While keeping the VFTC going is at the top of my priority list, it is but one of the goals I hope to accomplish during my tenure as Program Leader. With the help of the journalism staff, we hope to offer our “IntroductionREEVALUATING to Journalism” class to the entire ACI. We also hope toCRIME develop a new Photojournalism course. This class will be dedicated to teaching both the technical and the artistic aspects of theAND job that today’s reportersPUNISHMENT are required to know. These are only a few of the objectives we hope to accomplish and with the dedication of my journalismin team, theSouth support of ACI staff andCarolina administration and the tireless efforts of volunteers, I believe we can make the publication greater than ever! Thank you for giving me this chance. By Shirene Hansotia Humbly, AdamCriminal S. Justice Policy Counsel ACLU of South Carolina

1

2 This report was written by Shirene Hansotia, but benefitted from the contributions of many talented people. ACLU of South Carolina would like to acknowledge and thank the following people: ACLU of SC Executive Director Frank Knaack and former Legal Director Susan Dunn for their tireless efforts reviewing the report; University of South Carolina Law School Associate Professor Aparna Polavarapu for her contributions regarding restorative justice; Stephen Hoffius for his copy editing and Paul Rossmann for graphic design; Martin Lippiett for contributing several photographs; and Mandee Funai, Megan Powell, Lindsey Nishan and Julie Fekete for their generous assistance with citations.

*For the purposes of this report, the terms violent and non-violent were used based on the subjective understanding and definition of South Carolina law, not on the relative harm to the community.

*For the purposes of this report, the terms male and female were used according to SCDC policy on classification, and do not necessarily correspond 2 with an individual’s gender identity. TABLE OF CONTENTS

Executive Summary...... 1 The argument for bold sentencing reform in South Carolina...... 5 Mass incarceration negatively impacts everyone...... 6 How did we get here? ...... 7 The era of harsher sentencing laws across America ...... 7 South Carolina’s path...... 9 Historical background...... 9 Landmark lawsuit against SCDC on behalf of mentally ill individuals ...... 11 Learning from our past...... 15 The power of hindsight: Longer sentences do not deter crime, are expensive, And destroy lives, families and communities ...... 15 South Carolina case ...... 19 First wave of reform ...... 19 The criminal justice environment in South Carolina in 2021...... 21 Recent events: The Lee uprising and COVID-19 in SCDC ...... 21 GRAPHIC: Average Daily Incarcerated Person Population FY1970-2020...... 22 GRAPHIC: SCDC Daily Cost Per Incarcerated Person FY1990-2020 ...... 23 GRAPHIC: SCDC Annual Cost Per Incarcerated Person FY1990-2020...... 24 SCDC’s lack of staffing is chronic, and unsustainable ...... 25 Issues exacerbating security concerns for understaffed corrections system...... 25 How bad is the staffing shortage? ...... 26 High rate of staff turnover, and inability to fill positions...... 27 GRAPHIC: Serious Incarcerated Person Assaults on Employees FY2011-2020. . . . 27 Staffing effects on security...... 28 Proliferation of gangs ...... 29 Lockdowns as a management tool...... 30 Lack of staffing: Effects on medical, mental health, and addiction services...... 31 The argument for sweeping change within SCDC ...... 34 The dire need for prison programs ...... 34 Educational programs reduce prison violence and recidivism...... 34 Vocational programs reduce recidivism and build skills ...... 36 The importance of preparing everyone for re-entry ...... 36

3 Table of Contents (continued)

The prison economy...... 37 Access to CARES Act stimulus funds...... 38 The value of volunteer programming...... 39 The benefits of visitation...... 40 Managing COVID-19 in South Carolina prisons...... 41 The arcane prison-grievance process...... 42 SCDC’s lack of transparency combined with retribution faced by journalists and advocates covering prison issues ...... 44 How do we fix the costly mistakes of the past and protect public safety in South Carolina? ...... 46 With political consensus, where do we go from here? ...... 48 Infrastructure installed by tough-on-crime laws...... 48 GRAPHIC: SCDC Institutions ...... 49 Building a smarter justice system...... 50 Two-tiered justice: People convicted of violent crimes are excluded from reforms. . . . 50 The Unger case study: Demonstrating that we can safely release people convicted of violent crimes...... 51 Juvenile Life Without Parole (JLWOP): Research into the juvenile mind proves youth . should be treated differently ...... 51 The damaging war on drugs ...... 52 Restorative justice policies offer an alternative approach ...... 53 South Carolina broken parole system ...... 54 Implications of the rise of the Victim’s Rights Movement ...... 56 The need to increase fairness and equity in the parole process ...... 57 Parole best practices ...... 58 Revocation of parole and probation for technical violations ...... 60 Presumptive parole ...... 61 Second look sentencing ...... 62 Earned time/good time credits...... 63 Retroactive application of sentence reduction reforms ...... 64 Commutation ...... 65 Compassionate release policies ...... 65 Evidence-based recommendations for SCDC ...... 67 Evidence-based reform recommendations for South Carolina...... 69 Endnotes ...... 72

4 EXECUTIVE SUMMARY

America has reached a point of South Carolina’s path mirrored the reckoning. In the nation that incarcerates national trends, as the General Assembly far more people than any other on earth, enacted similar laws that filled state there is a growing bipartisan consensus prisons and exacted steep budgetary that the current predicament of overflowing costs. This spike in incarceration rates hit prisons and exorbitant corrections costs vulnerable Black and Brown communities is morally and fiscally unsustainable. the hardest; a disparity that continues Republicans and Democrats agree: to this day. Eventually, South Carolina Reforming the American prison system is legislators recognized that these trends an imperative. were untenable, and passed sentencing The ripple effects of mass incarceration reforms in 2010. These changes resulted impact everyone. Seven percent of American in the closure of several prisons, financial children have had a parent incarcerated savings, and the diversion of people at some point in their lifetime. Decades of convicted of low-level offenses from prison over-incarceration have taken an enormous into alternative programs. Nevertheless, toll on state budgets, even as spending the 2010 reforms did not go nearly far on education, housing, and infrastructure enough. has declined. And 95 percent of people in Research has proven that lengthy state prisons will be released back into sentences do not deter crime, have a far communities, meaning we have a vested greater impact on minority communities, interest in making sure incarcerated people and keep people incarcerated well beyond have access to the programs and skills they the point at which they pose a threat to require to succeed upon release. In spite of public safety. Today, our state prisons are that need, prison programming has been filled with many thousands of elderly and underfunded for decades, so whatever new medically vulnerable people as a result of skills individuals leave prison with are sentencing policies enacted decades prior. those they pick up on their own. Experts concur that the vast majority of The seeds of mass incarceration were people “age out” of crime, meaning we are planted a half a century ago, beginning allocating precious taxpayer dollars to keep with President Richard Nixon’s war on people in prison into their golden years with drugs. The federal government proceeded little to no benefits for society. to pass three-strike, mandatory-minimum, The deadly Lee Correctional Institution and truth-in-sentencing laws that were uprising of April 2018 and the COVID-19 replicated by the states. These draconian pandemic are two issues that dominate sentencing changes sent far more people to the criminal justice landscape in South prison for far longer periods of time. The Carolina today. Both highlight the harms dramatic expansion of prison populations created by the chronic staffing shortage was followed by deep cuts in prison within the South Carolina Department programs and services, resulting in the of Corrections (SCDC), and have resulted warehousing of human beings at a rate in countless preventable deaths, the never before seen in history. cessation of life-altering prison programs, 1 and the termination of prison wages for life-without-parole sentences, ending the vast majority of incarcerated people. the war on drugs, reforming our broken A lack of corrections officers has also led parole system, and enacting a variety of to an overreliance on the use of extended policies that reward positive behavior and lockdowns to manage the prison population. participation in prison programs with the Lockdowns deprive people of the chance to opportunity for earlier release. The result communicate with family members, take will be smaller, more manageable prison regular showers, have access to fresh air, populations, and retrained individuals who and sanitize their surroundings, which is can play positive roles in their communities particularly important during a pandemic. upon release from prison. Staffing shortages are also rampant in The major responsibility for addressing the medical and mental-health fields, the abysmal conditions in South Carolina meaning many people wait for months and prisons rests with the state legislature, sometimes years for life-saving treatment. which provides the bulk of the funding for All of these factors make a compelling its operation. The legislature reformed argument for sweeping changes within sentencing laws in 2010, keeping thousands SCDC, and throughout our criminal justice out of our prisons. It can do so again. system. If South Carolinians are going to But everyone in the state— families of turn the page on our past mistakes, we the incarcerated, journalists, individuals must begin by dismantling the financial who simply pay the taxes that pay for the incentives already in place that incentivize prisons—must recognize the deplorable keeping our prisons full and prison staff conditions and the need to make deep, employed. From there, we must embrace systemic reforms. South Carolina prisons a wide range of reforms that have already are inhumane, but they don’t have to been successfully implemented in other remain that way. states. These include eliminating juvenile

2 3 4 THE ARGUMENT FOR BOLD SENTENCING REFORM IN SOUTH CAROLINA

In 2008 Jerome Laudman lay face child in the medical office after fellow down in a pool of feces and vomit in his incarcerated women grabbed a wheelchair cell in the solitary confinement unit at Lee and transported her there.10 Thankfully, Correctional Institution near Bishopville, Ms. Geter’s second child survived.11 S.C., for 11 days.1 Moldy food trays were Several months after the first cases of stacked near his naked, unresponsive COVID-19 were diagnosed inside South body as prison guards refused to assess Carolina prisons, the South Carolina his medical condition or render aid. At Department of Corrections (SCDC) began age 44, Mr. Laudman was well known to transporting newly infected incarcerated the prison staff as an individual suffering men to an abandoned dorm at Lee from paranoid schizophrenia, intellectual Correctional Institution.12 The men were disabilities, and bipolar disorder.2 He placed in cells they described as covered had been sentenced to ten years in prison in filth, and left largely to fend for after he was convicted of armed robbery in themselves.13 According to testimony from 1998. After almost two weeks had passed, multiple individuals, the men, already sick Mr. Laudman was finally transferred to a and weakened by the virus, were forced to hospital and diagnosed with hypothermia. endure the extreme heat associated with He died shortly thereafter.3 South Carolina summers without relief Sinetra Geter was serving two years due to broken air conditioners.14 Many for a probation violation in 2012 when the complained of broken toilets, infrequent unthinkable happened.4 She was 26 weeks meal delivery, and a dire lack of medical along on her first pregnancy and expecting care.15 Fellow incarcerated men were tasked twins. After working a lengthy shift in the with providing meals and checking on the clothing plant at Camille Griffin Graham status of those in quarantine, ostensibly Correctional Institution in Columbia, she because SCDC staff feared catching the began to feel intense pain, and sought virus themselves.16 medical help.5 A nurse on duty checked her The majority of the men sick with vital signs and sent her away.6 Ms. Geter COVID-19 came to Lee with pre-existing continued to feel pain, and sought help medical conditions.17 Many made repeated several more times, only to be repeatedly requests to medical staff to obtain their rebuffed by medical staff.7 regular prescription medications for Ms. Geter’s cries for help from prison underlying conditions, but were denied.18 staff went unanswered and she gave birth As a result, a number of men went for to her first child in the restroom of the weeks or more without critical medications prison, where the child died.8 Medical to treat depression, diabetes, and serious professionals who examined the child at heart conditions.19 Their access to phone the coroner’s office testified in a lawsuit calls was severely curtailed and the men later that the child could have survived if were allowed only infrequent showers in Ms. Geter had received medical attention areas that had not been regularly cleaned.20 sooner.9 Ms. Geter gave birth to her second One man who survived the ordeal shared 5 his feelings about being quarantined with offenses.23 Why does this matter? Because other COVID patients at the dorm in Lee children with a parent behind bars are far Correctional Institution, where a deadly more likely to suffer severe emotional and riot had taken place two years prior: “We social consequences, including difficulty in knew we were being sent there to die.”21 school, homelessness, and increased welfare and foster-care needs.24 Mass incarceration negatively impacts everyone “We knew we were being sent there to die.” The plight of incarcerated people is a —Incarcerated men who tested positive for COVID-19 topic many in society find easy to ignore. and sent to Lee prison quarantine unit Beyond the predictable explanations that individuals who have committed crimes should not be coddled, the desperate pleas for criminal justice reform are often In addition to these profound societal drowned out by the cacophony of other impacts, incarcerating substantial numbers demands on the public’s interest, such as of people for longer periods of time is the need for adequate teacher compensation also alarmingly expensive. According to or affordable health care. the Bureau of Justice Statistics, the U.S. Advocacy groups and families with loved spends more than $80 billion annually 25 ones in prison have been crying out for to incarcerate 2.3 million people. One reforms to our sentencing laws and prison out of every five prisoners in the world is 26 conditions for years, but their pleas have incarcerated in the U.S. The average cost mostly gone unheeded. This is the case for states to incarcerate a single person is today, even as we continue to grapple with $33,274 annually, exacting a huge toll on 27 the many painful consequences of harsh the economy. sentencing laws enacted decades ago. Large It is important to consider that at least portions of society simply do not prioritize 95 percent of all state prisoners will be 28 sentencing reform, mostly because they released back into society at some point. believe these issues do not impact them. People returning with a felony conviction And yet, it is clear that prison and face an astounding array of hurdles after sentencing policies have broad-reaching being segregated from society, including the ramifications for everyone insociety, difficulties of finding suitable employment whether it is through the sizeable number and housing. Individuals leaving prison of children with incarcerated parents, the are branded with a “scarlet letter” as they substantial budgetary costs, or the fact that attempt to navigate the approximately most incarcerated people must eventually 45,000 collateral consequences enacted reenter society. at the state and federal levels to further Statistics belie the belief that punish people with criminal records, sentencing policies do not have broader including 708 laws in South Carolina 29 effects. One in 14 children in the U.S., alone. Given that one in three adults in more than five million children, have America has a criminal history, it is crucial had a parent in state or federal prison at for all of us to recognize the immense some point in their lives.22 These numbers impact harsh sentencing laws have had on 30 spiraled upwards by 79 percent between our nation. 1991 and 2007, as the federal government and many states, including South Carolina, enacted harsher drug laws and mandatory 6 minimum sentencing for a wide range of HOW DID WE GET HERE?

The era of harsher sentencing laws crime measures.31 across America The rapid expansion of federal drug laws was soon mirrored at the state level. The seeds of mass incarceration were The federal government provided financial first planted in America in the 1960s and incentives for states to adopt more punitive early 1970s, with the rhetoric of “law and criminal justice measures, sending many order” and the launch of the war on drugs. more people to prison for longer periods of In 1971 President Richard Nixon declared time.32 Prisons soon became overcrowded, drug use “enemy number one,” dramatically necessitating the construction of a bevy of increasing the number of federal drug- new prisons across the U.S., all facilitated control agencies and pushing other anti- by the federal funding stream promoting 7 these changes.33 in federal funds in exchange for passing President Nixon may have started the “truth-in-sentencing” (TIS) laws, which war on drugs, but President Ronald Reagan required individuals to serve at least 85 ushered in an unprecedented expansion percent of their sentences before being of the anti-drug campaign.34 The number eligible for release.39 The Urban Institute of people convicted of nonviolent drug found that by 1999, 42 states had TIS laws offenses soared from 50,000 in 1980 to in place, including South Carolina, which more than 400,000 by 1997.35 By the late vastly increased the numbers of people 1980s the U.S. Congress and most state imprisoned across the U.S.40 The majority of legislatures had adopted harsh measures states also passed three-strikes laws, which including mandatory-minimum sentencing, significantly increased prison sentences particularly for drug offenses.36 Mandatory- for persons convicted of previous felony minimum sentencing laws removed offenses, and punished a “third strike” with judicial discretion in sentencing in favor life in prison.41 of uniformly harsher punishments, one of By 2007 the prison rate in America the first steps in sending far more people to was eight times as high as it had been prison for longer periods of time.37 in 1970.42 This meteoric rise in the rate The Violent Crime Control and Law of imprisonment was not a function of Enforcement Act of 1994 was the next rising crime rates; rather it was due to piece of the puzzle, passed with bipartisan stricter sentencing laws.43 Tough on crime support in Congress and signed into law by initiatives not only dramatically increased President Bill Clinton. Commonly referred the numbers of people sent to prison, they to as the “crime bill,” this act initiated the also extended the periods of punishment. next wave of federal funding for states America’s combined prison and jail and localities to hire additional police, populations grew from 330,000 in 1972 to implement an array of tough sentencing 2.2 million in 201844 Today, America has laws, and erect new prisons and jails approximately 5 percent of the world’s to cage those caught in the web of new population, and 25 percent of the world’s laws.38 The bill offered states $12.5 billion prisoners.45

8 SOUTH CAROLINA’S PATH

Historical background adopted truth-in-sentencing measures for designated felonies. State lawmakers South Carolina’s path to mass also enacted mandatory-minimum incarceration largely mimicked the steps sentences, and together these laws began taken by the federal government and most filling state prisons. The state’s jail and other states. In the 1990s South Carolina prison populations exploded as a result.46 abolished parole for many offenses and Imprisoning so many people has been 9 extremely costly. South Carolina spent $544 funds for all incarcerated people to be million, or 7 percent of its general fund on able to purchase necessary items such as corrections in 2017 alone, and that does not soap, toothpaste, and feminine-hygiene include the additional funds the state spent products. Today, SCDC provides indigent on police, prosecutors, courts, and all other incarcerated people with a meager monthly aspects of the criminal justice system.47 supply of these necessities. Myriad reports This overreliance on incarceration to from incarcerated people and their loved remedy societal problems hit Black and ones to the ACLU of SC have documented Brown communities the hardest.48 Black that the items provided to the indigent South Carolinians represent 26 percent of population are of poorer quality than South Carolina’s population, but comprise the items available through the prison approximately 61 percent of the state commissary, and are typically insufficient to prison population today.49 As of 2017 the last until the next provision. Going without imprisonment rate of Black adults in South cleaning supplies is inhumane in the best Carolina was more than five times the rate of times, but even more concerning during of whites.50 a global pandemic where personal hygiene South Carolina’s dramatic escalation in is an important factor in preventing the its state prison population peaked in 2009, transmission of a deadly virus. All of at 23,486.51 The spike in South Carolina’s these factors, have created a sense of prison population drove a steep increase in hopelessness among many incarcerated corrections costs as well. These budgetary people, which has made everyone, prisoners impacts were a result of state lawmakers and staff alike, less safe. deliberately choosing to fund policies that Incarcerated people in South Carolina sent thousands more to prison rather are also serving much lengthier sentences than allocating additional resources for than in the past, echoing the national education, infrastructure, or health care, trends. More than half of SCDC’s prison among other issues. population today is comprised of individuals Even as the state legislature allocated serving lengthy sentences, ranging from more funds towards corrections overall nine years to life .53 The average sentence to cover the spiraling costs, a series of length within SCDC has continued to SCDC directors concurrently dismantled increase from 13 years 8 months (164 the department’s human-services and months) in 2016 to 15 years 9 months (189 rehabilitation systems, eliminating many months) in 2020.54 This includes many educational and vocational programs. At more individuals serving life-without-the- the same time, directors also cut corners on possibility-of-parole (LWOP) sentences.55 other budgetary items, resulting in reduced Regardless of the data, “there’s a trend to food quality, limited visitation rights, and say there’s really no sentence that’s too increased use of lockdowns to manage the long when it comes to violent offences,” prison population. says Ryan King, a senior fellow at the These changes have had lasting Urban Institute’s Justice Policy Center in ramifications for incarceratedpeople, as Washington, D.C. “That’s been a dominant access to rehabilitation and vocational and force in our criminal justice system for over educational programs has been severely 40 years.”56 curtailed. When people in prison lack access In 2010 state legislators enacted to programs that address substance abuse, several sentencing-reform measures that, teach life skills, or provide work experience, in hindsight, were a mixture of positive their likelihood of returning to prison upon and ineffective changes to the laws. The release is greatly enhanced.52 Omnibus Crime Reduction and Sentencing 10 In addition, SCDC ceased providing Reform Act of 2010 (S. 1154) reduced the prison population by 14 percent, primarily than taking the more effective path of by releasing people convicted of certain reducing the number of people caged in drug and property offenses.57 As a result, SCDC facilities. The time has long since SCDC was able to close several prisons and elapsed for our leaders to rethink South reduce expenditures.58 Carolina’s harsh criminal justice system. The bill included several other positive These changes could finally pave het way aspects, including: requiring the Parole for providing a humane environment for Board to adopt evidence-based tools in individuals remaining in the custody of order to ensure more objectivity in parole SCDC. decisions and parole conditions; permitting terminally ill, geriatric, and permanently Landmark lawsuit against SCDC on incapacitated incarcerated individuals to behalf of mentally ill individuals be presented to the Parole Board for earlier release; and directing SCDC, the South “The evidence in this case has proved Carolina Department of Probation, Parole that inmates died in the South Carolina and Pardon Services (PPP), and the South Department of Corrections for lack of basic Carolina Department of Motor Vehicles mental health care, and hundreds more to collaborate to provide all incarcerated remain substantially at risk for serious people with a valid photo-identificationcard physical injury, mental decompensation, 62 upon release from prison. At the same time, and profound, permanent mental illness.” lawmakers doubled down on ineffective Judge Michael Baxley wrote those words measures, such as adding 24 crimes to in 2014 in his final order and judgment the “violent crime” list, and expanding on behalf of the approximately 3,500 the sentencing range for many offenses. incarcerated people suffering with mental 63 Lawmakers also drastically increased the illness inside SCDC. Sadly, seven years potential penalties for individuals with after that landmark decision, far too little some repeat driving offenses.59 has been done by SCDC to change these Meanwhile, the percentage of conditions. correctional officers(COs) who left their South Carolina’s failure to protect jobs far superseded the decrease in the incarcerated people experiencing mental prison population. Staffing levels fell by an illness has been clear for some time, average of 30 percent during this time.60 drawing the attention of advocates such Given the difficulty of the job, and the as Stuart M. Andrews Jr. of Columbia. steep competition in hiring from other Andrews began his legal career helping sectors of the economy, SCDC’s staffing indigent clients, and was no stranger to challenges are not unique. Prisons across the dire conditions inside South Carolina the nation have struggled for years to prisons. In addition to founding the attract and retain enough employees to healthcare group within the Nelson Mullins safely operate.61 SCDC Director Bryan law firm,he created and led its nationally 64 Stirling has repeatedly acknowledged that recognized pro bono program. there is likely no way to hire the requisite In 2005 Andrews, along with the number of COs that corrections experts say organization now referred to as Disability are needed. SCDC has been resolute in its Rights South Carolina, filed a class- attempts to attract employees, but those action lawsuit on behalf of incarcerated efforts have fallen far short of attracting individuals suffering from serious mental the number of staff required to run a safe illness, alleging substantial constitutional 65 prison system. violations. Even as the case slowly wound Despite this failure, state legislators its way through the courts, SCDC persisted in minimizing the allegations for years continue to focus on staffing, rather 11 while fighting to have the case dismissed. practices concerning suicide prevention Prison officials downplayed egregious and crisis intervention are inadequate incidents of abuse or neglect, labeling them and have resulted in the unnecessary “anecdotal” or “outliers.”66 loss of life among seriously mentally ill In Judge Baxley’s powerful order, he incarcerated persons.69 wrote that there were far too few mental- Judge Baxley underlined the need health professionals working in the prisons, for the public to care about the horrific and those who were working in SCDC mistreatment of people with mental were not up to the task. “Meanwhile,” he illness in our prisons. “This litigation does added, “punitive prison policies, and poor not happen in a vacuum,” Judge Baxley communication, exacerbated the problems wrote. “What happens at the Department 67 of the mentally ill.” Judge Baxley added of Corrections impacts all of us.”70 To that in his 14 years on the bench, presiding Judge Baxley, turning a blind eye to such over more than 70,000 filings, the case mistreatment was a damning indictment of of T.R. v. South Carolina Department of society. Corrections was “far above the others, the most troubling.”68 Judge Baxley identified six egregious failures by SCDC and staff: • First, the mental-health program “This litigation does not happen in a at SCDC is severely understaffed, particularly with respect to mental- vacuum... What happens at the Department health professionals, to such a degree as of Corrections impacts all of us.” to impede the proper administration of —J. Michael Baxley, Former South Carolina mental-health services; Circuit Court Judge • Second, seriously mentally ill incarcerated persons are exposed to a disproportionate use of force and Having gut-wrenching headlines segregation (solitary confinement) splashed across newspapers in the when compared with non-mentally ill state about mentally ill prisoners being incarcerated persons; systematically abused for decades gave the South Carolina Department of Corrections • Third, mental-health services at SCDC a black eye. Yet remarkably, it still took two lack a sufficiently systematic program years to reach a settlement with attorneys that maintains accurate and complete on how to proceed with court-mandated treatment records to chart overall reforms.71 Meanwhile, mentally ill people treatment, progress, or regression in South Carolina prisons continued to of incarcerated persons with serious harm and kill themselves. The majority of mental illness; these suicides were not only preventable, • Fourth, SCDC’s screening and they were exorbitantly costly, as SCDC evaluation process is ineffective in continued to settle wrongful death lawsuits identifying incarcerated persons with that drained state coffers of millions of serious mental illness and in providing dollars.72 those it does identify with timely 2018 was the deadliest year in the treatment; history of American prisons, and South • Fifth, SCDC’s administration of Carolina played an outsized role in psychotropic medications is inadequately contributing to this horror with the supervised and evaluated; and deadliest prison uprising in 25 years at Lee Correctional Institution.73 There were also a • Sixth, SCDC’s current policies and 12 record number of suicides in South Carolina prisons that year, twice the number in any The story of Richard Allen Patterson, year in at least a decade.74 Prison suicides one of the plaintiffs in the landmark class- and homicides rose for at least five years action lawsuit brought against SCDC, in a row even as the prison population captures the hell faced by incarcerated declined, and the abhorrent conditions people with mental illness. Patterson did inside SCDC likely contributed to the high not have an easy life. He was diagnosed death toll.75 with bipolar disorder and began cutting Near constant use of lockdowns due himself at age 12.80 He was sentenced to 20 to the chronic lack of adequate staff years in prison for burglary at the age of deprives incarcerated people of access to 19.81 the outdoors, vital prison programs, and In 2012, he valiantly testified as part of visitation with loved ones. Among the things a class-action lawsuit about his experiences that incarcerated people must withstand in the state prison system as a person with inside SCDC are: crumbling infrastructure, mental illness.82 He described a period of inedible food, a dire lack of medical and three consecutive years locked in a cell by mental-health services, and infrequent himself, where he cut himself repeatedly, access to showers.76 “We are still constantly reopening old wounds and jamming screws locked down,” said an incarcerated person into them.83 He was often kept naked on the at the Kershaw Correctional Institution in cold concrete floor, or wasstrapped naked to 2019. “We haven’t had showers in over 14 a restraint chair for hours.84 He was gassed days. No air ventilation. No heat. Mold on and beaten multiple times, and constantly the walls. No mental health. No medical. We belittled and demeaned by uncaring prison are living a terrible life back here, and it is guards who refused to provide him with a only getting worse.”77 blanket or a kind word.85 At one point, after staying awake for three days straight in the prison “Oh, you ain’t dead yet? We thought you psychiatric ward, Patterson testified that 86 would be dead by now.” he saw snakes in his hands and legs. Unable to get relief, he “bit them out of his —Richard Allen Patterson, an incarcerated person with 87 serious mental illness who testified in the landmark body.” Shortly before he died by suicide mental health lawsuit against SCDC, and later took his own life. in his prison cell, Patterson called his mother to report that he had been badly injured during a fight with correctional officers.88 Rather than offering him medical For people living with mental illness in assistance, Patterson told his mom, a guard prison, perpetual lockdowns and a lack of yelled at him through the flap on his cell mental-health treatment inside SCDC can door: “Oh, you ain’t dead yet? We thought become too overwhelming, leading some to you would be dead by now.”89 Just two days take their own lives. Statistics can never later, Patterson took his own life.90 He was adequately portray the agony suffered by found hanging by his sheet, alone and dead individuals with serious mental illness in his cold cell.91 imprisoned in SCDC. At age 20, Travis Today, while some progress has Steffey, was sent to Kirkland Correctional been made, SCDC has failed to comply Institution in St. Andrews after being with many key components of the 2016 convicted of selling methamphetamines.78 settlement agreement.92 In the eleventh Twenty months later he took his own life report by the panel of experts appointed to by swallowing paper clips, an excruciating oversee implementation of changes agreed method of dying, according to the coroner in to in the settlement agreement, the panel 79 his case. found SCDC to be lacking in compliance 13 with: timely treatment plans for mentally prison population.94 The Implementation ill men and women, provision of medication, Panel faulted SCDC for its failure to hire provision of regular showers and clean cells, sufficient mental-health staff: “The need regular safety checks, and much more.93 for adequate staff cannot be overstated and The panel specifically took issue even with a modest increase in operations with SCDC’s continued noncompliance and efforts to increase clinical staff, the on practices such as the continuous deficiencies have not been corrected to the observation of suicidal individuals, and extent of providing substantial compliance the provision of clean, suicide-resistant in the elements of the Settlement clothing, blankets, and mattresses to the Agreement.”95

