The Story:
“Herman Wallace
dies at 71; ex-inmate held in solitary for 41 years,” Los Angeles Times, October
8, 2013
By Elaine
Woo
For most of
the past 41 years, Herman Wallace was allowed to leave his 6-by-9-foot
Louisiana prison cell for only an hour a day a few times a week. He foresaw no
end to the hours and days of his solitary confinement. Convicted in the fatal
1972 stabbing of a prison guard, Wallace maintained his innocence and used his
time behind bars to draw attention to abusive prison conditions. His legal appeals
brought his freedom last week when a federal judge in Baton Rouge ruled his
indictment had been unconstitutional because the grand jury excluded women.
Wallace had
only a few days to savor the victory.
One of the ‘Angola 3,’
whose long-term solitary confinement at Louisiana State Penitentiary in
Angola became a cause celebre for prison reform advocates, Wallace died of
complications of liver cancer Friday in New Orleans, his attorneys said. He was
71.
He had left
solitary confinement for a prison hospital ward in June after the cancer was
diagnosed. It took two orders from the federal judge and a threat of contempt
before prison officials released him Oct. 1. ‘He didn’t say a lot. He was
exhausted,’ said Ashley Wennerstrom, a friend of Wallace’s who was waiting for
him when he got out. ‘We told him he was free. He nodded and he knew.’
Wallace was
never told that the day before he died a grand jury in West Feliciana Parish,
north of Baton Rouge, had re-indicted him in the prison guard’s death. ‘Everybody
says why indict a man who is about to die?’ Dist. Atty. Sam D’Aquilla said in
an interview Tuesday. ‘Because he was a murderer.’
Wallace
entered the Angola prison in 1971 after a conviction for armed robbery. He was
sent to solitary confinement in 1972 after he and two other inmates were
accused of killing Brent Miller, a corrections officer. Of the three, two were
convicted: Albert Woodfox in 1973 and Wallace in 1974. Their convictions were
largely based on witness testimony from other prisoners, including a repeat
rapist who was later found to have helped the prosecution in exchange for a
reduced charge.
For nearly
every hour of every day for four decades, Wallace and Woodfox were held in
separate closet-sized cells. Their contact with the outside world was limited
to occasional visits and phone calls. A few times a week they were allowed
outdoors to exercise in a narrow pen. [….]
Wallace
filled his waking hours with reading and correspondence. With Woodfox and a
third inmate in solitary confinement, Robert King, he also organized a chapter
of the Black Panthers, the black nationalist group, and began mobilizing other
African American inmates against brutal conditions inside Angola, including
rampant prison rapes. The Angola 3, as they came to be known, maintained that
they were kept in solitary as payback for their political activities. Of the Angola
3, Woodfox remains in solitary. King was the most fortunate: He spent only 29
years in isolation. After his release from prison in 2001, he spoke out
publicly about the need for prison reform…. [….]
Wallace
spent his final days at the home of Wennerstrom and her husband, Will Veatch,
where dozens of friends and family made sure he was never without company. ‘He
was in and out of consciousness,’ Wennerstrom said, ‘but he was able to speak a
few words. The last thing he said before he died was, “I love you all.”’
The Moral & Legal Context:
The Eighth
Amendment to the U.S. Constitution: “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [emphasis added]
“When we
return to the search for a more humane and rational response to crime, we must
keep in mind that the prison is tied to other social and political arrangements
that limit what changes are possible. The criminal justice system in general is
at least partially involved, directly and indirectly, advertently and
inadvertently, in repressing groups and classes of people and in maintaining
unfair social, political, and economic relationships. Fundamental changes in
its operation are impossible unless some higher degree of social justice has
been achieved and the criminal justice system is relieved of these tasks. [….]
What we
need is a new theory of crime and penology, one that is quite simple. It is
based on the assumption that prisoners are human beings and not a different
species from free citizens. Prisoners are special only because they have been
convicted of a serious crime. But they did so in a society that produces a lot
of crime, a society, in fact, in which a high percentage of the population
commits serious crime. Those convicted of serious crimes must be punished and
imprisoned, because it is the only option that satisfies the retributive need
and is sufficiently humane. Knowing that imprisonment itself if very punitive,
we need not punish above and beyond imprisonment. This means that we need not and must not degrade, provoke,
nor excessively deprive the human beings we have placed in prison. It also
means that we must not operate discriminatory systems that select which
individuals should be sent to prison and, once incarcerated, who should be
given different levels of punishment.
Since we assume that convicts are humans like us and
are capable of myriad courses of action, honorable and dishonorable, we also
assume that they will act honorably, given a real choice.
