CHAPTER 7
PRISON
“Prison should be a place for predators and not dying old men. Some people should die in prison, but everyone should get a hearing.”
—Burl Cain, former warden of the Louisiana State Penitentiary in Angola
From its earliest days, The Times has recognized that incarceration is one of the most serious decisions a society can make. Life inside is, by design, no bargain. As the last stop for our justice system, prisons are built atop the faith that when the cell door clanks, its detainee is guilty. Still, mistakes happen. Conditions erode. Riots occur. And sometimes the people who find freedom are not the unjustly accused, but the real crooks who, with filched chisels and pillow dummies, take matters into their own hands.
SHOWERING AND YOKING
We made a few remarks the other day upon the tortures employed in our state penitentiaries, but were unable to lay hands on the report of the legislative committee respecting the general management of those places. Upon turning to that document we find ample evidence of the inhumanities in habitual practice. The visitors say, overcautiously we think, in view of the testimony they elicited:
“Occasional cases of cruelty still occur, and must so long as such dangerous engines of torture as the shower-bath and yoke are left in the hands of imprudent keepers. Many of the subordinate keepers were free in their opinions that the shower-bath is a much more cruel punishment than the cat [-o’-nine-tails].”
They argue, to be sure, that the effect upon the officer is less brutalizing; but the effect upon the officer has, of course, nothing to do with the question. According to the testimony of Judge Edmonds, formerly inspector of the Sing Sing Prison, it seems that the statements of keepers and sub-keepers are not reliable. The prisoners must be referred to.
“We found that it was absolutely necessary that we should obtain their statements, because to the world at large, all within the walls was darkness and secrecy, and from that source no testimony could be obtained, and from the officers we could not easily procure the knowledge of their own misconduct. How easy it is for the officers to conceal their own conduct was exemplified to me when I was an inspector at Sing Sing. I was astonished and worried by frequent complaints of the prisoners that they did not get enough to eat, and I gave peremptory orders that they should have enough. I directed the assistant keepers to send their men to the kitchen whenever they complained.
“One of them, who saw that one of his best workmen could not do a day’s labor from weakness, sent him to the kitchen in vain. He went himself and could get no food for his man. He then complained to the principal keeper. That officer, when he found out who it was complained, beat him over the head with an iron rule until it broke in his hand, then beat him with the hardwood handle of a stone hammer, and when that flew out of his hands, from his own violence, attacked him with a stone axe, and would have struck him with it in his passion, if he had not been prevented. The poor convict was then tied up and whipped with some 50 lashes of the cat, and ended the incident by some two weeks confinement in the hospital, and all for having complained of being hungry.”
We turn, therefore, to what is credible authority upon the subject—the evidence of prison physicians. The keepers, when interrogated as to the existence of ill consequences, after the use of the bath or yoke, in several instances denied that there were any. The medical officers report differently. Dr. Fosgate, of Auburn, thus refers to the bath: “To the mechanic who calculates the influence of mere matter upon matter, the power of this column of water must possess considerable importance. But to the physiologist, who can alone judge with any degree of correctness of the influence of a stream, generally at 32° Fahrenheit, falling upon the head, and thence covering the whole body, the suffering induced, and danger incurred, must appear momentous in the extreme.”
He further quotes the highest professional authorities for the prejudicial influences of the cold application; and illustrates them by numerous cases that occurred under his own observation. To make the infliction still more severe, ice is sometimes placed in the water.
Dr. Fosgate subsequently remarks: “It would scarcely be credited, should I state that a system of torture to obtain confessions, or information not otherwise to be had, is in full force in this information. Yet such is the fact, and the shower bath is the ready instrument of its execution. This machine is a modification of the water punishments of the Spanish Inquisition, and will as certainly extort truth or falsehood from the sufferer, either to gratify the wishes or confirm the suspicions of a keeper of the Auburn prison, as its original did in the hands of the inquisitorial fathers.
“Upon the rehearsal of circumstances so revolting to every feeling of humanity, one is constrained to inquire whether the infliction of so much misery is necessary to maintain the discipline of this prison. The question is affirmatively answered in the fact, that the ‘Auburn system of prison discipline’ is a system of absolute physical force, in which enters no idea of moral government at all.”
And in the course of his examination before the committee he declines to say whether or not death has resulted from punishment; but states that convicts were converted into madmen by them.
Dr. William N. Belcher, of the Sing Sing Prison, gives it as his opinion, that the shower-bath “cannot be generally used with impunity, and that in many cases its use should be prohibited, although punishment should be inflicted in some way. I believe it to be more dangerous than any mode now in use.”
These professional dicta are supported by the testimony of all the more intelligent officers of the prisons. Thus Charles W. Pomeroy, agent of the Auburn Prison: “The abuse of the shower-bath, in improper hands, is more injurious than an abuse of the cat. The bath is more likely to injure the health of a convict than the cat. Have no doubt but that the minds of convicts have been impaired, and in some eases ruined by the bath.”
And Chauncey J. Smith, an agent at Sing Sing: “I consider the shower-bath a very cruel punishment. I have seen several showered in the winter when the water froze on the floor as it fell. There would be chunks of ice in the barrel at the time.”
Of this character is all the testimony. Nothing was ever more distinctly manifested by legal inquiry than that the shower-bath is a barbarous engine of torment; that it is destructive to the physical and mental health of the convict; and contributes to make those discharged from our prisons, imbecile inmates of lunatic asylums.
To judge the grade of offenses to which it is applied, we may consult the punishment record of the Clinton Prison, the only one where such a roll is preserved. We find the following among the crimes so punished: “Not going to bed when ordered,” “leaving the ranks when coming from the mines,” “talking and laughing,” “insolent language,” “profane language,” “noise in cell,” “attempting to stab,” “stealing mittens of another convict,” “whistling,” “smoking.”
These punishments were always inflicted by the offended subjailer authority from a superior, and how judiciously may be judged from the fact, that an attempt to murder is nowhere more severely chastised, than smoking, whistling, laughing or talking. Indeed, few of the offenses deserve any notice whatever; and, nevertheless they subjected the convict to merciless torture, and the prospect of physical weakness and intellectual inanity for life.
Dr. Fosgate says the yoke is not only inefficient, but “derogatory to the discipline of the prison, as well as injurious to the health of the convicts. While wearing the yoke the culprit is the butt through the sly jokes and unfeeling taunts of his fellow convicts, and on this account it is often injuriously and unnecessarily worn to show them of what stuff he is made. Their strained and inflamed muscles, and swelled and inflamed skin of neck, breast and arms, often require medical treatment and rest from labor.”
Other evidence shows that it is impossible for the victim to stand beneath the intolerable weight and that if strength gave way, he was punished with a cane, tied up with a rope, or turned into a dungeon. The time lost in the workshop, both by the use of the bath and the yoke, was usually three or four days, after each infliction—days spent by the convict in the hospital.
