Second chances must be real
Dangling the prospect of starting over and then yanking it away is simply cruel
Today Pam Bailey testified to a public-oversight roundtable convened by the D.C. Council’s Committee on the Judiciary & Public Safety. The focus: how to return control of parole to the District. The U.S. Parole Commission, a little-known federal agency under the Department of Justice, assumed authority over D.C. prisoners with parole-eligible sentences following passage of the National Capital Revitalization Act of 1997. Due to the District’s financial crisis at the time, it gave up authority over almost all aspects of its criminal justice system, transferring its residents to federal prisons around the country.
Below is what she submitted to the committee, on which her testimony was based.
You’re hearing a lot about values, law and statistics in the testimonies submitted for these proceedings. But what must be kept front and center are the 661 humans with indeterminate sentences whose literal lives depend on the actions you take in the coming weeks.
I speak today for Robert Barton, one of those D.C. residents. As he wrote recently in a guest essay in the Washington Post, he “grew up on some of the meanest streets of D.C., the child of a man who rotated through prison and abandoned me and my mother.”
As a society, we failed Rob as he struggled to overcome the tyranny of his zip code. Unfortunately, the lure of the streets prevailed. He was just two days past his 16th birthday in 1995 when the driver of the car he was in shot and killed a member of a rival group of teens. Considered an “aider and abettor,” Rob was sentenced to 30 years to life; today, he is 42 years old, incarcerated in the U.S. penitentiary in Coleman, Florida.
The system into which we send them
Have you ever talked at length with any of the residents we have sent into federal prisons, particularly the high-security penitentiaries? Public outcry has been loud and sustained in the wake of the murders of unarmed Black men by the police, but what you don’t hear about is the same routine behavior — and often worse — among prison officers. Violence is not just rampant among those who are incarcerated but is also perpetrated against them by the guards.
On top of that, there is the criminally poor health care and overcrowding that allowed COVID-19 to spread, as well as the pervasive use of solitary confinement and institution-wide lockdowns to manage everything from fights among a couple of the prisoners to staffing shortages.
I am reminded of a passage written by Michelle Alexander in her seminal book, “The New Jim Crow.” She writes this:
“The easy answer (to criminal acts) is to wag a finger at those who are behaving badly…But the more difficult answer — the more courageous one — is to say yes, yes we should be concerned about the behavior of men trapped in ghetto communities, but the deep failure of morality is our own…Are we willing to demonize a population, declare a war against them, and then stand back and heap shame and contempt upon them for failing to behave like model citizens while under attack?”
The same is true of those we incarcerate in the gulags that are American prisons. As a result, it’s the norm to rack up a number of disciplinary infractions over the decades inside. Still, many manage to mature and overcome. And that has been true of Rob.
What programming?
It’s a sad, but little-known fact that little programming is offered in federal prisons to “lifers.” As Washington City Paper documented in 2016, “the lack of access to rehabilitative programming, poses a significant risk of extending incarceration for D.C. offenders serving parole sentences. The parole commission regularly requires participation in rehabilitative programming before granting parole, but extensive waitlists waylay inmates who apply and some programs are only available at a handful of facilities. For inmates who committed serious crimes, such as sex offenses, the lack of access to rehabilitative programming not only significantly extends incarceration but also poses public safety concerns upon release.”
Nevertheless, Rob took seriously what was available. For example, he earned his GED, followed by an online associate degree in business administration. When he was sent to the D.C. jail complex to prepare for a court proceeding, he entered its Georgetown Prison Scholars Program and earned a 4.0 average. He also was selected as a mentor for the District’s Young Men Emerging program and partnered with me to launch More Than Our Crimes to advocate for second chances.
In fact, it was for More Than Our Crimes that he initiated and helped coordinate an on-line teach-in on the importance of statehood to the District criminal justice system. That teach-in was co-sponsored by the office of Attorney General Karl Racine.
