seemed wholly blocked for my students. And reading McCleskey merely set the seal on their lucid despair.
That was the next-to-last class. The final week (in between they had written their take-home exam) was devoted to prison, with readings from Michel Foucault’s Discipline and Punish, a short story by James Baldwin about his arrest in Paris for a stolen hotel bed sheet, and another Supreme Court case, Florence v. Chosen Freeholders of the County of Burlington, from 2012. The Foucault text didn’t seem to make much impression. They knew something about the history of American prisons, especially early realizations of a penitential system in Philadelphia and Auburn. They all agreed that prison was panoptical, submitting their bodies to constant surveillance, but Foucault’s descriptions of the “complete and austere institutions”–a line from one of the nineteenth-century reformers he cites–suggest something quite different from and less chaotic than EJSP. Foucault is mainly talking about France, and race is nowhere in his analysis of the conditions and the uses of incarceration (something that might be less true if he were writing today, when France has developed an acute “race problem”). To my students, Foucault had missed the central point about the social meaning of incarceration.
Florence was something else. The shiny new BMW SUV belonging to Albert Florence, a black man, and driven by his wife–with their three children in the back seat–was stopped by the police for exceeding the speed limit. A computer check on the statewide police database showed an outstanding warrant on Florence for an earlier unpaid fine. This would turn out to be in error–the fine had been paid some time back, but never deleted from the database. On the basis of this unwarranted warrant, Florence was taken to the Burlington County Detention Facility and given a thorough strip search, including squatting and “lifting his genitals.” He remained there for six days, then was transferred to the Essex County Corrections Center, and again on intake was given the maximal strip search. In rejecting Florence’s claim of a Fourth Amendment violation of his privacy, Justice Kennedy for the Court largely emphasized how threatened those who manage prisons are: by disease, gang members, contraband, and the constant presence of violence. Florence was admitted to the “general population” of the two detention centers, Burlington and Essex, because there was no other holding facility available. In Kennedy’s thinking, this made the strip search procedure not only legitimate but necessary. Jails are “crowded, unsanitary, and dangerous places.” Rather than addressing those conditions, he gave carte blanche to wardens and guards to do what they think necessary. As Justice Breyer pointedly remarked in his dissent, Kennedy’s opinion mainly cited, and seemed to depend on, the amicus brief submitted by the New Jersey County Jail Wardens Association (and a couple of other similar briefs). Breyer suggested that one might rather question how appropriate it was to commit someone guilty of a minor infraction to the “general prison population” given the dark and grim picture of the conditions inside painted by Kennedy.
It was the students in the room with me who had the true expertise on prison strip searches. Danny was outraged that Florence underwent a second strip search when moved from Burlington to Essex county. Others noted that before and after visits from “the outside” they were strip searched. Miguel thought that prisons were so dangerous that any amount of strip searching was justified. Robert, on the other hand, described the procedure thoroughly, with an emphasis on the voyeurism and sadism of those conducting it. Danny mentioned that he had always slowed down when driving through Burlington County because its cops had a longstanding reputation of harassing black drivers (this was not mentioned in the Supreme Court opinions). Mack then informed us that he was a native of Burlington County but never liked to drive there since it was the most racist place on earth–nothing but rich white suburbia. When he had been outside, he regularly avoided his birthplace.
What emerged from discussion was a local map of sites of fear and expected retribution–not in prison, but outside, in the State of New Jersey–and how a black man had to plan his life’s itineraries with a kind of racialized state map in his head. I recalled maps that I had to fill in as a child, pasting in the proper place the state’s capital and principal source of wealth (little sheaves of wheat, a lot of cows) and the correct state flower. Overlaid on that now was increasingly the map of racist intimidation and harassment. The anecdotes flowed, told not so much in voices of resentment–though there was plenty of cause for resentment–but in wearied and worldly wise tones. This is the way it is outside. Which does not make inside any better. It simply makes it nearly inevitable.
