Act: Ask and answer. Part 5a: American Justice.

Setting:

The scope of this investigation has left inner space and returns to a world bigger than the ego of one author. The camera has zoomed out so far that individuals have disappeared completely, and artificial lines make nations out of landforms without asking anyone’s permission. Whether you envision them as a unified man, sitting at a lonely desk in a lonely office on a lonely Sunday, or as a collection of masks dancing around an Oak Tree in an Ozark or Ouachita forest, the voices do not stay silent.

EXAMINER

What is McPherson’s role in the history of criminal justice in Arkansas?

MR. PROVE-IT

This is a good question, but I think it is jumping ahead. It seems like it might be more useful to ask about the role of McPherson’s Unit in the history of criminal justice in America first and then talk about how the local issues of Arkansas impact it?

MR. WHINEY

Isn’t that interesting Mr. Prove-it, I had you figured as someone who’d suggest starting from the most immediate sense of location and then expand from there, moving from tangible to abstract construction of place.

MR. PROVE-IT

Well, in a world where theory was worth a damn, I could see myself making that argument.

I ain’t here to argue that the concrete facts about McPherson don’t start right here in Arkansas, but a lot of the bullshit ideas about what prisons are in the United States start with the assumption that a prison here is a prison anywhere in America, and that if you have seen one you have seen ’em all. I WAS…

(MR. PROVE-IT stresses the ‘was,’ dragging it out to draw attention to the fact that it lives in the past and not the present.)

…thinking, it might be better to address these larger-scale notions about what prisons are in America before we start discussing the specifics of McPherson’s Unit women’s correctional facility at 302 Corrections Way, Newport, Arkansas.

But now I think I’m gonna pull a page from your playbook and challenge the idea that either the national or local scale could be considered independently from each other in the first place.

Let’s see what happens if we try to look at both at the same time, Examiner?

EXAMINER

What is McPherson’s role in the history of criminal justice, in Arkansas/in America?

(Mr. PROVE-IT and MR. WHINEY, bot adopt more jubilant tones after EXAMINER’s response.)

MR. PROVE-IT

Well, that sounds a little funny, but let’s run with it.

MR. WHINEY

When it comes to thinking about carceral facilities as physical places existing on Planet Earth, on American soil, in communities inhabited by other Americans just like us…

(MR. WHINEY realizes that not even he is sure about which “us” he is talking about at this point and attempts to clarify.)

…just like the other people who are living in America…

(MR. WHINEY has dug himself a whole and decides to abandon it.)

….well, most people just choose not to think about prison in America, wouldn’t you say?

(not wait for MR. PROVE-IT to respond. MR. WHINEY continues)

The abstraction of prison is something that people have essentialized into the way they imagine society because they view it as the only possible deterrent to criminal behavior. It is essential that most people continue to imagine a theoretical construct instead of a real physical one when they think about prisons in the world, or else the fantasy, of who prisoners are, and how they deserve to be treated, might get complicated or even shattered.

For these people: people for whom prison is never likely to become a physical reality, it must feel necessary to envision an environment with inhumane conditions, because incarceration must appear to be a worse prospect than living in society generally. This makes thinking too closely about the conditions of incarcerated people an undesirable and unnecessary activity for anyone who feels served by the existing judicial, economic and political structures—

MR. PROVE-IT

—Thinking about prisons sucks.

MR. WHINEY

Yes indeed, thinking about prison “sucks.”

(MR. WHINEY stumbles over the pronunciation of the word, “sucks.”)

For many Americans, it is important to know that prisons, or correctional facilities, exists, but it is just as important that they exist as a dark myth that can serve to deter future criminal activity.

MR. PROVE-IT

Well, that brings up a question that makes a mess out’a all of this, doesn’t it?

What is the function of a prison in the first place? What do folks expect a place like McPherson’s Unit to do for the good of the rest of us?

