Indiana Law Review


"The Mess We're in"*: Five Steps Towards the
Transformation of Prison Cultures

Lynn S. Branham*

Whether working with correctional officials, policy makers, victims'

advocates, prisoners' advocates, researchers, or others concerned about the

efficacy and costs, both tangible and intangible, of incarceration, a question I

commonly hear is: "How can and should prison conditions be improved?" But
I think that this question misses the mark. Of course prison conditions can and
should be improved to produce what perhaps appropriately, but impersonally, are

referred to as "better outcomes." Few ofthose who are familiar with prisons and
the persons confined within them would argue that the status quo is acceptable:

that, for example, the vast numbers ofprisoners with substance abuse and mental

health problems should continue to never have those problems addressed, and

addressed effectively, while they are incarcerated;' that prisoners who are

* See President Ronald Reagan, Remarks at a Reception for Members of the Associated

General Contractors of America (Mar. 16, 1981), available at http://www.reagan.utexas.edu/

archives/speeches/198 1/3 1681c.htm [hereinafter Reagan Remarks].

** Visiting Professor of Law, Saint Louis University School of Law. B.A., University of

Illinois; J.D., University of Chicago Law School.

1. In 2006, 65% of the prisoners in state prisons and 55% of federal prisoners met the

medical criteria delineated in the Diagnostic and Statistical Manualfor Mental Disorders (DSM)

for having a "substance use disorder." Nat'l Ctr. on Addiction & Substance Abuse at
Columbia Univ., Behind Bars II: Substance Abuse and America's Prison Population 23,

25 (20 1 0), available at http://www.casacolumbia.org/articlefiles/575-report20 1 0behindbars2.pdf

However, less than one in five ofthese inmates with the disorder—14% ofthe state prisoners and
16% of the federal prisoners—received some form of substance-abuse treatment. Id. at 40.

Even when prisoners with a substance abuse problem do receive treatment, much of that

treatment is deficient in quality. In a national study on the extent to which correctional substance

abuse treatment programs comport with the thirteen evidence-based practices considered necessary

for effective treatment, prison administrators reported that the treatment programs in their prisons

incorporated an average ofonly 5.9 ofthe prescribed evidence-based practices. Peter D. Friedmann

et al., Evidence-Based Treatment Practices for Drug-Involved Adults in the Criminal Justice

System, 32 J. SUBSTANCE ABUSE TREATMENT 267, 267-68, 272 (2007). Although the assessments

of these treatment programs by their directors differed somewhat from those of the prison

administrators, the directors also reported significant departures from basic treatment protocols.

According to these treatment providers, the substance abuse treatment programs in the prisons

adhered to, on average, only 7.8 of the thirteen evidence-based practices. Id. at 272.

A high percentage of prisoners—in 2005, 56% of state inmates and 45% of federal
inmates—also have mental health problems. DoRis J. James & Lauren E. Glaze, Bureau of
Justice Statistics, U.S. Dep't of Justice, Mental Health Problems of Prison and Jail

Inmates 3 (2006), available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=789. Yet the

majority of these ill prisoners receive no mental health treatment while in prison. See id. at 9

(reporting that in 2005, only 34% ofthe state prisoners and 24% ofthe federal prisoners who were
mentally ill had received mental health treatment since their incarceration). For an in-depth

discussion ofthe failure to meet the healthcare needs ofmentally ill prisoners, see HUMAN RIGHTS



704 INDIANA LAW REVIEW [Vol. 44:703

functionally illiterate or otherwise uneducated should continue to leave prison

without concerted efforts to rectify those educational deficits;^ and that inmates

with few, if any, job skills should continue to sit idly in their cells or dorms rather

than participate in vocational training or work programs that might facilitate their
successful reentry into our communities.^

The more fundamental question though, one that is raised with rarity, is:
"Can prisons be notjust changed and improved, but transformed?" This question
can, in turn, spark a debate about what "transformation" means in the abstract and
what it might mean, or could mean, in the prison context. While the lure of

entering into this debate is inviting, suffice it to say that for the purposes of this

Article and the ideas propounded within it, transformation entails changes that are

not merely at the periphery or even solely external. Transformation instead refers

to deeper, sustained, and indeed radical changes—changes in the ethos of those
who work and live in prisons.

Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (2003), available

at http://www.hrw.org/en/node/12252/sectionl.

2. In 2003, 57% of prisoners had not received a high school diploma or GED. See

Elizabeth Greenberget al., U.S. Dep't of Educ, Literacy Behind Bars: Results fromthe

2003 National Assessment of Adult Literacy Prison Survey 48 (2007), available at

http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2007473 [hereinafter PrisonLiteracy Survey] .

Half, or more than half, ofthem functioned at the two lowest literacy levels, with the exact figure

depending on the type of literacy being measured. Id. at 13 (reporting that 56% ofprisoners were

at the basic, or below basic, literacy level in "prose" literacy, 50% fell within one of these two

lowest literacy levels in "document" literacy, and 78% measured at the basic or below basic level

on the "quantitative" literacy scale). Many prisoners' literacy skills are so deficient that they would

be unable to locate an intersection on a straightforward street map or determine the time of an

appointment from an appointment slip. See id. at 5-7, 13.

Most prisons offer some educational programming to a segment of their prison populations.

Caroline Wolf Harlow, Bureau of Justice Statistics, U.S. Dep't of Justice, Education

and Correctional Populations 1 , 4 (2003), available at http://www.policyalmanac.org/crime/

archive/education_prisons.pdf But relatively few prisoners are enrolled in an academic program

at any one time. In 2003, only 5% of prisoners were enrolled in an academic class, though an
additional 1 9% of prisoners had received their high school diploma or GED while serving their
current prison sentences. Prison Literacy Survey, supra, at 48.

3

.

The majority ofprisoners surveyed in 2003 had received no vocational training since their

incarceration, and most ofthose who had were trained for a relatively short period oftime. Prison

Literacy Survey, supra note 2, at 51 (reporting that 71% of the prisoners had received no

vocational training, 1 1% participated in a vocational training program lasting less than six months,

and 8% participated in a vocational training program lasting six to twelve months). And while a
little over half of the prisoners eligible to work in prison—some are foreclosed from working for
security or medical reasons—have job assignments, the vast majority of these inmates work in
positions geared toward facility operations, such as janitorial and laundry work, rather than jobs

specifically tailored to prepare them for reentry. Amy L. Solomon et al.. Urban Inst., From
Prison to Work: The Employment Dimensions of Prisoner Reentry 1 6 (2004), available at

http://www.urban.org/uploadedPDF/4 1 1 097_From_Prison_to_work.pdf



2011] THE TRANSFORMATION OF PRISON CULTURES 705

That altered ethos would be far different than the antiquated mindset that

continues to pervade correctional institutions in this country—the mindset of
"captor and caged." That ethos would embody at least four precepts: (1) hope
as an imperative; (2) the viability of renewal; (3) the catharsis that attends

personal responsibility and accountability; and (4) the duty and call to respect

human dignity, an obligation that encompasses both correctional employees and
prisoners. While some might describe this ethos as "new," it would, in fact, not

be new at all but would rather reflect what are considered ancient truths, though
truths long ignored behind prison walls."*

Naysayers will immediately counter that talk of such transformation

occurring in the environs ofa prison reflects poUyannaish yearnings disconnected

from political realities and betraying a lack ofunderstanding ofwhat life is really

like, for prisoners and correctional employees alike, in the hidden confines of

prisons. But parsing through these naysayers' remonstrations reveals that what

they are actually saying is that deep-seated cultural norms cannot be changed.

And as history, including recent history, confirms, that assertion is utterly false.
The memories are still vivid in the minds of many people, for example, of a time
when African-Americans had to drink from separate water fountains, when
female teachers had to quit their jobs after getting married, and when married
women who were able to retain their jobs were forced to resign from them when
they became pregnant.

There are some correctional leaders, though not nearly enough, who have
publicly espoused the need for, and the feasibility of, what has been aptly termed

"culture busting" in prisons.^ But in the end, the question is not whether culture

4. To give but one example of the age-old origins of these precepts, they are propounded

in the Bible, though sometimes in different nomenclature. As for the first precept—the need for
each individual to retain hope—what Oliver Wendell Holmes, Sr. said in secular terms when
cautioning, "Beware how you take away hope from any human being," has its own biblical

iterations. Oliver Wendell Holmes, Sr., Valedictory Address to the Medical Graduates at Harvard

University (March 10, 7955J,LVIIIB0S. MED. & SURGICAL J. 149, \5%{\^5^)\ see, e.g.. Proverbs
13:12 ("Hope deferred makes the heart sick."). The second precept regarding the promise of

renewal—the affirmation that people can change and, as individuals, be transformed—is also
articulated in Scripture, including in the story of the life of Saul, a murderer, who became the

Apostle Paul. See Acts 9:1-21. The Bible is replete with examples of, and exhortations regarding,

the third precept—the redemptive effects of acknowledging and atoning for one's wrongdoing.
See, e.g., Proverbs 28:13 ("He who conceals his transgressions will not prosper, but he who

confesses and forsakes them will obtain mercy."); Matthew 5:23-25 ("So if you are offering your

gift at the altar, and there remember that your brother has something against you, leave your gift

there before the altar and go; first be reconciled to your brother, and then come and offer your

gift."). The Bible also extols the value ofthe fourth precept, expounding on the dignity (and love)

with which each individual—even those considered the least of the least—is to be treated. See,
e.g., Luke 6:3 1 ("And as you wish that men would do to you, do so to them."); Matthew 25:39-40

("'And when did we see thee sick or in prison and visit thee?' And the King will answer them,

'Truly, I say to you, as you did it for one of the least of these my brethren, you did it to me.'").
5

.

See, e.g., Dora B. Schriro, Reducing Inmate Litigation: Missouri 's Constituent Services



706 INDIANA LAW REVIEW [Vol. 44:703

busting, in the sense of a transformation in prisons and the people working and

living within them, can be realized; the question, the one on which this Article

focuses, is how the transformation can be effectuated.
There are innumerable steps—some big, some small—^that need to be taken

if hope, renewal, personal responsibility, accountability, and a shared

commitment to human dignity are to become hallmarks of U.S. prisons, as well
as ofthe larger sentencing and correctional systems ofwhich they are a part. This

Article describes five key steps that are integral to this transformative mission:

Step One: Each state and the federal government should establish a

maximal limit on the per-capita imprisonment rate that is at least 50%
lower than the current national rate and should adopt mechanisms to

responsibly implement and enforce the limit.

Step Two: Each state and the federal government should develop and
implement a comprehensive plan to ensure that the public is aware of

conditions and operations in that jurisdiction's prisons. The plan should
include, among other components, the establishment of an independent
public entity to monitor, and report publicly on, conditions in the prisons.

These monitoring entities should meet the "Key Requirements for the
Effective Monitoring of Correctional and Detention Facilities"

promulgated by the American Bar Association.^

Step Three: Each state and the federal government should modify prison

policies, practices, and programs to reflect and inculcate a restorative-

justice ethos within prisons.

