Webb Hubbell
George
August 1997

When Sherman marched to the sea through Georgia during the Civil War, he burned everything in his path, including the city of Atlanta. Last year, I found myself in Atlanta, not in a vibrant part of the reconstructed Olympic city, but in a 5' x 7' jail cell, scared, and hardly contemplating history's lessons. But as the damp cold cell became my reality, and I tried to sleep among the night noises of an inner city jail, I thought about the ironies of fate that had brought me in chains to the city of flames.

Sherman's strategy shortened the war, but it left an open wound that took over 100 years to heal. As a boy growing up in Memphis, Montgomery, and Little Rock, I witnessed the hostility engendered by the harsh policies of Reconstruction, both in my neighbors and in my community, and I heard it at school every day. This bitterness and hatred fanned the fires of racism, resentment, and reactionary rhetoric. Today we are again a nation at war with our own citizens. In the last two decades we have been fighting a "War on Drugs" and a "War on Crime" -- not nearly as decisively as Sherman, but we have ignited the same flames of bitterness and hatred. This time 100 years may not be long enough to extinguish the fire.

As Arkansas's Chief Justice and then as Associate Attorney General of the United States, I never dreamed I would be locked behind bars as an inmate. I had always been on the other side of the fence, Yet there I was, guilty of mail and tax fraud, serving a 21- month sentence in federal prison. In a strange way, I was prepared for the humbling experiences you expect from imprisonment. I had anticipated the humiliation and degradation of strip searches, and the depersonalization, shame, and discomfort of being shackled and handcuffed while walking through the halls of Congress or a Federal courthouse. I committed a serious crime; I caused serious harm to my friends and family . I went through a long period of denial, thinking that things could be worked out, thinking that surely I would never get to the point of pleading guilty and actually going to prison. I was overwhelmed by guilt. Something inside of me knew I needed a period of self-examination -- a chance to introspect. I decided to treat each difficult moment as enabling me to strip off another layer of pride to get to the core of my heart and soul.

What I did not anticipate was being enlightened in an important and profound way. Suddenly I was seeing the impact of orders I had given and reports I had read from an inmate's perspective. In 1993, I ordered a lockdown of all federal prisons until a rumor that all Cuban prisoners were going to be deported could be disabused. In 1995, the week after Congress failed to act on the sentencing disparity between crack and cocaine, I was in a lockdown. I saw the fear of violence and riots in the faces of both guards and inmates -- the tension and the disruption. I listened with keen interest as they talked about the Cuban lockdown --the one I had ordered. I used to read reports that certain high profile prisoners were sent to segregated housing for their own protection. In prison, I learned that segregated housing means being "sent to the hole" -- 23 hours a day locked in a small cell, minimal access to phones, reading materials or writing materials. No one wants to be sent to the hole. At Justice I never thought twice about directing that an inmate be transferred to another facility or sent to a local county jail to testify in a case. Yet in 1995 I experienced a routine inmate transfer to another facility. It easily becomes "diesel therapy" -- weeks of nights in local county jails and days spent shackled and chained on buses or on "Con Air." The reports that had crossed my desk on prison violence, stabbings, overcrowding, and sexual assaults a year earlier, suddenly had names and faces of real people.

As Associate Attorney General, I engaged in policy discussions on sentencing disparity. I was given statistics from the Bureau of Prisons (BOP). I listened to debates about changing the Federal Sentencing Guidelines and heard people say, "Webb, we can't do that, we can't be perceived as being soft on crime. " Although I thought I was balanced and had all the insight necessary, it took the faces of real persons and families to turn statistics and policy into reality, and to see that seemingly well reasoned, short-term solutions could and will prove to be disasters in the long term. It never occurred to me that so many well intentioned, educated and serious soldiers in this "war" were repeating the same historical mistakes of Reconstruction and World War I Reparations, not until I was forced by my own crime to do what I so often counsel my children: walk in the other man's shoes. I began to see the realities and effects of our failing criminal justice policies as I put on our society's other shoes, and through the humbling effects of prison my understanding of the issues was dramatically changed.