14 LEARNING FROM OUR PAST

The power of hindsight: Longer families, and in the staggering amount of sentences do not deter crime, are taxpayer dollars funneled towards mass expensive, and destroy lives, families incarceration. and communities One in seven people in American prisons is serving a life sentence, and more Across America, we continue to live than two-thirds are people of color.96 The with the profound ramifications of the number of people serving life sentences choices our political leaders made years ago in the U.S. has tripled since 2000, even regarding harsh punishment. Decades of as life sentences are virtually unheard of research and evidence have illuminated the everywhere else in the world.97 “This is a devastating impact of harsher sentencing sign of how unforgiving, and how unjust, laws in the destruction of lives and the justice system is for young Black and 15 Brown offenders, said the attorney general While the racial disparity between Black for Washington D.C., Karl A. Racine.98 and white people sent to prison recently has Unlike their federal counterparts in the been on the decline, the disturbing pattern U.S. Congress, state leaders understand the persists.103 Black people still spend longer difficult policy tradeoffs that are required time in prison than their white peers.104 to ensure a balanced state budget. Every That distinction is even starker regarding dollar spent on imprisoning an individual time served for violent crimes, as the rate for driving with a suspended license has grown almost twice as fast for Black means one less dollar is available to pave people than for whites.105 state roads or increase teacher salaries. Enacting laws that punish a wide swath These difficult choices become much more of behavior with similarly lengthy sentences profound when it becomes clear that states is counterproductive for other reasons. have been funneling billions of dollars into Researchers have learned that individuals prisons based on the faulty premise that tend to “age out” of criminal behavior.106 this choice will keep society safe. There is now widespread consensus that An overwhelming body of evidence involvement in criminal behavior begins in collected since the 1970s has demonstrated the mid-teens, sharply increases and peaks that lengthy sentences do not deter crime.99 by around age 24, and then declines.107 Recent studies have concluded that longer This outcome cuts across both racial and sentences may even spur more crime.100 class lines.108 Since the 1990s, we have This is thought to be the case because long understood that violence is not a static periods away from society diminishes skills characteristic. It is complex, driven by and employability, making the prospect of factors that typically strongly diminish incorporating an individual back into the with age.109 As such, increasingly lengthy outside world ever more daunting. prison sentences are counterproductive in promoting public safety.110 As a whole, we are keeping far too many people in prison years and even decades beyond the point “We have lost generations of young men and when social scientists deem it effective for public safety. People in their fifties and women, particularly young men of color, to sixties are simply not the threats to society long and brutal prison terms,” that they may have appeared when they —VERA Institute of Justice were in their twenties. The cumulative impact of harsh and lengthy sentencing regimes has resulted in a prison population across the U.S. that Not only do lengthy sentences fail to is much older, and much sicker, than in deter crime, but they also have had long- the past. The percentage of people in state lasting, negative impacts on communities, prisons age 55 and older has more than particularly low-income groups and tripled between 2000 and 2016; for the communities of color where countless young first time in 2016, older adults comprised a people have been sent to prison. “We have larger share of the state prison population lost generations of young men and women, than people aged 18 to 24.111 The graying particularly young men of color, to long of America’s prison population is extremely and brutal prison terms,” acknowledges expensive, amounting to two to three times the Vera Institute of Justice.101 African the costs for younger people, to the tune Americans comprise 13 percent of the U.S. of $8.1 billion in 2015, according to Pew population, yet account for 40 percent of Charitable Trusts.112 “Hallways are filled 102 16 those incarcerated. with rollators and oxygen tanks,” according to Stephanie Post, assistant professor impacting public safety.119 The tab for at the University of Louisville, who has incarcerating ever-larger portions of society extensively researched aging in prisons.113 for longer periods of time coincided with “You’ve got nursing assistants who are also deep cuts to other valuable programs in the incarcerated flipping people so they don’t state budget. State spending on corrections develop bed sores.”114 grew by 324 percent between 1983 and Research tells us that the stress of 2016.120 That is triple the rate that spending incarceration takes a heavy toll on the on education has increased.121 Every year, human body. Each year spent in prison taxpayers spend more than $80 billion for takes two years off an individual’s life state prisons.122 expectancy.115 This is largely because people The human costs of incarceration are in prisons and jails are disproportionately even more staggering than the financial likely to have chronic health problems, toll. These are not simply statistics; lengthy including diabetes, HIV, mental-health and incarceration affects living, breathing addiction issues.116 The ramifications of this people with families. The lack of evidence are severe for the U.S., which is the world’s finding that longer sentences deter crime or largest jailer. These poorer health outcomes provide comfort to crime victims is reason lower America’s overall life expectancy enough to reevaluate current punitive by five years; that is, U.S. life expectancy sentencing policies. Add to these factors the would have increased by more than five grave harm these punishments cause to years, from 74.1 to 79.4 years, if not for countless loved ones and communities left mass incarceration.117 behind, and the remaining justifications for Perhaps the most powerful argument the status quo appear limited to political against the continued policy of lengthy calculations. sentences is illustrated by the dramatic The decision to lock up large numbers decline in recidivism with age. Research of people often hits children the hardest. tells us that older, ailing people are some of One out of every 28 children in America the least likely to commit crimes if released. has a parent behind bars today, and two- According to the Vera Institute of Justice, thirds of these parents are incarcerated arrest rates drop to 2 percent with people for nonviolent offenses.123 Seven percent aged 50-65 years of age, and to almost zero of American children, or more than five for individuals over 65.118 million children, have had a parent This continued use of ineffective, overly incarcerated at some point in their harsh sentencing laws imposes steep lifetime.124 The absence of a parent due to financial costs on society. The punitive imprisonment causes social and economic policies enacted in the 1980s and beyond damage to a child that can last a lifetime.125 have diverted enormous resources from Sixty-five percent of families with a family alternative policies and programs that member in jail or prison cannot meet even hold far greater potential for positively their basic needs for food and shelter.126

17 18 SOUTH CAROLINA CASE:

First wave of reform Through the Justice Reinvestment Initiative, Pew Charitable Trusts reviewed The impact of decades of spiraling state data and advised SROC members corrections budgets has inevitably taken a about how to achieve the maximum savings toll on the finances of many states, including while improving public safety and reducing South Carolina. As public awareness of recidivism. This technical support laid the social and fiscal costs grew, leaders the groundwork for important statutory across America began issuing a clarion call changes.130 for a smarter approach to public safety. Former speaker of the U.S. House of Representatives Newt Gingrich criticized the policies South Carolina had in place in “About half of South Carolina’s prison the 1990s and beyond: “About half of South Carolina’s prison population is being held population is being held for nonviolent for nonviolent offenses.… Such low-level offenses… Such low-level violations, as violations, as well as certain nonviolent well as certain nonviolent drug-related drug-related crimes, can be punished in crimes, can be punished in other ways that other ways that aren’t as expensive as aren’t as expensive as prison. We build prison. We build prisons for people we’re afraid of. Yet South Carolina has filled them prisons for people we’re afraid of. Yet South with people we’re just mad at.”127 Carolina has filled them with people we’re Frustration with soaring corrections just mad at.” costs combined with overpopulated prisons —Newt Gingrich, Former Speaker of the U.S. House to create an opening for South Carolina of Representatives

Senator Gerald Malloy to spearhead a call for reforming state sentencing laws. As a result, the Sentencing Reform Oversight Committee (SROC) was created in 2010,128 The Omnibus Crime Reduction and comprised of members from the legislative, Sentencing Reform Act of 2010 passed in judiciary, and executive branches of state the General Assembly with overwhelming government.129 SROC committee members bipartisan support.131 The law substantially and staff held public hearings, eliciting reduced the number of people in state testimony from stakeholders throughout prisons by diverting many individuals the criminal justice community. convicted of low-level, nonviolent offenses, 19 such as drug and property crimes, into Overall, South Carolina deserves praise alternative programs, and by reducing the for being an early leader in sentencing number of people returned to prison solely reform efforts. The state benefitted from for technical violations of probation or substantial cost savings, and many people, parole.132 As a result of the 2010 reforms, after conviction, were able to remain in South Carolina was able to close six their homes with their families as a result prisons, reduce the prison population by of diversionary programs for nonviolent 14 percent, and save almost $500 million, offenses. But the legislation also included while also reducing the overall crime rate counterproductive provisions that increased by 16 percent.133 sentences for individuals convicted of violent offenses, drilling down further on a policy that has repeatedly been shown to be ineffective and costly.136 Thus, while South “This approach is soft on the taxpayer and Carolina’s first major attempt at reforming smart on crime its sentencing laws in 2010 had many .” positive aspects, much work remains. — S.C. State Senator Chip Campsen, (R) Senator Gerald Malloy led a subsequent effort at enacting sentencing reform, starting in 2017, with the consulting assistance of the Pew Center on the States.137 A re-constituted SROC listened to A 2017 study by the Clemson Institute experts from Pew provide recommendations for Economic and Community Development on safe and effective methods utilized by found that the law resulted in 982 new other states to reduce prison populations jobs and a positive economic impact of $37 and costs while protecting public safety. million.134 These accomplishments received The committee also heard testimony from national recognition and placed South solicitors, public defenders, families with Carolina on the map as an early champion loved ones in prison, parole officers, law of sentencing reform. State Senator Chip enforcement, and victim advocates. But the Campsen, a Republican member of the process has thus far failed to gain traction. SROC in 2010, applauded the committee’s efforts: “This approach is soft on the taxpayer and smart on crime.”135

20 THE CRIMINAL JUSTICE ENVIRONMENT IN SOUTH CAROLINA IN 2021

Recent events: The Lee uprising and these cries for help have been downplayed or ignored altogether. COVID-19 in SCDC South Carolina has been unable to The Lee Correctional Institution fulfill the acute staffing needs created by uprising in 2018 and the COVID-19 the state’s sentencing laws. There are only pandemic illustrate the real-world harms two alternatives to resolve this dilemma: that accompany South Carolina’s failure to either SCDC must hire and retain a vastly address its incarceration crisis. larger staff of correctional officers as well Corrections experts, families with loved as medical and mental-health staff within ones in prisons, and prison advocates have South Carolina prisons, or South Carolina been sounding the alarm for decades about policymakers must follow the lead of the dire need for relief from inhumane other states and substantially reduce the prison living conditions. Most of the time, number of caged people.138 Experience, and 21 Average Daily Incarcerated Person Population SCDC Designated Facilities Jurisdiction3 Fiscal years 1970 2020 (x 2000) | - Special Placements

Special Placements 1 1970 x 2000 2,337 0 0

Designated Facilities 2 1975 x 2000 4,618 25 36

1980 7,623 184 682

1985 1,0121 1,081 501

1990 16,149 1,292 440

1995 19,328 1,233 391

2000 22,053 638 436

2005 23,760 447 408

2010 24,710 310 360

2015 21,773 292 298

2020 18,835 352 312

1 This category of incarcerated persons does not take up bedspace in SCDC facilities due to placement in diversionary programs. These programs include Extended Work Re- lease, Supervised Furlough, and Provisional Parole. Special Placements include incarcerated persons assigned to hospital facilities, as well as Interstate Corrections Compact, and authorized absences. Special placements includes incarcerated persons serving South Carolina sentences concurrently in other jurisdictions-for FY 2018 this number averaged 266. 2 Suitable city, county, and state facilities have been designated to house State incarcerated persons as a means of alleviating overcrowded conditions in SCDC 22 facilities, and facilitating work at the facilities and in the community. 3 The jurisdiction count on this table does not include YOA parolees or incarcerated persons conditionally released under the Emergency Prison Overcrowding Powers Act (EPA) the assessment of SCDC Director Bryan Considering all the major issues that had Stirling himself, confirm that the former been lingering at Lee and other state option is not a viable one. prisons for decades, the uprising shouldn’t Two recent events have shaken the have been a surprise; it was inevitable. public’s complacency towards prison issues, Likewise, the emergence of the and at least temporarily shifted the media COVID-19 pandemic in 2020-2021 had spotlight towards the dire conditions inside predictable consequences beyond the South Carolina prisons. The uprising at massive death toll. Nationally, COVID-19 Lee Correctional Institution in April 2018 infected more than 620,000 incarcerated dominated the airwaves for months, both people and correctional officers, killing more in South Carolina and across the country; than 2,800.142 The pandemic has resulted it highlighted the greatest loss of life from in at least 4,292 cases of COVID-19 in a prison incident in the U.S. in the past secure SCDC facilities, and the deaths of 25 years and shattered the public’s trust two employees and 40 incarcerated people in SCDC’s capability to keep incarcerated as of March 2021.143 When the virus made people, and the public, safe.139 its way into South Carolina’s prisons, it An exhaustive investigation of the riot spread like wildfire in conditions that were by the Pulitzer-Prize-winning journalist ripe for rapid transmission.144 The death Jennifer Hawes-Berry from the Charleston toll inside SCDC steadily rose throughout Post and Courier newspaper in December the spring and summer of 2020, prompting 2020 documented how gang warfare reporters to expand their coverage, shining exploded at Lee prison, and continued over a spotlight on the longstanding dire almost eight hours across three housing conditions and glaring staffing shortages.145 units, while SCDC waited for specialized Both the riot and the pandemic tactical teams to arrive on the scene.140 prompted the South Carolina legislature These gangs were emboldened by decades to establish a subcommittee, ostensibly of understaffing and delayed maintenance, to examine how the state could have that resulted in faulty locking mechanisms managed the crises more effectively and that had gone unfixed since the1990s. 141 reduced the loss of life. After the Lee riot,

South Carolina Department of Corrections Daily Cost Per Incarcerated Person FY 1990 Through FY 2020

$80

$70 $72.75

$60

$50 $54.05 40 $ $43.78 $43.73 $38.41 $38.32 $30 $36.22

$20

$10

$0 1990 1995 2000 2005 2010 2015 2020 23

South Carolina Department of Corrections Annual Cost Per Incarcerated Person FY 1990 Through FY 2020

$30K

$25K $26,627

$20K $19,728 15K $ $16,024 $15,963 $13,988 $12,707 $13,219 $10K

$5K

$0 1990 1995 2000 2005 2010 2015 2020 South Carolina Department of Corrections Daily Cost Per Incarcerated Person FY 1990 Through FY 2020

$80

$70 $72.75

$60

$50 $54.05 40 $ $43.78 $43.73 $38.41 $38.32 $30 $36.22

$20

$10

$0 1990 1995 2000 2005 2010 2015 2020

South Carolina Department of Corrections Annual Cost Per Incarcerated Person FY 1990 Through FY 2020

$30K

$25K $26,627

$20K $19,728 15K $ $16,024 $15,963 $13,988 $12,707 $13,219 $10K

$5K

$0 1990 1995 2000 2005 2010 2015 2020

the Legislative Oversight Committee state population, constituting 62 percent moved up its review of the Department of the men in prison.150 The average age of of Corrections.146 Committee members prisoners hovered just under 40, with an spent over a year evaluating every aspect average of a tenth-grade education.151 of the agency’s operations, and welcomed The top serious convictions that have testimony from experts and impacted resulted in individuals being sent to prison members of the public. Regrettably, include: homicide, drugs, robbery, burglary, legislators in charge of the oversight process and sexual assault.152 Approximately two- relied heavily on SCDC management to thirds of men and women in SCDC are self-report current conditions, and chose to serving non-parolable sentences, and 12 downplay the reporting of whistleblower percent of men and 6 percent of women are prison employees and impacted families. serving life sentences.153 The most common The result, to no one’s surprise, was sentence length is between 10 and 20 recommendations for only modest reforms years.154 SCDC prisons are predominantly and marginal follow-through by SCDC. filled with men (76%) and women (58%) serving time for violent offenses.155 SCDC Population South Carolina’s Department of Probation, Pardon and Parole (PPP) SCDC’s population has declined since drastically reduced its revocation rate its peak in 2009 when it housed 24,734 for technical violations of probation or 147 people. In 2020 there were approximately parole as a result of the 2010 sentencing 18,000 people in South Carolina prisons, reform measures.156 Even so, 17.8 percent the vast majority of whom were categorized of SCDC’s prison population in 2020 was 148 by SCDC as males. Even so, women comprised of people whose paroles had been represented the fastest growing segment revoked while they were on community 149 of the prison population. Black men supervision.157 were heavily overrepresented in SCDC As more people were funneled into 24 as compared to their percentage of the state prisons over the past decades, the corrections budget expanded in a alike.163 commensurate fashion.158 South Carolina A lack of sufficient staff also makes spent $544 million of its general fund it much more difficult to ensure that on corrections in 2017.159 That equated incarcerated people have regular visits to an average of $72.00 a day for each from loved ones. Research in recent years incarcerated person, or approximately has demonstrated that maintaining ties $26,000 annually.160 Corrections general- with loved ones is a key factor in improving fund spending in South Carolina increased release outcomes and reducing recidivism. by 90 percent between 1985 and 2017.161 When prisons lack the staff to ensure even basic security, visitation policies are often SCDC’s lack of staffing is chronic, and curtailed. This can escalate tensions within unsustainable prison systems between guards and the incarcerated population. The dire conditions inside South Carolina prisons are a natural and Issues exacerbating security concerns predictable result of the nation’s drive for understaffed corrections system towards mass incarceration over the past half century. Millions of American Security inside state prisons is also lives, including far too many from South negatively impacted by a mixed population Carolina, have been irreparably scarred by of incarcerated individuals, some indigent the impacts of incarceration. These wounds and others with access to funds to purchase were compounded by the difficulties faced commissary items that can dramatically when reentering society with a criminal improve their quality of life while serving record. South Carolina’s leaders must time. This disparity between the haves and acknowledge this pernicious pattern before the have-nots demoralizes those without they can begin to rectify it. resources, creating an environment where One issue is at the heart of SCDC’s the indigent must barter or perform failure to prevent a massive prison uprising tasks for others just to get the funds and its inability to mitigate substantial loss to purchase basic necessities.164 At the of life during a pandemic: a chronic lack of same time, it places a bulls-eye on the prison staff. SCDC Director Bryan Stirling backs of individuals with plentiful funds, concurs with the need to increase hiring, exacerbating security concerns.165 but has been unable to accomplish that goal On top of these impediments, many through incremental salary raises alone. incarcerated people inside SCDC see Research leaves no doubt that adequate no hope of release regardless of their staffing is essential to the safe, effective behavior or program participation. The management of prisons. This is true both South Carolina Parole Board routinely with regard to individual conduct inside denies parole for the vast majority of prisons, as well as preparing people for life people with violent convictions, even for outside prison walls.162 individuals with stellar behavioral records South Carolina's chronic prison-staff and leadership qualities.166 This severely shortage impacts every aspect of prison diminishes the hope, and thus motivation, life, from the inability to provide adequate of individuals who see no clear path to be security, to the dearth of educational, granted release. Others serving so-called vocational, and re-entry programs, and “no-parole” sentences despair when they insufficient delivery of medical, mental- witness individuals exemplifying positive health, and addiction-recovery services behavioral records being deprived of the that, in turn, affect the stability and possibility of early release, and treated the security of incarcerated people and staff same as those causing constant trouble. 25 How bad is the staffing shortage? enough security staff assigned to effectively meet the established responsibility on a In order to determine the breadth of consistent basis,” wrote Roth.174 This is SCDC staffing deficiencies, SCDC Director not only dangerous, it results in higher Bryan Stirling requisitioned a detailed operating costs, fewer programs and report. Director Stirling retained Tom services for incarcerated individuals, Roth, a prison security expert and former and higher rates of workplace stress and Illinois prison administrator, to conduct turnover.175 a comprehensive study of the SCDC security staffing needs.167 The results of this damning report were released to the director just weeks prior to the “When this occurs,” said Roth, “staff spend deadly Lee uprising in April 2018. The report documented that the number of a greater portion of their day responding, correctional-officer staff positions approved reacting, and recovering and less time by the legislature was far less than the preparing, preventing and providing.” number actually needed to meet applicable —Corrections expert and former Illinois prison warden Tom Roth national standards and to provide a safe correctional setting for staff and prisoners alike.168 Of particularly important consideration: job vacancy rates at Level 3 institutions.169 Those prisons, such as Lee, In addition, chronic understaffing can are categorized as higher-security facilities, lead to an increase in contraband items in and require the lowest staff-to-prisoner the prisons, increased rates of attempted 176 ratios. escapes, and spikes in assaults. Director For the thirteen prisons reviewed in Stirling has worked with the state Roth’s report, SCDC should have had 4,042 legislature to achieve significant raises for correctional officers in place to provide a prison employees in recent years, yet the safe environment.170 As of January 2018 prison salaries still lag behind those at 177 roughly half of the recommended security many county jails. Many prison staff have staff was assigned to these facilities.171 In procured contraband items such as cell fact, half of the thirteen institutions were phones or illegal drugs and brought them operating with fewer than 50 percent of inside the prison walls for payment in order 178 the security personnel needed, and none to augment their salaries. of the facilities operated at higher than 62 A spike in the rate of serious assaults, percent.172 both on prison employees and on other In practical terms, having far fewer incarcerated people, has been enabled staff than experts recommend results in by a lack of staff to oversee a safe 179 a series of negative consequences. Under environment. From 2015 to 2018 serious these circumstances, prison management assaults on SCDC employees almost 180 is often forced to deviate from established quadrupled from 12 to 46 incidents. staffing plans and use ad hoc measures.173 Meanwhile, 135 incarcerated people As a result, prison guards are assigned reported being injured through assaults by to multiple posts during a single shift, their peers in 2017, triple the number in 181 resulting in missed security checks, 2015. All of these factors combine to make unguarded loading-dock areas, unheeded existing prison staff fearful, and reluctant medical emergencies, and, most alarmingly, to continue working for SCDC. Even SCDC unmonitored prison units for extended conceded in a 2018 report that they were periods of time. “There is simply not not operating with sufficient staff to reach 26 “safe levels.”182 more difficult to entice people to work in According to Roth, there was no period a relatively low-paying and dangerous between 2011 and 2017 when staffing vocation. This vicious cycle is especially levels were considered optimal.183 Most pernicious when there is a strong economy correctional officers (CO) saw their job and low unemployment rates. responsibilities expand to a point where A high turnover rate contributes to only basic duties were being completed.184 SCDC’s inadequate staffing. According “When this occurs,” said Roth, “staff spend to University of South Carolina Criminal a greater portion of their day responding, Justice Professor Dr. Hayden Smith, reacting, and recovering and less time South Carolina’s rate of correctional officer preparing, preventing and providing.”185 turnover of 34 percent in 2009 was more The gravity of the challenges facing than double the national average.188 More SCDC’s current workforce, and the unlikely than half of the correctional officers polled prospect of being able to hire sufficient in a 2009 study conducted by Dr. Smith staff to meet these challenges, leads Roth indicated they frequently thought about to believe that South Carolina needs leaving their jobs, primarily due to low pay to dramatically reduce the number of and poor benefits, lack of decision-making incarcerated individuals housed in its state autonomy, dangerous work environments, prisons.186 and the lack of career mobility.189 The issue of high turnover is High rate of staff turnover, and compounded by the legislature’s inability to fill positions unwillingness to approve the necessary funding required to make corrections As staffing numbershave declined, positions desirable to potential SCDC has predictably found it even more employees.190 The legislature approved difficult to hire and retain employees to modest pay increases to fill the more than 187 bridge the gap. The safety concerns 600 vacant prison-staff positions in 2018, caused by a diminished workforce yet a large portion of these jobs remain perpetuate the problem, making it ever

Serious Assaults on Employees by Incarcerated People | FY 2011 Through FY 2020 60 39 26 34 24 21 33 37 46 50 46 50