Step Four: Each state and the federal government should adopt and

implement policies requiring that each prisoner be assigned a trained and

Office Proves Value ofCommunication, CORR. TODAY, Aug. 1998, at 74-78. Stratagems are also

being developed to create a more positive culture in prisons through strategic planning, strategic

management, and stafftraining, with the National Institute ofCorrections playing a leadership role

in that endeavor. See, e.g., CAROL Flaherty-Zonis Assocs., Building Culture

Strategically: A Team Approach for Corrections (2007), available at http://nicic.gov/
library/files/02 1 749.pdf; James Byrne et al., Examining the Impact of Institutional Culture (and

Culture Change) on Prison Violence and Disorder: A Review ofthe Evidence on Both Causes and
Solutions, Paper Presented at the 14th World Congress ofCriminology (Aug. 1 1 , 2005), available

at http : //faculty,uml . edu/jbyme/44 . 327/institutional_cultureUpdateworldcongressrevised.doc

.

6. These requirements are part of a resolution approved by the American Bar Association

in 2008 calling on jurisdictions to develop comprehensive plans to bring transparency and

accountability into the operations of correctional and detention facilities. Am. Bar Ass'n,

Criminal Justice Section, Report to the House of Delegates 9-10 (2008), available at

http://www.americanbar.org/content/dam/aba/publishing/criminalJustice_section_newsletter/cr

imjust_policy_am08104b.authcheckdam.pdf [hereinatter Report to the House of Delegates]

(listing the "Key Requirements for the Effective Monitoring of Correctional and Detention

Facilities").



2011] THE TRANSFORMATION OF PRISON CULTURES 707

dedicated mentor at the outset of his or her incarceration.

Step Five: Each state and the federal government should implement

procedures to accord prisoners a central role in the development of an

individualized reentry plan. This planning process should commence, at

the latest, upon the prisoner's incarceration and would encompass his or

her involvement in prison programs and other constructive activities.

The taking of these steps would not only catalyze the transformation of prison
cultures but also, if the steps were implemented correctly, yield significant cost

savings and public-safety and prison-safety benefits. These five pivotal steps,

which are capsulized below, are discussed in greater depth in the succeeding parts

of this Article.

I. Step One: Capping the Per-Capita Imprisonment Rate

The threshold step to be taken by each state and the federal government to
transform prison cultures is to place a firm cap on the per-capita imprisonment

rate in the jurisdiction, one which limits the per-capita imprisonment rate to a

level far below the inflated national rate of recent years. The imprisonment rate
climbed from 94 out of every 100,000 residents in 1968 to 504 per 100,000 in

2008, though the crime rate remained the same.^

Many trees have been cut down to produce the writings that explain all too
clearly why this nation not only should, but must, escape from what has become
an obsessive-compulsive drive to incarcerate, often reflexively, individuals who
commit the wrongs denominated as crimes.^ These reasons for discarding the

7

.

James Austin, ReducingAmerica 's CorrectionalPopulations: A Strategic Plan , 1 2 JuST

.

Res. & Pol'y 1, 14 (2010). Considering imprisonment statistics in a bit different light, one out of
every 198 U.S. residents was incarcerated in a state or federal prison at the end of2008. William

J. Sabol et al., Bureau of Justice Statistics, U.S. Dep't of Justice, Prisoners in 2008, at 1

,

6 (2009), ava//<afZ7/e<3/http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1763. Butthe officially

reported data on imprisonment rates understate the level of imprisonment in this country because

the figures include children. Cf. Pew Ctr. on the States, One in 1 00: Behind Bars in America

2008, at 5, 24 (2008) [hereinafter ONE in 100], available at http://www.pewcenteronthestates.org/

uploadedFiles/80 1 5PCTS_Prison08_FINAL_2- 1 - l_FORWEB.pdf(reporting that when only adults

are factored into the calculus, the incarceration rate, a rate that includes confinement in local jails

as well as in prisons, exceeds one in every hundred adults).

8. To give a few examples of these writings, see James Austin et al., JFA Inst.,

UnlockingAmerica: WhyandHowto ReduceAmerica's Prison Population (2007); James
Austin & Tony Fabelo, JFA Inst., The Diminishing Returns of Increased Incarceration
(2004); Lynn S. Branham, Am. Bar Ass'n, The Use of Incarceration in the United States:
A Look at the Present and the Future (1992); Willlnm M. Dimascio, Seeking Justice:
Crime and Punishment in America (1995); Jenni Gainsborough & Marc Mauer,
Sentencing Project, Diminishing Returns: Crime and Incarceration in the 1 990s (2000);
Ryan S. King et al.. Sentencing Project, Incarceration and Crime: A Complex
Relationship (2005); One in 1 00, supra note 7; Pew Ctr. on the States, One in 3 1 : The Long



708 INDIANA LAW REVIEW [Vol. 44:703

view that incarceration is the preferred sanction (or at a minimum, a generally
acceptable sanction) range from the humanitarian to the pragmatic.

The ideas, which are grounded in research, for the responsible, safe, and cost-
effective decarceration of America have also been widely disseminated—for
years. These ideas include, among many others: (1) enhancing the use of civil
penalties in lieu of criminal sanctions for some of the aberrant conduct that
currently is addressed through criminal justice systems;^ (2) supplanting

incarceration, though certainly not always, with community sanctions,
particularly fmes, restitution, and community service through which those who
have committed crimes are held accountable, in a productive and meaningful

way, for the harm they have caused the community and others through their
criminal behavior; ^^ (3) employing technology, when safety reasons dictate, to
more closely monitor certain convicted criminal offenders serving their sentences
in the community; '^ (4) substantially decreasing the length of sentences, both

incarcerative and those, such as probation, that entail community supervision;^^

Reach of American Corrections (2009) [hereinafter One in 3 1 ] ; Don Stemen, Vera Inst, of
Justice, Reconsidering Incarceration: New Directions for Reducing Crime (2007).

9. See Am. Bar Ass'n, House of Delegates Resolution 1 02C, at 2, 8 (20 1 0), available

at http://www.abanet.org/leadership/20 1 0/midyear/dailyJourmal/l 02C.pdf.

10. See Criminal Justice Section, Am. Bar Ass'n, Blueprint for Cost-Effective

Pretrial Detention, Sentencing, and Corrections Systems 2-4 (2002), available at

http://www.americanbar.org/content/dam/aba/migrated/leadership/recommendations02/107.auth

checkdam.pdf [hereinafter Blueprint for Cost-Effective Corrections Systems] (calling on

states and the federal government to enact comprehensive community corrections acts to facilitate

the sanctioning ofnonviolent offenders in their communities; to utilize means-based fmes and other

community sanctions in a way that averts unnecessary incarceration and community supervision;

and to implement, through sentencing statutes and sentencing and parole guidelines, the

presumption that a community-based penalty is the appropriate penalty for a convicted offender

unless the person poses a "substantial danger to the community").

11. See, e.g., Tony Fabelo, "Technocorrections": The Promises, the Uncertain Threats, 5

Sent'g & CORR.: Issues for the 21st Century 1-2 (2000); Darren Gowen, Remote Location
Monitoring—A Supervision Strategy to EnhanceRisk Control, 65 FED. PROBATION 38 (200 1 ); Cecil

E. Greek, Tracking Probationers in Space and Time: The Convergence ofGIS and GPS Systems,

66 Fed. Probation 51 (2002); Isaac B. Rosenberg, Involuntary Endogenous RFID Compliance

Monitoring as a Condition ofFederal Supervised Release—Chips Ahoy?, 10 Yale J.L. & TECH.
331,333-44(2008).

12. When espousing this policy reform, Al Bronstein, the former director of the National

Prison Project, wrote: "Faced with the decision of how to use one prison bed over a three-year

period, I would rather use it to sentence 12 burglars to three months each than to sentence one

burglar for all 36 months." Alvin J. Bronstein, America 's Overcrowded Prisons, 1 GAO J. 29, 30
(1989). The American Bar Association also has urged states and the federal government to

reexamine the length of sentences in their jurisdictions, both those served in confinement as well

as those served within the community, to ensure that they comport with fiinding priorities and

research findings that generally refiite the cost-effectiveness oflong sentences. See BLUEPRINT FOR

Cost-Effective Corrections Systems, supra note 10, at 2. Researchers, for example, have



2011] THE TRANSFORMATION OF PRISON CULTURES 709

and (5) limiting the grounds for which, and length oftime for which, a convicted

offender can be sent to prison for violating a condition of probation, parole, or

supervised release.
^^

The reason why imprisonment so often remains the top-choice penalty in this
country is therefore due not to a lack of better options, but to a lack of political

will to pursue those options. It is true that prison officials frequently lament,

though often behind the scenes, that their prisons are filled with many people who
do not need to be incarcerated and whose presence makes the officials' jobs of

running safe and humane prisons so much more difficult, and sometimes
impossible.'^ But for an array of reasons, including the fact that the people at the

helm of correctional departments are themselves political appointees, prison

officials have failed to afford elected officials the political cover they believe they

need to take the steps to make imprisonment the penalty of last resort. So the best
way, and perhaps the only feasible way, to effectuate a dramatic and sustained

reduction in imprisonment in the near ftiture is to establish mechanisms that

provide elected officials with this protective sheath.

The cap, for which this Article calls, on the per-capita imprisonment rate in

each jurisdiction is one such mechanism. And, I submit, it is the optimal way, if

instituted correctly, to redress responsibly and with dispatch the fiscal, public-

safety, and humanitarian problems generated by what has become a robotic

adherence to the status quo. Departing from what has become the prevalent

reported that criminal activity peaks when people are in their "late teens and early twenties" and

that most individuals desist from committing crimes by the time they turn forty. Linda S. Beres &
Thomas D. Griffith, Do Three Strikes Laws Make Sense? Habitual Offender Statutes and Criminal

Incapacitation, 87 GEO. L.J. 103, 135 (1998).

13. California's Little Hoover Commission, which instituted a study on the state's parole

system after learning that the state had the highest parole-revocation rate in the country, tendered

these and other recommendations to revamp the state's customary responses to parole and probation

violations. See LITTLE HoovER COMM'N, BACK TO THE Community: Safe & Sound Parole
Policies 1, 75 (2003), available at http://www.lhc.ca.gov/studies/172/reportl72.pdf; see also

Austin et al., supra note 8, at 23; Blueprint for Cost-Effective Corrections Systems,

supra note 10, at 2-3.

14. Some correctional officials, however, have been refreshingly outspoken in protesting the

overutilization of incarceration and profiling its damaging effects. When speaking on the

prevalence ofmental illness in prison and jail inmates, Martin Horn, then commissioner ofthe City

ofNew York's Departments of Correction and Probation, stated:
The presence of the mentally ill in prisons and jails is destabilizing. Keeping the

mentally ill safe injail presents challenges prisons andjails were never intended to face.

