Excerpted From: Steven Zeidman, Rotten Social Background and Mass Incarceration: Who Is a Victim?, 87 Brooklyn Law Review 1299 (Summer, 2022) (117 Footnotes) (Full Document)

SteveZeidmanSeveral years ago, the annual Parole Summit organized by the Lifers and Longtermers Organization (LLO) at Otisville Correctional Facility in New York included a skit the organizers created about sentencing in criminal cases. The skit began with the accused having been found guilty of murder, and attention then turned to sentencing, with LLO members playing the role of judge, prosecutor, victim's mother, defense counsel, and defendant.

The judge started the proceeding by asking if all sides were ready for sentencing, and the prosecutor and defense attorney nodded their assent. The judge then asked if the prosecutor had any sentencing recommendation. The prosecutor detailed the facts of the case, referred to the defendant as an unrepentant danger to society, and implored the judge to impose the maximum sentence of fifty years to life.

Thereafter, the victim's mother addressed the court. She spoke of the excruciating pain she felt every second of every day and the irreparable harm the defendant caused. She concluded by urging the judge to send the defendant away for the rest of his life.

Defense counsel began by acknowledging the heinous nature of the crime, and then talked about his belief in his client's good qualities, the legal issues in the case, and the plans to appeal. He concluded by asking the judge to impose a reasonable sentence.

Then the judge addressed the defendant: “Is there anything you wish to say before I pronounce sentence?” At that moment, the room got very quiet as everyone watching leaned in to hear what the script called for the defendant to say. The defendant looked down at the floor, shook his head, and whispered “No.” There were audible murmurs of recognition from the many lifers in the room. The skit ended with the judge sentencing the defendant to fifty years to life.

The skit generated heated discussion. On its surface, the point seemed to be the defendant's failure to seize the opportunity to acknowledge and accept responsibility for the harm he caused and to express remorse. Yet LLO members quickly raised myriad explanations for remaining silent--feeling concern about compromising an appeal (and their lawyer's admonition that they remain silent); being too consumed with anger, frustration, sadness, and anxiety to be able or willing to speak; and believing in the futility of saying anything that would lead to a lesser sentence. A final reason, of course, is the impossibility of expressing remorse for something if the person being sentenced is in fact innocent. As a result, many people are sent to prison for lengthy terms, like fifty years to life as in the example above, without the judge having ever heard them utter a single word.

Working for several years with people serving life and long term sentences has made me increasingly aware of the many ways their voices are stifled--they seldom testified at their trial (if indeed there was a trial as opposed to a guilty plea); they rarely spoke at their sentencing; and decades later when they finally appeared before a parole board, they were interrogated about their crime of conviction and prohibited from fully explaining the confluence of factors that led to their arrest.

And so, what remains buried along with the prisoners behind the walls is the reality that hundreds of thousands of them are themselves victims victims of both willful societal neglect and victims of massive prison terms unknown to any other western industrialized nation. Given the current calls for overhauling, if not abolishing, the criminal legal system, it is time to center the voice of the accused and bring to the fore the reality of societal blame for most serious crime and for the crisis of mass incarceration.

Part I of this essay provides an overview of what has come to be referred to as “rotten social background” or “severe environmental deprivation,” a confluence of circumstances meant to describe the harsh conditions found in many underresourced and overpoliced communities, particularly communities of color, and the impact of those factors on people's opportunities, choices, and behavior. Part II examines the impediments to actualizing defendants' supposedly sacred constitutional right to meaningfully testify on their own behalf in the few cases that do proceed to trial. Part III focuses on the defendants' right to be heard at sentencing and the ways, particularly if the conviction was the result of a guilty plea, that any statements made are circumscribed and discounted. Part IV scrutinizes the back end of the criminal legal system and the limitations on incarcerated individuals' rights to be heard at parole interviews beyond the facts of their crime of conviction and statements of contrition. The overall analysis reveals the many ways that the accused is denied the opportunity to be heard, fully, about their life circumstances and the myriad societal factors that paved the way for their current situation.

[. . .]

Few people testify at their trial. Few people speak at their sentencing. Few people are permitted to testify to any significant degree at their parole interview. It behooves all concerned with any semblance of fairness and decency to interrogate the reasons why the accused is effectively barred from speaking and to then remove those barriers. In the process, more people would be exposed to the realities of societal fault in prevalent and ongoing RSB, and to sentencing practices that have driven, and continue to drive, the crisis of mass incarceration.


Steven M. Zeidman is Professor, Co-Director of the Defenders Clinic, at CUNY School of Law.