Stay Tuned Transcript: Behind Barrs (with Steve Martin, prison reformer)

Stay Tuned Transcript: Behind Barrs (with Steve Martin, prison reformer)


Preet:                         Steve Martin, thanks so much for being on the show.

Steve Martin:            I’m just really absolutely pleased to be with you, Preet.

Preet:                         Can I start with a question you probably have gotten a lot? Although I have never asked you this question I don’t think. How difficult has it been, the confusion between Steve Martin you and the actor, comedian? Do you get his mail?

Steve Martin:            Well, it depends on how much he’s in the news with a movie or so forth. And I can recall when I was in the DA’s office here in Tulsa County, and that’s back when Steve Martin was really first on the scene. And when I would get introduced to the jury panel or to the court or whatever, more often than not smiles would break out among the people in the courtroom just by saying my name.

Preet:                         Did you feel some pressure to be funny?

Steve Martin:            Well I tell you what I did. One Christmas party, my secretary gave me one of those arrows. You know he used to wear that arrow on his head?

Preet:                         Oh yeah.

Steve Martin:            They’d come out with that. So she gave me that as my Christmas gift. And I was going down to the courtroom later that afternoon, and one of my colleagues said a former DA was on the bench and said, “I will dare you to go down to that courtroom today with that arrow in your head.”

Preet:                         And?

Steve Martin:            And even though the judge was a colleague and probably would’ve taken it well, I chickened out at the very last moment.

Preet:                         I think that’s probably wise. You were young, a young assistant back then.

Steve Martin:            Yeah. I did not want tales told about me taking the court less than serious.

Preet:                         I should probably set the scene a little bit for how we know each other. And that was when a few years ago when I was still the U.S. Attorney in the Southern District of New York. My office joined a lawsuit against the city of New York and the Department of Corrections with respect to the use of force against adolescents at Rikers Island, which is a jail complex that I think is of some notoriety around the country. But it’s a jail complex in New York City. And as part of the settlement and the consent decree ordered by the court, the court imposed a monitor. If you don’t mind being called someone who was imposed on someone else.

Steve Martin:            Right.

Preet:                         A monitor on Rikers Island to make sure that they were gonna be meeting the milestones that they were supposed to be meeting and the improvements and to see if there were ways to bring down the cycle of violence at Rikers Island, which is pretty extreme and remains a big problem, which we’ll get into later. And then I had the pleasure of meeting you and your team and sitting down every once in a while on a regular basis to talk about how we might make Rikers Island better and how we might think about prison. And you are really one of the people who caused me to think more deeply than I ever had before about what it means to have a humane prison system and a humane jail system.

Preet:                         And so before I do anything else, I will wax poetic about your service, which is not something I usually do about guests. But you’ve spent how many decades now on the issue of prisons?

Steve Martin:            I’m in my 46th year working in the prison jail confinement setting.

Preet:                         So that’s a long time.

Steve Martin:            It is.

Preet:                         And you’ve done it as a correction officer. You’ve done it as the legal officer. You’ve done it as an outside sort of monitor and expert, which is in many ways thankless work, un-glorified work, but really important and out of sight for a lot of people in this country who don’t fully appreciate that everyone should care about how we treat people in prison, even prosecutors who send a lot of people to prison. That was my job for a long time. It doesn’t mean that the constitution and its protections end at the prison wall. So thank you for your service on this, and thanks for joining us today.

Steve Martin:            Well, and let me just make one responsive comment to that. I think it’s important for the listeners to realize how rare it is that a sitting U.S. Attorney of one of the largest offices in the U.S. would develop and then maintain a detailed interest in a matter such as the Rikers Island litigation. I have been so impressed from the moment you and I first met with how you approach this, and not in a passing way, but in a very substantive way. It made … Just quite frankly, it made a huge, critically important difference in how that case came to be, how it is currently occurring, and hopefully moving towards some real substantive reform.

Preet:                         Well thanks, Steve. Thank you. And I will say look, I miss working … people on the show here all the time that I miss working with my former colleagues in the office and the agents and the cops, but people like you also I think about from time to time. And I’m fortunate enough to have a platform. I get to talk to you still.