If we are serious about reducing the American overuse of imprisonment, we must ...

find better means than incarceration to address the needs of the mentally ill.

Martin F. Horn, Commissioner, Departments ofCorrections & Probation, City ofN.Y., A Decade
of Lessons Learned: The Challenge of Reducing Prisoner Numbers, Presentation to the 10th

Annual Meeting of the International Corrections and Prisons Association 4 (Oct. 28, 2008)

(transcript available at http://www.icpa.ca/library).



710 INDIANA LAW REVIEW [Vol. 44:703

norm—often unnecessary and deleterious imprisonment'^—is also the critical first
step to be taken ifthe goal offundamentally changing prison cultures in a positive

way is to be realized.
But what would that cap be? How should it be implemented, and by when?

These are meaty questions, each one of which could be the subject of a discrete

article. Set forth below are several key facts and points of which policy makers

should be aware as they lay the groundwork for the prompt adoption and

implementation of the per-capita imprisonment cap in their jurisdictions.

A. What Should Be the Cap on the Per-Capita Imprisonment Rate?

As mentioned earlier, the cap on the per-capita imprisonment rate should
be—and, I would argue, must be'^—at least 50% lower than the current national
per-capita imprisonment rate. In other words, the per-capita imprisonment rate

in each jurisdiction should be, at most, half of the current national rate.

This figure—50%—^has not been drawn out ofwhole cloth. Rather, the 50%
cap on the per-capita imprisonment rate is founded on, and supported by, solid

and compelling data—specifically, historical data on imprisonment rates in this
country, contemporary statistics on those rates, and national and state crime-rate

statistics.'^ In other words, the prescribed cap has been empirically validated.

1 5

.

See infra note 1 6

.

16. Even if we were to cast aside humanitarian concerns, maintaining the current

imprisonment rate is not sustainable from a resource and public-safety perspective, as many

jurisdictions are beginning to recognize. See JUDITH Greene & Marc Mauer, Sentencing
Project, Downscaling Prisons: Lessons from Four States 5-26 (2010), available at

http://www.sentencingproject.org/doc/publications/inc_DownscalingPrisons2010.pdf(recounting

steps undertaken in New York that have decreased the size of its prison population by 20% in ten
years). In the 2008 fiscal year, states spent a total of over fifty-two billion dollars on corrections,

with almost 90% ofthat money expended on prisons. One in 3 1 , supra note 8, at 1 1 . Additionally,

the growth in fiinding allocated to prisons far eclipsed the growth in budgetary outlays (other than

for Medicaid) for even the most basic governmental services, such as elementary, secondary, and

higher education. Id.

Researchers have also concluded that the exponential growth in the use of incarceration,

particularly for property and drug offenders, has reached a point where the costs of incarceration

far outweigh any public-safety benefits and may, in fact, harm public safety. Id. at 1 8-20. The

damaging impact of overincarceration on public safety is due in part to the debilitating and

destabilizing effects of incarceration on prisoners, their families, their neighborhoods, and their

communities. See King et al., supra note 8, at 7-8. Another primary reason for

overincarceration 's detrimental impact on public safety is that it has led to a diversion of fiinds

from other governmental services, such as drug treatment and programs to increase high school

graduation rates, which have been proven to have a greater impact on crime reduction. See id. at

8.

17. Although the 50%) figure is not drawn from, or its validity dependent on, international

practices and statistics, the lessons learned from other countries' sparing use of incarceration

provide fiirther confirmation that the 50% cap is appropriate and attainable. For data highlighting

the stark contrast between the rate at which the United States incarcerates its populace and the



2011] THE TRANSFORMATION OF PRISON CULTURES 7 1

1

For example, James Austin, a highly respected criminologist, has tracked and

compared national imprisonment and crime rates. As noted earlier, he reported
that although the crime rate in the United States in 2008 mirrored the rate in 1 968,

the imprisonment rate was over five times higher. ^^ Furthermore, researchers

examining imprisonment and crime statistics at the state level have also

concluded that a rise in the level of imprisonment reaches a point of diminishing

returns—a point where the costs of imprisonment exceed its benefits in terms of
crime reduction.'^ Researchers have also found that an increase in the

imprisonment rate can reach a point where it actually augments the level of
20

crime.

It bears emphasizing that the 50% cap on the imprisonment rate in each
jurisdiction is not an aspirational goal. Far too timid souls might argue that

returning the imprisonment rate to what has been a much lower level historically
is a laudable aim that states should formally embrace and strive towards. But that

is like saying that a bankrupt or almost bankrupt state should adopt legislation

recommending that the state get its fiscal house in order without requiring the

concrete steps to allay the fiscal crisis and make fiscal responsibility the
operational norm. In short, neither another set of recommendations nor another

set of goals that policy makers can promptly and summarily ignore is needed.

Rather, each state and the federal government should enact a statutory cap on the

imprisonment rate—a codified requirement, not rhetoric.
B. How Should the Statutory Cap on the Per-Capita Imprisonment Rate Be

Implemented, and by When?

Large-scale changes in the use offinite and expensive resources are not new.

For example, women used to always give birth at home or in other nonclinical
settings. Americans then moved to a far different norm where women typically
gave birth in a hospital and remained hospitalized along with their babies for over

a week. Now there has been another paradigmatic shift in the way hospitals are
used in the United States for the birthing of children, with most women leaving
the hospital within a few days after giving birth. This recent shift, like so many
large-scale changes in the utilization of resources, is due to a number of factors.
These include, among others, the need to avoid the incursion of unnecessary
healthcare costs, an enhanced understanding of postpartum health risks and

management ofthose risks, and the recognition that an extended stay in a hospital
can have negative effects on new mothers, their babies, and other family
members.

incarceration rate in the thirty-six European countries with the largest inmate populations, see One
IN 100, supra note 7, at 35.

18. See Austin, supra note 7 and accompanying text.

19. See supra note 16.

20. See, e.g., Raymond V. Liedka et al., The Crime-Control Effect ofIncarceration: Does

Scale Matter?, 5 CRIMINOLOGY & PUB. POL'Y 245, 262-63 (2006) (reporting that when the
imprisonment rate reaches between 325 to 430 per 100,000 residents in a state, imprisonment fails

to reduce crime and may even increase it).



712 INDIANA LAW REVIEW [Vol. 44:703

Factors that are in many ways similar to those just highlighted—^the need to
avoid, wherever possible, the high costs of imprisonment, a better understanding

of the nature and level of risks posed by different criminal offenders, and the

recognition of the harm imprisonment causes those who are incarcerated, their
families, and communities—should likewise propel jurisdictions towards a
paradigmatic shift in the use of prison resources, a shift facilitated by enactment

of the statutory cap on the imprisonment rate. But while large-scale changes are

to be expected, and indeed, welcomed when they culminate in a more efficacious
and humane expenditure ofresources, it is imperative that the changes be planned
and implemented in a way that will realize their objectives and maximize their
utility. And this need for planning and attention to implementation details will
be equally important as jurisdictions put in place the caps that will enable them
to return to significantly lower imprisonment rates.

There are a number of steps that jurisdictions can take to implement this cap
safely and responsibly. James Austin has propounded four recommendations

that, if adopted, would slice in half the size of the nationwide prison population

and the national per-capita imprisonment rate, returning the United States to the

imprisonment rate that prevailed in 1988—250 per every 100,000 residents
(versus 504 per 100,000 in 2008).^' These poHcy changes have already been

adopted in some states, though singly and not as a whole: reducing the length of
prison sentences; reducing the extent to which individuals who have violated a
condition of parole or probation but have not been convicted of a new crime are
imprisoned; reducing the length of imprisonment of those probation and parole

violators who are sent to prison; and imposing penalties other than imprisonment
for "victimless crimes," such as drug possession.^^

There are additional or alternative steps that a jurisdiction can take to reduce

its prison population significantly without compromising the penological

objectives of its criminal-justice system and with due regard to public-safety

needs. The American Bar Association, for example, has recommended the taking
of twenty discrete steps to make pretrial detention, sentencing, and correctional
systems more cost-effective.^^ These steps include, among others, adopting a
comprehensive community corrections act that will catalyze the integration of a

ftill range of community sanctions into criminal-justice systems to avert

unnecessary (and quite costly) incarceration; repealing mandatory-minimum

sentencing laws, which foreclose judges from tailoring sentences based on the

gravity of a crime and the offender's culpability; and establishing a structure to

facilitate the application of sentencing reforms to individuals already in prison,

including reductions in authorized prison sentences.^"*

2 1

.

See Austin, supra note 7, at 14, 26-34.

22. See id. at 27-34.

23

.

Blueprint for Cost-Effective Corrections Systems, supra note 1 0, at 2-4.

24. Id.\ see also JUSTICE KENNEDY CoMM'N, Am. Bar Ass'n, Reports with

Recommendations to the ABA House of Delegates 9-10, 24-34 (2004), available at
http://www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf(setting forth

recommendations about punishment and incarceration that were approved by the ABA's House of



2011] THE TRANSFORMATION OF PRISON CULTURES 7 1

3

Apart from the question of how to implement a jurisdiction's statutory cap
on the per-capita imprisonment rate is the question of the timetable for coming

into compliance with that cap. The timetable will, of course, vary from

jurisdiction to jurisdiction, in part because imprisonment rates vary significantly

from state to state.^^ But if a jurisdiction's statute placing a cap on the

imprisonment rate leaves open the end date by when the cap must be met, the cap
will become, in effect, a goal, not a requirement—a goal whose realization will
likely be eluded. Likewise, if the end date is too far in the future, the work

needed to ensure compliance with the cap will in all probability be forestalled by

those wedded to the status quo.
In order to prevent the skirting of the statutory cap, jurisdictions should set

a due date for the cap that is realistic for the jurisdiction yet lends a sense of

urgency to take the steps needed to implement the cap with dispatch. James

Austin has explained how the four, what he has termed "relatively modest,"
adjustments discussed earlier^^ will gradually decrease, by 50%, the size of the

nation's prison population as a whole within eight years.^^ At a minimum, then,

at least most jurisdictions should set a firm deadline of, at the latest, eight years

to come into compliance with the statutory cap on the imprisonment rate. And
ifjurisdictions are willing, as I believe they should be, to consider the range of

additional ways^^ beyond those four steps through which the imprisonment rate

can be reduced cost-effectively and with due regard for public safety, policy

makers should consider the viability of adopting a shorter maximal timeline of

five or six years to implement the imprisonment-rate cap.

Whatever the timeframe adopted—whether eight years, five years, or
something in between—jurisdictions should identify the mechanisms to be used
to help recalibrate more carefully the length of prison sentences and modulate

other practices that have contributed to the explosion in the size of prison

populations nationwide. An example of one such mechanism would be an
existing sentencing guidelines commission or other entity charged with

monitoring the impact of various types and lengths of sentences in the

jurisdiction, including their cost-effectiveness.