We earnestly hope the recommendations of the committee will be listened to, and these infernal weapons removed from the hands of brutal, irresponsible, case-hardened underlings in our state prisons. We cannot better conclude these extracts than by quoting from the report of Mr. Robinson, warden of the Massachusetts State prison: “I have long looked upon a man as a man, whether he be the occupant of a palace or a prison—and, in whatever situation he may be, entitled to human sympathy, kindness and respect. He is my brother, wherever he may be, whatever of wrong or of crime he may have been tempted to commit.
“We are all liable to fall into temptation: if it were not so we should not have all been taught to beseech our Father in Heaven to ‘lead us not into temptation.’ I felt my own frailties and imperfections, and resolved to do by others as I should wish to be done by, if I were in their situation. It seemed to me, therefore, in entering upon the duties of this office, I should prefer rather to err on the side of kindness, clemency and humanity, than on that of severity of punishments.
“I know that the laws, rules, regulations and discipline of the prison must be enforced. But I wished, if possible, to enforce them without recourse to corporal punishment or physical suffering. And I have succeeded, thus far, as well as I could have expected. The government of the prison has been administered without corporal punishment. The shower-bath has not been used. And yet I think I can safely say, that the convicts are as orderly, as industrious and obedient as heretofore, and more contented, docile and happy. A feeling of mutual respect, kindness and friendship seems to be growing up between us. I am sure I experience these affections towards the convicts, and every day gives evidence that the same affections are being excited in their breasts towards me.”
—March 1, 1852
NOTE: New York State made slow progress toward eliminating measures of prison discipline like the shower-bath and the yoke—a 30- to 40-pound iron bar strapped to the back of the neck and outstretched arms—in the decades to come, though instruments such as the paddle were often brought in as substitute punishments.
9 HOSTAGES AND 28 PRISONERS DIE AS 1,000 STORM PRISON IN ATTICA—“LIKE A WAR ZONE”
The rebellion at the Attica Correctional Facility ended this morning in a bloody clash and mass deaths that four days of taut negotiations had sought to avert.
Thirty-seven men—9 hostages and 28 prisoners—were killed as 1,000 state troopers, sheriff’s deputies and prison guards stormed the prison under a low-flying pall of tear gas dropped by helicopters. They retook from inmates the cellblocks they had captured last Thursday. In this worst of recent American prison revolts, several of the hostages—prison guards and civilian workers—died when convicts slashed their throats with knives. Others were stabbed and beaten with clubs and lengths of pipe.
Most of the prisoners killed in the assault fell under the hail of rifle and shotgun fire laid down by the invading troopers.
Doctor Fears More Deaths
A volunteer doctor who worked among the wounded after the assault said the prison’s interior was “like a war zone.” Standing in front of the prison in a blood-stained white coat, he said that many more of the wounded “are likely to die.”
Late today a deputy director of correction, Walter Dunbar, said that two of the hostages had been killed “before today” and that one had been stabbed and emasculated.
Of the remaining 7, 5 were killed instantly by the inmates and 2 died in the prison hospital.
Mr. Dunbar said that in addition to the 28 dead inmates, 8 other convicts of the total of 2,237 were missing. Two of the dead prisoners, he said, were killed “by their own colleagues and lay in a large pool of blood in a fourth-tier cell block.”
Oswald Orders Attack
He said he considered the state’s recapture of the prison an “efficient, affirmative police action.”
The action was ordered with “extreme reluctance” by State Correction Commissioner Russell G. Oswald after consultation with Governor Rockefeller. It followed an ultimatum to the more than 1,000 rebellious prisoners that they release the hostages they held and return to their cells.
Most of the 28 hostages rescued by the invaders and scores of prisoners were treated for wounds and the effect of tear gas dropped into the prison before the assault.
The recapture of the maximum security prison was hampered by trenches dug by the convicts, filled with burning gasoline ignited in cellblock corridors; by electrically wired prison bars separating detention areas; by homemade bombs and booby traps hidden in underground tunnels; by barricades and salvos of Molotov cocktails and bursts from captured tear-gas guns.
The attack began before 10 o’clock and ended 4 hours later as troopers fought hand to hand with stubborn knots of prisoners in the second tier of cellblock D, the portion of the prison that the prisoners had controlled since the riots on Thursday.
It came three hours after Mr. Oswald’s ultimatum had been delivered.
The ultimatum was answered, Mr. Oswald said, when the prisoners “callously herded eight hostages within our view with weapons at their throats.”
“The armed rebellion of the type we have faced threatens the destruction of our free society,” Mr. Oswald declared. “Further delay and negotiations would have jeopardized more lives.”
Members of a citizens’ observers committee, which had been called to Attica by the state at the request of the inmates, were locked in an administration building office inside the prison walls during the assault.
Kunstler Is Bitter
William M. Kunstler, civil rights lawyer and one of a group of 10 persons who negotiated with the prisoners and acted as agents for Commissioner Oswald, was most bitter.
“A bloody mistake,” he said, “this will go down in history as a bloody mistake. They sold the lives far too cheaply. I guess they always do.”
The prison uprising began last Thursday when the convicts seized 32 guards and then, through a makeshift megaphone in the yard of cellblock D, issued a list of demands.
The prisoners set fires, broke windows and shredded fire hoses. Twice on that first day, Commissioner Oswald met with the inmates and attempted to negotiate the demands. The demands included “complete amnesty” and freedom from “physical, mental and legal reprisals,” “speedy and safe transportation out of confinement to a nonimperialistic country” and “true” religious freedom.
The uprising was viewed as the result of tension that had been building up in Attica for some time. In addition to the customary complaints about services, there were the added ingredients of a predominantly black body of prisoners being controlled by an armed white force and the increasing political and radical awareness of the black prisoners.
State Correction Commissioner Russell G. Oswald meets with inmates in Attica, September 10, 1971.
The assault on the prison followed four days of negotiations in which the convicts won agreement to 28 demands for social, administrative and legal reforms but held out for complete amnesty from criminal prosecution and the ouster of the prison superintendent, Vincent R. Mancusi.
The latter two issues were turned down by Mr. Oswald as nonnegotiable, and the amnesty demand was rejected Sunday by Governor Rockefeller as being beyond his constitutional authority.
This rejection came a day after the death of a guard, William Quinn, who was reported injured by the prisoners in the revolt. He was one of 12 guards who had been hospitalized from injuries during the early rioting.
The action today began at 9:46 a.m., with two national guard CH-34 helicopters dropping canisters of tear gas into cellblock D, in the northeast corner of the 55-acre prison compound.
The 500-man contingent of state troopers had received orders to assemble outside the prison walls by 6 a.m. Two hundred more troopers were transported into Attica, and 50 national guard vans with about 600 troops arrived here before dawn. A dense rain began falling as day broke.
Sheriff’s deputies from this Wyoming County and 14 other counties arrived in their own automobiles, carrying deer rifles, pistols, surplus army carbines and shotguns. All received riot helmets, rain slickers and gas masks and were sent through the prison’s main gate to a vast lawn that lies between the gate and the compound proper. There they were formed into makeshift companies under the direction of Capt. Henry Williams, chief of the local office of the State Bureau of Criminal Investigation.