Steve Martin:            Yes. Yes.

Preet:                         And other people get to listen now to some of the things you’ve told me over the years. So let’s get to that. Let me start with a very, very basic question. Why do we have prisons? Are they necessary?

Steve Martin:            Well, the short answer’s yes. They’re necessary in the sense that there is a carceral function in most modern day societies in which certain people for safety purposes, deterrents, incapacitation, need physical confinement separate from the free world population. You can also address it from a perspective of justice retribution. I guess we’ll … we make it into a discussion on mass incarceration. Those people that require confinement, that we would agree safety purposes are the severity of their crimes, are far, far, far fewer than what we do lock up in this country.

Preet:                         Yeah. So we imprison too much, but there are people, because of their conduct, their willing and willful conduct, have to be incarcerated in some way. So let’s talk about what that means. And from time to time I think having focused on these issues and having lived life and read books, particular books about these issues, that you’re talking about an impossible situation. No matter how well trained people are, no matter how well intentioned people are, you have people in cells whose liberty has been taken away from them, and then you have other people responsible for maintaining discipline and maintaining the denial of liberty. And is there any universe in which you can hope for that to be a lovely and peaceful and relaxing environment? Is that just an impossibility?

Preet:                         And the one thing I wanna just throw out there … And you and I have talked about this. Because we talked not only about the sort of the mundane every day operational issues of how prisons function, but also sort of the psychology of a correction officer and an inmate. And there’s the famous study that you know as well as anyone, some of which has been criticized in recent years, but the famous Stanford Prison Experiment. Professor Zimbardo of Stanford took a number of Stanford students, randomly assigned some to be guards, randomly assigned others to be inmates, and he tried to simulate sort of a guard, inmate situation. And according to his writing, they had to abandon the experiment very early because people started to engage in awful behavior. The guards started to behave in awful, dehumanizing behavior. So is it inevitable that prison and confinement circumstances are gonna be awful?

Steve Martin:            The short answer is yes. We talk in terms of mass incarceration or incarceration. Let’s drop the mass. Let’s just talk about incarceration. We typically talk about it in terms of its cost benefit to society, its impact on minorities, on the poor. So there are all kinds of public policy issues in which we debate with incarceration. You know, but what is rarely talked about is how literally debilitating actual confinement is. It is so often cruel, it’s so often brutal, it’s so often violent, and it’s always unforgiving. And just let me illustrate. The New York City jails in a typical 12 month period will have in excess of 5000 staff incidents of force. They will also have in excess of 5000 inmate on inmate assaults. That’s 10000 events in a 12 month period in which there are varying levels of violence.

Steve Martin:            Another example. Jail suicides. The leading cause of death in jails is suicide. The rate of jail suicides is … most recent study I reviewed is 50 per 100000. In the free world society it is 12 or 13 per 100000. Another example. Correctional officers in the state of California. And they are finding that the incidents of PTSD with correctional officers is high or similar to returning veterans from Afghanistan. So that illustrates it’s not only debilitating from the incarcerated person’s perspective. It can be debilitating from the staff perspective.

Preet:                         Yeah, I’m glad you raised that. Because there’s a quote that has stuck with me by [Mikhail Khodorkovsky 00:10:09], who was a … [inaudible 00:10:12] billionaire in Russia, and he was then in prison for 10 years. And he wrote a book called My Fellow Prisoners. And I talk about this in my own book, Doing Justice, which quick plug, you can all buy now. But Khodorkovsky said this that’s very relevant to what you just said. He said, “Prison has a terrible effect on the majority of both prisoners and guards. It’s not yet clear in fact which group is affected more. Society has to do something about this human tragedy, and for a start, people need to know about it.” How hard is it to be a prison guard or correction officer?

Steve Martin:            Well, having had the experience at a maximum security prison in Texas as a young man, 21, 22 years old, I entered that job almost from a social work standpoint. Other words, rehabilitation, social work, trying to be involved in improving the lives of someone around me. When I left there after 12 months, I found myself different than when I started. Different in the sense that I was … I dealt in a more severe fashion typically with inmates. I found myself not trusting, not believing. In other words, the human relationship factor deteriorated markedly.