The statistics I read should have signaled an alarm to my Southern soul. Since 1980, our nation's prison population has quadrupled. We have built more Federal prisons in the last 16 years than in the rest of our century. At Justice, the demand for new prison bed space was intense. The issue dominated every budget session. We were constantly borrowing from Peter to pay Paul. These increases are driven not by an acceleration in our nation's crime rate, which has been stable and slightly declining since the 1970's, but by the simple fact that we are incarcerating more and more nonviolent offenders. American rates of incarceration are higher because of our exceedingly harsh treatment of people convicted of lesser non-violent crimes. For example, in 1994, 92% of federal prisoners were sentenced for non-violent crime,. costing the taxpayers over $23,000 per year per inmate. America incarcerates its people at five times the rate of Canada and seven times that of most European democracies -- even though we have similar overall crime rates. Other similar countries such as Australia and Canada actually have higher rates of victimization than the United States. For the crime of assault with force, 2.2 percent of Americans are victimized per year, compared to 2.3 for Canada and 2.8 for Australians. For robbery , 1,7 percent of Americans are victimized annually; in Spain the number is 2.9 percent. The U.S. rate of car theft is 2.3 percent; in Australia it's 2.7 percent; and in England 2.8 percent. Yet, I was as shortsighted as the rest. I knew that political wisdom dictated that the only solutions to crime and drugs involved longer and harsher sentences. By not listening to my southern soul I put political expediency ahead of conscience -- always a sure path to ruin and chaos.

One of the ironies of prison is that the thing you lose is the very thing you gain. I am talking about time. Time in prison is different from time in the outside world. In the outside world time is a flash flood, a whirling blur of forces and temptations and choices and consequences. In prison time stops. Maybe that is part of the idea --that you suddenly have time to face who you are. The prison where I stayed had no walls, but I couldn't escape from myself or my fellow inmates. In prison privacy is a precious commodity. I learned to sneak away on Sunday morning, sit in the ball field bleachers, and lose myself in the lush choral programs of the nearby college radio station. I learned to wear headphones when I slept to drown out the noise, so that when I woke up in the middle of the night I could read without the noise. The most treasured jobs in prison either grant privacy during the day or keep a man so busy time will pass more quickly. Still, most of the daytime is spent talking to other inmates from the 6:00 A.M. wake up call, while you work, eat your meals, during recreation or just sitting in the dorm or cell. Everyone wants to talk about their case, their family problems, their dreams for the future and most of all their frustrations. We all shared one thing in common -- loneliness and a boundless longing for family and friends. So we talked. As I listened to story after story and learned to glean the truth from the fiction, I began to see a criminal justice system sorely in need of repair.

What really surprised me after entering prison was to see that our prisons have become nothing more than warehouses. I met inmates who desperately wanted to use their time in prison to get an education, to learn to read and write , or to obtain a skill so that, when they ultimately got out, they might break the grip of their criminal cycle and live clean, productive lives. There are dedicated professionals within the BOP who want to help, but they are simply not given the opportunity or are so frustrated by what they see that they have given up. During my entire stay in the Bureau's Cumberland facility, the GED exam was never administered -- despite several inmates begging for the opportunity. There were virtually no educational programs, no training programs, and no attempt to allow an inmate to improve himself. I will never forget a 19-year-old inmate , who had been in and out of correctional facilities since he was 13, pulling me aside and asking me to help him address a Christmas card to his mother. He had been in federal prison for over a year and a half, and he couldn't even address an envelope. Although his lack of prior education can't be blamed on our prison system, his time in prison could have been put to much more productive use, both for him and for our society. I saw too many inmates who were like the canary who was accidentally sucked into the vacuum cleaner, then washed and dried with a blow dryer. When the owner asked what happened he was told, "he had been sucked in, washed up and blown over. Now he just sits there, staring, with neither joy nor song." Our prisons are filled with men without hope -- no chance for joy or song.

Everyone in prison ultimately receives a nickname. The man who dubbed me "Big Easy" is a 30-year-old African-American, college-educated , who used to own several successful night clubs. His wife is a physician. He was and is a loving father to his two children. When I met him he had already served over four years in prison. He had refused to allow the FBI to set-up a drug sting operation in one of his clubs, so he became another target of their investigation and was eventually convicted of using a portion of his business loans to pay off his wife's medical school loans. Over the course of his last year in prison he helped me see our justice system through the eyes of a young black man. Before his arrest he kept his head clean shaven and drove a Jaguar. He was routinely pulled over by police, searched, and questioned, simply due to the color of his skin. After his indictment he was advised by his lawyer to plead guilty because he would have no chance with the western Pennsylvania jury about to hear his case. He said to me, " The judge was white, the jury was white -- they would all just figure I was a drug dealer. Big Easy, you are the only white man I have ever called a friend. "

Several days after the Million Man March in 1995 he asked me, "Big Easy, don't you understand black men are being targeted? This country is engaging in genocide of black males. " He was not paranoid; he knew the statistics that create such strong feelings in his community. Over one-third of all young black males between the ages of 18-30 are in prison or on some form of probation. In major cities the numbers are even higher. Blacks make up 12% of our country's population, only 13% of the drug users, 35% of the arrests, 55% of the convictions , but 74% of those imprisoned for drug possession. Since 1980, the percentage of minorities in Federal prison has increased from 33% to 64%, and the number of minority inmates grew from 8000 to 65,000. The percentage of blacks sentenced for federal crack/cocaine crimes is 89% while the majority of crack users are white. Incarceration rates for blacks in 1991 were seven times higher than whites. Statistic after statistic supported my friend's arguments.

