My husband Miguel is incarcerated at San Quentin State Prison. He got a life sentence under the felony-murder rule for a killing he did not — and everybody involved knows he did not — commit. He’s nearing the end of his sentence, and poses no safety risk, but because of his 21-year-old conviction, the label “violent offender” means that instead of sheltering in place with me at home, he remains trapped in a 4-by-9 foot cell, with another man, at the site of the worst coronavirus outbreak in the nation.
The scale of human suffering happening inside American jails and prisons during the pandemic is catastrophic. Beyond the physical implications, the indefinite lockdown is torture in the immediate moment, and psychological warfare in the long-term. Miguel and I haven’t seen each other for 5 months, and since the outbreak began at San Quentin in June, we’ve barely been able to speak. He writes to me about not having been outside in months, how pale he’s gotten, how long his hair is, how he’s lost 10 pounds from lack of exercise and food. He writes, “I’ve expected the chaos to further deteriorate, with less and less movement as things get worse. What has really begun to grate on me was how others handle the increased stress and pressure. The cell doors almost never open, so people scream desperately for each other. They scream with strange noises, evidence of mental health issues, grasping for some outlet.”
Our society’s decision to continue incarcerating people who are not a public safety threat — especially during the pandemic — is worthy of examination and careful attention, not only by those in power to do something about it, but by all of us. What does this choice say about us? How much suffering is enough? Do we want to be a society based on revenge, hate, fear, and division? Or one that chooses to believe we are at our best when we love thy neighbor, treat others as we would want to be treated, forgive those who have wronged us and atoned for it, and believers in redemption? How would you want your loved one to be treated if they made a mistake that unjustly hurt another person, even irreversibly? Can we hold people accountable and center public safety without human caging and systemic traumatization?
(The authors: Danica and Miguel.)
In 1998, at the age of 19 and with no criminal history, Miguel robbed a restaurant with two other young men. Though Miguel had only a pellet gun, his co-defendant had a real gun and shot and killed a sheriff’s deputy who had arrived on the scene. The shooting happened just outside the front doors, while Miguel was inside at a spot where he could not see the deputy, and had no idea he had arrived. Although a jury found that Miguel did not personally kill anyone, and did not even witness the killing, he was sentenced to 26-years-to-life for first degree murder under the felony-murder rule in effect at that time. A rule that said, if you commit a robbery and someone is killed by someone else, you are responsible just as if you pulled the trigger yourself — even if you would never have done so, even if you weren’t there when the killing occurred.
Recently the felony-murder rule was changed in California to acknowledge that someone involved in a crime that leads to a death does not bear the same responsibility as someone who causes the death. The man who killed the deputy in Miguel’s case was given a sentence of life without the possibility of parole. Meanwhile, Miguel’s resentencing hearing under the new law has been perpetually delayed (most recently due to the pandemic) and because Miguel is labeled a “violent offender” he is excluded from consideration for any early release under the plans devised by the Governor and the California Department of Corrections.
Yet there’s nothing “early” about releasing him: he’s served 21 years and has never been physically violent with anyone. That’s not to say he didn’t cause harm. We do not minimize the pain and suffering of those impacted by his crime or his co-defendant’s actions. But isn’t 21 years enough, given that a jury found he did not personally commit the murder and that he had no intention or reason to believe someone would be killed?
Miguel is 41 years old, beautiful and kind. He’s Mexican-American. He loves science. He took the SATs in junior high, receiving a score that led to his being approached by John Hopkins University as part of their talent search. He has been intensely engaged in rehabilitative programs for over a decade. He has been assessed the lowest possible “California Static Risk Assessment” (CSRA) score of 1. He is well known as a counselor and mentor for other incarcerated people- they turn to Miguel when they are having personal issues or preparing for the parole board and reentry. He is a true advocate for the most marginalized amongst us: having worked as a Prison Rape Elimination Act counselor, he has developed the ability to navigate some of the most challenging subject matter in prison, and has become an outspoken supporter for incarcerated trans people. He likes string cheese, has the most amazing dimples you’ve ever seen, and plays basketball. He has solid reentry plans and a large and strong support network. He’s a human being, he’s not violent or a risk to public safety, he is suffering, and he should be home.