II. Step Two: Developing and Implementing a Comprehensive Plan
TO Monitor, and Report Publicly on. Prison Conditions

IN THE Jurisdiction

Another integral step to effectuate the transformation of prison cultures is to

bring transparency and accountability into prisons and their operations. It is

Delegates, making them official ABA policy).
25. At the end of2009, the imprisonment rate for prisoners sentenced to more than one year

ranged from a high of88 1 per 1 00,000 residents in Louisiana to a low of 1 50 per 1 00,000 residents

in Maine. HEATHER C. WEST ET AL., BUREAU OF Justice Statistics, U.S. Dep't of Justice,

Prisoners in 2009, at 24 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf^p09.pdf.

26. See supra notes 21-22 and accompanying text.

27. See Austin, supra note 7, at 12-13, 26-34.

28. See supra notes 9-13, 23-24 and accompanying text.



7 1

4

INDIANA LAW REVIEW [Vol. 44:703

difficult to envision how such a transformative evolution in the ethos that
pervades prisons could otherwise occur. When policy makers and the public are
largely ignorant of what transpires in prisons, they become complacent—even
indifferent—about this hidden world of which they know little or nothing. The
stimulus for progressive changes in prison conditions, much less fundamental
alterations in cultural norms within prisons, is, quite simply, absent.

Federal and state governments can and should make transparency and
accountability hallmarks of their prisons by developing and then implementing

in their respective jurisdictions a comprehensive prison transparency and

accountability plan.^^ To ensure that this plan is formulated, followed, and
periodically refined, each jurisdiction should enact a statute directing that this

comprehensive plan be instituted and, at periodic intervals, reviewed and revised

to meet the goals of transparency and accountability.

A comprehensive plan to import transparency and accountability into prison
operations would be comprised of multiple components. The plan would need,

for example, to address the subject of media access to prisons, since the media is

one mechanism for transmitting information to the public about what is
happening (and not happening) behind prison walls and fences. But whatever the

exact contours of the transparency and accountability plan in a particular

jurisdiction, one essential ingredient would be a provision for the establishment

of an independent public entity to monitor, and report publicly on, conditions in

the jurisdiction's prisons.^^

Core features of this monitoring process have already been identified and

29. The American Bar Association has urged federal, state, local, and territorial governments

to develop such comprehensive plans. The plans would encompass not only prisons, which are the

focus of this Article, but also jails, juvenile training schools, juvenile detention centers, and other

correctional and detention facilities within criminal and juvenile justice systems. See REPORT TO

THE House of Delegates, supra note 6.

30. In addition to the American Bar Association, the National Prison Rape Elimination

Commission has endorsed creating such independent public entities. See REGGIE B. Walton et

AL., National Prison Rape Elimination Commission Report 10 (2009), available at

http://www.ncjrs.gov/pdffilesl/226680.pdf The Commission on Safety and Abuse in America's

Prisons has also advocated that states establish independent oversight entities to monitor and report

on the conditions in prisons and jails. See JOHN J. Gibbons & Nicholas de B. Katzenbach,
COMM'N ON Safety & Abuse in Am.'s Prisons, Confronting Confinement 79-81 (2006),
available at http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf This

recommendation was the by-product of the Commission's investigation of, and report on, what it

found to be unsafe, inhumane, unproductive, and often sordid conditions of confinement in many

prisons and jails. See id. at 19-61; see also Jeremy Travis, Task Force on Transforming

Juvenile Justice, Charting a New Course: A Blueprint for Transforming Juvenile
Justice in New York State 12, 85-87 (2009), available at http://www.vera.org/
download?file=2944/Charting-a-new-course-A-blueprint-for-transforming-juvenile-justice-in-New-

York-State.pdf (recommending "external oversight" of institutional facilities for adjudicated

delinquents to redress what the task force found to be "shocking" conditions, including rampant

excessive use of force against confined juveniles).



2011] THE TRANSFORMATION OF PRISON CULTURES 7 1

5

encapsulated in the "Key Requirements for the Effective Monitoring of
Correctional and Detention Facilities" promulgated by the American Bar

Association.^' There is no need to replicate the work ofthe experts in corrections

and correctional monitoring that culminated in the recommendations endorsed by

the ABA.^^ But because those requirements are not yet well-known and because

of the catalytic role that a monitoring entity meeting those requirements can play

in rectifying the grave problems that plague our nation's prisons and stymie

fundamental changes in prison cultures, those requirements bear reiterating

below:

1

.

The monitoring entity is independent of the agency operating or

utilizing the correctional or detention facility.

2. The monitoring entity is adequately funded and staffed.

3. The head of the monitoring entity is appointed for a fixed term by an

elected official, is subject to confirmation by a legislative body, and can

be removed only for just cause.

4. Inspection teams have the expertise, training, and requisite number of
people to meet the monitoring entity's purposes.

5. The monitoring entity has the duty to conduct regular inspections of
the facility, as well as the authority to examine, and issue reports on, a

particular problem at one or more facilities.

6. The monitoring entity is authorized to inspect or examine all aspects
of a facility's operations and conditions including, but not limited to:

staff recruitment, training, supervision, and discipline; inmate deaths;

medical and mental-health care; use offorce; inmate violence; conditions

of confinement; inmate disciplinary processes; inmate grievance

processes; substance-abuse treatment; educational, vocational, and other

programming; and reentry planning.

31. See Report to the House of Delegates, supra note 6.

32. I had the privilege to serve as the chair ofthe ABA's Subcommittee on Effective Prison

Oversight. The other subcommittee members included: Alvin Bronstein, former director of the

National Prison Project and president ofthe board ofdirectors ofPenal Reform International—The
Americas; Jamie Fellner, who headed the U.S. program ofHuman Rights Watch; Stephen Gobbo,
who has worked in the New York and Michigan prison systems, as well as in the Federal Bureau
of Prisons; Michael Hamden, then executive director of North Carolina Prisoner Legal Services,

Inc.; Martin Horn, then commissioner of the City ofNew York's Departments of Correction and
Probation; J. Michael Quinlan, senior vice president of the Quality Assurance Division of

Corrections Corporation ofAmerica and the former director ofthe Federal Bureau ofPrisons; and

Malcolm Young, who was the executive director of the John Howard Association of Illinois, a

nonprofit organization that monitors conditions in adult and juvenile correctional facilities in

Illinois.



716 INDIANA LAW REVIEW [Vol. 44:703

7. The monitoring entity uses an array of means to gather and
substantiate facts, including observations, interviews, surveys, document

and record reviews, video and tape recordings, reports, statistics, and

performance-based outcome measures.

8. Facility and other governmental officials are authorized and required

to cooperate fully and promptly with the monitoring entity.

9. To the greatest extent possible consistent with the monitoring entity's
purposes, the monitoring entity works collaboratively and constructively

with administrators, legislators, and others to improve the facility's

operations and conditions.

10. The monitoring entity has the authority to conduct both scheduled
and unannounced inspections ofany part or all ofthe facility at any time.

The entity must adopt procedures to ensure that unannounced inspections
are conducted in a reasonable manner.

1 1

.

The monitoring entity has the authority to obtain and inspect any and
all records, including inmate and personnel records, bearing on the

facility's operations or conditions.

12. The monitoring entity has the authority to conduct confidential
interviews with any person, including line staff and inmates, concerning

the facility's operations and conditions; to hold public hearings; to

subpoena witnesses and documents; and to require that witnesses testify

under oath.

13. Procedures are in place to enable facility administrators, line staff,

inmates, and others to transmit information confidentially to the

monitoring entity about the facility's operations and conditions.

14. Adequate safeguards are in place to protect individuals who transmit
information to the monitoring entity from retaliation and threats of

retaliation.

15. Facility administrators are provided the opportunity to review

monitoring reports and provide feedback about them to the monitoring

entity before their dissemination to the public, but the release of the

reports is not subject to approval from outside the monitoring entity.

16. Monitoring reports apply legal requirements, best correctional

practices, and other criteria to objectively and accurately review and

assess a facility's policies, procedures, programs, and practices; identify

systemic problems and the reasons for them; and proffer possible

solutions to those problems.



20 1 1 ] THE TRANSFORMATION OF PRISON CULTURES 7 1

7

17. Subject to reasonable privacy and security requirements as

determined by the monitoring entity, the monitoring entity's reports are

public, accessible through the Internet, and distributed to the media, the

jurisdiction's legislative body, and its top elected official.

18. Facility administrators are required to respond publicly to

monitoring reports; to develop and implement in a timely fashion action

plans to rectify problems identified in those reports; and to inform the

public semi-annually of their progress in implementing these action

plans. The jurisdiction vests an administrative entity with the authority

to redress noncompliance with these requirements.

19. The monitoring entity continues to assess and report on previously

identified problems and the progress made in resolving them until the
problems are resolved.

20. The jurisdiction adopts safeguards to ensure that the monitoring

entity is meeting its designated purposes, including a requirement that it

publish an annual report of its findings and activities that is public,

accessible through the Internet, and distributed to the media, the

jurisdiction's legislative body, and its top elected official.^^

The rationales for most ofthe monitoring prescriptions and protocols set forth

above are self-evident. If the monitoring entity were not, for example,

independent of the prisons being inspected, its objectivity would be
compromised, and the accuracy and completeness of its findings and

recommendations would be suspect. The history of corrections is littered with
examples of the obfuscation of facts—at times scandalous facts—^by non-
independent inspectors charged, supposedly, with ferreting out those facts.^"*

33. Report to the House of Delegates, supra note 6, at 9- 1 0.

34. A prime example ofa non-independent monitoring entity' s suppression offacts about the
gross mistreatment or neglect of prisoners came to my attention while performing corrections-
related work. The inspectors from one such entity had failed to mention in their inspection report,

which was considered by the monitoring entity when making decisions about the prison in 2009,

that a mentally ill prisoner had starved to death in the prison. (Due to his illness, the prisoner

apparently had believed that his food was being poisoned and had refiised to eat.) The report given

to those who had the authority to take adverse actions against the prison due to this neglect also

failed to discuss systemic problems at the prison that, ifremedied, would have averted the inmate's

death.

In another instance illustrating the lack of candor and accuracy that can ensue when the

monitoring entity is not independent ofthe prison being monitored, I once overheard an inspector

tell an official at the prison being inspected: "The best thing that could happen to this prison is that

a bomb fall on it." However, the report which recounted the purported findings of the inspection

of this prison failed to mention the grave problems at the prison, including an endemic problem of

prisoners being raped and threatened with rape, that had prompted the inspector's observation.