Tear-gas canisters were loaded into the two helicopters. Troopers armed with high-powered rifles equipped with sniper scopes were sent up to the guard towers atop the prison walls. Squads of troopers, deputies and guards, armed with tear-gas guns, were driven to points around the prison’s perimeter.
Deadline Is Set
By 8 o’clock the assault force was in position. Even then members of the committee of observers began to filter into the prison. State Senator Robert Garcia, Democrat of the Bronx; Tom Wicker, columnist for The New York Times, and Louis Steel of the National Lawyers Guild were permitted in.
By the time Mr. Kunstler arrived, the assault force was at the ready, and he was barred from the gate. Fifteen more observers had spent the night inside Attica Prison.
At 8:30, an aide to Mr. Oswald, Gerald Houlihan, stepped outside and announced that the Commissioner had sent a memo to a leader of the rebellious inmates, Richard Clark. Clark told him, Mr. Houlihan said, that the memorandum would be referred to the “people’s central committee” in the yard of cellblock D.
The memo recounted the concessions made to the convicts and called on them to release the hostages and end the rebellion.
The deadline for answering was set for 8:46 a.m. At that time the prisoners asked for more time to consider. Mr. Oswald gave them until 9 o’clock.
Clark walked back down a corridor that separated the commissioner from the barricaded prisoners. Several minutes later the eight hostages with knives at their throats were paraded before Commissioner Oswald. But even as this final strain of negotiating took place, the last preparations for the assault were made.
At 8:37 a.m. grappling hooks had been brought in. The two national guard helicopters and two state police choppers equipped with public-address sound systems warmed up. At 8:55 a van loaded with riot helmets was backed up to the main gate, and at 9 the state police helicopters took off.
Eight Hostages Threatened
Troopers and deputies atop the prison walls and on the roofs of buildings that surrounded four cellblocks began relaying information by walkie-talkie back to the command post set up in the superintendent’s office.
As the observer helicopter circled above the yard of D block, the eight hostages who had been shown to Mr. Oswald were dropped into a pit filled with gasoline. Then they were removed and dragged to a trench full of gasoline, where their feet were thrown in and their bodies were bent backwards so that their throats were exposed. Prisoners stood over them with knives.
At 9:42 Captain Williams’s voice came over the short-wave radio: “All forces in position.”
At 9:43 he ordered all power in the prison cut off. Only lights powered by portable generators remained on.
At 9:44 he ordered high-powered water hoses connected. At the same time an order was sent out for all available county ambulances to come to the truck gate of the prison.
At 9:45 Captain Williams ordered: “Zero in on targets. Do not take action until the drop.” A voice answered: “The drop has been made. Jackpot One has made the drop.” This indicated that CS gas was flooding the yard of cellblocks.
At 9:46 Captain Williams shouted: “Move in! The drop has been made.”
Gas seeping over the 30-foot-high walls caused those standing outside to weep. Also standing by, silently huddled in the rain, were the relatives of the hostages. Some sobbed openly in parked cars.
The observer helicopter circled the yard. Coming from its sound system continually was this message: “Place your hands on top of your heads and move to the outside of B and D blocks. Do not harm the hostages. Surrender peacefully. Sit or lie down. You will not be harmed. Repeat, you will not be harmed.”
But by this time the hostages were dead.
At 9:57 a call came: “I need a stretcher. For God’s sake a stretcher!”
At 10:16 the helicopters were ordered down: “Ground your birds. Stand by for evacuations.”
Commissioner Oswald came out of the front gate at 10:25. The pops of tear-gas guns and the cracks of rifle shots could be heard over the wall.
“Everything Humanly Possible”
“For the past four days,” he said, “I have been doing everything humanly possible to bring this tragic situation to a peaceful conclusion.”
He repeated the chronology of negotiations and the concessions he had made and said: “In spite of all these efforts, the inmates have steadfastly refused to release the hostages.”
“They continued to make weapons,” Mr. Oswald said, “spread gasoline, make booby traps and electrical traps. I extended the deadline. They asked for more time. This was only a delaying tactic.”
He then described the prisoners with knives at the throats of hostages.
“We hope to protect the lives of the hostages if possible,” the commissioner said. “I pray to God that this works out to the best interests of all of us.”
“We Got 30 Out”
Even as he spoke, Captain Williams’s voice continued to bark over the radio: “There’s 30 out. We got 30 out.”
At 10:35 the order was given: “Get as many pictures of these homicides as possible. Take them to the morgue in the maintenance building.”
But some of the hostages were alive. A raincoated guard at the main entrance began shouting names to the relatives huddled in the rain.
“They’re out!” he yelled. He shouted nine names.
“Steve Wright,” the guard yelled. “Miller! Walker’s out!”
Standing behind the relatives was another observer, Clarence Jones, publisher of The Amsterdam News. “Time was all we asked for,” he said quietly. “Time.”
At 10:45 Captain Williams asked: “Is D block secured?” Another voice interrupted: “There is a possible explosive device in C block. Get me a demolition detail.”
And from Captain Williams: “No shooting unless it’s absolutely necessary.”
Outside of the gate Mr. Kunstler looked at a guard. “You murdering bastards!” he said. “They’re shooting them. They’re murdering them.”
At 10:55 Captain Williams urged: “Use extreme caution. No gunfire unless absolutely necessary. Utilize gas. We’re coming in both ways through D block.”
At 11:10 a voice on the radio said: “Thirty came out alive. Eight are dead.”
For a long while there was no communication as the troopers gradually gained the upper hand.
Then explosive “gas devices” were found in the prison chapel and in the metal machine shop. At 12:30 p.m. Mr. Houlihan came out to announce the first death toll. “There are 37 dead,” he said. “Nine of them hostages.”
He said it had been hoped by Commissioner Oswald that the gas dropped by the helicopters “would immobilize them quickly—the plan worked well.”
Asked to weigh the success of the plan against the lives lost, Mr. Houlihan said: “No one ever had to make a tougher decision than this.” He said Commissioner Oswald had consulted with Governor Rockefeller before ordering the assault.
As for the demands that had been agreed to by Mr. Oswald on Sunday, Mr. Houlihan said: “You must understand that an agreement was never reached, because they refused to talk with us.”
Governor Rockefeller’s decision not to come to Attica was harshly criticized by two members of the observer committee.
Representative Herman Badillo, New York City Democrat, came out of the prison late today looking haggard. “We wanted time,” he said. “More time.”
Asked if he had wanted Governor Rockefeller to join in negotiations, he said: “No. We wanted the governor to come to talk with us and get the benefit of our experience before he made a final and irrevocable decision. As far as I’m concerned, there’s always time to die.”
