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Whither the Law?

November 11, 2005


I first became involved in prisoner oriented litigation in the early 1960s; indeed, I received my first legal-related infraction at the U.S. Prison at Lompoc, California, in 1963, for “illegal procedure in writing a writ” (my crime was to assist another prisoner with his post conviction relief petition). In those days there was something called the “hands off doctrine,” which essentially held that prisoners have no rights the federal courts are bound to respect—that they are literally slaves of the state. After all, the courts reasoned, the 13th Amendment to the U.S. constitution legitimizes this condition of slavery. With the advent of a growing prisoner rights movement of the late 1960s and early 1970s, however, that old reasoning slowly changed.

While today we have not totally gone back to the hands off doctrine, we’ve now got pretty much the same thing. Now they say while prisoners do have due process rights, the needs of the state, however frivolous they may be, trumps those rights—meaning of course that prisoners have no rights at all.

A unanimous U.S. Supreme Court has recently dashed the hopes of those who look to the courts as an avenue of salvation from the ever-increasing levels of deprivation and repression being visited prisoners. In the case of Wilkinson, Director, Ohio DOC, et al. v. Charles Austin et al., No. 04-495, decided June 13, 2005, the high court noted that “In the OSP [a Supermax or SHU facility] almost every aspect of an inmate’s life is controlled and monitored. Incarceration there is synonymous with extreme isolation. Opportunities for visitation are rare and are always conducted through glass walls. Inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact. Placement at OSP is for an indefinite period, limited only by an inmate’s sentence. Inmates otherwise eligible for parole lose their eligibility while incarcerated at OSP.” The court went on to note that: “For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; his cell’s light may be dimmed, but is on for 24 hours; and he may exercise only one hour per day in a small indoor room.” Moreover, such placement is reviewed only once per year. Yet when all is said and done, the court held “that courts must give substantial deference to prison management decisions before mandating additional expenditures for elaborate procedural safeguards when correctional officials conclude that a prisoner has engaged in disruptive behavior.” So how much process is due before locking someone up in one of these dungeons for an indefinite period? According to the court the answer is an “informal, nonadversary procedure….”

As mentioned earlier, there was a time when the rights of prisoners could be extended through use of the judicial system. As can be seen by Wilkinson, and the numerous cases just like it, those days are all but over. The courts can from time-to-time still be used for the occasional defensive struggle, such as stopping censorship our newsletters, but to expect any significant advances to be made as a result of litigation (such as shutting down the SHUs) is an exercise in futility—we are merely throwing wadded up paper balls at them. I would suggest that the task of today’s advanced prisoner support activists is not litigation, but organization.

Which brings us to the question of how relevant is the legal front in today’s struggle for the rights of prisoners? The 13th Amendment banned slavery except for those convicted of a crime. In other words, slavery still exists for some 2.3 million Americans. Worse, there are countless millions more who have been disenfranchised (a modern Jim Crow) as a result of their status as previously convicted persons. While the issue of prisoner enfranchisement (right to vote) is pending appeal in the U.S. Court of Appeals for the 2nd Circuit, in a lawsuit filed by political prisoner Anthony Jalil Bottom, the outcome of that litigation will most likely turn on a political rather than legal rationale. If formerly incarcerated individuals had been permitted to vote in Florida’s 2000 presidential election George W. Bush would have never been president. Democrats know this.

From California to Florida there is a push by liberals to enfranchise ex-felons. This has nothing to do with their love of prisoners, and everything to do with their love of the Democratic Party. Even the New York Times has editorialized on the need to give ex-felons and, shudder, prisoners the right to vote. They understand that, for the most part, prisoners will not be voting for pro-lock ‘em up; pro-death penalty, anti-parole Republicans. So here comes the vote, not from the courts, but from bourgeois politicians. Oh, the courts may hand down the ruling, but it will be the existing political climate that caused it to happen. In the late 1960s and early 1970s it was the prisoners that created the climate for judicially mandated reform and the expansion of prisoner rights. Today, sadly, it is the liberal wing of the bourgeoisie that is providing the necessary impetus.

So before too long the vote will come, at least to ex-convicts and very possibly to those still on the inside. And in time, lots of time, the 13th Amendment may be modified to abolish slavery once and for all. But that’s a story for another day. Today we need to talk about how we can use our small amount of influence to insure that this vote thing does not unfold in a manner that is antithetical to prisoner interests. The Democratic Party will try to get the vote to felons using the absentee ballot, thus dispersing the impact of their ballot over the entire state. But prisoners are counted in the census for the county in which they are confined, and those counties receive funds from the state on the basis of that count. The prisoner vote should be concentrated in the respective county where the prison is located, not scattered by absentee ballots. Since most prisons are located in remote areas, with such a condensed voting block prisoners will be able to have local politicians catering to their legitimate needs—visiting, vocational facilities, etc.

What does voting have to do with shutting down the nation’s Security Housing Units? The path to closing the SHUs is the same as that needed to organize around are the right to vote (winning the franchise for prisoners) and the final abolition of slavery in the United States. Conjugal visits, wages, and myriad other issues can be raised at the same time, but the guiding star should be the elimination of the pro-slavery segment of the 13th amendment. It is through organizing around these issues that the strength necessary to shut down the SHUs can be built. We are not going to accomplish this goal through lobbying or litigation, but only through organizing—both inside and out.

Why not organize only around the SHU? Because only by involving the general population and their families in the larger struggle for change can the necessary strength be developed. And neither the general population nor their families are going to go down for the SHU alone. My friends and I (we called ourselves the Walla Walla Brothers) once shut down a SHU. It was called the Intensive Management Unit (IMU) at Walla Walla. Some day I will write the whole story, but for the sake of brevity let me just say that through ongoing work we were able to get the general population to engage in a 47-day work strike, the longest in state history, which resulted in our release from the IMU and the transformation of the IMU from a hole to a privileged housing unit. The population had 14 demands, the first of which was to rectify the IMU. So it can be done, but not by focusing on just the SHU.

Every human being has a right to life, liberty, and the pursuit of happiness. Rightly or wrongly, prisoners have lost their right to liberty, but their inalienable right to the pursuit of happiness remains. While we all stand for the abolition of prisons, a goal that in this writer’s opinion will require a radical transformation of existing class relations, there are a number of intermediate steps that can be taken while on the road to that goal. If we keep these basic human rights and our class bearings in mind we will not get lost in the twists and turns on that road.

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