Preet:                         You remember what you said to me once? You said to me once, “I could’ve risen high,” talking about the prison where you worked. You said, “I could’ve risen high if I had been more willing to kick ass indiscriminately.”

Steve Martin:            Yes. There’s no question. I can recall one of my early experiences is a inmate that had assaulted a lieutenant was beaten down rather badly. He was brought out into the hall so they could demonstrate to all other inmates this is what happens. And I can recall one of my colleagues said, “Boss, how come you didn’t get in on that?” Now, the boss that said that to me had got in on that, and we were kind of contemporaries and he achieved rank while I was there. In other words, he was promoted and he was promoted to lieutenant because he would, so to speak, be willing to mix it up with inmates. That’s just the way the system operated.

Preet:                         So you felt like the worst person after doing that for a year?

Steve Martin:            I did. I really … I explored this with a thesis project because I didn’t particularly like what I had become when … at the end of that tenure. I struggled with a conflict of why … I wanted to be a good officer. I even wanted to achieve some promotion in rank. When you walk away from something like that, you walk away at best questioning the experience, if not struggling with conflict of how you conducted yourself.

Preet:                         Because the question is, is it inherently the case that working at a job like that that’s so difficult and where you’re essentially by order of law subjugating other people, even though it’s necessary and appropriate and can be just … What kind of a person does not feel worse? In other words, do we ask too much of human beings who are asked to become prison guards?

Steve Martin:            I think we do when we are operating with what I refer to as the punishment model, which began to flourish under the law and order administration of President Nixon through the 70s and has flourished over the number of years. That when you place the emphasis on control measures, that is physical control measures, I call it care taking. And that’s dominated by a physical hardware. That’s dominated by weaponry. That’s dominated by tactics and so forth. When you have that setting, it’s almost like a war zone or it can be. When you have that dominate model in your administration of justice in your prison facilities, it is almost asking the impossible.

Steve Martin:            Because what’s gonna happen is one of two things. You’re gonna get people that flourish in that that are violent themselves or you’re going to get people that cannot tolerate that because of the violence. Well, it’s those people that should be allowed to flourish in a confinement operation. You look at the turnover rates in some of these places, it’s just unbelievable. So you end up with people that stay there that maybe don’t have the skillset to manage others in a way that reduces violence, that programs inmates, that encourages inmates, that prepares inmates. It just doesn’t work that way.

Preet:                         I mean, if you set it up as a battlefield, you can expect a battle.

Steve Martin:            Yeah. Exactly.

Preet:                         And so how should it be set up?

Steve Martin:            Well, it should be set up, number one, I think where the arrest decision, the decision to prosecute, the decision to sentence, those actors almost have to relearn learn what, in my … what justice administration is. It is to identify those that require the serious confinement incarceration and to differentiate between those folks and folks that if we had the appropriate services, community services, the diversion, they’re receptive to being in an appropriate program for mental health disorders or for addiction or whatever it is. And first question should be, in my view, can we manage this offender in the community? Can we manage this offender without the expensive incarceration that brings a whole load of other issues? But that’s not the dominate approach.

Steve Martin:            And you only need to look at the incarceration rates in the U.S., in my view, that supports that default position of locking them up. Where some systems that have very, very low incarceration rates, they look at it as a true failure in their justice system when they have to lock somebody up. We look at it, so often prosecutors do and even judges, as a success. If I get 30 years for this person, if I get 10 years for this person or if I get life for this person or if I get a death sentence as a success, that’s a failure. That’s a failure.

Preet:                         But that doesn’t necessarily answer the question of then, even if you have a smaller population, I think, you know, I agree with that and I prosecuted people for years. I think there should be a smaller … a much smaller prison population. But given the … Any kind of prison population, is part of the problem that on the one hand you, as a prison guard, as management there, you’re viewing these people as potentially dangerous? Especially if you’ve been convicted of serious crimes and you’re maximum security like where you worked. And on the other hand, there should be a policy prescription not to slip into dehumanizing them because they are people. They’re gonna, many of them, get out one day. They’re human beings. But a lot of the features of prison life, not even that necessarily intentionally dehumanize them like the uniform and the curfews and … I don’t know. You could probably list a whole bunch more.

