Last year, Gregg Marcantel, the secretary of the New Mexico Corrections Department, voluntarily placed himself in solitary confinement for 48 hours. He was one of a rare few who could choose to do such a thing, and it was a very Gregg thing to do—dramatic, physically demanding, good for a story. Since taking the job a few years before, Marcantel had worked to reduce the number of prisoners held in their cells for 23 hours a day, and he wanted to better understand what these prisoners actually experienced. He told a reporter, “There are just things sometimes that you gotta feel, you gotta taste, and you gotta hear, and you gotta smell.”
The video footage of his two days in a 12-by-7-foot cell has an eerie intimacy. Wearing standard-issue yellow scrubs and a bright orange beanie, Marcantel, a former cop who resembles a bodybuilder, looms around the cell. He listens to the shouting and clanging outside his door, writes in a notebook, and picks at some rubbery breakfast meat. His face alternates between boredom and curiosity. He reads Night, the Holocaust memoir by Elie Wiesel, and a business book called Boundaries for Leaders.
The stunt was not Marcantel’s only effort to address solitary confinement, though it was the most public. Working with the Vera Institute of Justice, a nonprofit organization based in New York, his staff was implementing a program called Restoration to Population, which would allow inmates affiliated with prison gangs to renounce their membership and earn their way out of solitary confinement through good behavior. Another program would allow inmates who had been held in solitary for their own protection—informants and the young and weak—to live together in regular housing. The number of New Mexico state prisoners in solitary dropped, from 10.1 percent in late 2013 to 6.9 percent in June 2015.
This was a modest victory, and not a politically risky one: Curbing solitary is less likely to anger the public than, say, spending money to help inmates obtain college degrees. Marcantel was still criticized by progressives for opposing a statewide ban on solitary for those with mental illness. But in the glowing press coverage—ABC News called him the “ultimate undercover boss”—Marcantel positioned himself as open-minded to reform while conservative enough to avoid being seen as soft on criminals.
Marcantel had a clever way of selling his plan to reduce solitary confinement: Instead of focusing on human rights, he talked about public safety. He told the Albuquerque Journal that when solitary is overused, “all you’re doing now is creating a socially isolated human being that’s going to go back to your neighborhood” and commit more crimes (one study found such prisoners are twice as likely to reoffend). “We’ve got to do everything we can to send people back better from prison than when they came.”
The broader implication of Marcantel’s point—that prisons should take rehabilitation seriously in order to alleviate crime and protect the public—has become a primary talking point within our current moment of criminal justice reform, a moment in which journalists, politicians, and policy experts are trumpeting an unprecedented level of cooperation between the political left and right. In February 2015, the American Civil Liberties Union, the Center for American Progress, FreedomWorks, and Koch Industries announced they would collaborate to back the Coalition for Public Safety and lobby to reduce mandatory-minimum sentences, support alternatives to incarceration, and reduce the overall prison population.
The push for reform has many supporters, including fiscal conservatives who think incarcerating the nonviolent is a waste of money, Evangelicals who believe that overlong sentences rob people of a chance at redemption, libertarians who see a bloated criminal justice system as an example of government overreach, and progressives who talk about crime as the product of racial injustice and the decimation of welfare programs for the poor and the mentally ill. With such varied ideological backgrounds, finding a common language can be difficult, so the terminology tends toward the appealingly vague—“smart on crime,” “best practices,” “evidence-based policies”—though the goals generally circle around reducing the prison population and helping people who come out of prison to avoid returning.
One place that has managed to keep both incarceration and crime rates low is Western Europe. In 2013, the Vera Institute took a group of corrections officials to tour prisons in the Netherlands and Germany. They found that throughout the continent, sentences are significantly shorter than in the U.S., and the entire focus is on rehabilitating prisoners so they can return to society. Wardens are often professional psychologists and emphasize therapy over security. There are fewer than 100 prisoners for every 100,000 Germans, and more than 600 prisoners for every 100,000 Americans. Few Germans spend more than 15 years in prison.
While Germany’s low crime rates cannot be directly credited to the country’s therapy-driven prisons, researchers at Vera believed that learning about how these prisons work might help Americans improve their own. In other words, Germany might offer new ways of addressing the problems Marcantel had highlighted with his trip to solitary confinement a year before: How might treating prisoners differently ensure they would not commit crimes after getting out?