718 INDIANA LAW REVIEW [Vol. 44:703

The monitoring framework envisioned by the ABA requirements is, for this
country, bold and visionary. The independent monitoring entity would have a
statutory duty to regularly inspect each prison, as well as certain other

correctional and detention facilities in the jurisdiction. To guard against the
concealment of negative facts about conditions within a prison, the monitoring

entity would have the authority to conduct inspections without any advance

notice and at any time, day or night.^^ The monitoring entity would have the
authority to inspect all facets of the facility's operations and conditions, as well

as conduct confidential interviews with line staffand prisoners, to unearth serious

problems of which the prison administrators are unaware, are inured to, or have

tried to mask.^^ The reports about a particular prison would be disseminated to
the public, accessible through the Internet, and distributed to the media, the

legislature, and the top elected official in the jurisdiction, either the governor or

President.^^ Also, prison administrators could not just blithely ignore the report

of a monitoring entity. The statute establishing this monitoring structure would

require the administrators to draft and implement, in a timely fashion, "action

plans" to resolve problems identified in a monitoring report. ^^ In addition, the

administrators would have to report twice a year on the progress of their

implementation efforts.^^

While integrating the external monitoring of prisons into the fabric of

corrections would be a significant advancement in the United States, it would be

erroneous to perceive or portray this monitoring as some kind of radical
intervention that would inhibit prison officials from performing their jobs. To the
contrary, these kinds of inspections by an independent body are the custom in
Great Britain, where the British Prison Inspectorate has uninhibited access to the

country's prisons.'*^ In addition, the European Committee for the Prevention of

Torture (CPT) conducts independent inspections of prisons in the forty-seven

countries that are members ofthe Council ofEurope."^' Adopting the proposal for
external monitoring by the ABA would therefore not be a revolutionary
development, but would simply reflect the recognition that it is time for the

United States to catch up with much of the rest of the civilized world.

III. Step Three: Integrating a Restorative-Justice Ethos into Prisons

True transformation requires not just changes on the outside, but changes on

the inside. What this means in the prison setting is that external improvements
in prison conditions, however important or imperative those improvements may

35. Report to the House of Delegates, supra note 6, at 9.

36. See id. at 9-10.

37. Id. at 10.

38. Id

39. Id

40. See Michele Deitch, Why You Should Love Watchdogs: The Casefor Effective Prison

Oversight and the British Experience, in THE STATE OF CORRECTIONS: PROCEEDINGS, AMERICAN

Correctional Association Annual Conferences 2005, at 141, 145-47 (2006).

41. Mat 147-48.



2011] THE TRANSFORMATION OF PRISON CULTURES 7 1

9

be, will not alone effect a transformation in prison cultures. Cramming too many
prisoners in spaces too small to house them humanely or guard their safety and

the safety of correctional staff can be halted. Dank cells infested with insects and
rodents can be demolished and replaced by clean rooms with a natural-light

source. Prisoners who sit idly in their cells hour after hour, day after day, and
year after year can be put to work. Palpable deficiencies in the delivery of

medical services to prisoners can be corrected so that sick inmates receive needed

medical care. And other steps can be taken to solve the grave problems in prison
conditions of which the public is still largely unaware. Yet even with these

necessary changes, prisons, below the surface, will remain the same—^places
where prisoners are, at best, viewed as inferior human beings and, at worst, as
subhuman; places where incarcerated individuals cannot, through positive deeds,

make amends for their crimes; and places where the future holds little promise for
prisoners.

One of the principal ways in which to effect this deeper change in the people
who live and work in prisons is to inculcate the ethos of restorative justice into
prison operations, processes, and programs. Restorative justice has age-old,

including biblical, roots.'*^ Restorative justice is grounded on a number of
precepts. One is that those who commit crimes should be held accountable, in a
meaningftil way, for the harm their crimes have caused."*^ Accountability occurs
when these individuals truly comprehend the impact of their crimes on their
victims and others, when they assume the responsibility to repair, to the extent
possible, the harm caused by their criminal conduct, and when they address the
underlying reasons for their aberrant conduct."^

Restorative justice also has other key tenets. Examples include:

1

.

The stigma that attends the commission of a crime can be removed."^^

2. Offenders should be provided opportunities to express and

experience contrition for their crimes.
"^^

42. Mark S. Umbreit et al., Restorative Justice: An Empirically GroundedMovementFacing

Many Opportunities and Pitfalls, 8 Cardozo J. CONFLICT Resol. 511,515-16 (2007).

43. Mark S. Umbreit, The Handbook of Victim Offender Mediation, at xxx-xxxi
(2001) [hereinafter HANDBOOK OF VICTIM OFFENDER MEDIATION].

44. See MARKUMBREIT& Marilyn PetersonArmour, Restorative Justice Dialogue:
An Essential Guide for Research and Practice 8 (Jennifer Perillo & Peter Rocheleau eds.,
201 1) [hereinafter RESTORATIVE Justice Dialogue].

45

.

Howard Zehr, Retributive Justice, Restorative Justice, 4 NEW Persp. ON CRIME & JuST.
app. (1985).

46. Id. At the time ofsentencing, offenders are often afforded the opportunity to address the

court. See, e.g., Fed. R. Crim. P. 32(i)(4)(A)(ii) (directing courts, before a sentence is imposed, to

permit a defendant to speak to the court or present information that might mitigate the sentence).

But this abbreviated, and sometimes perftinctory, opportunity to speak to a judge does not, for

many reasons, effectuate the aims ofrestorative justice. The victim, for example, may not even be

in the courtroom at the time the defendant exercises what is known as the right ofallocution. More

ftindamentally, the one-sided impartation of information to the judge is neither intended to, nor



720 INDIANA LAW REVIEW [Vol. 44:703

3. Victims of crimes should be afforded opportunities for healing

through facilitated communications with offenders."^^

4. The primary focus of the justice system is not on the past—on
casting blame for what has been done. The primary focus of the justice
system is on the future—on repairing the harm caused by a crime and
solving the problems that contributed, and could contribute again, to

making the ill-advised decision to commit a crime.
"^^

Obviously, restorative aims can be achieved much more readily when
individuals remain within the community while being held accountable for their
criminal misdeeds. But for those who must be confined in prison, effective
structures, processes, and programs should be in place in each prison to make
restorative justice a shared and expected norm.

Many different kinds of steps can be taken to reorient the culture and
normative values in prisons towards restorative justice. The following are just
four examples of multiple programs with a restorative-justice focus that can

become common features of all prisons."^^
The first prototypical restorative-justice program is victim-offender

mediation. ^^ Victim-offender mediation programs are gradually becoming part

of criminal justice systems at the community level and are beginning to appear
in a few prisons.^'

designed to, promote the healing and other reparative objectives of restorative justice.

47. See DANIEL W. VAN NESS & KAREN HEETDERKS STRONG, RESTORING JUSTICE 3 1-43
(Ellen S. Boyne & Elizabeth A. Shipp eds., 3d ed. 2010).

48. See Zehr, supra note 45, app.

49. For other examples of restorative-justice programs that can be adapted to the prison

setting, see generally Kay Pranis et al., Peacemaking Circles: From Crime to Community

(2003) (discussing a restorative conferencing modality that also includes community members);

Mark S. Umbreit, U.S. Dep't of Justice, Family Group Conferencing: Implications for
Crime Victims (2000), available at http://www.ncjrs.gov/ovc_archives/reports/restorative_

justice/restorativeJustice_ascii_pdf^ncj 176347.pdf(describing a restorative mechanism in which

the victim's and offender's friends and family members participate in mediation sessions).

50. The American Bar Association has endorsed victim-offender mediation programs and

called onjurisdictions to incorporate them into their criminal justice systems. See Am. BarAss'n,

Criminal Justice Section, Report to the House of Delegates 1 1 B ( 1 994). The ABA also
has delineated thirteen requirements that these programs should meet, including that the

participation of victims and offenders in mediation sessions be voluntary. For a list of these

requirements, sqqAmerican BarAssociation Endorsement of: Victim-Offender Mediation/Dialogue

Programs, VICTIM-OFFENDER RECONCILIATION PROGRAM iNFO. & RES. CTR.,
http://www.vorp.com/articles/abaendors.html (last visited June 15, 2011). For additional

information about victim-offender mediation, see HANDBOOK OF VICTIM OFFENDER MEDIATION,

supra note 43; Restoratfve Justice Dialogue, supra note 44, at 1 1 1-41.

5 1

.

While only a few victim-offender mediation programs existed in the country in the 1 970s,

twenty years later, almost three hundred were in operation. Mark S. Umbreit et al., U.S. Dep't
of Justice, National Survey of Victim-Offender Mediation Programs in the United



2011] THE TRANSFORMATION OF PRISON CULTURES 72

1

A victim-offender mediation program affords a victim the opportunity to
meet, in the presence of a trained mediator, with the individual who perpetrated
a crime against the victim. During the mediation session or sessions, the victim

typically asks the offender—in this case, the prisoner—questions about the crime
or the offender that may be troubling the victim, and the victim also explains the
impact the crime had on him or her. The offender then talks about the crime and

the poor choices that contributed to the offender's decision to commit the crime.

This discussion often culminates in the offender's expression of remorse for the

crime and the harm it has caused.

The last step in the mediation process is the discussion and development of

an agreement between the victim and the offender, identifying the steps the

offender will take to remedy the harm the crime caused. In the prison setting,

devising this agreement will require some creative thinking, in part because most

prisoners are impoverished, lacking the means to remunerate the victim for the

harm through monetary compensation. But with the assistance of the trained

mediator, the victim and prisoner can construct an agreement that satisfies both

parties that the prisoner, while confined and perhaps upon release, will take

concrete actions to make something good come out of something bad, perhaps
even tragic.

The contours of that agreement will vary based on a number of factors,
including the victim's needs and the prisoner's circumstances, such as restrictions

at the prison that may hinder or preclude the taking of a particular reparative step
by the prisoner. The following are but a few examples of agreed-upon steps that

a prisoner might take to repair harm caused by his or her criminal wrongdoing

and to bring healing to the victim, the prisoner, and others: the prisoner might

provide the victim a formal written or verbal apology; might disseminate the

apology to others; might report to the victim at specified intervals about progress

made in completing actions the prisoner has agreed to take, such as participating
in an Alcoholics Anonymous or Narcotics Anonymous program, to diminish the
risk that the prisoner will choose to commit a crime in the future; or might meet,
along with the victim if he or she so chooses, with first-time offenders or other

individuals considered at risk of future criminal or delinquent conduct to discuss

the adverse consequences the victim, prisoner, and others have suffered from the

ill-advised decision to commit a crime.
Victim-impact panels are a second example of a mechanism that can be

States 3, 5 (2000), available at http://www.ncjrs.gov/ovc_archives/reports/restorativeJustice/

restorativejustice_ascii_pdf7ncjl76350.pdf In addition, a few prison systems have established

restorative-justice programs within their prisons, with Kay Pranis, the former Restorative Justice

Planner for the Minnesota Department of Corrections, playing a leadership role in that endeavor.

See Jessica A. Focht-Perlberg, Two Sides of One Coin—Repairing the Harm and Reducing
Recidivism: A Casefor Restorative Justice in Reentry in Minnesota and Beyond, 3 1 Hamline J.

Pub. L. & POL'Y 219, 261-62 (2009); Martha Henderson Hurley, Restorative Practices in
Institutional Settings and at Release: Victim Wrap Around Programs, 12> FED. PROBATION 16,19

(2009).



