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Addicted to Punishing People of Color

by Jose Saldana
May 27, 2020

This article is part of an ongoing conversation about incarceration in a time of crisis. Jose Saldana, the director of Releasing Aging People in Prison (RAPP) and a close friend to Jalil Muntaqim, presents the case for clemency and early parole during COVID, and poses questions on how to reimagine the current system of incarceration beyond this crisis. 

This interview was conducted and condensed by franknews

frank | Could you begin by talking about yourself and your experience with RAPP? 

Jose Saldana | I am formerly incarcerated. I was released in 2018, after 38 years of incarceration. I met Jalil during those years. I met quite a few other pioneers and mentors and educators, until I became one of the elders.

During the later years while I was battling the New York State Parole Board, I was a social activist. I was involved in prison and sentencing reform, and very focused on parole reform at the time, so I heard about RAPP when it was first being formed. My wife became an early member. RAPP was very instrumental in getting me out of prison because they exposed the most punitive minded commissioners from law enforcement backgrounds that were denying all of us parole. It had become so frustrating, that as soon as people heard a certain commissioner was on the panel, they would postpone their parole hearing.  Commissioners who were former cops, parole officers or prosecutors had the lowest release rates, and they were usually from the rural areas of New York. We didn’t have a chance of release with them, but I would still take my chances. I had gone before those commissioners who didn't want to hear anything about rehabilitation, who didn't want to recognize any rehabilitative accomplishments. They focused entirely on the crime that was committed decades ago, and that's all they would want to talk about. RAPP exposed these commissioners for their racism and bigotry and unfairness. 

What years is this?

It was in June 2017, the Governor didn't reappoint those commissioners, that was a huge win for us. When we heard that news, everybody was celebrating. Not that they weren't still bad commissioners on the parole board, but the worst were gone. And when we heard that he had appointed a diversified group, we started to try and get some background information on who these new commissioners  were. RAPP sent me a small biography on all of them, and I looked at it and I said, "Man, this looks very good, this looks promising." Ironically, one of the comissioners I was looking at ended up being the lead commissioner that heard my case in November, 2017. She asked me one question about the crime I committed in 1979. Then said, “Now, let's talk about what you have been doing the last 38-years of your life. Based on the overwhelming evidence of rehabilitation before her, she granted me parole.  

And what was her background?

She was a social worker. Which is what we were asking for, for people who could really embrace the concept of transformation.

I was released several months later, and that's when I reported to duty at RAPP. I had an obligation. I had an obligation to help RAPP in their mission, and I had an obligation to the men I was leaving behind. Elders, and mentors, some of whom had tragically passed away over the years. Jalil was one of the men I was leaving behind. He had more time than me, and he was well deserving of walking out with me. So that is how I became involved with this type of work and it has become my life's mission.

How do you define the mission of RAPP?

Right now we're focused on an immediate solution to the COVID crisis that is impacting people in prison, especially those who are elderly and those with underlying health conditions. The immediate solution is for the Governor to issue mass clemency, and for the New York State Parole Board to advance parole hearings so that men and women can get out ahead of their scheduled parole time. They should be released up to two years in advance of their scheduled time, because they might not have two years to live. And those who have already been granted the parole, should have expedited release. 

Our original focus was, of course, legislative action – passing bills that would transform the legal system. But that's time consuming, and men and women in prison do not have that time. They may not have weeks right now. We can’t let the bureaucratic red tape delay people. A 60 year old man was granted parole but died before he was released. We can't afford to have people waiting two and a half, three months to get out of prison once they have been granted release. He had a stable home. He had people who had already committed to housing him. Grant these people release right away, and have housing for those who don't have a family.

Those are the two issues that we're really pushing for, mass clemency and expedited parole, even though neither the Governor nor the Department of Corrections has been very receptive. The Department of Corrections has denied our petitions to grant some of these elderly people medical parole during he COVID crisis.

And medical parole is completely separate from advanced parole or changing sentences, it’s an exceptional request because it's an exceptional time, correct?

Yes, according to the New York State laws, medical parole is for people who are ill. You don't necessarily have to be terminally ill, but it doesn't cover future illness, which is how they are denying these applications. 

They are saying COVID-19 is not covered in the medical parole law, and they encourage us to take the clemency route. But we are not getting anywhere with clemency, so, in effect, they are just letting people die.

In Jalil's case, Annucci, The Commissioner of Parole, could have released Jalil when he was granted a writ of habeas corpus for temporary emergency medical release; Jalil is 68 years old with an underlying condition. Instead, Annucci chose to fight it, and appeal it, and during that process is when Jalil gets infected.

And now he's currently hospitalized with Coronavirus.

Right. And Annucci is still fighting tooth and nail to keep him in prison. 

Tomorrow they go back to court to see if the first ruling will be upheld or not.