Mr. Whiny, yr saying that purpose of prison is to prevent future criminal activity, but if that’s true, then why did people ever stop using harsher penalties for criminal activity? You know, penalties like cutting off the hands of thieves, or flogging masturbators? After all, the dead can’t commit no crime, right? When we think of “deterring factors,” modern prisons are a cake walk compared to the nightmares of the past.

MR. WHINEY

That last sentence is certainly true, but it also answers the questions it is trying to ask. One of the continuing struggles faced by institutions of criminal justice is that there seems to be a hard limit to how effective harsh penalties can be in deterring future crime.

The difference between no consequence and some consequence has proven historically measurable, but the point where harsher consequences equals fewer people engaging in criminal behavior appears more tied to people’s faith that the existing system of justice is fair and protects their personal interests, than it is to the severity of the consequences for breaking the law.

MR. PROVE-IT

That is a big claim there. Are you just making this up on the spot or are you basing this on some kind of research?

MR. WHINEY

(MR. WHINEY does not lose a beat.)

It is important to question the credibility of sources, especially when we are hearing arguments that support our own ideas about a subject.

But, in this instance, it doesn’t even matter if I can prove my claim or not, because the reason I began to elaborate upon this position in the first place is to establish it as a theoretical position that exists and exerts influence over the application of criminal justice in America.

Some people have believed it, and thus it has impacted the way criminal justice is administered. Other positions and theoretical frameworks have also played a role in shaping our justice system. Theories such as: prisons exist to punish bad people; or that prisons exist to disenfranchise and criminalize minority populations; or that prisons exist to rehabilitate and reeducate disposed members of society that have lacked access to more legitimate means of social integration as well.

Arguments have been made on behalf of all of these positions and all of them have held more or less sway at different times, but the actual physical buildings, made out of concrete and steel, do not just reform quickly because someone thinks it is a good idea.

MR. PROVE-IT

(growing skeptical and accusatory in his response.)

Are you going on another long-winded rant only to say that an actual prison, and the way it ends up running, is not based upon any one person’s ideas?

MR. WHINEY

Especially so in a pluralistic representative democracy.

MR. PROVE-IT

See, that sounds like you’re arguing for that muddled “post-modern complexity” crap that you accused me of when we were discussing whiteness.

Sure, there are different attitudes that have gone into the making of each prison in America, but there are no fucking prisons in America made out of gingerbread cookies and kindness. What is the point of discussing the function of prisons if we do not present specific answers and how they have or have not lived up to those ideals?

MR. WHINEY

Maybe there is none, and we probably should move in the direction of discussing specific examples soon enough, but it is important to keep in mind that even the best laid plans tend to bend and sway in the slow-moving world of public policy.

Whatever function incarceration is supposed to fulfill in society, it does so in the face of all the other collected expectations for it, even the ones that operate counter to that original purpose.

MR. PROVE-IT

Blah, blah, blah. Make this relevant to McPherson’s Unit.

MR. WHINEY

McPherson’s Unit is the long-term correctional facility for women in the State of Arkansas.

As the number of women incarcerated in the state continues to rise, McPherson’s Unit will go from being THE facility, to being just one of the facilities for the long-term housing of incarcerated women in the state. As that happens, it will be important that people keep questioning the value of putting an increasing number of women into long-term incarceration. We must pay attention to the women that we incarcerate and why we incarcerate them. Where do these women fit into our models of criminal justice? Who are we protecting by locking these women up the way that we do, and what ends do we hope to see in society by doing so?

MR. PROVE-IT

That is a good call to bring gender back into the conversation if we are going to get specific about McPherson’s Unit or women’s incarceration. There’s a lot of confusion outside of prisons about who the women who fill these prisons are. To answer that question for Arkansas, we can look the State’s Department of Corrections data for the fiscal year of 2015. According to the records they provided us, the top 10 current population offenses committed by women are:

1. Manufacturing/Delivering/Possession of Controlled Substances – 186 women, serving an average sentence of twelve years, three months, and eight days.

