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Those of us who haven’t blocked out our memories of middle school probably recall agonizing over things like what to wear or feeling inexplicably moody or depressed. And with good reason. The emotional instability and intense pressures that characterize adolescence are so significant that the US Supreme Court has said children require different treatment under the Constitution when they are convicted of even the most serious crimes.Ad Policy
In Roper v. Simmons, which ruled out the death penalty for under-age offenders in 2005, the Court reasoned that “juvenile offenders cannot with reliability be classified among the worst offenders” because they are less mature and their sense of responsibility has not fully developed. They are more vulnerable to negative internal and external influences, including peer pressure. Unlike adults, they can’t control or escape dysfunctional homes and dangerous neighborhoods—two major contributing factors to youth crime. They also have a greater chance for rehabilitation. Thus, as the Court said, “from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult.”
In 2010, the Court applied the same guiding logic in its decision in Graham v. Florida, concluding that children convicted of non-homicide crimes cannot be sentenced to life imprisonment without parole. As Justice Kennedy wrote for the majority, “Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.”
On March 20, the Court will hear oral arguments in two cases, Jackson v. Hobbs and Miller v. Alabama, that ask whether it’s ever constitutional to condemn a child to die in prison. The petitioners, Evan Miller and Kuntrell Jackson, both of whom were convicted of murders committed when they were just 14, argue that, by the Court’s own logic, it is not. As attorney Bryan Stevenson argues in a summary of the Miller argument: “To wholly disregard a 14-year-old offender’s age and age-related characteristics in sentencing him to be imprisoned for the remainer of his existence makes a mockery” of the precedent set by the Court in Roper and Graham.
The recognition that children are different is supported by recent neuroscience and psychosocial studies that have shown adolescence to be a period of intense change in the brain. We now know that the parts of the brain that drive emotional reactions, impulses and reactivity to peers develop before those that control impulses and imagine consequences, and which enable adults to resist pressures, delay gratification and weigh risk and reward. Scientists who study the teenage brain describe it as akin to a car with a fully functioning gas pedal but no brakes.
The law recognizes the developmental and biological factors that differentiate children as a class in literally hundreds of areas. State and federal laws recognize that kids are especially vulnerable by punishing adults who victimize them, expose them to illegal activities, force them to work in dangerous or exploitive conditions, or fail to make sure they wear helmets and seatbelts. Dozens of laws acknowledge that children are too immature and irresponsible to vote, serve on juries or drink alcohol. And a whole body of law prevents children from engaging in activities with consequences considered to be beyond their comprehension, such as entering into contracts, marrying, quitting school—even getting tattoos.
A criminal justice system that allows children to be tried and sentenced as adults stands in stark contrast to such well-established laws. Rather than a research-based response to serious juvenile crime, the laws and provisions that have led children to be sentenced to die behind bars are an accident of two overlapping trends, both based more on rhetoric than reality.
In the rush to prove that they were “tough on crime,” state legislators over the past several decades have made life-without-parole sentences more widely available for adults than ever before in our nation’s history (and prison populations nationwide have skyrocketed as a result). In the 1990s, a small group of academics capitalized on and galvanized a growing hysteria about violent crime by youths, speculating that an anticipated rise in the youth population, coupled with spurious theories about the exceptional deviance of children of color growing up poor, would lead to a new generation of “severely morally impoverished juvenile super-predators…capable of committing the most heinous acts of physical violence for the most trivial reasons.” Fearing that the rehabilitation-focused juvenile justice system would be inadequate to protect society from this impending menace, lawmakers passed laws that circumvented juvenile court and sent kids to criminal court for prosecution as adults.
The same expert who coined the term “super-predator” now acknowledges that it was nothing but a ghost story, a terrifying myth with disastrous consequences. In an amicus brief to the Supreme Court in support of Miller and Jackson, this expert—and others—note that the juvenile crime rates actually dropped from 1994 to 2000. But a relative handful of children accused of serious crimes—a grossly disproportionate number of them children of color—found themselves caught permanently in the web spun by academics and politicians, sentenced to die in prison with no hope of release no matter how they might transform and reform themselves. Once we give up on these children, many prisons compound the hopelessness by failing to provide access to educational programs.