40

30

20

10

0 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 27 unfilled.191 According to Director Stirling, men paid the ultimate price for the state’s legislators have provided funding for just failure to protect people housed within 285 of the 612 front-line officers needed SCDC.197 Another seventeen men were inside SCDC prisons, and SCDC employees hospitalized with serious injuries caused have been leaving in droves over the past when they were attacked for hours with decade.192 As a result, the department has makeshift knives as correctional officers persistently been unable to fill the more stood outside the prison for seven hours, than one in three jobs that remain vacant. waiting for tactical assistance to arrive.198 SCDC perpetually requires staff to work During much of that time, injured men overtime under stressful conditions.193 were left alone to suffer and die, pleading Given South Carolina’s budgetary for medical assistance and protection from restraints, it is highly unlikely that the guards who were waiting for backup to legislature will fund prison staffing at the safely enter the scene.199 level required to satisfy corrections experts’ recommendations. Historically, the state has been even more reluctant than its southern neighbor states to allocate state “There are cell phones in every prison in funding towards corrections. According America,” Bailey told Crimesider. “There’s to the Southern Legislative Conference, South Carolina for years has spent less something else going on here too. That per incarcerated person than most other something else,” Bailey asserts, “is a states, ranking near the bottom, alongside desperate shortage of correctional officers.” Alabama, Louisiana, and Mississippi.194 —Post and Courier reporter Steve Bailey Even former prison director Jon Ozmint expressed disappointment with the state’s record of underfunding SCDC. “You need to fund the agency at a level that takes them out of the bottom 10 in terms of funding Director Stirling has asserted that in the nation,” he said.195 “And then you the Lee riot, and the overall increase in need to give them enough money to feed violence within the state’s prisons, is and provide health care for inmates at a primarily attributable to the high number reasonable level.”196 of contraband cell phones being used inside prison walls.200 Post and Courier Staffing effects on security reporter Steve Bailey has been tracking and documenting the drastic uptick in violence Lack of adequate staffing has had inside South Carolina prisons for years, deadly consequences, as evidenced by and disagrees with Stirling’s assessment the deadly Lee uprising in April 2018. of the root cause. Serious assaults have Conditions were ripe for violence for risen by 68 percent since 2013, and the some time prior to the loss of life at Lee. number of homicides in prison is also Correctional officers’ persistent use of significantly higher over the same period.201 lockdowns to manage the prison population “There are cell phones in every prison in light of staffing shortages took a toll on in America,” Bailey told Crimesider.202 morale, depriving incarcerated people of “There’s something else going on here too.” visits with family and loved ones, fresh air That something else, Bailey asserts, is a and the outdoors, access to medical and desperate shortage of correctional officers.203 mental health care, time in the law library The implementation of sentencing to research caselaw, and much more. reforms in 2010 reduced the statewide On April 15, 2018, seven incarcerated 28 prison population by more than 3,000 people through 2017, as part of a with managing the behavior of gangs inside nationwide trend toward redirecting the walls, while at the same time protecting nonviolent offenders to diversionary the safety of non-gang members.211 Gang programs such as addiction treatment members attack one another and non- and mental-health resources.204 In spite of gang-affiliated prisoners with impunity.212 this reduction, SCDC has been unable to “People get extorted, jumped, bullied, maintain the appropriate staffing levels stabbed, hit with lock-in-socks,” said required to safely house the remaining Michael Hall, who was incarcerated in population. SCDC. “And [officers] rea well aware of those problems and they know who’s doing Proliferation of gangs everything and turn a blind eye and a deaf ear … to all of it because it’s prison.” 213 Another consequence of staffing These attacks have escalated as gangs shortages is that prison gangs have first gained a foothold and have now taken grown dramatically in size and power over the state prisons.214 Stan Burtt, the to fill the vacuum created by SCDC’s former warden at Lieber Correctional failure to protect the people in its care. Institution, has an explanation for that Prison gangs have proliferated within evolution: “People have gone to the gangs South Carolina prisons, just as they have for protection or whatever. That’s because 205 throughout the nation in recent decades. there is no staff.”215 This phenomenon of gangs spreading into prisons corresponded with the meteoric rise in prison populations in the 1980s.206 Gang rule provided the order and safety that “People get extorted, jumped, bullied, prison management could not. Yet this was not a foregone conclusion. stabbed, hit with lock-in-socks,” said Some states, including Connecticut, Michael Hall, who was incarcerated in Missouri, and California, have dramatically SCDC. “And [officers] are well aware of reduced gang affiliation and recidivism those problems and they know who’s doing by placing people in environments where violence was not the norm, and providing everything and turn a blind eye and a deaf them with the tools to transition to a more ear … to all of it because it’s prison.” normal life upon re-entry into society.207 —Michael Hall, formerly incarcerated in SCDC Countering the power of gangs today, some experts contend, would require states to send fewer people to prison, so security is more manageable.208 In addition, state legislatures need to open up the prison Prison experts concur that many South economy, making telephone calls and Carolina prisons today are run by gangs, amenities available at reasonable prices, not correctional officers.216 The chaos inside thereby diminishing a prison black market prisons, such as Evans, a Level 2 prison and the grip of gangs on underground in rural Bennettsville, S.C, was vividly sales of cell phones and other contraband described by a mother of an incarcerated items.209 man who shared her story with The Post Research shows gang members commit and Courier in 2020.217 Visitation was both violent and nonviolent offenses in often canceled when Evans was put on prison at higher rates than those not lockdown mode due to violence.218 The affiliated with gangs.210 The bare-bones staff mother described gangs terrorizing and working in South Carolina prisons struggle intimidating vulnerable, weaker individuals 29 such as her son, forcing his parents to pay effective.226 He recommends a different extortion money to prevent him from being approach: closely monitoring integration, beaten or killed.219 This mother reported coupled with incentives and tools to help the extortion to prison authorities, begging prisoners leave gang life.227 repeatedly for her son to be transferred to another institution, but to no avail.220 Lockdowns as a management tool Before making one of the payments, she asked one of the correctional officers what Chronic understaffing has alsoled he would do if his child had been in prison. SCDC to over-rely on lockdowns as a His response: “My son wouldn’t be in means to control the prison population. prison.”221 On September 20, 2018, five months after Typically, SCDC tries to maintain the infamous Lee prison riot, 25.5 of 37 security by moving known gang members to prison units in South Carolina, or more Restrictive Housing Units (RHU), isolating than three-quarters, were still on lockdown 228 them from the general population and status. That means thousands of people punishing them by eliminating visitation were confined to their cells for up to 23 and other benefits. Nationwide, wardens hours a day, typically getting just one have long embraced this approach of shower per week, for at least six months. isolating and punishing gang-related The overuse of lockdowns continues to this misconduct. Various statewide studies day, because the department simply lacks bolster this approach, with Texas reporting the workforce to allow incarcerated men a reduction in homicides and assaults and women the time outside of their cells through this strategy and Arizona seeing that is so necessary to maintain prisoner an overall 30 percent decrease in prison health, encourage participation in vital misconduct when they isolated gang prison programs, facilitate employment members in RHUs.222 opportunities, and allow for families to see But a strong argument for alternatives their loved ones. to “suppression” strategies has recently Lockdowns have serious consequences. gained favor, as these policies may actually According to a U.S. Department of Justice enhance institutional safety at the cost report, keeping people confined to their of long-term public safety.223 The risk of cell for 23 hours a day is akin to solitary relying on these isolation tactics is that confinement, a process the DOJ guidelines these prisoners not only suffer the loss of say should be used “rarely, applied fairly, 229 social and interpersonal skills while in and subjected to reasonable restraints." isolation, they also are limited to contact The report added that extended periods with only individuals who have also been of lockdowns, such as the ones in South affiliated with gangs or exhibited violent Carolina after the Lee riot, can cause behavior.224 serious, long-term harm, and should After the deadly Lee prison riot, SCDC never be the default practice. A Harvard officials tried a different approach to study of hundreds of prisoners in solitary isolate negative behavior. They shipped 48 confinement found thatone-third of the individuals, identified by the department as subjects were “actively psychotic and/ 230 the most violent and “problematic” gang- or acutely suicidal.” The study also affiliated men, to an out-of-state private determined that the use of solitary prison in Tutwiler, Mississippi.225 But the confinement can cause hallucinations, panic director of California’s Prison Law Office, attacks, paranoia, diminished impulse Donald Spector, argues that isolating control, hypersensitivity to external problematic men in RHUs or sending stimuli, and difficulties with concentration and memory, among other negative 30 them to out-of-state prisons has not been repercussions.231 In addition, the tactic prison system has largely become the de is associated with a much higher rate of facto repository for those struggling with suicides and self-harm.232 mental illness. Around the same time, Locking up incarcerated people by strict drug laws began to be implemented, themselves for 23 hours a day for months punishing addicts with prison time rather on end, as has also long been the practice than treatment. at SCDC, has been shown to increase the South Carolina has been unable likelihood of reoffending, and can cause to adequately treat the large influx of an increase in violence.233 According to psychiatric and addicted patients who have James John Abernathy, an incarcerated flooded its prisons without adequately man interviewed by The State newspaper trained and plentiful staff. In spite of reporter Emily Bohatch: “If you keep the successful lawsuit brought against someone in a cell everyday all day, feed and SCDC for the mistreatment and neglect talk and treat them like an animal, yes, of mentally ill prisoners in 2014, "mental they get aggressive, frustrated and may health care remains woefully inadequate," seem like an animal.”234 according to reporter Steve Bailey.235 The ACLU has received countless As a result, corrections officers rely too reports over the past several years of heavily on frequent lockdowns and solitary the continued overuse of lockdowns as a confinement, further exacerbating these management tool. In lieu of sufficient staff, issues. SCDC continuously relies on lockdowns In a report dated July 2018, the panel with large portions of the prison population. of experts monitoring compliance with the It takes staff to supervise the movement SCDC mental-health-litigation settlement of incarcerated people to the cafeteria, agreement found, as they have in virtually to recreation, to prison programs, to every report they have prepared since work, and to medical and mental-health beginning to monitor compliance in May appointments. Without sufficient staff, 2016, that the chronic shortage of staffing incarcerated individuals are often kept undermines the department’s ability to locked in their cells for extended periods of achieve compliance with the constitutional time. The ACLU has received many reports standards reflected in the Settlement of lockdowns that have continued for a year Agreement.236 Excerpts from the report or more in many prisons, a clear violation of include the following: constitutional rights. • “The entire SCDC system continues to be understaffed by security and mental Lack of staffing: Effects on medical, health, medical and nursing staff.” July mental health, and addiction services 2018 Report, p. 1.

Lack of sufficient security staffing also • “The IP [lmplementation Panel] has greatly impacts South Carolina’s ability to consistently reported our grave concerns provide necessary medical, mental-health, regarding the inadequate staffing at and addiction-related services. Without SCDC. This is a long-standing problem, proper staffing, such essential services and as with many systems, it has cannot be treated in a manner that meets adversely impacted mental health care constitutional standards. Moreover, the and resulted in lockdowns/segregation failure to meet such standards destabilizes and uses of force, including chemical the institutional security. and physical restraints.” Id. at 2. Since the large-scale de- • "Despite efforts to recruit and retain institutionalization of the mentally ill security staff (acknowledging salary across America started in the 1980s, the increases and intense recruitment 31 Incarcerated people often wait months or years for necessary medical treatment.

activities), the security staffing remains • “SCDC is highly unlikely, if not inadequate at supporting the basic completely unable, to achieve policy and procedural requirements.” Id. substantial compliance with the Settlement Agreement and the provision • "The SCDC increased dollars for of constitutionally adequate and security staffing has not been successful required mental health care without in reducing correctional officer major and consistent increases in vacancies." Id. staffing and resources and/or major • “On duty correctional staff for day and reduction in the number of people night shifts are routinely less than housed in SCDC facilities.” Id. 50 percent of the authorized staffing. “Even prior to the agency-system Shortages are at critical points for a • wide lockdown, most Level 2 and 3 32 number of institutions." Id. at 3, institutions are locked down from 7p to At that time, just 11 doctors and 7a daily." Id. 221 nurses were employed to manage • "Correctional officer staff vacancies approximately 19,000 incarcerated 241 prevent SCDC from providing even the people. The department has since hired basic services in the Restrictive Housing two additional physicians and transported Units and General Population." Id. incarcerated people to outside doctors approximately 10,000 times during State Sen. Karl Allen has received the fiscal year.242 Bohatch’s analysis numerous letters from incarcerated people documented issues with misdiagnoses describing the poor quality of medical care leading to terminal illness, denial of life- inside South Carolina prisons. He explains: saving medications, excessively long “Specifically it goes into medical treatment waits for basic and necessary medical or lack thereof of medical attention for appointments, denial of medical or mental- the inmates when they have a health health care altogether, and a chronic 237 occurrence.” Lawsuits are another way shortage of medical staff to manage the the public learns of the lack of adequate prison population.243 The ACLU of South medical care. Incarcerated individuals at Carolina receives regular correspondence McCormick Correctional Institution filed confirming that these allegations are suit alleging that after officers quelled commonplace. an uprising, they locked down an entire When Julius Allen Munn was 13 unit—including all of those who had not years old, he was shot in the stomach, taken part in the uprising—without food or necessitating the removal of his pancreas.244 medicine for 2.5 days, nearly causing one As a result, he became diabetic, requiring 238 man to slip into a diabetic coma. him to regularly monitor his blood sugar. When he entered SCDC, he was provided with test strips to test his sugar three times a day, but in 2003 he was told the “If you have a chronic condition and you’re in department no longer had the funds to the SCDC system, you are in a lot of trouble provide the strips.245 Munn offered to pay because they just can’t handle you” the approximately 10 cents per strip to cover the supplies that were necessary to —Carter Elliott, an attorney representing people incarcerated in SCDC keep him alive, but was rebuffed.246 Not surprisingly, he soon suffered diabetic attacks, slipped into repeated comas, and eventually lost his vision as a result of unregulated diabetes.247 According SCDC has been severely criticized for to the attorney he hired to represent him its subpar record of providing medical and in a lawsuit against SCDC, Aaron Mayer mental-health care by advocacy groups, of Charleston, Munn was then housed lawyers representing incarcerated people, in a unit with dangerous, gang-affiliated and individuals with loved ones in South men.248 “If you have a chronic condition Carolina’s prisons. The State newspaper and you’re in the SCDC system, you are reporter Emily Bohatch reviewed hundreds in a lot of trouble because they just can’t of malpractice and wrongful death lawsuits handle you,” said Carter Elliott, an attorney against SCDC alleging inadequate medical based in Georgetown, who represents many 239 care. As of 2018, at least 56 percent of the incarcerated people.249 As has been said state’s prison population suffered from a many times before, a prison sentence should diagnosed medical condition, ranging from never mean a death sentence. diabetes to asthma or cancer.240 33 Resident returns to the land of his youth VIEWUncertainty FROM THE CHUawaits, but hope abounds VOLUME 6 ISSUE 1 VIEW FROM THE CHU VOLUME 6 ISSUE 1 By Jalen O.

E dreamer, a fire-angel, a man instead of a curse.” was always on revenge and violence.

I L Kairos Walk #23 misunderstoodDelane in a cold Marynowski He was brought Shines to America Spotlight as a I wasn’t on thinkingACI Artists about my future; I F

O world. There’s a common child from Guatemala. He doesn’t was focused on each day.” R adageA that says, “Circumstances recollect much about his childhood, P shouldn’t define who you become.” but the events that he does remember up!” T Strength, determination, courage, and are not so pleasant. He explained, “I

E N undying hope are just a few of the never got the chance to be a kid. I had She smiles a smile that promises, D I characteristics that are used by his so much hatred for my father because “No matter what happened be- peers to describe Serafin Muñoz, the of how he portrayed himself. He was E S newly released man who embodies a preacher who preached love, but fore this moment, no matter how R that adage. Somehow, amidst all of showed hate. He was a hypocrite who the confusion and pain that accompa- beat my brothers and my mother. He many disappointments were nies a prolonged incarceration, he has almost shot and killed my brother.” tossed your way, I’ve got you used that time as a tool to refine him- As he related this, the emotion was self, rather than as a hindrance to his still present in his voice and face de- now.” Then she somehow puts a development. spite the many years that have passed. cherry on top of this already mag- “I sometimes feel happy about my “My father treated [other] women time in prison,” said Muñoz, better than he did his own wife. The nificent sundae, as she adds, “I got “Throughout these 12 and a half years hatred I had for him stayed with me two donations last night that will I have transformed from a boy to a for a long time.” man. The things I’ve learned have His troubled childhood had an im- enable us to buy teaching kits for brightened my chances for a better pact on his decisions, which led him all incoming artists of this pro- future.” He was a resident in Bamberg to prison at the age of 18. Prison, in- Serafin works on a pottery wheel -B Unit when this interview was con- stead of calming him, led him to an gram.” Herducted eyes and blaze his releasewith passion date was rapid-as she evenon darker seeing place. the “I was art wild,” produced he byIn 2014, at Ridgeland C.I., an al- ly approaching. “I feel like my testi- admitted. He elaborated on how he tercation betweenWhat ahim Christmas and several gift! So much speaksmony canof helpa medium others by showingthat allows wouldthese get into men, many felt altercations they deserved be- other to inmates led to a change in how more than brushes or paints, can- On November 11, 2018 the Kairos Though each had his own experi- To close the ceremony all present Allendale’sthem that no Advanced matter your situation Artists you the causehave he believedtheir work that prison hanging was a in a hegal- would do the rest of his time. THEstill control ARGUMENT your destiny,” he shared. FOR place SWEEPING where you had to prove yourCHANGE While employedvas or as linen.a plumber Much in deeper and Walk #23 graduation was held in- ence and choice of words to ex- were treated to a moving rendition chance“You haveto reach to overcome their obstacles highest and po- manhood.lery. She “I came then in thinking pursued I was- that maintenance,goal he was confronted by WITHINutilize those hard SCDC times as a blessing n’t going to make it out. My mindset “Serafinmore” Cont imeaningfulnued on next pthanage any materi- side the ACI multipurpose building. press it, their messages displayed a of “Surely the Presence of the Lord tential, not the medium of canvas with single-minded determina- al possession. These men have The ceremony began with the Walk common theme, sometimes even is in this Place” before departing, a and brush, but instead, of the in- tion. someone who cares enough to participants, accompanied by vol- building on each other. One new fitting end to a memorable event. spirationACI celebrates which encourages residents the from around thegive what world some of them have nev- By David L. Y. She sees the artists involved in the unteers, entering from the back as member summed it up best by say- expression of their souls. er had. She has given her joy. She ~ Darrel M. same way insocial which problems she viewed that limit their future the song “They’ll Know we are ing, “It is a memory that a man can The direhe flagsneed of manyfor prison nations were programs recently displayed in Through his speech he sought hasto encourage given an bonds energy of that is chang- Delane Marynowski,the John R. Pate Program representing Center as ACIvictims endeav- she representedoptions.friendship Theybetween in sufferthe people Vic- from of different a lack cultures. of universal Christians by Our Love,” played. take to the grave with him.” Thereored is to a celebrate strong the relationship cultures of the between many residents access Residents to quality and guests education, were alsoing treated men,affordable to asmusical they per- sacrifice who ArtT League of Hilton Head, shares tim Witness Program. In a way we Once seated, the new Kairos mem- qualitywho hail prison from outside programming the USA. Despite and beingreductions organized formances by residents Aurelliothey C., Guillermowere on H., theand altar of who (Editor’s Note) housing, and livable wages. South Carolina Many men said they now felt more herinon disciplinary infectiousa tight schedule infractions energy and an even each tighterinside budget timeprison are the allinclusive battered Juan N., souls, accompanied and she by isthe ACI worship band. bers were introduced to existing nature of the event helped residents whose homes and fam- is the Closing fifth-deadliest out the day’s event, statethey Warden in wish the McKendley nationto become. for New- familiar with their faith and their Denny Mahoney took the sheasi l wellie visitss ar eas b thee ydecreasedon d Advanced our bord eratesrs f Artistseel ofa l irecidivism.ttl e mof orethe at h osalve me. to scarredwomen.ton spoke hearts.250 of Itthe ranks effort Enthu- being 43rd made on education, to help residents and get in members who welcomed them to ~ Nathan R. table family. They were filled with time to speak about “Kairos Out- Allendale.As South Costa Rican TheCarolina’s motivationnative Warner addiction S. sheopened topro- cagingthesiasm event withpours a 36 touchfromth on with healthher family as caremembers she according outside of to the U.S. country. News He and bilingual speech, expressing “the shared difficulty of being Associate Warden of Programs Yvonne Wilkins-Smith the fold with a hearty round of ap- people increased during the 1990s, and World Report.251 On virtually every food and love, learning to accept side”, a program offered to women videsaway grows from our within family no the matter men where as one isshares from.” Thisher sharedholiday a goal announce- of getting residents from different cultural plause. SCDCwas a themeeliminated personified most throughout of its valuablethe speeches, which crucialbackgrounds measure, more involved the state in activities ranks here near at ACI. the Wil- the love of others and accepting closely connected to men that are they learn of an opportunity be- ment—five professional artists programs.included Jumpstart This left Volunteer people and in Keynote overcrowded, Speaker Tony bottomkins-Smith on foreshadowed desirable quality-of-lifefuture multicultural issues, events as Next, the Families, groups that the their own forgiveness. Here these incarcerated (i.e. their daughters, yondunderstaffedHancock. their Hewildest serves correctional dreams.locally as a institutions volunteer andwill minister conduct to andworkshopsshe announced, near the with “Thistop oftheis thenational first year, rankings and from here it will Spanish-speaking farm workers in the community. get better and better.” participants were separated into men discovered a new family. wives, mothers, or friends) wheth- with little hope of preparing for re-entrygroup of Advancedfor negative Artists factors. in the Given this record, It’sby improvinghardly conceivable their educational that a gal- levels and for the duration of the Walk, were er those men have been through next two months.the importance The artists ofgath- providing educational After everyone had his turn to leryskills. showing Today, SCDCfeaturing program prison management programming in prisons is paramount. invited to come up, one by one, to the walk or not. The retreat takes ered are struck with varying ex- speak, Chaplain C.E. Stokes handed artistsrecognizes will the be need held atto augment Art League educational, The impact of correctional education give a summary of their experi- place over two and a half days in vocational, and soft-skills programs,pressions but of awe and delight. Resi- out certificates to the volunteers in of Hilton Head from July 28 to Au- has been studied extensively over the ence. Each member of the group the mountains, and is of no cost to lacks the resources and workforce todent Leader Terrypast severalB. even decades.pinches The most prominent appreciation for all they had done. gustachieve 24 of that 2019. goal. This monumental identified himself and was given the family. Transportation can even his arm a bit,meta-analysis as if to wake himself was conducted by the RAND He then gave a speech that re- event will reward the men in- Corporation in 2014, showing that people two minutes to share anything on be provided for certain areas. For from a dream. minded those present that God volvedEducational for their programs constant reducepursuit prison who participate in any kind of educational his heart. more information on this you can violence and recidivism Pastel by Ken N. loves them right where they are. of growth. Mrs. Marynowski, up- She crows, “Thisprogram thing behind has blown bars—from remedial math see your Chaplain for a brochure. Long before they are sentenced to to vocational auto shop to college-level courses—are up to 43 percent less likely 34 8prison, many South Carolinians encounter 17 to re-offend and return to prison.252 They SCDC awarded 1,209 GEDs, that rate has also appear to be much more likely to find fallen precipitously, to a mere 42 in 2019.260 a job after their release, along with the Former Palmetto Unified School District social stability that comes with a job. Every Superintendent Randy Reagan admitted dollar invested in correctional education, difficulty in hiring a sufficient number of RAND concluded, saves nearly $5.00 in qualified teachers inside state prisons. “We re-incarceration costs—and that is over just lost 130 out of 170 full time teachers during three years.253 Expanding prison programs a RIF [reduction in force] in 2003, and is one of the most effective investments in haven’t recovered since then," he said.261 reducing prison populations and recidivism. Educational prison programs also reduce prison misconduct.254 According to Paul Wright, director of the prisoner-rights “We lost 130 out of 170 full time teachers advocacy group Human Rights Defense during a RIF (reduction in force) in 2003, and Center, there is a simple and accurate explanation for the increase in violence in haven’t recovered since then,” said former South Carolina prisons in recent years: the PUSD Superintendent Reagan. lack of funding for “incentive programs” — — Randy Reagan, Former Palmetto Unified School vocational, academic, and work programs District Superintendent for incarcerated people.255 “When you take away all hope and you take away any reason for [incarcerated people] to behave A snapshot of SCDC’s performance at themselves,” Wright explains, “then that’s one of its institutions, Lieber, brings home when you start having higher levels of just how few opportunities people in prison violence, assaults, and attacks."256 That’s have to gain a GED. Of the approximately exactly what is occurring at SCDC. The 1,200 incarcerated people at Lieber lack of existing prison programs combined Correctional Institute on a given day, more with the overuse of lockdowns to manage than 600 lack a high school diploma or the prison population in lieu of hiring GED.262 The two full-time teachers based sufficient employees consistently deprives there have the capacity to teach only 60 incarcerated individuals the opportunity to students a day (30 in the morning, 30 in the learn and grow. afternoon for three-hour periods).263 That By reducing recidivism, prison translates into a 10 percent educational- education has the far-reaching potential service rate, which produced a total of three to reduce the entire scale of the prison GEDs at Lieber from 2015 through 2017.264 population, and, thus, prison costs.257 South As limited as they are, SCDC GED Carolina scored near the bottom of all programs cannot accommodate the large state rankings in the U.S. News and World number of incarcerated people testing at Report’s Pre-Kindergarden-to-12th-grade elementary-school levels of literacy and educational rankings for 2018.258 Research math. In fact, these educational gaps are on the state prison population shows that not addressed at all by SCDC. To the extent incarcerated people, on average, have a incarcerated people with such limited far lower educational level than the rest educational achievement receive any of South Carolina's population, with more academic instruction, it is through remedial than half lacking a high school diploma or programs sponsored by incarcerated GED.259 volunteers or volunteers from outside the South Carolina must be given a failing prisons. Due to the department’s limited grade on addressing prison educational success in recruiting and supporting gaps. After a high point in 2011 when 35 Volume 6—Issue 4 Page 24 If you can visualize it By Troy B.

volunteer programs, remedial educational I f you programscan visualize have it, Bamberg only been-A residents successfully can produce it. Look operatedinto the hobby at one craft prison: room on Allendale any given day and you mayCorrectional see a wide variety Institution. of creative At activities Allendale, taking men place—from painters creating a masterpiece to wood craft- with high-school degrees have been taught ers designing jewelry boxes. by retired professional educator volunteer Tom Conner to provide remedial classes to lower-performing incarcerated people. Due to this innovative program training a cadre of incarcerated people to become instructors for their peers, the GED rate at ACI is one of the highest in the state. The success of Allendale Correctional Institution could— Jeffery K. works on wood craft prepared to obtain gainful employment and should—be replicated by prisons Tracyupon sharedrelease. that A at comprehensive the present time, meta- quilting and crochet, throughout the state. whichanalysis fall fromunder thethe umbrellaNew York of hobbyUniversity craft, are two Studies conducted over the past two craftsSchool in ofwhich Law donated concluded materials that allow vocational for indigent resi- decades consistently indicate that higher dentsprograms to participate. can drop There recidivism is also the by Art4hope 20 program, education in prison programs also reduces whichpercent, allows raise residents earnings to use post-release, donated materials and to craft Tracyrecidivism L. works andon leather translates craft into reductions gifts for underprivileged and sick children. diminish future criminality.271 Another in crime, savings to taxpayers, and long- Tracystudy emphasized by the Florida that there Department is an ever -ofpresent family en- term contributions to the safety and well- While hobby craft is available to all residents, Bamberg-A vironmentCorrections that indicated has been created that people amongst who the artists. He side has beingthe distinction of the communities of having the only to which hobby formerlycraft described the knowledge passed, even between different earned a vocational certificate were 14.6 room equippedincarcerated with lockers, people saws, return. air compressors,265 The higher and crafts: “Sometimes I look over and notice what another percent less likely to recidivate.272 other toolsthe required degree for earned, the various the lowercrafts. theLiaison recidivism Tracy L. artist is doing; it inspires me to try new things.” Unfortunately, vocational programs is the attendant,rate.266 a role he described as both an honor and a He reminded that like so many programs that are available within SCDC are spotty. Some institutions privilege. “ThisIn May,room was2020, partitioned Claflin whileUniversity the program was at this institution, we are blessed to have it. “This is an was in its infancy,” Tracy said. “It was given under the offer carpentry or welding, while others chosen as one of just 67 colleges and outlet, another opportunity and privilege to those in the condition of a zero tolerance policy by then-Warden John have no such programs. Those individuals universities in the country as a recipient leadership dorm of Bamberg.”  Pate.” That zero tolerance policy meant not one incident who are lucky enough to earn a slot in a of a Second Chance Pell Grant Pilot Editor’s Note: To get into hobby craft, yard wide, send a would be tolerated, and Tracy affirmed that residents have vocational program are very limited in Program funded by the U.S. Department request to Mr. Dunbar, the Hobby Craft Coordinator. It is honored the trust that has been placed in them by ensuring number, even as the interest in and demand that thereof has Education. never been267 a Secondproblem. Chance Pell grants required that interested residents have at least $25 in their for these programs remains very high. After provide funding to indigent individuals account to purchase needed supplies. a high point in 2013, when SCDC issued in federal and state prisons to enroll in 3,361 vocational certifications, that rate educational programs at local colleges dropped by half, to 1,521 in 2018.273 and universities.268 According to Claflin President Dr. Dwaun J. Warmack, The importance of preparing everyone education and rehabilitation demonstrates for re entry the efficacy of Pell grants.269 “A quality - education is the gateway to empowerment,” South Carolina lags behind many other he says, “and plays a critical role in the states in re-entry efforts. Former SCDC successful re-entry of formerly incarcerated Deputy Director of Programs and Re-entry people into their respective communities.”270 Nena Staley established a successful 30- day re-entry program immediately before Vocational programs reduce recidivism release at the Columbia-based Manning and build skills Correctional Institution, focusing on teaching people approaching release about SCDC is insufficiently staffed to build soft skills, such as resume writing, proper up the vocational skill sets of prisoners work attire, and interviewing skills.274 This during incarceration so they will be better 36 program at Manning, a low-security prison, is a good start, but only assists a small fraction of people who are released every year, as it is limited to those convicted of nonviolent offenses. More recently, SCDC has implemented similar re-entry programs in Level 2 and 3 institutions but these programs are not available to incarcerated individuals until just months prior to their release. The larger critique is that these programs offer too little, too late. South Carolina simply lacks the staff and capacity to implement large-scale re-entry assistance throughout the correctional system. This is the tragic reality facing South Carolina incarcerated people today, as returning citizens face steep obstacles upon release from prison without sufficient preparation for success.

