Episode 2: Incarceration by Design
Incarceration by Design: How Washington changed its sentencing system for life and long sentences. Incarcerated people and their loved ones navigate a complex system of guidelines, grids, indeterminate sentencing review boards, and more. We’ll learn about Washington’s draconian sentencing practices and laws that doubled its incarceration rate, instituting life and long sentences, disproportionately affecting Indigenous peoples and people of color. This episode features an interview with Dan Berger, a historian and co-curator of the Washington Prison History Project.
You can see Washington state’s sentencing grid here: https://app.leg.wa.gov/rcw/default.aspx?cite=9.94A.510
For a photo essay and Dan Berger’s look back on tragedy, failure and the history of prison in Washington, see: Hoffman, E and McCoy, J (2018) Concrete Mama: Prison Profiles from Walla Walla (Seattle: University of Washington Press, 2nd ed)
For an in-depth report, see: Beckett, K and Evans, HD (2020) "About Time: How Long and Life Sentences Fuel Mass Incarceration in Washington State." American Civil Liberties Union (ACLU) of Washington
Credits
This episode was hosted by Ralph Dunuan, produced by Megan Ybarra, and edited and mixed by Anvar Hassanpour. Special thanks to Professor Dan Berger and the work of the Washington Prison History Project. This podcast was supported in part by a Scholar-Activist Project Award from the Antipode Foundation.
Transcript
Ralph: Welcome back to CHOICES podcast, Prisoner led Media for Liberation. Hi, I'm Ralph Dunuan, your host calling in from the WA Corrections Center. Last episode, I shared my story, including coming to terms with a long sentence with no meaningful opportunity for parole, just having to walk that off. This time hasn’t been easy, either – I’ve spent years in solitary confinement. If you haven’t listened to it yet, please check it out. My individual history is part of the history of state violence against Black and Indigenous peoples. Over the last 40 years, Washington state prison populations rose by 337%. And over 40% of people in prison are serving long sentences of ten or more years. So, today we’re going to talk about how prison sentences get determined, and then we’ll look back at how we got here.
Megan: And this is Megan Ybarra, co-hosting today with Ralph. If you’re not directly impacted, you might not know a lot about how the system works. Growing up, I thought that people have a right to a lawyer if they can’t afford one, that most people accused of crimes go to trial, and that a judge had discretion in handing down a sentence. But in Washington state, as in many states, most cases don't go to trial. Most lawyers don't know about the intersection between criminal and immigration law. And some of the most important factors in setting up your sentence are the prosecutor’s decision about charges and this thing called a sentencing grid. If you want to follow along, check out our show notes at choices media dot org to look at the grid.
So, Ralph, can you explain to us what a sentencing grid is and how the sentencing process works in Washington?
Ralph [00:02:44] Yeah. So. In the 1980s, Washington state got rid of its parole system and it implemented what's called the Sentencing Reform Act, which we usually call an SRA. And what they did was create a sentencing grid. And that grid, essentially, Like you said, discretion from not from a judge. The judge has no choice and looks down this grid and said, okay, this is what fits. This is the sentence that I have to give you. Doesn't matter what transpired in your life, it doesn't matter how youthfulness plays into it, it doesn't matter. They have to sentence you to that specific amount of time. And with that grid, this is. The first row. You see, on Roman numerals with a score for the actual crime. And then on top of that grid, is a numbering system, Those are what you call your points. And each row that needs its column has a set number. It will have like 100 months to 250 months.
So in my case, they went to the Roman numeral that was my actual charge. And then, I have two points for the current charge that I have. And then they added another two points for my juvenile points. So that gave me four points. So they moved over to the fourth column. Go down to where my crime sits. And then there was a specific number. And then within that number, the judge can sentence you anywhere in that. Which, I believe mine was 360 months to 425 months, somewhere around there. And that's on top of other factors like sentencing enhancements. And anticipatory crimes, right? it's all laid out and the judge has no discretion. There is no accident. There is no you know, let me consider the circumstances of this situation. It just is what it is. And you have to do that time.