Steve Martin:            You can minimize those or lessen those effects of confinement, the pains of imprisonment as one world renowned sociologist called it years ago of, you know, lack of goods and services and the uniforms and so forth. And there are systems that attempt to do that. And that does have an ameliorative impact on confinement. No question. But confinement’s confinement. I mean, when you’re separated 24/7 from your family, friends, and so forth, that is going to have, as I said earlier in this conversation, at best a debilitating effect.

Preet:                         Yeah. But the problem with some of the mitigating things … and I saw this at Rikers and I’ve seen this in other places … that some of the things that might be useful like programs, training, education, exercise, sports inside the prison, all those things that are outlets for people and allow them to build skills so when they come out they can reintegrate into society, all those things on the one hand seem to me to be very reasonable.

Preet:                         But then there’s a thrust of opinion on the part of maybe some correction officers and also politicians who think that’s coddling and you’re being too soft on these folks and hard time is supposed to be hard time. One of the best ways to make sure that there’s less prison violence, someone who used to be a correction officer told me this, is to have exercise equipment. But there’s hostility to that because why should they have the free gym when the correction officer has to go pay for a gym membership? Or why should they be able to get online classes in history and geography and earn a degree when the correction officer can’t? How do you get around that sort of resentment and bad feeling?

Steve Martin:            Well, I refer to that as populous penal policy. How in the world do we afford them access to college courses when I as an officer can’t do that? And that’s obviously a very shortsighted mentality, but it is a pervasive mentality in some systems. And you do it through leadership from the top down with directors, commissioners, wardens, that actually set a bar of accountability. And part of that accountability is not … and your line staff not engaging in that populous, shallow, counterproductive type of behavior. But if left unchecked or even encouraged, then you end up with some systems that are indeed operating in violation of the constitution because of excessive force or other constitutional issues.

Preet:                         Yeah. I mean, it’s just a cycle, and it becomes very difficult to break. You spent time working maybe in the hardest place it must be to work in any prison system, on death row, in of all places Texas. What was that like?

Steve Martin:            Well, it was an extremely, relatively speaking, oppressive setting at the time. This was 1972. Because the death row inmates in Texas at that time literally were locked up virtually 24 hours a day in a approximately five by eight cell. So it was about 40 square feet, which is roughly the size of an American bathroom. And they would be out of cell maybe three times a week for a short exercise period or to get their hair cut. When you keep a body of men … there were 42, I believe, on death row at that time in 1972 … locked up in that type of setting with no programming, very, very limited property in five by eight foot cells 24 hours a day, you end up with basically people that atrophy, people that go crazy, people that give up, people that-

Preet:                         They also engage in further violence because they have nothing to lose.

Steve Martin:            Exactly. Yeah. And that’s the way death rows were operated at that point. Texas was not an outlier by any means. Death row prisoners were just viewed as requiring that type of ultra high security.

Preet:                         Even though it is the case even back then … and I would have to go back and research … but it was still a number of years of being on death row before there was either a commutation or actually executed.

Steve Martin:            Yes. Yes. One of the things that … I guess timing dictates so much of what we do I guess, but I was actually working death row in Texas when Furman v. Georgia was handed down. The U.S. Supreme Court case, as you know, that declared the manner in which it was employed at that time was unconstitutional. So we commuted … Or I say we. The state commuted the sentences of those inmates on death row, and I happened to have been able to observe them coming out off of death row and with the regular general population. And the thing that struck me is some of these inmates are among the best inmates we have here at the Ellis Prison Farm. They integrated into the general population.

Preet:                         Why do you think that is? How were they received by everyone else? Sort of you guys are the baddest guys here or we’re afraid of you?

Steve Martin:            No. No. Because convicts know convicts. I’m sure some of them … There were a few of them that really had kind of extreme criminal histories or their capital offense was extreme that had high notoriety and we, I think, segregated. But your typical death row inmate, I’ve always told people I can go to any high max prison in a large state, say California, Michigan, New York, and immediately identify individuals in the general population that are much more dangerous and threatening than your typical death row inmate.