This rogue area of the law must be brought back into line with our longstanding legal tradition and our longstanding common sense that affirms—in myriad ways and on a daily basis—that kids are different from adults. We have to judge them accordingly, because children are still children, even when they do unimaginably horrible things. And unlike the way Miller and Jackson were deemed permanently incorrigible for things they did as children, the Court judges us, as a society, by how we have grown up and matured over the years. Based on our “evolving standards of decency,” a deeper understanding than ever of adolescent development, and the debunking of vicious myths, the Court should reject life-without-parole sentences for all children.
By Tabitha Cohen
“Returning home with confidence and hope, participants are able to find and hold satisfying jobs in a range of fields…Regardless of the path they choose, all are radically less likely to return to prison and are far better prepared to lead productive and fulfilling lives when free.”[i] This quote from the Bard Prison Initiative indicates that the purpose of college-in-prison programs is to give inmates an education, and therefore opportunities they wouldn’t have previously had access to, in order to benefit them in their lives after their releases. With a college degree comes many more job opportunities, which leads to a steady income and stable lifestyle, which in turn provides a large disincentive for criminal behavior because there is more to live for and more at risk if the person returns to prison. However, the Bard Prison Initiative also claims that it does not consider the length of the students’ sentences during the admissions process, and many of the students enrolled are serving extremely lengthy sentences and might even be in prison for life.[ii] This means that these inmates will never be able to reap the benefits of an education after release, and recidivism and the acquiring of jobs are irrelevant. So what are the benefits of and/or important reasons to enroll students who are serving life sentences in college-in-prison programs? Why is the mention of “lifers” excluded from the Bard Prison Initiative’s promotional material and why don’t fundraisers address why they should be educated? Is education a human right or should people only care if prisoners are educated if it affects the community outside the prisons?
A large source of opposition to college-in-prison programs, and the reason public funding for it was cut in 1994, was that people took issue to the fact that inmates were receiving free college education while hard-working, innocent citizens who couldn’t afford college did not receive the same benefits. However, although the logic might be sound, the facts show that “no eligible applicant for a Pell grant ever lost out to an inmate, because the grants are awarded on a merit basis, with any costs above the yearly appropriation coming out of the next year’s budget.[iii] After federal funding was cut, college-in-prison programs became virtually extinct, and the Bard Prison Initiative was founded in 2001 and is funded privately “from generous individuals and philanthropic foundations.”[iv]
Inherent in the creation of the Bard Prison Initiative and inherent in the claim that lifers should be educated even though it will not impact the outside community is that education is a human right and everyone should have access to it regardless of the tangible benefits incurred, on par with the right to free speech and religious expression or the right to a fair trial. However, is this idea too elusive or flowery to get private organizations and individuals to donate to prison education or must there be a financial or security benefit to incentivize donors? Must there be a more concrete incentive for donors? The viewpoint that private donors will not show compassion unless it affects their lives and communities is a perfect representation of Martha Nussbaum’s idea of “eudaimonistic judgment,” or “a judgment that places the suffering person or persons among the important parts of the life of the person who feels the emotion.”[v] Educating inmates saves the public a lot of money in the long run and makes communities safer upon the inmates’ releases; therefore, according to Nussbaum, it is only natural that people will feel more compassion for inmates with a release date because whether or not the inmates being released back into the community are educated and rehabilitated will eventually directly impact them. Eudaumonistic judgment, therefore, could be viewed as sort of a selfish compassion. Professor Mandy, a member of the Bard Prison Initiative faculty, expressed a similar viewpoint and believes that only inmates with release dates’ educations should be subsidized by the program: “I don’t see the point for guys that are not getting out. I mean it’s quite an investment.”[vi] The effects on recidivism and therefore public safety are quantifiable and therefore the most commonly used promotional statistics and argument:
“Research indicates that these high and expensive rates of recidivism fall to less than 22% if prisons offer significant educational opportunity to incarcerated men and women. Among formally [sic] incarcerated Bard students, fewer than 2% have returned to prison. The estimated cost per person, per year of the BPI program is a small fraction of the price of continuing incarceration. It saves tax payers money, while increasing public safety.”[vii]
However, what the donors and some faculty do not immediately consider is that the effects on costs of maintaining college-in-prison programs for lifers also has a positive effect for society:
“Education may be the most effective way to lower prison costs. . . . In some prison systems, cost-effective management is possible only because programs keep prisoners busy, with less supervision than you’d need otherwise. Especially with respect to certain types of prison educational programs, you save money by hiring fewer officers in the short run and reducing recidivism in the long run”.[viii]
Although money is a very motivating factor in any arena, because the BPI does not use these facts about education for lifers saving the public money, the eudaumonistic judgment cannot be the most only criterion by which people evaluate whether prisoners deserve compassion and an education. For some, showing compassion for criminals is especially difficult because they don’t believe they deserve compassion. Nussbaum elucidates this point: “There may be a measure of blame, but then in our compassion we typically register the thought that the suffering exceeds the measure of the fault.”[ix] This idea is interesting because she indicates that people will determine whether to dole out compassion by judging the aggregate deeds and qualities of a person and that showing compassion entails very calculated decision-making and less instinct or emotion. Lifers, therefore, are perceived to have committed to most egregious of crimes and deserve a free education the least.