The prison economy

Prison economies defy virtually every principle that applies to other economic systems.275 The cost of goods inside prisons bears no relation to the wages paid or purchasing power of the prison population.276 Items that are typically inexpensive and easy to purchase outside prison are often the most difficult to obtain and carry the most value to those incarcerated.277 That fact is particularly true for people serving long sentences, where obtaining simple items such as an extra blanket or a favorite snack can make a huge difference. Yet in an environment where most incarcerated people are indigent or at most have meager earnings, the cost of everyday items is exorbitant. State prisons often contract with private companies to provide phone services and commissary items at astronomical prices that make airport concessions seem like a bargain. Pay for prison employment utilizes a drastically different set of rules as well. While there is relatively scant research into this multi-billion-dollar field, some aspects th are well established. The 13 Amendment 37 to the U.S. Constitution prohibits all forms have nots inside SCDC, combined with the of slavery and involuntary servitude, dire staffing shortage, creates a perilous “except for punishment for a crime,” which environment that is ripe for abuse for all has been interpreted to mean that there incarcerated people. SCDC does not provide is no legal requirement to pay people in adequate quantities of basic necessities, prison for their work.278 That explains such as toothpaste and soap, to indigent why many states do not pay the majority people. Individuals with no access to funds of prisoners for working in the prison are often forced to perform undesirable kitchen, performing maintenance on prison or dangerous tasks in order to obtain the vehicles, or cleaning the prison dorms.279 money they require for the most basic Today, prison administrators incentivize needs. Alternatively, others receiving incarcerated people to do much of the funds from family or friends become work required to keep prisons running vulnerable targets for physical attack. The by rewarding them with “earned time” or lack of staffing exacerbates these issues, “work credits,” which reduce the remaining as incarcerated people are forced to fend required time to be served on a sentence.280 for themselves without the protection that Those refusing to work have these credits adequate prison staff is obligated, but withheld. failing, to provide. Most prisons, including those in South While it may be legal to mandate Carolina, offer a small number of jobs unpaid labor in prisons, research indicates that do provide monetary compensation, it is not wise. Several prominent studies albeit at rates that are paltry compared support the notion that paid prison-based to comparable work outside of prison.281 employment programs save a substantial As of 2015 only a small proportion of amount of money in incarceration costs, and people in prison, 1,305 out of 21,251, or help reduce costs to the state.287 One study approximately 6 percent, were paid for demonstrated that by paying incarcerated their work through one of the state’s three people a reasonable wage for work while in prison employment programs.282 The pay prison, allowing them to save, and letting ranges on the low end between $0.35 and have access to those funds upon release $1.80 per hour, to payment of prevailing reduced the recidivism rate to zero on the industry wages for the very coveted slots first day of reentry into society, with no in Prison Industry Employment.283 Support increase in crime later.288 While it may for raising prisoners’ wages has been voiced seem like not compensating or underpaying by the American Corrections Association incarcerated people for their work saves and many others as a means of improving money, research indicates the American prison security, raising morale, and economy suffers from preventing people in establishing self-sufficiency.284 prison from being compensated.289 Remarkably, as the cost-of-living marches upward over time, most state Access to CARES Act stimulus funds prison wages have further decreased since 2000.285 The meager funds that are earned The COVID-19 pandemic resulted from prison employment are further eroded in a steep death toll, as well as exacting through deductions to cover court costs, economic devastation around the world. restitution, and even prison room and People in congregate settings such board.286 Therefore, families of incarcerated as nursing homes and prisons were people must often bear the tremendous particularly vulnerable to the virus, and burden of paying for phone calls and the havoc it wreaked. U.S. policymakers commissary items. passed several stimulus packages to provide assistance for unemployed and 38 The disparity between the haves and underemployed people as well as businesses to prepare for release.290 Despite this hit hardest by the deadly virus. After much obligation, many programs and services initial confusion, the courts made clear have been dismantled over the past 20 that incarcerated people throughout the years, and the few that remain are often nation were eligible for these CARES Act severely under-resourced. Today, SCDC funds. Nonetheless, the process of obtaining offers a paltry number of programs, and has stimulus funds has been anything but failed in fulfilling this important duty. smooth for the millions of incarcerated In order to bridge the gap, some people across the U.S. wardens have attempted to fill the void Each round of stimulus funding was with the help of volunteers across the welcomed by Americans struggling to make state. Volunteers can temporarily assist ends meet, pay the mortgage, or put food in providing crucial programs, but it is on the table. In particular, incarcerated imperative to remember that this is a people and their loved ones depended band-aid solution that can never replace on access to these funds. With the virus the state’s legal obligation to provide spreading like wildfire through prisons, programming. South Carolina is home to there was dwindling staff to distribute a robust community of retired individuals, meals, transport people to necessary many of whom moved south to enjoy the medical appointments, and provide life- pleasant weather and cheaper cost of living. saving cleaning supplies. As a result, people Many retirees have had lengthy careers and in prison relied on their ability to purchase a deep well of experience and skills, and food items, medicines, and other items from have responded to the dire needs within the the commissary. Because most incarcerated state’s prisons. These volunteer efforts are people lack access to paid employment greatly beneficial, but should be expanded while in prison, the cost of providing beyond the largely spiritual activities that necessary items fell on their families, who have been provided to date. themselves were often financially strapped. South Carolina’s prison population In the fall of 2020, under relentless would also benefit from programs taught by pressure from ACLU of South Carolina and formerly incarcerated people. For decades, other prison advocates, SCDC temporarily research has shown that the “peer-to-peer” waived its policy banning IRS forms model is an effective method of instruction, inside the prison to facilitate the CARES primarily because formerly incarcerated Act application process for the prison teachers have shared experiences with their population. But in the spring of 2021, students, earning them more credibility and for reasons that remain unclear, SCDC trust than prison staff who may represent refused to waive its policy again, causing “the system.”291 Regrettably, SCDC denies consternation and confusion system-wide. formerly incarcerated people access to With the deadline for application rapidly prisons for a period of five years following approaching, many incarcerated people their release from prison, effectively were unable to apply for the funds, again shutting the door on the many benefits limiting their access to commissary items these potential volunteers could offer to the and making them even more dependent on prison population. their already financially strained families. Given SCDC’s failure to provide sufficient programming within the prison The value of volunteer programming system, the department should be taking greater advantage of the generosity SCDC is statutorily obligated to of volunteers to provide programming provide educational and other types of wherever possible. SCDC has failed to programming to enable incarcerated people tap into this pool of talented people to 39 encourage them to share their knowledge policies, much like access to prison and expertise inside our state prisons as programs, improve prison safety and volunteers, with the single exception of increase the likelihood of successful re- the volunteers at Allendale Correctional entry. Institution. Under the bold and creative A study from the Minnesota Department leadership of former Allendale warden John of Corrections found that a single visit Pate and continued by Warden McKendley correlated with a 25 percent drop in Newton, such volunteer-based programs technical violations and a 13 percent drop have been developed and are operating in new crimes once an individual got out as a “character-yard.” The Allendale of prison.292 Many other studies have “character” program has been nationally confirmed that visitation has powerful recognized for its activities initiated by positive effects on prison misconduct as well accomplished volunteers and subsequently as recidivism. led by incarcerated people, including animal Despite the breadth of research showing husbandry, remedial education, addiction- that maintaining family ties is among recovery programs, and much more. The the best ways to reduce recidivism, the difference between Allendale's Level 2 yard reality of having a loved one behind bars is and other SCDC facilities is palpable. that visits are unnecessarily grueling and frustrating.293 Most people in state prisons, The benefits of visitation (63 percent), live more than 100 miles from their families.294 Research has also proven that visitation Many of South Carolina’s prisons are

40 located in rural areas of the state, while SCDC administrators, failed to adequately families of the incarcerated predominantly prepare for and protect both prison staff live in the cities, making visitation difficult, and the incarcerated population. particularly with South Carolina’s lack of public transportation infrastructure. SCDC’s visitation policies can be onerous, such as requiring children under the age of “If you want to see an end to the pandemic, 10 to provide a copy of their long-form birth you’ve got to vaccinate the people in the certificate, arbitrarily prohibiting visits, and requiring all visitors to come at the places where there are the largest clusters same time in one day.295 and the most cases,” In addition, prison phone charges —Jaimie Meyer, Associate Professor of Medicine can be costly, causing great hardship for and Public Health, Yale University indigent incarcerated people and their families. Whenever an institution is placed on lockdown, visitation is curtailed indefinitely. All of these factors discourage SCDC and the South Carolina Parole many from visiting their incarcerated loved Board refused to take any meaningful ones, even as research consistently points to action to reduce the prison population, the importance of maintaining family ties in and SCDC management resisted public achieving successful rehabilitation. urging to allow for any meaningful social distancing, to implement a rational testing Managing COVID-19 in South Carolina protocol, to isolate and provide appropriate prisons care for those who may already be ill, or to continue necessary treatment for those with By any standards, even on the best of other serious medical issues. days, SCDC has had an abysmal record of COVID-19, which is a highly contagious providing a safe and healthy environment and deadly respiratory virus, created for incarcerated people. The emergence of an unprecedented public-health crisis. COVID-19 in the spring of 2020 added a Because it is easily transmissible, including wide range of new and difficult challenges by asymptomatic carriers, the only ways for prison administrators to manage. to slow its spread are through physical South Carolina’s over-incarceration distancing, frequent hand washing with problem and unwillingness to reduce prison soap, disinfecting living spaces, and and jail populations collided with a global wearing masks. pandemic early in 2020. At the onset of the COVID-19 poses particularly stark novel coronavirus outbreak, public-health and stunning risks to people confined in experts emphasized the interconnectedness prisons.297 The close quarters and often between the fate of incarcerated people and unhygienic conditions in correctional the communities surrounding correctional facilities are in effect petri dishes for facilities.296 Correctional officers and disease transmission. Incarcerated other prison staff entered the prisons individuals must often live together in every day, mixed with incarcerated people dormitory-style housing or in double- and and returned home. Health authorities triple-bunked cells.298 Living in such close cautioned that congregate settings such as proximity to one another, they must share nursing homes and prisons posed elevated toilets, sinks, showers, and even soap risks, as the virus would spread quickly (when they have access to it).299 Because once it entered such facilities. Nonetheless, physical distancing and vigilant hygiene national and state leaders, along with are impossible under current conditions, 41 highly transmissible diseases like COVID-19 The arcane prison-grievance process can, and have, spread at a dramatically accelerated rate in jails and prisons.300 People in free society may have no reason It is not only the facilities’ physical to know this, but there is no Consumer conditions that make the problem Protection Agency or similar institution particularly acute. Many people in prisons inside prisons to protect the rights of the are more vulnerable and susceptible to the incarcerated. Instead, people in state risks of coronavirus because of the high and federal prisons rely on some type of incidence in that population of chronic grievance process to document all types of underlying health conditions, such as concerns, ranging from complaints about diabetes, heart disease, chronic lung and medical issues to criticisms of visitation liver diseases, asthma, and compromised policies and beyond. immune systems from HIV or chemotherapy The grievance system was created in cancer treatment.301 the aftermath of the infamous Attica prison In addition, even under normal uprising: a standoff in 1971 involving circumstances, as we have noted, nearly 1,300 incarcerated men who took incarcerated individuals have limited access over Attica prison in New York to protest to medical care.302 As staff becomes sick, the abusive conditions and the deplorable 307 including medical personnel, even fewer living environment. The uprising ended people are available to care for those who with the deaths of 43 people, most of them remain confined. All of these factors—the incarcerated people, after state officials living conditions, a particularly vulnerable decided to end negotiations and authorize 308 population, and limited medical care—make the use of live ammunition. A nationwide the outbreak of a highly infectious, deadly “Prisoners’ Rights Movement” emerged from virus in a closed detention setting a disaster the uprising; and experts created grievance of epic proportions. systems as a method to “release steam” As the pandemic entered its second year before tensions grew to unsustainable levels 309 in 2021 conditions have only worsened. The again. United States is the world’s most prolific As America enacted sentencing policies jailer, and her 2.3 million incarcerated that filled its prisons and resulted in an people are five times more likely to test explosion of the prison population, state and positive for coronavirus as Americans federal courts saw a dramatic uptick in the generally, and nearly three times as likely number of lawsuits filed by incarcerated 310 to die.303 Some states, including California, people. State attorneys general reacted by Missouri, and Pennsylvania have been waging a concerted campaign to publicize so overwhelmed by the coronavirus that examples of cases they deemed “frivolous,” they have been forced to close some in an effort to thwart prisoners from filing prisons, transporting incarcerated people complaints about their care. The publicity to other facilities.304 This has only served campaign worked; as a result, President to exacerbate the problem, as health-care Bill Clinton signed the Prison Litigation experts warn that transferring people is Reform Act (PLRA) into law in 1996, which very dangerous.305 “The burden of Covid-19 made it more difficult for incarcerated people has already been too high in prisons and to challenge their deplorable conditions 311 jails and the continued transfers of people of confinement or other grievances. In between facilities is spreading and causing reality, the number of lawsuits filed per further outbreaks,” says Jacob Kang-Brown, capita actually declined over the twenty 312 senior research associate at Vera Institute years preceding PLRA’s passage. In for Justice.306 practical terms, PLRA makes it much more difficult for incarcerated people to file 42 Medical, food, and living conditions within SCDC facilities 43 lawsuits in federal court. The most impactful policies are complicated, and allow a lengthy aspects of PLRA are: period of time for prison staff to process grievances. In that vein, South Carolina’s • Exhaustion of administrative grievance policy is complex, onerous, and remedies: Any incarcerated person very time-consuming.320 wishing to file a claim in federal court first must exhaust all administrative remedies that are available.313 This “The walls and razor wire surrounding means he or she must attempt to resolve prisons at times seem to serve dual any complaint through the internal grievance process, following every step purposes: to keep the inmates inside, and to and appeal process to the end. Failure to keep everyone else out,” fully complete this process results in the —Jennifer Gonnerman, The New Yorker magazine dismissal of a complaint filed in federal court. 314

• Payment of filing fees: Any The ACLU of South Carolina has received incarcerated person wishing to file a countless letters and complaints about claim in federal court must pay all filing SCDC’s grievance process, primarily focusing 315 fees in full. If a person is indigent, the on allegations that prison employees often fees will not be waived but can be paid in purposefully “lose” medical complaints, or deny 316 installments. the majority of grievances. As a result, the consensus feeling expressed by South Carolina The PLRA dramatically reduced the incarcerated people is that they do not have number of federal lawsuits and in the faith in the grievance process. A study of process greatly curtailed the rights of the 12,780 Illinois prisoners by the John Howard incarcerated.317 With PLRA, many prison Association in 2019 showed a similar level administrators made internal grievance of dissatisfaction.321 The Illinois study found processes more onerous and added policies that only 5 percent of prisoners considered the to throw out complaints solely for technical prison grievance process effective, and just 13 reasons, such as using the incorrect color percent felt comfortable filing a grievance.322 of ink to write a complaint.318 “There was a Relying on complicated grievance huge incentive to make the grievance process procedures to deter incarcerated people as complicated and as impossible to complete from expressing their concerns about prison properly as they could,” explains Alan life causes the state to lose out on the Mills, a lawyer and executive director of the opportunity to resolve real problems before Uptown People’s Law Center, who has spent individuals take their complaints to the decades representing prisoners in Illinois.319 court system. From Fiscal Year 2015-2019, Many experts argue that grievance SCDC cost the state roughly $10 million in processes today are designed to protect payments to victims of prison malpractice.323 department of corrections employees And no doubt without the limitations from lawsuits, rather than protecting imposed by PLRA that number would be incarcerated people from constitutional considerably larger. violations and other harms. Today, each prison system designs its own set of rules SCDC’s lack of transparency combined regarding the manner in which complaints with retribution faced by journalists and can be submitted, the timeframe for prison advocates covering prison issues administrators to respond, and the terms of appealing these responses. Many grievance As COVID-19 predictably infiltrated 44 SCDC institutions in 2020, incarcerated people faced a stark choice: speak to “American prisons are used to operating in reporters about the deadly conditions the shadows,” said ACLU National Prison and face retaliation from prison staff, or Project Director David Fathi.332 keep quiet and face death on a massive scale. Sadly, prisoners’ courage did not stop the carnage, but it likely resulted in forcing prison administrators to improve “American prisons are used to operating in the conditions, at least on the margins. The shadows,” according to ACLU National Prison crux of this dilemma has its roots in a trio of U.S. Supreme Court decisions made in the Project Director David Fathi. 1970s.324 The key takeaway from these cases: —David Fathi, ACLU National Prison Project Director prison security considerations trump the rights of members of the press to interview specific prisoners.325 It is rare for wardens to allow journalists Prison advocate and journalist for the to observe prison conditions firsthand; many ShadowProof website Jared Ware recounted preclude in-person interviews as well.326 In the chilling experience of trying to document addition, incarcerated men and women risk SCDC prisoner accusations of abuse at 333 retaliation by prison staff by advocating for McCormick Correctional Institution. Ware their rights through interviews with the interviewed people at the prison alleging 334 press.327 These factors combine to hide the they were being denied access to water. 335 reality of prison life in a black box, sheltering He aired the allegations on his podcast. the American public from having to fix the Shortly thereafter, he learned that guards injustices that have smoldered as a result of had listened to the podcast and demanded the 336 the policies driving mass incarceration. “The names of the people who spoke to Ware. His walls and razor wire surrounding prisons at prison sources grew terrified, and asked that 337 times seem to serve dual purposes: to keep he take down the podcast. He complied, the inmates inside, and to keep everyone understanding the risks they faced by else out,” wrote Jennifer Gonnerman in The sharing the reality of everyday life in a South 338 New Yorker.328 Carolina high-security prison. Multiply Formerly incarcerated advocate and that experience by the hundreds, perhaps journalist Paul Wright, founder of Prison thousands, and that is how the curtains Legal News, made a compelling case for get pulled shut on the stories of millions of opening the prison doors to the media.329 Americans. Even when the issue is as simple The average prisoner, he explains, is as the need for safe drinking water. someone who is mentally ill, functionally Congress and state legislatures also need illiterate, and may suffer from a substance- to take a fresh look at the logic of tilting abuse problem.330 In other words, he or she the scales so heavily in favor of honoring represents the most vulnerable among us. prison-security concerns, at the expense At the same time, Americans have spent of enlightening society about the prison more than $1 trillion building and filling experience. Experts recommend the creation prisons, largely without the benefit of of independent prison ombudsmen to oversee media coverage to analyze the wisdom of all aspects of prison operations, from the these expenditures.331 The lack of oversight grievance process to the provision of medical bodies shroud prison environments in even and mental-health services and nutritional greater secrecy. Taken together, prisons are meals. New Jersey and Washington have among the most isolated, misunderstood independent corrections ombudsmen, and places in America, even as they absorb other states, including Illinois, have filed bills to create such a position.339 an oversized share of the nation’s budget. 45 A tree of life takes root Inaugural Second Chance Family Day Event By Demareo M. festive atmosphere was re- included sincere apologies for their most precious commodity that has been

cently created in ACI’s visita- detrimental behavior in the past, and a lost to them—time. Through their S tion room. A seed of hope was first step toward making amends. words and actions on this day they N A planted by members of ACI’s Charac- hoped that they could begin to reclaim I O Rehabilitation Counselor of Y.A.I.S.

T ter Restoration Initiative (CRI), and some of what had been lost due to their

A Ms. Y. Hillary spoke of her motivation watered by the Y.A.I.S. leadership. absence from their family’s lives. R for ensuring this event came off with-

B This seed grew to a tree of life that pro- The arts and crafts project—to cre- out a hitch, “It gives a sense of hope moted love and reconciliation between ate a family tree together with the

L E and shows that we care,” she said. “I

E youthful offenders and their families. guests—allowed residents to give their

C Staff and fami- ly gathered in an- ticipation of the YOA’s arrival. At 10:00 a.m. the visitation doors opened and eager faces of young men scanned the room for their rel- atives. They soon gathered their composure and were given a chance to display the efforts that have been culti- vated toward building respect and YOA Drill Team performs for their families discipline in their believe that family support is a key lives. The team stood in position, and a families something that they could take element to successful rehabilitation.” shout from their drill sergeant ignited a home to remember the day. The mate- The warm embraces and tears upon the synchronized movement of rhythmic rials for the art project were supplied faces of both residents and their fami- stomping and coordination. Once the by Advanced Artists of Allendale resi- HOW DO WElies FIXspoke toTHE the truth COSTLY of this statement. MISTAKES drill was concluded applause rang out dents Terry B. and Kenneth N. OF THE PASTMany AND of the residents PROTECT spoke of thePUBLIC SAFETY and the men were able to Toastmaster Tajh C. find their families andIN em- SOUTH CAROLINA? served as the keynote brace them in love. speaker for the event, On September 13, 2019 imparting words of en- music rang through the at- couragement. “Love is mosphere, promoting smiles the most effective tool and dancing amongst those to bring about change,” in attendance. The residents he said. “It is the source and their families were pro-America has adopted the tough-on-crime in the number of peopleof sentlife and to prisona choice —we vided with games andapproach arts for almost half a century. This has by dismantling the systemalways of have prison a choice.” and crafts to encouragegiven a fun researchers plenty of time to evaluate programming. This largelyHis words transformed affirmed the environment which promot-the effectiveness of harsh sentencing prisons into human warehousesevents purpose devoid—to of ed healing and forgiveness.techniques, and the verdict is virtually prospects for rehabilitation.choose to nurture the Amidst the festivitiesunanimous: there these tactics do not work. We cannot change relationshipsthe past, but that add was a note of seriousness,One ofas the most glaring consequences of research underlines thevalue folly and of inspirationour previous to a few of the YOA’s readthese let- policies has Tbeenree o thef lif edramatic artwork mrisead ein w ith thsentencingeir families policies. Increasingone’s life andpublic promoting ters to their loved ones,prison which populations, and, alongside that, the safety will require turningsuccess virtuallygoing forward. every He increased costs associated with providing former policy“Tree beliefof life ”on C oitsnt ihead.nued oStates,n next page services. The outsized costs of imprisoning including South Carolina, must streamline a greater share of society eventually laws to dramatically reduce the number of necessitated painful cuts in corrections people sent to prison. The existing levels budgets. of corrections staff will have a far greater When the floodgates were opened capacity to manage a substantially lower in South Carolina in the 1980s and prison population than they do with the 1990s former SCDC Director Michael current large numbers. Budgetary savings will enable prison staff to facilitate prison 46 Moore responded to the dramatic rise programming, including educational, punish those who have paid their debt to rehabilitation, and vocational courses. This society is simply immoral,” he said, before smaller prison population will benefit from reiterating support for the same policy fixes access to life-altering programs, allowing as Booker.341 individuals to get at the root of the issues In today’s incredibly divisive political that may have contributed to the causes environment, it is rare for our political of their criminal behavior in the past and leaders to find common ground on help prevent them from repeating those important societal issues. And yet, on behaviors. sentencing policy, Republicans and Democrats have supported the same misguided and harmful policies in the past. One of the factors that prompted “After decades in which fear of crime and both parties to agree on enacting harsh sentencing policies some 50 years ago ‘tough on crime’ were the ultimate wedge was the heated rhetoric surrounding the issue, now there’s a competition to see Willy Horton case. During the presidential who can have the most transformative campaign of 1988, former President George reform,” said Michael Waldman, president H. W. Bush repeatedly used the Horton case as a cudgel against his opponent, of the Brennan Center on Justice. “In three former Massachusetts governor Michael decades, to go from Willie Horton to ‘how do Dukakis.342 Horton was a Black man we end mass incarceration’ is a long leap.” convicted of raping a white woman while —Michael Waldman, president of the Brennan on temporary leave from prison as a result Center on Justice of Massachusetts law. By relentlessly repeating the facts of the Horton case, the Bush campaign successfully painted Dukakis as soft on crime by employing dog- The consensus that punitive policies whistle tactics to elicit racist tropes in the are ineffective is not just the conclusion minds of many voters.343 of organizations perceived as left-leaning. Many believe the Horton advertisement Groups as diverse as Americans for played a crucial role in Bush’s victory, and Prosperity and Right on Crime agree instilled fear in the minds of the Democratic with the Center for American Progress Party for decades to come that similar and NAACP. Commenting on a 2019 tactics would likewise paint them as soft on Brennan Center for Justice report on crime. Historians saw a clear correlation America’s criminal justice system, New between the Willie Horton attacks and Jersey Senator Cory Booker, a Democrat, Democrats’ decision to pass the 1994 crime sounded virtually indistinguishable from bill, which implemented many of the harsh Mark Holden, former senior vice president sentencing policies that are much maligned of the conservative Koch Industries. Our today, particularly for their disproportionate current system is “an affront to our most impact on African Americans.344 fundamental values of freedom, equality There is a silver lining: Just as both and liberty,” said Senator Booker, before parties supported wrongheaded policies suggesting that the U.S. sentence fewer in the past, leaders in the Democratic and people to prison, seal nonviolent criminal Republican parties appear to have learned records, and restore the voting rights from those mistakes today. “After decades of returning citizens.340 Holden echoed in which fear of crime and ‘tough on crime’ Booker’s beliefs about the injustice of were the ultimate wedge issue, now there’s harsh sentencing laws. “To endlessly a competition to see who can have the 47 most transformative reform,” said Michael Infrastructure installed by tough-on- Waldman, president of the Brennan Center crime laws on Justice. “In three decades, to go from Willie Horton to ‘how do we end mass The structure that facilitated the mass incarceration’ is a long leap.” 345 incarceration of Americans remains in place, largely untouched by recent reform With political consensus, where do we legislation. Legislation from the 1970s go from here? onward established the machinery that continues to perpetuate the arrest and This bipartisan consensus has been incarceration of millions of Americans, forged in the belief that the present policies even as crime rates remain at historic are both morally and fiscally unsustainable. lows.349 “The same funding streams that The majority in both parties believe we overwhelmingly support enforcement need to enact measures to release people activities over proven preventative and from prison who no longer pose threats to restorative solutions continue to this day— public safety, regardless of past convictions. albeit with tweaks around the edges.”350 Criminal justice experts are also re- It is only when policy makers cease their imagining how we define public safety. support for the policies that underpin Crime, after all, is an artificial construct. America’s over-incarceration problems that Police have been given immense authority we will be able to begin to unwind the most to determine which communities are damaging effects. targeted, which individuals will be arrested, As mentioned, the 1994 crime bill and which criminal offenses will be provided an influx of $12 billion in federal charged. We must reconfigureour societal funds to the states, subsidizing state priorities, investing in affordable housing, correctional institutions.351 In the decade social services, quality education, and after the crime bill’s enactment, the number mental-health assistance in impoverished of new prisons constructed nationwide rose communities rather than funding law- by 20 percent, while the prison population enforcement activities there.346 grew by 40 percent.352 Even as crime rates The Charleston People’s Budget remain low, the incentive for states to Coalition is comprised of diverse community accept federal-crime-bill funding persists as groups with the goal of reimagining public a method to create jobs and spur the local safety. This coalition recognizes the need to economy.353 According to researchers from reinvest in people and communities rather American Progress, “this vicious cycle must than police and incarceration. Coalition stop—starting with policymakers ending members stress that providing access to funding, resources, and incentives to build health care and a living wage are crucial new jails and prisons.”354 aspects in ensuring public safety.347 The interconnectedness of private Yet even though there may be general industries operating inside state prisons agreement on policy goals, many states complicates that aim. The privatization and have yet to follow through on plans to monetization of virtually every aspect of achieve these objectives. South Carolina the criminal justice system has increasingly was one of 34 states that have reduced allowed private corporations to dictate their prison population and their crime the pace and shape of reforms. Every rates concurrently, showing that decreasing year, private vendors make $1.6 billion sentence lengths does not necessarily lead in profits from prison commissary sales to an increase in crime.348 So why has there of items such as soap and toothpaste.355 been reluctance on the part of policymakers Telephone companies collect billions in to take the next steps? profits from incarcerated individuals and 48 South Carolina Department of Corrections Institutions

spartanburG Livesay Correctional Institution enoree Tyger River Correctional pelzer bennettsville PerryCorrectional Institution Kershaw Evans Correctional Kershaw Correctional Insti- Institution tution and Reentry Center