—September 14, 1971
NOTE: All told, 39 people were shot dead, including 10 prison employees. The violence, fed in large part by prison conditions, led to a long list of recommended reforms, some of which still have not been implemented decades later.
NO WAY OUT: DASHED HOPES—SERVING LIFE, WITH NO CHANCE OF REDEMPTION
Minutes after the U.S. Supreme Court threw out the juvenile death penalty in March, word reached death row here in Livingston, Tex., setting off a pandemonium of banging, yelling and whoops of joy among many of the 28 men whose lives were spared by the decision.
But the news devastated Randy Arroyo, who had faced execution for helping kidnap and kill an air force officer while stealing his car for parts.
Mr. Arroyo realized he had just become a lifer, the last thing he wanted. Lifers, he said, exist in a world without hope. “I wish I still had that death sentence,” he said. “I believe my chances have gone down the drain. No one will ever look at my case.”
Mr. Arroyo has a point. People on death row are provided with free lawyers to pursue their cases in federal court long after their convictions have been affirmed; lifers are not. The pro bono lawyers who work to exonerate or spare the lives of death row inmates are not interested in the cases of people merely serving life terms. Appeals courts scrutinize death penalty cases much more closely than others.
Mr. Arroyo will become eligible for parole in 2037, when he is 57. But he doubts he will ever get out. “This is hopeless,” he said.
Scores of lifers, in interviews at 10 prisons in six states, echoed Mr. Arroyo’s despondency. They have, they said, nothing to look forward to and no way to redeem themselves.
More than one in four lifers will never even see a parole board. The boards that the remaining lifers encounter have often been refashioned to include representatives of crime victims and elected officials not receptive to pleas for lenience.
And the nation’s governors, concerned about the possibility of repeated offenses by paroled criminals and the public outcry that often follows, have all but stopped commuting life sentences.
In at least 22 states, lifers have virtually no way out. Fourteen states reported that they released fewer than 10 in 2001, and the other 8 states said fewer than 2 dozen each. The number of lifers continues to swell in prisons across the nation, even as the number of new life sentences has dropped in recent years, along with the crime rate. According to a New York Times survey, the number of lifers has almost doubled in the last decade, to 132,000. Prosecutors and representatives of crime victims applaud the trend. The prisoners, they say, are paying the minimum fit punishment for terrible crimes.
But even supporters of the death penalty wonder about this state of affairs.
“Life without parole is a very strange sentence when you think about it,” said Robert Blecker, a professor at New York Law School. “The punishment seems either too much or too little. If a sadistic or extraordinarily cold, callous killer deserves to die, then why not kill him? But if we are going to keep the killer alive when we could otherwise execute him, why strip him of all hope?”
Burl Cain, the warden of the Louisiana State Penitentiary in, which houses thousands of lifers, said older prisoners who have served many years should be able to make their cases to a parole or pardon board. Because all life sentences in Louisiana are without the possibility of parole, only a governor’s pardon can bring a release.
The prospect of a meaningful hearing would, Mr. Cain said, provide lifers with a taste of hope.
“Prison should be a place for predators and not dying old men,” he said. “Some people should die in prison, but everyone should get a hearing.”
Television and Boredom
In interviews, lifers said they tried to resign themselves to spending their days entirely behind bars. But the prison training programs that once kept them busy have largely been dismantled, replaced by television and boredom.
The lot of the lifer may be said to be cruel or pampered, depending on one’s perspective. “It’s a bleak imprisonment,” said W. Scott Thornsley, a former corrections official in Pennsylvania. “When you take away someone’s hope, you take away a lot.”
It was not always that way, said Steven Benjamin, a 56-year-old Michigan lifer.
“The whole perception of incarceration changed in the 1970s,” said Mr. Benjamin, who is serving a sentence of life without parole for participating in a robbery in 1973 in which an accomplice killed a man. “They’re dismantling all meaningful programs. We just write people off without a second thought.”
As the years pass and the lifers grow old, they sometimes tend to dying prisoners and then die themselves. Some are buried in cemeteries on prison grounds by other lifers, who will then go on to repeat the cycle.
Some defendants view the prospect of life in prison as so bleak and the possibility of exoneration for lifers as so remote that they are willing to roll the dice with death.
In Alabama, six men convicted of capital crimes have asked their juries for death rather than life sentences, said Bryan Stevenson, director of the Equal Justice Initiative of Alabama.
The idea seems to have its roots in the experience of Walter McMillian, who was convicted of capital murder by an Alabama jury in 1988. The jury recommended that he be sentenced to life without parole, but Judge Robert E. Lee Key Jr. overrode that recommendation and sentenced Mr. McMillian to death by electrocution.
Because of that death sentence, lawyers opposed to capital punishment took up Mr. McMillian’s case. Through their efforts, Mr. McMillian was exonerated five years later after prosecutors conceded that they had relied on perjured testimony. “Had there not been that decision to override,” said Mr. Stevenson, one of Mr. McMillian’s lawyers, “he would be in prison today.”
Judges and other legal experts say the decision to opt for death could be a wise one for defendants who are innocent or were convicted under flawed procedures. “Capital cases get an automatic royal treatment, whereas noncapital cases are fairly routine,” said Alex Kozinski, a federal appeals court judge in California.
David R. Dow, one of Mr. Arroyo’s lawyers and the director of the Texas Innocence Network, said groups like his did not have the resources to represent lifers.
“If we got Arroyo’s case as a non-death-penalty case,” Mr. Dow said, “we would have terminated it in the very early stages of investigation.”
Gov. Rick Perry of Texas signed a bill in June adding life without parole as an option for juries to consider in capital cases. Opponents of the death penalty have embraced this alternative, pointing to studies that show that support for the death penalty dropped drastically when life without parole, or LWOP, was an alternative.
“Life without parole has been absolutely crucial to whatever progress has been made against the death penalty,” said James Liebman, a law professor at Columbia. “The drop in death sentences”—from 320 in 1996 to 125 last year—“would not have happened without LWOP.”
But some questioned the strategy.
“I have a problem with death penalty abolitionists,” said Paul Wright, the editor of Prison Legal News and a former lifer, released in Washington State in 2003 after serving 17 years for killing a man in a robbery attempt. “They’re positing life without parole as an option, but it’s a death sentence by incarceration. You’re trading a slow form of death for a faster one.”
“I’d roll the dice with death and stay on death row,” he said. “Really, death has never been my fear. What do people believe? That being alive in prison is a good life? This is slavery.”
Murder Follows a Kidnapping
Mr. Arroyo was convicted in 1998 for his role in the killing of Jose Cobo, 39, an air force captain and the chief of maintenance training at the Inter-American Air Forces Academy in Lackland, Tex. Mr. Arroyo, then 17, and an accomplice, Vincent Gutierrez, 18, wanted to steal Captain Cobo’s Mazda RX-7 for parts.
Captain Cobo tried to escape but became tangled in his seat belt. Mr. Gutierrez shot him twice in the back and shoved the dying man onto the shoulder of Interstate 410 during rush hour on a rainy Tuesday morning.