I do not believe that this disparity is a conscious plan on anyone's part. I know there is not a racist bone in either President Clinton or Janet Reno . I know them both too well. Nor do I believe that prior administrations targeted only African-American males. I know of many dedicated people at Justice and in law enforcement who would resign immediately if they thought they were engaged in what many citizens in the African-American community call "genocide" or "ethnic cleansing" -- ugly and frightening words. However, I do believe, regardless of intentions, that our crime policies target minorities. The statistics make an overwhelming prima facie case of discrimination. More importantly than my beliefs, thousands of people in prison believe they are the target of a racist system determined to diminish and ultimately extinguish their very existence in the United States. Their beliefs and perceptions are becoming their reality. The effect of this reality may one day overwhelm us.

This belief also grows outside of prison as the families and friends of young African-Americans see their husbands, brothers, and sons heading to prison at an alarming rate, and they see no evidence that the trend will change. Statistics only scratch the surface of the problem. Politicians, policy makers and prosecutors bury their heads afraid to address the issue. They fear being perceived as "soft on crime" and losing their political or other offices. While the public becomes ever more angry, resentful, and disillusioned about crime, our minority communities live with the same if not stronger fears about crime and its many repercussions. Because they have no way to combat this "lock 'em up" approach, they become more and more isolated. The anger grows, the resentment grows, and the disillusionment grows. It is no surprise that more and more prosecutors face black jurors who say, "I just will not send another child to prison." There is no dialogue. While we encourage discussions and dialogue in the Middle East or Bosnia, we ignore our own failures at home. In the 60's and early 70's we knew that we were not winning in Vietnam, and our failure to rethink our involvement almost tore this country apart. We are making the same mistake again, refusing to recognize and address policies that are literally tearing the country apart, policies that are simply not working. Once again we plant the seeds of disobedience and civil unrest and put into peril the very belief in our system of laws by a significant portion of our citizens.

Some scholars and politicians have justified the disparate impact of our criminal justice system by saying blacks are more likely than whites to commit crime . This was my reaction when I was first confronted with these statistics. I was quick to look at poverty and the effects of centuries of discrimination as explanations for higher crime rates among blacks. I was taken aback to learn that the proportions of serious violent crimes committed by blacks have been level for more than a decade. We are simply incarcerating blacks in a discriminatory way at alarming rates. Again, I do not believe that our leaders in the 80's intended to target only African-American males. They were trying to stem the tide of a growing drug problem in our country. But as with many of the policies enacted to target crime, we failed to analyze the long term consequences. More disturbing than the numbers is what lies below the surface. The unfair targeting of blacks is an acute social problem, and its ramifications dig deeply at the fabric of American life. We can't undo the past, but we must recognize and try to remedy the results of a failed policy.

For all the progress we have made in the area of civil rights including an administration that "looks like America," these minority communities are being drowned by the undertow of policies that target one segment of our society. The effect of our policies has been a major contributor in the declining levels of education and lawful, gainful employment of young black males, and are a serious impediment to the re-establishment of two parent black families and homes.

This perception or reality , whatever your point of view, also impedes the restorative aspects of prison. An inmate who can accept his past guilt and begin to take responsibility for his future is far down the path to rehabilitation. An inmate who believes he has been racially targeted for persecution is more likely to embrace bitterness and hopelessness than to engage in the necessary self examination needed to come out of prison with the right attitude. I saw too many inmates use this sense of persecution to avoid admitting that they had done anything wrong or should change. Add to this the lack of education or job training, and the circle of futility is complete.