As Vera began planning a tour of German prisons, scheduled for June 2015, they invited Marcantel and other criminal justice leaders who had showed an interest in reform. Nicholas Turner, the institute’s president, envisioned the weeklong excursion might function as a “summer camp,” in which unlikely bonds would be formed to pave the way for political collaboration back in the U.S.
Accepting the invitation, Marcantel admitted he did not have a “real good sense of Germany.” But he had traveled to Europe before and been struck by “how much more they know about America than I know about them.” He chided his fellow Americans for their insularity. “Why do I need to know about you?” he said with a chuckle. “Everything spins around America!”
On a Sunday morning this past June, the two dozen members of the International Sentencing and Corrections Exchange were drowsy from an overnight flight to Berlin. Along with Marcantel, Vera had invited the heads of the prison systems in Connecticut, Tennessee, and Washington, as well as two district attorneys, a former prisoner, an historian, a law professor, several policy analysts, and influential activists from the left and right.
Marcantel was animated during the introductions, which were held in a private room at a downtown restaurant, full of dark wood and brass lamps. Everyone listed the universities or agencies or think tanks or foundations they were representing. The academics used words like “carceral.” Craig DeRoche, of the Evangelical organization Justice Fellowship, talked about where people’s “hearts are.” Marcantel was the first to crack a joke, opening coyly with, “Hi, my name is Gregg, and I’m an alcoholic.”
Jeremy Travis, the president of the John Jay College of Criminal Justice at the City University of New York, explained how the German approach to incarceration may differ radically from the American approach today, but this had not always been the case. In the 1960s, incarceration rates in Europe and the U.S. were broadly comparable, but then ours began to climb. From the 1970s through the 1990s, while Germany, Sweden, France, England, and their peers never saw their incarceration rates change by more than 50 percent in either direction, the U.S. rate rose by roughly 300 percent.
“We’re here because we’ve chosen to be here,” Travis said. Congressional decisions—chief among them the 1994 Violent Crime Control and Law Enforcement Act, often just called the “crime bill”—encouraged states to pass their own laws to increase the number of people locked up: “three strikes” laws, mandatory minimums, harsher drug laws, longer sentences, lower ages for criminal responsibility, more restrictions on parole. Crime had been on the rise, and after Michael Dukakis went down in flames with a 1988 ad about Willie Horton, which blamed a rape and murder on the candidate’s liberal policies, Democrats were just as eager as Republicans to promote harsh sentencing laws. In those days, Travis was running the National Institute of Justice, a federal think tank, under President Clinton’s appointment. “We funded all of you guys,” he said, looking around the room at Americans from a dozen different states, “to go change your laws to keep people in prison longer.”
Marcantel listened intently, hunched over in his chair and stroking his beard. His role in this story was more practical than political. After an early stint welding in the oil fields of his native Louisiana and a few years in the Marines, he spent most of his career as a police officer, chasing murderers and drug dealers around New Mexico. He used the imagined horrors of prison as leverage while he encouraged them to rat one another out. He still talks of these days with a boisterous nostalgia—he once chased a drug lord into Alabama—but admits he seldom thought about where these criminals ended up after he caught them. Like most people, he imagined such places as a distant hell.
Since 2011, when he was appointed New Mexico’s corrections secretary, he has come to know that hell intimately. Prison rapes, a common threat among cops toward recalcitrant suspects, “ain’t funny anymore.” (In 2012, 14 percent of the women in one New Mexico facility reported they had been recently sexually assaulted.) Marcantel sees how the environment of most American prisons, with few educational programs, fail to keep the men and women they release from returning. In 2012, his department found that in New Mexico, “over half of inmates released from prison will be back within five years.”
Every state has its own subplot in the recent American story of growing prison populations, its own sensational crimes, political dynamics, and policy justifications. In New Mexico, a riot in 1980 at the main state penitentiary, near Santa Fe, led to the deaths of 33 prisoners. It was the most violent takeover of a prison since the one at Attica Correctional Facility, in upstate New York, nine years earlier. Marcantel told others on the trip that this riot fueled a popular belief in his state that rehabilitation was a farce because prisoners were always ready to attack.
