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Analysis

Countering Excessive Punishment with Chances for Redemption

A personal story shows the full costs of an unfair system and demonstrates how it can be improved.

  • Carlton Miller
February 4, 2022
View of the inside of a jail cell, partially left open with sunshine pouring in
Josh Wardell
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

“Carlton, I need to tell you some­thing.” No eight-year-old son wants to hear these words from his mother, her face marred with distress, her voice trem­bling. Sitting on the side of her bed anti­cip­at­ing what she was soon to disclose, I looked in her eyes and held my breath.

She said, “Kendrick is not coming home for a while.” In disbe­lief and bewil­der­ment, I replied, “What do you mean? What happened? How long is ‘a while’?” The tears she attemp­ted to hold back burst into a river of emotions.

Later that even­ing, I saw my eldest brother’s face plastered across the local even­ing news. I do not remem­ber the news anchor’s words, but I will never forget seeing Kendrick hand­cuffed and escor­ted from a build­ing into the back of a police car. I felt like the floor beneath me had opened and swal­lowed me, sink­ing me deeper into a pit of shame, help­less­ness, and frus­tra­tion. What lay ahead was unfathom­able.

My brother’s absence would have devast­at­ing emotional, finan­cial, and health impacts on my family. It was this pain that led me to encounter Amer­ica’s pecu­liar taste for punish­ment, which plagues 113 million adults who have or have had a loved one in jail or prison. In this pain, I found my purpose and dedic­ated my life to becom­ing an attor­ney and cham­pion for crim­inal justice reforms not only in my home state of Louisi­ana, but across the coun­try.

Consid­er­ing the quan­ti­fi­able and qual­it­at­ive gener­a­tional impact of excess­ive punish­ment on famil­ies and communit­ies around the coun­try, this issue is more than a crim­inal justice issue: it is a human rights issue. We are in a crisis — a crisis that has defined the traject­ory of my life.

•  •  •

Kendrick’s excess­ive sentence was a direct result of an unspeak­able policy enacted in the intense wave of racism that engulfed the south­ern states in the wake of Recon­struc­tion. He was effect­ively consigned to life in prison even though the jury in his trial did not come to a unan­im­ous verdict. Among the “Black codes” and convict-leas­ing laws of the Jim Crow era that enabled a white soci­ety to imprison Black people virtu­ally by whim — for offenses such as loiter­ing, break­ing curfew, and fail­ing to carry proof of employ­ment — Louisi­ana waived the require­ment for a unan­im­ous jury in all but capital cases. It was an espe­cially effect­ive way for Black people to be convicted and consigned to an equi­val­ent of slavery, with the state leas­ing them to plant­a­tions, coal mines, and rail­road compan­ies.

This scheme was embed­ded in the law not merely by legis­lat­ive act, but by its inser­tion into the state consti­tu­tion itself. The right to a jury trial may be a funda­mental guar­an­tee of the Sixth Amend­ment of the U.S. Consti­tu­tion, but Louisi­ana’s consti­tu­tional conven­tion of 1898 came up with its own view of how a jury might oper­ate. Article 116 had a clear origin: accord­ing to one commit­tee chair­man, the 1898 consti­tu­tion was specific­ally designed “to estab­lish the suprem­acy of the white race.” Nonun­an­im­ous jury verdicts, which allowed punish­ment based on a 10 to 2 jury vote, would deny thou­sands of Black Louisi­anans their right to a unan­im­ous jury, increase Louisi­ana’s convict leas­ing labor force, and intensify the disen­fran­chise­ment of Black citizens.

In the Spring of 1999, just over 100 years after Article 116 was adop­ted, a nonun­an­im­ous jury convicted my brother of armed robbery and two counts of attemp­ted murder. Two jurors voted to acquit because they had reas­on­able doubts about my brother’s culp­ab­il­ity due to incon­sist­ent state­ments by the surviv­ors and testi­mony about the accused’s iden­tity. This was during the heart of the “tough on crime” era, when federal and state poli­cy­makers engaged in an unpre­ced­en­ted expan­sion of pris­ons and prison popu­la­tions. Mandat­ory minim­ums, senten­cing enhance­ments, restrict­ive parole release policies were the order of the day.

Consequently, due to prior convic­tions, Kendrick’s sentence was enhanced to 64 years and 11 months, and an admin­is­trat­ive determ­in­a­tion made him ineligible for parole. My brother wrestled with untreated addic­tions and repeated inter­ac­tions with the justice system as a young man, but he was still a young man, just 28 years old. No one had been killed in the crime for which he was sentenced. No unan­im­ous jury had ever determ­ined that he was in fact guilty. Yet he was given a de facto life sentence with no hope of ever coming home. In short, he was convicted and sentenced to die in prison — and my family had to serve this time with him.

Kendrick was consigned to a prison system that is notori­ously viol­ent, lacks inde­pend­ent over­sight, and under­mines the health and well­being of those housed and staffed in them. Much of my brother’s incar­cer­a­tion was spent at Louisi­ana State Penit­en­tiary, a former slave plant­a­tion better known as Angola, the largest maximum-secur­ity prison in the nation. It is considered one of Amer­ica’s most viol­ent and abus­ive pris­ons. Kendrick was subjec­ted to work­ing in its fields, super­vised by shot­gun-toting correc­tional officers riding on horse­back. He was one of many who would rather risk solit­ary confine­ment than work in these tortur­ous fields.

