Conrad Black

by A Matter of Principle

  BOP Director Harley Lappin told a sub-committee of the House Committee on Appropriations on March 10, 2009, that “the mission of the BOP,” apart from protecting society by confining offenders, is “to provide inmates with a range of work and other self-improvement programs that will help them adopt a crime-free lifestyle upon their return to the community. As our mission indicates, the post-release success of offenders is as important to public safety as inmates’ secure incarceration.” He assured the Congressmen that there was a “plethora of inmate programs, including work, education, vocational training, substance abuse treatment, observance of faith and religion, psychological services and counseling, Release Preparation,” etc.

  I was in one of the BOP’s premier, deluxe prisons. Only one or two of the teachers actually educated anyone (though they and the educational administrators did genuinely care about advancing the student inmates). The tutor-inmates did the teaching, though we were compelled to attest otherwise. The vocational courses were of the most superficial nature and did not qualify anyone to go forth and earn more than the minimum wage, thus reducing competition for the unionized building and maintenance trades that control those occupations. Almost all the release preparation was done by inmates such as me giving advice for job resumes and career choices at variance from the pap uttered by the BOP, which effectively advised its charges to bag groceries and not think that they could be making one hundred times as much dealing drugs.

  There was no manual available to inmates to move on to higher education by correspondence, so I bought one myself, walked dozens of students through it, and in a number of cases helped arrange the financing for going into university by correspondence, in the absence of any official encouragement.

  There are wellness facilities, but it may surprise Director Lappin to find that religion is not a BOP program. At that, the BOP chaplain, as was mentioned in Chapter 15, was a specialist in divining whether inmates had taken a piece of bread from the dining hall and in discriminating against all but his sect of white Baptists. He helped banish our priest when he declined to apprehend those removing food from the dining hall, saying “I don’t work for the BOP, I work for the Pope.” He tried to bar me in consecutive years from attending the annual Roman Catholic luncheon on Ascension Day.

  I have nothing but compliments for what I have seen of the U.S. probation service, in Chicago and Palm Beach, but the post-release rules are designed to maximize the likelihood of a return to custody. If I, for example, went to dinner in the home of a friend where there was a licensed gun, whether an antique, or a hunting rifle, in the basement or attic and without ammunition, I would be liable, while bonded, to be sent back to prison. Charlatans like Congressman Danny Davis called his act expanding availability of extended halfway house accommodation and home confinement “historic, landmark” legislation. I assisted many inmates in trying to take advantage of this opening, always to get back the stone-faced response that such a reduction of prison time would be “against policy.”

  Almost all the “jobs” at the facility apart from cleaning the washrooms and mowing the lawns, making furniture, and educating inmates, and some kitchen duties were the most absurd make-work, involving five minutes a day, if that. And the anti-substance abuse program was a series of self-confessions and denigrations interspersed with puerile sing-songs. Three-quarters of the participants were there to reduce their sentences. The educational, psychological, and most of the rehabilitative staff tried to encourage the inmates, but many of the correctional officers were devoted altogether to aggravating, provoking and belittling us. Gentle and thoughtful officers are often reprimanded or demoted for their civility.

  The great majority of convicts return older but no less vulnerable to those temptations that ensnared them, justly or otherwise, than when they first arrived. (I have even urged former drug dealers to become bail bondsmen – they can take from the same huge pot of drug money, have a good income, and be legally employed in a growth industry.)

  More than 90 per cent of the country’s residential mental patients have just been tossed into the prison system. Each prisoner costs directly about $40,000 annually to detain, and the total annual cost of the country’s prisons is about $250 billion. Imprisonment has become a discreditable substitute for racial segregation, chunks of the welfare system, treatment of mental illness, and amelioration of the effects of drugs on American society.