FlorenCe bishopville Palmer Pre_Release Center Greenwood Lee Correctional Institution Leath Correctional Institution Columbia rembert mCCormiCK Wateree River turbville McCormick Correctional Institution Correctional Turbville Correctional Institution trenton Institution Trenton Correctional Institution

Broad River Correctional Institution CL,ME

Broad River Secure Facility ridGeville Graham Correctional Institution FairFax Allendale Correctional Goodman Correctional Institution Institution Kirkland Reception & Evaluation Center

Manning Reentry/Work Relase Center Lieber Correctional Institution and ridGeland Reentry Center Ridgeland Correctional McDougall Correctional Institution Institution SECURITY LEGEND

Minimum-Out Level Minimum Level Medium Level Close Level

their loved ones.356 Companies such as the criminal justice system. JPay and GTL provided tablets to entire The surge of corrections spending prison populations for free, but once inside, over recent decades has often been used charge exorbitant fees for e-books, songs to spur job growth in rural areas of South and educational programs.357 “As long as Carolina that had suffered deep economic the criminal justice system is motivated by losses with the closure of textile mills profit, it will continue to expand its reach and manufacturing plants. Correctional and inflict undue harm on individuals and institutions dot the countryside in communities.”358 Our elected officials must small towns like Bennettsville, Fairfax, cease using for-profit vendors throughout Bishopville, and beyond, sometimes 49 Volume 6— Issue 3 Page 19

John Pate cont’d from “Doing this job is my re- ardized Character Program.” made his living transform- page 2 tirement,” he says. His goal Lofty goals you may say. But ing dreams into reality. going forward in his first He returned to ACI to work this innovative thinker has ~ Nathan R. year are to “develop stand- under the direction of Nena ardized Staley, Division Director of To achieve Character Programs, Re-entry, and a meaningful Programs Rehabilitative Services reduction in prison within two with the goal of standardiz- populations, leaders institu- ing programming through- must be open to tions.” Yet, out SCDC. He is working policies that allow his goals part-time with a team of for early release, not don’t end residents to create lesson just for individuals there. In plans that can be used as a convicted of fact his five template for other institu- nonviolent offenses, year plan is tions. but also for people to ensure convicted of violent During his abbreviated re- that “every crimes after serving tirement he discovered that institution a certain percentage he wasn’t a hobby guy. has a stand- of their sentence. In addition, there providing more jobs in the community should be a rebuttable presumption Visions cont’d from your SCDC Inmatethan I.D.any other probationemployer. officer, This andcreates a a Tony Smith.of release Mr. Terry’s for individuals age 50 and page 4 “This will be theperverse difference and dangerousMaster’s Degree incentive in Educa- to keep missionabove, will continue combined as with strong systems of residents who are willing to between workingprisons tomor- filled intion order and Clinicalto avoid Counsel- the loss of long ascommunity there is a need support for and assistance upon re- relocate to the Charleston, row, versus waitingemployment 14 ining, economically returned to thechallenged system programsentry like into this one.society. SC area. At the present days.” areas of the state.as a volunteer to help give “The goal of Fresh Start Two-tiered justice: People convicted time there are seven loca- Before admittancePresident to Fresh Joemen Biden the skills has they promised need to Visions is to see you walk of violent crimes are excluded from tions that provide housing, Start housing,to residents implement are policiessucceed thatin life. will She roll saw back out of prison and be the and also offer intensive expected to successfullythe damaging sentencingfirst-hand the laws devastation that he man thatreforms God created you mentoring, guidance, and supported and thatvoted incarceration for in the past.could 359 He to be, restored back to your complete the Men in Tran- At the outset, it is important to clarify encouragement upon re- has pledged to inflictallocate upon $20 a person’s billion inlife federal family and your communi- sition 12 week course at that not all individuals classified as “violent lease. Employment Direc- funds to states andthat has adopt dedicated evidence-based her life ty.” ACI—which meets on offenders” have committed offenses that tor John Wojick, a former programs aimedto atgiving diverting back. “…unto people from Thursdays at 12pm. This ~ Troywould B. be viewed as violent by the majority resident of ACI for four incarceration andwhom preventing much is given, crime. much360 class focuses on taking re- of the public. For example, some drug years, guarantees the men States will be requiredis expected,” to eliminateshe reminds, sponsibility and practically manufacturing or drug sales are classified at least a twelve dollar an mandatory-minimumquoting sentencingLuke 12:48. and adopt applying what is learned. as “violent” in the South Carolina criminal programs awarding earned-time credits for hour job upon release. “We Residents are taught by Fresh Start Visions has code, even though the underlying elements Program Directorthose Amy currently Ha- incarcerated in order to get provide these men a living made plenty of headway of the crime do not include the commission ley, John Wojick,access and to a federal funds.361 wage,” he assures, “I’ve since it began just last year, of a violent act against any individual.362 host of volunteers. They but he assures that his vi- been where these men are At the same time, crimes like wage theft, use videos, groupBuilding discus- a smartersion isn’t justice complete, system just and I’ve come back to help which can lead to serious physical harms them transition through sion, and role playing to yet. “We intend to spread South Carolina policy makers must as families cannot afford basic needs, it.” He also encourages connect “hard skills” to this program across the begin quickly reversing deeply established are classified as nonviolent. Under our men to request a medical various character traits, country,” he says, telling of patterns of incarceration. Far too many system, crime and harm are divorced from summary while still incar- and “soft skills” to help res- the Character-Based Unit people have been incarcerated for too one another. Because of this, labels like cerated because the DMV idents get, and keep, a job. (CBU) that has been long. To address those wrongs, our state violent and nonviolent are often rendered and Department of Social formed in Franklin County, Amy Haley, withleaders 20 years must enact legislation that reduces meaningless. Security will not honor of experience as a federal Florida’s jail by Sheriff A.J. the footprint of our counterproductive Many states, including South Carolina, criminal legal system, fully funds have chosen to change sentencing for prison programming, incentivizes nonviolent cases first, leaving the more positive behavior, and greatly enhances difficult reforms for another day. This task opportunities for early release from prison. of providing opportunities for earlier release 50 to people convicted of violent offenses may before becoming eligible for parole.369 This appear daunting, but the overwhelming is not the only way to achieve a reduction in body of research confirms it is eminently state-prison populations, but it serves as an possible, and the right policy to pursue. example that southern, conservative states can safely enact criminal justice reforms that The Unger case study: Demonstrating include violent offenses.370 that we can safely release people convicted of violent crimes Juvenile Life Without Parole (JLWOP): Research into the juvenile mind proves Anecdotal evidence from a landmark youth should be treated differently court case, Unger v. Maryland, has provided powerful lessons for policymakers regarding Scientific research on the adolescent the potential to safely release individuals mind has had a remarkable impact on who have committed a serious violent the legal field over the past two decades. offense.363 This 2012 case resulted in the Landmark studies have highlighted that release of 235 people convicted of violent until the brain is fully formed, younger offenses prior to 1981 from Maryland people have trouble considering the long- prisons.364 Each individual had served more term ramifications of decisions. Often than 30 years for homicide or rape prior to these developmental changes are not fully being released back into society, bolstered complete until age 25. by privately financed specialized re-entry Several important cases handed down programming beginning inside prison and by the U.S. Supreme Court starting in continuing after release.365 Six years after 2005 recognized the clear developmental their release, the Unger cohort has a less differences exhibited by juveniles that than 1 percent recidivism rate, as compared warrant granting them a separate, more to a more than 40 percent recidivism rate protected status in our legal system. for all formerly incarcerated individuals Repeatedly, the Supreme Court wrote that in Maryland.366 Research shows this lower children “generally are less mature and recidivism rate is likely due to the advanced responsible than adults,” and that they age of people in the Unger category, and the “often lack experience, perspective, and fact that recidivism rates decrease with age. judgment to recognize and avoid choices Some of the most promising sentencing that could be detrimental to them,” and “are reforms have been enacted in the South, more vulnerable or susceptible to … outside in states that traditionally have been pressures than adults.”371 viewed as the most reluctant to embrace The recent substantial body of research change in this arena. Former Republican into brain development illustrates that Texas Governor Rick Perry, once a harsh juveniles are more impulsive and more skeptic of criminal justice-reform efforts, susceptible to peer pressure than their eventually recognized the many benefits adult counterparts.372 As a result, our that came with measures that addressed highest court has made mandatory Life the underlying causes of crime rather than Without Parole sentences (LWOP) for simply locking up individuals.367 Rather juveniles obsolete, and required a detailed than supporting the planned addition of retroactive review of the individual cases prison beds in Texas in 2007, Perry instead across the nation that had been sentenced advocated that state funds be put towards as juveniles to life in prison.373 expanded treatment programs.368 In 2018, the composition of the In 2014 Mississippi passed HB 585, which Supreme Court changed with the death reduced the amount of time individuals of Justice Ruth Bader Ginsburg and convicted of violent offenses have to serve confirmation of Justice Brett Kavanaugh. 51 This conservative-leaning court has The damaging war on drugs demonstrated a willingness to change course on a number of issues, including Since 1971 the war on drugs has cost 379 its longstanding record of recognizing that Americans $1 trillion. As of 2015 the children convicted of committing the most federal government spent $3.3 billion serious crimes should only be condemned to annually to imprison people for drug life in prison in the rarest of circumstances offenses; state governments spent an 380 due to their still-developing brains.374 In additional $7 billion. President Nixon April 2021, Justice Kavanaugh penned the launched the national effort using heated majority opinion in Jones v. Mississippi, rhetoric, claiming to be targeting illegal arguing that judges need not make a drug use. However, since that time determination of “permanent incorrigibility” President Nixon’s domestic policy advisor, before sentencing a juvenile to life in John Ehrlichman, admitted the real prison without the possibility of parole.375 purpose behind Nixon’s war on drugs was to This marked the first time in almost two target anti-war protesters and Black people. 381 decades that the Supreme Court deviated “We knew we couldn’t make it illegal from its longstanding position that young to be either against the war or Black,” he people should be provided greater leniency, acknowledged, “but by getting the public to regardless of the offense committed. associate the hippies with marijuana and Today, 30 states and the District of Blacks with heroin, and then criminalizing Columbia have banned JLWOP or do not both heavily, we could disrupt those have any people serving such a sentence.376 communities. We could arrest their leaders, Most recently, Ohio banned JLWOP raid their homes, break up their meetings, in January 2021.377 In South Carolina, and vilify them night after night on the juveniles convicted of homicide remain evening news. Did we know we were lying 382 eligible for LWOP sentences.378 about the drugs? Of course we did.” The war on drugs triggered decades