Preet:                         What’s the giveaway on that?

Steve Martin:            Well, so many death row prisoners do not have … I won’t say so many. A number of them don’t have the career criminal type of lifestyles, and some of them are simply situationally violent. I mean, there are all kinds of factors that … Plus, just the vagaries of the application of capital punishment as you know as a prosecutor, whether one is prosecuted as a capital case is oftentimes subject to a worthy offense occurred, what the prosecutor … his view, whether there’s good counsel. There’s so many-

Preet:                         All sorts of things.

Steve Martin:            Yeah. There’s so many factors that dictate that that you cannot assume … or I’ve never assumed that because you’re a capital offender that you are somehow a more constant danger than many other prisoners that are not capital offenders, simply put.

Preet:                         So you actually had a particular role at some point in the administration of the death penalty, did you not?

Steve Martin:            I did. Yes.

Preet:                         Explain that because that sounds like a very difficult thing to do.

Steve Martin:            Well, the then director of the Texas prison system of course presided over executions in Texas. He had come from California. Career corrections professional from California. Ray [Percunia 00:25:29] was his name. And had had a bad experience with an execution in California in which a commutation or a stay of execution was delayed, and the prisoner was executed.

Preet:                         Wait, meaning that it was a premature execution?

Steve Martin:            Yes. Yes. And so when he came to Texas, the set up in Texas was the executioner was behind a one way mirror with the execution set up. The IVs into the person to be executed went through a little slot, and there was also a phone in that room with the executioner. So the director asked that I basically maintain … be present with the executioner and maintain an open line from the governor’s office or the attorney general’s office in case any stays, etc. came in so they could … that hook up went immediately to me with the executioner so it could be stopped. In other words, you didn’t have to go through several layers of phone calls or going through doors. I mean, I was back there with an open line just as the execution was to embark. And the last thing I would ask is any stays, commutations, or whatever. I’d turn to the executioner and then the warden who actually okayed it to-

Preet:                         Right. But you were basically the person … One of the last people to give the green light.

Steve Martin:            Yes. The warden actually did it because we would open the door, and I would nod to the warden and the warden actually presided and actually carried that out.

Preet:                         And how many times did you do that?

Steve Martin:            Four.

Preet:                         And how did that feel?

Steve Martin:            Well, first one’s, you know, it’s a new experience like anything. You don’t know really what to make of it in terms of morality or in terms of justice, in terms of whatever. So I looked at it … Even at the time I was ambivalent about the death penalty. I had not taken a position either way, but I certainly questioned. So during that time, I justified it by simply saying I’m in a position to stop the execution should it need to be stopped. That’s how I … kind of my shorthand way of saying … of giving me myself a comfort zone to be involved in such a process. So that took me through the first few.

Preet:                         Then at some point you decided that you could no longer favor the death penalty.

Steve Martin:            Yeah. It was a particular capital offender by the name of [Doyle Skillern 00:28:02] that … The director and I, before each execution, would go back to the staging area before the inmate was actually put on the gurney just to have a word. The director thought that was important, and I would accompany the director back to do that. And when we went to have that conferring with Skillern, he was in a very, very calm frame of mind and actually thanked us and showed his appreciation for the director having started quite an innovative program at the time of bringing inmates out of their cells in death row to engage in productive work. And it was called the Work Capable Program, and it was a very, very, very successful cutting edge program in American corrections at the time where you brought people off the row during the day just like any other inmate.

Steve Martin:            But before that program had developed, a predecessor of the director actually put him in the death row prisoners for a while, most of them, in general population. And when the new director, Percunia, came said, “We can’t do that because first time we have one of these guys escape, legislature and the governor and everybody else gonna be all over me.” So we had to pull out of the general population even though they were doing quite well.

Steve Martin:            Well, when we did that, the director said, “I wanna go out and allow the death row population to pick four or five death row inmates as a delegation. I’ll have them brought up, we’ll go out, and I’m gonna look them eye-to-eye, face-to-face and tell them why they were pulled out in general population. He did in fact do that. I was with him during that meeting, and he committed to trying to develop some program, which he ultimately did.