Although Mr. Arroyo did not pull the trigger, he was convicted of felony murder, or participation in a serious crime that led to a killing. He contends that he had no reason to think Mr. Gutierrez would kill Captain Cobo. “I don’t mind taking responsibility for my actions, for my part in this crime,” he said. “But don’t act like I’m a murderer or violent or that this was premeditated.”
That argument misunderstands the felony murder law, legal experts said. Mr. Arroyo’s decision to participate in the carjacking is, they say, more than enough to support his murder conviction.
Captain Cobo left behind a 17-year-old daughter, Reena.
“I miss him so much it hurts when I think about it,” she said of her father in a victim impact statement presented at trial. “I want to see the murderers punished not necessarily by death. I feel sorry that they wasted theirs and my father’s life.”
Mr. Arroyo said he was not eager to leave death row, and not just because of dwindling interest in his case.
“All I know is death row,” he said. “This is my life.”
Most lifers at Angola die of natural causes. The prison operates a hospice to tend to the dying prisoners, and it has opened a second cemetery, Point Lookout Two, to accommodate the dead.
On a warm afternoon earlier this year, men in wheelchairs moved slowly around the main open area of the prison hospice. Others lounged in bed.
The private rooms, for terminal patients, are as pleasant as most hospital rooms, though the doors are sturdier. The inmates have televisions, video games, coffeepots and DVD players.
Robert Downs, a 69-year old career bank robber serving a 198-year term as a habitual felon, died in one of those rooms the day before. In his final days, other inmates tended to him, in four-hour shifts, around the clock. “Our responsibility,” said Randolph Matthieu, a hospice volunteer, “is so that he doesn’t die there by himself.”
Mr. Matthieu, 53, is serving a life sentence for killing a man he met at the C’est La Guerre Lounge in Lafayette, La., in 1983.
At Point Lookout Two the next day, there were six mounds of fresh dirt and one deep hole, ready to receive Mr. Downs. Under the piles of dirt were other inmates who had recently died. They were awaiting simple white crosses like the 120 or so nearby. The crosses bear two pieces of information. One is the dead man’s name, of course. Instead of the end points of his life, though, his six-digit prison number is stamped below.
The sun was hot, and the gravediggers paused for a rest after their toil.
“I’m hoping I don’t come this way,” said Charles Vassel, 66, who is serving a life sentence for killing a clerk while robbing a liquor store in Monroe, La., in 1972. “I want to be buried around my family.”
The families of prisoners who die at Angola have 30 hours to claim their bodies, and about half do. The rest are buried at Point Lookout Two.
Timothy Bray, 45, also in for life, added, “It’s pretty much the only way you leave.”
Wary of a Transformed World
Not all older lifers are eager to leave prison. Many have grown used to the free food and medical care. They worry about living in a world that has been radically transformed by technology in the decades that they have been locked up.
Wardens like Mr. Cain say that lifers are docile, mature and helpful.
“Many of the lifers are not habitual felons,” he added. “They committed a murder that was a crime of passion. That inmate is not necessarily hard to manage.”
What is needed, he said, is hope, and that is in short supply. “I tell them, you never know when you might win the lottery,” Mr. Cain said. “You never know when you might get a pardon.”
—October 5, 2005
TALE OF 3 INMATES WHO VANISHED FROM ALCATRAZ MAINTAINS INTRIGUE 50 YEARS LATER
Fifty years ago, on the night of June 11, 1962, the three convicts were locked down as usual. Guards walking the tier outside their cells saw them at 9:30 and checked on them periodically all night, looking in at the sleeping faces, hearing nothing strange. But by morning, the inmates had vanished.
Guards found pillows under the bedclothes and lifelike papier-mâché heads with real hair and closed, painted eyes. Federal agents, state and local police officers, coast guard boats and military helicopters joined the largest manhunt since the Lindbergh baby kidnapping in 1932, scouring the prison complex on Alcatraz Island, the expanse of San Francisco Bay and the surrounding landscape of Northern California.
A crude raft made of rubber raincoats was found on a nearby island. But the fugitives were never seen again. Federal officials said they almost certainly drowned in the maelstrom of riptides, undertows and turbulent, frigid waters of the 10-mile-wide bay, their bodies probably swept out to sea under the Golden Gate Bridge.
But for aficionados of unsolved mysteries, the fantasy that Frank Lee Morris and the brothers Clarence and John Anglin had successfully escaped from the nation’s most forbidding maximum security prison and are still alive has been a tantalizing possibility for a half-century.
It seemed wildly improbable. “The Rock” where Al Capone, Machine Gun Kelly and other infamous criminals were held was thought to be escape-proof. In its 29 years as a federal prison, from 1934 to 1963, no one is known to have made it out alive. Forty-one inmates tried. Of those, 26 were recaptured, 7 were shot dead, 3 drowned and 2 besides Mr. Morris and the Anglin brothers were never found.
Had they survived, the three men, all bank robbers serving long terms, would be in their 80s. Their breakout has been a subject of fascination to many Americans, analyzed in countless articles, four television documentaries, a 1963 book by J. Campbell Bruce, Escape from Alcatraz, and a 1979 movie of the same name starring Clint Eastwood as Mr. Morris.
Aerial view of Alcatraz Island, off the coast of San Francisco, by Carol M. Highsmith, c. 1993.
The film and television productions, including a 1993 episode of America’s Most Wanted and a 2011 National Geographic documentary, Vanished from Alcatraz, correctly portrayed Mr. Morris as the escape’s mastermind and a criminal of superior intelligence.
Federal officials said he had an I.Q. of 133, surpassing 98 percent of the population. Born in 1926, in Washington, he was orphaned at 11, sent to foster homes, convicted of theft at 13 and landed in reform school. He graduated to robbery and narcotics, and while serving 10 years for bank robbery escaped from the Louisiana State Penitentiary. Then, captured in a burglary, he was sent to Alcatraz in 1960 for 14 years.
The Anglins were born in Donalsonville, Ga., John in 1930, and Clarence a year later, two of 14 children of impoverished farmers. The brothers became inept burglars and were imprisoned in Alabama, Florida and Georgia, where they tried to escape repeatedly. Seized after a 1958 Alabama bank holdup, they were sent to the federal penitentiary in Leavenworth, Kan., and later to Alcatraz.
Housed on a tier near one another, Mr. Morris and the Anglins began planning the escape in late 1961. One and perhaps two other inmates were involved. The plan took months to prepare and required daring, ingenuity, careful timing and trust.
Behind their row of cells was a rarely used utility corridor for heating ducts and plumbing pipes. With spoons from a mess hall and a drill improvised from a vacuum cleaner, they dug through thick concrete walls, enlarging small, grille-covered air vents to squeeze through into the utility corridor. The work was concealed with cardboard and paint, and the noise by Mr. Morris’s evening accordion playing.
