We come together to bond once more as warriors of all wars – in formation, such as it is.  We are the living brothers of our dead comrades – friends and foes alike.  We recall in distant haze our common struggle and the lessons learned at the butt end of our weapons.  Bone weary but supercharged, scared stiff yet in teeming rage, battles consume and give life.  Some warriors expire and there find peace; others survive and enter manhood weeping.

One such survivor of the war most of us experienced four decades ago was Karl Marlantes, a Rhodes Scholar and an infantry platoon leader in Vietnam.  He served with Charlie Company, 1^st Battalion, 4^th Marines in the western corner of I Corps, near the Laotian border in 1969.  He was awarded the Navy Cross, two Purple Hearts and an assortment of other commendations for valor.

Twenty-five years later, after what he described as bouts of “snot dripping sobbing,” Marlantes was diagnosed with Post Traumatic Stress Disorder.  He now takes daily medication and attends weekly therapy sessions.

In fact, now that 40 years have passed since he led his band of 19- and 20-year-olds in the cloud-shrouded jungle, he has two major books in print:  one is a powerhouse novel titled, Matterhorn, and the other is, What It Is Like to Go to War.  Matterhorn is probably the best story of combat to come out of Vietnam and is on par with some of the greatest works of literature.  It also is almost identical to Marlantes’s experience there.

What It Is Like to Go to War is an analysis of the Matterhorn experience, explaining the psychological aspects of a warrior’s tribulations.  Calling in a fire mission on a herd of wild elephants; having a member of the platoon dragged into the jungle and half eaten by a tiger, then finding the remains and having to hump them back to base camp; or aiming an M-16 at a battalion commander who ordered a succession of costly but meaningless patrols.

I recommend both books to you.  Matterhorn is compared to Vietnam the way The Naked and The Dead was to World War II – both classics.  And What It Is Like to Go to War is deeper, more introspective, more thought provoking, more analytic.

In both cases, the setting is war; the issues are the universal ones of men engaged in deadly battles with their enemies while also fighting the internal struggles with the demons inside themselves.  It is this latter struggle that we all confront as we make the passage from boyhood to manhood.  In the end, the boy almost always dies, like the Marine taken by the tiger or the veteran who emerges into manhood.

A few years back we at the Prison Society held something we called the manhood project.  We selected 20 lifers from different prisons – a couple from here at Dallas.  Secretary Beard agreed to temporarily transfer 10 to Camp Hill and 10 to Graterford.  Prison Society staff and volunteers met with the two groups separately on alternating days.

I mention this because I am at times haunted by the parallels between war and incarceration.  Teenage boys convinced of their Invincibility dream of battlefield glory in a way that street savvy gang-bangers see prison as a rite of passage.  In both cases there are internal values to be upheld and codes to honor, while external circumstances know no such nobility – hence, a short round falls on friendly troops or a life sentence is mandated for an unwitting lookout in a robbery that goes bad.

When those aging lifers gathered at the manhood project to talk of their transcendence it was reminiscent of old soldiers retelling tales of decades past.

One prisoner said:  “I now realize hurting people is not part of being a man.  Being a man means that I care about people and realize how I affect others by what I do.”

Similarly, Marlantes speaks with great respect for the North Vietnamese soldiers he fought so hard to kill.  Not only were they good, well-trained fighters, they also had the usual personal connections to parents, wives, girlfriends and others.

Another prisoner spoke about maturity and taking responsibility and making choices with the understanding that there are consequences for those decisions.  And one older man who’d already served more than 30 years told the group about the demon that lived inside his body and how he managed to get control over it only after spending a number of years in prison.

We all have those demons – “shadows,” as Marlantes calls them.  The battlefield we all have exists inside our head.  There is where we slug it out every day – confronting our doubts and fears with the only effective ammunition we have – the values we adopt in maturity and pledge to live by.

It really doesn’t matter if our home is on the streets of a city or on the blocks of a prison.  We all want things we will never have, and we all live with memories of things we wish we had done differently.

Veterans Day is a day devoted to remembering the past with all its honors and horrors.

In cemeteries and town squares, in memorial gardens and legion halls, buglers will sound taps, officials will speak of days gone by, and graying veterans will salute the colors once again.  But in the darkest shadows of their minds where lurk memories of death and brotherhood, fear and duty, courage and cowardice, they will search for that nobility of purpose that so marked their past.

And we here will recall all the great battles of our lives, including the less glorious and bloodless struggles for inner peace, free will, purposefulness, dignity and self-esteem.  Nor could we or should we ever forget the enduring fights for justice, fairness and humanity.

Memory is the glue that binds me here to all of you.  I’m not going to call us a band of brothers because the expression seems a bit shopworn and besides we have sisters as well and they have suffered just as much or more.

We are all a bunch of weary brawlers who have slogged through life’s unfathomable trials.  Sometimes these were military passages; other times they were civilian battles.  In the end, the search for meaning is much the same.

St. Augustine, the ancient philosopher, once said, “The purpose of all war is peace.”

We may not always have pursued that purpose, but it’s a sentiment I wish to leave you with today.  Peace in your recollections of the past and peace in your pursuits in the future.