Steve Martin:            But anyway, Skillern, last thing he said was, “You’ll never know how much that meant to the death row inmates that you looked us in the eye even though you had pulled us and we were all upset that you’d pull us out of general population and put us back on death row. That you actually sat down, looked us in the eye, and told us and then committed and carried out.”

Preet:                         So the last thing he said was to thank you and others for a kindness that you gave them in the prison?

Steve Martin:            That’s the last thing he ever said. I mean, yeah. Exactly. Yeah. So I actually had to execute the return of the death warrant. As a chief lawyer for the system, I would go back to the office after the execution and actually complete the warrant. And when I went back after Skillern’s execution I said, “You know, I don’t even know what he did. I don’t know anything about him, and we just took his life.” And I got kind of said, “I should know something about him.”

Steve Martin:            So I had his file, prison file, and I examined it. Spent almost the rest of the … We would execute at midnight, so we were probably through with the execution by 12:30 or so, and I spent a good part of several hours going through his file and learned that he was a co-defendant and that his co-defendant at the time that we executed him was actually out of prison because he, in which terms you understand, won the race to the courthouse. He was the first to flip and that got the plea, was sentenced, and then …

Steve Martin:            And that matter even more of concern to me, he was the shooter. So I sat there and said, “Okay, here we have just executed only one of the two principles, and the principle that probably, depending on how you look at it, had less culpability while his co-defendant is on the streets.” And I said, “Something is afoul with a system that operates in this manner.”

Steve Martin:            And so I began really, really questioning my role and my participation. And ultimately, on a variety of grounds, came to believe that the death penalty could not fairly and or morally be administered to people.

Preet:                         Do you have hope for the future on both the issue of who gets incarcerated and how many mass incarceration? And also how we treat people in confinement?

Steve Martin:            I do, but we’ve gotta change the calculus or the paradigm of how we view the confinement experience. And in fact, one of your colleagues at NYU, a world renowned social theorist and criminologist by the name of David Garland, in his seminal work “Punishment in Modern Society” says that following. And this is one of the most, to me, important passages in my field because it captures what is so often lost in the politics, even among the professionals, the actors in the criminal justice system.

Steve Martin:            Garland says, “Because the public does not hear the anguish of prisoners and their families, because the discourse of the press and of popular criminology presents offenders as different and less than fully human and because penal violence is generally sanitized, situational, or of low visibility, the conflict between our civilized sensibilities and the often brutal routines of punishment is minimized and made more tolerable. Modern penalty is thus institutionally ordered and discursively represented in ways in which deny the violence which continues to inhere in its practices.”

Steve Martin:            I carry that around with me because it so eloquently captures until the citizen that today talks about well, why should we give him three meals or why should he complain about three meals? He wants to stay in prison because he gets … Until that person understand that’s not the typical inmate … The typical inmate is exposed, as I said, to an unforgiving setting in which violence can erupt. It often does at any moment over the most inconsequential matters or it can be the product of putting mentally disordered prisoners with prisoners that take advantage of those sorts or whatever. So the average citizen simply does not grasp what Professor Garland has captured.

Preet:                         If you’re an inmate and you’re subjected to all those rules and regulations and curfews and discipline and you see the armed guards, what does that do to your sense of fairness? And how keenly do you feel in fractions on the part of the guards if you live in that environment?

Steve Martin:            The typical inmate, because they are like you and I, they’re humans, they’re people, have a fairly good understanding and sense of fundamental fairness, okay? They understand when they’re getting screwed in other words. They understand when they’re getting a case put on them that should probably be put on the officer. Most inmates are very sensitive to being subjected to unfair treatment. And that typically … Nothing good comes from that. An inmate will either engage in reprisal, retaliation, etc.

Steve Martin:            So it’s ever present, but inmates … And I think we often don’t understand that. Fundamental fairness is still at play and must be and should be in a confinement setting. It’s no less important in a confinement setting than it is on the streets.

Preet:                         Yeah. I think people forget. They think if you’re a bad person and you have screwed other people, maybe you don’t have a sense of whether or not you’re being treated unfairly. Sounds like a paradox, but it’s not.

