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 Excerpted from: Lindsey Webb, Slave Narratives and the Sentencing Court, 42 New York University Review of Law and Social Change 125 (2018) (232 Footnotes) (Full Document)


Lindsey WebbWhatever the purpose of punishment may be in the United States, our criminal justice system seeks to achieve that purpose through incarceration. After more than four decades of escalating reliance on imprisonment, the U.S. now has the highest incarceration rate in the world. Over two million people, disproportionately African-American and Latino, are currently held in our nation's jails and prisons. Yet despite our system's dependence on incarceration, the conditions of the confinement imposed--which can include violence from staff and other prisoners, lack of medical and mental health care, contaminated food or water, and a host of other ills--are largely invisible. Even when judges sentence individuals to terms of incarceration, they generally do not mention the conditions the convicted person is likely to encounter in prison or jail, the role that those conditions will play in furthering the purported aims of punishment, or the racial implications of differential exposure to harsh conditions of confinement.

This Article advocates for criminal defense lawyers to explicitly address conditions of confinement at sentencing. By doing so, a criminal defense lawyer has the opportunity to play two interconnected roles: that of advocate and abolitionist. While creating a compelling narrative of the client as an individual, a lawyer can ask the court to consider the implications of exposing that particular individual to the hardships endemic to the prison or jail system to which he or she would be confined. Defense lawyers can also raise conditions of confinement as abolitionists, meaning, in this context, actors who seek to disrupt and dismantle a system of incarceration that disproportionately affects African American and Latino people in significant and damaging ways. As abolitionists, defense counsel can educate decision-makers about conditions of confinement that run counter to the values of communities and of the justice system in an effort to both avoid prison for the individual before the court and eradicate the United States' systemic reliance on incarceration altogether.

In examining whether and when defense attorneys ought to raise conditions of confinement, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives. While the metaphor is imperfect, there are lessons to be drawn from slave narratives, which “broke in upon the convenient ignorance of the Northern white masses” and sought to expose the unknown and hidden conditions of slavery while also humanizing the enslaved people subjected to those conditions. Incorporating slave narratives into the conversation about sentencing advocacy allows reflection on the role of storytelling in litigation and social movements. It also raises important questions about who tells these stories and which stories are told, in the context of systems of control with deep disparate impacts based on race.

Part II briefly reviews the contours of mass incarceration and outlines the disparate impact that the extraordinary growth of imprisonment has had on people of color in the United States.

Part III then addresses the factors courts can consider at sentencing and the discretion that judges may exercise in imposing sentences. This Part notes that sentencing courts rarely address the conditions of confinement in the prisons and jails where incarcerated persons will live out their sentences and suggests that this omission has racial implications.

Part IV discusses the role that defense lawyers can play in raising conditions of confinement at sentencing and argues that doing so allows these attorneys to advocate for their individual clients while implicitly or explicitly drawing attention to questions of race and mass incarceration that are often unacknowledged in the courtroom. In so arguing, this Part reflects upon the history and structure of Civil War-era slave narratives as tools of the abolitionist movement and draws lessons from those narratives that have implications for modern-day sentencing advocacy in an era of mass incarceration.

. . .

At the conclusion of her book, Mary Prince wrote, “This is slavery. I tell it, to let ... people know the truth,” so that they might fight for a changed world in which “slavery is done for evermore.” While addressing prison conditions at sentencing will not end mass incarceration, just as slave narratives did not by themselves end slavery, there is significance in revealing the hidden reality of the system of incarceration that we as a nation have created. Slave narratives demonstrate that storytelling that invokes both the personal dignity and humanity of the individual and the brutality of the conditions to which they have been exposed can be a tool for personal autonomy and social change. Defense lawyers can draw upon the lessons of slave narratives as they seek to both advocate for their clients at sentencing and to dismantle the racialized system of mass incarceration.

Assistant Professor, University of Denver Sturm College of Law. J.D., Stanford Law School, LLM, Georgetown University Law Center, B.A. Wesleyan University.