Some worked while others kept a lookout. With absences timed for the guard patrols, they created a secret workshop atop their cellblock. There, they created an inflatable raft of rubber raincoats held together with thread and contact cement, plywood paddles, plastic bags turned into floating devices and dummy heads of plaster and toilet paper, made realistic with paint from prison art kits and hair clippings from the barbershop.
They stole a small accordion-like concertina from another inmate to serve as a bellows to inflate the raft. Finally, they climbed through the utility corridor and up a shaft of pipes and ducts to the roof, where they cut away most of the rivets holding a large ventilating fan and grille in place. Dabs of soap substituted for rivet heads—a little artistic touch, should anyone notice.
On the night of the escape, only one thing went wrong: Allen West, a fourth inmate who had planned to join them, had trouble opening the vent at the back of his cell and was left behind. He later gave investigators many details of the escape.
The others put their dummies to bed, retrieved the raft and other materials from atop the cellblock and climbed the ducts to the roof, where the fan-grille escape hatch had been prepared. In clear view of a gun tower, they stole across the roof, hauling their materials with them, then descended a 50-foot wall by sliding down a kitchen vent pipe to the ground. The wall was illuminated by a searchlight, but no one saw them.
They climbed two 12-foot, barbed-wire perimeter fences and went to the northeast shoreline—a blind spot out of range of the searchlights and gun towers—where they inflated their raft with the concertina. It was after 10 o’clock, investigators later estimated, when they shoved off. A dense fog cloaked the bay that night, and they disappeared into it.
The next day, searchers found remnants of the raincoat raft and paddles on Angel Island, two miles north of Alcatraz and a mile from the Tiburon headlands of Marin County, north of San Francisco. They also found a plastic bag containing personal effects of the Anglins, including a money-order receipt and names, addresses and photos of friends and relatives. Emphasizing their belief that the escapees had drowned, officials said there had been no nearby robberies or car thefts on the night of the escape.
Alcatraz, an aging, 12-acre prison whose crumbling concrete and deteriorated plumbing had grown increasingly expensive to maintain, was closed in 1963 and later became a tourist attraction.
Mr. Morris and the Anglin brothers were officially declared dead in 1979, when the FBI closed the case. But it was reopened by the U.S. Marshal’s Service in 1993 after a former Alcatraz inmate, Thomas Kent, told Fox’s America’s Most Wanted that he had helped plan the breakout but had backed out because he could not swim.
Mr. Kent said Clarence Anglin’s girlfriend had agreed to meet them on shore and drive them to Mexico. Officials were skeptical because Mr. Kent had been paid $2,000 for the interview. Nevertheless, Dave Branham, a marshal’s service spokesman, said, “We think there is a possibility they are alive.”
The Eastwood film implied that the escape had been successful. A 2003 MythBusters program on the Discovery Channel tested the feasibility of an escape on a raincoat raft and judged it possible. And the 2011 National Geographic program disclosed that footprints leading away from the raft had been found on Angel Island, and that contrary to official denials, a car had been stolen nearby on the night of the escape.
—June 10, 2012
HOW EL CHAPO WAS FINALLY CAPTURED, AGAIN
Stripped to his undershirt and covered in filth, the world’s most notorious drug lord dragged himself out of the sewers and into the middle of traffic.
Disoriented from his long trudge underground, with gun-toting marines on his heels, he found himself standing across the street from a Walmart. Joaquín Guzmán Loera, the kingpin known across the globe as El Chapo, would have to improvise. His cavalry was not coming.
He and his top lieutenant commandeered a white Volkswagen from a passing motorist, but only a few blocks later, the car became engulfed in smoke. Desperate for another vehicle, the two men spotted a red Ford Focus at a traffic light, driven by a woman with her daughter and five-year-old grandson.
“Get out of the car now,” said the lieutenant, his weapon trained on the woman as he lifted the door handle. She complied, prying the child from the back seat and leaving her belongings in the car. Politely, the lieutenant handed over her purse before speeding off.
The Mexican marines had been on Mr. Guzmán’s trail for more than six months, ever since he humiliated the nation by escaping its most secure prison through a tunnel that led into the shower floor of his cell.
The chase had led them into the remote wilds of the Golden Triangle, on the border of Durango and Sinaloa states, an area where Mr. Guzmán is revered. He evaded multiple raids by the Mexican authorities, including a close brush after he sat for an interview with the American actor Sean Penn.
But it had come at a cost. The authorities had swept through 18 of his homes and properties in his native lands. Days on end in the inhospitable mountains, where even a billionaire like Mr. Guzmán was forced to rough it, left him yearning for a bit of comfort.
In early January, he arrived in the coastal city of Los Mochis, in Sinaloa, at a home where the authorities had trailed one of the chief tunnel diggers from his escape. Construction crews had been hard at work on the house for weeks. The final bit of evidence was a food order, Mexican officials said.
Just two blocks away, a big order of tacos was picked up after midnight on Jan. 8 by a man driving a white van, like the one believed to be driven by Mr. Guzmán’s associates.
Joaquín “El Chapo” Guzmán is escorted into a helicopter by authorities in Mexico City on January 8, 2016, following his recapture in Sinaloa State.
Hours later, at 4:30 a.m., the marines stormed the compound, meeting a knot of doors and fierce resistance from gunmen. Like many of Mr. Guzmán’s homes, this one was equipped with elaborate escape hatches: a decoy beneath the refrigerator and another behind a closet mirror, which he used to flee as the battle raged.
Hours later, on a highway heading out of town, the authorities finally got Mr. Guzmán, arguably the most powerful drug dealer in the history of the trade, for the third time since 1993.
A Potent Symbol
Mr. Guzmán’s capture—described using information from interviews with witnesses and government officials, police reports, military video and Mexican news reports—brings to a close, for now, one of the most exhaustive manhunts the Mexican government has conducted, an endeavor that drew in more than 2,500 people across the nation.
That all that effort was committed to the pursuit of a single man—whose arrest, despite his wealth and influence, will do little to alter the dynamics of the drug trade or the war against it—reflects just how potent a symbol Mr. Guzmán has become in Mexico and beyond.
As the head of the Sinaloa cartel, Mr. Guzmán is the embodiment of an identity the country has fought to shed for decades. To some, the uneducated farm boy turned cartel magnate is a modern Robin Hood figure, revered for his fight against the government and generosity to the poor. For others, he is a heartless criminal who floods America’s streets with narcotics and leaves Mexico’s streets strewn with bodies.
Either way, Mr. Guzmán represents a deep crisis for Mexico’s leaders as they struggle to define the country’s image. His daring escape from prison last July, in view of the video camera in his cell, cast a lurid spotlight on the incompetence and corruption that has long dogged the Mexican state, driving many to view the government on a par with criminals.
Now, the recapture of Mr. Guzmán, who has escaped prison twice, is about Mexico repairing its security relationship with America, its image globally; and perhaps most important, its leaders’ relationship with their own people.