Steve Martin:            Or because you have treated people unfairly or taken advantage of people, we can do that to you. Well, that’s what separates, in my view, that’s what a public trust is. Officers and staff are not permitted to embrace that. In fact, it’s counter to the constitution. It’s counter to law. We are not permitted that, and anybody that engages in that should not be in a confinement setting.

Preet:                         Yeah. I wonder also if our psychology study is getting better. I mean, people forget this also that some regimes of punishment and incarceration were begun in good faith, right? The word penitentiary, which people associate with harsh time, comes from the word penitent, the idea being that you spend all your time alone and you reflect on your sins and that automatically rehabilitates you and you come out. So it was not intended to be as harsh as we, in modern times, understand solitary confinement to be. We’re making some progress based on some of the work that we have done on taking away the imposition of solitary confinement with respect to adolescents and young people. Do you think we’re getting better in that regard also?

Steve Martin:            I mean, that’s a good first step. And the First Step Act that was just passed is they put limitations on the placement of juveniles in solitary confinement. But that is … I fully support that. I mean, there’s just no question that that’s an advancement. We still have across American prisons large, large numbers of individuals locked up in what could be characterized as solitary confinement. I use other terms. I use isolation, segregation, separation, but in essence it’s commonly referred to as solitary. So by no means does the provision and in the fair First Step Act that’s applicable to juveniles begin to solve a much, much larger problem in terms of sheer numbers and systems.

Preet:                         Most of the work you’ve done has been in public facilities.

Steve Martin:            Yes.

Preet:                         Do you have a view on private prisons?

Steve Martin:            Oh, I do.

Preet:                         For profit and whether that’s god awful or not?

Steve Martin:            Yes, I do.

Preet:                         Okay. What is it?

Steve Martin:            In fact, I wanna commend your listeners that are interested in this subject, privatization, to go out and buy a book that was just published. They can buy your book and this book at the same time.

Preet:                         You first buy my book, then buy this other book.

Steve Martin:            Exactly. Or get them in tandem. It’s called American Prison: A Reporter’s Journey into the Business of Punishment by Shane Bauer. This is a reporter that went to and applied for a position with the Corrections Court of America, one of the largest private corporations in America and went to work in a filthy in Louisiana. And this book chronicals his experiences. And his experiences were very consistent with mine over many years of having investigated and inspected facilities run by private operators.

Steve Martin:            The thing that everyone’s got to keep in mind about private prisons is they are simply profit driven. 70-80% of the cost of operating any confinement operation is staff and probably the second is … most costly thing is provision of medical healthcare services. If you look at the performance of private operators over the years since it has come into play in the 1980s … Although in the modern times. Now we can go back. It was in play post Civil War too. But what you see is staff almost always is short staffed. They have utterly high turnover in these facilities, they pay them minimum wage or very low wages, and the medical healthcare services because they’re very expensive are, charitably put, usually lean if nonexistent. And that’s one of the reasons privates are aggressively moving into the immigration detention business.

Preet:                         Because there’s a lot more of that business now.

Steve Martin:            Well, there’s a lot of it, but those aren’t difficult inmates to manage. So they can make high profits with and operate more successfully with lean staff. And because they are detainees and they’re more short term detention, medical healthcare is not as critical as it is in a long term prison. It is the perfect situation for the privates, and that’s why they’ve aggressively moved into that arena. But make no mistake, I’ve had direct experience from a corporate side with this, is profit always trumps performance. It just simply does. If there is a choice between something eroding their profits and providing an essential or better service, it’s been my experience they opt for that choice that there’s not does erode privates.

Preet:                         And there’s also an argument to be made that one of the reasons they’re getting more of that business is there’s a very serious political lobbying effort and donation effort. So it’s hard to understand if it’s related to performance and efficiency or morality or simply people are feeding coffers of politicians who are prepared to allow these things to happen.

Steve Martin:            You look at the private prison lobby and their contributions, it’s just off the scale. I can recall I had just left the Texas prison system in 1985 when CCA came into Texas to do business, and the minute they hit town they had snapped up every major premier lobbyist in Austin. I could not believe what I was … learned of oh yeah, they had this person, they had that person, they had them all. And then the contributions they started making to political candidates was just off the scale. And of course that’s reason they’re an industry leader too.

