The United States incarcerates a greater percentage of its population than any other country in the world. Courts are substantially more likely to sentence African American people to prison than white people in similar circumstances, and African American people in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.
This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing. In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist. As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether. As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons—not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole. Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African Americans and other people of color in significant and damaging ways.
In examining how defense attorneys should invoke conditions of confinement at sentencing, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives. Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions. Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.
This little book is a voice from the prison-house, unfolding deeds of darkness which are there perpetrated.
~Preface, Narrative of Williams Wells Brown, A Fugitive Slave
Whatever the purpose of punishment may be in the United States, our criminal justice system seeks to achieve that purpose through incarceration. After more than four decades of escalating reliance on imprisonment, the U.S. now has the highest incarceration rate in the world. 1 Over two million people,2disproportionately African-American and Latino,3are currently held in our nation’s jails and prisons. Yet despite our system’s dependence on incarceration, the conditions of the confinement imposed—which can include violence from staff and other prisoners, lack of medical and mental health care, contaminated food or water, and a host of other ills—are largely invisible. Even when judges sentence individuals to terms of incarceration, they generally do not mention the conditions the convicted person is likely to encounter in prison or jail, the role that those conditions will play in furthering the purported aims of punishment, or the racial implications of differential exposure to harsh conditions of confinement.
This Article advocates for criminal defense lawyers to explicitly address conditions of confinement at sentencing.4 By doing so, a criminal defense lawyer has the opportunity to play two interconnected roles: that of advocate and abolitionist. While creating a compelling narrative of the client as an individual, a lawyer can ask the court to consider the implications of exposing that particular individual to the hardships endemic to the prison or jail system to which he or she would be confined.5Defense lawyers can also raise conditions of confinement as abolitionists, meaning, in this context, actors who seek to disrupt and dismantle a system of incarceration that disproportionately affects African American and Latino people in significant and damaging ways.6 As abolitionists, defense counsel can educate decision-makers about conditions of confinement that run counter to the values of communities and of the justice system in an effort to both avoid prison for the individual before the court and eradicate the United States’ systemic reliance on incarceration altogether. 7
In examining whether and when defense attorneys ought to raise conditions of confinement, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives. While the metaphor is imperfect, there are lessons to be drawn from slave narratives, which “broke in upon the convenient ignorance of the Northern white masses”8and sought to expose the unknown and hidden conditions of slavery while also humanizing the enslaved people subjected to those conditions.9 Incorporating slave narratives into the conversation about sentencing advocacy allows reflection on the role of storytelling in litigation and social movements. It also raises important questions about who tells these stories and which stories are told, in the context of systems of control with deep disparate impacts based on race.
Part II briefly reviews the contours of mass incarceration and outlines the disparate impact that the extraordinary growth of imprisonment has had on people of color in the United States. Part III then addresses the factors courts can consider at sentencing and the discretion that judges may exercise in imposing sentences. This Part notes that sentencing courts rarely address the conditions of confinement in the prisons and jails where incarcerated persons will live out their sentences and suggests that this omission has racial implications. Part IV discusses the role that defense lawyers can play in raising conditions of confinement at sentencing and argues that doing so allows these attorneys to advocate for their individual clients while implicitly or explicitly drawing attention to questions of race and mass incarceration that are often unacknowledged in the courtroom. In so arguing, this Part reflects upon the history and structure of Civil War-era slave narratives as tools of the abolitionist movement and draws lessons from those narratives that have implications for modern-day sentencing advocacy in an era of mass incarceration.
II. MASS INCARCERATION AND RACE
‘Mass incarceration’ is significant not only because of the staggering numbers of people sentenced to prisons and jails in the United States, but also because African Americans in particular represent a grossly disproportionate percentage of the incarcerated population.10While it can be difficult to determine the number of people who are incarcerated at a given time in this country with precision—the population of local jails is particularly variable.11—a recent study concluded that more than 2.3 million people were held in well over 6,000 U.S. incarceration facilities in 2016.12 The United States, as is well known and widely documented, incarcerates a greater percentage of its population than any other country in the world.13
Underlying and influencing all aspects of our criminal justice system is its vastly disparate impact, from arrest to incarceration, on African American as well as Latino people.14 There is a dramatic racial disparity15 in the United States’ criminal justice system, where African American people are incarcerated at 5.1 times the rate of whites, and Latino people at 1.4 times the rate of whites at the state level.16In federal prisons, African American people constitute 38% of the incarcerated population.17—a percentage that is almost triple the proportion of African American people in the general population. 18
Multiple actors have analyzed the social and political factors that have given rise to the distorted racial impact in our system of justice.19Many of these analyses have focused on the law enforcement policies and laws arising from the so-called War on Drugs, which has been described as an “ostensibly race-neutral effort” that in actuality has been “waged primarily against black Americans.”20But drug policies alone do not fully explain mass incarceration, as evidenced by the large number of people incarcerated for non-drug offenses.21 The growth of our prison population and the disproportionate percentage of people of color within it has also been attributed to implicit and explicit racial bias at all levels of the justice system.22This bias is encompassed and reflected in increased numbers of sentencing laws carrying mandatory minimum sentences;23the lengthening of prison sentences and increased imposition of life sentences;24 the massive influence of plea bargaining in our system of justice (itself impacted by questions of prosecutorial bias);25an increase in the number of felony charges filed by prosecutors;26and policing policies that target communities of color,27among a host of other factors.
While meaningful reform is a massive undertaking,28one that requires effort and change at multiple levels,29 any opportunity to address these issues during the course of a criminal case is arguably an opportunity to contribute to the dismantling of mass incarceration. Sentencing hearings are one opportunity for lawyers to craft an emotionally and factually persuasive narrative on behalf of their clients.30Because sentencing hearings cover a wide range of topics and are based on narratives about the individual about to be sentenced, these hearings provide a particularly powerful moment within which to consider the complicated and often racially-influenced questions of who our system incarcerates and why.