2. Murder, First-Degree – 95 women, serving an average sentence of thirty-five years, six months, and sixteen days.

3. Forgery – 70 women, serving an average sentence of seven years, one month and four days.

4. Robbery – 62 women, serving an average sentence of thirteen years, ten months and twenty-four days.

5. Aggravated Robbery – 48 women, serving an average sentence of twenty-six years, one month and sixteen days.

6. Theft of Property – 48 women, serving an average sentence of thirteen years, one month and zero days.

7. Failure to Appear – 45 women, serving an average sentence of seven years, seven months and ten days.

8. Residential Burglary – 40 women, serving an average sentence of eight years, nine months and four days.

9. Possession of Drug Paraphernalia for Meth or Cocaine – 36 women, serving an average sentence of five years, seven months and twenty days.

10. Battery, First-Degree – 32 women, serving an average sentence of eighteen years, three months and three days.

(MR. WHINEY takes a beat to collect his thoughts before responding.)

MR. WHINEY

That is a widely diverse list. How does it line up with your expectations for what women were being incarcerated for?

MR. PROVE-IT

Well, it’s no shocker that so many women are in prison in Arkansas for drug-related offenses. That goes along with what I hear the most those few times that prison statistics make the news.

I was a bit surprised to learn that the average sentence length for the most common drug offenses is over twelve years. That’s suspicious. Like there must be some mitigating circumstances that are not immediately obvious. Like maybe there are some intense outliers who got busted with kilos. Otherwise it is just fucked up brutal sentencing for drug offenses. Also, I didn’t expect murder to be number two.

MR. WHINEY

That was a little surprising, wasn’t it? It caught me off guard too, until I considered the lengths of sentences.

I agree with your suspicions regarding the drug sentencing, but even at 12 years it is almost a third shorter than the average sentence of a woman facing murder charges. It is only logical that crimes with longer sentences result, over time, in more women incarcerated for that crime, even if the yearly rate of conviction for the crime was significantly less. And since only one woman has been put to death in the State of Arkansas (at least since the death penalty was resumed at the end of 1976) it makes sense that even just a few murder convictions a year add up eventually.

MR. PROVE-IT

(give a gruff but thoughtful sigh.)

I guess in that context, it might be more surprising then that the average sentence for first-degree murder is only thirty-five-and-a-half years. I wonder how they calculate that; do they just assign a 99-year sentence for life?

MR. WHINEY

That is a great question, Mr. Prove-it, and one that I am sure a number of experts in the ADoC office of Public information are capable of answering. Maybe we should have asked one?

(There is a noise like whole milk being spit against a microphone, followed by uncontrollable laughing that cannot be placed with one voice or another. After the laughter and labored breathing subsides, the conversation continues.)

MR. PROVE-IT

Oh Mr. Whiney,

(MR. PROVE-IT stops to sigh loudly and catch his breath.)

…I didn’t see that joke coming. I guess you want me to explain to our audience why that question is so funny?

MR. WHINEY

If you would be so kind…

MR. PROVE-IT

Well…

(stops for a beat to collect his thoughts and decide where he should begin.)

…When Benjamin C. Roy Cory Garrett started this investigation, he did so with the delusion that he was going to put different voices of people involved in the criminal justice process in conversation with each other: incarcerated women, guards, local citizens, state politicians and members of the Department of Corrections.

At first, he was fairly successful. Everyone he’s tracking down was happy to talk about the history of McPherson’s Unit, and its role in Arkansas: state politicians, members of local historical societies, reporters, the families of inmates, members of State Board of Corrections, you name it. However, that all changed after he made a single request for some statistical information from the Arkansas Department of Corrections Office of Public Information and a request to the warden of McPherson’s Unit to for either an interview or a facility tour. He/we/the investigation then hit a major snag. They sent him the requested information—the top ten list revealed above—but they requested that he fill out a special Department of Corrections Institutional Review Board (IRB).

