Orange, Black, or Bleak S3 E4: “Finger In The Dyke”

As a formerly incarcerated person, I have been engaged in a deep-dive into the Netflix show Orange Is The New Black to help explain some of the things that folks watching the show without a felony background might not catch.

Few cool things from last week:

1. After seeing Reverend Dr. Barber speak in Detroit, I wrote a pretty long piece about why we should organize around the intersections created between issues like DACA revocation and the tragedy that was Charlottesville.

2. I also wrote a long piece arguing for mental health reform in Michigan’s prisons and jails. I am hoping that people will join me in calling for necessary reforms throughout the country (not just in Michigan, most of the issues we face exist throughout the country).

3. I interviewed Mr. Robot’s creator Sam Esmail again on Friday night (about the music of the show), I hope you will check it out.

If you have not watched OITNB before *Spoiler Alert*

Some Things About Season 3 Episode 4 "Finger In The Dyke”

OITNB S3 E4 “Finger In The Dyke” is about:

* Boo’s backstory starting with her Mother and Father trying to get her to dress more feminine when she was a child and ending with her Father’s request that she only see her dying Mother after she changes clothes. Boo’s backstory is juxtaposed with her ultimately failed attempt to get money out of Doggett's pro-life religious backers (when the Preacher asks her to cover her “Butch” tattoo she goes off on him).  This is the first of several examples that prove that Boo’s moral ambivalence has limits.

* Suzanne’s coming to accept Vee’s death (and the rest of her crew coming to accept Suzanne). Ultimately, Taystee breaks down too which gives Suzanne a way to unleash her own grief too.

* Alex and Piper engaging in more of the never ending love drama that seems to substitute for them having a purpose in driving the plot (will these crazy kids ever be able to make it work?). This time Piper doesn’t want to have sex because it is her Birthday which always depresses her (June 7th). But don’t worry, it all works out after Piper comes clean about Alex to her visiting family.

* Caputo’s attempt to entice private prison company MCC to take-over the administration of Litchfield seems to hit a huge bump when the tour of the facility by the executive team goes disastrously wrong (many times over). He gets a call at the end of the episode (gee, I wonder what will happen?).

* SoSo deciding that she no longer wants to hang out with her hippy friends who seem happy to celebrate her pain.

* Gloria trying to figure out how to be a good Mother to her teen son who has started to go astray.

* Red trying to cope with the loss of Nicky at the same time she is dealing with Sam sniffing around her tree. Morello trying to come to grips with the loss of Nicky. Red setting Piper straight on Luscheck’s part in putting Nicky in Max (It was Nicky who planted the drugs in Luscheck’s desk).

* Daya finding out (from Caputo) that Bennett took off and that he will not be returning.

Remorse and Responsibility

Most of this episode of Orange Is the New Black was about taking the bold stand of refusing to compromise who you are, even at the risk of losing or alienating your family.

Just two days ago I faced a similar dilemma. I was at an academic gathering at the University of Michigan discussing criminal justice reform when one of the panelists (a former State Senator who now works for the State Attorney General) quoted an anecdotal study that had nothing to do with people who had been in prison and then extrapolated it to suggest that everyone who had been to prison was 'probably' responsible for more criminality than they had ever been charged with.

I faced the choice of saying nothing or standing up in a very public forum and speaking up. I decided to stand up because it has become my opinion that you have to speak truth to power. I wanted to communicate clearly, by responding publically that he was casually branding real people not statistics.

I wanted to communicate that we were real human beings and that if he was going to casually brutalize us and use our bodies to try to justify mass incarceration (his argument was that mass incarceration serves Michigan well) he should have to face us while doing it.  I am proud to have stood up and I will continue to do so whenever possible.

Both Boo and Piper face a similar dilemma, they both refuse to closet themselves even at the expense of alienating their families. Coming out (and in Boo’s case refusing to back down from her truth) is obviously a very important process. I totally and absolutely love the statement that the show is making here.

However, for many prisoners, this only presents half of the honesty dilemma that they most regularly face. Usually, prisoners are caught between the parole consequences of remaining in denial and the family and extended family support that can be imperiled by admitting guilt.

One of the most important elements of the in prison therapy to parole board hearing to being granted parole process for most prisoners is proving to the therapist and the parole board that you are not “in denial” about your crime or crimes.

One of the most shocking things about, for instance, OJ Simpson’s recent parole hearing was that he was granted parole despite his continual refusal to take full responsibility during the publically broadcast parole hearing (every single former prisoner I know was totally dumbfounded by Nevada’s evidence-driven parole process).

For most prisoner’s I knew and for me, the keys to parole were to complete all required (and sometimes the unofficially required but still necessary) programming and to take full responsibility for any and all crimes that we had pled guilty to.

I suspect this sounds eminently reasonable (to anyone who has never been incarcerated) but it is often one of the trickiest moral dilemmas that a prisoner confronts in prison.

Believe it or not (and most don’t) there are many logical reasons why prisoners don’t want to take full responsibility for the full slate of charged crimes which they were found or pled guilty to. This list includes (but is not limited to):

* Over 90% of cases are resolved by plea bargain. Most plea bargains happen under immense pressure. As I have explained a few times before, people are charged with a much larger number of crimes than they actually commit because for each committed crime there is a larger number of statutory prohibitions.