52 of draconian sentencing regimes at the of their actions, and, to the extent possible, national and state levels, increasing the take steps to make some form of reparation number of people incarcerated in American for their victims.392 When asked about their jails and prisons from 300,000 to 2.3 experiences, both parties have expressed million.383 Today, someone is arrested for satisfaction with the process. According a drug offense every 25 seconds.384 In spite to victims who have participated in RJ of roughly equal rates of drug use by white initiatives, many have felt empowered by and Black people, Black people are almost the experience through taking a more active six times more likely to be incarcerated role in resolution of their case.393 Likewise, for drug-related offenses.385 Black people many people who have committed crimes are also almost four times more likely to have expressed remorse and a desire to be arrested for marijuana charges than change and break a cycle of incarceration their white counterparts.386 Half of those in and crime.394 federal prison are incarcerated for a drug offense, and two-thirds of those in prison for drug offenses are people of color.387 Disproportionate rates of arrest, “We knew we couldn’t make it illegal to conviction, and sentencing rates for drug be either against the war or Black, but by offenses have devastated Black and Brown communities across America.388 This getting the public to associate the hippies is in spite of the fact that research has with marijuana and Blacks with heroin, and demonstrated that imprisoning people for then criminalizing both heavily, we could drug offenses has had a negligible impact disrupt those communities. We could arrest on reducing drug use or misuse.389 To the their leaders, raid their homes, break up their contrary, incarceration results in higher rates of overdose and has had scant impact meetings, and vilify them night after night on public safety.390 After more than 50 on the evening news. Did we know we were years fighting the war on drugs, it is clear lying about the drugs? Of course we did.” that Americans cannot arrest our way out —John Ehrlichman, former domestic policy advisor to of this situation. We must change our President Richard Nixon focus to rehabilitation and harm-reduction strategies; investing in proven public health responses to drug use. Typically, incarcerated people are not Restorative justice policies offer an allowed to contact victims from their cases. alternative approach That is the case in South Carolina. VOD programs turn that philosophy on its head, The majority of states today have allowing victims to get answers about statutes supporting a form of restorative the crime that otherwise go unanswered justice (RJ) known as victim-offender through the traditional legal process. The dialogues (VOD). VOD programs are majority of feedback from both sides of designed to bring perpetrators of crime the process is overwhelmingly positive, face-to-face with the victims of their indicating that RJ policies show great actions in an attempt to repair the harm promise.395 In addition, VODs are embraced that has been done through crime; and globally, with more than 300 programs can occur at various points in the criminal in the United States and more than 900 legal process.391 VOD programs require in other countries. The use of VODs has individuals to take responsibility for their been endorsed by the American Bar actions, acknowledge the harmful impacts 396 Association. It is important to note that 53 VODs that are improperly implemented run justice for those who will choose never to the risk of causing additional trauma and participate in the criminal legal system,” failing both the victim and the incarcerated said Polavarapu.400 person. South Carolina should study VOD programs, and then embrace RJ initiatives South Carolina’s broken parole system along the entire spectrum of the justice A safe prison system can only be system. achieved in South Carolina by reducing But VODs are not the only available the prison population.401 Director Bryan restorative option. Aparna Polavarapu, Stirling has attempted for years to increase the executive director and founder of his workforce in the face of many obstacles. the South Carolina Restorative Justice He has repeatedly conceded that the task Initiative, as well as an associate professor of attracting enough employees to ensure at the University of South Carolina School a safe prison environment is not feasible, of Law, notes that multiple forms of RJ given the state’s financial constraints and options can be made available and should the difficulty of prison work. Therefore, be considered.397 In addition to VODs, RJ the answer lies in incentivizing positive processes can be implemented through behavior and program completion to other practices both within and outside prepare incarcerated people for the the legal system. For example, courts can potential of earlier release, as research divert responsible parties to programs indicates this is the most effective path that incorporate other types of alternative forward. Parole is an integral piece of this practices, such as restorative-justice puzzle. circles.398 RJ programs can and should also There is a broad consensus among be made available for those not involved criminal justice academics, experts, and in the criminal legal system, especially practitioners that the parole system in individuals who experience intimate- America is broken. Organizations including partner violence of sexual assault.399 the Robina Institute and Prison Policy 54 “RJ offers a real opportunity to provide Initiative have conducted research and based assessments about safety. Parole written extensively about the failure of board members most often take a myopic state parole boards to release enough view, focusing primarily on the seriousness individuals.402 South Carolina’s Parole of the original crime that landed individuals Board is no exception. This reluctance to in prison, and discounting efforts to address grant parole to incarcerated individuals— issues such as addiction, mental health, or even those who have demonstrated their familial dysfunction. rehabilitation through clean disciplinary South Carolina enacted substantive records; participated in educational, sentencing reform legislation in 2010, vocational and rehabilitation programs; or including measures that mandate mentored others—is well documented. that parole board members take into A 2010 PEW report underscored that consideration aspects such as an between 1980 and 2008 the South Carolina individual’s risk of recidivism and level Parole Board substantially cut the rate of participation in prison programs.408 In at which it released individuals who were spite of these requirements being codified eligible for parole.403 In 1980 the parole into law, the board continues to cite “the board granted parole for 63 percent of all seriousness of the original crime” as the applications.404 In 2000 the parole rate most common reason for denying parole. was reduced to 27 percent; and by 2008 Prioritizing the original crime ahead of all just 10 percent of the parole applications other factors contradicts the overwhelming were granted.405 That low parole-release body of research in the field, and results rate, combined with the large percentage of in individuals serving sentences that are individuals serving “no-parole” sentences, overly lengthy and costly to society. This effectively means that over time a much tendency to focus on the original conviction larger portion of the state prison population also deprives incarcerated individuals left prison without community supervision of hope, because the original crime is an and without connection to services or immutable fact. support designed to assist returning According to a recent former South citizens with re-entry into society.406 Carolina Parole Board member, there is Remarkably, in the midst of a global an absence of a good-faith, collaborative pandemic, the South Carolina Parole Board effort to utilize information SCDC collects granted parole at a lower rate in 2020 than on incarcerated people.409 Most often, SCDC in the previous year, even as thousands and SCDPPP fail to provide institutional of elderly and medically vulnerable records to the board, meaning members incarcerated people begged to be released have no way to discern whether or not to increase their likelihood of surviving the incarcerated people used their time behind pandemic.407 Research has demonstrated bars productively through, for example, that older and medically vulnerable prison completing a substance-abuse program.410 populations pose an exceedingly limited As a result, board members glean only threat to society. self-reported information by incarcerated South Carolina Parole Board members people through parole agents, along with are gubernatorial appointees. Interviews disciplinary records, criminal-history with former parole board members have records, and detailed descriptions of the revealed that many fear being punished crime for which an individual was serving with the loss of their lucrative positions for time. Individuals without an attorney are granting parole to an individual who might typically afforded precious little time, in commit another crime. As a result, board some cases less than a minute or two, to members are reluctant to grant parole, and make his or her case to the board. Victims, are incentivized to deviate from evidence- on the other hand, are given extensive time 55 in front of the Parole Board. Letters written system, which received the highest ranking on behalf of an incarcerated person and of all 50 states, according to a Prison Policy provided prior to the parole hearing are Initiative analysis.418 While the parole typically not read.411 system of Wyoming is not perfect, its parole These procedural deficiencies have grant rate as of 2015 was 65 percent.419 The real impacts on incarcerated people and state did a number of things right in laying their families. One particular category of the groundwork for an equitable and fair individuals, those serving life sentences, parole system, including mandating in- is rarely granted parole. South Carolina’s person hearings and allowing incarcerated 2010 reforms primarily helped those people access to the information the board convicted of nonviolent and low-level uses to determine whether to grant or offenses, such as possession of marijuana. deny parole.420 Unlike the South Carolina According to SCDC data, approximately one experience, the Wyoming Parole Board in 10 people in South Carolina prisons is does not require any incarcerated person serving a life sentence.412 convicted of a violent or sexual offense Within the “lifer” population, 6.5 to serve extra time in order to become percent were young when sentenced.413 eligible for parole.421 The Wyoming Parole According to Dr. Ashley Nellis, researcher Board follows research recommendations for the Sentencing Report, the scientific and in allowing the prison staff, those people legal communities have recognized that with the most day-to-day contact with the “juveniles are less mature intellectually, incarcerated population, to provide feedback and thus less culpable for their crimes at parole hearings.422 Perhaps the most than adults, but in South Carolina, 139 important distinction that sets Wyoming individuals are nonetheless serving life apart from many other parole systems, sentences for crimes committed as a including South Carolina’s, is that it does “juvenile, with little hope or chance of not use “seriousness of the original offense” release.”414 as one of possible reasons to deny parole.423 South Carolinians spend approximately These are relatively simple improvements, $20,000 annually per incarcerated but they have made a huge difference. person, meaning the costs for imprisoning one individual serving a life sentence Implications of the rise of the Victims’ approaches $1 million.415 Research also Rights Movement demonstrates that even those who commit serious crimes tend to "age out“ of crime, Experts have posited that one of the becoming far less likely to reoffend as factors leading to the dramatic decline in they approach middle age.416 The National parole rates in the U.S. was the emergence Research Council, representing the top of the Victims’ Rights Movement around criminologists in the country, concluded: 1966. One element of the Victims’ “Long sentences serve little public safety Rights Movement was born out of an purpose and are instead maintained unlikely alliance between feminism and only to enforce the retributive goals of conservatism, sparked by a revolt against corrections.417 The parole board's failure the U.S. Supreme Court’s expansion of 424 to provide a meaningful individualized protections for criminal defendants. roadmap for release of people with lengthy Law-and-order conservatives, bolstered sentences, along with not utilizing objective by California governor Ronald Reagan, standards to assess release decisions, criticized the Warren Court for its series carries a heavy price-tag, payable by all of decisions protecting the rights of 425 South Carolinians. defendants. The Supreme Court, the alliance argued, had forgotten to protect 56 Compare this with Wyoming’s parole the most important voice: that of the crime poverty-stricken neighborhood devoid of victim.426 recreation options and thriving schools? A In the early 1980s women’s rights mother struggling to care for her children advocates and conservatives found while working as a night manager at a gas common ground in their desire for stricter station, unable to afford the medication she sentencing and more aggressive prosecution needs to manage her serious mental illness? of rape and sexual-assault crimes.427 Their Society has developed a broader combined advocacy succeeded on several understanding of the kaleidoscope of ways fronts, primarily through the passage of of viewing victimhood. As Equal Justice the Victims’ Bill of Rights by the federal Initiative Director Bryan Stevenson so government and a majority of the states.428 eloquently posited: “Each of us is more An integral aspect of the Victims’ Bill of than the worst thing we’ve ever done.”436 Rights was the adoption of the “victim- In addition to recognizing the pain caused impact statement,” which provides an by some criminal behaviors, advocates opportunity for victims of crime to describe also point to the utter failure of leadership the emotional, physical, and financial that resulted in the suffering of entire impacts suffered as a result of a crime.429 communities having to endure dilapidated The Victims’ Bill of Rights also requires schools, crumbling infrastructure, and victims to be notified of and participate in dwindling employment opportunities. key court proceedings related to the crime, Organizations such as Healing Justice including parole hearings.430 emerged from an understanding that our For much of American history, victim- criminal justice system is flawed, and impact evidence was deemed inadmissible capable of egregious mistakes. Rather than in death-penalty cases, because justices pitting people against one another, Healing felt their inclusion would be irrelevant and Justice encourages dialogue for parties to inflammatory.431 In 1991 the U.S. Supreme gain deeper understanding of one another’s Court reversed itself, to the chagrin of perspectives.437 many legal scholars, and allowed victims to make presentations in death-penalty The need to increase fairness and cases. Victim-impact statements “appeal to equity in the parole process the hatred, the desire for undifferentiated vengeance, and even bigotry,” said DePaul One of the most damaging legacies law professor Susan Bandes.432 “Moreover, of the “tough on crime” era has been the in their insistence on evaluating the worth adoption of so-called “truth in sentencing” 438 of the victims, victim-impact statements policies. These measures eliminated offend the dignity of the victim as well.”433 the use of parole-release mechanisms Legal scholars rigorously oppose victim- altogether, and mandated that individuals impact statements, primarily because they serve the majority, or typically at least 85 439 have been shown to affect sentencing in percent, of their sentences. Individuals both capital and non-capital cases.434 There sentenced under this rubric are described as is even greater concern about the use of serving a “no-parole” sentence. Around the victim-impact statements in the parole same time in the 1980s and 1990s, many process.435 This is because victims rarely states adopted mandatory-minimum and possess information relevant to the parole three-strikes sentencing legislation, both decision. of which greatly enhanced punishments for What defines a victim today? A violent and repeat offenders. Mandatory- child growing up without the love of his minimum offenders were also precluded incarcerated father to tuck him in at from being released early through the parole process. night? A teen searching for belonging in a 57 In South Carolina today, approximately people would make the most important 64 percent of the prison population decisions in their lives, such as purchasing consists of individuals serving “no-parole” a home or hiring a key employee, without sentences.440 This policy fails to differentiate meeting face-to-face. Yet South Carolina between individuals who are determined often conducts parole hearings by video, to improve their behavior through depriving the parole candidate of the chance participation in prison programming, to make his or her case in person to the abstaining from antisocial behaviors, or individuals responsible for making the working at prison employment initiatives, determination about their freedom. Since and those individuals choosing to continue the emergence of COVID-19, all hearings bad behavior. It deprives incarcerated have been conducted from afar, an imperfect people of the hope that making positive solution even as a short-term resolution to changes in their lives will result in the the challenges posed by a pandemic. Every chance of an earlier release. This is in spite parole-eligible candidate should have the of the fact that a great deal of research right to an in-person hearing when such life- has confirmed the notion that behavioral altering consequences are at stake. incentives in prison lead to vastly safer The parole process in South Carolina environments both inside prison and upon also deprives incarcerated individuals of re-entry.441 the right to contest inaccurate or biased information that can be used by the Parole Parole best practices Board to deny release.448 South Carolina’s parole process provides prosecutors, law- In many states, including South enforcement officers, and victims the Carolina, most parole board members are opportunity to testify in person at parole appointed with little to no background in hearings, or to submit testimony for review 442 parole or criminal justice issues. For by the board. However, currently, parole instance, in 2021 the South Carolina Parole candidates are not allowed to review all Board included a pharmaceutical-company of the testimony or documents provided to businessman and a doctor of optometry. the board. As with any human endeavor, Experts strongly recommend establishing this testimony is subject to error and a professional parole board, comprised of bias. Whether the error is an inaccurate members with expertise in the field and conflation of issues, the blurring of fulsome annual training requirements on memories over time, or the result of a simple 443 parole best practices. Members should be mistake, the potential damage cannot be prepared to make informed decisions based corrected under South Carolina’s current upon evidence of rehabilitation. parole system. Parole candidates should South Carolina legislators need to have their due-process rights protected, first expand access to early release for all by providing the individuals with access incarcerated people, providing guidelines to all testimony and documents submitted to parole boards about how to make and relied upon by the board, and second 444 decisions equitably and fairly. SCDC by granting them the right to challenge and and PPP should adopt standardized clarify inaccurate information.449 criteria that reward people in prison for The current parole process in South completing prison programs, and remaining Carolina is also heavily tilted in favor of 445 disciplinary-free. Such standards have keeping people in prison. At sentencing, been shown to improve prison security and a judge determines whether or not an 446 reduce recidivism. individual should be given a parolable Experts agree that parole hearings sentence. Ideally, a judge has made that should be conducted in person.447 Few 58 determination with consideration given to all of the facts and circumstances and employment, as well as with preparing available. These include the testimony of for the hearing itself. the prosecutor, law enforcement, victims and their loved ones, expert assessments by mental-health or addiction counselors, defense attorney, defendant, and “When parole systems reject people for defendant’s loved ones. arbitrary and capricious reasons, they Therefore if an individual has been given a parolable sentence, the focus at unintentionally, but to devastating effect, tell a parole hearing should be on whether incarcerated people that their transformation or not an individual has made progress does not matter. And the public, who is paying with rehabilitation. In spite of this, South for the criminal justice system, deserves to Carolina’s parole structure and norms know how it works and how well it works.” result in the board consistently giving far greater weight to factors which have —Jorge Renaud, Prison Policy Initiative analyst already been reviewed, and giving short shrift to those factors that reveal a record of reform. Experts argue that testimony One of the most oft-heard critiques of from prosecutors, police, and victims should parole systems by both parole applicants be excluded in parole hearings, with the and the general public is that they operate exception of the rare instances of improper in secret, making decisions that are communication or harassment of a victim by inconsistent and confusing.454 “When parole a parole-eligible individual.450 Instead, the systems reject people for arbitrary and parole board should consider the feedback capricious reasons, they unintentionally, of individuals with access to incarcerated but to devastating effect, tell incarcerated people on a regular basis, such as addiction people that their transformation does not counselors, correctional staff, or prison matter. And the public, who is paying volunteers, as they can attest to whether an for the criminal justice system, deserves individual has truly changed behaviors over to know how it works and how well it a period of time.451 works.”455 The South Carolina Parole Board According to respected organizations has often been criticized by all parties such as the Prison Policy Initiative, state involved in the parole process for its lack of departments of correction should begin consistency and transparency in decision- assisting incarcerated men and women making. Victims report frustration with with individualized case plans for re- the process, as they struggle to understand entry on day one of incarceration.452 Case the opaque decision-making process and managers should meet with their clients are often kept waiting for many hours to as early as possible to assess potential testify. Family and other supporters of problem areas, such as the need for parole candidates are also kept in the dark, addiction counseling, GED preparation, or and often are denied the chance to speak mental-health services.453 As these issues for more than a few minutes, if at all, after are identified, the case manager and client driving long distances to testify on behalf of can collaborate to create a roadmap of a loved one. programs and goals that will enhance the South Carolina enacted parole guidelines client’s chances of being granted parole and as part of the landmark sentencing-reform improve their likelihood of success once legislation in 2010, ostensibly to make the released. As a parole hearing date grows decision-making process more objective.456 near, case managers should also assist in It is unclear whether board members place connecting clients with potential housing 59 much significance on other important factors, Works Foundation, “many states and such as participation in programs, work localities need to reevaluate what offenses experience, and other objective assessments are actually worthy of sending a probationer of readiness for release, in addition to the or parolee to jail or prison.”461 nature of the original offense. As a result, A report by the Council of State the South Carolina Parole Board has Governments indicated technical violations established a clear pattern of denying release comprise one in four admissions to state to a large percentage of individuals who prison, at a price tag of $2.8 billion in have completed all required programming, incarceration costs every year.462 In South have no major disciplinary infractions, and Carolina, as of 2018 people who violated have housing and employment arranged some aspect of community supervision for release. These parole applicants should amounted to 17 percent of SCDC’s prison be provided with a credible explanation for population.463 On any given day, 3,173 people denial based on the list of objective factors, or are incarcerated in South Carolina prisons they should be granted an appeal hearing.457 as a result of a supervision violation, costing In order to rebuild trust and faith in South Carolina $74 million annually.464 the parole system in South Carolina, the FreedomWorks Foundation called the legislature should bolster the oversight high rate of revocations of supervision in role of the South Carolina Department of the U.S. for technical violations “a system Parole, Pardons and Probation (PPP) over that is not working.”465 Experts have the Parole Board. PPP should be required to shown that revoking individuals for non- draft detailed annual reports covering parole- serious violations of probation or parole is release rates and the rate of deviations from both ineffective and very costly. Instead, recommended guidelines and assessments.458 finite state resources should be targeted at Parole boards should be required to explain individuals during the periods when they are their reasons for consistently denying release at the highest risk of re-offending. A study when guidelines recommend release.459 released in early 2021 shows that South Carolina could save more than $64 million Revocation of parole and probation for dollars and reduce its prison population technical violations by 1,302 people over five years by ending the policy of revoking parole and probation As policymakers look for safe and sentences for technical violations.466 effective ways to reduce their prison The seemingly egregious treatment populations, many states have turned of rapper Meek Mill (Robert Rihmeek towards modernizing probation and parole Williams) while on community supervision in policies that needlessly result in the return Pennsylvania has made him a cause célèbre, of many thousands of people to prison every and elevated the importance of parole-and- year. Approximately 60,000 parolees were probation reform in the minds of many. returned to state prisons in 2016, according In 2008 Meek Mill was convicted of illegal to the Prison Policy Organization, not possession of a firearm, a misdemeanor because they posed a danger to society, but offense in Philadelphia for which the typical because they committed minor infractions sanction is a fine and house arrest.467 Instead, 460 referred to as “technical violations.” the judge sent Mill to prison for two years, Examples of technical violations include followed by eight years of probation.468 In the missing a meeting with a parole officer due ensuing eight years, Mill gained star power to a lack of transportation or unwittingly and recognition in the music industry and socializing with another person on was positioned to perform at concerts all over parole. According to Josh Withrow of the the country.469 That was until his probation conservative leaning organization Freedom 60 officer deemed it a violation to leave the state, even for employment purposes, and rates of violent and property crimes fell by referred his case back to the judge who sent 15 percent.478 Given this record, it is clear him back to prison for several months.470 that South Carolina should end the policy of Upon release, he was subsequently punished returning people to prison solely for technical for “cracking a wheelie” on his motorcycle, violations, saving lives and money for the writing critical comments about his parole state. office on social media, and other perceived infractions, none of which posed any danger Presumptive parole to the public.471 The Robina Institute, based at the To address these concerns, parole experts University of Minnesota, has conducted recommend the adoption of a “presumptive 479 extensive research into parole-and- parole system.” Presumptive parole probation practices.472 According to its allows for the automatic grant of parole recommendations, states should front-load to incarcerated individuals upon their limited resources for community supervision earliest parole eligibility if they meet pre-set on the time period immediately following objective conditions and there are no credible 480 release from prison.473 Research indicates reasons to deny them parole. This process this is the most vulnerable period of time for shifts the burden of proof to the parole board people leaving prison, with many needing to provide valid reasons for why a parole- 481 assistance with housing, employment, eligible individual should not be released. and beyond.474 Focusing resources on this This system requires state departments community of individuals will improve the of corrections to offer a robust selection of likelihood of success for parolees. The Robina prison programming, including educational, Institute and the Columbia University rehabilitation, and vocational opportunities, Justice Lab also recommend restricting the and ties the successful completion of these number of conditions placed on individuals programs to the prospect of an earlier release 482 during community supervision, and ensuring from prison. that each condition is individualized Presumptive-parole systems also aim and necessary for addressing a targeted to minimize the subjective factors inherent purpose.475 Finally, Robina urges states such in considering an incarcerated person’s as South Carolina to reduce the amount of readiness for parole, by eliminating time individuals spend on parole altogether the consideration of factors such as through the use of good-time credits or the seriousness of the original crime or 483 simply decreasing sentence times.476 comments from victims or prosecutors. Many states have already implemented These factors were already considered by the successful reforms, reducing or eliminating sentencing judge at the time of conviction, the possibility that technical violations will and were used to craft a sentence the judge result in a return to prison. felt matched the facts and circumstances of South Carolina has demonstrated the the crime. Giving these same parties another efficacy of reducing the number of individuals “bite at the apple” to express their opinions with technical violations who are returned to at parole hearings unfairly shifts the focus prison. As part of the reform package passed away from its proper place: evaluating the in 2010, S.B. 1154, South Carolina began individual’s current risk to public safety, using administrative remedies for minor rehabilitative progress, and readiness for re- violations of parole and probation in lieu of entry into society. revocation.477 As a result, the state saved Presumptive parole has been enacted in an estimated $39 million between 2011 and many jurisdictions to achieve cost savings, 2018 by revoking 1,633 fewer people from make release dates more certain, and, most importantly, to reduce prison populations supervision. At the same time, both the 61 for the safety of prison staff, incarcerated The Model Penal Code recommends such populations, and society at large. According a process to automatically review lengthy to the Prison Policy Initiative, thirteen states sentences in light of changes in people and have instituted some type of presumptive societies.488 The code suggests that a review parole.484 be conducted by a panel of retired judges Effective presumptive-parole systems after an individual has served 10 or 15 years, include elements such as these incorporated in order to weigh the possibility of early by Louisiana, Mississippi, New Jersey, release.489 State departments of corrections Michigan and Hawaii:485 should be required to assist incarcerated individuals in preparing for the review, and • Give clear instructions to incarcerated inform them of their review dates.490 people on what they need to do in order to be released on a specific date. • Give clear instructions to incarcerated people, if they are denied release, on “There are criminals who should be what they need to do to be released at the imprisoned, but using a one-size-fits-all next hearing. approach benefits no one in the long run. We • Require re-hearings in no more than one should trust our judicial system to make the or two years. appropriate determination for each offender.“ • Provide case managers to help —U.S Representative James Johnson, Delaware incarcerated people develop a plan to be successful at parole decision time. • Provide transparency to incarcerated people by sharing as much information Delaware passed a justice-reform as possible about how the parole board package in 2016 that included a second- reached its decision. look provision, allowing individuals convicted under three-strikes statutes to • Provide transparency and accountability to the legislative branch by requiring apply for a reduction of their sentences. annual reports on the numbers of, and Rep. James Johnson, a key sponsor of the reasons for, denials of parole, especially bill, was prompted to push for criminal denials of individuals whose release justice reforms after observing Delaware’s 491 has been recommended by guidelines overflowing prisons. Representative supported by validated risk assessments. Johnson understood that punitive sentencing measures cut into other state policy Second Look sentencing priorities, and these laws did not make Delaware communities safer.492 “There The majority of likely voters are are criminals who should be imprisoned,” supportive of policies that allow for periodic he has said, “but using a one-size-fits-all 486 reviews of old sentences. Second-look approach benefits no one in the long run. sentencing allows incarcerated individuals We should trust our judicial system to serving lengthy sentences to petition the make the appropriate determination for court for a sentencing review after service each offender.”493 Maryland, Washington, 487 of a given period of time. This procedure Pennsylvania, California, and New York provides an avenue for judges to reward have also created re-sentencing units to re- individuals with earlier release when they examine sentences that have been imposed to have maintained disciplinary-free records, determine whether some should be reduced participated in prison programming, or due to important factors such as age, medical 62 served in leadership or mentorship roles. condition, evidence of rehabilitation, or simple disproportionality.494 According to the Prison Policy Initiative, Maryland’s re-sentencing unit was many states have adopted overly restrictive spearheaded by State’s Attorney Marilyn policies for granting good time.502 Research Mosby, out of a desire to redress past shows that these credits should be granted mistakes that filled state prisons with to all incarcerated individuals, regardless African Americans in far greater proportion of conviction. Depriving some individuals than their percentage of the state of the potential for earlier release denies population.495 Arguing that prosecutors them hope, and creates perverse incentives played an outsized role in creating the for negative behaviors. There is enormous problem of mass incarceration, Mosby said untapped potential for prison administrators prosecutors had a responsibility to rectify to influence behavior in positive ways that wrong.496 To accomplish that goal, through the incentivizing of program and Mosby hired former deputy public defender work participation, and through remaining Becky Feldman, the person responsible disciplinary free. for overseeing the release of 200 elderly In order to encourage participation in life- incarcerated people after Maryland’s altering programs such as drug-treatment Supreme Court decided the Unger case.497 or GED programs, states must allocate Feldman directed Maryland’s DOC to sufficient funds for all programs in which identify incarcerated individuals with completion is rewarded with earned-time underlying medical conditions or advanced credits. If incarcerated people must wait for age, making them the most vulnerable to the months or years to enroll in programs that coronavirus, and who pose little threat to address addiction or improve employment public safety.498 Many crime survivors have prospects, this dis-incentivizes participation. expressed support for measures such as these Research on sentencing best practices that invest more in rehabilitation services reveals that the most effective method for and less in punishment.499 reducing recidivism is to use limited state resources to target high-risk individuals for Earned/time/good-time credits intensive levels of treatment and services.503 Many states today, including South Carolina, Experts recommend the expanded use do the opposite: restricting programs to those of so-called “earned-time” credit programs. prisoners who are close to their release date, Commonly referred to as “good time,” a practice that research has demonstrated is “meritorious credit,” or “earned time,” these often counterproductive. policies shorten the time incarcerated people It is a sad commentary on society must serve before becoming parole-eligible that our prisons have largely become de- or completing their sentences. Good time is facto institutions to house the mentally doled out in units of time. ill. Approximately two million people These programs are effective because with mental illness are booked into jails they incentivize individuals to participate each year, and many go on to serve time in meaningful programs, rewarding in prison.504 Prisons also house a large positive behavior and instilling a sense of number of people suffering from substance hope for earlier release. Research shows abuse and addiction. According to a report that these programs improve behavior by the National Center on Addiction and inside prisons, reduce prison populations, Substance Abuse, 65 percent of the nation’s and improve public safety through lower incarcerated population meets the criteria 500 recidivism rates. Lawmakers in Nevada for substance abuse and addiction, yet only are considering legislation to expand access approximately 11 percent receive treatment to “good-time” credits to address its spiraling for their addictions.505 Given these appalling prison population.501 facts, states should ensure that individuals 63 with mental-health or addiction issues that Retroactive application of sentence preclude them from participating in prison reduction reforms programs should still be rewarded with earned-time credits. Sentences are determined based on SCDC officials should not react to minor the laws in place at the time an individual infractions by revoking credits. Prison Policy is convicted. For a variety of complicated Initiative’s Jorge Renaud argues: “Prisons political reasons, states that have enacted should refrain from revoking accrued sentencing-reform measures in recent good time except for the most serious of decades have most often applied these offenses, and after five years, any good time reforms solely to future convictions. This earned should be vested and immune from choice to not apply reforms retroactively forfeiture.”506 Experts also recommend that if to those already in prison has created individuals do forfeit good-time credits, they confusion, with individuals convicted of the should be given the opportunity to restore same crime receiving drastically different those credits if their behavior or actions sentences based solely on the timing of their improve over time.507 The state of Alabama convictions. has embraced this concept. The commissioner Sentencing statutes should be of that state’s Department of Corrections has amended along with society’s ever-evolving the capacity to restore good-time credits upon understanding of justice, and those already the warden’s recommendation.508 in prison should benefit alongside individuals 512 Good-time systems vary from state to sentenced after the enactment of reforms. state, with some choosing to grant a large This is not just an issue of fairness, but also amount of time off for “good behavior,” and one of efficiency. others, such as Montana, choosing not to The negative ramifications of not making take part in the system at all.509 According to reforms retroactive have been repeatedly the Prison Policy Initiative: 510 illustrated at the state and federal level. For example, in the aftermath of Congressional • Alabama can award up to 75 days credit passage of the Anti-Drug Abuse Act of 1986, for every 30 days served; it became clear that the act resulted in wide disparities between the treatment of Nebraska can award six months credit • individuals convicted of possession of crack per year of sentence, and can grant an cocaine (more often than not people of color) additional three days per month for clean vs. powder cocaine (usually white people), disciplinary records; and resulting in a pattern of much harsher • Oklahoma can award up to 60 days sentencing for people of color.513 Congress credita month, plus additional credits amended the law in 2010, but did not make for various kinds of positive disciplinary its changes retroactive.514 This left those who records, and a number of one-time grants were sentenced under the former sentencing for various educational or vocational regime to continue serving sentences accomplishments. that were considered unjust in the eyes of In South Carolina, individuals that are Congress and society at large. parole-eligible can earn up to 20 days of In spite of the powerful equity and “good time” per month, while those with “no- efficiency arguments in favor of making parole” sentences can earn just three days sentencing reforms retroactive, the majority per month. Individuals given “mandatory of states have failed to do so. In some minimum” sentences are not eligible for cases, the courts have stepped in to require “good time” credits at all.511 states to change their laws or implement systems for incarcerated people to apply for resentencing.515 For instance: 64 • The U.S. Supreme Court reversed an Governor Henry McMaster has resisted earlier Florida court decision, declaring pressure to commute incarcerated people in in 1963 that poor people who could not the COVID-19 period. He would be wise to afford an attorney must be provided reconsider that decision, in order to protect with one free of charge for most criminal frail aging and medically vulnerable people cases.516 The court also made this ruling within SCDC. retroactive. • The U.S. Supreme Court has made the Compassionate release policies effects of other cases retroactive as well, In December of 2018 Congress passed including barring executions for offenses and President Donald Trump signed into committed before age 18 and barring law the First Step Act of 2018.523 The mandatory life-without-parole sentences legislation broadened the opportunities 517 for offenses committed before age 18. for elderly and critically ill incarcerated • State courts have occasionally made individuals to be released from federal changes retroactive, such as the 2012 prison.524 Once the COVID-19 pandemic case Unger v. Maryland, which held swept across America, making our federal that jury instructions in capital murder and state prisons and jails dangerous convictions prior to 1981 were flawed. hotspots, Attorney General William Barr The court ordered new trials for the publicly directed the Federal Bureau of approximately 130 individuals still Prisons (BOP) to identify incarcerated incarcerated with life sentences.518 people who could be safely released to home confinement and begin releasing those who 525 Commutation posed a minimal threat to the public. At the same time, however, the BOP altered Another method in the state toolbox the procedure for determining the risk of that should be utilized more often to reduce danger, making it harder for incarcerated prison populations safely is commutation, people to be released.526 As a result, of the the process available to the state executive many thousands of compassionate release branch of modifying a sentence in order to applications that were submitted in 2020, 98 hasten eligibility for release, or granting percent have been denied.527 release outright.519 Commutations have States have always been the nation’s rarely been used in the past, but, more laboratories; experimenting with various recently, they have been embraced by policies in search of the best approach. As experts as a method to address overly harsh the pandemic took hold in state prisons and sentencing policies of the past.520 Governors spilled over into neighboring communities, and parole boards can modify sentences state leaders began looking for methods to to make individuals eligible for release release individuals who were particularly immediately, or at least at an earlier time. medically vulnerable should they catch the In April 2021 Oklahoma Governor Kevin virus, and who were determined to be at low Stitt commuted the prison sentences of risk to endanger public safety. They found more than 450 people in order to reduce its that the majority of states have some form prison overcrowding and improve the safety of special parole process, usually labeled of those remaining in prison during the as medical or geriatric parole rather than coronavirus pandemic.521 Governor Jay Inslee the term compassionate parole used at the of Washington state commuted the sentences federal level. of 950 incarcerated people, primarily to But lawmakers and advocates also protect them from suffering a death sentence have found that these policies are in reality due to the virus.522 To date, South Carolina a labyrinth of cumbersome and lengthy 65 requirements that prevent the vast majority hearings as of the report.535 There is no of people from completing their applications publicly available data on special parole prior to passing away.528 Most states have releases since 2016. passed statutes that require medical Reforming these compassionate-release professionals to certify that the applicant statutes is good policy notwithstanding the has a very short period of time left to live, current global pandemic, as the human or is so incapacitated as to have lost the and financial costs of decades of mass capacity to understand the reason for his or incarceration are clear. The emergence her incarceration.529 Not only is it difficult of COVID-19 in prisons only makes that for people in prison to get access to doctors objective more imperative. willing to perform this analysis, but even Baltimore’s State’s Attorney Marilyn those who manage to overcome this hurdle Mosby initiated a review process in Maryland can be thwarted by ultimate decision makers prisons prioritizing certain categories of the who have the power to overrule the opinions incarcerated population after COVID-19 of medical experts. 530 In addition, as of 2018, threatened to endanger the lives of only three states were required to release to thousands of state prisoners.536 The system the public data on the release rate through focused on men and women age 60 or older these procedures.531 who had served at least 25 years in prison South Carolina law provides a on a life sentence; or had served 25 years or compassionate release process for more for a crime committed before the age of incarcerated individuals who are deemed 18; and have a documented medical condition eligible because of terminal illness, advanced placing them at higher risk of death if they age, or permanent incapacitation. However, contracted COVID-19.537 each of these categories is exceedingly New Jersey Governor Phil Murphy, on narrow, requiring licensed physicians to the other hand, adopted a different kind of characterize an applicant as, for example, compassionate release to reduce sentences having “an incurable condition likely to for more than 2,000 people in the prison cause death within two years,” or “being system with the highest coronavirus death age 70 or older and suffering from a chronic rate in the nation.538 Murphy reasoned that infirmity” that has progressed and is reducing his state’s prison population would incapacitating, such that he or she does protect public safety in addition to saving not pose a threat to society.532 According to the lives of many in prison.539 The releases the statute, South Carolina’s process must would continue on a rolling basis during be initiated by the director of prisons, and the pandemic, including some adults and reviewed by the full parole board. Individuals juveniles with less than a year left on certain serving non-parolable sentences, comprising sentences.540 approximately 64 percent of SCDC’s prison Other states took different approaches population, are not eligible for any of these to addressing the unique dangers posed early release options.533 by COVID-19 inside prisons. Virginia According to a report submitted by approved a budget amendment authorizing SCDC to the Sentencing Reform Oversight its department of corrections to release Committee in 2016, SCDC referred a total incarcerated people with less than one year of 28 individuals for terminally ill, geriatric, left to serve on their sentence.541 Colorado’s or permanently disabled parole to the Parole Governor Jared Polis issued an executive Board for early release between 2011 and order relaxing the state’s prison-release 2016.534 Of that paltry number of referrals, policy during the pandemic.542 Illinois leaders just twelve were granted conditional parole, gave their prison director the power to nine were rejected, two died prior to being expand the use of medical furloughs.543 66 adjudicated, and five were still pending EVIDENCE-BASED RECOMMENDATIONS FOR SCDC

1. Vastly increase all types of prison • Preparation for release from prison programming, including educational, must start at the beginning of a vocational, and rehabilitation sentence and continue until release.545 programs. • Implement validated risk/needs • Ensure that every incarcerated person assessment tools early into a sentence has access to programs, regardless of to determine which programs are the time remaining to be served. necessary to reduce the chances of recidivism.546 2. Create case plans for each person • Target limited resources at those upon entry into prison, identifying assessed to be at the highest risk of goals for completing programs and recidivating and provide access to 544 preparing for re-entry into society. 547 programs to address these issues. 67 • Share records on program completion, 6. COVID-19 recommendations: risk scores, and other factors with the Safely reduce the prison population. Parole Board. Follow the example of at least 12 other states in prioritizing the inoculation of incarcerated people against COVID-19.548 3. Pay every incarcerated person for the work he or she performs. 7. Streamline the grievance process Compensation should be equivalent to and regularly review problems minimum wage outside prison. identified by incarcerated people prior to them ending up in the court system. 4. In the short term, encourage This would save precious state funds individuals to volunteer their time and • lost every year through successful resources in state prisons. *This should medical malpractice, wrongful death, not minimize in any way the legal duty and other litigation against SCDC. owed by the state to provide prison From Fiscal Years 2015 to 2019, SCDC programming. reported that 200 prison medical-related Eliminate the many obstacles to lawsuits cost the state roughly $10 volunteering inside prisons. million in payments to victims of prison • Allow formerly incarcerated individuals malpractice.549 to be screened in the same manner as other volunteers to enter prisons and implement peer-to-peer instruction. 8. Require SCDC to open the “black box” of prison life to the public • Replicate Allendale Correctional through expanded access to the media Institution’s exemplary volunteer and advocates. programs throughout SCDC, including Mandate that SCDC open its doors programs training incarcerated people • to journalists and advocates by to teach and mentor others in prison. allowing them to make spontaneous, • Provide financial and logistical support unannounced visits to prisons to observe for programs initiated by volunteers. conditions firsthand and interview • Establish regular communications incarcerated people and staff directly. between prison management and volunteers to brainstorm about methods 9. Create a fully funded ombudsman to improve processes and programs. position to monitor and address Allendale’s Character Restoration problems in SCDC, primarily focusing Initiative (CRI) non-profit volunteer on issues with the provision of medical board can serve as a template for others and mental-health services. to replicate. • States including New Jersey and • Dramatically streamline the process for Washington have independent approving prison programs corrections ombudsmen, and others including Illinois have filed legislation to create an ombudsman position.550 5. Provide consistent access to visitation. • This position must be fully independent • Prioritize in-person visitation at all from SCDC. times, and broaden access beyond weekends. • Supplement with electronic visitation to ensure visitation during the pandemic 68 and other potential disruptions. EVIDENCE-BASED REFORM RECOMMENDATIONS FOR SOUTH CAROLINA

1. Eliminate the federal-funding • Invest resources in proven violence- stream that incentivizes the need to reduction and recidivism-reducing build and fill additional prisons. programs. • President Joe Biden has promised to implement policies that will roll 3. End Juvenile Life Without Parole back the damaging sentencing laws (JLWOP). he supported and voted for in the • Join the list of 30 states, plus the past, pledging to allocate $20 billion District of Columbia, that have already in federal funds towards states that banned JLWOP, or have no people adopt evidence-based programs aimed serving a JLWOP sentence. at diverting people from incarceration and preventing crime.551 States will be required to eliminate mandatory 4. End the war on drugs, starting minimum sentencing, and adopt with legalizing marijuana for personal programs awarding earned-time credits use by adults. for those currently incarcerated in order • Virginia, Arizona, New Jersey, to get access to federal funds.552 Montana, South Dakota, and other states approved the legalization of • Cease supporting other policies that marijuana in the 2020 elections, underpin America’s over-incarceration while Mississippi legalized medical problem. marijuana.553 • Stop using for-profit vendors in prisons. • Oregon decriminalized possession of • Eliminate mandatory minimum most drugs, including cocaine, heroin, sentencing, and adopt programs to and methamphetamines.554 award additional earned-time credits for those currently incarcerated. 5. Eliminate laws that indiscriminately punish people with 2. Greatly expand release lengthy sentences and restore judicial mechanisms for all incarcerated discretion in sentencing. people, including those convicted of • End mandatory-minimum sentencing, violent offenses. retroactively as well as moving forward. • Use these measures to safely reduce the • Cease three-strikes sentencing, prison population. retroactively as well as moving forward. 69 • Eliminate no-parole and truth-in- 8. End the policy of revoking parole sentencing policies, retroactively as well and probation for technical violations. as moving forward. • Focus community supervision resources on the period immediately following 562 6. Embrace restorative-justice release from prison. policies across the entire spectrum of • Restrict the number of conditions the legal justice system. placed on individuals during community • Study existing Victim-Offender- supervision, and ensure each condition Dialogue programs along with other serves a valid purpose.563 Restorative Justice opportunities to • Reduce the time individuals must spend develop effective policies in South on parole or probation through the Carolina. use of good-time credits or by simply decreasing sentence times.564 7. Reform the state’s broken parole system through implementing the 9. Enact presumptive parole, following measures. allowing for the automatic grant of • Establish a professional parole board parole to incarcerated individuals comprised of members with expertise in the upon their earliest parole eligibility if they meet preset objective conditions 555 on best practices. and there are no credible reasons to field and requirements for annual training • deny them parole.565 • Require SCDC to offer a robust standardizedRequire that release criteria. decisions556 be based selection of prison programming, on evidence of rehabilitation using including educational, rehabilitation, • 557 and vocational opportunities, tying the • Conduct hearings in person. successful completion of these programs to the prospect of an earlier release from Ensure parole candidates have access to prison. all materials and testimony submitted for use in the decision-making process,558 • Minimize the subjective factors inherent and guarantee their right to challenge in considering an incarcerated person’s • inaccurate or misleading testimony. readiness for parole by eliminating the consideration of factors such as the Shift the focus away from the “seriousness seriousness of the original crime or of original crime” which was already comments from victims or prosecutors.566 • factored into crafting the original sentence. Require the parole board to identify the Require SCDC staff to work with • things a parole-eligible person must incarcerated people at the beginning of complete in order to be granted parole.567 a sentence by creating case plans and If this list is completed, the burden • preparation goals for release. shifts to the parole board to show there Instill greater559 transparency and openness is an objective reason to deny parole. into the parole process and decision- Mandate that the parole board provide a • making. reason for denial of parole from a list of 10. Implement second-look objective factors.560 sentencing to review lengthy sentences • after an established period of time to weigh the possibility for early Require PPP to publish annual reports on release.568 70 factors.parole decisions,561 providing justification for deviations from objective decision-making • Washington, D.C. has adopted a • Limit the ability of prison officials second-look sentencing law, and other to overrule on medical grounds a jurisdictions such as Florida, Maryland, recommendation of release by medical New York, and West Virginia are professionals. considering passage of some type of 569 similar legislation. 16. Additional Compassionate Release Reforms:576 11. Expand the number of earned- • time/good-time credits available and ensure that all incarcerated people are conditions.Guarantee compassionate release for those 570 with terminal illnesses and serious medical eligible, regardless of conviction. • • Ensure all incarcerated people have access to prison programs and work Establish consistent definitions for medical opportunities to accrue good-time/work • qualifications to compassionate release. credits towards release. compassionate release. have shownReduce peoplethe age inthresh prisonold agefor eligibility faster • Protect vulnerable populations, such as than their counterpartsStudies in the public. people with mental illness or addiction, from being denied earned time credits. 571 Lawmakers looking to expand their 12. Make sentencing reforms compassionate-release policies should retroactive in nature.572 consider this evidence when defining the • geriatric population. reentry. This means helping them secure 13. Expand the use of properPrepare health those whocare arein the released community for and 573 commutations. .

