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Criminal Justice

Michael Carvajal

Photo by Tom Williams via Reuters

The search is on for a new director of the federal Bureau of Prisons after Michael Carvajal announced on January 5 that he’s retiring from his appointed post and will leave when the Department of Justice finds his replacement.

The Biden Administration needs to replace Carvajal with a person who knows prisons inside and out: someone who’s been incarcerated before.

When President Joe Biden announced his first round of cabinet picks just weeks after being elected in 2020, then Vice President-elect Kamala Harris said: “When Joe asked me to be his running mate, he told me about his commitment to making sure we selected a cabinet that looks like America – that reflects the very best of our nation.

It’s not clear that the Biden administration looks like the America that so many of us occupy.

Five years ago, researchers estimated that about three percent of the country – and 15 percent of Black men in the United States — have spent time in prison. Eight percent of the country and a third of Black men had felony convictions. Dr. Sarah Shannon, a sociologist who led the study, limited the data to the year 2010. Incarceration peaked in 2008 and reached its lowest level since 1995 last summer, according to a 2021 study by the Pew Research Center. Decarceration has added many more people to these totals since that 2010 snapshot; I think it’s much higher than the “20 million” number that gets appended to discussions of hiring people with criminal records.

So this part of America looks like it’s growing — and isn’t well reflected in the employee pool that staffs the Biden administration.

Some structural barriers prevent potential applicants with criminal records from filling federal posts, but it doesn’t have to be that way. Former President Barack Obama signed an executive order to turn the practice of allowing ex-felons to work in federal government into a formal regulation. At least three people with criminal histories worked in the Obama administration, mostly toward the end of his second term.

If the White House had remained in Democratic hands in 2016, even more former incarcerees might have found their way into federal employment -- but Obama’s successor erased much of that progress. The Trump campaign hired people with criminal backgrounds but not the Trump administration. Trump’s team actually wanted to expand the disqualifying criteria for federal employment to include having charges that were disposed through a pretrial diversion program. They wanted to exclude people who didn’t have a felony conviction record with an even harsher criterion: Merely a brush with the criminal legal system would have served as cause for rescinding a job offer.

Biden said he hopes he’s the polar opposite of Trump; one way to prove that would be to embrace the Beltway adage that “personnel is policy” — coined in a 2016 op-ed by Ronald Reagan’s Director of Personnel, Scott Faulkner — and rewind the reputation he’s earning for himself that he doesn’t care about doing better by the 157,596 men and women penned in the country’s 122 federal correctional facilities as of January 13.

While he promised to phase out reliance on private prison management companies early on (a vow some advocates question), Biden hasn’t made any commutations or pardons. In December, the White House ordered an “expedited clemency screening program for drug offenders with less than four years left on their sentences” but it hasn’t reorganized the Office of the Pardon Attorney. Biden lost some support in the reform community when he rebuffed a request from the National Council of Incarcerated and Formerly Incarcerated Women and Girls to commute the sentences of 100 women in his first 100 days.

While Trump touts the First Step Act as the pinnacle of reform, Biden’s Department of Justice has slow-walked its implementation. People restricted to home confinement could have completed their sentences years ago if the Department of Justice had applied the law’s signature “Earned Time Credits” to their sentences when they earned them. Instead, Attorney General Merrick Garland finally ordered it done the week of January 10, 2022, taking over a year to do what could have been accomplished very quickly.

The director of the Bureau of Prisons isn’t a Cabinet member per se. The office is filled by the attorney general and doesn’t require Senate approval – an aspect of the job that may change if a House bill introduced January 13 requiring confirmation hearings and a Senate vote to install a new director is made law.

Even though the Bureau of Prisons remains the only Justice Department agency whose head doesn’t require a Senate vetting, the choice is important to the entire tenor of an administration. Carvajal’s short stint mirrors the president he served; certain prisoners hoarded large sums of money in their inmate accounts and dodged financial obligations and a certain lawlessness pervaded federal prisons, which had nothing to do with the people convicted of federal crimes. A 2021 Associated Press investigation found more than 100 correctional employees have been arrested and/or convicted of crimes since 2019. It was a lapse significant enough for Senator Dick Durbin (D-IL) to call for Carvajal’s ouster in November 2021.