A second chance? NOT
Last year, Rob was granted the right to petition for parole five years early thanks to a D.C. law enacted to reduce prison overcrowding during the pandemic. It allows persons incarcerated between June 22, 1994 (when the possibility of sentence reductions was repealed), and Aug. 4, 2000 (when the district abolished parole), to retroactively benefit from good-conduct credit, up to 54 days per year. However, that law only gets individuals like Rob a hearing. The deck is stacked against them, due to a deeply flawed assessment system. For example, it revisits the original crime — which is not what parole is supposed to be about — and thus penalizes those who committed violent offenses, especially when they were young. (This, despite the fact that both empirical evidence and neurological science have established that individuals tend to age out of the tendency toward violent behavior by the time they are in their mid-20s.)
Still, despite that, the assessment indicated Rob should be released, with supervision. But what did the hearing examiner do? He used the arbitrary discretion granted him (due to a lawsuit filed by another rejected prisoner, McRae v. Hyman, 667 A.2d 1356-D.C.1995) and simply ignored the assessment’s conclusion. The examiner, Maryland resident Scott Kubick, reached back further than the three years recommended by the guidelines for conduct that he could cite to deny Rob his freedom.
Ironically, Kubick said at last month’s hearing that he “loves” everything that Rob accomplished while back in D.C. and believes he is on the right path. But he wants Rob to continue to make progress back in a penitentiary setting, so he can see how Rob deals with setbacks. In other words, Kubick tacitly acknowledged how hard it is to stay clean in the brutality of the USP environment.
Rob had this to say when wrote to me:
“Why do they always say they want to see more when we do good, but as soon as we stumble as a result of living in such a volatile environment, they say, ‘I told you so’? It’s like they want to see us crash.”
I should note that Rob’s past disciplinary infractions were also his reason for being denied release under the Incarceration Reduction Amendment Act in the fall of 2019. Since then, he has been shipped like a piece of freight from D.C. to a jail in Virginia, to a penitentiary in West Virginia, and now to Florida.
After his taste of opportunity and dignity in the District’s Correctional Treatment Facility, Rob has endured a total re-immersion in the humiliation and deprivation that is the Bureau of Prisons. But through it all, he has continued to informally mentor others and run More Than Our Crimes, with an initiative underway to educate and mobilize fellow D.C. prisoners to vote. What more proof does the U.S. Parole Commission need that Rob can persevere? Or perhaps the real goal is to provoke him until he breaks.
The way forward
Despite the D.C. Council’s professed desire for more of its residents to come home, the USPC is continuing its pattern of denying most of the petitioners who come before it. And although it is a taxpayer-funded institution, it either has deliberately chosen not to record statistics on its actions or refuses to divulge them. (The Washington City Paper report had this to say: “The lack of available data from the parole commission and BOP makes measuring the severity of extended sentences difficult. Both agencies denied numerous requests for detailed data on incarceration for D.C. inmates.”)
The question we’d like to ask is, just how many D.C. residents who come up before the USPC receive scores that qualify them for parole, but are nonetheless denied?
There are a lot of other Robs out there. For example, there is Angelo Daniels, incarcerated for 28 years, who hasn’t been written up for an infraction since 2014; he too was denied parole and told to come back in five years. “And the beat goes on,” writes Rob. “I know of 10 other people who recently have been denied. I’m quite sure there are many more, but the USPC will not disclose the statistics.”
But let’s be frank. A broken parole system is not unique to D.C.’s particular circumstances. The Prison Policy Initiative evaluated parole systems in every state in 2019 and reported that, “Only one state gets a B, five states get Cs, eight states get Ds and the rest either get an F or an F-.”
Reform is needed everywhere. It’s time to go even further, by scrapping the current discretionary, highly subjective process and turning our focus to reasonable sentencing (no more life, life without parole or 20+-year punishments that essentially rule out second chances) and the hope offered by automatic credits for “good time” (not earned but then subject to the whims of either a judge or parole board).
“To live without hope is to cease to live.” — Fyodor Dostoyevsky