This idea directly contradicts the idea from Shakespeare’s The Merchant of Venice when Portia acknowledges that Shylock is not obligated to show mercy to Antonio, who is in breach of their agreement, but that compassion and mercy are not obligatory, but fall freely and should come from within, independent of the other person involved.[x] According to this line of thought, “humanity, compassion, and mercy” are “the beliefs we seek to live by” and just because one person didn’t show these qualities at one point doesn’t mean someone shouldn’t show them toward that person.[xi] This is the mindset taken on by Max Kenner, the founder of the Bard Prison Initiative, and many of the BPI faculty; they believe that the nature of the student-inmates’ crimes are “irrelevant” and should not play a role in the admissions process because everyone “deserves” an education.[xii] In fact, even though the information on the inmates’ crimes is public knowledge and is easily accessible on the New York State Department of Corrections website, “there is an unwritten agreement among most of the faculty that looking up such information would benefit no one and . . . individual crimes were never discussed.”[xiii]
Nussbaum shows a more lenient, holistic, and Portia-like perspective on the issue of compassion and judging people based on their actions and qualities when she specifically addresses the issue of showing compassion for criminals: “Typically we feel compassion at the punishment of criminal offenders, to the extent that we think circumstances beyond their control are at least in good measure responsible for their becoming the bad people they are.”[xiv] She therefore believes that those who are simply a product of their harsh environments deserve compassion. However, what distinguishes between two prisoners who committed the same crime, one as a result of his or her upbringing and the other out of pure maliciousness? It is impossible to tell the difference and regardless of the upbringing or personality of the prisoner, they committed the crime and should be punished in the same way. When it comes to the relationship with funders, this exists in the imagination of the audience- donors don’t know what prisoners specifically they donate to- they just know that a lot of underprivileged people are in prison and this might have to do with why they have been incarcerated. The donors, therefore, are more likely to donate to the prisoners because of the potential notion that they were incarcerated for reasons beyond their control and should be shown compassion.
Additionally, many, like Foucault, show compassion for prisoners because of the terrible, “crushing” effects of prison and the conditions that inmates suffer after being incarcerated. Foucault claims that an inmate becomes “an agent of his own captivity” and that they lose a sense of “individual self, personal interest, and unique desires.”[xv] Providing for education for the inmates, therefore, “represents for the prison a positive step in the process of rehabilitation”: “What the college presents if not so much a direct challenge to the institutionalization process, but an alternative form of legitimate compliance coupled with a previously alien opportunity structure within the prison walls.”[xvi]
A critical question that Foucault proposes is whether prison is meant for solely punishment or for rehabilitation as well. By not taking into account prior circumstances or any external factors, some “have railed against a philosophy of rehabilitation that ‘coddles’ inmates with too many amenities” and believe that prison is for punishment and regard any signs of compassion or humanity as “frills.”[xvii] Others, such as Kant, take it a step further and view the entire idea of compassion as “a weak and misguided sentiment” and believe that “such benevolence is called soft-hearted and should not occur at all among human beings,” in any aspect of life, let alone in prisons.[xviii]
However, for those serving life-sentences, recidivism rates don’t necessarily apply, but the benefit of having to hire less prison guards assuredly does and “providing a long-term goal helps [the inmates] to stay sane and makes them less prone to violence. It also makes the entire prison easier and less expensive to manage.”[xix] This argument is especially relevant in the context of maximum-security prisons such as those in which the Bard Prison Initiative teaches, but not because of the common misconception that it is because these institutions contain the most hardened criminals with the worst behavioral problems and with the least to lose. To the contrary, “Lifers-perhaps in their desire to make some amends for their extreme failures in altruistic behavior- tend to be far more motivated than other prison inmates when it comes to participating in reeducation and self-improvement programs.”[xx] And for the inmates that do have behavioral problems, when the programs give them something to live and work for, they begin to behave better, find more self-confidence, and relate better to each other and their surroundings. Fatima, a student-inmate states: “When faced with a confrontation, I walk away. I don’t let them bother me … I don’t react to everything they say. In the past I would have fought the girl, [but now]I don’t want to lose the program. I don’t want to fight because I’m in college.”[xxi] The program becomes something to live for and an incentive to be a better person. Brian Fischer, New York’s Commissioner of Correctional Services, hits at the core of the rehabilitative ideal:
“Education changes people. And, I think that’s what prisons should do, change somebody from one way of thinking to a different way of thinking. . . . It’s the logical view of incarceration; going to prison is the punishment, once in prison it’s our obligation to make [people in prison] better than they were.”[xxii]
Roz, a college-in-prison graduate serving 50 years to life, puts it best:
“I sort of started identifying with the world, understanding the world better; understanding . . . my crime and why I was here . . . I just wanted to read everything . . .I wanted to know more, I wanted to explore . . . And I found that . . . I started surrounding myself with people of like minds. Because when I first came here I . . . had a chip on my shoulder that I wanted somebody to knock off . . . I had no self-respect, no respect for others. . . . When I started going to college that was like the key point for me of rehabilitation, of changing myself. And nobody did it for me, I did it for myself.”[xxiii]
Another student-inmate, Sherry, reflects:
“Because when you take somebody that feels that they’re not gonna amount to anything, and you put them in an environment … like, when you’re in college it takes you away from the prison … I can’t really find the words, but it’s like, you’re opening your mind to a whole different experience… [College] puts you on a higher level. It broadens your way of thinking, … Nobody can take it away. It’s something that you could use for the rest of your life.”[xxiv]
Education might even be especially important for those serving life sentences because since they will never physically be free, they can at least free their minds.[xxv] The Bard College president Botstein says, “The most amazing thing, I have to say, the most shocking and absolutely unbelievable thing is that it takes radical incarceration, the loss of all hope to engender a genuine love of learning.”[xxvi] Reshawn Hughes, a BPI student, states: “While at Bard, I learned that freedom was something much different than just a physicality, a space of physical existence. Freedom had a lot do with your ability to think. Freedom had a lot to do with your ability to communicate with others. To see the world in a different view.”[xxvii] Therefore, if prison is meant for rehabilitation and education is a critical means to this end, then those serving life sentences should gain access to the same programs, as it changes people and gives them hope for a future, even if that future is behind bars.
Some inmates even use the concept of rehabilitation and their “educational achievements as a springboard to freedom.”[xxviii] Jon Marc Taylor, who received his “bachelor’s, master’s, and doctoral degrees behind bars in a maximum-security prison,” appealed to his governor to grant clemency for becoming a changed man. Many believe that granting him an early release would “give the wrong impression to society” and believe that inmates deserve to serve their full time, regardless of how rehabilitated or changed they become during the process, because they “deserve every bit of it” and that “college achievements don’t overshadow the ugliness of the crime” and are independent of one another.[xxix] Taylor, however, claims that if the governor refuses to grant him clemency, “it’s an indictment against rehabilitation.”[xxx] The idea of clemency in cases of extreme rehabilitation complicates the aforementioned idea of rehabilitation because it provides a concrete manifestation of the ideal. While many believe that prison should be rehabilitative, they oppose the idea of granting clemency in these cases, which questions the sincerity of their belief in how possible or genuine rehabilitation and change truly is.
Prison education also has a democratizing effect. Jed Tucker adopts the ideas of the aforementioned author Martha Nussbaum’s that liberal arts are “a powerful instrument in shaping the kind of citizens necessary to sustaining a true democracy.[xxxi] The BPI, by giving these inmates a liberal arts education, produces “free-thinking, independently minded and humane citizens” that constitute the foundation of a genuine democratic society. Xaxier, another student-inmate, speaks of the democratizing effect that the program has had on him: “I feel like I’m now part of the conversation. By acquiring a knowledge of history you feel engaged in the discussion. I learned this in the BPI.”[xxxii] Tucker believes that “to experience this radical sense of inclusion while detained in an excluding institution speaks to one of the most important effects of the BPI.”[xxxiii] Democracy fosters programs such as the BPI and therefore creates an endless cycle of democratic principles and engenders a society where all citizens are participants in the system and have a stake in it. Truly democratic citizens seek to protect their environment and will not commit crimes against it. Therefore, democracy can be viewed in many ways as the ultimate goal of college-in-prison programs.