He had come on the trip in part because he disagreed. He knew that prisons could help transform criminals, and that he could, by running effective prisons, “take a bigger bite of crime than I ever did chasing [criminals] from one neighborhood to another.”
Source: International Centre for Prison Studies
Note: Countries limited to those with populations of 10 million or more.
The next morning—up before the sun, doing some cardio to beat the jet lag, trying some of that cheese and fish the locals eat for breakfast, because “when in Rome”—Marcantel boarded the bus to travel to Heidering prison, which holds roughly 650 men on the outskirts of Berlin. The group was met by the prison’s director, Anke Stein, who gestured regally toward the open hallways and massive windows. American prisons tend to be noisy and full of fluorescent light and stale air. This building was silent and calm, like a liberal arts college campus crossed with a modern art museum.
The facility opened in 2013, and though it was cleaner and fancier than others in the country, its atmosphere illustrated something deeper in the German approach to incarceration. Gero Meinen, who directs the Berlin Ministry of Justice, explained to the group that his system’s “sole aim” is “to enable prisoners to lead a life of social responsibility upon release.”
It is more expensive to incarcerate a person in Germany—roughly 120 euros ($135) a day per prisoner, according to Meinen, as opposed to an average of about $85 in the U.S.—but with far fewer prisoners (the vast majority of sentences are two years or less), there are more resources to train officers extensively in psychology and hire therapists to work with the men and women who do go to prison.
The men at Heidering work various jobs—many are employed by an onsite factory for car parts—and are required to save some of their earnings as a nest egg for when they are released. They are allowed to wear their own clothes, and those who do not receive furloughs to visit family can have their partners and children visit in a small room with a kitchenette and a couch. A social worker can approve unsupervised family visits, held in a cozy room with a kitchenette, a crib, and a couch that folds out into a bed. “Conjugal?” Marcantel asked Stein, the warden. “Of course,” she replied.
Marcantel noticed the lack of security cameras. “Try to find one,” he said. “There aren’t any!” He traded details with Bernie Warner, the head of Washington state’s prison system, who noticed the smell of cigarette smoke, a rarity in U.S. prisons, where smoking is usually prohibited. Along with Scott Semple, their counterpart in Connecticut, they took turns looking into the cells. Every prisoner had his own cell—the word “room” would be more fitting—outfitted with a telephone and a twin-size bed. Marcantel coined a descriptor that would serve him throughout the week: “IKEA-ish.” The bathroom contained a white ceramic toilet, a far cry from the stainless-steel bowls bolted to the wall next to the bed in so many American institutions.
He would not abandon this basic sense of wide-eyed wonder over the next four days, and he marveled at all the objects that were freely available to German prisoners, from darts (“They’re everywhere!”) to fruit (“That’s hooch in the making!”) to knives (no comment was necessary—just a look). At other moments, though, Marcantel would sigh and say, “I think you get from people what you expect of them.”
After the walk through Heidering, the Americans sat down to a lunch prepared by some of the prisoners: roast chicken over a bed of sautéed vegetables. It was all moist and flavorful, served with the sparkling water that Marcantel had come to talk up as an exciting novelty (though he had been to Europe before, he enjoyed playing the rube). The conversation around the table was chaotic: “They trust the prisoners with knives?” “Those cells look like my college dorm room!”
Among a small group, Marcantel steered the conversation back to public safety; he still was not sure that American prisoners could be trusted with so many freedoms, but certain small details, like letting prisoners wear their own clothes, might help American prisoners maintain a sense of connection to society. And, Marcantel said, perhaps you could sell what look like “amenities” to the general public as tools to help prisoners feel less isolated from society, making them, at least in theory, less likely to commit crimes upon release. After all, he said, these ex-prisoners were going to “stand behind you in the grocery store line whether you like it or not.”
Seated near him was Khalil Gibran Muhammad, an historian who wrote The Condemnation of Blackness, a book on how early American society came to associate dark skin with criminality. He wrinkled his brow at the bit about the grocery store; he thought Marcantel was implying that every crime is committed by a scary monster whom we must keep away from the public until he is “fixed.” He talked about how rampant inequality and financial crimes on Wall Street created a situation in which “people are more likely, for a host of reasons, to be more desperate, to do bad things.”