El Chapo’s image, by contrast, seemed only to grow after his escapes. Perhaps more than the infamy he gained as a cartel chief—responsible for shipping tons of drugs to more than 50 countries, with a wider reach than even Pablo Escobar in his heyday—Mr. Guzmán has earned a reputation as the world’s preeminent escape artist.
After breaking out of prison in 2001, Mr. Guzmán dodged the Mexican and American authorities for over a decade. At a network of homes he owned, his team of engineers and diggers had constructed tunnels enabling him to slip away, time and again.
In February 2014, the authorities arrived at a house in Culiacán only to find a signature Chapo trick—a tunnel entrance beneath a bathtub—through which the kingpin had just fled.
He was, after all, a creator of the border tunnel, underground passages equipped with lighting, ventilation and mechanical carts to smuggle drugs into the United States without having to bother with evading customs agents. Mr. Guzmán’s organization is estimated to have burrowed more than 90 such passages between Mexico and the United States.
But those tunnels could hardly compare to the one crafted for his escape last summer from the most secure wing of the country’s most secure prison. During the 17 months Mr. Guzmán was locked up, he met often with associates, not only to plan his legal defense, but also to plot his escape. His men purchased land within sight of the prison, constructing an outer wall and an unfinished building on the site. From there, a mile away, the digging began.
They eventually reached the exact spot beneath Mr. Guzmán’s cell, tunneling up beneath the shower floor, into a space behind a waist-high wall that gave prisoners some privacy from the 24-hour surveillance camera. At 8:52 p.m. on July 11, 2015, Mr. Guzmán walked into his shower, bent over and disappeared into legend for the second time.
Two Cessna jets later whisked him back to the mountains of his childhood, where the pursuit would begin, again.
Lure of Silver Screen
Even before Mr. Guzmán vanished from custody, though, he was making plans for a vanity project that ultimately helped the authorities pinpoint his whereabouts. By most accounts, Mr. Guzmán was not short on ego. His lawyers had filed papers to copyright his name for a big venture he was working on: a movie about his life. He reached out to several famous Mexican actresses, including Yolanda Andrade, hoping to lure them into his web of influence.
To that end, Kate del Castillo, another Mexican actress known for her portrayal of a drug boss in the series La Reina del Sur, or The Queen of the South, had caught his attention. She had been sympathetic to him on social media and Mr. Guzmán instructed an associate to contact her.
Before Mr. Guzmán’s escape, Ms. del Castillo met with a lawyer in Mexico City to discuss communications with Mr. Guzmán about a potential film. The meetings and communication continued while he was ensconced in the mountains of the Sierra Madre.
The Mexican authorities were monitoring the phones of Mr. Guzmán and his accomplices, reading the unexpectedly tender exchanges between him and the actress. Mr. Guzmán promised to protect Ms. del Castillo as he would his own eyes, an affectionate phrase Mexican parents often say of their children.
Even when Ms. del Castillo suggested bringing along Mr. Penn for an interview, the drug lord did not flinch; perhaps in part, because he seemed to have no idea who Mr. Penn is.
The authorities tracked down Mr. Guzmán and planned an operation to grab him in early October. But the mission was delayed; they said they could not risk taking action while Mr. Penn and Ms. del Castillo were in the vicinity.
On Oct. 2, the parties met for the first time, in the remote reaches of the Golden Triangle, near the city of Cosalá in Sinaloa. Mr. Guzmán left afterward for Durango, where he had a ranch.
The circle had already been drawing tighter around Mr. Guzmán, with the authorities pressing into the villages and homes of his associates. But his meeting with the actors gave them the break they needed: actionable intelligence of his specific location.
Six days later, a detachment of marines swept in to capture Mr. Guzmán on his ranch. During the raid, Mr. Guzmán darted into a gully as he fled.
A Black Hawk helicopter circling the scene spotted him as he darted away, accompanied by his two female cooks and holding one of their children in his arms. A Mexican marine Special Forces sniper trained his rifle on the fugitive drug lord, but was told to stand down. Mr. Guzmán, upon seeing the Black Hawk, leaned back with the child in his arms, Mexican officials said, obscuring himself as a target. The likelihood of hitting one of the women or the child while firing on Mr. Guzmán was too high, they said.
In the following weeks, operations continued in areas under Mr. Guzmán’s control. The brutal weather of an approaching winter also concerned the cartel leader—Culiacán, the capital of Sinaloa, where life could be more comfortable, was under constant surveillance. He needed to go somewhere outside his traditional zone of influence.
Los Mochis fit the bill. In 2013, power in the city had begun to shift. The splintering Beltrán-Leyva cartel, long the dominant force, was pushed out, leaving control to Mr. Guzmán’s Sinaloa cartel.
The government, aware that Mr. Guzmán was planning a trip to an urban center, followed one of his associates to a house in Los Mochis, on a busy road with shops nearby.
Construction soon started. Neighbors dropped by to take a look. A worker even promised one of them any extra concrete left after the renovation was completed.
“You’re welcome to whatever we don’t use,” he told the neighbor. “We’re just doing some repairs.”
A Bloody Gun Battle
Toward the beginning of January, there was unusual activity at the house, with the residents inside breaking from their routines of the previous month, the authorities said. They intercepted phone conversations discussing the imminent arrival of someone known by the aliases of “Grandma” and “Aunt.”
At dawn on Jan. 7, a car pulled up to the house. The authorities’ certainty that Mr. Guzmán had arrived increased. That night, after the taco order, they were nearly sure of it.
Before sunrise the next morning, 17 Special Forces marines from the Mexican navy stormed the house, supported by 50 soldiers charged with surveillance and keeping an eye on the drain system in and around the home. Upon breaking through the metal door, they entered what appeared to be a foyer, surrounded by a maze of doors. Shortly after, gunfire erupted.
“We’ve got one injured,” a marine yelled, referring to one of his own soldiers, according to video of the raid taken by a soldier’s helmet camera.
Gunfire continued in the narrow corridors. A commander ordered one of the marines to toss a grenade in front of one of the many doors blocking their advance. Two marines advanced down another hallway, toward a staircase used by the surviving gunmen to escape to the roof.
By 6:30 a.m., the house was secure. Five of Mr. Guzmán’s men were killed in the raid, while four others were arrested. Two women discovered inside, cooks for Mr. Guzmán and his men, were also placed under arrest. Just the one marine was wounded.
A sweep of the house revealed two tunnels: one beneath the refrigerator, a false tunnel meant to confuse the advancing troops. The other was in a bedroom closet. A switch by the light bulb activated a trap door behind the mirror, leading to the route Mr. Guzmán used to flee.
On the road, Mr. Guzmán and his associate headed out of town along Highway 15. But the federal police were on alert, and they spotted the two men and arrested them.
Holding two of the deadliest men in Mexico made the police nervous. While they waited for the marines, they took the pair out of sight, afraid that cartel forces might try to stage a rescue. And with good reason: The police had been tipped that 40 assassins were on their way to free their leader.