  Unlike other advanced countries, all U.S. prison systems (in all jurisdictions) are bent on retaining as many prisoners as possible for as long as possible, and to maximizing the prospects of repeat offenses. Like other businesses, the prison industry seeks endless expansion. Former public-sector prison executives join private-sector prison companies and work their connections assiduously, like retired generals and admirals in defence industries. The political intitiatives of the correctional officers’ unions are very sharply focused and effective.

  The correctional officers are poorly paid and smuggling is widespread. There is endless investigation, shuffling of personnel, and charges of financial and not infrequently, sexual, indiscretion. Graduates of the higher security facilities adjacent to our low security prison tell me those places have higher levels of violence (and therefore more respectful correctional officers), and have stabler populations. Almost anything is available there: a menu of alcoholic drinks for in-cell service, cellphones, etc. There is obviously substantial inventory shrinkage out the back of the commissary as well as through the kitchen, and the BOP personnel can lay it all off on the inmates. And it would be counterintuitive, ahistorical, and astounding if there were not massive kickbacks on arm’s length purchasing. The whole ambiance of the BOP is corrupt, and the inmates are not the chief source of it. From all accounts, the states and counties, more strapped for funds, are worse.

  In California, the number of prison employees multiplied from 1977 to 1998 by six, and of prisoners by eight, to 160,000, more than the combination of France, Germany, the United Kingdom, and the Netherlands, which together had more than seven times as many people (and in each case a lower crime rate). Since then the number of California’s prison employees rose from one-fourteenth of the state’s employees to one-third, and the prison budget has exceeded the state’s university budget for many years.

  Other advanced countries concentrate on constructively training and releasing non-violent offenders as quickly as possible. Senator Jim Webb of Virginia, in his essay “Criminal Injustice,” makes the point that as the countries mentioned above have from one-sixth to one-twelfth the number of incarcerated people as the U.S. per capita, either Americans are more naturally addicted to criminal behaviour than other countries, which is nonsense, or the other countries are indifferent to crime, which is also nonsense, or the U.S. overcharges and oversentences, which is obviously true.

  Up to the 1970s, the United States was a reasonably liberal country in custodial matters; it had about as many imprisoned people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom; had a prison system that gave some attention to rehabilitation; and had an active prison reform movement.

  The U.S. media, both in information and entertainment, have for decades hyped the problem of violent crime out of all proportion to its real importance. This was almost the only way for local news programs to attract viewers. Whatever is the principal local crime of the day leads the news, even if it is the brazen and frightening theft of a five-cent cigar. CNN’s Nancy Grace has never to the best of my knowledge tackled any crime other than kidnapping, rape, and murder. She always presumes guilt and sometimes seems to demand the execution of suspects before they have been charged. Her voice resonates in my thoughts as, speaking about some untried individual, whose guilt is a matter entirely of television speculation, she inquires yet again in her mellifluous southern accent of another prosecutor: “John, can you tell me why this man/woman/child/sheepdog has been allowed to roam the streets without being put on a register/picked up for questioning/jailed/flog
ged/put to death/drawn-and-quartered years ago?”

  Trial by media is taken for granted in a society whose prosecutors, unlike those of any other civilized country, give inflammatory press conferences asserting indisputable guilt long before any juridical assessment. Virtually all politicians went berserk hammering crime as an issue, starting in the sixties. Liberals like Nelson Rockefeller and Robert Kennedy and Bill Clinton were as oppressive and demagogic as centrists like Richard Nixon and conservatives such as Ronald Reagan and George W. Bush. Absurdly repressive laws tumbled forth; mandatory minimums, the three-strike rule, truth in sentencing (which eliminated parole), and the artificially inflated mystique of the death penalty as a macabre ritual of moral and social purification. Then Texas Governor George W. Bush took to publicly mocking death-row petitioners when they asked for commutation.