Now, in my case. So there's… Now, I don't want people to be confused with the sentence from an earned early release date, Right? Which is the minimum time that you can serve on your sentence. And then you have your maximum release date which is you cannot serve any time beyond that date. If you do, then you’re illegally being held in custody and you can actually sue the state for that. So how this grid works, is the prosecutor will charge you. Once you're found guilty, the judge at a sentencing hearing will say, okay, based upon these points, these enhancements, your sentence is x amount of years. So that's the impact that the SRA sentencing grid plays on somebody's life.
Megan [00:06:22] So in your case, what's your early release date and what's your maximum release date?
Ralph [00:06:28] My earliest release date is 2027 and my maximum release date is 2030.
Megan [00:06:36] Okay. So not a lot of room in between in terms of like say you make good changes with programing, or you come to accountability. That sounds like a three-year difference if I'm understanding correctly.
Ralph [00:06:48] Yeah. Correct.
Megan [00:06:51] So I think one of the things that that I'm learning from this is sort of, you got three aspects of the sentencing grid, right? You got the charges, you got the points, which is more or less your history and other kinds of factors, including your history of when you were under 18. And the third thing that's called quote unquote enhancements, which is essentially additional sentences that the prosecutor moves to include. We talked a little bit about judicial discretion in the charges, but one of the other things I've learned is that ultimately, the prosecutor can decide what charges to instigate and whether or not they get and how they get stacked. So, prosecutors play a huge role in deciding what the sentences for someone, and there's not that much room for maneuver between your early release date and when your max release date, at least for someone like you. Does that sound right?
Ralph [00:07:46] Yeah, correct. You know, it doesn't matter that somebody has the ability to better themself. It doesn't matter that some people, in some cases, have been able to do the correct processes, reach out to their victims and go through a process of forgiveness and healing. None of that matters. And it doesn't matter that, a victim or survivor has, you know, I don't want this person to serve out all this time, he saw through his own actions that he is rehabilitated, that he's been accountable, that all these things, it doesn't matter. Once you receive that sentence, then that's the time that you serve. And unless you go back on appeal or a violation of your sentencing, they sentenced you incorrectly, like incorrect points or any of those things. You know, if you don't have none of those grounds to appeal in court then you're serving that time.
Megan [00:08:47] I will say, over the years that we've known each other, I've moved from Washington state to California, and California for a while, also really got wrapped up in the kind of 1980s tough on crime, ramping up sentences with this idea of the “super predator,” which was primarily Black and brown teenage boys. And California has begun to move away from that in a lot of ways. And I would argue that it's made a little bit more progress than Washington State has in that regard. So, I think it's really important for us to before we get into talking about all the bills that are going to fix these problems to learn a little bit more about where they came from in the first place.
Ralph [00:09:29] Yeah. To understand more about how Washington state allows judges to have any kind of discretion, what happened to parole, and began to rely almost exclusively on prosecutor judgment, we talked to Professor Dan Berger.
Megan [00:09:54] Okay, so with me today is Dan Berger, who is a historian of activism, Black power, prisons and the carceral state. He co-curates the Washington Prison History Project, a digital archive of prisoner activism and prison policy. Dan, thanks for joining us today.
Dan [00:10:12] Thanks so much for having me.
Megan [00:10:14] So just to get started, can you give us a little bit of an understanding about when Washington state began to enact harsh, mandatory sentences and what the broader impact of all these laws has been?