III. SENTENCING, RACE, AND THE CONDITIONS OF THE CONFINED
A. The Nature of Sentencing and Its Racially Disparate Outcomes
The racial disparities seen throughout the criminal justice system are also present at sentencing. While “in a fair, equitable, and non-discriminatory justice system, sanctions should be imposed equally on offending populations,”31 the U.S. criminal justice system does not abide by this principle. Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances.32 Federal courts sentence African American men to longer prison sentences than white men arrested for the same offenses and with similar criminal backgrounds, and African American people constitute a disproportionate percentage of prisoners serving life sentences. 33
Because a vast percentage of convictions in both state and federal courts are obtained through guilty pleas,34 sentencing hearings play a particularly pivotal role in the criminal justice system and allow courts to learn and consider more about the person being sentenced. A sentencing hearing often affords the court the best opportunity to carefully consider the case and the defendant charged,35 and sometimes provides the only moment of public advocacy by the defense on behalf of the accused.36 The rules of evidence do not apply at sentencing,37 and thus courts may rely on hearsay and other information that would otherwise be constrained or prohibited by evidentiary considerations. While the federal court system and the states each have their own sentencing laws or guidelines, under all of these systems courts can consider a wide range of material when reaching a sentencing decision, including the defendant’s prior convictions, prior arrests, military service, community support, and work history.38Courts are required by statute to focus on ostensibly unbiased aggravating and mitigating sentencing factors39and, increasingly, rely on ‘evidence-based’ instruments designed to determine if the defendant is prone to recidivate or poses a continuing threat to society. 40
Despite this flexibility in sentencing hearings, several factors largely beyond the control of judges can limit the sentences they are able to impose. Decisions that prosecutors have already made regarding the severity of charges brought against the defendant,41 the application of sentencing enhancements,42and stipulations in plea agreements regarding the type and duration of punishment that will be imposed can severely reduce judicial discretion at the sentencing hearing.43 The crimes that the defendant was convicted of at trial, or, more commonly, to which the defendant pled guilty, may carry sentences mandated by statute, including specific terms of prison or jail.44
Nevertheless, courts do retain significant amounts of autonomy over many aspects of the sentences they impose. Although there was a radical swing away from the latitude in sentencing traditionally allocated to courts beginning in the 1970s,45 that judicial discretion has been at least partially restored in recent years. In United States v. Booker, the Supreme Court increased judicial independence at sentencing by making the federal sentencing guidelines discretionary rather than mandatory.46 There has also been a movement away from some other laws, such as mandatory minimums for drug offenses, that have limited sentencing options at both the state and federal levels.47 Judges can often choose whether to send a person to prison or not, and, if the court chooses to order a sentence to incarceration, they can determine, albeit often within a statutorily-proscribed range of years, how long that sentence should be.48
Judges have not typically used the autonomy and flexibility of sentencing and sentencing hearings to consider or address broader questions of mass incarceration or racial inequities.49Instead, sentencing hearings are generally focused on the specifics of the individual defendant, crime, and victim.50 Indeed, courts explicitly strive to be race-neutral in the imposition of punishment on individual defendants. 51 In doing so, courts lose an opportunity to address the racial disparities in the criminal justice system—and may even contribute to them, given critiques that purportedly neutral mitigating and aggravating factors play a role in perpetuating racial disparities in sentencing.52
B. The Racial Implications of Disregarding Conditions of Confinement at Sentencing
What is rarely addressed at sentencing, even as judges and the attorneys practicing before them bear witness to the vast numbers of people incarcerated each year, are the conditions that incarcerated people are subjected to in our nation’s prisons and jails.53While courts may recommend that the defendant receive mental health treatment or that he or she enter into a particular program available in the prison system, in general courts do not focus on the conditions that a convicted person will experience in his or her term of imprisonment or the adequacy of these recommended programs.54 At sentencing, courts rarely consider whether the jurisdiction’s prisons or jails are adequately staffed; whether prisoners within them commit suicide at high rates; whether medical care and mental health treatment is available or of sufficient quality; whether prisoners are frequently placed into solitary confinement, for how long, and for what reasons; whether a prisoner is likely to be sexually and/or physically assaulted; or, indeed, any aspect of the conditions that the convicted person may or will be subjected to while he or she is incarcerated.
The lack of attention to conditions of confinement at sentencing has a variety of possible explanations. While criminal courts are concerned about cruel and unusual punishment, the focus at sentencing is generally on the proportionality of sentence length, rather than contemplation of future suffering that the defendant may or may not endure in prison.55Further, while some state statutes and guidelines direct courts to consider whether the defendant would be unduly harmed by prison or jail conditions as a mitigating factor, such consideration is not universally required.56Criminal courts have little power to control prison conditions in any event,57and may also be unwilling to imagine theoretical future hardships that have not yet come to pass while making a sentencing determination. It is also possible that judges and lawyers in criminal courts, who are extremely unlikely to have been incarcerated themselves, are simply uninformed about the conditions of confinement in correctional facilities. As discussed further in Part IV below, there is a great deal of secrecy about what happens in our prisons and jails, which are highly restricted facilities, often located in remote areas with heavy limitations placed on prisoner communication, generally operated without neutral oversight bodies, and protected by laws that hamper prisoner litigation efforts and defer to prison officials. For all these reasons, it is not easy to know what takes place within prison walls.
There is evidence that courts have at least some knowledge, or at least assumptions, about the conditions in jails and prisons and that this information is used to justify giving non-carceral sentences in serious cases. Judges have at times even made explicit reference to the ways that conditions of confinement are shaping their decisions. In 2015, a judge in New Mexico informed an African American man before her for sentencing on a burglary conviction that, should he be sent to prison, he would be “beat up,” “raped every day,” and be forced to become “somebody’s bitch.”58A sentence to prison rather than probation, the court further opined, would cause the defendant “trauma” and “destroy [his] life.”59In 2016, in a case that garnered intense negative attention for its perceived racial and gender bias, a California judge sentenced a young white man convicted of sexual assault to jail for six months, justifying the imposition of the relatively short jail sentence despite the seriousness of the crime by stating that a prison sentence would “have a severe impact on him.”60That same year, a judge in Colorado sentenced a young white man convicted of sexual assault to a jail sentence, followed by a lengthy term of probation, after having contacted prison and jail officials to determine what treatment would be available to the defendant in confinement and expressing concern that he would not be provided an adequate opportunity for rehabilitation if incarcerated.61
There is also evidence that judges see poor conditions of confinement as positive and a reason to impose a carceral sentence. Advocates and academics have noted our cultural celebration of prison violence, particularly sexual violence, as vindication fit for particularly disturbing crimes.62The United States prison system has ballooned under ‘tough on crime’ policies that require prisons to be harsh and even brutal places in order, at least theoretically, for them to perform their punitive function.63Judges are bound to uphold the constitutional prohibition against cruel and unusual punishment, but they are not immune from the cultural impulse that finds satisfaction in the concept of ‘prison justice.’64
These examples demonstrate that prison conditions may influence judicial sentencing determinations, but that role remains largely unarticulated at the vast majority of sentencing proceedings. Silence about conditions of confinement at sentencing has troubling implications in the era of mass incarceration, in which people of color have borne the brunt of rising rates of imprisonment and thus are disproportionately exposed to the conditions of prisons and jails. Analysts of the American criminal justice system have argued that the disparate racial impact of mass incarceration is driven by a societal conviction that African American and Latino people are more criminally inclined and more dangerous than white people and that they therefore belong in prison more than white people do.65 Because of the cultural narrative that African American and Latino people belong in prison,66 courts are not called upon to interrogate the conditions of confinement and ask whether the defendant ought to be exposed to them. If such an inquiry is at bottom a determination of whether a particular person belongs in prison—whether prison will “destroy his life” and whether or not that matters—societal understandings about race and crime that underlie mass incarceration have already answered that question: such exposure is simply what people of color deserve because of who they are.
The pervasive silence about prison conditions at sentencing is concerning, because it reflects larger systemic silence about the racial inequities and biases that have contributed to the disparity in incarceration rates. If prison conditions are invisible and unaddressed at sentencing, the court and other actors in the justice system can more easily avoid explicit consideration of the sentencing laws and norms, along with cultural and individual biases, that contribute to the assumption that African American and Latino people are more deserving of incarceration and the conditions that accompany it.