This means that we provide them with the
resources to achieve self-determination, dignity, and self-respect. This
theory continues to be rejected not because it is invalid, but because it
challenges beliefs and values to which large segments of the population
comfortably cling. [….] In pushing this theory, I admit that many prisoners,
like many free citizens, act like monsters. But they are not monsters and often
choose to act like monsters when their only other real option is to be totally
disrespected or completely ignored, while being deprived, degraded, abused, or
harassed.” [emphasis added]—John Irwin, Prisons
in Turmoil (Boston, MA: Little, Brown and Co., 1980)
“In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan
wrote, ‘There are, then, four principles by which we may
determine whether a particular punishment is “cruel and unusual.”’
(1) The ‘essential
predicate’ is ‘that a punishment must not by its severity be degrading to human
dignity,’ especially torture. (2) ‘A severe punishment that is obviously inflicted
in wholly arbitrary fashion.’ (3) ‘A severe punishment that is clearly and
totally rejected throughout society.’ (4) ‘A severe punishment that is patently
unnecessary throughout society.’
Justice
Brennan also wrote that he expected no state would pass a law obviously
violating any one of these principles, so court decisions regarding the Eighth
Amendment would involve a ‘cumulative’ analysis of the implication of each of
the four principles. In this way, the United States Supreme Court ‘set the
standard that a punishment would be cruel and unusual, [if] it was too severe
for the crime, [if] it was arbitrary, if it offended society’s sense of
justice, or if it was not more effective than a less severe penalty.’” [The
third principle above is troubling insofar as it suggests the views of the
majority account for society’s “sense of justice.”]
* * *
“We have a heritage in America of torture and brutality,
first against slaves and secondly against prisoners. [….] We had legal codes
that prohibited cruelty, but which…understood cruelty as excessive whipping and
unnecessary biting or tearing with dogs. And when we abolished slavery, we did
not abolish it unconditionally, but with the Thirteenth Amendment qualification
that slavery is okay for prisoners: ‘Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall have been duly
convicted.’ And that pretty much ensured that the qualifications in our
understanding of cruelty necessary to maintain an effective system of
enslavement would continue to distort the understanding of cruelty in the
operation of our penal system. As [Colin] Dayan argues, there is no
long-established heritage of using the Eighth Amendment to protect the rights of
those we hate and fear. On the contrary, there is a long tradition in our
courts of limiting and narrowing its application. [….]
We in fact have a
tradition of mocking the claim that all men are created equal. We have a
tradition of ‘reading down’ any constitutional limitations of cruelty so that
they restrain only the most sadistic and egregious acts. The deplorable
conditions—the living death of solitary confinement and sensory deprivation—at Guantánamo
and elsewhere were pioneered in supermax prisons like California’s Pelican Bay
and Florida’s ADX Florence.—Jeremy Waldron in the Foreword to Colin Dayan’s The Story of Cruel and Unusual
(Cambridge, MA: MIT Press, 2007).
* * *
“In Furman v. Georgia, Justice Brennan had argued that there could be cruelty
worse than bodily pain or mutilation. It was not just ‘the presence of pain’
that was significant in relation to the Eighth Amendment, he argued, but the
treatment of ‘members of the human race as nonhumans,
as objects to be toyed with and discarded.’ Slave codes in the South had
required only that slaves receive clothing, food, and lodging, ‘sufficient to
their basic needs.’ Like the slave whose brute body had yet to be protected
against unnecessary mutilation or torture, the criminal is reduced in
present-day law to nothing but the physical person. [….] The legal
nullification of personhood that began with slavery has been perfected through
the logic of the courtroom and adjusted to apply to prisoners.”—Colin Dayan
The
Lesson...or The Legal, Moral, and Political Imperative:
“There are many ways
to destroy a person, but the simplest and most devastating might be solitary
confinement. Deprived of meaningful human contact, otherwise healthy prisoners
often come unhinged. They experience intense anxiety, paranoia, depression,
memory loss, hallucinations and other perceptual distortions. Psychiatrists
call this cluster of symptoms SHU syndrome, named after the Security Housing
Units of many supermax prisons. Prisoners have more direct ways of naming their
experience. They call it ‘living death,’ the ‘gray box,’ or ‘living in a black
hole.’ [….]
We tend to assume that
solitary confinement is reserved for “the worst of the worst:’ violent inmates
who have proved themselves unwilling or unable to live in the general
population. But the truth is that an inmate can be sent to the hole for failing
to return a meal tray, or for possession of contraband (which can include
anything from weapons to spicy tortilla chips). According to the Bureau of
Justice, there were 81,622 prisoners in some form of ‘restricted housing’ (code
for solitary confinement) in 2005. If anything, these numbers have increased as
isolation units continue to be built in prisons, jails and juvenile detention
centers across the country. Given that 95 percent of all inmates are eventually
released into the public, and that many of these will be released without any
form of transition or therapy, solitary confinement is a problem that
potentially affects every one of us. [….]