Dan [00:10:28] Yeah. So, you know, Washington is pretty much in line with what's happening around the country in terms of embracing harsh sentences in the early 1980s in Washington, the Sentencing Reform Act first comes up in 1981 and goes into effect in 1984. And this really was part of a larger “get tough” orientation that was happening around the country. Washington, in some sense, is a little bit later than, than some other states. California starts to enact what they called determinant sentencing. So doing away with these vague, indeterminate sentences that were common, but in the process making the length of sentence much longer. But I think it's really important to take note of the fact that it's not just harsh and extreme sentences, but a worsening of conditions that often precedes the tougher sentencing laws. So in Washington, beginning in the late 70s, you had an expansion in the use of solitary confinement and isolation and an attempt, particularly at the Washington State Penitentiary at Walla Walla for the guards to, as they would have put it, take back control. And to really reassert a much more severe authority over the prison population. And so that really begins in the 1970s and I think paves the way for, the Sentencing Reform Act and the idea that people needed to be held in prison in more restrictive forms of confinement for longer periods of time. And the results that we see from that are, you know, a dramatic expansion in the number of people incarcerated that that also, leads to an expansion in the number of prisons across the state of Washington.
Megan [00:12:25] So, you know, the language of the 1981 Sentencing Reform Act, certainly includes the some of its major goals, this idea of rehabilitation. But you what you were rightly describing as harsher conditions on the inside, particularly in terms of guards and increased solitary confinement. Was that something that was perceived as coming from the legislature, or was that the Department of Corrections changing the agency culture?
Dan [00:12:54] Yeah, it being a classic, why not both situation. Right? But I think particularly, well, while, you know, there was a certain kind of, you know, a kind of bottom up response, right, where there was intense opposition from the staff at the penitentiary to what they perceived as a to, you know, open and freewheeling culture among incarcerated people. And that was a kind of resistance to central staff at the Department of Corrections, which had earlier, you know, late 60s, early 70s, tried to create these opportunities for shared governance with the prison population All kinds of problems ensued that we could talk about, but the long and short of it is that I think the guards were responding to what they saw as an increasingly rebellious, insurgent, violent prison population that they wanted to control. And so, there is a kind of grassroots insurgency from, from the guards. And again, this is we see very similar things happening in other parts of the country. You know, most famously in Walpole, Massachusetts, guards walked off the job, and, and prisoners ran the institution for four months, because the guards were trying to have more control over the institution against some kind of reformist attempts at the Department of Corrections to let incarcerated people have more authority. And so, you know, the more that I dig deep into the specifics of Washington history, the more that I want to make these connections to what else is happening around the country? Because I really do think it is this convergence of kind of right wing, sort of perched right, that's a right-wing sort of counter-insurgency from guards meeting an increasingly austere and severe response from state legislatures and that sort of national political climate. That was sort of moving towards a much, much more punitive orientation.
Megan [00:15:04] So in Washington state, the people with the highest incarceration rate are Indigenous and then very closely linked to that are the rates of Black people. Was there an increase in racial disparities in terms of how people are incarcerated or how long they're incarcerated that is tied to this rise in in the late 1970s and 1980s in, harsher conditions and longer sentences?
Dan [00:15:30] Yeah, absolutely. And I think we need more research and more excavation of this history from people who were part of it. But, you know, the main struggle is at the penitentiary in the late 1970s, where Indigenous prisoners Jimi Simmons and his brother George Simmons, you know, were two, Muckleshoot men who incarcerated the penitentiary, who were accused of killing a guard. The brother was convicted and died by suicide. Jimmy was acquitted after, you know, sort major international defense campaign. But this this was all tied together with the attempt by guards to kind of crush what they saw as a prisoner insurgency, the Sentencing Reform Act, as you mentioned, you know, had some language about rehabilitation. It also was about getting tough, specifically on people convicted of violent offenses. And so, I think many people listening will be familiar in the last 10 or 15 years with this attempt to separate the, you know, nonviolent drug offenders from the serious bad guys that attempts a lot of this in our forum conversations. But that's not new. I mean, this is exactly what the Sentencing Reform Act was instantiating. And so, you know that when you think about who is most heavily policed, who is most heavily charged, and who's most heavily sentence, the racism of the legal system, while long predating this period, is really re inscribed to the Sentencing Reform Act. Right. And so, it's getting tougher on the people who are seen as the worst of the worst, which in this country is inseparable from racial and colonial formations. And so, this is absolutely the moment where the state gets much tougher on black and Indigenous incarcerated people. And I think it's about the situation because it's not like black Indigenous people were just targeted for the first time in the 70s or 80s. The history of incarceration, going back to the founding of McNeil Island as a prison was about incarcerating and confining Indigenous people and immigrants. The first base of the prison population in Washington state. And so, in some ways, this is an old story. But what changes in the 70s and 80s is sending people away for longer periods of time and making sure that the conditions were as atomized and isolated as possible. And I think we see that play out, particularly, among Indigenous and black prisoners in that time period.
