Welcome back! I hope you will join me for another client visit.
Today, you are a mitigation specialist1 on our capital habeas team for a client who has been convicted of murder and sentenced to death by a jury after a relatively brief trial. This means he has already been placed on “death row” in a state prison, where he has been incarcerated for the last decade. Our team is seeking to challenge the constitutionality and/or legality of his arrest, trial, sentence, or execution.2
We are visiting Client today to check-in with him: to see how he is feeling because he’s had some issues with depression, to discuss any case updates, to gather some more information about his family history to more fully develop Client’s life story — an very important part of mitigation work—and, to just talk with him about whatever he feels like talking about. It is going to be a very long day.
To get our day started, we meet in the parking lot of our office at 5:30AM. The prison is three hours away from our office and visiting hours start at 9:00AM. We want to make sure we get there early so we have plenty of time to get through security and request that Client be brought into the visiting area to meet us.
We sleepily greet each other, holding giant travel mugs of steaming coffee. You drive because, for some reason, my driving makes you nervous. As we drive beyond the city limits, we pass beautiful rolling hills, cattle and horses roaming pastures, and other bucolic sights as the sky turns purple, pink, and then blue. It’s a beautiful day.
After a while, we chat amicably and listen to music, though a tension hangs in the air as we both physically and mentally prepare for the hours’ long visit ahead.
On our way, we pass through a pretty typical small town—small bustling downtown with storefronts, a courthouse, a few churches, little diners and restaurants, and the like.
The town also houses the state’s execution facility. We grow silent as we drive past the red-brick building with a death chamber inside, nestled between a burger joint, a mom-and-pop restaurant, and a gas station. A client of mine had passed through its doors two years ago, almost to the day, to face his execution. I breathe a quiet prayer around the ache in my heart and lump in my throat.
Soon, we re-enter the realm of farms and ranches, then stop at the last gas station with clean bathrooms before arriving at the prison. Our team, over the years, has vetted the nearby bathroom scene so that we can go in a clean one one last time before we have to hold it for hours.
As we crest a small hill, we see a large tower surrounded by gleaming barbed wire fences arising out of a green field like a dystopian oasis from otherwise beautiful countryside.
We pull into a long driveway and stop at the guard booth in front of a large gate and a big, uniformed man. He rolls toward our car, one hand resting on his big belt buckle and the other on the roof of our car. Leaning in the window to look around the car’s interior, he states, “Prisoner number,” though he is clearly asking a question.
I provide the number our client has been assigned by the state’s corrections department. The number he must respond to during roll calls. The number we must give when we want to speak with him or write to him. The number that is very much part of the overall dehumanizing process of incarceration.
The guard looks at his clipboard. “IDs and pop your trunk,” he gruffly requests.
We both hand him our licenses and the badges we are given by our workplace, and you pop the trunk.
The guard saunters back into the guard booth and does some stuff on his computer. When he is satisfied, he hands us back our IDs and moves around to the trunk. We can hear him lifting the wheel well cover and moving the tire iron. The trunk slams shut. The big man takes a knee and looks under our car.
Grunting an “okay, you’re good to go” as he stands. The guard presses a button and the gate lifts. Into the prison compound we go.
The driveway bends a bit into a parking lot near a big brick and concrete building. It is a sprawling single-story with slits for windows, except for a rather pleasant looking, windowed foyer facing the lot. Tower tops are visible in the back corners of what is likely an outdoor space in the middle of the compound.
Flowers, vegetable gardens, and other greenery adorn the front yard of the building. A few men in uni-color prison garb carry rakes and hoses as they tend to the garden, always watched by a uniformed correctional officer.
We go through the usual rigamarole of placing our purses, snacks, waters, phones, and everything else in the trunk. Today, we are wearing loose, comfortable clothing and we’ve brought sweaters because we know how cold it can be in there.
We lean against the trunk, quickly eating a power bar and taking a very small sip of water. It will be our last bite and sip for hours, potentially six or seven.
When we are ready, we walk into a small, dingy room where correctional officers man the X-ray machine. There is a small room off to the side that has a sign that says something like, “Search Room.” I shudder a bit as I think about what might happen in there.