I learned that, although over-crowded, our federal facilities, are safer, cleaner, and less crowded than our state and local facilities. From the reports of other inmates and from first hand experience I learned that there is severe overcrowding and dismal and dangerous conditions in our state and local facilities. Thirty people in a cell built to house eight and people taking turns sleeping to avoid lying on urine soaked floors are commonplace. Prison overcrowding creates an atmosphere of distrust and a tendency toward violence. Anyone in such a situation could resort to force, theft, or betrayal. There are unbidden feelings of disgust, not only at the ugly conditions but even at other prisoners. The most hardened prisoner may explode at an insignificant event, not about cruelty or pain, but usually about an insult. As we dehumanize, we insult a man's humanity -- we leave prisoners with no will to behave like citizens. The more we pile on insults like chain gangs and stun belts, dehumanization and shame in the name of punishment and control, the less chance there is for the healing and restorative process of confession, penance , and forgiveness. The reaction to the insult is violence or sometimes worse, an internalization of hatred that festers forever.

If there is one area of agreement on both sides of the prison walls it is that the way we sentence people in our Federal Courts is a mess. In 1987, Congress implemented an experiment called the Federal Sentencing Guidelines. The guidelines were to bring certainty, fairness and equality to sentencing in federal courts. Its enumerated goals were just punishment, deterrence, incapacitation, and rehabilitation. Judges, probation officers, wardens as well as inmates know that the experiment is not meeting Congress's goals. In every survey of Federal judges, 70 to 80 percent favor major changes in the guidelines. As a matter of reality, rehabilitation is no longer a part of our justice system -- no longer a part of the BOP's mission. The guidelines experiment most lasting accomplishment has been to mete out long, harsh sentences to non-violent offenders. Over and over I encountered inmates who were in prison for long periods of time who should have been in their communities supporting their families, paying taxes, paying restitution to their victims, doing community service, etc. I saw first-hand how the sentencing guidelines have shifted power to prosecutors, who can now use informants and "downward departure" rewards to increase their conviction "numbers." Many times the kingpin or ringleader gets the lightest sentence, while the underling used by the boss receive the longer sentences.
One prisoner I knew escaped the coal mines of West Virginia by selling cocaine to " lawyers and doctors." When one lawyer got caught, he was only too happy to escape prison by "giving up" his source. My friend is now serving close to ten years in prison. This man is bright, articulate and engaging . He wants to go straight, but he has few skills, and readily admits that he will violate the law again if the only alternative is returning to poverty. Upon release he will face the stigma of being a felon, with no education, no job skills and no support system designed to help him get on his feet.

It is not just the poor, the unskilled, and the poorly educated that leave prison with a lasting stigma and no good way to re-engage with society. Ask the Savings & Loan president who now sacks groceries, the corporate executive bussing tables at a Mexican restaurant, or the bank president who is still working at a dry cleaners after being out for over a year. These are skilled, intelligent men, who face an uphill battle. We seemed to have forgotten the concept of paying one's debt to society and the concept of forgiveness. For example, just this week, President Clinton recently announced a new initiative for weeding out health care fraud. A cornerstone of this proposal is to prohibit former felons from becoming health care providers for Medicare and Medicaid. Are we really going to exclude all felons from working in the health care industry? Will people coming out of prison for non-violent crimes be prevented from becoming doctors, nurses, technicians, physical therapists, etc.? Where is the nexus between a young man or woman becoming addicted to drugs and health care fraud? We should help people coming out of prison to become law abiding taxpayers. Offenders can and do change -- Once a criminal should not mean always a criminal. Yet time after time our leaders get tough on crime by further punishing those who are trying to turn their life around. Do we really intend to create a permanent sub-class? If our leaders do, they should be aware that over one million people a year come out of our prisons and jails. That's the entire population of Memphis coming out of prisons and jails every year.
Are there solutions to this destructive process ? Yes. We must admit our mistakes and change course. Are there signs of hope? Yes. In Arizona much attention has been given to the Medical Marijuana initiative. What is hardly noticed is the fact that the initiative also prohibits the incarceration of first and second time non-violent drug offenders and offers treatment and rehabilitation instead. As usual, the people are ahead of the politicians.

Congress should look at its sentencing experiment and draw the logical conclusion -- it's been a failure. The Coalition for Federal Sentencing Reform was recently established as a project by the National Center on Institutions and Alternatives. Its mission is to encourage Congress to review its experiment and reform federal sentencing. The Coalition will make an independent assessment of federal sentencing practices -- including whether Congress's enumerated goals are being met -- just punishment, deterrence, incapacitation and rehabilitation. The coalition hopes to broaden the debate beyond the legal and criminal justice community to all those affected by crime and by federal fiscal priorities. The United States has prided itself on being an advanced, progressive and humane society -- we would never cane anyone. Congress mandated the U.S. Sentencing Commission to reflect advances in the knowledge of human behavior as they relate to the criminal justice system. The coalition will assess whether this mandate has been fulfilled and provide guidance on how this aspiration might be achieved.