722 INDIANA LAW REVIEW [Vol. 44:703

employed in each prison to bring restorative justice to the forefront of a prison.^^

A victim-impact panel is comprised of victims of the crime of which a prisoner
was convicted. These panel members can impress upon a prisoner the real-life
impact of his or her crime. For example, a victim-impact panel comprised of

victims of drunk drivers, such as a person maimed in an accident caused by a
drunk driver or the family members of someone killed by a drunk driver, can
recount to a prisoner incarcerated for a drunk-driving-related crime, such as

vehicular homicide, how drunk driving has affected their lives. These panels can
be used to complement victim-offender mediation or in lieu of mediation when,

for example, a victim is unable or unwilling to participate in the mediative

process. One of the benefits of these panels, as is true with victim-offender
mediation, is that they humanize victims, making it more difficult for criminal

offenders to rationalize their wrongdoing or ignore the harm for which they are
responsible.^^

Prison work programs in which prisoners produce goods and services that
benefit the neighborhoods most adversely affected by prisoners' crimes are a third

example of restorative-justice programming. Work programs in prisons are not
new, although prisons often lack enough jobs to match the number of employable
prisoners or, if they are working, to provide many of them anything more than
what can charitably be described as make-work.^"^ And some of these existing
work programs provide direct benefits to people in the outside world. For
example, inmates in prisons with canine-training programs train dogs to provide

assistance to disabled individuals with whom they later will be paired. ^^

But what is contemplated in this proposal for injecting accountability for

one's crime, in a meaningful and productive sense, into the prison milieu is that

52. See generally VAN Ness & STRONG, supra note 47, at 71-76 (providing a general
overview of the structuring and beneficial effects of victim-impact panels).

53. Some prisons, including prisons in Minnesota, already utilize victim-impact panels.

Focht-Perlberg, supra note 51, at 262. For example, the "Bridges to Life" program in Texas is a

pre-release program in which participating prisoners meet with surrogate victims two hours a week

for twelve weeks. Id. at 254-55. During those meetings, a trained volunteer facilitates discussions

between the prisoners and the victims that are designed to promote healing, accountability, and

remediation ofharm by the prisoners. Id. at 255. But while the goals ofthis program are laudable,

they are more limited than the goal articulated in this Article of making restorative justice a

mainstay of a prison's overall culture. The focus of the Texas program is on preparing prisoners

for their return to the community rather than on also transforming prison cultures through the

inculcation of restorative-justice norms and values. See id. at 254-55.

54. See supra note 3 and accompanying text. In Smith v. Fairman, 528 F. Supp. 186, 190

(CD. 111. 1981), rev'd, 690 F.2d 122 (7th Cir. 1982), the district court recited what is considered

a classic example of such make-work. When a prisoner was asked to describe his job working on

the prison grounds, he said that his work was completed after fifteen minutes and he then pushed

dirt back and forth for the rest of the four-hour workday. Id. at 190.

55. See generally Nikki S. Currie, A Case Study of Incarcerated Males Participating in a
Canine Training Program (2008) (unpublished Ph.D. dissertation, Kansas State University),

available at http://krex.k-state.edU/dspace/bitstream/2097/l 028/l/NikkiCurrie2008.pdf



2011] THE TRANSFORMATION OF PRISON CULTURES 723

work programs would be established to benefit the communities and

neighborhoods most ravaged by crime. An example of such a program would be
one that produces materials to be used in constructing new houses or refurbishing
dilapidated houses in crime-infested neighborhoods marked by urban blight.

Another example would combine a horticultural program, in which prisoners

plant and harvest fresh produce, with a food-processing program in which

prisoners can or otherwise package a portion of the food. The healthy food

produced, prepared, and preserved by the prisoners then could be delivered to

poor, crime-ridden neighborhoods where fresh fruit and vegetables are often

unavailable or unaffordable.

A fourth kind of restorative-justice programming that can be integrated, and
in some instances has been integrated,^^ into prisons affords prisoners

opportunities to live in faith-based prison units. To avoid Establishment Clause
concerns, it is important that only prisoners who want to, and choose to, live in
these units do so.^^ In these units in which prisoners may opt to be confined,
prisoners constantly examine their lives and actions through a very different

lens—from a spiritual or religious perspective.^^
For some prisoners, living in a faith-based prison unit for a period oftime can

be not only a way ofmeeting unmet spiritual needs, but the optimal way to realize
the aims of restorative justice. In other words, in order for some prisoners to
understand fully the import of their crimes and make amends, to the extent
possible, for those crimes, they have found that they need to nurture their faith,

understand and experience forgiveness, or atone, in this kind of setting, for their

wrongdoing.^^ Consequently, as prison officials and policy makers consider

56. See generally Nat'l iNST. OF CoRR., U.S. Dep't OF JUSTICE, Residential Faith-Based

Programs in State Corrections, Special Issues in Corrections (2005), available at

http://nicic.gov/Library/Files/020820.pdf (indicating that twenty-one of the fifty-one state and

federal correctional departments surveyed reported having, or developing plans for, one or more

residential faith-based programs in their prison system).

57. See generally Lynn S. Branham, ""The Devil Is in the Details ": A Continued Dissection

ofthe Constitutionality ofFaith-Based Prison Units, 6 AVE MARIA L. REV. 409 (2008) (assessing

the constitutionality of faith-based prison units in light of the Establishment Clause); Lynn S.

Branham, "Go and Sin No More ": The Constitutionality ofGovernmentally FundedFaith-Based

Prison Units, 37 U. MiCH. J.L. REFORM 291 (2004) (addressing the constitutionality offaith-based

prison units and prescribing steps to operate them in conformance with the Establishment Clause).

58. The Life Connections Program (LCP) instituted by the Federal Bureau of Prisons is an

example ofone such faith-based program. Scott D. Camp et al.. An Exploration into Participation

in a Faith-Based Prison Program, 5 CRIMINOLOGY & PUB. Pol'y 529, 530 (2006). Inmates who
participate in this eighteen-month residential program can choose a spiritual guide from an array

of faiths, including Buddhism, Catholicism, Islam, Judaism, and Protestantism. Id. at 530-31.

Inmates in the four or five faith groups represented in the LCP program at a particular prison meet
together for some portions ofthe program, engaging in studies from that faith perspective, and work

to grow and develop spiritually. M at 53 1 . The LCP program also brings the differing faith groups
together for joint discussions and other activities. Id.

59. The comments of one inmate who lived in a faith-based unit while confined in a Texas



724 INDIANA LAW REVIEW [Vol. 44:703

programmatic options for the infusion of restorative justice into prison cultures,

religious programming should not be excluded from their consideration.

It would be a mistake, though, to assume that the inculcation of a restorative-

justice ethos into prisons would be effectuated only through programs. To the
contrary, prison officials and other interested parties, including prisoners, would

need to take a range of other steps to make restorative justice a prison trademark.
To give just three examples of such steps, prison staff first would need to be
trained about restorative justice—its goals, how it is realized, the positive effects
that it can have on the overall prison environment, and the ways in which staff

can and must meet their responsibility to help imbue the prison culture with a

commitment to restorative justice. Second, during their orientation into a prison
system or a prison, prisoners would need to be educated about restorative justice,
including the integral role they will play in making restorative justice part of the

fabric ofthe institution and their own lives. Finally, restorative-justice principles
would need to be integrated into prison disciplinary processes so that prisoners

become more cognizant ofthe harm their misconduct inflicts, both on individuals
and the prison community as a whole, and can remedy that harm in a constructive
way.

IV. Step Four: Assignment of Mentors to Prisoners at the Outset
OF Their Imprisonment

The fourth transformative step to be undertaken within prisons is to assign a
mentor or accountability partner to a prisoner at the very outset of his or her

imprisonment. A mentor can play a significant role in helping a prisoner prepare
for his or her return to the community. The mentor can, for example, give
encouragement to an inmate, providing the psychic boost needed to surmount the

external, as well as internal, obstacles to successful reintegration faced upon

release.^^ But the assignment of a mentor to a prisoner at the very beginning of

the prisoner's confinement can serve another laudable purpose: mitigating the

prison illustrate how a faith-based program can be a tool for implementing restorative justice.

William R. Mattox, Jr., Prison Program Uses Faith to Transform Lives, USA TODAY, Mar. 15,
1 999, at 1 7A. According to the prisoner, his participation in the program eventually prompted him

to acknowledge his wrongdoing and strive to make amends for it. Id. After writing a letter to his

former employer asking to be forgiven for lying to and stealing from him, the prisoner and the

employer met at the prison and reconciled. Id.

60. Researchers have profiled (and lamented) the daunting challenges prisoners face in

attempting to reintegrate successftiUy into their communities after release fi"om prison. See, e.g.,

Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry 105-37

(2003); Jeremy Travis et al.. Urban Inst., From Prison to Home: The Dimensions and

Consequences of Prisoner Reentry 25-36 (2001), available at http://www.urban.org/

uploadedpdf/fi-om_prison_to_home.pdf These challenges include, among others, employment

barriers, untreated and unresolved substance-abuse problems, educational deficits, mental illness,

and lack of housing. See id. The "prisonization" process, which is described later in this paper,

can also stymie the reentry goals ofinducing and facilitating the making of law-abiding choices by

released prisoners. See infra notes 64-65, 78-79 and accompanying text.



2011] THE TRANSFORMATION OF PRISON CULTURES 725

debilitating isolation from the outside world that attends incarceration. And the
support and encouragement mentors provide prisoners can help to eradicate the

hopelessness, despair, and bitterness that permeate prisons today.

The assignment of a mentor to a prisoner at the incipiency of his or her

incarceration is a common-sense reform and yet . . . not done. It is true, and

certainly a welcome development, that more people are beginning to mentor

released prisoners, although there are still far fewer mentors than needed.^' In

addition, some people, most often volunteers from churches and other religious

groups, are already serving as mentors to at least a fraction of prisoners during

some of the time they are incarcerated.^^ But the mentoring of prisoners is still,

as a general practice, too little, too late.^^ Most prisoners never have mentors, and

those who do are matched with a mentor long after what has been termed
"prisonization" has occurred.^'^ This prisonization process erodes prisoners' self-

worth, erases their ability to trust others, makes them more willing to exploit

others, triggers post-traumatic stress disorder, or has other damaging effects.^^

Combined, these factors make it less likely that prisoners, the prison staff, the
public, and the prison culture as a whole will reap the benefits mentors offer to

prisoners.

Recognizing the value of mentors is one thing. Integrating them into prison

operations such that their presence, work, and recognized utility are embedded
in the culture of a prison is quite another. It would be naive to assume that

making mentors a mainstay in prisons would be an easy task. Prison officials

61. A survey of released prisoners conducted as part of the Serious and Violent Offender
Reentry Initiative (SVORI), an undertaking by the federal government to help states reduce the rate

with which released prisoners recidivate, found that 60% of them reported that they needed a

mentor. Christy A. Visher & Pamela K. Lattimore, Major Study Examines Prisoners and Their
Reentry Needs, 258 Nat'l Inst. Just. J. 30, 32 (2007). This statistic may understate the need for

a mentor because some released inmates may not recognize that need or understand the benefits to

be reaped from working with a capable and dedicated mentor.