Marcantel nodded in the way one does to cover feeling flustered. “I agree with you,” he said finally, “but fundamentally, we’ve got certain things that have been criminalized. And when we look at it at that level, not the larger philosophical argument that you’ve got —”
Muhammad interjected: “I don’t want to dismiss this as philosophical. There are laws limiting the behavior on Wall Street. We just choose not to prosecute.”
“You’re right,” Marcantel said. “What I’m saying is... when people come [to prison], they get through the gates based on selfish choices.”
This was not the first time Marcantel had described criminal activity as “selfish.” He had come to see the world this way after years “against a white wall” as a police investigator in so many little interrogation rooms.
Shaka Senghor, who spent 19 years in Michigan prisons for murder, a number of them in solitary confinement, was seated nearby, finishing a plate of chicken. The first day, he had reminded the group not to forget the prominence of race (“the black man as boogeyman”) in the story of how the U.S. justified its expansion of incarceration. Now he offered a prodding question to Marcantel: “How about abuse?” Many children who face abuse often grow up to commit more crimes, and this can hardly be explained adequately with a word like “selfish.”
“I’m not saying it can’t be driven by abuse,” Marcantel said quickly. “But because of free will, you’re still making selfish choices... Would you say that most people who come to prison don’t do so because of selfish choices?”
“I think they’ve made poor choices,” Senghor said.
“Almost every inmate I’ve talked to says they made selfish choices,” Marcantel responded.
“Because you run the prison system,” Senghor said, “they’re going to tell you what you want to hear.”
Marc Levin, a policy analyst who directs a coalition called Right on Crime and is a central figure in the conservative embrace of justice reform, jumped into the conversation and reframed it, saying the real problem in the U.S. is “the assumption that by making people miserable in prison, we’re actually deterring crime.”
After all, they were sitting in a prison where inmates were not miserable, in a country where crime rates were low. The men at Heidering were treated partly as patients in need of therapy, and partly as wayward children in need of polite correction. One prison administrator said they make an “individual determination for the causes of delinquency” for each prisoner. The blame was still on the individual for having committed a crime—which might square with Marcantel’s view of criminals as having done something selfish—but that did not mean, as it would in the U.S., that he should be stripped of his rights and kicked out of the social contract.
But what would the American public make of this? Throughout their conversations in Germany, the Americans often wondered whether improving the conditions of their prisons would lead to an outcry—talk of Club Fed and “country-club prisons”—with political repercussions. At one point, Jeff Rosen, the district attorney of Santa Clara, California, said, “It’s difficult for me to imagine who the constituency is that wants inmates to be treated in a dignified way.”
The Americans continued to ponder the politics of reform the next day while visiting Tegel prison, in Berlin, an old campus of stone and brick where the Nazis imprisoned the theologian and writer Dietrich Bonhoeffer. The Germans talked little of their past, but earlier in the week, back in Berlin, the Americans had walked through the Memorial to the Murdered Jews of Europe, a sprawl of sarcophagus-like concrete slabs in the middle of the city. Marcantel would later describe Germany with a sense of reverence as “a society of people who, post-Holocaust… had placed such a premium on what they did to dignify the human existence.”
Now, he walked through a building at Tegel that houses a program called Preventive Detention. It was stunningly clean, with white walls and photos of cats posted near the entrance. There was a massive exercise room, a music room with shiny guitars and a drum set, and a workshop for building and fixing bicycles. The unit, perhaps surprisingly, is for the most violent prisoners—men who have served out their sentences and, even with all of the efforts at rehabilitation, prison administrators still feel cannot be safely released back to society.
Kerstin Becker, who runs the program, explained that because these men are only being held to protect the public—and not for their punishment—they are entitled to as much freedom as possible. But public safety—that was the issue. What if someone were released from this sort of program and then committed a rape or a murder? Marcantel was playing out the scenario in his head; it was easy to imagine the societal outrage if someone were judged no longer dangerous and then went on to rape or kill. Marcantel asked Becker point-blank: “What if someone offends?”
“It will happen,” Becker responded. (And it had already—several men released from the program at Tegel have committed robbery or assault.)