IV. DEFENSE LAWYERS AS ADVOCATES AND ABOLITIONISTS
While criminal defense lawyers serve individual clients, their role offers particular opportunities and incentives to address larger questions of racial injustice and other inequities in the criminal justice system.67 Criminal defense lawyers, according to the American Bar Association’s Criminal Justice Standard for the Defense Function, have a duty both to act as their client’s “counselor and advocate with courage and devotion” and “to seek to reform and improve the administration of criminal justice.”68Scholars have noted that, in representing an individual charged with a crime, the criminal defense lawyer also stands up against unconstitutional and unethical behavior by police officers, prosecutors, and judges.69Defense lawyers have an opportunity to address racial injustices as well. Although defense lawyers cannot “use the client as a vehicle to effect social change if the client does not share that goal,”70 a client-centered defense lawyer has multiple opportunities, albeit potentially risky ones, to explicitly raise questions of racial discrimination and bias throughout the course of a criminal case.71Indeed, the interconnection between race and the enforcement of the criminal law is so complex and entrenched that “there may well be racial significance in every defense theory, every defense strategy, every defense.”72
Sentencing provides a particularly rich opportunity for defense lawyers to advocate for individual clients while addressing larger questions of social and racial injustice. At sentencing, a powerful narrative on the client’s behalf can impact the court’s decision-making in significant ways.73 By drawing on the powerful storytelling traditions common to all societies, defense lawyers have an opportunity to craft an emotionally and factually persuasive narrative at sentencing.74 In so doing, defense lawyers can seek to disrupt the “cookie cutter calculations” of routine sentencing hearings and center the hearing on their client’s story, so that “not only should judges agonize over the proper sentence in each case, but they must truly feel the client’s pain as they do so.”75 Although many defense lawyers labor under the heavy caseloads endemic to public defender’s offices and suffer from insufficient resources,76all defense attorneys should nevertheless undertake the significant effort required to develop emotionally and factually persuasive sentencing narratives.77 This effort requires lawyers to understand and incorporate the facts of the offense; its impact on society and the complaining witness, if one exists; and the role their client played, if any, within it.78 Defense lawyers must gather information about the client’s character, work history, mental and physical health, educational struggles and achievements, potential for a positive and law-abiding future, and a host of other facts in order to credibly advance the client’s sentencing goals79. In so doing, criminal defense lawyers must be mindful of their own biases and prejudices, while also seeking to comprehend, and perhaps articulate to the court, the racial and economic inequities as well as cultural influences that may have impacted their client’s life. This effort can provide the court with information that acts to center and humanize the convicted person and disrupt judicial inclinations, be they implicit or overt, to base sentences on conclusions derived from bias.80
A. Raising Incarceration Conditions as an Advocacy Tool
Defense lawyers have been encouraged to incorporate information about the punishment that may be imposed upon their clients, including the collateral consequences of convictions, into their sentencing advocacy.81 Despite this increased attention to sentencing consequences, the jail and prison conditions to which the person would be exposed if incarcerated remain largely unaddressed. Although it can be challenging to gather such information—this Article will offer thoughts about how to do so in Part IV—the story told on the client’s behalf at sentencing is arguably incomplete if it doesn’t incorporate what might happen to that person in prison or jail. By incorporating information about conditions of confinement into sentencing narratives, a criminal defense lawyer can argue for shorter sentences or against imprisonment altogether, particularly if he or she can help courts connect concerns about such conditions to the factors and goals that guide judicial decision-making at sentencing.
Defense lawyers can introduce data about prison and jail conditions that could help the court understand systemic issues in incarceration settings and the likelihood that the defendant would be exposed to them. Information about the number of people who have died in custody—in Texas, for example, more than 7,000 people died in jails and prisons between 2005 and 201682—can paint a picture about the dangers of incarceration. Information about the rate of suicide and attempted suicide in the incarcerated population may also be valuable for sentencing courts to understand83.In Arizona’s prison system, for example, almost 500 prisoners made attempts to harm or kill themselves in 2015.84Defense lawyers may wish to present information about violence in the prison system; in 2011–2012, approximately 4% of prisoners in state and federal prisons, and 3.2% of those in jails, reported having being sexually assaulted by other prisoners or members of the staff in the past twelve months.85Defense attorneys also could consider the benefits of presenting data about prison populations, rates of assault, understaffing, or the number of medical personnel in a particular facility.86
While data are a helpful resource, attorneys can also think broadly about the incarceration experience in order to highlight diverse aspects of imprisonment beyond statistical evidence. Defense lawyers might highlight possible dangers involved in transporting prisoners to prison, journeys in which incarcerated people have spent days traveling in the back of enclosed vans, without access to bathrooms or medical care, and have died or been seriously injured as a result.87Defense lawyers might inform the court about issues with polluted water,88contaminated food,89 excessive heat or cold,90 or the fact that local jails or prisons are built on property that is environmentally unsafe.91In juvenile settings, lawyers may also wish to gather information about the schooling provided in detention, including the curriculum and teacher training and turnover; in adult facilities, lawyers might find it useful to obtain information about the availability of educational or job training programs.92Evidence about inadequate medical care,93 violence against those with mental illnesses,94the use of solitary confinement and the mental and physical harms associated with such use,95 the length of waiting lists for treatment programs, and the treatment of disabled prisoners96might help advance the client’s sentencing goals in some cases.
Defense lawyers could also contemplate providing the court with information about troubling, sometimes even harrowing, individual events that have occurred in local jails and prisons. By discussing a brutal attack by a correctional officer or prisoner or an incident where a prisoner’s health needs were ignored, lawyers can argue that these individual occurrences are indicative of systemic issues within the correctional facilities in which the defendant might be incarcerated. Unfortunately, examples are numerous. In Oregon, an injured man was left alone in a cell for hours without medical attention, despite multiple requests for help, leading to his death.97In California, three prison guards were convicted of murder for a brutal assault on a mentally ill prisoner while he screamed for his life; one of the officers involved in the incident had sent a series of texts that referred to prisoners being “twisted up,” “kicked,” “slapped,” and “beaten . . . down.”98 In Utah, at least 416 prisoners have died in custody since 2000, among them a woman who died from heavy internal bleeding99 and another who hanged herself after allegedly being denied her mental health medications, neither of whom received medical attention.100 In Oklahoma, a paralyzed man was denied medical attention for over fifty hours as he lay on the floor of a cell, where he eventually died.101
Not every prisoner is exposed to such extreme conditions, and certainly some prisons and jails have introduced programs and policies managed by competent professionals. Some have engaged in important reform efforts, such as reduction in reliance on solitary confinement or innovative programming.102 Defense attorneys may find it helpful to present information about those positive developments to the court as well, perhaps in arguments for a shorter sentence based on increased chances for rehabilitation due to participation in a productive program. Despite improvements in some prisons or throughout some systems, however, most prisoners can expect, at best, to serve their sentences in facilities that provide little to nothing in the way of meaningful educational or employment training, far from family and friends, with limited medical and mental health care.