They selected the Hotel Doux, an hourly-rate place off the highway. They booked rooms and took pictures of Mr. Guzmán in a filthy vest. The drug lord urged the men to free him. He promised them jobs as business leaders. When they refused, he tried threats.
“You are all going to die,” he warned them.
After the marines arrived, Mr. Guzmán was taken to Mexico City in a helicopter, the capture finally over. After being paraded before a field of news cameras at the Mexico City airport, Mr. Guzmán was ushered onto another helicopter, headed for the same prison he had escaped from six months earlier.
To keep him locked up this time, the authorities said they would rotate his cells, never allowing him to stay anywhere long enough to burrow his way out again. But to many, the longer the drug lord remains in prison in Mexico, the greater the risk of flight. His imprisonment could drag on for a year, given the numerous—and creative—injunctions filed by his team of lawyers to fight his extradition to the United States, where he faces federal indictments on charges that include narcotics trafficking and murder.
One of them, filed in August while Mr. Guzmán was still at large, stated that it would be impossible for Mr. Guzmán to receive a fair trial in the United States, given the hostile environment there toward Mexicans. They cited, as evidence, the language of a top Republican presidential candidate: Donald J. Trump.
—January 17, 2016
NOTE: As of this writing, Guzman is in prison in Mexico, awaiting likely extradition to the United States.
PRISON RATE WAS RISING YEARS BEFORE 1994 LAW
“Gangs and drugs have taken over our streets,” President Bill Clinton said in 1994 as he signed a far-reaching anti-crime bill to bipartisan acclaim.
Defending the law at the time, a frightened era of crack-cocaine wars and record murder rates, Hillary Clinton, as first lady, warned about an emerging generation of “super-predators”—a notion she later repudiated.
Confronted last week by protesters from the Black Lives Matter movement, Mr. Clinton defended his tough crime stance, even though he, like Mrs. Clinton, has joined in recent calls for sweeping reforms in criminal sentencing.
For some critics, the 1994 crime bill has come to epitomize the late 20th-century policies that sent incarceration to record levels and ravaged poor communities, taking a particularly devastating toll on African-Americans that political leaders are only now working to reverse.
History and statistics tell a more complex story, according to criminologists.
The Violent Crime Control and Law Enforcement Act of 1994 was a composite measure, with elements reflecting opposing impulses. It offered incentives to states to build more prisons if they toughened sentences, and added some mandatory minimum sentences to those that existed. But it also promoted the expansion of community policing and drug courts as alternatives to jail. It established a federal “three strikes” law and expanded the federal death penalty, but outlawed assault rifles.
Some critics portray the law as a critical turning point as the country rushed to put more low-level offenders in prison, ravaging low-income communities.
But in fact, the data shows, the startling rise in imprisonment was already well underway by 1994, with roots in a federal government war on drugs that was embraced by Democratic and Republican leaders alike.
“The trend of increased incarceration had already started two decades before 1994,” said Jeremy Travis, the president of the John Jay College of Justice in New York. Mr. Travis led federal research on crime during the Clinton administration and was an editor of a 2014 report by the National Academy of Sciences, “The Growth of Incarceration in the United States.”
“To lay mass incarceration and the damages to black communities on the doorstep of the 1994 crime act is historically inaccurate,” Mr. Travis said, although elements of the law added to the problem in a modest way.
What the historical record does show is that many federal and state changes in criminal justice policy led to a fourfold rise in the incarceration rate from the early 1970s until it declined modestly in the last few years.
The rise in incarceration was driven by state laws like the 1973 Rockefeller drug laws in New York. It was stoked by a major 1986 federal drug act, which expanded mandatory sentences and set the now-notorious 100-to-1 ratio in the quantities of powdered versus crack cocaine that could trigger severe penalties.
Still, the incentives offered to the states in the 1994 law—nearly $10 billion for prison construction on the condition that states adopt “truth in sentencing” policies—may have added to the prison populations of the 28 states that took advantage of the provision. Incarceration’s disproportionate effect on African-Americans continues: In 2014, the Justice Department reported, 6 percent of all black men age 30 to 39 were in prison; the rate was 2 percent for Hispanic men and 1 percent for white men.
The steady rise in incarceration into the 21st century calls for further explanation because it persisted through a steep decline in violent crime.
No one could have known in 1994, but the violent crime rate had already peaked. It plummeted over the next quarter-century, even as more people were sent to prison.
The crime bill passed with enthusiastic and bipartisan support, including a yes vote from Senator Bernie Sanders of Vermont, the current rival to Mrs. Clinton for the Democratic presidential nomination. Mr. Sanders has said that he opposed certain parts of the legislation but voted for the bill because it included an assault weapons ban and language dealing with violence against women.
Mr. Clinton, too, has decried some of the more worrisome parts of the law. In an address before the national convention of the N.A.A.C.P. last July, he acknowledged that the law had gone too far in toughening sentencing standards and had contributed to mass incarceration. “I signed a bill that made the problem worse,” he said. “And I want to admit it.”
But when confronted by Black Lives Matter protesters last Thursday during a campaign event for his wife in Philadelphia, Mr. Clinton defended his 1994 crime bill.
“I don’t know how you would characterize the gang leaders who got 13-year-old kids hopped up on crack and sent them out onto the street to murder other African-American children,” Mr. Clinton said to a protester. “Maybe you thought they were good citizens.”
“You are defending the people who kill the lives you say matter,” he said.
Mr. Clinton later said that he regretted the confrontation.
Criminologists have debated how much of the fall in crime can be ascribed to the rise in incarceration. Most, including the National Academy of Sciences panel that Mr. Travis helped lead, have concluded that extra incarceration played only a modest role compared with wider social changes.
One contributing factor to the persistence of high incarceration is suggested by John Pfaff, a professor of criminal law at Fordham University. Beyond the spread of mandatory sentences and other policies, he said, district attorneys became much more likely to bring felony charges and seek long sentences, perhaps reflecting a changing public mood.
Particularly before the mid-1990s, he said, sentencing laws in the states—which account for 87 percent of the country’s prisoners—had become more severe. On top of that, he said, local prosecutors became much more aggressive.
Across the country, the probability that an arrest would result in felony charges roughly doubled between 1994 and 2008, a trend that Mr. Pfaff said seemed unrelated to anything in the 1994 federal law.
Douglas A. Berman, a professor of criminal law at Ohio State’s Moritz College of Law, agreed with other experts that the direct effects of the 1994 law on incarceration rates had often been exaggerated. He also said that Mr. Clinton’s embrace in the early 1990s of anti-crime rhetoric may have been a political necessity, considering the drubbing that Michael Dukakis received in the 1988 presidential campaign for being considered soft on crime. And Mr. Clinton is right to say that black Americans were disproportionately victimized by runaway crime, and wanted help.
But the Clintons share blame with many others from that era, Mr. Berman said, for overemphasizing “tough” responses at the expense of more thoughtful solutions that did not involve the endless expansion of prisons.
—April 11, 2016