Marcantel asked whether the program would get shut down.
“Of course not,” Becker said. She appeared confused.
Meinen, the director of Berlin prisons, stepped in. “We can’t be fired,” he said. “We are backed by the Constitutional Court, and that puts us in a strong position.”
This moment marked a large cultural difference; the German prison staff were far less concerned with public sentiment than their American counterparts. At one point, in a group discussion, Michael Tonry, a law professor who teaches at the University of Minnesota and has lived throughout Europe, tried to explain why. In much of Western Europe, he said, judges and prosecutors are not elected and “would say it’s their responsibility to insulate the judicial process from the influence of public emotion.”
“So the outcry is still there in your community,” Marcantel said, working it out for himself. “You still have people who feel aggrieved, who are angry, who’ve been victimized, but the system is a little more inoculated from their influences.”
That evening, Marcantel sat in a circle with the rest of the Americans around a campfire. They had driven up to a hotel in the state of Mecklenburg–West Pomerania, about two hours north of Berlin, where the weather was cold and cats and hedgehogs roamed the hills above a small lake. Everyone was full from a cookout on an open grill.
Marcantel explained to the group that he was still wondering how to convince lawmakers and the public back home about the value of how Germans deal with criminals. He had been hoping to use statistics—clear, indisputable proof that these programs could successfully keep prisoners from reoffending—to sell Americans on the benefits of these practices. If you showed state legislators some data showing German recidivism rates, for example, you might be able to justify spending public money to make prisons more humane.
But the Germans would not oblige him. While European academics measure recidivism rates throughout the continent, they tend to caution against comparison, since there are so many variables. “In the end, you will always have recidivism,” said Jörg Jesse, the director of prisons in Mecklenburg–West Pomerania, sitting across the fire from Marcantel. “But if someone who was a violent person steals a pizza or something like that, is it recidivism? Or is it just recidivism if he reoffends with the kind of crime he did before? It’s [an] endless discussion.”
Still, the data from Germany is encouraging. The Federal Ministry of Justice has found that roughly 33 percent of those released from prison in 2007 were convicted of another crime within three years (and of those, roughly half were punished with a fine rather than more prison time). In the U.S. the federal Bureau of Justice Statistics has found that nearly 70 percent of people released from prisons in 2005 were arrested again within three years.
Bettina Muenster, who grew up in Germany and is a researcher at John Jay College, argued that there had to be more to the discussion than just proving prisoners would not reoffend. Without talking about dignity and human rights, she said, we would be reforming American prisons “for the wrong reasons.”
Marcantel pushed back. “The people in charge of these systems are operating with restraints,” he said. “We’re all kindred spirits here—we wouldn’t be here if we weren’t—but we have to be really smart about how we bring the public along.”
A young man, wearing a plaid shirt and overalls, stood at a large table, turning a little metal contraption in his hands. His hair was buzzed on the sides and pulled into a small ponytail on top. On the afternoon following the campfire discussion, the Americans were wandering around the machine shop at Neustrelitz prison, a facility for young men and women in the countryside. Marcantel paused, watching silently as the man studied the blueprints laid out before him and picked up tools that had been etched with his last name, Schulz.
Five years earlier, Kai Schulz had tried, using a knife, to kill a young woman in his hometown on the island of Rügen, off Germany’s northern coast. Now, he was just over a month away from his release. When he arrived at Neustrelitz, he told the Americans, he had tried to prove his toughness—out of fear, he said—and tried to escape.
Eventually he realized that this place, tucked into the hills with a small army of rabbits and horses and therapists, was not like the U.S. prisons he’d seen on television, where men are locked in solitary confinement for years. This place was about remaking him, and he took to it. He described to the Americans a letter of apology he had sent to his victim. Asked if she responded, he said she had not. “I fully understand why she wouldn’t be in touch, and it might influence her for the worst to talk to me,” Schulz told them. “But I know I’ll never forget what I did.”
Marcantel appeared impressed by this young man’s self-possession and would go on to say that Schulz could probably run this prison. He also speculated that the German economy, with its many auto manufacturers, would need a lot of welders—the occupation for which Schulz had been preparing himself.