Megan [00:18:33] That's really fascinating. I mean, it makes me think about the Coast Salish tribal context. To the extent that the termination policies of the settler federal government failed, the 1970s really saw a lot of take backs, with everything from, Fort Lawton being taken over by the American Indian Movement, all the way up to the Cushman Hospital. 1974 was when the federal government put down what's commonly known as the Boult decision, that upheld the right of Coast Salish tribes to, fish in common and force shared governance on Washington state, which at that time argued that because tribes like the PLO did not have a land base, they no longer existed. And so this was a real moment in which Washington state, as an entity, was in direct conflict with the federal government over its attempt and physical violence that was repeatedly enacted upon Indigenous peoples who were practicing their treaty rights. So that's a really interesting and important piece of that context that, might help me understand a little bit about how and why incarceration and Indigenous peoples are often not the kinds of connections that we're making, but they make a lot of sense in Washington state.
Dan [00:19:54] So there's a very famous, case that I am shocked that there's not more written about. And so, my own knowledge of it is not as deep as I would like. But there's a man named pop to it who, it's a native man, and I. I don't recall that nation. But he sees the state over the conditions of confinement. Contributes to the state Department of Corrections being put into federal receivership. Which, again, was something that happened in several states around this time period that the conditions of confinement were so abusive and so aggressive that the federal government superseded state control of the prison system. And the fact that this emerged from a case brought by a native man of over condition at the Washington State Penitentiary in Walla Walla. I think it's something that that we all need to know a lot more about.
Megan [00:20:52] That's great. I will definitely try to learn more myself. Tell us a little bit about the Washington Prisoner History Project, and how it's helped you reveal ways of understanding how prison works and how people might advocate for themselves behind bars.
Dan [00:21:08] Yeah. So the prison history project was a, happy accident. I had been saying for a long time, based on other both academic work as well as activist work, that I've done, that, prison is an archive. And we have to learn how to to listen to the stories that it tells, and specifically to listen to the storytellers who who are incarcerated there and otherwise impacted by the system. And then, formerly incarcerated man who spent close to 20 years inside Washington prisons at me and asked me to help him donate his papers to the university so that they could be preserved and public for future generations. And Add was, you know, lifelong Marxist revolutionary. It was a part of a underground group called the George Jackson Brigade. And, you know, so for him, it was not about academic researchers. He wanted to be preserved for anyone who would benefit from it. But specifically for leftists and activists. And our library had a really strong commitment to making things, open access publicly available. I was very struck by how much Ed's papers were, not just his own story about That these prisoner produced newspapers that he was a part of, or that he was reading from the late 70s until he got out in the early 90s. And so, it was just this clear window into a collective experience of incarceration at a really pivotal time, where Washington is locking up more people in and building new prisons. And so that was sort of the foundation of the prison history project. And since that time, we've tried to make a space for incarcerated people to share what, whatever stories they want shared with the public that they want archived and preserved for the future. I know I've always been impressed with the kind of civil society that exists inside Washington prisons, through the different cultural groups, and other social, political, cultural organizations that are very deeply engaged in policy fights, that are very deeply engaged in peer education and mutual aid. I think to the extent that people want those stories and reflections preserved, I think it can help us in the kind of narrative change work that I think all of us who are who are trading mass incarceration or are needing to do right now to really understand what prisons are and what prisons do. I think it's something that is very keenly felt not only by incarcerated people, but by their loved ones. And my hope is that this archival project can be a way to help anchor that set of experiences for larger publics, so that it could be a way that incarcerated people and their loved ones can account for their own history, right, and can preserve their own history, as a way to, to, assist the ongoing struggles against the prison state.