These facts matter at sentencing, because they, along with length, define the contours of a sentence. Defense lawyers can link these conditions to the factors considered by courts when imposing sentences, including the purpose of sentencing,103 the characteristics of the defendant, and the kinds of sentences available. They may argue that such conditions make incarceration unnecessarily punitive for particularly vulnerable defendants; Professor E. Lea Johnston has addressed how such an argument might help convicted people with severe mental health concerns.104As other scholars have noted, they might also seek to persuade the court that severe sanctions make an incarceration sentence disproportionate to the crime for which the defendant was convicted,105or that the severity of the conditions merit a shorter incarceration sentence than the court might otherwise impose.106 Defense lawyers can demonstrate that both the defendant, and by extension, society, might be harmed by exposing the defendant to violence, lack of mental health care, or other deprivations of our penal institutions instead of allowing him or her to remain in the community. Courts may even be swayed against incarceration if, as some scholars have suggested, they look beyond the conditions of imprisonment itself to consider the larger community devastation brought about by mass incarceration.107 For all these reasons and more, defense lawyers may consider information about conditions of confinement to be a useful tool in the creation of effective sentencing narratives on behalf of their convicted clients.108
There are of course risks to raising conditions of confinement at sentencing, as discussed further in Part IV, and defense lawyers and their clients may therefore choose not to raise these concerns at sentences. But when prison and jail conditions are never addressed, an opportunity for effective sentencing advocacy may be lost. Without that information, the court cannot accurately weigh the sufficiency or severity of the punishment it seeks to impose. Further, silence in the sentencing court about conditions of confinement perpetuates secrecy surrounding institutions which disproportionately affect people of color. By shedding light on the nature of the institutions of mass incarceration, lawyers can participate in the effort to dismantle them. They can, in other words, act as both advocates and abolitionists.
B. Raising Incarceration Conditions as an Abolitionist Tool
Scholars and practitioners have called for a prison abolitionist movement. The concept of prison abolition can incorporate the goal of eradicating prisons entirely,109 but it also can reference a spectrum of responses to mass incarceration that include a “gradual project of decarceration” during which imprisonment is replaced by other sentencing options or reduced through a series of legal and social reforms.110 Many prison abolitionists make explicit connections between mass imprisonment and racial injustice as they seek to end or decrease our criminal justice system’s reliance on incarceration and its disparate impact on people of color.111By raising conditions of confinement at sentencing, defense lawyers can potentially strengthen their sentencing advocacy for their individual clients. By encouraging courts to avoid or limit incarceration sentences and by making hidden prison conditions visible, defense lawyers are also acting as agents of prison abolitionism.
Not everyone would agree that criminal defense lawyers should take on an abolitionist role in the course of representing a client. Some may argue that the obligation of defense counsel is solely to the individual client, or that such efforts are best left to activists outside the courtroom. Others might add that defense lawyers already have a heavy burden in zealously representing an individual against the state without adding to it the onus of larger social and criminal justice reform. Because the majority of defense lawyers have not been incarcerated and are not people of color, others might suggest that they may be ill-equipped to effectively identify and address systemic racial inequities in our systems of imprisonment. Some may feel that it would be more just for others in the system—lawmakers, judges, and prosecutors among them112—to bear responsibility for dismantling the system of mass incarceration that they helped create.
These viewpoints are worth consideration, and certainly defense lawyers alone cannot bring an end to the systemic reliance on imprisonment. But because defense lawyers are in regular contact with incarcerated and formerly incarcerated people, they are particularly well-positioned to understand the impact of mass incarceration on imprisoned people and the larger community, the disproportionate nature of that impact on people of color, and the realities of what happens to people incarcerated within our prisons and jails.113 Defense attorneys, scholars, and activists for criminal justice reform have explicitly called on defense lawyers to “confront and nam[e] race in the lawyering and criminal justice process, and recast racial identity and narrative in the defense of clients and communities of color.”114 In the words of one criminal defense leader, “I am convinced that through individual representation, our nation’s public defenders are the soldiers who are most likely to usher in a racially just system.”115 Despite these admonishments, defense lawyers should not raise conditions of confinement, at sentencing or elsewhere, if doing so runs a serious risk of harming their client, and in no case without obtaining his or her permission after a discussion of the potential risks and benefits of such a strategy. Errors of defense counsel are frequently visited upon the client.116But if raising conditions of confinement may assist in effective sentencing advocacy, and if the client consents, then defense lawyers ought to do so while also embracing the opportunity to engage in an abolitionist act.
1. Incarceration and Enslavement
Lawyers can learn lessons about storytelling at sentencing as an act of advocacy and as agent for social change by looking to narratives that advanced these goals in other contexts. Though certainly there are others,117slave narratives are one example of texts that sought to expose the nature of a hidden institution in order to dismantle it. ‘Slave narratives’ is a term used to describe written works published in the 18th and 19th centuries, authored by formerly enslaved people themselves or told to others, which usually describe the experiences the person endured in slavery and the author’s eventual escape to freedom.118 By telling their own life stories, authors of slave narratives sought to disrupt stereotypes of African people or people of African descent as lazy, untrustworthy, and dangerous by demonstrating that they themselves were resourceful, intelligent, and brave.119These authors also sought to bring about the abolition of slavery by revealing the cruelties and deprivations of an institution that was often hidden from public view.120Slave narratives are not a perfect analogy for sentencing advocacy by any means; the fact that defense lawyers are speaking on behalf of their clients at sentencing while the authors of slave narratives spoke for themselves is no small difference. But slave narratives do represent a storytelling tradition that served both to shed light on the conditions of an unjust, racialized institution and to humanize the people placed within it.
One does not need to equate slavery with incarceration in order to draw lessons about sentencing advocacy from the history and structure of slave narratives. Both critics of and participants in the criminal justice system have resisted comparisons between slavery (and Jim Crow laws) and imprisonment. Some find such comparisons to be overblown; there is never justification for slavery, after all, while even strong critics of mass incarceration might agree that some incarcerated people have committed acts that justify removal from society and other social consequences.121Others have critiqued such efforts as under-inclusive, as the analogy fails to incorporate the disproportionate impact of incarceration on people of color other than African Americans or the important fact that a significant (although not proportionate) percentage of incarcerated people are white.122 Many people maintain that prisoners are incarcerated because of poor choices they made, and those choices and their consequences cannot be analogized to the wholesale kidnapping and brutal enslavement of innocent people. And, as others have noted, while multiple generations of a family may experience incarceration, one is not born into incarceration as children of slaves were born into slavery.123Even for those who hold these views, slave narratives have lessons to teach about the power of storytelling as an act of advocacy and abolition.
