Prison Education and the Abolitionist’s Dilemma

Congress passed the Violent Crime Control and Law Enforcement Act in 1994 in  the wake of several high-profile violent crimes. The Act, originally written by Joe Biden and signed into law by Bill Clinton, expanded federal criminal law. Among the Act’s provisions was an amendment to the Higher Education Act of 1965 that withdrew Pell Grant eligibility for people in prison. Pell Grants provide funding to students with financial need and do not need to be repaid. Prisoners received $35 million of the $6.3 billion total spent on grants—less than one percent of the program’s total expenditures—but the result was devastating for prison education programs, particularly in states that largely depended on the federal program to fund prison education.

In 2015, President Obama announced a pilot program called “Second Chance Pell” that would extend funding to thousands of inmates. Today, roughly four thousand prisoners across the nation are enrolled in a Pell-funded program as a result. However, it is still a pilot program, and the 1994 ban on Pell Grants remains in place. Any prisoners currently relying on Pell funding through this program rely on the Department of Education to renew the it yearly. Given the present administration, it is reasonable to think that the program’s fate is uncertain.

At the same time, there is good reason to think that prison education programs can gain bipartisan support. Senator Lamar Alexander, the Republican chairman of the Health, Education, Labor and Pensions Committee, has expressed interest in reinstating Pell Grants to prisoners. Betsy DeVos visited a prison education program and described reinstating Pell Grants as a “very good and interesting possibility.” The Koch brothers have spent millions of dollars forging a partnership with the Texas Public Policy Foundation to further rehabilitate prisoners set to be released this year. There is also a possibility of strong public support: a poll from the Justice Action Network shows that 92 percent of Democrats and 79 percent of Republicans agree that the criminal justice system should be rehabilitative.

Prison education programs are an overwhelmingly successful form of rehabilitation. One famous example is the Bard Prison Initiative, which is currently in six New York State prisons and educates around 300 students. Its graduates have gone on to receive degrees from Yale and Columbia. To anyone who believes in a rehabilitative criminal justice system, more funding toward similar initiatives, or to educational resources more generally, is a positive step. At the same time, the unholy alliance supporting such initiatives creates some concern.

The concern might be especially acute for prison abolitionists. Prison abolitionists do not accept the premise that prisons are a catchall solution to social problems. Instead, abolitionists work to end solitary confinement, prevent construction of new prisons, get rid of cash bail, fight for stronger health care, and develop different forms of conflict resolution that do not involve putting people in cages. Prison abolition is a framework through which there is a cognizable end goal that advocates can push toward. A threshold question for any reform, then, might be whether it ultimately pushes in the direction of decarceration.

Prison education programs involve strict compliance with prison regulations. Violation of such regulations can jeopardize a program’s future. Additionally, the very ground upon which a bipartisan effort to revive Pell Grants would presumably lie seems shaky. After all, support for withdrawing Pell Grant eligibility in 1994 came in no small part from people who believed that limited funding for higher education should go toward students who are not incarcerated, because they are more “deserving.” The risk of framing the issue in terms of costs and savings is that it leaves prisoners who receive Pell Grants vulnerable to the sort of attacks levied in 1994, if resources for Pell Grants are portrayed as scarce. And as professor Marie Gottschalk notes, arguments about cost cutting can end up doing a lot of damage to the cause of decarceration—most prison costs are fixed, and the rhetoric can fuel a race to the bottom as prisons find ways to hold people as least expensively as possible.

To a prison abolitionist, then, teaming up with Republicans and proponents of the prison industrial complex presents some hard questions. There’s an eternal worry that working within a system serves to legitimate it. Supporting the narrative that prisons can be made more rehabilitative might make it hard to later argue that prisons are inherently inconsistent with a rehabilitative form of criminal justice. However, prison education programs can be empowering. They provide a set of resources that some may not have had access to before incarceration. For those who are released and returned home with more opportunities for further education or employment, prison education programs can be framed as a community investment.

These questions are part of a broader disconnect that a prison abolitionist working within the criminal legal system more generally must grapple with. For example, when a prison abolitionist represents a client in a parole hearing, the abolitionist must advise the client to accept full responsibility and demonstrate rehabilitation in order to maximize the chances of parole. In so doing, however, the abolitionist further legitimizes the prison system by portraying the narrative of recovery and reformation that undergirded the development of American prisons in the first place. On the other hand, parole is incredibly meaningful for the individual client, who might now have the opportunity to return home and help others avoid getting caught up in the criminal justice system.

These tensions are meaningful in a profession that requires “zealous advocacy” for the individual client. Whether an attorney fulfills that mandate depends on short or long term interests are considered as well as the level of generality used to examine a client’s “interests.” Working within the criminal justice system at all requires some buy-in to the idea that reform from the inside can be meaningful, but where a lawyer strongly believes in a vision of the world in which that system is dismantled, these ethical questions are real hurdles. As the debate over prison education initiatives becomes relevant again and new allegiances are formed, reflecting on both short and long term goals matter.

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Nick is a 2L at Harvard Law School. He is from Brooklyn, New York, and received degrees in government and economics from Cornell University. Nick is a student attorney with the Tenant Advocacy Project and the Prison Legal Assistance Project. He is interested in public defense, and spent his 1L summer at Orleans Public Defenders. He will spend his 2L summer at The Bronx Defenders' Criminal Defense Practice.

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