Megan [00:24:24] Yeah. I've been thinking a lot about, you know, there are the very real ebbs and flows. You know, all activism and organizing goes up and down over time, and you'll have these sparks of, you know, a moment like the 2020 George Floyd protests that are also going to be preceded by a lot of Brown building work. And then there are going to be all these afterlives that continue. You know, from my perception, there was a real downturn in a lot of Washington state activism in the 1980s. And I'm wondering if you think that the work and the Prison History Project helps unearth or reveal some of the ongoing organizing that was happening that maybe, isn't as accessible to people on the outside?
Dan [00:25:04] Yeah, totally. I mean, I think one can really track that quite nicely through The Prisoner publications that were originally included in EDS donation. So in the 70s, you know, Adams is a part of something called the the Red Dragon newspaper, which, you know, as a peer, publication called The Anarchist Black Dragon. And these are very militant revolutionary because in their papers and as the prison system cracks down, but also as a sort of broader left wing movements outside of prison are also receding and facing different kinds of attack. The publications continue, but their names change, right? So you get, you know, United Concerned Friends and Family newsletter. By the 80s, you get a paper called The Abolitionist. Which I think is a really important thing to know, because people often think of dating as sort of modern prison abolition context to the founding of critical resistance in 1998, or some of those kinds of things are very important. But actually there were people talking about abolition within the Washington state prison system. A good ten, 15 years before that, and the abolitionist becomes Prison Legal News, which is the newspaper that's still around today. But you could see they read the sort of shifts in those publications reflect a shift in what's possible and who's involved, at the time. So even though the abolitionists obviously a very radical concept, but it's a much more formal magazine than the anarchist Black Dragon, what was as one as one counter. And when we talk to Dan Pence, another founder of, Prison Legal News, along with Ed and the guy named Paul Wright, about why I call it prison mills. And he was like, well, it was a trade publication, and this was our trade, right? That we were in prison and we were impacted by the range of legislative reforms that were limiting our ability to file appeals, limiting our ability to seek release. We have to track these changes in the law. And so, we were doing prison legal news like that. That is what we were doing. And so that made sense for the name and the complication. And so, I think you can see both the attacks on the movement and on a sense of what seemed possible in the 70s. You can see that go away right now. But it doesn't disappear completely. And I think the publications are one way where you can track, like, who was persistent and, and still being able to organize and to maintain a kind of political context, in prison throughout, you know, some pretty grim years. And I think that those are grim years outside of prison also, I mean, there was there was not a lot of progressive change, much less radical change in the 80s anywhere, right, in any context. But you do have some very powerful movements, right? And I think the same thing is happening in the prison context.
Megan [00:28:11] You do all this work as a public scholar, and you're engaging with people who are directly impacted by incarceration as well as their families. And I'm wondering if there are particular things that people want to be known about how the prison state works or about, what kinds of work families are doing, or if there are particular misconceptions that they would like corrected that we should think about.