Preet:                         First Step Act, you feel that that will make a difference in the world that you care about?

Steve Martin:            Well, the short answer … Well, I’d put it this way, I’ve heard that … this characterized as bringing about sweeping change and an overhaul of the criminal justice system. By no standard is that true. Sweeping change is no. Overhaul? No. Incremental reform? A bit, yes. And I certainly favor virtually all the provisions of the First Step Act because-

Preet:                         What’s your favorite one?

Steve Martin:            Well, there’s two that are my favorite because-

Preet:                         Okay, you can have two.

Steve Martin:            Because what they say about the state of corrections. One is a provision of free sanitary napkins to incarcerated women in prison. Because what that tells me about the state of corrections in America when Congress has to mandate, has to pass a law to provide feminine hygiene products to an incarcerated person, what does that say about the state of corrections? In any well run correctional system it should be managed in a way where essential services are provided regardless of whether there is a law because that’s called the human condition. That’s called being humane. The second is the prohibition of shackling pregnant prisoners. I had direct experience with that monitoring in New York City a number of years ago, and I just never saw a situation where that was necessary because you could always have an officer stationed and ready to act if necessary.

Steve Martin:            So the thing that I would probably leave you with on the First Step Act is this, that it is … Criminal justice reform often does … And I’ve been on senates and commissions. I’ve been involved in this for my career. Is they address reforms at the backend. And most of the First Step Act are what we refer to as backend reforms. They do not address front end reform such as pervasive sentencing disparity. It exists in the federal system.

Steve Martin:            In fact, the average sentence length … And this is a 2017 study showed that African Americans have almost twice the sentence length than their counterpart whites. So you’ve got two things operating here. Number one, the incarceration rate for African Americans is substantially higher than their white counterparts, so they go to prison more often. Then when they go, they go for longer terms. That’s a double whammy.

Steve Martin:            And until reform starts addressing these population drivers that sentencing disparity can produce, the numbers may go down a bit, but between new commitments and high rates of recidivism, which we have, you’re going to have … it’s going to be a growth industry. I mean, five out of six inmates released from prison … This is a more real recent study by the Bureau of Justice. Five of six inmates re-offend within nine years. 7 of 10 within three years. So if we are recycling at those levels combined again with new commitments and prosecutors and courts that default to prison, things aren’t going to change appreciably.

Steve Martin:            We can make conditions better, and that’s what the First Step Act does in limiting solitary confinement for juveniles, compassionate release for elderly offenders, home confinement for low risk offenders. Those are back end reforms, and I support them. Enthusiastically do, but anybody that believes that this is a monumental reform or sweeping reform simply doesn’t understand the business. Now, it’s political rhetoric is what it is.

Preet:                         I think for some people, change and reform is so long in coming and so uncommon and rare that if there’s something to celebrate, they wanna celebrate it. And the fact that you can get on any issue Democrats and Republicans and people from other sides of the spectrum to agree on something, even if it’s from different incentives, you know, cost versus morality or whatever the reason, to have some consensus on something gives people some hope. I agree with you that it doesn’t do nearly as much as it could.

Steve Martin:            Yeah. And that’s the most positive thing about this is it can inspire other jurisdictions, state jurisdictions to do more. And it hopefully will literally be only the first step. In other words, there’ll be a second step and there’ll be … But I fear that, you know, you can tie a ribbon around this package of reform and everybody moves on to other issues and they say, “No, we took care of the criminal justice issue.” Plus, as you well know Preet, this only applies to federal prisoners, which is-

Preet:                         Which is a minority of prisoners.

Steve Martin:            92% of all people incarcerated are incarcerated in state jurisdictions, so this affects a relatively small percentage of the total incarcerated population in the U.S.

Preet:                         Steve, it’s been a pleasure talking to you. There’s so many more things to discuss. I hope we can have you back.

Steve Martin:            Any time, Preet. You know I’ll be there.

Preet:                         Thanks. And thanks for your service, sir.

Steve Martin:            Thank you.