Naming a director who has a rap sheet would leave very few critics of Biden’s commitment to reform. Of course, this proposal will inevitably invite accusations that the Biden administration is allowing the inmates to run the asylum — as if that’s necessarily worse than who’s running it now.

But, surprisingly, it seems that even the most fervent reform advocates fall just short of saying that the new director should be a formerly incarcerated person.

The same National Council of Incarcerated and Formerly Incarcerated Women and Girls that sought to free at least 100 women a year ago, released a statement on January 12 and an open letter to President Biden asking for a director who has “a deep understanding of the causes of mass incarceration and a track record of combating institutional racism in keeping with this Administration's oft-stated -- but rarely seen -- commitment to racial justice… [and is] committed to decarceration of people who should not be in prison: the elderly, ill, survivors of domestic violence, and long-timers.”

The National Council did not return a request for comment on whether that “deep understanding” really means someone who lived deep inside a cell. Neither did representatives from Just Leadership USA, an organization that trains formerly incarcerated people for leadership positions. [Disclosure: I was one of JustLeadership’s “Leading with Conviction” Fellows in 2018.]

I’m not suggesting that someone slinging meth on a corner because his criminal record locks him out of legitimate employment should slide into Carvajal’s seat. More than enough former prisoners are qualified to do his former job. Among the millions of people who’ve re-entered society, there are two MacArthur Foundation Genius Grant award winners (1, 2), one of whom made Time Magazine’s 2019 Top 100 list, as well as law professors, elected officials, business pioneers, non-profit founders, authors, journalists, and artists who have accomplished more than other people who’ve never walked the line.

It won’t be some rough-riding abolitionist either who would deliver a surprise — or even illegal — exodus from federal pens; I don’t think an abolitionist would take the position. And that highlights the real risk of carving out Carvajal’s job for someone who’s been through the criminal legal system. It’s not a dearth of talent or responsibility; it just may be that none of them really wants the job of managing people confined to the same spaces they once were.

But if called, one of us should serve, even if only for a short period. To be the first person to leave one door of a prison and walk in another would too much of a revolution to ignore. And this president and his Department of Justice should kick it off by picking someone with lived experience to lead the federal government’s prison system.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns will now appear regularly in The National Memo.

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Portrait of Ahmaud Arbery

The three men convicted of killing Ahmaud Arbery Feb. 2020 as the 25-year-old was jogging through Brunswick, Georgia, all faced the death penalty. In a sentencing hearing on Friday, Travis McMichael, and his father, Gregory McMichael, instead will be serving life sentences without the possibility of parole. A neighbor, William “Roddie” Bryan, will serve a life sentence with the possibility of parole. Prosecutors chose not to seek the death penalty and Arbery’s family wanted the men to face life imprisonment. Judge Timothy Walmsley honored those requests. Prior to imposing those sentences, Walmsley led a minute-long moment of silence to illustrate just how swiftly Arbery was gunned down.

“The chase that occurred in Satilla Shores occurred over about a five-minute period. And when I thought about this, I thought from a lot of different angles and I kept coming back to the terror of [Arbery],” Walmsley said. He also quoted the defendants’ abhorrent words about Arbery in which they called him an asshole and threatened to kill him, which they ultimately ended up doing. Walmsley described Arbery as being “hunted down and shot” by the men. “And he was killed because individuals in this courtroom took the law into their own hands,” Walmsley added. The judge also quoted Arbery’s mother, Wanda Cooper-Jones, who read a victim impact statement earlier during the proceedings.

Travis, who shot and killed Arbery, was found guilty of malice murder, four counts of felony murder, two counts of aggravated assault, one count of criminal attempt to commit a felony, and one count of false imprisonment. He will be serving a sentence of life without parole plus 20 consecutive years. Greg was found guilty of four counts of felony murder, two counts of aggravated assault, one count of false imprisonment, and one count of criminal attempt to commit a felony. He was found not guilty of malice murder. He will be serving a life sentence without parole plus 20 consecutive years.