But for those who see parallels between slavery and incarceration, that connection can provide a deeper resonance to the study of slave narratives. Indeed, some have referred to slave narratives as “a voice from the prison house,”124and texts written by prisoners about their incarceration experience have frequently been compared to slave narratives.125While slavery and incarceration are not identical institutions, scholars, attorneys, and others have persuasively argued that they both emerge from the same source and share a variety of features. For many, the pervasive racial disparity in our criminal justice system has compelled the conclusion that mass incarceration, like slavery and Jim Crow laws before it, is a racially-based system of social control. Professor Michelle Alexander has critiqued mass incarceration as a “racial caste system,” arguing that “[l]ike Jim Crow (and slavery), mass incarceration operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race.”126 More black adults are under correctional control now, as Professor Alexander reminds us, than were enslaved in 1850;127a larger portion of our African American population is incarcerated in the United States than at the height of apartheid in South Africa.128 Incarceration, as others have noted, defines the modern day United States just as slavery defined our nation before the Civil War; “[m]ass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850.”129
The conditions of incarceration share commonalities with slavery as well. Slavery was an institution that completely controlled the enslaved and profited from their bodies and unpaid labor.130 Many regions of the United States were financially dependent on slavery and thus highly resistant to abolitionist efforts.131 Those who owned and sold enslaved people were governed by some laws regarding their treatment, but it was extremely difficult for enslaved people to ask for or receive legal relief and thus those laws were generally unenforced.132 Enslaved people received inadequate or nonexistent medical care133and were forced to work in extremes of heat and cold and in other unpleasant or dangerous conditions.134 They had no freedom to choose the circumstances of their enslavement, including what they ate or drank,135where they lived, and whether or not they were sold away to others and separated from their families. Assaults, rapes, violence, and deprivation were a lived reality as well as an omnipresent threat to enslaved people.136
The realities of slavery were often invisible to or minimized by those who did not live in the areas where it was established and who did not participate in the enslavement industry in some way.137 This was true for a variety of reasons: not only were the majority of enslaved people in rural areas where their movements were tightly controlled, but also, many enslaved people were restricted—often through forced illiteracy—in their ability to communicate with each other or the larger world.138Further, slavery, with its attendant limitations, deprivations, and cruelties, was justified by a cultural narrative in which Black people were destined for enslavement by virtue of their own moral and physical inferiority, and had to be punished and controlled because of their innate unreliability and dangerousness.139According to this narrative, both slaves and society benefitted from slavery.140
Some of the features of slavery endure in our modern jails and prisons. While the Thirteenth Amendment abolished slavery and involuntary servitude, it provided an exception for “a punishment for crime whereof the party shall have been duly convicted.”141 This “punishment loophole” permits prisons to engage prisoners in unpaid or very low paid labor (sometimes for as low as 23 cents per hour142), often on behalf of a variety of for-profit industries, during the course of their incarceration.143Further, just as slave-holding regions were significantly dependent on slavery, today many regions of the United States, along with corporations involved in the prison industry, rely deeply on prisons.144The economic importance of the prison industry provides an incentive to keep prisons open and operating, which requires a steady rate of incarceration.145 Critics have argued that both prison labor and the growth of private prisons, which derive profits from incarcerating human beings, are evocative of enslavement.146
Prisons and jails share similarities with the conditions of enslavement beyond the commonality of economic influence and conscripted labor. Correctional institutions are places where acts of dominance, control, and even violence are performed on people—disproportionately people of color—who are largely without social or political power. Incarcerated people are frequently removed from their communities and placed in incarceration settings far from home and in predominately white areas.147Because the surrounding communities are disproportionately white, correctional staff are often predominantly white, in contrast to the prison population.148 Like sites of enslavement, prisons and jails are institutions that completely control the lives of the incarcerated, including their food, clothing, daily schedule, and the punishment imposed for rule-breaking. Violence and sexual assault in prisons, poor or nonexistent medical and mental health care, preventable deaths and injuries, and a host of other ills are unfortunately endemic to systems of incarceration in the United States.149The extent of these systemic issues, like the injustices of enslavement, are often hidden from or denied by the public at large.
Prison and jail conditions are unknown or ignored for many reasons. Because prisons are often located in rural areas,150 have limited public access,151and very little formal oversight,152what happens within them is largely observed only by the people who manage the institution and who benefit from its existence. Prisoners themselves cannot easily speak out about their experiences, as their mail and visits can be monitored,153phone calls are often prohibitively expensive and similarly monitored, and prisoners generally do not have access to tools such as social media.154
While there are constitutional and statutory mandates regarding the treatment of the incarcerated, it is extremely difficult for prisoners to enforce their legal rights, which contributes to the secrecy of conditions in jails and prisons. Laws such as the Prisoner Litigation Reform Act (PLRA) have established multiple barriers to bringing lawsuits in federal court.155 State laws have created similar hurdles. Because few lawyers represent prisoners, in part because the PLRA set limits on legal fees in prisoners’ rights cases, prisoners have difficulty finding attorneys to represent them and must proceed pro se.156Even when prisoners are able to access the courts and acquire counsel, it is difficult to meet the burdens required to prove their legal claims. The law sets high bars for establishing that prison officials have violated an inmate’s rights, and courts are highly deferential to prisons in a variety of legal contexts.157 The likelihood of legal success in prisoners’ rights lawsuits is slim.158Due to all these factors, many people in the United States, including decision-makers in the criminal justice system, have little understanding of the conditions of confinement in our prisons and jails.
Although there are many ways in which comparisons between slavery and incarceration falter, the two institutions share overarching features. In the United States today, we know that our criminal justice system disproportionately incarcerates people of color. As the system of mass incarceration has grown, the conditions in those prisons remain largely hidden and unmonitored and legal and other barriers prevent prisoners from communicating and limit their opportunities to redress violations of their constitutional and statutory rights. All this has been justified by a cultural narrative that people of color are somehow destined for, and perhaps even improved by, incarceration, and that incarcerated people must be controlled and punished because they are inherently untrustworthy and dangerous.159 This narrative is undeniably similar to the narrative justifying the centuries of enslavement in the United States. Lawyers seeking to abolish that system should thus consider the applicability of one of the tools of abolition to the modern age.