Artists don’t usually ask to get permission for their work. They just start doing it. Benjamin had not been required by his university to submit to IRB supervision and so he did his best to provide the ADC the information requested. A week after he submitted his IRB to the Arkansas Department of Corrections, he received the following information in an email:

(reads the email out loud to the audience)

“Good Evening Mr. Garrett: Your proposal ‘Understanding Incarceration/Understanding McPherson Unit’ has been very thoroughly read, reviewed and discussed by an Arkansas Department of Correction IRB (Internal Review Board) Committee and I am sorry to inform you that your proposal has not be approved.”

Since that email, no one employed through the Arkansas Department of Corrections has responded to any of our communications.

MR. WHINEY

That was very thorough. We do not know if the denial was based upon the results of a background check or a failing to submit the correct paperwork. No one will tell us. The Department’s response—or lack thereof—has had the effect of radically changing the scope of this investigation, and it has definitely altered what information will be presented and how that information will be discussed.

MR. PROVE-IT

That is true, but it makes us sound like we’re on a vendetta against the Department of Corrections for derailing the biggest project we have ever undertaken.

MR. WHINEY

Stating it as such does little to counter that possibility.

MR. PROVE-IT

Probably not. Nor does that fact that we buried this information more than halfway through our investigation. BUT…if they did shut us down out of past political affiliations, then it is unlikely that that slight was going to shift our focus in a more favorable direction. I guess—

3RD RESPONDENT

Duuudes, like, what is going on here?

(A new voice has interjected itself into the conversation. Both MR. PROVE-IT and MR. WHINEY are caught completely off guard and let this new perspective establish its own tone.)

I can totally dig that this journey through the…time-space continuum…was destined to feature, like eh, an episode or something of inner space exploration…

(3RD RESPONDENT says “inner space exploration” like he is actually traveling to the far reaches of the cosmos, and lets his consonants linger in every word.)

…but y’all are, like, turning the premise of this whole dealio into a heavy dose of inner drama. I’d ask you to, I don’t know, wind the old watch back to jam on that question about why these women are doing time and let your ego train off the rails for a little bit so another engine can use the tracks, but…dudes, from the peanut gallery over here, it seems like this train is the only one in town, man.

MR. PROVE-IT

Who the fuck are you?

MR. WHINEY

Indeed, Mr. Prove-it, what voice is this that interrupts us now, just as we were finally getting to the place of this place-based investigation?

3RD RESPONDENT

Who cares who I am, man? Or, like, especially, who you are, dude? Or why you don’t have answers to questions that should, like, have been totally obviously going to make “the Man” clam up, man?

Because, like…come on…I think y’all know you could have said a lot of this personal stuff to, like, I don’t know, a therapist, or maybe a spiritual guide, or AA sponsor…and then the usefulness of an investigation into a women’s only ice box, could, you know, be about that place, instead of the one inside your own mind, man.

MR. PROVE-IT

Ice box?

(MR. PROVE is honestly confused by this new voice’s lingo which feels like it might have crawled out of one of those 70s sexploitation movies referenced earlier in the investigation.)

3RD RESPONDENT

Yeah man, haven’t you ever read Cleaver’s Soul on Ice?

MR. WHINEY

Speaking of distractive commentary…

3RD RESPONDENT

Alright man, chill out…I feel you man…but cosmically,

(At this point 3RD RESPONDENT lowers his voice to nearly a whisper, as if he has leaned in to get real with the other voices.)

it seems to me like you guys are so afraid to say anything real that, you know, you take every opportunity to, like, just turn the gaze back on to yourselves. If y’all don’t have the faith to just let the words out, man, maybe you should stop pretending like this is an investigation of anything but your own insecurities, dude.

MR. PROVE-IT

Insecurity Dude, you are annoying as shit, but I can see why you have picked this time to make yrself present. There is some real shit here that we need to get to, and I think we should take the first part of your challenge to heart. We need to have some faith in our audience’s ability to evaluate the value of our voices for themselves.

(Stiffens his voice.)

McPherson’s Unit? Women incarcerated in Arkansas/America?

INSECURITY DUDE

Well that is groovy but…

MR. WHINEY

—Agreed, Mr. Prove-it.

(MR. WHINEY doesn’t give a shit and presses on past INSECURITY DUDE’s continued mumbling.)