14. Reform geriatric and medical- • find stable housing release policies to allow far more Collect data on the number of seriously ill and aging incarcerated compassionate releases and publicly people the opportunity to be relief. This could help increase release rationale for denying or approving released.574 accountability and expose inequity in 15. Modernize medical and geriatric • release decision-making. policies.575 Since the First • Make compassionate release available StepCreate Act a mechanism for seeking release via to all incarcerated people, irrespective reliefthe courts. passage of the of the offenses for which they are , people in federal prison can seek incarcerated. from the court if prison officials take too long to respond to requests for relief. Streamline all compassionate-release reforms. • South Carolina should consider similar processes and set reachable deadlines so that petitioners don’t die due to bureaucratic bottlenecks before they are released.

71 Endnotes 23 Id. 24 Id. 1 Sarah Blatt-Herold, Settlement in 11-Year Lawsuit Promises Relief from Abuse for 25 Nicole Lewis & Beatrix Lockwood, The Hid- Mentally Ill in South Carolina’s Prisons, den Cost of Incarceration, The Marshall Solitary Watch (Jun. 10, 2016), https:// Project (Dec. 17, 2019), https://www.the- www.solitarywatch.org https://solitary- marshallproject.org/2019/12/17/the-hidden- watch.org/2016/06/10/settlement-in- cost-of-incarceration. 11-year-lawsuit-promises-relief-from-abuse- 26 Peter Wagner and Wanda Bertram, “What for-mentally-ill-in-south-carolinas-prisons/. percent of the U.S. is incarcerated?” (And 2 Id. other ways to measure mass incarcera- tion), Prison Policy Initiative (Jan. 16, 3 Id. 2020), https://www.prisonpolicy.org/ 4 Emily Bohatch, SC Inmate’s Baby Died blog/2020/01/16/percent-incarcerated/. in Toilet: Lawsuits Allege Rampant Medi- 27 Prison Spending in 2015, Vera Inst. of cal Neglect in Prisons, The State (Apr. 11, Just., https://vera.org/publications/price-of- 2019), https://www.thestate.com/news/ prisons-2015-state-spending-trends/price- special-reports/article222995365.html. of-prisons-2015-state-spending-trends/ 5 Id. price-of-prisons-2015-state-spending- 6 Id. trends-prison-spending/ (last visited Feb. 14. 2021). 7 Id. 28 Timothy Hughes & Doris James Wilson, 8 Id. Reentry Trends in the U.S., Bureau of Just. 9 Id. Stat., https://www.bjs.gov/content/reentry/ 10 Id. reentry.cfm (last visited Feb. 14, 2021). 11 Id. 29 Collateral Consequences of Conviction Proj- ect, ABA, https://aemdev.americanbar.org/ 12 Telephone Interview with John Doe, In- groups/criminal_justice/niccc/ (last visited mate, Lee Correctional Institution (Jan. 1, Feb. 14, 2021). 2021) (real name withheld for privacy). 30 Dan Clark, How Many U.S. Adults Have 13 Id. a Criminal Record? Depends on How You 14 Id. Define It, Politico (Aug. 18, 2017), https:// 15 Id. www.politifact.com/factchecks/2017/aug18/ andrew-cuomo/yes-one-three-us-adults- 16 Id. have-criminal-record/. 17 Id. 31 A Brief History of the Drug War, Drug Pol’y 18 Id. Alliance, https://drugpolicy.org/issues/ 19 Id. brief-history-drug-war (last visited Feb. 14, 20 Id. 2021). 21 Id. 32 Id. 22 Teresa Wiltz, Having a Parent Behind Bars 33 Id. Costs Children, State, The Pew Chari- 34 Id. table Trusts (May 24, 2016), https://www. 35 Id. pewtrusts.org/en/research-and-analysis/ 36 Jesselyn McCurdy, The 1980s Called. They blogs/stateline/2016/05/24/having-a-parent- Want Their Mandatory Minimums Back, behind-bars-costs-children-states. 72 ACLU (Sept. 18, 2013, 2:27 PM), https:// www.aclu.org/blog/smart-justice/mass- 52 Why Prison Education? Prison Studies incarceration/1980s-called-they-want-their- Project, https://prisonstudiesproject.org/ mandatory-minimums-back. why-prison-education-programs/ (last vis- 37 Id. ited Feb. 14, 2021). 38 Lauren-Brooke Eisen, The Complex His- 53 S.C. Dep’t of Corr., Sentence Length Dis- tory of the Controversial 1994 Crime Bill, tribution of SCDC Total Inmate Population as of June 30, 2020 (Oct. 1, 2020), http:// Brennan Ctr. for Just. (Apr. 14, 2016), https://brennancenter.org/our-work/analy- www.doc.sc.gov/research/InmatePopula- sis-opinion/complex-history-controversial- tionStats/ASOF-Sentence_Length_Dis- 1994-crime-bill. tribution_6-30-20.pdf [hereinafter SCDC Sentence Length Distribution 1]. 39 Id. 54 S.C. Dep’t of Corr., Sentence Length Dis- 40 Id. tribution of SCDC Total Inmate Population 41 Id. as of June 30, Fiscal Years 2016-2020 (Oct. 42 Mike Rosen-Molina, US Prison Population 1, 2020), http://www.doc.sc.gov/research/In- matePopulationStatsTrend/ASOF_Trend_ Up Eight-fold Since 1970: Report, Jurist (Nov. 20, 2007, 7:07 pm), https://www.ju- sentence_length_distribution_FY16-20.pdf. rist.org/news/2007/11/us-prison-population- 55 SCDC Sentence Length Distribution 1, up-eight-fold/. supra note 53. 43 Id. 56 Bryan Lufkin, The Myth Behind Long Pris- 44 Id. on Sentences, BBC (May 15, 2018), https:// www.bbc.com/future/article/20180514-do- 45 Joshua Holland, Land of the Free? U.S. Has long-prison-sentences-deter-crime. 25 Percent of the World’s Prisoners, Moyers 57 Taylor Weaver, Criminal Justice Reform on Democracy (Dec. 16, 2013), https://bill- moyers.com/2013/12/16/land-of-the-free-us- Comes to South Carolina, Palmetto Promise has-5-of-the-worlds-population-and-25-of- (Jun. 26, 2018), https://palmettopromise. its-prisoners/. org/criminal-justice-reform-comes-to-south- carolina/. 46 Incarceration Trends in South Carolina, 58 Gavin Jackson, Incarceration Reform Helps Vera Inst. of Just. (2019), https://www. vera.org/downloads/pdfdownloads/state- Save State $491 Million in Prison Costs, incarceration-trends-south-carolina.pdf. Post and Courier (Nov. 28, 2016), https:// postandcourier.com/news/incarceration- 47 Blueprint for Smart Justice South Carolina, reform-helps-save-state-491-million-in-pris- ACLU 1, 5 (2019), https://50stateblueprint. on-costs/article_92dad850-b580-11e6-bbea- aclu.org/assets/reports/SJ-Blueprint-SC.pdf 87979149ced9.html. [hereinafter Blueprint for Smart Justice]. 59 South Carolina’s Public Safety Reform, The 48 Id. Pew Ctr. on the States, 1, 7 (June 2010), 49 Id. https://www.pewtrusts.org/-/media/as- 50 Ashley Nellis, The Color of Justice: Racial and sets/2010/06/10/pspp_south_carolina_brief. Ethnic Disparity in State Prisons, The Sen- pdf [hereinafter SC Public Safety Reform]. tencing Project (2016), https://www.sentenc- 60 Tom Roth, A review of thirteen Department ingproject.org/wp-content/uploads/2016/06/ of Corrections facilities to determine the The-Color-of-Justice-Racial-and-Ethnic-Dis- required security staffing levels necessary parity-in-State-Prisons.pdf at 14. to meet established responsibilities (Mar. 51 Blueprint for Smart Justice, supra note 47, 2018). at 6. 73 61 Gaby Galvin, Underfunded, Overcrowded to-tell/article_d2b01f70-371f-11ea-829a- State Prisons Struggle with Reform, U.S. 4f46bb0cecd0.html. News (July 26, 2017), https://www.usnews. 74 Steve Bailey, ‘No One Should Have to com/news/best-states/articles/2017-07-26/ Lose a Son the Way I Lost My Son’, Post understaffed-and-overcrowded-state-pris- and Courier, https://www.postandcourier. ons-crippled-by-budget-constraints-bad- com/opinion/commentary/no-one-should- leadership. have-to-lose-a-son-the-way-i-lost-my- 62 Andrew Cohen, When Good People Do son/article_5a06f638-199e-11e9-8675- Nothing: The Appalling Story of South 1f48ba0a962e.html (last updated Sept. 14, Carolina’s Prison The Atlantic (Jan. 10, 2020). 2014), https://www.theatlantic.com/na- 75 Id. tional/archive/2014/01/when-good-people- Id. do-nothing-the-appalling-story-of-south- 76 carolinas-prisons/282938/ 77 Id. 63 Id. 78 Id.

64 Stuart M. Andrews, Jr., Nelson Mullins, 79 Id. https://www.nelsonmullins.com/people/ 80 Mental Illness Behind Bars, supra note 73. stuart-andrews#main (last visited Feb. 14, 81 Id. 2021). 82 Id. 65 Case Profile, C.R. Litig. Clearinghouse, https://www.clearinghouse.net/detail. 83 Id. php?id=11039 (profiling the case of T.R. v. 84 Id. S.C. Dep’t of Corr.) (last visited Feb. 14, 85 Id. 2021). 86 Id. 66 Cohen, supra note 62. 87 Id. 67 T.R. v. S.C. Dep’t of Corr., 2005-CP-40- 02925 (Richland Cty. Ct. Com. Pl. Sept. 29, 88 Id. 2016). 89 Id. 68 Cohen, supra note 62. 90 Id. 69 T.R., supra note 67. 91 Id. 70 Matthew Hensley, Mental Health Issues Tied to SCDC Settlements After Deaths, 92 Mary Wildeman, Suicide Rate in S.C. Index-Journal (May 17, 2018), https://www. Prisons Hits Record High as Mental indexjournal.com/news/mental-health-is- Health Problems Grow, Post and Courier, sues-tied-to-scdc-settlements-after-deaths/ https://www.postandcourier.com/news/ article_1013c60f-e1ca-51ad-8eaf-aa11f- suicide-rate-in-sc-prisons-hits-record-high- 8e4a129.html. as-mental-health-problems-grow/article_ 71 Id. e3f070b8-6ab6-11e9-8e88-0b119ed5f1bd. 72 Id. html#:~:text=South%20Carolina's%20 rate%20was%20double,published%20in%20 73 Steve Bailey, Commentary: In a Lost Life The%20Lancet%20Psychiatry (last updated One Shining Hour to Tell His Story of Men- Sept. 14, 2020). tal Illness Behind Bars, Post and Courier (last updated Sept. 14, 2020), https://www. 93 S.C. Dept. of Corr., Implementation Panel postandcourier.com/opinion/commentary/ Report of Compliance (April 2020), https:// commentary-in-a-lost-life-one-shining-hour- www.mentalhealth4inmates.org/resources/ 74 downloads/Final%20SCDC%20April%20 111 Weihua Li & Nicole Lewis, This Chart 2020%20Report%20of%20Compliance.pdf. Shows Why the Prison Population Is So 94 Id. Vulnerable to COVID-19, The Marshall Project (April 2020), https://www.the- Id 95 marshallproject.org/2020/03/19/this-chart- 96 Tom Jackman, Study: 1 in 7 Prisoners is shows-why-the-prison-population-is-so- Serving Life, and Two-Thirds of Those are vulnerable-to-covid-19. People of Color, ashington ost https W P , :// 112 Id. www.washingtonpost.com/nation/2021/03/02/ 113 Victoria Law, The Graying of Mass Incar- life-sentences-growing/ (last updated May 13, 2021). ceration, The Progressive (Dec. 3, 2020), https://progressive.org/magazine/the-gray- Id. 97 ing-of-mass-incarceration-law/. Id. 98 114 Id. Why 99 Ben Miller & Daniel S. Harawa, 115 Emily Widra, Incarceration Shortens America Needs to Break Its Addiction to Life Expectancy, Prison Pol’y Initia- Long Prison Sentences, Politico Magazine tive (June 26, 2017), https://www. (Sept. 3, 2019), https://www.politico.com/ prisonpolicy.org/blog/2017/06/26/ magazine/story/2019/09/03/why-america- life_expectancy/#:~:text=Each%20 needs-to-break-its-addiction-to-long-prison- year%20in%20prison%20takes,life%20 sentences-227999. expectancy%20by%205%20 100 Id. years.&text=individual's%20life%20 101 Miller & Harawa, supra note 99. expectancy.-,With%20over%202.3%20mil- lion%20people%20locked%20up%2C%20 102 Id. mass%20incarceration%20has,life%20ex- 103 Weihua Li, The Growing Racial Dispar- pectancy%20by%205%20years. ity in Prison Time, The Marshall Project, 116 Id. (Dec. 2, 2019, 6:00 AM), https://www. themarshallproject.org/2019/12/03/the- 117 Id. growing-racial-disparity-in-prison-time. 118 Rebecca Silber et al., Aging Out, Vera 104 Id. Inst. of Just. 1, 3 (Dec. 2017), https:// www.vera.org/downloads/publications/ 105 Id. Using-Compassionate-Release-to-Address- 106 Marc Mauer, Long-Term Sentences: Time the-Growth-of-Aging-and-Infirm-Prison- to Reconsider the Scale of Punishment, The Populations%E2%80%94Full-Report.pdf. Sentencing Project, (May 13, 2021), https:// 119 Id. www.sentencingproject.org/publications/ long-term-sentences-time-reconsider-scale- 120 Stephanie Kelly, U.S. Spending on Prisons punishment/. Grew at Three Times the Rate of School Spending: Report, Reuters (July 7, 2016), 107 Id. https://www.reuters.com/article/us-usa- 108 Id. education-funding/u-s-spending-on-prisons- 109 Alexi Jones, Reforms Without Results: grew-at-three-times-rate-of-school-spend- Why States Should Stop Excluding Violent ing-report-idUSKCN0ZN2L2. Offenses From Criminal Justice Reforms, 121 Id. Prison Pol’y Initiative (April 2020), https:// 122 Nicole Lewis & Beatrix Lockwood, The www.prisonpolicy.org/reports/violence.html. Hidden Cost of Incarceration: Prison Costs 110 Mauer, supra note 106. Taxpayers $80 Billion a Year. It Costs Some 75 Families Some Families All They Have, The 136 Id. at 6. Marshall Project (May 11, 2021), https:// 137 Sentencing Reform Oversight Committee, www.themarshallproject.org/2019/12/17/ S.C. Leg., https://www.scstatehouse.gov/ the-hidden-cost-of-incarceration. citizensinterestpage/SentencingReformOv- 123 Collateral Costs: Incarceration’s Effect on ersightCommittee/SROC.php (last visited Economic Mobility, The Pew Charitable Feb. 19, 2021). Trusts 1, 4 (2010), https://www.pewtrusts. 138 Roth, supra note 60. org/~/media/legacy/uploadedfiles/pcs_as- How They Died: Causes of sets/2010/CollateralCosts1pdf.pdf [herein- 139 Gabe Cavallaro, Death Released for Slain Lee Correctional after Collateral Costs]. 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(Sept. 2017), https://www.pewtrusts.org/en/ com/news/crime/as-sc-prisons-struggle-to- research-and-analysis/fact-sheets/2017/09/ stop-coronavirus-inmates-say-quarantine- data-trends-south-carolina-criminal-justice- conditions-are-inhumane/article_1522711c- reform. ff27-11ea-90aa-fb333accf373.html. 134 Robert Kittle, S.C. Law Has Lowered 145 Id. Crime While Saving Almost $500 Million, 146 Jason Raven, Panel of Lawmakers Share News19 (June 14, 2017), https://www.wltx. Recommendations to Help Improve the com/article/news/local/sc-law-has-low- State Department of Corrections, WIS- ered-crime-while-saving-almost-500-mil- News10 (Oct. 5, 2020), https://www.wistv. lion/101-449089843. com/2020/10/05/panel-lawmakers-share- 135 SC Public Safety Reform, supra note 59, at recommendations-help-improve-state-de- 76 5. partment-corrections/. 147 Dennis Schrantz et al., Decarceration Years 1988-2020 (Oct. 1, 2020), http://www. 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SC Inmates Say They Fight for Survival Among Gang Violence, The State, 160 S.C. Dept. of Corr., Cost Per Inmate Fiscal 77 https://www.thestate.com/news/special-re- 199 Tony Bartelme et al., Before Deadly Riot, ports/article226814604.html (last updated South Carolina Bused in Inmates from Other May 17, 2019, 9:58 AM). Prisons, Post and Courier (Sept. 14, 2020), 182 Bohatch, supra note 174. https://www.postandcourier.com/news/ before-deadly-riot-south-carolina-bused-in- supra 183 Roth, note 60. violent-inmates-from-other-prisons/article_ 184 Id. a3c5ff5e-425c-11e8-b2e7-cf2b388fcecd.html. 185 Id. 200 Id. 186 Id. 201 Victoria McKenzie, Are Cellphones Really 187 Emily Bohatch, Facing Dire Challenges, to Blame for Spike in S.C. Prison Violence?, can SCDC get Ambivalent State House to CBS News (Apr. 19, 2018, 6:00 AM), https:// www.cbsnews.com/news/south-carolina- Throw it a Lifeline?, The State (Apr. 11, 2019), https://www.thestate.com/news/ prison-riot-are-cellphones-really-to-blame- special-reports/article227089334.html. for-spike-in-s-c-prison-violence/. 188 Interview with Hayden Smith, Professor of 202 Id. Criminology and Crim. Just., U. of S. C., in 203 Id. Columbia, S.C. (Aug. 14, 2018). 204 SC Public Safety Reform, supra note 59. Id. 189 205 Bohatch, supra note 181. supra 190 Bohatch, note 187. 206 David Skarbek, California’s Prison Gang 191 S.C. 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Times (Apr. 16, 2018), https:// ing, Brookings, Inside Out: The Challenge www.nytimes.com/2018/04/16/us/south- of Prison-Based Criminal Organizations 3, carolina-prison-riot.html. https://www.brookings.edu/wp-content/up- 78 loads/2016/09/fp_20160927_prison_based_ story/news/local/2018/09/20/prisoners- organizations.pdf). across-sc-still-lockdown-5-months-after- 217 Hannah Alani, A Mother Paid South Caro- deadly-riot/1356991002/. lina Prison Gangs Thousands to Keep Her 229 U.S. Dep’t. of Just., Report and Recommen- Son Alive, Post and Courier, https://www. dations Concerning the Use of Restrictive postandcourier.com/news/a-mother-paid- Housing 1, 1 (Jan. 2016), https://www.jus- south-carolina-prison-gangs-thousands-to- tice.gov/archives/dag/file/815551/download. keep-her-son-alive/article_b5a55e52-427c- 230 Jason M. Breslow, What Does Solitary Con- 11e8-9774-4fa603e7e5e2.html (last updated finement Do to Your Mind? PBS (Apr. 24, Sept. 12, 2020). 2014), https://www.pbs.org/wgbh/frontline/ 218 Id. article/what-does-solitary-confinement-do- 219 Id. to-your-mind/. 220 Id. 231 Id. 221 Id. 232 Id. 222 David C. Pyrooz, Using Restrictive Hous- 233 Emily Bazelon, The Shame of Solitary ing to Manage Gangs in U.S. Prisons, Confinement, N.Y. Times (Feb. 19, 2015), https://www.nytimes.com/2015/02/19/maga- Nat’l Inst. Of Just. (June 30, 2018), https://nij.ojp.gov/topics/articles/using- zine/the-shame-of-solitary-confinement. restrictive-housing-manage-gangs-us- html. prisons#:~:text=Inmates%20are%20 234 Bohatch, supra note 174. typically%20placed%20in,restrictive%20 235 Steve Bailey, Prison Deaths Are Piling housing%20for%20disciplinary%20reasons. Up in SC—Does Anybody Care? Post and 223 Donald Specter, Making Prisons Safe: Courier, https://www.postandcourier.com/ Strategies for Reducing Violence, 22 Wash. opinion/commentary/prison-deaths-are- U. J.L. & Pol’y 125 (2006); see also Andrew piling-up-in-s-c----does-anybody-care/arti- Knapp, After South Carolina Riot, 48 ‘Prob- cle_a0ce5f84-2ec6-11e8-9c80-7fc74fb2aa40. lematic’ Inmates Shipped to Private Mis- html (last updated Sept. 14, 2020). sissippi Prison, Post and Courier, https:// 236 S.C. Dep’t of Corr., Implementation Panel www.postandcourier.com/news/after-south- Report of Compliance 1, 3 (July 2018), carolina-riot-48-problematic-inmates- https://www.scstatehouse.gov/Committee- shipped-to-private-mississippi-prison/ar- Info/HouseLegislativeOversightCommittee/ ticle_c22c925c-7626-11e8-9fcf-c75dcca4f8ec. AgencyWebpages/Corrections/July%20 html#:~:text=Two%20months%20after%20 2018%20Site%20Visit.pdf. seven%20people,in%20Mississippi%2C%20 supra officials%20said%20Friday.&text=It%20 237 Thomas, note 192. was%20the%20deadliest%20American%20- 238 Matthew Hensley, A ‘History of Violence’: prison%20riot%20in%2025%20years. Lawsuits Link McCormick Prison At- tacks to Absent Officers ndex ournal 224 Specter, supra note 223, at 132. , I -J (Apr. 30, 2018), https://www.indexjournal. 225 Knapp, supra note 223. com/news/a-history-of-violence-lawsuits- 226 Specter, supra note 223, at 134. link-mccormick-prison-attacks-to-absent- 227 Id. at 134. officers/article_d8a625f5-5928-5eda-9dab- 5225b6066c57.html. 228 Emily Bohatch, Prisoners Across SC Still in Lockdown 5 Months After Deadly Riot. 239 Bohatch, supra note 4. Here’s Why, Greenville News (Sept. 20, 240 Id. 2018), https://www.greenvilleonline.com/ 241 Id. 79 242 Id. mitteeInfo/HouseLegislativeOversightCom- 243 Id. mittee/AgencyPHPFiles/Corrections.php. 244 Id. 261 Reagan, Superintendent Randy, 29 May 2018, Personal Interview. 245 Id 262 Legislative Oversight Committee, supra Id. 246 note 260 (Lieber snapshot from PUSD and 247 Id. Superintendent Randy Reagan- “PUSD 248 Id. Educational Resource Allocation Agree- ment Memorandum of Understanding for 249 Id. Lieber CI”). 250 Kiana Miller, South Carolina Ranks 5th 263 Id. in Nation in Rate of Women Murdered by 264 Id. Men, Live 5 News, https://www.live5news. com/2019/09/19/south-carolina-ranks-th- 265 Why Prison Education?, supra note 52. nation-rate-women-murdered-by-men/ (last 266 Id. updated Sept. 19, 2019, 5:37 PM). 267 Claflin University Awarded Second Chance 251 South Carolina, U.S. News, https://www.us- Pell Grant by the U.S. Department of news.com/news/best-states/south-carolina Education, Claflin U. (May 15, 2020), (last visited Feb. 5, 2021). https://www.claflin.edu/news-events/ 252 Lois M. Davis et al., Rand Corp., Evaluat- news/2020/05/15/claflin-university-award- ing the Effectiveness of Correctional Edu- ed-second-chance-pell-grant-by-the-u.s.- cation: A Meta-Analysis of Programs That department-of-education. Provide Education to Incarcerated Adults 268 Id. 19 (2013). 269 Id. 253 Id. 270 Id. 254 Rochelle Earl, Saint Cloud St. U., The Re- 271 Emily Galvin, Let Them Work, Slate (Apr. lationship Between Inmate Education and 21, 2016, 3:28 PM), https://slate.com/news- Disciplinary Infractions in Prison 1, 8 (Dec. 2017), https://repository.stcloudstate.edu/ and-politics/2016/04/a-great-way-to-end- cgi/viewcontent.cgi?referer=https://www. recidivism-give-prisoners-jobs.html. google.com/&httpsredir=1&article=1009&c 272 Id. ontext=cjs_etds. 273 Legislative Oversight Committee, supra 255 McKenzie, supra note 201. note 260. 256 Id. 274 Thad Moore, South Carolina Wants to Help 257 Why Prison Education?, supra note 52. Former Prisoners Find Jobs, Expand the State’s Tight Job Market, Post and Courier, Education Rankings ews 258 , U.S. N , https:// https://www.postandcourier.com/business/ www.usnews.com/news/best-states/rank- south-carolina-wants-to-help-former-pris- ings/education (last visited Feb. 5, 2021). oners-find-jobs-expand-the-states-tight-job- 259 See generally Palmetto Unified School market/article_1320bc74-0350-11e7-967d- District, https://pusd.doc.sc.gov (last visited 3ff6fbe77bf3.html (last updated Sept. 14, Feb. 5, 2021). 2020). 260 Legislative Oversight Committee hearing 275 Richard Davies, From Pecan Pralines PowerPoint presentation slides – “Inmates to ‘Dots’ as Currency: How the Prison Admitted to SCDC Without GED/HS Di- Economy Works, The Guardian (Aug. 30, ploma” https://www.scstatehouse.gov/Com- 2019, 1:00 PM), https://www.theguard- 80 ian.com/us-news/2019/aug/30/prison- dio (June 29, 2020, 5:01 PM), https://www. economy-informal-markets-alternative- npr.org/transcripts/884989263. currencies#:~:text=But%20prisons%20 287 Paula Smith et al., Employment and Voca- are%20economic%20systems,buying%20 tion Programs in Prison (John Wooldredge power%20of%20the%20workforce.&te- & Paula Smith eds., 2017) (citing Elizabeth xt=The%20official%20prison%20econo- K. 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303 The Coronavirus Crisis, Nat’l Public Radio 322 Id. (Dec. 24, 2020, 11:37 AM), https://www. 323 Bohatch, supra note 4. npr.org/2020/12/24/948873835/correctional- 324 Johnathan Peters, For Journalists Covering facilities-are-covid-19-hot-spots-why-dont- Prisons, the First Amendment is Little Help, they-get-vaccine-priorit. Colum. Journalism Rev. (July 2, 2018), 304 Id. https://www.cjr.org/united_states_project/ 305 Id. first-amendment-reporters-jail.php. 306 Id. 325 Id.

