This week, a disheartening local news story rightly received national attention, putting a spotlight on the conditions in our prisons.
More than 1,600 inmates housed at the Metropolitan Detention Center (MDC), a federal prison in Brooklyn, reportedly endured days of severe cold and darkness after a fire resulted in a power outage that left parts of the facility without electricity. Prison authorities temporarily suspended legal and social visiting hours and placed inmates on lockdown. The incident is now the subject of a lawsuit (filed by Federal Defenders of New York), that alleges the inmates’ constitutional rights were violated.
As Anne and I discussed on the CAFE Insider podcast, the response by the warden and the Federal Bureau of Prisons should be investigated. An investigation is especially warranted if the reports are true that prison officials shrugged off concerns about people held in their care and initially rejected blankets and emergency generators offered by the city. Not all the facts are yet known, but at a minimum it was disappointing not to hear clear updates and explanations in real time from the warden or other officials at the Bureau of Prisons.
This issue of prison conditions has special resonance for me because as U.S. Attorney, I dedicated a lot of time and effort to investigating and trying to reform Rikers Island, the notoriously violent jail in NYC which, like MDC, houses mostly pre-trail detainees who have been convicted of nothing. I reflected on the Rikers case when writing my book and it highlighted the difficult questions that all of us, not just prosecutors, should ask about the nature of punishment and what it means to incarcerate people. I’d like to share a few passages from my book with you.
On the role of prosecutors in sentencing
Sentencing has a feeling of finality about it, of closure. I used to think this is where the prosecutor’s concern rightly ended, at the prison’s perimeter. An inquiry fairly conducted, an accusation rightly made, a judgment properly rendered, and then a punishment judiciously imposed. On to the next case! But that is not the end, at least not if we care about overall justice, because the other consequence of our jails and prisons being out of sight is that we don’t see the physical and moral rot pervasive in them. This is a feature of justice too. How we treat the human beings we deem dangerous or depraved enough to imprison is a moral imperative for everyone, prosecutors included.
On the role of prosecutors in sentencing
Every prison environment is impossible pretty much by definition: the inmates are charged with (or convicted of) crimes, many are mentally ill, and by order of a court they are denied liberty. This is already one step to subhuman status. This is not to say prison is, in concept, inhumane or unnecessary. So long as there are people who must be justly incapacitated because of fair punishment or because they are dangers to the community or risks of flight, incarceration is necessary.
On Rikers Island prison
Since opening in the 1930s, Rikers has been known for its deeply entrenched culture of violence. It is notoriously one of the worst correctional facilities anywhere. There was a persistent pattern and practice of conduct at Rikers that violates that constitutional rights of inmates. We found Rikers to be a fundamentally broken place where brute force is the first impulse rather than the last resort; where verbal insults are repaid with physical injuries; where beatings are routine but accountability rare; and where a culture of violence endures even while a code of silence prevails.
We all know that the culture of institutions impacts the way institutions function. As the great Russian novelist Fyodor Dostoevsky famously wrote, “The degree of civilization in a society can be judged by entering its prisons.” So let’s take notice of this wise observation, and let’s make our prisons be the measure of our collective character.
“MY FELLOW PRISONERS”
Mikhail Khodorkovsky, former oil company CEO and once Russia’s richest man, was the country’s most famous political prisoner until his surprise release from prison in December 2013. Khodorkovsky served more than 10 years–a total of 3,709 days–on a combination of dubious charges including tax evasion, fraud, embezzlement, and money laundering. Many expected he would die in prison. Russian and international observers alike believe that his prosecution was politically motivated – he was, the story holds, an oligarch that dared to defy Putin.
While in prison, Khodorkovsky wrote “My Fellow Prisoners,” a book of true stories about the prisoners he met while serving time. Each of these characters represent a slice of Russian society. “It’s well known that prison is a place where you encounter the most unusual people,” he writes. “Over these past years a great swathe of humanity, with fascinating stories to tell, has crossed my path.” The point of the book, according to Khodorkovsky, is “to show a world that is beyond the comprehension of most people.”
Prison offers many lessons to its subjects. It forces inmates to reflect on the very nature of what it means to be human. Khodorkosky writes:
“I often find my thoughts returning to the question: what is conscience? How do we define what is ‘good,’ and what do we feel ashamed of for the rest of our lives? When does conscience overcome fear, and when does fear overrule conscience? …We make a deal with our conscience: we lie, keep quiet, don’t ‘notice’ things for the sake of a quiet life, we hide behind the interests of our nearest and dearest. We justify ourselves, saying that ‘these are the times we live in’, that ‘everyone else is the same’.