  The consequence of these developments was that designated crimes received draconian sentences, with no discretion to the judges to alter them. A third conviction, no matter how trivial or far apart the convictions were, is now grossly overpenalized, and no federal sentence can be reduced by more than 15 per cent. Despite all the fear-mongering about violent crime, for the first time since Prohibition, there are more Americans imprisoned for non-violent than for violent crimes. Only 4 per cent of three-strike prisoners in Los Angeles were convicted of violent crimes. In the whole country, less than 15 per cent of prisoners are repeat violent offenders.

  Prison reform collided with the feminist movement, which claimed that violence against women was out of control and was tacitly sanctioned by a large part of male America. The bloody riots in Attica and San Quentin prisons in the early 1970s caused the conflation in the public mind of prison reform with black radicalism and the blood-curdling ambitions of black extremists including Bobby Seale, Eldridge Cleaver, Angela Davis, and H. Rap Brown, and brought down a heavy backlash on all accused and confined people. The crime rate declined because the twenty years of Reagan, Bush Sr., and Clinton were basically full-employment, inflation-free decades of huge job creation (an astonishing 47 million net new private-sector jobs), and because police techniques were improved and numbers of police increased throughout the country; and perhaps most importantly, the population aged, losing some of its taste for the exertions of crime as it did so. The politicians sold the public the bunk that they were responsible for bringing down crime by conducting a war on crime and a war on drugs based on more arrests, high conviction rates, more imprisoned people, and longer sentences.

  Since the 1970s, the public has happily approved countless state referenda authorizing bond issues for building new prisons. When this cut into welfare and education budgets, and the public in many states voted down the special prison-building bond issues, the state governments gave long-term lease-backs to private-sector companies that built the prisons and guaranteed them a high occupancy level and rental payments whether the facilities were full or not. This saddled the states with an effective average interest rate of 37 per cent, but excused the politicians from an insupportable referendum or the dread appearance of being soft on crime.

  Tens of thousands of shareholders of Wackenhut and Corrections Corporation of America and other publicly traded prison companies demanded more and more prisons and prisoners and steadily harsher sentences. The prison companies hire former prison and security officials as executives and directors, including former directors of the FBI and CIA. The correctional officers are militantly organized, and their unions are rivaled only by the National Rifle Association as the most effective political lobbying organization in the country in election campaigns over the past thirty years. They and the politically potent police unions lead the political agitation against any sentencing reform and in favour of longer sentences and more prisons.

  Whenever (and however) a prison correctional officer dies in the line of duty, it is treated in all prison facilities as a re-enactment of the perils of the flag at Mount Suribachi (Iwo Jima), though prisoner violence against guards is now quite rare. Deaths of prisoners are officially ignored. There is a deliberate, implicit effort within the system to present all convicted people as indistinguishable from killers and rapists; we are all miscreants outside the law. Overflow prisoners of state systems are shipped out from one state to another and often housed in abominable conditions. The nation’s county jails, bulging with nearly a million prisoners, are just dustbins of gangs and miscellaneous alleged law-breakers, huddled in appalling conditions amid shockingly high levels of violence.

  Once someone is in the web of the accusatory system, all the spiders swarm and tangle and sting the dazed newcomer. And once in the custodial system, the dehumanization is almost relentless but usually trivial: the caprices and discourtesies and inanities of a system that is mindless though largely in the hands of decent, limited people. And the orchestrated public attitude has been one of Salem-like ostracism. This will subside, as the frailties of the system become better known and the absurd numbers of potentially stigmatized people exceed society’s powers of misplaced righteous ostracism. None of this is to whitewash the misdeeds of a great many convicted people. But for such an advanced and brilliantly innovative country, it is an amazingly clumsy, unjust, and corrupt desecration of the nation’s ideals and squandering of its human resources.

  The prison industry has become a gigantic Frankenstein monster, feeding on public ignorance and paranoia, political corruption and cowardice, and with the rails greased by the endless media blurring of the line between the suspected and the convicted, and the entertainment industry’s portrayal of uniformly heroic police, prosecutors, and judges, and mono-chromatically horrible and psychotic criminals. In an earlier time, the media lionized defence lawyers such as Perry Mason as much as civilized police officers such as Joe Friday in Dragnet.