Revenge, restoration, remorse, retribution, release. Re in Latin means “again” or “back.” These words recognize that something has been lost and that we are trying to regain it — but the paths laid out by “revenge” and “restoration” are vastly different. The person whose life was lost as a result of the robbery cannot be brought back, and Miguel has spent 21 years grappling with how to repair the harm he helped cause. He writes: “I have struggled with how to apologize for my actions, what they caused, and how I could ever even attempt to meaningfully address the suffering and injustice of it all. From my first court appearance, my attorneys advised me not to reach out to anyone in an attempt to apologize for my actions. For many years I used this as an excuse not to do what I knew was right. It was easier to tell myself that by remaining silent I wouldn’t worsen the pain I caused. But all along, perhaps the only thing of value I have ever been able to give is a true apology. To offer it without any expectation of being forgiven, or any response at all.”
Restorative Justice offers us another lens, one Miguel has been fortunate to have learned about and adopted at San Quentin, of all places. It shows us that instead of the central response to harm being punishment and revenge, that we can hold people accountable for their actions in other ways — ways that hold the potential for reparation, transformation and healing. Instead of locking someone away in a cage for 20 years, we could ask those who have been harmed what, besides punishment and revenge, would make them as close as possible to whole again. What would transform their experience from one of pain, suffering and isolation — to one where they feel connected to, and supported by their community? And we could provide those who cause harm with access to the tools to meaningfully address the underlying reasons for that behavior. Instead of trying to disappear the root causes of the harm behind prison walls, we could face them head on, seek to understand them, and ultimately — through real committed effort — transform them. Restorative Justice isn’t a “free pass” or an effort to avoid accountability, it’s centered on it. RJ also recognizes that harm isn’t done to the state — it’s done to, and can only be repaired by, human beings.
From the restorative perspective, there’s nothing more to be gained by Miguel’s further incarceration and punishment. It isn’t making him better or sorrier — he’s peaked on both scales — and it isn’t making the community better or safer. This is the point at which the paths of the “re” words diverge most significantly. Those who favor revenge believe that pain done should be punished by more pain. Those who favor restoration believe that there’s nothing to be gained by causing more pain — that the infliction of more suffering cannot restore what was lost and cannot heal us. There remains, of course, the question of public safety when we talk about releasing people from prison. But here, for people like Miguel, who caused great harm and have paid for it for decades and long cease to be any threat to anyone — this is the crux of the issue.
This moment begs the question: revenge or restoration — which should be at the core of our response to harm and crime?
To be sure, victims are not an afterthought for me — my mother was raped at gunpoint by a stranger who is currently incarcerated in the California prison system. And I have seen how the state has failed my mother over and over again and never had her best interest in mind. The prosecutor who flew my mom out from the midwest to re-testify against this man 30 years after the original trial never attempted to make sure she had received all the proper care and attention she needed. He simply cared about winning his case. Prosecutors are not the keystone of justice and victim rights as they would have us believe — they are actors in a broken system, cornerstones of a human suffering factory.
The characterization of those who do harm as monsters and thugs compounds suffering on both sides. Those directly impacted by harm continue to pay the greatest price in the state’s effort to win the case, the reelection, the narrative battle. The only people who benefit from this division, the “Us vs Them,” the stories of the “irredeemable,” and “the good vs the bad” are those who are invested in keeping the system the way that it is — broken — so that they can keep their posts and their power, at everybody else’s expense.
Violence is a serious issue in our society, and it is not one solved by the additionally violent acts of prosecuting and incarcerating people. When it becomes clear that survivors’ needs aren’t solved by keeping people incarcerated once they are no longer a risk to public safety — that moment demands a different choice. We The People hold the keys to healing and restoration. We can make different choices about how we respond to harm and how we take care of each other.
The change that we need is societal and systemic, and deeply personal. It demands more questioning and more listening. Miguel writes, “we begin by truly hearing each other’s perspectives in a way that leaves us open to change. How they see us and how we see them right now is key. We must work to get beyond ideas of one-dimensional offenders, incarcerated people and authority figures, and victims.”
So, we all must ask ourselves, “Where do I stand? Endless retribution and revenge or reconciliation and restoration?” We can’t honor the memory of Martin Luther King and Representative John Lewis and pray to Jesus Christ while simultaneously advocating for the continued mass dehumanization and the endless suffering of human beings. They aren’t compatible values. We must choose.
Miguel and I chose restoration. In spite of the desperation, disappointment, and fear, we endure. We continue to fight for and dream of his freedom. He writes, “I want to tell you about this dream I had last night! It was just so real and normal. We were free with no aspects of incarceration — finally. We were sitting on the floor. There was this orange tint to the lighting that came from those lamps providing that soft evening at home light. We were laughing and playing. That’s what this dream was about - enjoying freedom with you.”
I can’t wait.