Finally, after serving nearly 24 years, in 2021, life came full circle for Kendrick and for our family. Build­ing on the historic Louisi­ana justice reforms of 2017 that I was fortu­nate to play a role in shap­ing, justice advoc­ates secured the enact­ment of a land­mark elder parole law that could be retro­act­ively applied to my brother. On Decem­ber 14, 2021, thanks to the efforts of organ­iz­a­tions like the Louisi­ana Parole ProjectVoices of the Exper­i­ence, and First72+, I had the pleas­ure of support­ing my brother at his parole hear­ing. A unan­im­ous decision gran­ted him his release. Two days later, Kendrick walked out of the prison walls and whispered words that shook my core: “Thanks for not forget­ting me, little brother!”

In 2018, Louisi­ana voters over­whelm­ingly chose to elim­in­ate Article 116 from the state consti­tu­tion. The follow­ing year, the U.S. Supreme Court declared such convic­tions uncon­sti­tu­tional. Yet today, the Prom­ise of Justice Initi­at­ive, a New Orleans-based legal services and advocacy nonprofit, must continue to advoc­ate for the approx­im­ately 1,500 people who are still in Louisi­ana’s pris­ons because of nonun­an­im­ous jury convic­tions.

•  •  •

Previ­ous essays in this series have high­lighted the many ways Amer­ica’s excess­ive reli­ance on punish­ment has harmed famil­ies and communit­ies and weakened our demo­cracy. In my case, over the past two decades, my brother’s incar­cer­a­tion has taught me some essen­tial lessons.

Chief among them: if we are going to end the incar­cer­a­tion crisis, we need to see that people are redeem­able and can be restored because, as Bryan Steven­son says, “each of us is more than the worst mistake we have made.” It begins with inter­rog­at­ing and abandon­ing labels such as “felon,” “crim­inal,” “inmate,” or “offender,” because they work on a broad miscon­cep­tion that those incar­cer­ated for viol­ence are danger­ous and irre­deem­able and fail to account for the fact that so many of the incar­cer­ated have been victims or witnesses of repeated viol­ence in their own communit­ies and suffer from untreated trauma.

I witnessed my brother traverse this valley of despair with a resol­ute hope despite the fact he was not eligible for early release, even though in his years in prison he worked earn­estly, attained occu­pa­tional licenses, and ment­ored other incar­cer­ated people. His char­ac­ter gained him the respect of the wardens, staff, and others housed in prison. Yet his past excluded him from earn­ing good time cred­its that could reduce his sentence. But he never gave up hope, and redemp­tion finally arrived.

By center­ing on redemp­tion and restor­a­tion, we can counter excess­ive punish­ment through policies that promote racial justice and creat­ing release oppor­tun­it­ies for those serving long prison sentences for viol­ent offenses. Research by the Urban Insti­tute recently found that one in five people in prison for at least 10 years is a Black man incar­cer­ated before age 25. In addi­tion to high­light­ing the racial dispar­it­ies in extreme senten­cing, this find­ing also rein­forces the harm that is caused when we “lock people up and throw away the key.”

Correc­tional lead­ers and parole author­it­ies play an import­ant, often opaque role in Amer­ican prison policy and have an immense degree of discre­tion over prison releases. In 34 states, these poli­cy­makers have legal author­ity over the ulti­mate dura­tion of most prison sentences. Any prison reform efforts to reduce the prison popu­la­tion must focus a signi­fic­ant degree on prison-release discre­tion through retro­act­ive and prospect­ive policies that remove parole eligib­il­ity excep­tions, expand elder parole and compas­sion­ate release, allow for “second look” resen­ten­cing, and increase earned and good time cred­its.

These “levers of change” will reduce the amount of time people spend in prison. In recent years, we have seen legis­lat­ors in 25 states intro­duce bills that allow incar­cer­ated people an oppor­tun­ity to have their sentences reduced or to be considered for early release. In my brother’s case, such a law brought Kendrick an imme­di­ate path­way home.

At the heart of our collect­ive effort to change Amer­ica’s reli­ance on punit­ive excess is the acknow­ledge­ment of people’s human­ity, the belief that people can be redeemed and restored. This acknow­ledge­ment under­pins our shared move­ment to reima­gine what invest­ments in people, not punish­ment, can do. These bedrock values are the found­a­tion of the consti­tu­tional guar­an­tees of equal protec­tion, liberty, and due process. They can serve as a light­house beam cutting through the blind­ing fog of excess­ive punish­ment and calm the troub­ling waters of a fear that seek to divide us. If we can keep our eyes on this light, it can guide us to the shores of a stronger demo­cracy that is inclus­ive, equit­able, and promotes healthy famil­ies and communit­ies.

Carlton Miller is a director of Crim­inal Justice at Arnold Ventures and former policy adviser for Louisi­ana Gov. John Bel Edwards.