2. Slave Narratives as Instruments of Abolitionism
Slavery was first legalized in what is now the United States in 1641,160and abolished by the 13th Amendment in 1865.161Millions of African and African American people were enslaved over the course of that time; in 1860 alone, four million enslaved people lived in the United States.162Formerly enslaved people began to publish accounts of their experiences in slavery as early as the 1700s, and these accounts, which came to be known as slave narratives, continued to be published after the Civil War and into the twentieth century.163 These narratives took a variety of different forms, including pamphlets, letters published in newspapers, essays, and books,164 over the many decades in which they were produced.165They played different roles in different eras; before the 1800s, such narratives were often published as tales of adventure or Christian allegories166—there even existed a body of confessional tales told by enslaved people who had committed crimes.167
Beginning in the 1830s, however, members of the abolitionist movement in the United States encouraged formerly enslaved people to write about their experiences with the explicit goal of bringing an end to slavery.168For the approximately eighty abolitionist groups active in that time period, “first-hand, eyewitness accounts by former slaves constitute[d] the most damning indictment of slavery,”169 and they actively sought to make these accounts available to as wide an audience as possible. The 400 such narratives published between 1830 and 1863170 form a specific genre of American literature which, while diverse and complex, share commonalities of form and a shared abolitionist objective.171 Like some of the most popular earlier published works by former slaves,172 these texts were widely read and often financially successful. One of the most influential of the many works authored by former slaves, Narrative of the Life of Frederick Douglass, an American Slave, published in 1845, sold over 30,000 copies internationally and ran through multiple printings in the United States.173 Prominent abolitionist William Lloyd Garrison wrote that “it would be the purpose of anti-slavery societies ‘to scatter tracts, like rain-drops, over the land, on the subject of slavery.’”174
Slave narratives, along with lecture tours by formerly enslaved people, were embraced and promoted by the abolitionist movement, and white members of that movement heaped praise on the works for their powerful storytelling and their power in advancing the cause of equality and the eradication of slavery.175But this admiration and promotion, as many scholars have noted, was often intertwined with a desire to shape the narrative or provide a white endorsement of black voices in order to make them more palatable for a white audience. Slave narratives typically were prefaced by introductions by white people, who sought to verify the authenticity of the account, the integrity of the narrator, and the importance of the message to an audience that likely held doubts about all three.176In the preface to Narrative of the Life of Frederick Douglass, An American Slave, for example, William Lloyd Garrison explained that Douglass had written the narrative himself, “and, considering how long and dark was the career he had to run as a slave,—how few have been his opportunities to improve his mind since he broke his iron fetters,—it is, in my judgment, highly creditable to his head and heart.”177L. Maria Child begins the Preface to Harriet A. Jacob’s Incidents in the Life of a Slave Girl by writing “[t]he author of the following autobiography is personally known to me, and her conversation and manners inspire me with confidence” and goes on to explain to possibly skeptical readers why “a woman reared in Slavery should be able to write so well.”178 The role of white abolitionists in soliciting,179shaping,180and authenticating the works written by formerly enslaved people have caused some to describe slave narratives as a “black message inside a white envelope.”181
There was still power in that message.182 While slave narratives written in the three decades before the Civil War retained many of the aspects of earlier works by enslaved people—including the focus on the personal experience of the author, the terrible and adventurous aspects of their lives in slavery, and questions of faith and religious meaning—they now were engaged in, and instruments of, a consciously political movement. Authors of slave narratives in the pre-Civil War era told their personal story for two primary purposes, as described by the scholars who have examined the literary, political, and social importance of slave narratives. The first was to “inform their readers of the inhuman and immoral characteristics of slavery” with the goal of eradicating the institution, mindful always that they were attempting to communicate with an overwhelmingly white audience who often feared and reviled Black people.183 Slave narratives served, in other words, to “startle the ignorant.”184 The second was an attempt by the narrators to respond to white characterizations of African Americans and Africans as inferior and subhuman and “to defend their own humanity to their readers and to themselves,”185while also recognizing that their own personal experiences served to represent the conditions endured by many.186 The goal of slave narratives to expose the brutality of slavery was intertwined with the goal of humanizing the person upon whom those horrors had been inflicted; if the reader viewed the narrator with sympathy, then by extension his or her “suffering [was] more despicable.”187
While it is difficult to pull apart these strands, it may nevertheless be helpful to address the goals of slave narratives in turn, first focusing on the attention that authors of slave narratives gave to the conditions of slavery. Texts written by formerly enslaved people devoted a great deal of attention to the hardships endemic to enslavement. In so doing, these authors endeavored to alter a popular conception of slavery as beneficial for the enslaved, who were characterized in pro-slavery works as happy and cared for by benevolent slave owners.188 By discussing the miseries of slavery, authors of slave narratives also sought to appeal to the moral integrity of the white audience, with particular appeals to their Christian or patriotic ideals, in an effort to sway them toward the abolitionist viewpoint.189To these ends, as Professor Charles Nichols wrote decades ago,
The cruelties of the slave trade, the separation of families, the use of chains, manacles, handcuffs and bells, the frequency of kidnapping, the unremitting, unpaid labor of the masses of slaves, the rigorous controls of the system, the constant infliction of physical punishment, the denial of every opportunity for the Negro’s improvement—these aspects of slavery the narratives underscored.190
Mary Prince, in The History of Mary Prince, a West Indian Slave, made explicit the connection between the recounting of the conditions of slavery and the abolitionist goals of her narrative. She wrote that she was compelled to share the terrible nature of slavery with the people of England, where she then lived, for “I have been a slave—I have felt what a slave feels, and I know what a slave knows; and I would have all the good people in England to know it too, that they make break our chains, and set us free.”191
The body of antebellum slave narratives is large and cannot be reviewed in totality in this context, but a few excerpts from those narratives can illustrate how the authors discussed the nature of enslavement. In Narrative of Louis Asa-Asa, A Captured African, Louis Asa-Asa described the conditions of the slave ship in which he was transported after being kidnapped from his native country,192
The slaves we saw on board the ship were chained together by the legs below deck, so close they could not move. They were flogged very cruelly. . . . The place they were confined in below deck was so hot and nasty I could not bear to be in it. A great many of the slaves were ill, but they were not attended to.193
Henry Brown, famous for escaping slavery by shipping himself northward in a wooden box, wrote of the retaliation he witnessed against enslaved people following the Nat Turner rebellion in his Narrative of the Life of Henry Box Brown,194
Great numbers of the slaves were locked in the prison, and many were ‘half-hung’. . . that is, they were suspended to some limb of a tree, with a rope about their necks, so adjusted as not to quite strangle them, and then they were pelted by men and boys with rotten eggs.195
Mary Prince wrote of being continually stripped and beaten by the people that owned her and, among other horrors, of watching a pregnant woman with whom she was enslaved be struck so viciously that both she and unborn baby eventually died.196 William and Ellen Craft addressed the sexual victimization of enslaved women in Running a Thousand Miles for Freedom, Or, The Escape of William and Ellen Craft From Slavery, noting that slave owners frequently “compel [slave women] to submit to the greatest indignity.”197 Harriet Jacobs also addressed this topic, writing that “the slave girl is reared in an atmosphere of licentiousness and fear. The lash and the foul talk of her master and his sons are her teachers. . . . [R]esistance is hopeless.”198
Slave narratives commonly addressed the inadequate medical care,199clothing,200 and food201 given to enslaved people, and a great many of the texts address the powerful fear and grief associated with the routine separation of enslaved people from their families and friends.202 These texts also discussed the difficulties of achieving any redress for these injustices within the system of enslavement. Frederick Douglass recounted an assault he suffered at the hands of four white apprentices at a shipyard where he was hired out to work, after which he was advised by a lawyer that “he could do nothing in the case, unless some white man would come forward and testify. . . If I had been killed in the presence of a thousand colored people, their testimony combined would have been insufficient to have arrested one of the murderers.”203 In Narrative of the Life and Adventures of Henry Bibb, An American Slave, Henry Bibb recounts that “[i]t is useless for a poor helpless slave, to resist a white man in a slaveholding State. Public opinion and the law is against him; and resistance in many cases is death to the slave, while the law declares, that he shall submit or die.”204