Except in the case of Omar’s claim of a confession coerced from him at age fourteen, I didn’t hear my students complain about the injustice of their incarceration. The length of their sentences, though, seemed a real source of collective grievance. I cannot speak in their name, of course, but I had the impression that they had assumed the burden of their guilt and did not want to claim that they were wholly innocent. But the degree of their guilt was not so clear. Again, I never inquired about their rap sheet, or the process that brought them to EJSP. But I came to know that many of them thought the length of their sentence didn’t match the degree of their participation in whatever illegal acts were committed. As Foucault puts it, when the ideal of a civilization is freedom, the deprivation of freedom is the obvious sanction. And then the sole measure of degrees of guilt comes in months (sentences are usually expressed in months) of loss of freedom.
And loss of freedom, though obviously what incarceration is about, struck me in every visit to EJSP as instituted and imposed in ways that I had never dreamed of “outside.” Loss of freedom is palpable in every routine, in the very smells of EJSP, in the constant triage and movement of the inmates through the corridors, always between rows of armed guards, through security checkpoints and metal detectors on the way to and from class, in their occasional herding into holding pens (reasons not of course explained to me). I did not see anyone handcuffed or shackled. But the pervasiveness of loss of freedom hung in the air, and in my students’ faces when we talked about the fact and condition of incarceration. Some of them had picked up–from me, or from reading Foucault, or from Michelle Alexander’s The New Jim Crow (Danny had a copy in class one evening)–the phrase “the carceral society.” My spell check tells me that’s not a proper English word. Nonetheless, it by now seems the only way to describe what we have created. David Garland, a professor of law and sociology at New York University, has suggested that Americans incarcerate so much because the culture lacks other forms of social control that can be found in more traditional countries. As someone who has lived with children in France, I can testify to the informal control methods exercised by an invisible but effective collaborative enterprise of French mothers, who collectively police not only their own but others’ children. I found this annoying, especially on a beach vacation, but I recognized that it created a kind of safety network that Americans generally lack–just as Americans have been slow and reluctant to adopt the state welfare networks that all European countries have. If Garland is right, it doesn’t negate a belief that mass incarceration in the United States is also deeply racist. As the southern states discovered post-Reconstruction, penal punishment is the way to keep black men down. And the rest of the country has followed. To which one maybe should add that the population of young black men has ratified the racialized nature of American criminal justice by obligingly committing so many crimes. To which, in turn, states have replied by such endearing metaphors as “three strikes, you’re out,” resorting to the language of sport (maybe the last thing that unites us as a nation?) to deal with the grave issue of passing criminal sentences. That’s about as intellectually coherent as Kafka’s execution machine of In the Penal Colony.
When we finished Florence and James Baldwin’s account of his time of unfreedom in a Paris jail–with the sense that what he had fled in the United States was everywhere, in the form of a line between us the free and them the incarcerated–the bell rang. Class and course over. They lingered to shake hands before joining the lineup in the corridor. I knew that the phrase that traditionally closes the school year–“Stay in touch!”–was the very one they and I could not speak. Part of the pact of teaching inside was to make no attempt to maintain communication from outside. Omar had told me that once he was free he wanted to work with me on the problem of coerced juvenile confessions, and I had said yes, of course–and I meant it. He could find me easily enough when and if liberated. Would he? And would I ever have news of the others?
I made the exit march through the gauntlet with a sense of sadness. The feeling was real, but I confess it was of lesser dimension than the sense of relief and release. I had wondered over the weeks if any glitch–a misplaced I.D. card, or a wrong turning in the march out–might ever leave me incarcerated, even for a night or a few hours. As I passed each gate into the final security inspection room, where I signed out and showed the stamp on my hand under the ultraviolet light, I had to restrain the urge to move faster. Then came the final corridor to the entrance area. Buzzed through that door, I reclaimed my driver’s license and car keys in exchange for the visitor’s I.D. I passed through one more door, into the parking lot under a warm May drizzle. The car started, I drove through the parking lot, and pulled out into the street. A great lightness fell on my shoulders.
But surely that can’t be the concluding line. That’s why I write these pages, without much sense of their purpose or their destination. But maybe in the spirit of the straitjacketed priest Jacques Roux in the concluding bedlam riot scene in Peter Weiss’s Marat/Sade: “When will you learn to see? When will you learn to take sides?”