In other words, if I were to commit an armed robbery I could be charged with: Armed Robbery, Robbery, Assault, Assault with a Deadly Weapon, Using a Weapon in Commission of a Crime, and a ton of other ‘names’ for the same crime.

So, you are handed a ‘charging document’ and your one crime has been multiplied by a massive number of named offenses. The prosecutor will go to your lawyer and say, “if your client pleads guilty to X number of counts he or she  will reduce the number of charges to a lower total number (and they will specify which specific ‘names’ you have to plead guilty to).”

“However,” they will continue, “if your client does not take the plea, we will charge you with every single charge from your charging document and push for the maximum time on every charge for which your client is found guilty of (which usually means you would do decades of time).”

So, plea bargains are kind of a shotgun arrangement, the system stacks the deck so that it is in the interest of every single accused criminal to accept a plea bargain. The plea bargain system is a shell game created to allow the system to process a number of ‘criminals’ that is far in excess of the court system’s actual capacity to host trials.

There are many causes of mass incarceration, but the plea bargain system is one of the foundational elements that make it possible for mass incarceration to exist.

This is why I often say that while every person who is charged by a prosecutor likely committed some offense, it is unlikely that they are guilty of all the crimes they were charged with or with all of the charges that they pled guilty to.

Sometimes, because of the brutal experience of having to plead guilty to crimes we didn’t commit (in order to avoid facing the totality of an artificially inflated charging document) it becomes particularly painful (and even traumatic) to have to OWN and show ‘real remorse’ for every one of those charges to prison officials, therapists, and/or parole board members.

* Prison is a very hard place to survive and that survival can be easier when you have money and/or emotional support from friends and family members. Often, the support relationships that exist are sustained by the belief, by the people on the outside, of the innocence of the friend of the family member on the inside. To admit guilt, for many prisoners, would cut them off from all of their support. Imagine if you were in prison and you were going to be released if you admitted guilt, what would you do if the only place you could live upon release was with someone who would shun you if they felt you were guilty?

Again, often, ‘denial’ in this case is a rational choice related to maintaining necessary emotional and material support. It is quite possible that someone in prison internally takes full responsibility for their crimes, but for entirely rational reasons refuses to take any form of officially sanctioned admission of guilt.

Hopefully, this gives you an idea of why a refusal to publicly admit guilt doesn’t necessarily translate into a lack of remorse or into someone actually refusing to take responsibility for their crimes.

Private Prisons

So, most likely, we will be talking a great deal about the private prison industry from this point on (it is one of the major driver’s of the rest of season 3 and all of season 4).

Oddly enough, because Private Prisons have been such an unmitigated disaster in practice, true private prison industry was in decline until recently. The companies, and corporate interests, involved in private prisons were starting to shift money from prisons to mass supervision (parole, probation, monitoring, and housing of released prisoners), video visitation, and prison health insurance (among other ‘innovations’).

Unfortunately, President Trump's election has, in many ways, revitalized the private prison industry's interest in investing in private prisons. 

The basic problem with Private Prisons, if left to their own devices, is that they create a profit motive in keeping people in prison. In other words, in order to ensure private prisons remains a growth industry they have to keep as many prisoners in the system as long as possible while accommodating a continuous stream of new prisoners entering as well.

Law professor John Pfaff had an interesting solution to this problem. He has suggested that the contracts for private prisons be written so that payments are dependent on ongoing reductions in incarceration (suggesting that you could design the payment and contracting system in a way that avoided incentivizing the inherent problems).

The use of incentives is the right answer because most of the problems of mass incarceration are ultimately problems of bureaucratic inertia and of moral hazard.

However, lots of folks have a TON invested in maintaining the status quo so there will be a TON of opposition to trying to massively reduce mass incarceration (if your family is being fed by mass incarceration, you are likely to fight reductions in mass incarceration).

Jon Pfaff was suggesting that if we could pit private prisons against the prison industry it could theoretically use private prisons to end mass incarceration but I am not sure how we get stakeholders involved in supporting this project.

So, if we could make this work, the question would then becomes how we could incentivize corporations to participate in being part of a private prison industry designed to end mass incarceration (what would be the long-term financial benefit?).

Of course Orange Is the New Black has dealt with none of this.

I am just trying to foreground what is about to be 20 straight episodes of discussions with some contemporary context.

Okay, a bit more technical than usual, but hopefully still informative.

Unlocking The Gates

I am a member of a Criminal Justice Reform organization called Nation Outside (The Voice of the Formerly Incarcerated) but I am not speaking for Nation Outside in any official capacity.

If you are interested in criminal justice reform or are formerly incarcerated yourself, please consider joining the fight (if you are a Michigan resident - you can sign up by clicking on the hyperlink above).

Today's Comment Question is:

“What Is Your Least Favorite Storyline In The History of the Show"

Leave a comment, let people know.  Or, if you have questions, I respond to 100% of my polite comments!