The guards greet us and tell us to put all of our belongings on the conveyor belt. Shoes off. Belts off. Extra layers off.
When our legal pads and pens come out the other side, one of the guards rifles through the pages, making sure there is nothing tucked inside.
A female guard steps forward and runs a wand over our bodies, followed by her hands — crotch, waistband, breasts. She pulls our waistbands forward and back, looking down inside. Nothing left unexamined—though we are able to keep our clothing on.
Then, we stop at a glass booth with a metal grate to speak through. Next to the booth is a large iron door, much like a bank vault door.
“IDs. Prisoner number,” the guard inside says. We recognize each other from previous visits and make inane small talk while we wait for him to get whatever permissions he needs from some non-visible person.
When he gets the okay, the big door buzzes and clicks open. We step into a bright, oddly cheerful foyer, and are greeted by an administrative staff person who asks us for the prisoner number of the client we are here to see and our IDs. She checks her clipboard, then speaks into her walkie talkie repeating our client’s prison number and our names.
Together, we squeak down a long, institutional hallway until we arrive in a large room. Waiting for us at a small table near a wall of windows, another woman greets us and has us sign in. She asks for our client’s prisoner number and his name, then she speaks into a walkie talkie.
We make more inane small talk with her until we are told to go sit in booth number two and our client will be out.
As we turn to our right, we see about six or eight booths with decrepit office chairs and stools placed in front of each one. The visitors booths bear a vague resemblance to library study carrels—a small metal table lip, white wings jut out to provide minimal privacy, and an old-school phone handset hangs in the interior of each wing.
In a back corner stands a vending machine that has seen better days. When I first started in this office, my supervising attorney warned that I should carb-load and dehydrate before visiting the prison because the bathrooms are nasty and the vending machine is unreliable, at best, and unsafe, at worst. Based on what I see, I trust his advice.
You and I head to the our assigned booth and sit thigh-to-thigh, shoulder-to-shoulder as we face a miniscule white room the size of a phone booth. A large plated glass window separates us from the room.
At the back of the booth is a large door, with a plated glass window in the top half and a bean slot in the center— a slit in the door, large enough to put two fists through, with a flap over it, a bit like mail slots in a door only slightly larger.
Behind the window, we can see guards walking back and forth, sometimes walking with one of the people who are incarcerated, sometimes just the guards. Visiting hours have begun.
Yet, we wait. And wait. And wait for nearly an hour.
I get up to ask the lady at the small table near the windows if she knows what’s going on. She says, “Hold on, sweetie. I’ll go see what I can find out.”
We wait some more. She returns to say that no one had told Client of the visit we had scheduled a couple of weeks ago so they were just waking him and giving him a chance to get ready, and then, there was an issue with having enough guards “to move the guys around.”
So we wait, moving around the room while we can.
Finally, we hear the buzz of the door in the inner hallway and squeeze ourselves together again on our side of the booth.
The door on the other side of the plated glass swings open and in walks Client, wearing white scrubs and chains—ankles shackled over his rubber flops and hands cuffed tightly together behind his back. Once he is inside the booth, the door shuts behind him with his chains firmly in place.
I make full, unwavering eye contact with my client for these next moments, per his request. During our first visit, he said that holding eye contact with me helped him get through the experience because he would be looking at someone who sees him as a human.
What happens is this—the guards leave our clients’ hands cuffed when they shut the door to the visiting booth, but our clients are allowed to have their hands uncuffed during their visits. To facilitate this, six-foot-tall Client has to awkwardly squat-kneel down, lift his shoulders, and press his tightly cuffed hands back through the bean slot for the officer, now standing on the other side of the door, to unlock and remove his cuffs.
If you didn’t know what was happening, it resembles a slightly unsteady four-point start of a runner if they could not use their hands —head bowed, torso bent, knees almost touching the floor, with a slight shakiness as he tries to maintain his balance to push his hands back through the bean slot.
For a moment, we have to break eye contact while bends his head to lift his hands a bit higher through the slot. I see the wince of pain on his face as his shoulders are stretched at an unnatural angle.