Dan [00:28:36] Yeah. I mean, that's a that's a great question. I think there's like a million different answers to it. So, I mean, I think, I think some of the policy work that, that people have done over the last number of years in Washington around either trying to bring back parole or, and also just trying to make pathways towards release, I think is really, really significant for people. And to connect that as a retroactive, policy. Right, so that it impacts people who are currently incarcerated rather than just people who are not yet incarcerated. I think there's a lot of, you know, I mean, obviously people want their freedom and that, that's the primary, impetus behind those bills. But I, you know, I think there are stories being told in, in those bills, right, that the fight for those legal changes, our story is about who people are, right? Their story is about what and what sent them to prison, and what would have helped them thrive beforehand and the ways that that would have prevented them from going to prison and, as well as the ways that they have grown and matured and made all sorts of positive contributions to society that would be better, better served on the outside. And I think, you know, I mean, I've been very struck with, you know, how groups like the Black Prisoners Caucus have really emphasized connections to educators and trying to talk with teachers about, like, here's what teachers missed for me. Right? And so don't miss that for your students. And, like, here's the help that I needed. I'll never forget, you know, 7 or 8 years ago, going to an event that Clallam Bay and someone talking about how it wasn't until prison that he was diagnosed with dyslexia and learning disorder and all of these things that caused him to act out in school, which caused him to get in trouble, which caused him to, you know, to get suspended, which caused him to have various encounters with the legal system. Right. And so, I think, you know, people sort of telling you, using their personal experiences and locating the structural disadvantages that, that, that made that possible. I also think a lot about how many people in Washington and not just Washington, but how many people in Washington prisons were raised where, as they call it, state raised. And so, so people in the foster system who ended up in the prison system and again, telling those kinds of stories about the deprivation and abuse that people suffered that that ultimately not just resulted in but really facilitated their incarceration. You know, I think that those are really powerful narratives that I think tell a very different version of who is in prison and why than what we otherwise experience.
Megan [00:31:41] I always knew that incarceration skyrocketed in Washington, like so many other states, in ways that honestly didn't have anything to do with crime. Specifically, we know that from 1976 to 2016, the state's incarceration rate more than doubled, mostly life and long sentences. And what this means today is that families navigate this patchwork of options of stuff called the Indeterminate Sentence Review Board, personal restraint petition, resentencing and clemency. Ralph, I'm really grateful to you for explaining the system to us today, as well as to Dan for reminding us of how we got here. At the same time, I think it's really important to learn about the damage of state violence while reminding ourselves that communities have always been struggling for collective liberation. Anytime I look for community organizing, I have found it. Sometimes this can also mean lifting up lesser-known histories. One example is the classic direct action that I always heard about with the American Indian Movement was the takeover of Alcatraz Island in California. It was only after I moved to Washington State that I learned that the American Indian Movement organizers also reclaimed land on Fort Lawton in Seattle and still have it today. The United Indians of All Tribes Foundation uses that land as a hub for culture, childcare, markets, and powwows at the Daybreak Star Cultural Center.
Ralph [00:33:05] Yeah, so as far as I know, Daybreak Star is still going strong in Seattle and helping our Indigenous people in their struggles. The American Indian Movement and not only held protests in their organizing, but it also organized school programs on Indian reservations, such as heart of the Earth School. It was situations like that which are our stepping stones in time to push for something more. You know, inside organizing grew out of hardships as struggles. There is a case called Hoptowit v. Ray, where organizing by Indigenous people at the last state penitentiary led to a federal oversight investigation of the conditions at the penitentiary, culminating from the death of one man and a corrections guard. But that was all in the 80s. Fast forward to like around the mid 90s. People on the inside started to feel the need to gather more frequently, to educate the community and find ways to rehabilitate themselves.
Now that was a lot to take in, Megan. So let's recap. We talked about sentencing scores, fencing grids and how essentially the SRI works. There is a consistent thread that will always link inside communities to our outside communities. Even though the Department of Corrections would like to see those. See that thread clip, which is our families, friends, and the fact that most of us will be returning to those communities. When I think about all this, I can really start to see how we can fall into these cycles of incarceration. But when we look at some of these policies. They remind me of the same jail, the Indian, but save the men. Their intent is to strip loss of our identity in order to assimilate to the colonial elite ideology of our society. I think the added insight of our good friend Professor Dan Berger is clarifying some of that. There is so much more of that work going on inside the prison system that are also taking shape as so many different forms. So, stay tuned in for our next episode will focus on racing community organizing behind bars. In our next episode, we look at how organizing on the inside has impacted education, changing perspective, and our outside communities. So, I hope you all will stay tuned in and learn with us how groups of people are finding identity and self-liberation. This episode was produced by Megan Ybarra and edited by Anvar Hassanpour. Also special thanks to Dan Berger, co-curator of the Washington Prison History Project. From The Inside Out, this is Ralph Dunuan sending out my best to you all and in solidarity for liberation and the communities we want.