62. See, e.g., CoFFEY CONSULTING, LLC & Mathematica Pol'y Research, Inc.,
Evaluation of the Prisoner Re-Entry Initiatfve: Final Report 7 1 (Mary Grady & Amy C.
Coffey eds., 2009), available at http://wdr.doleta.gov/research/FullText_Documents/Evaluation%

20oP/o20the%20Prisoner%20Re-Entry%20Initiative%20-%20Final%20Report.pdf(reportingthat

the majority ofmentors participating in a pre-release-services project—to help prisoners securejobs
upon release and otherwise ease their transition out ofprison—came from churches and other faith-
based groups).

63. See, e.g., id. at 1 17 (reporting that almost three-fourths of the prisoners participating in

a pre-release program with a mentoring component were enrolled in the program within only three

months of their release, with almost half of them participating in the program for just one month

before release).

64. For a discussion of the adverse effects on prisoners resulting from the prisonization

process, see Craig Haney, The PsychologicalImpact ofIncarceration: ImplicationsforPostprison

Adjustment, in PRISONERS ONCE REMOVED: THE IMPACT OF Incarceration and Reentry on

Children, Families, and Communities 33, 40-46 (Jeremy Travis & Michelle Waul eds., 2003).
65. See id.



726 INDIANA LAW REVIEW [Vol. 44:703

would have a number of logistical issues, security concerns, and other questions
to address and resolve while planning mentoring programs in the jurisdiction's

prison system. Examples of these questions include: (1) Who will serve as
mentors? (2) How will mentors be recruited? (3) What commitments will be
required of individuals in order for them to be eligible to serve as a mentor? For
example, how frequently must a mentor have contact with the prisoner? How
often must those contacts involve face-to-face interactions? And for what
duration of time must a prospective mentor commit to mentoring a particular

inmate? (4) How much training and what kind of training will be provided to
prospective and existing mentors?^^ (5) How can continuity in mentoring be
maintained when situations change? For example, mentors may die or move far
away, or prisoners may be transferred to another prison.^^ (6) Should only unpaid
volunteers serve as mentors, or should mentors receive some form of
compensation for their services?

There is not necessarily one correct answer to the questions posited above.

Prison officials therefore can, and should, pilot different ways of structuring

mentoring programs to determine the best structure in a particular prison system

or prison. In addition, when planning and implementing these mentoring
programs, prison administrators can consult with organizations that already

provide mentoring services to some prisoners, learning lessons from these
organizations about how to maximize the effectiveness of prison mentors.^^
Finally, those establishing mentoring programs in prison, not just for pre-release

purposes, but also to transform prison cultures, can turn for advice and assistance

to those who have already established mentoring programs for released
prisoners.^^

Inevitably, there will be critics who reject the proposal that a mentor be
assigned to each prisoner at the beginning of a prison term as unrealistic,

reflecting pie-in-the-sky thinking. Unorthodox ways to help at-risk individuals

66. In order to be eligible to serve as a mentor, an individual might, for example, be required

to receive orientation training before this service begins, as well as supplementary training at

periodic intervals afterwards.

67. The value of continuing an existing mentor-inmate relationship and preserving the

optimal number of personal contacts between the mentor and the prisoner could, of course, be

factored into the decision whether to transfer a prisoner to another prison.

68. Prison Fellowship Ministries, which assigns mentors to prisoners participating in certain

faith-based pre-release programs in prisons, is an example ofone such organization. See Brittani

Trusty & Michael Eisenberg, Criminal Justice Pol'y Council, Initial Process and
Outcome Evaluation of the InnerChange Freedom Initiative: The Faith-Based Prison

Program in TDCJ 25 (2003), available at http://www.lbb.state.tx.us/PubSafety_CrimJustice/

6_Links/IFIInitiative.pdf(noting that continued contact with a mentor after release was associated

with lower recidivism rates).

69. See generally RENATA COBBS FLETCHER ET AL., PUB./PRIVATE VENTURES, MENTORING

Former Prisoners: A Guide for Reentry Programs (2009), available at http://www.
ppv.org/ppv/publications/assets/316_publication.pdf (outlining needed steps when incorporating

mentoring into a reentry program for released prisoners).



2011] THE TRANSFORMATION OF PRISON CULTURES 727

make the responsible decisions needed to turn their lives around have often been
met with skepticism. Teach for America, a program offering college graduates

the chance to teach in poor urban schools for two years, is a quintessential

example.^^ Few would have ever predicted at the time the idea for Teach for
America was floated in a senior thesis written by a college student in 1989 that

within a decade, thousands of college students from across the country would be

vying for the opportunity to make a positive difference in these challenging
environments.^'

V. Step Five: Prisoners' Involvement in the Development of Reentry
Plans Whose Implementation Commences upon Incarceration

The fifth pivotal step that will enable jurisdictions to, in a sense, put their

prisons of the past, and sometimes sullied past, behind them is particularly

consonant with the four precepts outlined at the beginning of this Article. These

precepts, which would serve as the underpinnings for a transfiguration in the

ethos pervading prisons, include hope as an imperative, the attainability of

renewal, the catharsis that attends personal responsibility and accountability, and

the duty and call for everyone—correctional employees, prisoners, and others—^to
respect human dignity. ^^

This fifth step entails, in part, the development of reentry plans to foster

prisoners' successful reintegration into the community upon their release fi'om

prisons. Timing is a key element of this step. As Jeremy Travis, one of the
nation's foremost experts on prisoner reentry, recognized a little over a decade

ago, reentry planning should not be deferred until shortly before a prisoner's

impending departure from prison or after release from confinement.^^ Instead,

reentry planning should commence, at the latest, when imprisonment begins.^"*
If implementation ofthe reentry plan begins at this point, the endeavor to address

the problems that contributed to the prisoner's poor choice to commit a crime will
stand the greatest chance of success. In addition, the timely implementation of

the reentry plan will equip the prisoner to adopt a law-abiding lifestyle earlier,

while still in prison and not just upon release.
Another key facet of this fifth vehicle for transformative change is that

prisoners would play a central role in the development of their individualized

reentry plan. It is this part of the recommendation that will, for at least two

70. See generally WENDY KOPP, ONE DAY, ALL CHILDREN . . . : The UNLIKELY TRIUMPH OF
Teach for America and What I Learned Along the Way (2001) (describing the Teach for
America program and its genesis).

71. Seeid.dX5-U, 149.

72. See supra pp. 704-05 and accompanying footnotes.

73

.

See Jeremy Travis, But They All Come Back: Rethinking Prisoner Reentry, 1 Sent'G &
Corr.: Issues for the 2 1st Century 1, 2 (2000), available at http://www.ncjrs.gov/

pdffilesl/nij/181413.pdf

74. Cf. id. at 8-9 (proposing that the role ofthe sentencing judge be expanded to oversee the

development and execution of an individualized reentry plan for a person sentenced to prison,

beginning at the time of sentencing).



728 INDIANA LAW REVIEW [Vol. 44:703

reasons, give some people the most pause. First of all, there is a tendency for
people to want to intercede in prisoners' lives and "fix them" so that they do not

persist in making the bad choices that culminated in their imprisonment. Whether

this proclivity reflects hubris about a person's ability to correct the flaws and

failings in other people, genuine benevolence, or its opposite—the dehumanizing
view that prisoners are like broken objects to be repaired—the end effect is that
prisoners are, for the most part, shunted to the sidelines during the reentry-

planning process.

Another hindrance to prisoners' significant involvement in reentry planning

are correctional officials, wedded to the status quo, who view the prospect of a
prisoner being part of a collective problem-solving process—in this case, part of
a reentry-planning team—as threatening. Underlying their wariness, at least in
part, is the concern that according prisoners an instrumental role in this kind of

decision-making process will empower them.^^ This empowerment, it is feared,
will in turn make prisoners less compliant, more difficult to manage, and even
belligerent.

What is unsettling about this topsy-turvy thinking is that it has, ironically,
helped fiael, rather than curb, the negative attitudes and behaviors in prisoners

about which prison officials manifest concern. This close-minded opposition to

a new paradigm in the treatment ofprisoners has also foreclosed those who work
and live in prisons, as well as the public, from reaping the many benefits of such
a model. If we begin recognizing that prisoners have a vital role to play in
planning, in concert with others, how to revamp their lives, all would benefit.

There are multiple reasons why prisoners should not be considered just a
focus of the reentry-planning process, but a primary, not secondary, partner in

that process. First, welcoming prisoners into the reentry-planning process and

underscoring the crucial role they will play in that process will teach or remind

them that while others, both inside and outside prisons, perform important

75 . Over a decade ago, then director ofthe Missouri Department ofCorrections Dora Schriro

wrote about the need to depart from the prevailing norm in prisons, in which virtually every facet

of a prisoner's life is controlled by prison officials, and vest prisoners with heightened decision-

making responsibilities. Dora Schriro, Correcting Corrections: Missouri 's Parallel Universe, 8

Sent'g & CORR.: Issues for the 2 1st Century 1 (2000), available at http://www.ncjrs.gov/
pdffilesl/nij/181414.pdf Director Schriro acknowledged that her proposal entailed a transfer of

some "power" from prison officials to prisoners, something prison officials traditionally have been

loath to do. Id. But she underscored that according prisoners opportunities to engage in decision

making and problem solving can better prepare them for the decisions they will need to make and

problems they will need to surmount upon their release from prison. See id. at 3 (describing the

"parallel universe" to be created in prisons, mirroring the decision-making responsibilities and

accountability that exist in the free world, as a "corrections-based reentry program").

The specific recommendation discussed in this Article—to include a prisoner as a member of
his or her reentry-planning team—is consonant with the "parallel universe" for which Director
Schriro has advocated. However, the primary impetus for the recommendation is to alter

profoundly what life is like within prisons, both for correctional staffand prisoners, rather thanjust

what life is like for prisoners and others upon prisoners' release from prison.



2011] THE TRANSFORMATION OF PRISON CULTURES 729

reentry-related functions, the ultimate responsibility for the successful transition

into community life rests with the prisoner. This emphasis on personal

responsibiHty will heighten the prospect that reentry plans will meet their

objectives—that prisoners will refrain from committing crimes and from the
maladaptive thinking patterns and behaviors that often are precursors to criminal

conduct. Prisoners will be less prone to engage in the blame game that frequently
precedes and helps precipitate criminal conduct: "No one's given me a fair shake
in life, so it's okay for me to do this" or 'T need to commit crimes because I can't
get a job because I can't read, which is because the public schools I attended were

so bad." Other permutations of such fmger-pointing rationalizations abound.