Bryan was found guilty of three counts of felony murder, one count of felony assault, one count of criminal attempt to commit a felony, and one count of false imprisonment. He was found not guilty of malice murder, one count of felony murder, and one count of aggravated assault. He has been sentenced to life with the possibility of parole.

During the sentencing hearing, Arbery’s family was able to give victim impact statements and the court was also able to hear from character witnesses who support the McMichaels and Bryan. Arbery’s mother, father, and sister all made powerful statements in support of sentencing the three men to life without parole. Marcus Arbery began addressing the court by acknowledging the unfairness of Travis and Gregory being able to sit next to each other as son and father during court proceedings, while Marcus will never get that chance to sit next to Ahmaud ever again. Marcus also addressed the situation surrounding Ahmaud’s murder.

“Not only did they lynch my son in broad daylight, but they killed him while he was doing what he loved more than anything: running. That’s when he felt most alive, most free, and they took all that from him,” Marcus said. “If I could, I would trade places with Ahmaud in a heartbeat, but I can’t, so I’m standing here today to do what he can’t. And that is to fight for him, fight for his memory, his legacy, and to tell you who he was.” Ahmaud’s sister, Jasmine Arbery, did just that in her statement.

“Ahmaud had dark skin that glistened in the sunlight like gold. He had thick, coily hair; he would often like to twist it. Ahmaud had a broad nose and the color of his eyes were riddled with melanin. He was tall with an athletic build. He enjoyed running and had an appreciation for being outdoors,” Jasmine said. “These are the qualities that made these men assume that Ahmaud was a dangerous criminal and chase him with guns drawn. To me, those qualities reflect a young man full of life and energy who looked like me and the people I love.”

“Ahmaud was funny,” Jasmine continued. “He told jokes to lighten the mood because he was a positive thinker. Ahmaud had a big personality and never missed an opportunity to let it shine. Ahmaud had a future that was taken from him… he was robbed of life’s pleasures big and small. He will never be able to fulfill his professional dreams nor will he be able to start a family or be in my daughter’s life.”

Finally, Cooper-Jones spoke before the courtroom. She chose to first address the son she had lost. “This verdict doesn’t bring you back but it does help bring closure to this very difficult chapter in my life. I made a promise to you. Today I laid you to rest. I told you I loved you and someday, somehow, I would get you justice,” Cooper-Jones said. “Son, I love you as much today as I did the day that you were born. Raising you was the honor of my life and I’m very proud of you.”

“My youngest son, he was born on Mother’s Day of 1994,” Cooper-Jones continued. “He had a smile so bright it lit up a room. He was a greedy baby that seemed like he was always searching for something to stick into his mouth. He was always a loving baby who seemed to never tire of hugs, cuddling, and kisses. He loved. He never hesitated to tell me, his sister Jasmine, and his brother Marcus that he loved us. And, your honor, we loved him back. He was messy. He sometimes refused to wear socks or take good care of his good clothing. I wish he would have cut and cleaned his toenails before he went out for that jog that day. I guess he would have if he knew he would be murdered. My family’s going to miss Ahmaud. We’re going to miss his jokes, his impersonations, his warm smile. These men deserve the maximum sentence for their crimes. Ahmaud never said a word to them. He never threatened them. He just wanted to be left alone. They were fully committed to their crimes. Let them be fully committed for their consequences.”

All three white men are facing federal hate crime charges for taking Arbery’s life and menacing the Black man. A separate federal trial is scheduled to begin on February 7. The men each face one count of interference with rights and one count of attempted kidnapping. Travis and Gregory McMichael were also charged with one count of carrying and brandishing a firearm in relation to a crime of violence. Travis’ firearm charge includes the fact that he discharged his weapon.

Arbery’s death and the circumstances surrounding it, which were only discovered after criminal defense attorney Alan Tucker leaked footage of the crimes, has drastically changed how Georgia approaches cases like these. The state finally passed a hate crime bill that allows for additional sentencing options if defendants are convicted of a crime targeting a victim because of their “actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability.”

Article reprinted with permission from Daily Kos