As soon as he is able, when his hands are freed, he reinitiates eye contact and stands up, stretching out his back and rubbing his wrists. Then, he sits on the metal stool and gets as comfortable as he can.
Our eye communication changes then and we smile at each other, holding our palms flat on each side of the glass in greeting. There are no contact visits at this prison, so this is as close to a handshake or a hug as we can get.
His brown face and hands illuminated against the whiteness of his clothing and the whiteness of the booth. Small, rectangular glasses perch on the bridge of his nose.
Without breaking eye contact, our hands pull away from the glass and reach for the phones.
He shakes his head and says, “Man, I hate that shit.” His voice crackles through the deteriorating metal wires that connect our voices. Move the handset and the wire the wrong way and our connection is so bad we can hardly hear each other despite being a mere three-to-four feet apart.
I give a brief nod in acknowledgement, hoping my face is expressive enough that he knows I hear and see him. What words can I say after bearing witness to this same humiliation so many times.
Then, he asks, “How are you?”
His question begins the five hour conversation we have together about things ranging from his medications and health, to Colin Kaepernick, to whether the death penalty should be allowed (he thinks it should and I don’t), to his father’s death, to being “the man of the house” by age 10, to the March for Our Lives, to why the New Orleans Pelicans are called the Pelicans, to tax policy in the U.S. (he’d been up all night trying to think how Bernie Sanders and Elizabeth Warren’s proposals could be paid for), and so much more. From the easy conversation of people who have already spent hours shooting the shit to the harder conversation of figuring out how to spare his life—if that’s what he wants (a question he goes back and forth about).
To date, we are the only visitors he’s had. His family lives hours away and cannot afford to visit. He has not seen them in person for over ten years. When we can, we stay and talk for as long as the prison will let us. Today, that was five hours.
Throughout the conversation, one of us has to get up and move around because the metal stools and chairs cause our behinds and legs to fall asleep. We have to move the handset from one ear to the other, as our arms start shaking and our necks get cricks from holding the receivers in place.
In the hours we have spent together, we have memorized each other’s faces. Often, when I go to sleep in the nights following visits, the visages of my clients burn brightly across the backs of my eyelids.
You see, the life infused in my clients’ faces, framed by the plated glass, the white booth, and the white uniform, makes our faces a kind of moving portrait for the other. A mismatched mirror. There is nothing the distract the eye from the eyes and faces of the other. Every facial movement. Every line, dimple, and scar. Every emotion or thought is witnessed by the other. What is seen is remembered.
Finally, it is time to part. We raise our hands against the glass again in a gesture of goodbye. We hold eye contact while he bows down and slides his hands through the bean slot to have his cuffs put back on, and we wave as he is led out of the booth door and back to his cell, where he is kept in single cell all day, every day, with only brief stints alone in a “leisure” room.”
You and I get up, stretch, and gather our things. Though we had donned our sweaters early on, our fingers were numb with cold, making us clumsy with our pads and pens.
Backs straight and chins up, we walk back out the way we came — down the long corridor, through the oddly pleasant foyer, out a side door parallel to the X-ray room, and into the bright sun.
We have not had anything to eat or drink for nearly seven hours at this point and I have got the shakes. As we make our way to the car, I feel depleted, cold, hot, clumsy, enraged, sad, glad, guilty, empty, full. The whole gamut.
With a double-beep and a clunk, the car opens for us. We fall upon the trunk to slug our waters and eat the snacks awaiting us — just enough to tide us over until we can eat a meal.
We settle into our car with a groan due to the stiffness that comes from sitting on uncomfortable metal stools while holding a phone to our ears for five hours straight. We are quiet because there is nothing to say and no need to talk. At least, not for now.
Sadly, the only town nearby with food is the same town where many of our clients are sent to be executed. Yet, food is needed. So, we stop at the mom-and-pop diner with the amazing lemon icebox pie and eat enough to feed a small army.