There was a cleanliness to Schulz’s redemption narrative that might invite claims that he must be an exception. But throughout the day the Americans met a steady parade of young prisoners who talked about themselves in mature and thoughtful tones and were surrounded by encouragement from the staff. One described his plans to move to a new city with his girlfriend and their two-year-old child. “I’m working on my own emotions,” another said, “how to recognize them and deal with them.”
On the final day of the trip, the Americans gathered in a conference room to discuss their strategies for criminal justice reform when they returned home. Marcantel listened as Christine Herrman, a researcher at the Vera Institute, talked about the need for “personal stories that regular people can connect with”—stories about those who had made mistakes and committed crimes but were deserving of compassion. He listened as Michael Tonry, the law professor, bemoaned how criminal justice did not feature a “sympathetic human exemplar,” unlike other social movements for change in the US, from gay rights to immigration. “The civil rights movement I think ultimately won because of identification with human beings that were unjustly suffering,” Tonry said, “and we just don’t have anybody but criminals—”
Before he could finish, Marcantel interrupted him. “The only people you do have are the recipients of the realities,” he said, meaning a public who would be safer with rehabilitated ex-prisoners, as well as the ex-prisoners themselves. “You have to have a good vision, and that vision has to [demonstrate] how [reform] makes a difference in peoples’ lives.”
He was subtly bringing back his favorite argument—that more humane prisons would make the community safer—but rather than talking about recidivism or selfishness, he spoke of individual dramas of human redemption. Maybe you didn’t need to point to lower crime rates. Maybe you could convince Americans of the benefits of more humane prisons by introducing them to Kai Schulz.
“When I first got there,” Marcantel told his colleagues at lunch after returning to New Mexico, “I was asking, ‘What’s the return on your investment for this program? What are your recidivism rates?’ But what I realized was [that] I was dealing with a society of people,” for whom “it was about whether they’re doing what dignifies the human existence.”
The trip made for great conversation fodder, but in the cold light of American politics, would he take real risks, like advocating shorter sentences and more money for educational programs? Khalil Gibran Muhammad, the historian and one of Marcantel’s sharpest interlocutors in Germany, was optimistic. He has written about how, in the 1930s, a New York prison warden named George Kirchwey campaigned with a former prisoner, Jack Black, against a law that ordered life imprisonment for four-time felons. “I think of this when I imagine [Marcantel] and what he could do,” Muhammad said.
In late July 2015, about a week after President Obama commuted the sentences of 46 nonviolent drug offenders, Marcantel announced that his department would hire a 40-year-old man named David Van Horn as a supervisor in the staff kitchen at one of the prisons. Van Horn had been released in May after serving 20 years for murder. It was Marcantel’s first step in the development of a new transition program for former prisoners, and he said he hoped it would inspire businesses to take more risks in hiring such men and women.
A five-minute segment about the program on KRQE, a local news station, cut back and forth between Van Horn talking about how much he had changed and Marcantel saying, “He’s coming back to the community, whether anybody likes it or not, and we’re trying to work a better public safety policy.”
The corrections union angrily noted that Van Horn would make $17 an hour, more than some prison guards. The son of the victims—an elderly married couple whom Van Horn robbed in 1995 before setting their house on fire, killing the wife, and shooting two deputies as he escaped—told a reporter he wished Van Horn would stay in prison forever.
It was a flicker of the political dynamic that still haunts larger reform efforts in the U.S. But for now, Marcantel’s tasks were smaller: defending this hire of an ex-prisoner, finding a way to keep dropping the number of prisoners in solitary confinement, reviewing a program that allows some men to work outside the prison walls after one ran away from a landscaping gig and set off a manhunt.
But having seen a radically different vision of how a country could manage those who had transgressed its laws, Marcantel now wanted his own country to think about what it was doing and why. He had seen that, historically and comparatively, it was not Germany but the U.S. that was the anomaly. “Where we’re at in America,” he said, “if we’re gonna be brutally honest, is that we fancy the notion of rehabilitation. But what touches our feelings and our approach to managing the criminal justice system is really punishment. We feel that. We know that.”
For Marcantel, current reform efforts can only go so far without a deep rethinking of what prisons are for: “We’ve got to sit down as a country and say, ‘What are the goals?’ We’ve got to start from an authentic point.”