  I am a fierce defender of private and even public property, but their theft or misappropriation is not morally equivalent to the physical battery of a person. What is required is to rewrite the laws, impose the rule of law on the conduct of prosecutors, and revive the Fifth, Sixth, and Eighth Amendment guaranties of due process, no arbitrary and uncompensated property seizure, a serious grand jury assurance against capricious or vexatious prosecution, access to counsel, an impartial jury, prompt justice, and reasonable bail. This will require profound procedural changes, an end to the plea bargain in its present grotesquely deviant form, and rousing the Supreme Court from its star-gazing self-absorption and rubbing its collective, exalted nose in the Bill of Rights, which it has complacently allowed the prosecution to smother and perforate for decades, as softly and thoroughly as moths.

  TREATMENT OF MINORITIES

  THE CRUELLY UNINTENDED CONSEQUENCES of the great society programs of President Johnson were to break up low-income families. Men were financially incentivized to drift around impregnating as many women as possible, an activity that was generally seen as a tribal rite of masculine virility and feminine fertility anyway, and so, culturally commendable, as indeed it is when done responsibly. The randomly seed-scattering fathers return on “Father’s Day” when the monthly welfare cheques arrive, and the golden youth conferred upon the nation in the flowering of this ethos is generally advised, I learned from interviewing many scores of exemplars of it (and not all of them non-whites), to be a chip off the old block: proliferate and rip off the (white) system. When the utility companies threaten to cancel the electricity, cut off the telephone, and repossess the appliances, Mama needs some drug sales to keep the home fires burning, and Daddy, the proverbial “motherfucker,” is nowhere to be found.

  The country’s incarceration policy has the benefit to the government of removing almost a million unemployed African Americans and at least half a million ethnically diverse correctional officers from the unemployment statistics. Treating white-collar crime like violent crime appeases the left and slightly balances the racial numbers in the prison system. The percentage of African Americans in the prison system is more than three times that in the entire population,
and there are three times more African Americans in prison than in higher education. I was caught in this in part because of the refusal of the U.S. legislators to deal with the issue of the ballooning unequal distribution of wealth. I cannot be described as a socialist in anyone’s wildest imagination, but I feel there should in a decent society be limits to such disparities.

  It is a scandal that there are 30 million or 40 million poor people in such a rich country, and as hard-pressed as the U.S. now is by international competition, it should not, as a strategic as well as a moral issue, be squandering so much labour in social inequities and in a hideously expensive, unjust, and ineffectual correctional policy. Until late 2008, there were hundreds of billionaires in the country, and millions of millionaires. Instead of a serious public policy debate about how to lift the socio-economic floor, this disparity has led to a totemistic assault on a few prominent people who misstep into the cross-hairs of the system: Leona Helmsley, Michael Milken, Martha Stewart, Alfred Taubman, and perhaps even me.

  This shabby tokenism is the best American official policy has been able to do to address income disparities. The symbolic indictment of a few wealthy people, like sentencing the swindler Bernard Madoff to an imbecilic 150 years of prison, is just a placebo, a rabble-pleasing gesture.

  Amy Bach, in her very scholarly analysis of the U.S. criminal justice system, Ordinary Injustice: How America Holds Court, recounts how legal aid lawyers bid for the government business, and the lowest bid takes, and how underfunded they are and how they have almost no time for individual clients. They are paid and evaluated by the court and always deferential to the prosecutors. They settle almost all cases because they are paid by the number of cases they address, not by the results or quality of service. Scores of my students and other acquaintances told me of the sequence: all assets are seized as ill-gotten gains, microcosmic outrages compared to the illegal seizure of my Park Avenue proceeds. The public defender is imposed, counsels the necessity of pleading and then purports to have negotiated a relatively light arrangement. Once in court, the prosecutor asks for much more than has been agreed, after the guilty plea has been entered.