We must put more money into education and training in prisons -- it will save money in the long run. The one creative program at Cumberland was the Drug and Alcohol abuse program. Inmates who successfully complete the program can receive up to a year off their sentence. It was tough, well planned, and I suspect it will be extremely successful. Last year, Congress, once again fearful of being labeled soft on crime and criminals, introduced legislation to eliminate this program. Thank God it failed! We should offer similar incentives for the successful completion of both GED, college equivalency, and job training programs. Alternatives to incarceration such as community service sentences for nonviolent offenders work. Community service sentences are often harder than employment in prison , cost substantially less, and keep families intact. Tasks can include cleaning up streets and public parks, work in the homes for the elderly ,etc. Doctors could be providing treatment in clinics for the poor, not sitting in a cell. Lawyers could be serving the elderly or the disadvantaged, etc. not writing petitions in prison libraries. Building housing for the poor, fixing potholes, cleaning up inner city parks -- there are thousands of projects that could be done by non-violent offenders while on home confinement or living in halfway houses. In Cumberland five inmates were allowed to work in the community under supervision of a local church. They repaired abandoned housing that was then rented to the elderly. The community benefited, they were not at risk, and the inmates got a huge sense of accomplishment and a feeling of giving something back.

Prison helped me. During those long days and lonely nights, I was forced to confront my crime, my mistakes and my weaknesses. I was fortunate to have a strong family and a loving wife that stayed with me. I also have a good education and the belief in myself that I have a future. My situation was unique. I constantly received mail from friends, talked to friends on the phone, and enjoyed their frequent visits. I was so lucky to have friends who still cared about me and my family and who allowed me to vent through the many days of intense loneliness and frustration. Most who enter prison lose their family, have no education, and because of harsh long sentences for non-violent crimes, cannot see a future. They receive no mail, no visits and have no one to call. Times crawls in atmosphere of little hope. If they were given an education and skills, given a sentence that gives them some hope for the future, and in many cases allowed to stay connected to their families, then the restorative aspects of penance could have a chance to work. Before Congress now are proposals to incarcerate 14 year old juveniles as adults for mandatory sentences of 10 years for non-violent crimes. This is heading in the wrong direction. These children will be lost forever.

For me the most difficult part of prison was the separation from my wife and children. Family destruction is an every day consequence for prisoners. Marriages dissolve, children are abandoned, and the destructive cycle only broadens the crime problem. Every visit I received was followed by a period of anxiety that my wife and friends would make it home safely. I knew that if anyone close to me was injured, sick or in the hospital I could not be with them. Many inmates whose parents, brothers or sisters died while they were in prison were tormented because they could not even attend the funeral. Some even severed all emotional ties with home, dealing in a perverse way with their loneliness and emotional pain. Home confinement, home monitoring, and halfway houses, place similar restraints on movement as prison, but give a greater opportunity for marriages and families to stay intact, while providing a substantial savings to the taxpayers.

On its 50th anniversary we need a Marshall plan for our own citizens leaving prison. Aid for education, job training and incentives to hire former prisoners will reap not only short term rewards but will begin to reduce and reverse this growing trend to create a permanent underclass.

Bottom line -- we've got to stop the rhetoric and simply become more humane. I agree that criminals should be punished, but one size doesn't fit all. Carefully considered punishment can be restorative, not debilitating. In addition to punishment we should also offer compassion, forgiveness and chance for true freedom. If we begin to steer a new course we will reduce the chance of creating a permanent caste of untouchables who are bitter, resentful, and vengeful. If we must fight a war against our own citizens let us use surgical strikes not nuclear weapons. Let us not make the same mistakes of Civil War reconstruction and World War I reparations. We have a foreign policy that promotes the rebuilding and restoration of our former enemies . We should not have a domestic policy of holding down a class of our own citizens under an iron boot.

In prison I had many discussions about what it was like for someone like me to finally experience prison and how I would have done my job differently. A young man who worked with me in the kitchen asked me before my release " Big easy don't forget us. " I said something like " Of course I won't. I'll write, I'll keep in touch." He said, " No, you do not understand. Don't forget us! Tell them what you saw and heard, maybe, if you tell them, they will listen." I promised I would not forget. I cannot forget because I have now seen the wind of criminal injustice fanning the same coals of racism and resentment I saw as a boy.