It is remarkable how hungry I feel after those visits. I know that sounds terrible, but it is the God’s honest truth. When I leave those hours-long visits, I am ravenous. I feel like I gave everything I had to give in those hours, so when I leave I require sustenance in order to have the energy to process what I just experienced. I can only begin to imagine what it is like for the people I visit—and it is, in part, that imagining that also burns so much energy.
The drive home is quiet, with small bursts of conversation about a detail revealed by our client or renewed giggle at something funny that was said.
When we arrive back at our office’s parking lot, we hug tightly and feel the other’s sigh as we begin to process physically our shared experience. Promising to check in with the other tomorrow, we part ways.
I get into my car and lean my head back against the headrest. Despite eating my body weight in food, I feel lethargic, heavy, drained, empty. In all honesty, it’s possible I shouldn’t have been driving because I was a space cadet. Somehow, I made it home—only later to discover I have no memory of how I got there.
Then, I weep. Tears leaking over my cheeks as I prepare my dinner and wander about the house aimlessly. Later, I fall into a restless sleep, with dreams of terrible things that I don’t remember when I wake up, but feel at my core.
The next day, I experience what I call “the [Prison Visit] Effect.” (To our team, I use the name of the prison we regularly visit, here I translate so you know to what I am referring). “The Prison Visit Effect” is the experience of feeling drained, spacey, unable to concentrate, forgetful, or foggy after a long visit at the prison. Depending on the length and type of the visit, the Effect can last for a few hours or a few days.
As a rule, many in our office try very hard not schedule important meetings or deadlines near prison visits because we all acknowledge the physical, psychological, emotional, and spiritual toll such visits take.
Please do not misunderstand — we go willingly to see our clients. We want to see our clients. What we experience is nothing as compared to the experiences of our clients.
And yet, we must acknowledge that bearing witness, being fully present, and attending to our clients takes all we’ve got. That exacts a cost we are willing to pay to keep doing this work. But it is a cost.
Nonetheless, our work also demands that we learn how to care for ourselves during and after the Prison Visit Effect so that we can go on and be effective partners and advocates with our clients.
And so we do. And so it is.
Very Brief Prison Explainer
There is a great deal to say about prisons. However, this explainer serves only to differentiate prisons from jails, the topic of my last newsletter, and give you the most basic understanding of what prisons are.
People who are convicted of a crime and sentenced to a period of incarceration of one year or more typically are held in prisons.
If a person is convicted of a state-level offense in a state court (including county courts) and assessed a prison sentence of one year or more, they will be sent to a prison run by that state’s corrections department, a state agency.
If a person is convicted of a federal-level offense by a federal district court judge, they are sent to a federal prison managed by the U.S. Bureau of Prisons (“BoP”), an agency overseen by the Department of Justice in the executive branch of the federal government.
The BoP, not the judge, has full authority to place a person in any prison it chooses based on its own criteria, and while it may consider a person’s proximity to his/her/their family, the BoP is not required to do so. Therefore, many people caught in the BoP system are incarcerated far away from their loved ones and support systems, making visits and other ways of staying in touch very challenging, if not impossible.
People who are undocumented and/or face deportation due to a federal criminal conviction and are sentenced to prison time are often sent to Criminal Alien Requirement prisons managed by private prison companies, such as CoreCivic (formerly CCA) and GEO Group, allegedly overseen by the BoP. These prisons are entirely populated with people who are non-citizens and the conditions are often deplorable.5 In other words, it is a segregated facility solely for immigrants.
Prisons at both the state and the federal level have different security levels, ranging from minimum security to maximum security. These levels indicate the amount of freedom of movement those who are incarcerated have within the facility, the types of housing available within the facility, and the amount of security assigned to the facility.
Who ends up at what facility is usually determined through a safety points assessment process considering factors such as criminal history, age, immigration status, and history of violence. While some of the points assessed may seem logical, others appear to be racist, vindictive, and/or cruel.
For example, a non-citizen who is undocumented must be held in a low security facility or above, regardless of the nature of their alleged crime.
Upcoming editions will delve more deeply into the profound racial disparities in prisons,6 the wide-ranging, the often inhumane conditions in prisons around the country,7 and the immense failure of prison systems to protect those for whom they are responsible from COVID-19.8
Until then, I hope this episode provides you with a better understanding of the differences between jails and prison, as well as some resources to explore.