307 Shannon Heffernan, The Way Prisoners 326 Bill Keller, Let the Press In, The Marshall Flag Guard Abuse, Inadequate Health Project (Oct. 5, 2015, 11:01 AM), https:// Care and Unsanitary Conditions is Broken, www.themarshallproject.org/2015/10/05/let- ProPublica (Dec. 2, 2020, 6:00 AM), https:// the-press-in. www.propublica.org/article/the-way-pris- 327 Ed Lyon, Prisoners Face Retaliation for oners-flag-guard-abuse-inadequate-health- Raising Concerns About Criminal Jus- care-and-unsanitary-conditions-is-broken. tice System, Prison Legal News, https:// 308 Id. www.prisonlegalnews.org/news/2019/ 309 Id. jan/8/prisoners-face-retaliation-rais- ing-concerns-about-criminal-justice- 310 Id. system/#:~:text=Prisoners%20Face%20 311 Paul Wright, Prison Litigation Reform Act Retaliation%20for%20Raising%20 Passed, Prison Legal News, https://www. Concerns%20About%20Criminal%20 prisonlegalnews.org/news/1996/jul/15/pris- Justice%20System,-Loaded%20on%20 on-litigation-reform-act-passed/ (last visited Jan&text=Prisoners%20who%20peace- Feb. 6, 2021). fully%20advocate%20for,risk%20retali- 312 Id. ation%20by%20prison%20officials (last visited Feb. 6, 20201). 82 313 ACLU, The Prison Litigation Reform 328 Keller, supra note 326. 349 Ed Chung et al., The 1994 Crime Bill Con- 329 The Trouble with Reporting on Prisons, tinues to Undercut Justice Reform – Here’s How to Stop It, Ctr. for Am. Progress (Mar. WNYN Studios (Sept. 23, 2016), https:// www.wnycstudios.org/podcasts/otm/seg- 26, 2019, 8:00 AM), https://www.ameri- ments/trouble-reporting-prisons. canprogress.org/issues/criminal-justice/ reports/2019/03/26/467486/1994-crime-bill- Id. 330 continues-undercut-justice-reform-heres- 331 Id. stop/. 332 Karina Piser & Marcia Brown, How Prison 350 Id. Officials Block Access to the Media he m , T A . 351 Id. Prospect (Aug. 31, 2020), https://prospect. org/justice/how-prison-officials-block-access- 352 Id. to-the-media/. 353 Id. 333 Id. 354 Id. 334 Id. 355 Id. 335 Id. 356 Id. 336 Id. 357 Michael Waters, Free Tablets for the In- 337 Id. carcerated Come With a Price, The Out- line (Dec. 3, 2019), https://theoutline.com/ Id. 338 post/8329/jpay-free-tablet-program-ripoff. supra 339 Heffernan, note 307. 358 Id., supra note 350. Left and Right Agree on 340 Maggie Astor, 359 What Biden’s Win Means for the Future of Criminal Justice: They Were Both Wrong Criminal Justice, The Marshall Project Before imes , N.Y. T (May 16, 2019), https:// (Nov. 8, 2020, 6:00 AM), https://www.the- www.nytimes.com/2019/05/16/us/politics/ marshallproject.org/2020/11/08/what-biden- criminal-justice-system.html. s-win-means-for-the-future-of-criminal- 341 Id. justice [hereinafter Biden’s Win]. 342 Peter Baker, Bush Made Willie Horton an 360 Id. Issue in 1988, and the Racial Scars are Still 361 Id. Fresh, N.Y. Times (Dec. 3, 2018), https:// www.nytimes.com/2018/12/03/us/politics/ 362 S.C. Code Ann. § 44-53-375 (2012). bush-willie-horton.html. 363 The Ungers, 5 Years and Counting, Just. 343 Id. Pol’y Inst. (Nov. 15, 2018), http://www. justicepolicy.org/research/12320?utm_ Id. 344 source=%2fUnger&utm_ 345 Id. medium=web&utm_campaign=redirect. 346 A Roadmap for Re-Imagining Public 364 Id. Safety in the United States uman ights , H R 365 Id. Watch (Aug. 12, 2020, 8:00 AM), https:// www.hrw.org/news/2020/08/12/roadmap-re- 366 Id. imagining-public-safety-united-states. 367 Johnathan Silver & Abby Livingston, Rick Perry Throws Support Behind Bills to Re- 347 Charleston People’s Budget, charleston- peoplesbudget.com (last visited Feb. 19, form Criminal Justice in Texas, Texas Trib., 2021). https://www.texastribune.org/2017/05/18/ rick-perry-endorses-texas-criminal-justice- supra 348 Miller & Harawa, note 98. reforms/ (last updated May 19, 2017). 83 368 Id. 379 Betsy Pearl, Ending the War on Drugs: By 369 Mississippi’s 2014 Corrections and Crimi- the Numbers, Ctr. for Am. Progress (June 27, 2018, 9:00 AM), https://www.ameri- nal Justice Reform, The PEW Charitable canprogress.org/issues/criminal-justice/re- Trusts 1, 1 (May 2014), https://www. pewtrusts.org/-/media/assets/2014/09/pspp_ ports/2018/06/27/452819/ending-war-drugs- mississippi_2014_corrections_justice_re- numbers/#:~:text=Since%201971%2C%20 form.pdf. the%20war%20on,more%20than%20 %243.3%20billion%20annually. 370 See generally Id. 380 Id. 371 Brandon L. Garrett, Life Without Parole for 381 Nixon Adviser Admits War on Drugs Was Kids Is Cruelty with No Benefit, The Atlan- Designed to Criminalize Black People, tic (Oct. 19, 2020), https://www.theatlantic. com/ideas/archive/2020/10/life-without- Equal Just. Initiative, (Mar. 25, 2016), parole-kids-cruelty-no-benefit/616757/. https://eji.org/news/nixon-war-on-drugs- designed-to-criminalize-black-people/. 372 Id. 382 Id. 373 Josh Rovner, Juvenile Life Without Parole 383 Id. Overview, The Sentencing Project (Jan. 25, 2021), https://www.sentencingproject.org/ 384 Pearl, supra note 379. publications/juvenile-life-without-parole/. 385 Id. 374 Nina Totenberg, Supreme Court Rejects 386 Id. Restrictions on Life Without Parole For Ju- 387 Id. veniles, Nat’l Public Radio (Apr. 22, 2021), https://www.npr.org/2021/04/22/989822872/ 388 Id. supreme-court-rejects-restrictions-on-life- 389 More Imprisonment Does Not Reduce State without-parole-for-juveniles. Drug Problems, The PEW Charitable 375 Id. Trusts (Mar. 2018), https://www.pewtrusts. 376 States that Ban Life Without Parole for org/-/media/assets/2018/03/pspp_more_im- prisonment_does_not_reduce_state_drug_ Children, The Campaign for the Fair Sen- problems.pdf. tencing of Youth (Jan. 19, 2021), https:// cfsy.org/media-resources/states-that-ban- 390 National Trends and Racial Disparities, life/. Vera Inst. Of Just., https://www.vera.org/ 377 Daniel Nichanian, Ohio Will No Longer publications/overdose-deaths-and-jail- incarceration/national-trends-and-racial- Sentence Kids to Life Without Parole, The disparities. Appeal (Jan. 13, 2021), https://theappeal. org/politicalreport/ohio-ends-juvenile- 391 Victim Offender Dialogue, Cal. Dep’t of life-without-parole/#:~:text=Ohio%20 Corr. And Rehab., https://www.cdcr.ca.gov/ is%20the%2024th%20state,of%20 victim-services/vod/. juvenile%20life%20without%20 392 Victim-Centered Victim Offender Dialogue parole.&text=Brooke%20Burns%2C%20- in Crimes of Severe Violence, Nat’l Assoc. who%20heads%20the,inequalities%20 of Victim Serv. Prof’ls in Corr. Nat’l Stan- in%20its%20prison%20population. dards Subcomm., http://restorativejustice. 378 South Carolina Juvenile Life Sentenc- org/am-site/media/victim-centered-victim- ing Fact Sheet, Justice 360, https://jus- offender-dialogue-in-crimes-of-severe-vio- tice360sc.org/wp-content/uploads/2018/02/ lence.pdf. Juvenile-Fact-Sheet-2018.02.21.pdf (last 393 Mark S. Umbreit, Robert B Coates & Betty updated Feb. 21, 2018). Vos, Ctr. for Restorative Just. & Peace- 84 making, Victim Offender Mediation: Three postandcourier.com/opinion/commentary/s- Decades of Practice and Research 1, 6-7 c-legislature-must-reform-life-without-pa- (Dec. 19, 2003), http://rjp.dl.umn.edu/sites/ role-sentences/article_c9f64da8-9e44-11e7- rjp.dl.umn.edu/files/media/victim-offender- ac9c-f7ecaf1d057d.html. mediation.pdf. 413 Id. 394 Id. 414 Id. 395 Id. 415 Id. 396 Midyear Meeting 1990, subheading of Index 416 Id. to ABA Criminal Justice Policies, ABA Id. (Mar. 1, 2016), https://www.americanbar. 417 org/groups/criminal_justice/policy/index_ 418 Jorge Renaud, Grading the Parole Release aba_criminal_justice_policies_by_meeting/ Systems of All 50 States, Prison Pol’y Ini- (follow “Index” hyperlink; then scroll down tiative (Feb. 26, 2019), https://www.pris- to 101B (Administrative Law & Regulatory onpolicy.org/reports/grading_parole.html Practice)). (scroll until “How did Wyoming earn our 397 Conversation with Aparna Polayarapu highest score?”; click expand). (Jan. 15, 2021). 419 Id. 398 Id. 420 Id. 399 Id. 421 Id. 400 Id. 422 Id. 401 Roth, supra note 60. 423 Id.

402 Parole Release & Revocation, U. of Minn., 424 Jill Lepore, The Rise of the Victims’-Rights https://robinainstitute.umn.edu/areas-ex- Movement, The New Yorker (May 14, pertise/parole-release-revocation (last vis- 2018), https://www.newyorker.com/maga- ited Mar. 21, 2021); Probation and Parole, zine/2018/05/21/the-rise-of-the-victims- Prison Pol’y Initiative, https://www.prison- rights-movement. policy.org/research/probation_and_parole/ 425 Id. (last updated Dec. 29, 2020, 10:03 AM). 426 Id. 403 SC Public Safety Reform, supra note 59, at 427 Id. 4. 428 Victims’ Bill of Rights, U.S. Dep’t of Just. 404 Id. (last updated Apr. 17, 2015), https://www. 405 Id. justice.gov/usao-ndga/victim-witness-assis- 406 Id. tance/victims-bill-rights#:~:text=The%20 407 Herring, supra note 166. right%20to%20be%20treated,be%20 notified%20of%20court%20 408 SC Public Safety Reform, supra note 59, at proceedings.&text=the%20victim%20 2. would%20be%20materially,heard%20 409 Interview with George Martin, former pa- other%20testimony%20at%20trial. role board member (Aug. 21, 2018). 429 Victim Impact Statements, U.S. Dep’t of 410 Id. Just., (https://www.justice.gov/usao-ak/vic- 411 Id. tim-impact-statements (last updated Feb. 5, 2020). 412 Ashley Nellis, S.C. Legislature Must Re- 430 Victims’ Bill of Rights, supra note 428. form Life-Without-Parole Sentences, Post and Courier (Sept. 20, 2017), https://www. 431 Lepore, supra note 424. 85 432 Id. parency: Can the public understand the 433 Id. parole board’s decision?”). 434 Id. 456 Elizabeth Pelletier, Bryce Peterson & Ryan King, Assessing the Impact of South Caro- 435 Julian V. Roberts, Listening to the Crime lina’s Parole and Probation Reforms, Urban Victim: Evaluating Victim Input at Sen- Inst. (Apr. 24, 2017), https://www.urban. tencing and Parole rime and ust , 38 C J . 1, org/research/publication/assessing-impact- 347–412 (2009). south-carolinas-parole-and-probation-re- 436 Equal Just. Initiative, https://eji.org/ (last forms. visited Mar. 21, 2021). 457 Renaud, supra note 452. 437 Healing Just. Project, https://healingjusti- 458 Id. ceproject.org/ (last visited Mar. 20, 2021). 459 Id. 438 Katherine J. Rosich & Kamala Mallik Kane, Truth in Sentencing and State Sen- 460 Emily Widra & Peter Wagner, While Jails Drastically Cut Populations, State Pris- tencing Practices, Nat’l Inst. of Just. (July 1, 2005), https://nij.ojp.gov/topics/articles/ ons Have Released Almost No One, Prison truth-sentencing-and-state-sentencing- Pol’y Initiative (Aug. 5, 2020), https://www. practices. prisonpolicy.org/blog/2020/05/01/jails-vs- prisons-update-2/. 439 Id. 461 Josh Withrow, Reforming Probation and 440 SCDC Profile of Inmates, supra note 150. Parole Supervision, Freedom Works Found., 441 Earned Time Credit, supra note 280. 1, 3 (Oct. 29, 2020), https://fw-d7-freedom- works-org.s3.amazonaws.com/Issue%20 442 Catherine C. McVey, Edward E. Rhine & Brief%20-%20Probation%20and%20Parole. Carl V. Reynolds, Robina Inst. of Crim. pdf. Law & Crim. Just., Modernizing Parole Statutes: Guidance from Evidence-Based 462 Confined and Costly: How Supervision Vio- Practice 1, 16 (Aug. 3, 2018), https://robi- lations Are Filling Prisons and Burdening nainstitute.umn.edu/sites/robinainstitute. Budgets, Council of St. Governments Just. umn.edu/files/parole_ebp_report.pdf. Ctr. (2019), https://csgjusticecenter.org/ 443 Id. wp-content/uploads/2020/01/confined-and- costly.pdf 444 Blueprint for Smart Justice, supra note 47, at 17. 463 Id. 445 Id. 464 Id. 446 Id. 465 Withrow, supra note 461. 447 McVey, supra note 442. 466 Cost Calculator, Council of St. Govern- ments Just. Ctr. (2019), https://csgjusti- 448 Id. at 9. cecenter.org/projects/cost-calculator/?mc_ 449 Id. cid=9ec54658a2&mc_eid=2d7c86114e (last 450 Id. at 8. visited Mar. 20, 2021). 451 See generally Id. 467 Kory Grow, Meek Mill’s Legal Troubles: A History, Rolling Stone (Mar. 14, 2018, 6:17 452 Renaud, supra note 418, generally. PM), https://www.rollingstone.com/music/ 453 Id. music-news/meek-mills-legal-troubles-a- 454 Id. history-117981/. 455 Renaud, supra note 418 (scroll to “Trans- 468 Id. 86 469 Id. add-sentencing-review-units-to-their- 470 Id. offices/#:~:text=Prosecutors%20can%20 help%20right%20the,a%20role%20in%20 Id. 471 sentencing%20review%3A&text=They%20 472 Parole Release & Revocation, supra note can%20recommend%20a%20sentence%20 402. after%20a%20person%20has%20been%20 473 Id. found%20guilty. 474 Id. 487 Eight Keys to Mercy, supra note 479. 488 Id. 475 Ebony L. Ruhland, Edward E. Rhine, Jason P. Robey & Kelly Lyn Mitchell, Robina 489 Id. Inst. Of Crim. Law & Crim. Just., The Con- 490 Id. tinuing Leverage of Releasing Authorities 1, 10 (2016), https://robinainstitute.umn. 491 Markell Signs Mandatory Sentenc- edu/sites/robinainstitute.umn.edu/files/pa- ing Reform into Law, Deleware.gov role_executive_summary_web_11-15.pdf. (July 20, 2016), https://news.delaware. gov/2016/07/20/markell-signs-mandatory- Id. 476 sentencing-reform-into-law/. To Safely Cut Incarceration, States Rethink 477 492 Id. Responses to Supervision Violations, The 493 Id. PEW Charitable Trusts, 1, 7 (2019), https:// www.pewtrusts.org/-/media/assets/2019/07/ 494 George Gascón & Marilyn Mosby, Resen- pspp_states_target_technical_violations_ tencing Units Can Rectify, Rehabilitate, v1.pdf [hereinafter States Rethink Respons- and Restore, The Appeal (Dec. 8, 2020), es to Supervision Violations]. https://theappeal.org/resentencing-units- 478 Id. can-rectify-rehabilitate-and-restore/. 479 Jorge Renaud, Eight Keys to Mercy: How 495 Tim Prudente, Baltimore State’s Attorney to Shorten Excessive Prison Sentences, Marilyn Mosby Hires Public Defender to Free Elderly Prisoners, Baltimore Sun (Dec. Prison Pol’y Initiative (Nov. 2018) https:// www.prisonpolicy.org/reports/longsen- 7, 2020), https://www.baltimoresun.com/ tences.html#:~:text=Presumptive%20 news/crime/bs-md-ci-cr-mosby-review-juve- parole,-Presumptive%20parole%20 nile-lifers-20201207-qtih72nxfvfi5ojdxy72d- is&text=This%20approach%20flips%20 jvb3i-story.html. the%20current,released%20at%20a%20 496 Id. predetermined%20date [hereinafter Eight 497 Id. Keys to Mercy]. 498 Id. 480 Id. 499 Tom Jackman, A Growing Group of Pros- 481 Id. ecutors, Who Say the Job is More than 482 Id. Locking People Up, Wants to Help Free 483 Id. Criminals, Too, Wash. Post (Dec. 7, 2020, 6:28 PM), https://www.washingtonpost. Id. 484 com/local/public-safety/prosecutors-mass-in 485 Id. carceration/2020/12/07/29cb0786-38a3- 486 Molly Greene, Prosecutors Must Add 11eb-98c4-25dc9f4987e8_story.html. Sentencing Review Units to Their Of- 500 Earned Time Credit, supra note 441. fices he ppeal , T A (Feb. 25, 2021) https:// 501 Michael Lyle, Legislation would expand eli- theappeal.org/the-point/prosecutors-must- gibility for good time credits, Nev. Current 87 (Feb. 25, 2021) https://www.nevadacurrent. During the Covid-19 Pandemic, Brennan com/2021/02/25/legislation-would-expand- Ctr. for Just., https://www.brennancenter. eligibility-for-good-time-credits/. org/our-work/research-reports/reducing- 502 Eight Keys to Mercy, supra note 479. jail-and-prison-populations-during-covid- 19-pandemic (last updated Feb. 5, 2021). 503 Id. 521 Id. 504 Mary Giliberti, JD, Treatment, Not Jail: 522 Id. It’s Time to Step Up, Nat’l Alliance on Mental Illness (May 5, 2015) https://www. 523 Compassionate Release and the First Step nami.org/Blogs/From-the-CEO/May-2015/ Act: Then and Now, FAMM, https://famm. Treatment,-Not-Jail-It%E2%80%99s-Time- org/wp-content/uploads/Compassionate- to-Step-Up. Release-in-the-First-Step-Act-Explained- 505 Online only: Report finds most U.S. inmates FAMM.pdf (last visited Mar. 21, 2021). suffer from substance abuse or addiction, 524 Id. The Nation’s Health (Apr. 2010), https:// 525 Ian MacDougall, Bill Barr Promised to www.thenationshealth.org/content/40/3/ Release Prisoners Threatened by Corona- E11#:~:text=In%20fact%2C%2065%20 virus—Even as the Feds Secretly Made it percent%20of,received%20treatment%20 Harder for Them to Get Out, ProPublica for%20their%20addictions. (May 26, 2020, 5:00 AM), https://www. 506 Eight Keys to Mercy, supra note 479. propublica.org/article/bill-barr-promised- 507 Id. to-release-prisoners-threatened-by-coro- navirus-even-as-the-feds-secretly-made-it- Id. 508 harder-for-them-to-get-out. Id. 509 526 Id. Id. 510 527 Id. 511 S.C. Code Ann. § 24-13-210 (2012). 528 Keri Blakinger & Joseph Neff, Thousands 512 Eight Keys to Mercy, supra note 479. of Sick Federal Prisoners Sought Compas- 513 Danielle Kurtzleben, Data Show Racial sionate Release. 98 Percent Were Denied, The Marshall Project (Oct. 7, 2020, 6:00 Disparity in Crack Sentencing, U.S. News (Aug. 3, 2010), https://www.usnews.com/ AM), https://www.themarshallproject. news/articles/2010/08/03/data-show-racial- org/2020/10/07/thousands-of-sick-federal- disparity-in-crack-sentencing. prisoners-sought-compassionate-release- 98-percent-were-denied. 514 Eight Keys to Mercy, supra note 479. 529 Emily Widra & Wanda Bertam Compas- 515 Id. sionate Release Was Never Designed to 516 Gideon v. Wainwright, 272 U.S. 335 (1963). Release Large Numbers of People, Prison 517 Robert Siegel & Matt Ozug, From a Pol’y Initiative (May 29, 2020), https:// Life Term to Life on the Outside: When www.prisonpolicy.org/blog/2020/05/29/com- Aging Felons are Freed, npr (Feb. passionate-release/. 18, 2016, 3:32 PM), https://www.npr. 530 Id. org/2016/02/18/467057603/from-a-life-term- 531 Id. to-life-on-the-outside-when-aging-felons- are-freed. 532 Famm Compassionate Release, South Caro- lina 1, 1 (June 2018), https://famm.org/wp- 518 The Ungers, supra note 363. content/uploads/South-Carolina_Final.pdf. 519 Eight Keys to Mercy, supra note 479. 533 Id. 88 520 Reducing Jail and Prison Populations 534 Id. Medical Emergencies, Illinois Inmates 535 Id. Say ‘There’s Nobody That We Can Really Go To For Help’, WBEZ Chicago (Dec. Pandemic Underscores Need to Release 536 2, 2020) https://www.wbez.org/stories/ More Elderly Prisoners , Commentary, from-roaches-to-medical-emergencies- Baltimore Sun (Dec. 22, 2020, 5:51 AM), illinois-inmates-say-theres-nobody-that- https://www.baltimoresun.com/opinion/ we-can-really-go-to-for-help/160ef42c- editorial/bs-ed-1223-elderly-prisoners- e728-4e5d-990b-f584242205df. 20201222-wtakro4f4jd63fbwwtrszlev2a- story.html [hereinafter Elderly Prisoners]. 551 Biden’s Win, supra note 359. 537 Id. 552 Id. 538 Tracey Tully, 2,258 N.J. Prisoners Will 553 Porter, supra note 540. Be Released in a Single Day, N.Y. Times, 554 Id. https://www.nytimes.com/2020/11/04/ 555 McVey, et. al., supra note 442. nyregion/nj-prisoner-release-covid. Blueprint for Smart Justice supra html#:~:text=In%20a%20sweeping%20 556 , note 47, acknowledgment%20of,of%20any%20 at 19. state's%20prison%20population (last up- 557 McVey, et. al., supra note 442. dated Nov. 9, 2020). 558 Id. 539 Id. 559 McVey, supra note 442. 540 Id. 560 Id. 541 Nicole D. Porter, Top Trends in State Crim- 561 Id. inal Justice Reform, 2020, The Sentencing 562 Parole Release & Revocation, supra note Project (Jan. 15, 2021), https://www.sen- 402. tencingproject.org/publications/top-trends- in-state-criminal-justice-reform-2020/. 563 Id. 542 Id. 564 Id. 543 Id. 565 Eight Keys to Mercy, supra note 479. 544 Shelli B. Rossman et al., Second Chance 566 Id. Act Adult Offender Reentry Demonstration 567 Id. Projects, Evidence-Based Practices: Screen- 568 Second Look Sentencing, Famm, https:// ing & Assessment, Nat’l Crim. Just. Refer- famm.org/wp-content/uploads/Second-Look- ence Serv. 7 (Dec. 2016), https://www.ncjrs. Infographic.pdf (last visited Mar. 21, 2021). gov/pdffiles1/nij/grants/250469.pdf. 569 Sarah Martinson, 2nd Look Law Needed 545 Id. to Fix Broken Criminal Justice System, 546 Id. Law360 (Nov. 22, 2020) https://www. 547 Id. law360.com/articles/1330198/2nd-look-law- needed-to-fix-broken-criminal-justice-sys- 548 Katie Rose Quandt, Incarcerated People tem. and Corrections Staff Should be Prioritized in COVID-19 Vaccination Plans, Prison 570 Earned Time Credit, supra note 441. Pol’y Initiative (Dec. 8, 2010), https://www. 571 Eight Keys to Mercy, supra note 479. prisonpolicy.org/blog/2020/12/08/covid-vac- 572 Id. cination-plans/. 573 Id. 549 Bohatch, supra note 4. 574 Id. 550 Shannon Heffernan, From Roaches to 89 575 Everywhere and Nowhere: Compassionate Release in the States, Famm (June 2018), https://famm.org/wp-content/uploads/Exec- Summary-2-page.pdf. 576 Andreea Matei, States Could Save Lives by Expanding Compassionate Release During Covid-19 and Beyond, Urban Inst. (June 24, 2020), https://www.urban.org/urban-wire/ states-could-save-lives-expanding-com- passionate-release-during-covid-19-and- beyond.

90 91 The United States incarcerates far more people than any other nation on earth. Since the 1960s, policies of both Congress and U.S. presidents, Republican and Democratic, have led to the dramatic expansion of prison populations and steep cuts in prison programs and services. South Carolina’s legislature has followed the national trend, enacting similar laws at the state level. The resulting spike in state incarceration rates has hit vulnerable Black and Brown communities the hardest. Researchers on the right and the left agree: South Carolina prisons are dangerously understaffed, offering the imprisoned little to prepare them for release. Without changes, more uprisings like that at the Lee Correctional Institution in April 2018 are inevitable. After decades of commitment to these draconian policies, there is an emerging bipartisan consensus that the war on drugs and harsh sentencing regimes are both unsustainable and unwise. Research has proven that lengthy sentences do not deter crime; but these laws do devastate families and diminish state coffers. South Carolina continues to keep most people incarcerated well beyond the point at which studies show they can be safely released back into society. The ripple effects of mass incarceration impact everyone. It is past time for sweeping changes throughout South Carolina’s criminal-justice system. Everyone has a stake in improving the deplorable conditions within South Carolina’s prisons and establishing a fairer, more just society through systemic reforms.

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