When we isolate a
prisoner in solitary confinement, we deprive them of both the support of
others, which is crucial for a coherent experience of the world, and also the
critical challenge that others pose to our own interpretation of the world.
Both of these are essential for a meaningful experience of things, but they are
especially important for those who have broken the law, and so violated the
trust of others in the community. If we truly want our prisons to rehabilitate
and transform criminal offenders, then we must put them in a situation where
they have a chance and an obligation to explain themselves to others, to repair
damaged networks of mutual support, and to lend their own unique perspective to
creating meaning in the world.
We ask too little of
prisoners when we isolate them in units where they are neither allowed nor
obliged to create and sustain meaningful, supportive relations with
others. For the sake of justice, not
only for them but for ourselves, we must put an end to the over-use of solitary
confinement in this country, and we must begin the difficult but mutually
rewarding work of bringing the tens of thousands of currently isolated
prisoners back into the world.” —Lisa Guenther
Recommended
Reading:
- Abramsky, Sasha (2007)
American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment.
Boston, MA: Beacon Press.
- Alexander, Michelle
(2010) The New Jim Crow: Mass Incarceration in the Age of
Colorblindness. New York: The New Press.
- Bauer,
Sane. “California’s
Cruelest Prisons,” The
Los Angeles Times, October 18, 2012.
- Bibas,
Stephanos (2012) The Machinery of Criminal
Justice. New York: Oxford University Press.
- Brook, Daniel. “History
of Hard Time: solitary confinement, then and now,” Legal Affairs (January/February 2003).
- Burton-Rose, Daniel,
Dan Pens and Paul Wright, eds. (1998) The
Celling of America: An Inside Look at
the U.S. Prison Industry. Monroe, ME: Common Courage Press.
- Cohn, Marjorie, ed.
(2011) The United States and Torture:
Interrogation, Incarceration, and Abuse.
New York: New York University Press.
- Cusac, Anne-Marie
(2009) Cruel and Unusual Punishment: The Culture of Punishment in America.
New Haven, CT: Yale University Press.
- Dayan, Colin (2007) The Story of Cruel & Unusual.
Cambridge, MA: MIT Press.
- Dow, Mark (2004) American Gulag: Inside U.S. Immigration Prisons. Berkeley, CA: University of
California Press.
- Gawande, Atul. “Hellhole,”
The New Yorker (March 30, 2009).
- Greene,
Susan. “The Gray Box:
An investigative look at solitary confinement,” Acts of Witness: The
Ochberg Society for Trauma Journalism, January 24, 2012.
- Guenther, Lisa. “The Living
Death of Solitary Confinement,” The New York Times, August 26, 2012.
- Haney, Craig (2006) Reforming Punishment: Psychological Limits to the Pains of
Imprisonment. Washington, DC: American Psychological Association.
- Irwin, John (1980) Prisons in Turmoil. Boston, MA: Little,
Brown and Co.
- Irwin, John (2004) The Warehouse Prison: Disposal of the New Dangerous Class. Los
Angeles, CA: Roxbury Publ.
- Jarvis, Brian (2004) Cruel and Unusual: A Cultural History of Punishment in America. London: Pluto Press.
- Kalhan, Anil. “’Truly Civil’
Torture,” Dorf on Law
(blog), December 14, 2012.
- Kupers, Terry (1999) Prison Madness: The Mental Health Crisis Behind Bars and What Must Do About It. San
Francisco, CA: Jossey-Bass.
- Pfeiffer, Mary Beth
(2007) Crazy in America: The Hidden Tragedy of Our Criminalized
Mentally Ill. New York: Carroll & Graf Publishers.
- Rhodes, Lorna A.
(2004) Total Confinement: Madness and Reason in the Maximum Security
Prison. Berkeley, CA: University of California Press.
- Ross, Jeffrey Ian, ed.
(2013) The Globalization of Supermax
Prisons. New Brunswick, NJ: Rutgers University Press.
- Santos, Michael G.
(2006) Inside: Life Behind Bars in America. New York: St. Martin’s Press.
- Shalev, Sharon (2008) A Sourcebook on Solitary Confinement. London: Mannheim Centre for Criminology, London School of Economics. Available: http://solitaryconfinement.org/sourcebook (This contains an excellent bibliography.)
- Shalev, Sharon (2009) Supermax: Controlling Risk through Solitary Confinement. Devon, UK: Willan Publishing.
- Western, Bruce (2006) Punishment and Inequality in America.
New York: Russell Sage Foundation Publ.