In their narratives, enslaved people recounted the conditions of slavery that were cruel and dangerous as well as those that were demeaning—Henry Bibb, for example, recalls a slaveholder’s wife forcing him to fan her and scratch her feet while she napped.205 By doing so, authors of slave narratives appealed to the morality of white audiences by demonstrating that the conditions of enslavement were antithetical to Christian beliefs206 or to their patriotic207 or humanitarian values. They also appealed to white people’s self-interest, by focusing on the distorting impact that slavery had on the enslavers. Frederick Douglass described the transformation of a woman who was once humane—”[h]er face was made of heavenly smiles, and her voice of tranquil music”—but who turned cruel as a result of “the fatal poison of irresponsible power” inherent to owning slaves.208 Harriet Jacobs, recounting the brutal sexual exploitation of enslaved women, and some enslaved men, wrote, “I can testify, from my own experience and observation, that slavery is a curse to the whites and well as the blacks. It makes the white fathers cruel and sensual; the son violent and licentious; it contaminates the daughters, and makes the wives wretched.”209
By recounting the conditions of slavery, slave narratives attempted to reveal to white audiences the truths to which they may have been ignorant or apathetic: that slavery was not a benevolent institution that benefited Black people, but rather an institution of cruelty and deprivation at odds with the American values of liberty and humanitarianism.210 Slavery harmed everyone associated with it. The stories of former slaves thus served as tools of abolitionism, for, in the words of a Boston newspaper, “[a]rgument provokes argument, reason is met by sophistry; but narratives of slaves go right to the heart of men.”211
Authors of slave narratives also advanced the goals of abolitionism and the assertion of their own human dignity by the ways in which they depicted themselves in the accounts of their experiences in, and escape from, slavery. The authors defied depictions of African American people as lazy, immoral, and dangerous, by recounting instances in which they were heroic, intelligent, and wise. The protagonists of the slave narratives outsmarted slave owners, stood up to those who would harm them, and undertook great personal risks and hardships to seek freedom and a stable and productive life.212 When forced to perform acts that might be viewed by their white audiences as immoral or unethical—such as stealing213 or having a child out of wedlock with a white man214—the authors worked to contextualize those acts within the violence and powerlessness of enslavement. From the pictures chosen for the covers of these narratives,215 to the emphasis in the titles of many texts that the work was written by the former slave him- or herself,216to the incidents recounted in the tales themselves, the authors (and publishers) of slave narratives sought to break down the racist stereotypes that caused many to believe that blacks were “predestined to occupy their peculiar station in the scheme of things.”217
Scholars of slave narratives have emphasized that in many ways the authors of those narratives did not have control over their own stories or self-depictions. As noted above, these stories were shaped by the edits and coaching of white abolitionists, who focused on the interests and values of the white audience, and who viewed the narratives as more useful to the abolitionist movement if they served as symbolic representations of all enslaved people.218 Slave narratives were thus transformed into “generic evidence of any slave—they are finally stories of an institution, not lives.”219Within these controlled narratives, the depictions of enslaved people were nevertheless disruptive to the rhetoric of “slave apologists,”220who drew upon philosophical and pseudo-scientific rationales to justify the enslavement of African people.221 When Frederick Douglass recounted learning to read by befriending white children and asking them to teach him, a little at a time;222 when Henry Brown developed a plan to ship himself to freedom;223when William and Ellen Craft recounted the many ways in which they, with Ellen Craft disguised as a white man and William Craft as her slave, outwitted all those they encountered on their escape journey,224 these authors demonstrated wit, tenacity, and creativity in defiance of the racist cultural characterizations of people of African descent.225 The contrast between the humanity of the enslaved person and the depravities to which they were subjected was part of the power of slave narratives as tools of abolition.
3. Sentencing Advocacy as an Abolitionist Act
Slave narratives, tools of abolitionism in the antebellum years, carry lessons for criminal defense lawyers preparing sentencing arguments in an age of mass incarceration. Slave narratives demonstrate that storytelling that reveals both the humanity of an individual and the inhumanity of an institution to which that individual will be subjected can be an instrument of social change. Criminal defense lawyers have long been engaged in developing sentencing narratives designed to provide context for the criminal act at issue and to demonstrate the fullness of their clients’ lives, positive character, and future potential. In this way, sentencing advocacy on behalf of people of color already serves, like the positive portrayal of the protagonists of slave narratives, to disrupt cultural narratives that associate African American and Latino people with criminality and dangerousness. But slave narratives also help reveal what sentencing arguments often lack—the advocacy and abolitionist power of addressing the conditions of confinement to which the convicted person will be exposed if incarcerated. For criminal defense lawyers, standing with African American or Latino clients before an overwhelmingly white judiciary226and attempting to make a case against incarceration, the history and structure of slave narratives may help provide a new perspective on storytelling and sentencing.
While slave narratives focused on the harsh conditions of enslavement as a conscious abolitionist act, talking about conditions of confinement at sentencing is not necessarily, or at least explicitly, a conversation about race or mass incarceration. Defense lawyers may choose to address conditions of confinement, as discussed above, as an advocacy tool without explicit race or abolitionist objectives. Asking a court to consider the lack of mental health care in a jail when sentencing a mentally ill client, for example, may carry no obvious racial implications, nor might an argument that informed the court about a convicted person’s diabetes and contrasted his medical needs with the lack of adequate medical staffing in the state’s prison system. Information on the conditions of confinement may simply, for some lawyers, be a helpful tool in their goal to avoid or minimize a prison sentence for their client. Defense attorneys seeking these results on behalf of their clients are acting as zealous advocates, and possibly reducing prison populations, even if they have no broader social reform goal.
But modern defense lawyers are advocating for clients at sentencing in the context of mass incarceration. Because people of color are so disproportionately represented in the criminal justice system, including the populations of our prisons and jails, the narrative choices that defense lawyers make often have racial implications whether they are acknowledged or not. For lawyers who view sentencing as a moment of individual client advocacy and as an opportunity to address mass incarceration and its racial implications, slave narratives are a useful resource. From studying those narratives, defense lawyers can consider the persuasive power of juxtaposing the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons—not only to influence the court’s decision about the client’s sentence, but to impact the court’s view of our systems of incarceration. From slave narratives, defense attorneys can consider how discussions of the prison conditions might be augmented by appeals to our society’s core values of patriotism, humanitarianism, and even freedom, both to influence the sentence imposed and to highlight the ways in which our systems of incarceration distort those values and therefore harm us all. From slave narratives, defense lawyers can consider the power of revealing, to the court, the prosecutor, and the public, the hidden aspects of institutions that disproportionately impact people of color, and for which there is often no redress. In so doing, defense lawyers, taking a page from the work of formerly enslaved authors, can address and upset the cultural understanding of imprisonment as socially and individually beneficial, necessary, and deserved. These efforts may help achieve individual advocacy goals for the client, but they also may have an abolitionist agenda.
By raising conditions of confinement at sentencing, defense lawyers are asking courts to confront who we expose to severe conditions in our nation’s prisons and jails and why. Not only why this particular person—with his or her particular background, strengths, and unique needs—should be punished in this way, but also implicitly the larger question of why our system has grown to assume that African American and Latino people in particular are more deserving of incarceration and whatever hardships imprisonment entails. Raising conditions of confinement in a courtroom—the risk of violence, lack of educational opportunities, time in solitary confinement, high suicide rates, inadequate medical and mental health care—contributes to a larger understanding of the institutions into which our system of justice has sent so many. Like the descriptions of enslavement in slave narratives, discussions of conditions and confinement can serve to shock and inform participants in the justice system who have failed to formally consider prison conditions even as they participated in the growth of mass incarceration.