The Bard Prison Initiative is an extremely beneficial program, and although it primarily speaks of how it benefits those who are released from prison after completing the program, some of the most critical benefits are actually incurred by educating inmates serving life sentences. Whether funders will respond to the important principles educating lifers represents, however, is a different story. However, the fact that programs such as the Bard Prison Initiative exists is a testament to the compassionate nature of many human beings—founders, funders, and faculty alike.
[i] Bard Prison Initiative “Frequency Asked Questions”
[ii] Bard Prison Initiative
[iii] Robert Worth, “A Model Prison,” The Atlantic Monthly Company 1995
[iv] Bard Prison Initiative
[v] Martha Nussbaum “Compassion & Terror,” Daedalus 2003
[vi] Jed Tucker, “The Liberal Arts Unbound: Higher Education in an American Prison, 2005–2006” (ProQuest 2009) 121
[vii] Bard Prison Initiative
[x] Peter Singer “Megrahi and Compassion” The Guardian 2009
[xviii] Dacher Keltner “The Compassionate Instinct” Greater Good 2004
[xx] Wendell Brown “Lifers: Not What You Would Expect” ProQuest 1996
[xxi] Maria Torre “Bar None: Extending Affirmative Action to Higher Education in Prison” Wiley Online Library 2005
[xxv] Daniel Schorn “Maximum Security Education “ CBS News 2009
[xxviii] Kim Bell “Inmate Believes He’s Earned Clemency He Pins Hopes on Prison Education” St. Louis Post- Dispatch 2004
Bard Prison Initiative. Web. 01 Dec. 2011. <http://bpi.bard.edu/>.
Bell, Kim. “Inmate Believes He’s Earned Clemency He Pins Hopes on Prison Education.” ProQuest. St. Louis Post – Dispatch, 12 Dec. 2004. Web. 1 Dec. 2011. <http://proquest.umi.com/pqdlink?vinst=PROD&fmt=3&startpage=-1&vname=PQD&RQT=309&did=762029001&scaling=FULL&vtype=PQD&rqt=309&TS=1322070647&clientId=15403>.
Brown, Wendell. “Lifers: Not What You Would Expect.” ProQuest. 5 Oct. 1996. Web. 1 Dec. 2011. <http://proquest.umi.com/pqdlink?vinst=PROD&fmt=3&startpage=-1&vname=PQD&RQT=309&did=10281707&scaling=FULL&vtype=PQD&rqt=309&TS=1322000422&clientId=15403>.
Keltner, Dacher. “The Compassionate Instinct.” Greater Good: The Science of a Meaningful Life. 2004. Web. 01 Dec. 2011. <http://greatergood.berkeley.edu/article/item/the_compassionate_instinct/>.
Nussbaum, Martha C. “Compassion & Terror.” Daedalus, 2003. Web. 01 Dec. 2011. <http://ezproxy.cul.columbia.edu/login?url=http://proquest.umi.com/pqdweb?did=288008841&sid=1&Fmt=3&clientId=15403&RQT=309&VName=PQD>.
Schorn, Daniel. “Maximum Security Education – CBS News.” Breaking News Headlines: Business, Entertainment & World News – CBS News. 2009. Web. 01 Dec. 2011. <http://www.cbsnews.com/2100-18560_162-2685164.html?pageNum=3>.
Singer, Peter. “Megrahi and Compassion.” The Guardian. 1 Sept. 2009. Web. 01 Dec. 2011. <http://www.guardian.co.uk/commentisfree/2009/sep/01/megrahi-lockerbie-compassion-remorse>.
Torre, Maria E. “Bar None: Extending Affirmative Action to Higher Education in Prison.” Wiley Online Library. 11 Aug. 2005. Web. 01 Dec. 2011. <http://onlinelibrary.wiley.com/doi/10.1111/j.1540-4560.2005.00421.x/full>.
Tucker, Jed B. “The Liberal Arts Unbound: Higher Education in an American Prison, 2005–2006.” ProQuest. 2009. Web. 01 Dec. 2011. <http://search.proquest.com/docview/304862310>.
Worth, Robert. “A Model Prison.” The Atlantic. The Atlantic Monthly Company, 1995. Web. 01 Dec. 2011. <http://www.theatlantic.com/past/docs/issues/95nov/prisons/prisons.htm>.