Analysis of the top 10 convictions of women incarcerated in the State of Arkansas raises many questions that will require more careful consideration than amateurs like us will accomplish. Yet, it also raises fair questions, even for someone who may not have considered these issues at all.

MR. PROVE-IT

I know, right? I mean, Failure to Appear sounds like bullshit. It means that somebody was out on parole or probation and then missed a court-date, so the length of punishment is mostly tied to a different crime. But if we were so chill about these women being out in our local communities, why would we think that putting them back in prison, and having to pay tens of thousands of dollars a year to keep them there for an average of more than seven and a half years is a good idea?

MR. WHINEY

(MR. WHINEY busts out into a statistic from who knows where.)

—$23,000 dollars a person in the State of Arkansas in the year 2014.

MR. PROVE-IT

I get that folks feel like there’s got be some consequences for breaking the rules; and if people are skipping court dates because they are doing terrible things, then it would make sense to put them back in jail for doing the bad shit. But life happens. And failure to appear just means they didn’t show up, not that they were doing something bad while on parole.

It doesn’t make any sense that folks can complain about government spending and then happily fork over so much to lock up people that they were comfortable living next to the day before.

MR. WHINEY

It is a mystery, especially when we add in all the increased physical, mental and social health risks associated with incarceration; especially incarceration like what happens in McPherson’s Unit, that houses minimum- and maximum-security inmates in the same building. Prisons, as in our monolithic institutions of social order, create so few opportunities for restorative justice and so many opportunities to reinforce social injustices and inequalities.

MR. PROVE-IT

Hold on a moment…

(Pauses for a beat)

…I think I know, but I can never be too sure with you: What is restorative justice? Isn’t justice…Justice?

MR. WHINEY

(growing flustered at having to back track)

Of course it’s not.

Restorative justice is based on the idea that the social response to crime should focus on healing and restoring what had been criminally violated. Restorative justice solutions include things like making vandals clean up vandalism and become active volunteers in the communities where they were vandalizing so they have a reason to respect the people whose property they damaged. It is about asking what can make the world more whole again after it has been damaged by violence or disrespect. It is an alternative idea to retributive justice, which is the old “Eye for an eye” model that prioritizes making all things equal in injury, or a preventative justice model, which focuses on increasing security measures and creating an environment in which breaking the law seems unfathomable.

Rarely is any justice system dedicated whole heartedly to just one of these models, but there are some practices that might make sense in one model that are completely contradictory to another. An advocate of retributive justice might advocate for the death penalty, for example, while an advocate for restorative justice might argue that it only prevents the perpetrator of a murder or other violent crime from dedicating their life to working toward healing and helping those they have harmed—

MR. PROVE-IT

(interrupting MR. WHINEY’s rambling.)

—Thank you, I think that clears it up for me just fine. Clearly, there are some serious scholars out there that probably can address what alternatives models of justice might look like right?

MR. WHINEY

Definitely! And that is a bit of a tangent for us at the moment anyway, because the only reason it ever even comes up is when people start a conversation about incarceration as a practice of criminal justice from a place that thinks prison is the only way that societies have ever handled criminality. If they are a little more knowledgeable about the history of criminal justice, they might instead be operating from the idea that prisons reflect the most enlightened means of handling criminal justice that society has ever conceived, but the basic principle is the same.

MR. PROVE-IT

Ok…

(Slowing things down a beat again.)

I agree that this ain’t the time to dive too deep into prison alternatives, ’cause we have a lot of history to cover. Maybe we can suggest that our audience consider viewing the documentary 13th, if they have an interest in hearing a diverse array of scholars and public figures discuss models of incarceration past, present and future.

MR. WHINEY

A great suggestion, especially since that documentary goes to such great lengths to consider perspectives across political and theoretical perspectives. For the sake of an investigation into the conditions of McPherson’s Unit, it seems unnecessary for us to be concerned with alternatives when we need to be focused on what actually is.

MR. PROVE-IT

Well, alrighty then! Let’s talk about McPherson’s Unit.