Thank you for letting me be with you!

Legal  scholars may agree or disagree with this court order but the real message that should be taken from this development is that we have been pursuing faulty strategies in response to crime.  Mass incarceration is a failed policy.  We have engaged in this policy as a luxury while we could afford it but the cost to state treasuries has become unbearable and the toll taken by our communities is a sin against humanity.

January 2005

It was, indeed, a thing of beauty — though not for all the obvious reasons – a clash between a nuanced and compassionate public and the absolutist titans of justice who almost never view punishment as excessive.

Six elderly, hobbled and unsophisticated men and women were arrayed in the well of the Commonwealth’s highest courtroom beneath a magnificent, stained-glass dome that signified the supremacy of the decisions reached there.  Before and above this simple band of common citizens, in the almost throne-like, elevated seats reserved for Pennsylvania’s Supreme Court justices, sat the five scrubbed, shorn and well dressed members of the state’s Board of Pardons – men and women of significant academic, professional and political accomplishment.

These unevenly matched groups came face to face at a rare public hearing where the Board would decide if it should recommend to the governor that clemency be granted to a prisoner who was convicted of first-degree murder in 1970 when he was barely 15 years of age.

At stake were sharp-edged issues such as these:

• Should adolescents be held to the same standards of criminal culpability as adults?
• Should the state ever show mercy to a prisoner based on his or her conduct while incarcerated?
• How much influence should victims or their survivors have in determining punishments?
• Should prosecutors be as Stepford Wives in their commitment to a sound-bite philosophy of life-means-life or to the pursuit of fairness and compassion in justice?

And, more deeply, this incident highlights another question:  What does it say about criminal justice in America where millionaires can win courtroom absolution for their most savage acts while the state applies its fullest force and fury against lonesome, confused and impoverished children?

In a hair-splitting and infamous 5-4 decision, the U.S Supreme Court ruled in support of a district attorney who oversaw gross prosecutorial misconduct that came within days of sending an innocent man to his death.

It’s a breathtaking mystery of life in America:

• A skinny, 5-foot-8 guy with a three-inch Afro is charged with a murder after an eyewitness tells police he saw a stocky, six-foot man with close-cropped hair carrying a long-barreled pistol away from the scene.
• An assistant district attorney, supposedly a seeker of justice, hides scientific evidence while an innocent man spends 18 years in prison.
• A society so anxious to execute is willing to give prosecutors immunity even when their actions violate ethical standards, which is not to say constitute criminal actions.
• And the highest court in the land – with intellectual firepower to spare – makes excuses for a district attorney whose office has had a number of prior cases reversed for prosecutorial misconduct.

So the referendum, designed to extinguish what little hope of redemption might exist for life- and death-sentenced prisoners, is now chiseled into Pennsylvania law.  It is a law that injects the politics of personal ambition into our justice system – like putting a robe on the statue of Lady Justice to shroud her humanity from view.

The rights of prisoners are not often held in high regard, although this episode addressed all of us as a society.  There is a moral authority that speaks boldly to everyone about fairness, equity and compassion.  That is the force that drove the Prison Society to pursue this issue through the state and federal courts, and that now will spur us to more creative approaches.

We are saddened but undeterred, disappointed but resolute.

There is justness and compassion in our cause.  So we will develop new strategies and carry on with undiminished fervor.

In the Supreme Court of the United States, bold Gothic letters proclaim, petitioner PA Prison Society versus respondents including the secretary of the Commonwealth of Pennsylvania, the Governor and individual members of the Board of Pardons.

The petition is an attempt to get the court of last resort to review the ruling of the lower judiciary dismissing our appeals in the Pardons Board case.  It is our final attempt – a very long shot at best — to retain a modicum of compassion in a clemency process that has all but eradicated the concepts of mercy, forgiveness and redemption.  It is like a canoe trying to turn a battleship.

The Prison Society alone has been adjudged to have legal right to bring this case before the court – we are the last one of the sixteen original plaintiffs standing.  Since 1997 we have been fighting against the referendum that changed the commutation process for life- and death-sentenced individuals.  Supporters of the referendum said it was designed to make it more difficult to get a terminal sentence commuted; the fact that the intent was to make the process more difficult is seen as a violation of ex post facto protections in the U. S. Constitution.

Who else will join the battle for human decency?  Who else, indeed, will insist that even the most impoverished and despicable human beings retain certain inalienable rights, among them the right to self-improvement, reclamation and salvation?  There is no constituency for prisoners, we are told.

Fact is there is a small but dedicated constituency.  This legal journey would not be where it is, were it not for countless efforts of pro bono legal counsel.  In our federal appeals David Rudovsky and Leonard Sosnov took a lead following the years of work done by Stephen A. Whinston.  Earlier, Gerald C. Grimaud, Ernest D. Preate and Gregory H. Knight spearheaded the plucky but unsuccessful way through the state courts.  In addition to the lawyers, thousands of prisoners and their families and other supporters form part of our constituency.