And you better believe that even if the Appellate Court agrees with the Lower Court, Annucci will try to put it through the Court of Appeals, the highest court in the state.

Which is just adding more time to a situation that really doesn't have that luxury. Jalil's case is especially unique because of the political component, which may overshadow the request. What does the case mean politically? Instead of viewing this as a momentary request separate from being granted parole in general.

Exactly right. And the political problem is intensifying. We allow the Police Benevolent Association (PBA) who, in effect, make law in New York state. They are saying that no cop killer should ever get out of prison. That's not the law, but they're trying to say that that's the law. It is a problem from Governor Cuomo on down. The commissioner who released Herman Bell, the man who was convicted with Jalil, said she couldn't handle the pushback she got for letting him go, and she retired in two years. 

The more diversified parole board was created under Cuomo, intentionally adding rehabilitation allies, yet there was still negative pushback from him about Herman Bell. 

He was really forced by the activists to appoint new commissioners. He couldn't deny the racism, the bigotry, and the unfairness that was evident from parole hearing transcripts. He just couldn't deny it. I just think he made a wise decision in not having these commissioners reappointed, but it is not that he was too concerned, he was just exposed. 

He even denounced the decision to let Herman Bell go. This is an independent body. He has no business trying to influence it, but because the PBA was denouncing it, Cuomo went right along and sang the same song.

The PBA still has massive influence over New York state politics.

Of course. And it's not just that they are against releasing people convicted of harming police officers – they want to control the decision making process in New York state. They want to control what happens to anybody convicted of a violent crime.

At the moment there is no prioritization given to vulnerable incarcerated populations – especially the elderly who you focus on through RAPP. 

This is what all public health experts are saying: the elderly are vulnerable to COVID-19. Those with underlying health conditions are vulnerable to COVID-19. This is not something we made up, it is what the experts are saying. So if you have a 60, 70 year old man languishing in prison with 10 more years to go, COVID-19 is a death sentence for that man for the most part. Some people may survive, but in prison the chances are very slim.

There's a gentleman named Benjamin Smalls, who was like a mentor to me. He was 72 years old. He was infected with COVID-19 a month ago, and just passed away less than a month ago. I was also infected with COVID-19 a month ago. So we were both battling this virus at the very same time. I was fortunate to have exceptional, 24 hours around the clock healthcare, to the point when it became annoying. I'd be woken up three or four times during the night to get my vitals checked.

I attribute the health care I received to my survival. He did not have access to that same level of care.

While I was being released from the hospital, recovered, he passed away. That goes to show the difference in good care. Not that he would have been guaranteed to survive had he been released, but he would've had a better chance out here.I know the substandard healthcare that we get in prison. It's a crisis that we have faced for decades. This is nothing new. Healthcare, especially as you get older, is always an issue in prison. Jalil's best chance would have been to be released when they first granted him release, before he was infected.

This is also not the first public health crisis that has affected people in prison. You were still serving time during the AIDS crisis and a Hep-C breakout. What was it like while you were incarcerated?

The Department of Corrections is never prepared for a health crisis. They have one solution to health crises, and that's punishment.

Everything they do is based on a paradigm of punishment that dominates their thinking. During the HIV/AIDS crisis, they put gay people in solitary confinement, thinking they were automatically a danger. Without any testing, without any medical foundation for their position, they would just give them punishment. Those who were ill, even if they weren't tested for HIV, because that came later on, were put in isolation. They were totally isolated from the population as punishment. Not as a preventive measure, but as punishment.

And they haven't learned from this. During the Hep-C crisis, they did the same. They deprived people of treatment. People would actually go to court in order to get treatment for Hepatitis C. With the Tuberculosis outbreak, they would just take people and punish them with the most punitive measures. The crisis with COVID-19 is the same thing. People in prison that I have been speaking to have been saying that they are afraid to say that they are not feeling well because they'll be put in isolation, as punishment. That is their only solution to this.

The first thing Governor Cuomo did to address the pandemic crisis that was going to hit the New York State prisons was to have incarcerated people make hand-sanitizer, sanitizer that they would not have access to because it has alcohol in it. And he paraded himself as doing something extraordinary, using prison labor.

He also suspended all visits, effectively targeting our communities, our families as the only carriers of this virus. Yet, every day three-shifts of correction staff was entering and leaving the prisons.  He did not test the correctional officers, his employees, and they were the ones who ended up bringing the virus into prisons. Even when hundreds of correctional officers tested positive, Cuomo would not do more testing. He would not order that every single correction officer get tested before they enter the prison. Now, over a thousand of them have tested positive. The union had to fight for them to get mass testing. And then the incarcerated had to fight for mass testing, which they are still not getting. 