A second reason why prisoners should be part and parcel of the reentry-
planning team is that when prisoners work hand-in-hand with others to develop
their own reentry plans, rather than having those plans imposed on them as a fait
accompli, the significance of different parts of the plans will be more

understandable to them. They will, for example, more fully grasp why it is
important that they complete and excel in a vocational-education program in the

prison. Not only will the program help the prisoner develop marketable job skills
and critical life skills, such as a work ethic, but the director of that program can
then write letters of recommendation on the prisoner's behalf. This will increase

the possibility that the door to a job outside ofprison—a door that otherwise will
be difficult to even budge^^—will open. So when prisoners, through their
participation in the construction oftheir own reentry plan, comprehend the import
of each component of the plan and the interrelationship between various parts of
the plan, they will be more inclined to embrace the plan and perform their
responsibilities under it.

Apart from prisoners' acceptance of personal responsibility for their

successful reentry and the understanding and embracing of reentry plans that are

likely to ensue when prisoners help to create them, prisoners' participation in the
development of their reentry plans will enhance their effectiveness for a third

quite basic reason: their quality will be enhanced. The simple fact is that reentry
plans are designed to assist prisoners in overcoming challenges that, if not

surmounted, may lead them to make, once again, the foolhardy choice to commit
a crime, whether inside or outside prison. And who better than the prisoner can
identify, with the assistance ofothers,^^ the specific impediments to a law-abiding

lifestyle that he or she currently is facing or will face upon release?
A fourth benefit of assigning prisoners a central role in planning for their

reentry into a community is that it can help combat the deleterious effects of the
prisonization process alluded to earlier. ^^ One particularly insidious consequence
of this depersonalizing process is that prisoners become accustomed to the tight

76. Surveys have confirmed a marked reluctance on the part of employers to hire ex-

prisoners. Solomon et al., supra note 3, at 13.

77. The reentry-planning process will therefore entail introspection on the prisoner's part, as

well as the reality check and professional expertise that others can contribute to that introspective

assessment.

78. See supra notes 64-65 and accompanying text.



730 INDIANA LAW REVIEW [Vol. 44:703

controls exerted over them in prison and eventually become highly dependent on
others to make choices for them7^ When they later are released from prison, they
lack the confidence, resilience, and often even the ability to initiate the most basic

steps to adapt to life outside prison, such as applying for a job or seeking housing

away from people who were criminal compatriots in the past. Participating in the
decision making that attends reentry-planning can prevent this erosion or

destruction in decision-making and problem-solving skills that may compromise
reentry efforts; this participation in fact can help to develop and fortify these

skills.

The discussion thus far of the reasons for integrating prisoners into the
reentry-planning process has focused primarily on one outcome: the

effectiveness of reentry plans, both in terms of their quality and prisoners'

adherence to their terms. But another central question is whether assigning

prisoners an instrumental role in reentry-planning is related to the transformation

in prison cultures for which there is such a discernible need and for which this

Article calls. The answer to that question is, indubitably, yes, which brings us to
the fifth value of integrating prisoners into the reentry-planning process. The
inftision of the normative value ofpersonal responsibility into the prison culture,

as well as the engaging of prisoners on a regular and ongoing basis in proactive

problem solving, will signal, as well as help catalyze, a shift in the attitudes of

both prisoners and correctional employees. Attitudes will shift from getting by,

putting one's time in, keeping the lid on, and keeping one's head down to
something that is elusive in prisons today . . . hope.

The transformative power of hope cannot be overstated. It is redemptive,
cathartic, healing, and uplifting. It is the antithesis of despair. It has been said,

in so many different ways, that when a person loses hope, he or she loses
everything. And therein lies the quandary created by imprisonment. An
unknown author once observed, "When the world says, 'Give up,' hope whispers,
'Try it one more time.'"^^ But the dominant and deafening message society
currently sends prisoners, through what transpires and fails to transpire while they

are imprisoned, is: Give up! That is not only a disheartening message, but also

a dangerous one. As the novelist Marie Louise de la Ramee (pen-named Ouida)
once warned, "Take hope from the heart of man, and you make him a beast of
prey."^^

The challenge, then, is finding the ways to instill hope in the hearts ofpeople
whose pasts are often replete with failures and stained by the stigma of criminal
wrongdoing, who may be consumed with guilt and remorse for the pain they have
caused a victim, family members, and others, who are targets of disdain because
of their misdeeds, and whose liberty has been so dramatically curtailed. As
mentioned above, vesting prisoners with the responsibility to help identify what

79. See Haney, supra note 64, at 40-41

.

80. Simran Khurana, Quotations About Perseverance: Hope, A Select Collection of
Quotations, About.COM, http://quotations.about.eom/cs/inspirationquotes/a/Perseverance7.htm

(last visited June 15, 201 1).

81. II OuiDA, A Village Commune 61(1881).



2011] THE TRANSFORMATION OF PRISON CULTURES 73

1

they need to do, and can do, to realize the goal of becoming productive, law-

abiding citizens is one step, though not the only step, that will begin to offer them

this hope—a hope that they may have lost long ago or perhaps never had. The
introduction of restorative justice into the daily Hves of prisoners can also be a

fount of hope.^^ And there are many other ways, including the content and tenor
of daily communications between correctional staff and prisoners, in which the

hope prisoners need to brave the inevitable pain and hardship ofincarceration can

be communicated and nurtured.

The final, though related, reason for treating prisoners as partners in the

reentry-planning process is straightforward, but compelling. Treating prisoners

not as objects, but as the human beings they are, no matter how despicable their
prior actions, will demonstrate an unflagging commitment to human dignity. It
is that commitment to human dignity that will, in the end, be the essential
underpinning of any endeavor to transform prison cultures. Taking the

initiative—and what I believe is the moral path—of treating prisoners with
dignity will make it more likely that prisoners, in turn, will treat others, including
correctional staff, with dignity. And when the day is reached in this nation's
prisons when a critical mass of correctional staff treat prisoners the way the staff
would want to be treated if they faced the isolation and debasement that

accompany a prison sentence, and when a critical mass of prisoners treat
correctional staff the way the prisoners would want to be treated if they faced the
hard and dangerous task of working within a prison, the transformation ofprison

cultures will no longer be an ideal for which few now dare even to hope; it will
be a reality.

Conclusion

It may be a well-worn adage, but Albert Einstein correctly observed that
insanity is "doing the same thing over and over again and expecting different
results. "^^ Yet in prisons throughout the United States, we have, since their
incipiency, been doing the same thing over and over again, and in recent years,
at an accelerated pace. Yes, it is true that many prisons no longer have a
dungeon-like appearance ... to the external eye. Some prisons, or at least parts
of them, even look a bit like college campuses, with their manicured lawns,

sleeping rooms with doors instead of cells with cage-like metal bars, and

classrooms in which at least some prisoners can go to school. If one digs beneath
the surface of even these prisons, however, it is soon discovered that they share

many commonalities with their more dilapidated counterparts of the past and
present. Specifically, they share the problems that contributed to prisoners' errant

choices to commit crimes being usually ignored or addressed ineptly by the
prisoners and correctional staff. They also share a pervading sense of

82. See supra notes 42-59 and accompanying text. The well-trained mentors for which this

Article calls can also give prisoners the encouragement and practical advice from which hope can

spring. See supra notes 60-7 1 and accompanying text.

83. Albert Einstein, Albert Einstein Quotes, NOTABLE QUOTES, http://www.notable-

quotes.eom/e/einstein_albert.html (last visited June 15, 201 1).



732 INDIANA LAW REVIEW [Vol. 44:703

hopelessness and aimlessness stemming from prisoners' certitude that they cannot

put their pasts behind them and that society, in any event, will not allow them to.

Finally, they share the feelings of futility or indifference felt by correctional staff

convinced that they either cannot or need not assist prisoners, in a meaningful

way, to turn their lives around. Prisons still continue to be, in short, places

largely marked by depersonalization, degradation, despair, boredom, bitterness,

anger, and fear.

They do not have to be. It is the premise of this Article that conditions in
prisons can not only be improved, as they have been in some prisons, but that the
culture within prisons can be transformed. This Article posits how prisons can
become places where the brunt of correctional staff and prisoners (there will
always and inevitably be outliers) are instilled with a sense of hope, despite the

challenges and hardships that inevitably accompany residence or employment in
a prison. How prisons can become places fostering an understanding, shared by
correctional staff and prisoners, that with guidance, support, and a lot of hard

work, prisoners, like other people, can learn from their mistakes, change their

attitudes, refrain from hurtful actions, and help others. How prisons can become
places where prisoners assume personal responsibility for their crimes by
attempting to remedy, to the extent possible, the harm their crimes have caused.
And how prisons can become places marked by a singular message: No matter
who you are and what you have done in the past, you will be treated with dignity
while you are living (or working) here.

I have no illusions, and I do not profess, that the transformation in prison

cultures for which this Article calls would be easy. Fundamental change never

is. There is always reticence or resistance on the part of many to initiatives to
depart from the status quo. But as President Ronald Reagan once aptly noted,

"Status quo, you know, that is Latin for 'the mess we're in.'"^"^

This Article has proffered five recommendations that, if implemented,

provide the foundation for a transformation in prison cultures from which society

as a whole will benefit. The recommended steps include: ( 1 ) adopting a statutory
cap in each jurisdiction on the per-capita imprisonment rate—a cap at least 50%
lower than the current national rate; (2) developing and implementing a

comprehensive plan by each state and the federal government to make prison
operations and conditions more transparent and accountable to the public; (3)
incorporating restorative-justice principles into prison policies, practices, and

programs; (4) assigning each prisoner, upon imprisonment, a trained and

dedicated mentor to help shepherd the prisoner successfully through the

challenges and traumas of life behind bars; and (5) assigning prisoners an

instrumental role in the development and ongoing refinement oftheir own reentry
plans, whose implementation would commence at the very beginning of their
confinement. These recommendations, upon close examination, are not radical,

but tempered. They are grounded on data, lessons learned from other countries,
core human values, and a sprinkling of common sense.^^

84. See Reagan Remarks, supra note *.

85. As an example ofthe latter, the recommendation that each prisoner be assigned a trained



201 1] THE TRANSFORMATION OF PRISON CULTURES 733

The jurisdictions that choose, wisely, to take the needed steps outlined in this

Article will confront a number of questions concerning the details of their

implementation. A sign that I once chanced upon serves as a reminder of the
importance of such details. The sign read:

"Let's eat, Grandpa."

"Let's eat Grandpa."

What a difference one small detail—in that case, a comma—can make. But while
it behooves us to remember that the devil (or his counterpart) is in the details, I

recommend the thoughtful and expeditious implementation by each state and the
federal government the five proposals set forth in this Article to transform prison

cultures and clean up, for everyone's sake, "the mess we're in."^^

and committed mentor at the outset of his or her incarceration comports with the truism that there

are few among us who are so stalwart that they don't need a friend to get through life and its

travails.

86. See Reagan Remarks, supra note * and text accompanying note 85.