But whom, in fact, are we striking that deal with? And how will we know when ‘the other party’ – our conscience – has refused it? Is it only when we end up facing adversity ourselves?
Or is it when we’re near the end and we make that final reckoning of our lives, agonizingly aware that the time for ‘dodging the raindrops’ is over and all we have left is memory? But surely by then it is too late to change anything.”
Khodorkovsky poses questions we should all ask ourselves from time to time. The answers will help point us toward greater self-awareness, composure, and understanding of the question every one of us has asked–of ourselves and of each other–what does it mean to be human?
“My Fellow Prisoners” is available at a variety of online and local booksellers you can find here.
What should be the primary purpose of incarceration — retribution, rehabilitation, incapacitation, or deterrence? Reply to this email and let us know your thoughts.
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TARGETS, GAG ORDERS, AND YEARBOOKS
If you haven’t already, listen to the latest episode of the CAFE Insider podcast, “Targets, Gag Orders and Yearbooks.”
Key takeaways from the latest episode of the CAFE Insider podcast. Is President Trump a target of the Mueller probe? Will the Mueller report be made public? What are the implications of imposing a gag order on Roger Stone? These are just some of the questions Preet and Anne discussed.
• Trump says that Deputy Attorney General Rod Rosenstein told him he wasn’t a target of the Special Counsel’s investigation. What’s the difference between a target and a subject of a criminal investigation? A subject of an investigation is anyone who has information relevant to the investigation. A target of an investigation is someone against whom there is mounting evidence sufficient to bring an indictment. A person can start out being a subject of an investigation and evolve into a target as prosecutors obtain more evidence. Separate from Mueller’s investigation, there is an investigation by SDNY, where prosecutors appear to believe that Trump directed Michael Cohen to make illegal hush money payments. It’s possible that Trump is a target of the SDNY investigation. It’s also possible that Trump isn’t deemed a target of either investigation due to a Justice Department policy that holds a sitting president cannot be charged. That said, Mueller isn’t precluded from reciting facts that incriminate the President in his report. It also raises the following question: If Trump believes he isn’t a target, why isn’t he fully cooperating with Mueller and answering the Special Counsel’s questions?
• Is legislation that ensures the Mueller report becomes public needed or can we trust the discretion of the Attorney General? The overwhelming public interest in the report makes it politically difficult to keep the report under wraps. The next likely Attorney General — Bill Barr — will in part be motivated to release the report to protect his reputation and legacy. Legislation is preferable insofar as it would eliminate the risk of a secret report. Trump’s statement that his decision to make the report public will depend on “what it’s going to say,” shows that to him, it’s a result-oriented decision that is devoid of any process or principle.
• Judge Amy Berman Jackson is contemplating imposing a gag order on Roger Stone. What do we make of this development? Judge Jackson is a no-nonsense judge who cares about decorum and wants to ensure a fair trial. The system is rightly oriented toward ensuring that the defendant gets a fair trial. The government also always deserves a fair trial. Judge Berman is worried that Stone’s media blitz will taint potential jurors. It’s a legitimate concern. But months from now, if there is a trial, it shouldn’t be too difficult to find 12 jurors who have never heard of Roger Stone and the charges against him.
THIS WEEK ON STAY TUNED
Former Senate Majority Leader Harry Reid is this week’s guest on Stay Tuned. In a wide-ranging interview, Senator Reid talks about his career milestones, reflects on the presidents he has served and his former colleagues, and looks forward to 2020. In this sneak peek at the interview, Sen. Reid discusses what he sees as his great strength as a leader:
I haven’t said any of this publicly, but I always felt one of my strong suits was that I was able to tell people, “No.” That’s hard. But people admire you for being able to tell people, “No.” And I think that’s one reason why the caucus appreciated me. Because I didn’t play games with people. I would tell them, “No, I can’t help you with this.” But, I was willing to go the extra mile on occasion when I thought it was good for the team. [Condensed and edited for clarity]
Don’t forget to listen to this week’s episode of Stay Tuned. It drops this Thursday, 2/7.
Preet answers your questions about the SDNY subpoena issued to Trump’s inaugural committee, and more.
SOMEONE TO FOLLOW
Garry Kasparov is the 13th World Chess Champion, an author, and Chairman of the Human Rights Foundation. His tweets offer a shrewd and contemplative perspective on American democracy and policies. Follow him: @Kaparov63
PRE-ORDER PREET’S BOOK “DOING JUSTICE”
“Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law” ships March 19. It is also available as an audiobook. Pre-order here.
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– Preet and the Cafe Team