C. Challenges to Raising Conditions of Confinement at Sentencing
Even when raising conditions of confinement at sentencing advances advocacy and abolitionist goals, this decision nevertheless has complexities and possible drawbacks. Defense lawyers should, for example, consider the racial implications of storytelling on behalf of their clients. While convicted people have the right to speak on their own behalf at sentencing,227 defense attorneys often undertake the bulk of the advocacy. Particularly when, as is often the case, the defense lawyer is white and the client a person of color,228attorneys must be mindful of the racial implications of crafting their client’s story. A study of slave narratives provides cautionary lessons about the significance of narrative control. Even if a lawyer is sincere and client-centered, is he or she the modern day equivalent of the white abolitionists framing slave narratives with assurances that the author was trustworthy, respectable, and dignified? Is the white defense lawyer, like the white abolitionists of the antebellum period, assuming that racial problems are best solved by, in the phrase of Professor John Sekora, “white people talking to white people”?229It is important not to ignore that white abolitionists’ control of the structure and contents of slave narratives made many slave narratives crafted symbols rather than full expressions of enslaved people’s lived experiences.
This is not to say that defense lawyers should say nothing at sentencing, or fail to assist their clients in crafting a statement that will be most persuasive to the judge determining the sentence; defense attorneys must do such work unless it conflicts with a client’s goals or interests. Further, there may be reasons that a defense lawyer, rather than the client, should address conditions of confinement. Part of the persuasive power of slave narratives lay in the fact that they were personal accounts of the narrator’s own experiences; but a convicted person recounting what has happened to him or her in prison in the past is a strong reminder to the court that the defendant has been incarcerated before. Since recidivism is a common justification for the imposition of longer incarceration sentence, this approach carries possible negative consequences for the convicted person. For this reason it may be preferable for the lawyer to speak about incarceration conditions in a generalized way rather than focusing on what hardships her client previously experienced in prison or jail, although there may be times when it is appropriate and persuasive to focus on those conditions. Defense lawyers may be making client-centered, thoughtful choices when they speak at sentencing on behalf of their clients, whether or not the lawyer addresses conditions of confinement. The history of slave narratives nevertheless acts as a reminder that decisions about who controls and shapes a narrative are infused with racial meaning of which attorneys must be mindful.
The fundamental question of whether or not to raise conditions of confinement is complex as well. Even defense lawyers committed to advocacy and abolitionism may hesitate, for good reason, to raise conditions of confinement at sentencing. Incarceration is not meant to be pleasant, and courts are unlikely to be swayed by what they may perceive as the basic deprivations inherent to prison life. Further, some courts may dismiss information even about severe and troubling conditions as inaccurate or manipulative, or feel that a conclusion that the defendant will be exposed to them is too attenuated. Because judges and prosecutors have been routinely engaged in recommending or imposing incarceration sentences, they may react negatively if they perceive a defense lawyer’s discussion of conditions of confinement to be a personal attack upon their moral judgment or as a distraction from the question of the defendant’s criminal culpability. Certainly some judges will feel more allegiance to correctional staff in prisons and jails than they will to a person convicted of a crime, and thus be inclined to dismiss stories of prison hardships or mistreatment as overblown or justified by prisoner behavior. If the person being sentenced has been incarcerated before, discussing prison conditions may lead the judge or prosecutor to ask why, if the circumstances were so terrible, he or she committed an act that would lead to exposure to such conditions again. Defense lawyers may further worry that focusing on the potentially unpleasant or even terrifying aspects of imprisonment might shock or alarm their clients. Defense lawyers must weigh these competing concerns and consult with their clients before making the decision to discuss prison and jail conditions at sentencing.
A third, and significant, challenge for defense lawyers considering raising conditions of confinement is the question of how to obtain information about those conditions. The barriers to learning about what occurs inside our prisons and jails do not melt away simply because defense lawyers turn their attention to them. Fortunately, there are sources of information available. Some options that defense lawyers can consider are reports written about prisons and jails by advocacy groups, independent oversight bodies (if they exist), or accreditation agencies like the American Correctional Association. Prison and jails collect their own data about some aspects of incarceration, which may be obtained on their websites, as are the policies that govern the institution, most of which are available online. Open record act requests are a helpful resource, as are conversations with prisoners’ rights lawyers and organizations that devote significant attention to incarceration conditions.230
Legal documents, such as complaints and other briefing in prisoners’ rights cases, are another public source of information, along with media reports about individual incidents or investigative journalism about systemic issues. Organizations such as those that work on behalf of people with disabilities, LGBTQ people, or juveniles, often focus on the impact of incarceration on these groups, and their work might be informative to defense lawyers as well. Former (or even current) employees of correctional institutions may be willing to speak with defense counsel. Writings by formerly incarcerated people are a resource; the accounts of those who were incarcerated but then exonerated may have particular appeal, as skeptical audiences may find reports of their experiences more credible by virtue of their factual innocence.231 Finally, large organizations such as Public Defender’s Offices should not forget the resource they have in their own clientele, many of whom are held in jail pending the resolution of their cases, and many of whom will remain or become incarcerated after that resolution occurs. These offices might consider surveying these former clients, or training appellate lawyers, who represent convicted persons post-sentencing, to ask questions about conditions of confinement experienced by their incarcerated clients.
Collecting this information is no small task, and accuracy is important; defense lawyers will lose credibility and thus harm their clients if they report data or recount incidents that are not verifiably true. Public Defender’s Offices or defense bars might consider assigning particular lawyers or investigators to gather information about prison and jail conditions. This information could be accumulated in a searchable online database that lawyers could access in preparation for sentencing hearings or to assist in other aspects of their representation.
Defense lawyers should also consider the most effective ways to convey this information to the court; perhaps it could be incorporated in an advocacy letter submitted before the hearing, or in a report that is attached to that letter. Lawyers can consider the inclusion of photographs, video, media reports, or other data that can effectively bolster the arguments about conditions of confinement that the attorneys wish to make. Lawyers involved in bar associations or other membership organizations could consider training programs for participants in the system aimed at providing information about conditions of confinement in local prisons and jails. Defense attorneys can contemplate if and how to help their clients incorporate information about conditions of confinement into their own allocution at sentencing. These challenges are not insignificant, but, with attention, thoughtfulness, and diligence, they can be overcome.
At the conclusion of her book, Mary Prince wrote, “This is slavery. I tell it, to let . . . people know the truth,” so that they might fight for a changed world in which “slavery is done for evermore.”232While addressing prison conditions at sentencing will not end mass incarceration, just as slave narratives did not by themselves end slavery, there is significance in revealing the hidden reality of the system of incarceration that we as a nation have created. Slave narratives demonstrate that storytelling that invokes both the personal dignity and humanity of the individual and the brutality of the conditions to which they have been exposed can be a tool for personal autonomy and social change. Defense lawyers can draw upon the lessons of slave narratives as they seek to both advocate for their clients at sentencing and to dismantle the racialized system of mass incarceration.
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This article argues Allyene signals a shift in the availability of constitutional challenges in cases where sentencing factors are particularly important.