We may be more like the 300 Spartans battling hundreds of thousands of Persian invaders at Thermopylae.  History records the lesson of free men valiantly fighting to the death against overwhelming hordes of slaves – an account that has endured through millennia.  A noble venture – like turning the battleship!

For this petition for certiorari to succeed we don’t have to prove our case; we just need to convince the Court that the case is important enough to justify devoting the Court’s limited time to it.  Surely, one would think, the lives and personal liberty of so many individuals must be important enough to warrant consideration.  On the other hand, historians point out that Xerxes not only won the battle at Thermopylae but the Persians went on to conquer the majority of Greece.  So much for noble ventures!

It should come as no surprise that might often wins out over right.  In the context of the 21^st Century, the battle is over the bucks.  The very banks that threatened the world economy by engaging in shaky financial practices are now making obscene profits once again now that the U.S. government has bailed them out.

As Britain’s Michael Lewis, author of “The Big Short,” put it, we have “socialism for capitalists, and capitalism for everybody else.”

So, this marvelous little edition is our way of battling against the odds, without legions of support, without billions of dollars in low interest capital, without much of a constituency.  It comes together at a cost of several thousand dollars to print and x times the hourly rate for top notch lawyers who contributed their time pro bono to write, edit and proof.

All that adds up to the price of hope and human decency.  If we succeed with the petition, the costs will continue to mount.  If we fail, the costs will go up even higher.

The same court ordered Mickens-Thomas’ release on parole in 2004 following the commutation of his life sentence by the late Governor Robert P. Casey.  The Board at that time had resisted letting Mickens-Thomas out until the court demanded it.  Then, after 15 months, the Board accused him of violating conditions of parole and sent him back to prison.

Mickens-Thomas was originally convicted in 1964 of murder and sexual assault of a 12-year-old girl.  Testimony at the trial and at a rehearing was considered suspect, however, and Mickens-Thomas’ attorneys were able to show numerous inconsistencies in statements made at the trials.  Throughout the years, Mickens-Thomas steadfastly maintained his innocence, and his refusal to admit to the sexual assault has been an ongoing point of contention with parole authorities.

In the order handed down Friday, the court said there was “a combination of willful noncompliance, bad faith, and sufficient inference of retaliation or vindictiveness on the part of the Board.”

The Board is frequently criticized by prisoners and their families for being arbitrary in their decisions.  And it is just as often denounced by the public for freeing individuals who go on to commit other crimes once they are released.  Understandably, some Board officials, fearful of losing their jobs, tend to go overboard to show they are not soft on crime.  Nevertheless, it is inexcusable, as the court has highlighted, for agents of our government to use their power to deal with their apprehensions at the expense of others.

This attitude, combined with a less than effective — almost indifferent — effort toward rehabilitating offenders during their confinement contributes mightily to the abysmal performance of our current corrections system.

Now, as familiar as the strains of bagpipes at a funeral, the Massachusetts governor is calling for stiffer prison sentences while accepting the resignations of five members of the parole board who voted to release the dead felon.  This sequence of events plays out in communities across the country with elected leaders reacting to the violence with predictably well-intentioned but inept strategies.

Surely everyone in Massachusetts and Pennsylvania and everywhere else knows that longer sentences and new parole boards will never stop the tragic violence that occurs everyday.  This is a true as the fact that nothing will be done to address the woeful inadequacy of mental health treatment or the proliferation of guns, despite the killings in Tucson.

But politicians do what politicians do – always within the confines proscribed for them.  No one is taking on the NRA.  No one is going soft on crime.

Still, this kind of violence is serious business and it deserves something more than a knee-jerk response.  It should start with recognition that parole decisions, however well thought out, are at best guesses; no one can predict human behavior with any certainty.  And, it should also question what the prison system does with individuals who are held for 20 years; instead of increasing sentences, hikes should be made in the quality of rehabilitative programming for inmates.

The all-American approach to corrections has proven over decades to be a failure.  A fundamental shift in the paradigm – away from the purely punitive and toward the therapeutic – is in order.  Otherwise we are just doing the same thing over and over and expecting a different result!

Nevertheless, “red flags” go up at the thought of him offering an umbrella to a woman stranded in the rain.  If that seems ridiculous, imagine how it must have sounded when a lawyer for the Pennsylvania Board of Probation and Parole told it to a panel of federal judges the other day.  It seems to be part of the compelling reason the state has for refusing to release Mickens-Thomas, despite the commutation that the late Governor Robert Casey signed in 1995 before leaving office.

The hyper-vigilant Board ignored the governor’s clemency until 2004, when the U.S. Third Circuit ordered his release, calling the Parole Board “vindictive” for holding him so long.  Then, 15 months later, the Board foresaw trouble in those “red flags” and revoked his freedom as it has every year now since.  So, the lawyers who volunteered originally and showed up the myriad problems in the case that sent Mickens-Thomas to prison in the first place are back in court seeking his re-release.

Oh, there is one more thing.  Through all these years and all these travails Mickens-Thomas has steadfastly maintained his innocence.  He has refused to admit to the 1964 rape and murder for which he was convicted on circumstantial evidence.

Isn’t it ironic that our justice system is teaching this lesson:  a lie will set you free!