Thank you for your time and attention!
“Mitigation specialists speak for the dignity and value of those who have committed even the worst criminal acts. When a criminal defendant faces a death sentence, a mitigation specialist will tell his story to the jury in order to advocate for his life. Mitigation specialists also provide expert insight into criminal culpability, helping courts to understand a defendant’s mental health or developmental disorders.” “Our Work,” National Alliance of Sentencing Advocates and Mitigation Specialists, available at: https://bit.ly/3ghCv3b.
For more a full description of what capital habeas teams do, check out the Arizona Federal Public Defender’s Capital Habeas Unit description of what they do: https://az.fd.org/fpd/capital-habeas-unit/what-we-do.
To explain habeas corpus more generally, take a look at:
“FEDERAL HABEAS CORPUS,” Jailhouse Lawyer’s Manual, Columbia University School of Law, available at: http://jlm.law.columbia.edu/files/2017/05/25.-Ch.-13.pdf; and,
Charles Doyle, “Federal Habeas Corpus: A Brief Legal Overview,” Congressional Research Service, available at: https://bit.ly/3sezPsz.
Wendy Sawyer and Peter Wagner, “Mass Incarceration: The Whole Pie 2020,” The Prison Policy Initiative (Mar. 2021), available at: https://www.prisonpolicy.org/reports/pie2020.html.
Felipe de la Hoz, “Authorities Transferred Hundreds of People Between Shadowy Immigration Prisons, Ignoring the Coronavirus Threat,” The Intercept (June 21, 2020), available at: https://theintercept.com/2020/06/21/coronavirus-criminal-alien-requirement-prisons/; Jonathan Blitzer, “A New Study Uncovers Troubling Information About Immigrant-Only Prisons,” The New Yorker (Mar. 13, 2019), available at: https://www.newyorker.com/news/daily-comment/a-new-study-uncovers-troubling-information-about-immigrant-only-prisons; American Civil Liberties Union, “Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison System,” (June 2014), available at: https://bit.ly/3BaYzG7.
Ashley Nellis, “The Color of Justice: Racial and Ethnic Disparity in State Prisons,” The Sentencing Project, available at: https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/; “Divided Justice,” Vera Institute for Justice, available at: https://www.vera.org/publications/divided-justice-black-white-jail-incarceration; “Criminal Justice Factsheet,” NAACP, available at: https://naacp.org/resources/criminal-justice-fact-sheet; Wendy Sawyer, “Visualizing the racial disparities in mass incarceration,” Prison Policy Initiative, available at: https://www.prisonpolicy.org/blog/2020/07/27/disparities/.
“Prison Conditions,” Equal Justice Initiative, available at: https://eji.org/issues/prison-conditions/; “Punitive Excess,” The Brennan Center for Justice, available at: https://www.brennancenter.org/series/punitive-excess; “Conditions of Confinement,” Prison Policy Initiative, available at: https://www.prisonpolicy.org/research/conditions_of_confinement/.
Bill Chappell, “Crowded U.S. Jails Drove Millions Of COVID-19 Cases, A New Study Says, NPR, available at: https://www.npr.org/2021/09/02/1033326204/crowded-jails-drove-millions-of-covid-19-cases-a-new-study-says; Neal Marquez, Julie A. Ward, Kalind Parish, MA, et al, “COVID-19 Incidence and Mortality in Federal and State Prisons Compared With the US Population, April 5, 2020, to April 3, 2021,” JAMA (2021), available at: https://jamanetwork.com/journals/jama/fullarticle/2784944; Katie Park, Keri Blakinger and Claudia Lauer, “A Half-Million People Got COVID-19 in Prison. Are Officials Ready for the Next Pandemic?” The Marshall Project, available at: https://www.themarshallproject.org/2021/06/30/a-half-million-people-got-covid-19-in-prison-are-officials-ready-for-the-next-pandemic; Equal Justice Initiative, “Covid-19’s Impact on People in Prison,” available at: https://eji.org/news/covid-19s-impact-on-people-in-prison/.