Every commonplace preventive measure that is now in prisons was won by activists fighting for those who are incarcerated and their families. We had to fight for everything. He has shown that he's not concerned. He makes himself out to be presidential, making warlike preparations for all New Yorkers, building hospitals in parks, which is great, but has ignored the plight of men and women incarcerated and facing the same fatal virus. Their families live in those black and brown communities that have been disproportionately impacted by this virus. Not one single plan of action to  address why black and brown people have been disproportionately impacted by COVID-19. Correct the root causes or we will again do the dying in the next pandemic. There is no plan, and that shows me that we as people really don't matter to him.

The basis of Jalil’s first release request was preventative. Now that he’s already been infected and hospitalized with COVID-19, is there a chance they argue the foundation of Jalil’s argument is gone?

Well no one can say whether he's going to be re-infected. You know, his cause still has the same solution. He will get better treatment if he is released from prison. And not only that, it sets the precedent that the men and women who are elderly, who are the most vulnerable to this disease, who have underlying health conditions,  should be entitled to this relief. It sends a very rational and humane precedent for people who were incarcerated.

If this is a victory, it will be a victory for all of us.

I think that new directives will be established in the Department of Corrections. I think they will now have to consider COVID-19 as a criteria for medical parole. There's so many good things that can come from this. I think that the governor will be forced to give more clemencies to the elderly, even those  who have been convicted for violent crimes.

Do you feel optimistic that will happen?

I have to be optimistic now. When this approach was first discussed with me I didn't see a win here. Obviously I was wrong. But I think that this is a compelling argument. It's an 8th amendment argument – that we should be free from cruel and unusual punishment. This case should be used as precedent so that the Department of Corrections no longer has a choice in whether they should let somebody die in prison or at the mercy of substandard health care.

Jalil is in Albany Medical Center Hospital, and that is a better hospital.  I've been there before. I went for a colonoscopy and the correction officers and sergeants who took me there refused to leave the room. They told the doctors and nurses that I had to be visible at all times. We are treated differently, and that leaves an impression on the doctors and nurses that we must be dangerous. You can just imagine what they're doing in Jalil’s case. So although he's in an outside hospital, it's still not going to be the same standard of care. And they are going to do everything humanly possible to rush him back to prison. 

He's not going to get the care that I got. He just isn't. And that could mean the difference between life and death.

Do you think Jalil’s visibility affects his legal outcomes?

Well listen, they did not give up with the Herman Bell case. They kept appealing and appealing until they could go no further. The PBA, is the most powerful union in the country and they influence political leaders in New York State.  They don’t care about Jalil’s transformation or that he has helped a generation of younger incarcerated men transform their lives.  They promote the racist concept that a police officer’s live has greater value than all other lives, and those that are convicted of the murder of a police officer should died in prison.  

How have the incarceration debates changed over time? How has public and political opinion changed?

I think we have changed opinions within our community and with our legislators.

Initially, because the influence of the PBA, the murder of police officers was considered to be a totally different category of a crime. Our elder parole bill doesn't exclude anybody based on their crime of conviction or the length of their sentence. We don't believe in excluding people from justice. When we advocated for that bill, the first thing legislatures said is that though they liked the bill, they couldn’t get behind letting cop killers go free. 

We debated those issues with legislatures. I tell them, “Listen, where you come from, your community has a different relationship with police officers than the communities I come from. They don't kill people in your community. They kill people in our community. So we don't value their lives any greater than we value another person's life - a housewife, a teacher, a priest, a nurse. All their lives are equal to us. Their lives have no greater value to us. If anything we are justified in saying they're lives have less value, because they treat our lives like they have less value. And this is our history of the relationships that we have with law enforcement. It goes back generations. You don't have the experience to say that their lives have greater value." 

A lot of these white Democrats started saying, “You know that's true, I never thought about it that way.” We were able to change perception amongst our legislators. 

We have also changed the perception in our community. Our community has been harmed by interpersonal violence, andour immediate response is to say, "Lock them up and don't let them come out anymore." But we've had discussion in our communities, saying, well let's talk about punishment. Let's talk about justice. Who defines justice? Really, who? Does someone define it for us? Well, why don't we try to define it for ourselves. What is justice? What is criminal justice? And we have this conversation – even in regard to sex offenders, because sex offendersarent excluded from our parole bill either. And the reason why being, this is what we tell our community – we as people have been excluded from everything. They have tried to exclude us from the human race. Not talking about voting rights. Not talking about equal protection, not talking about equal rights under the law. Not talking about equal opportunity for education, and employment. We've been excluded from everything, and we've had to fight for everything. Who are we to exclude other people from justice? Really. Who are we to do that? That's why we don't exclude anybody, because we believe that everybody can transform their lives. I'm a living example. People would say, "This guy will never be nothing." No, give them the opportunity, and most people can transform their lives. So in having deeply rooted conversations with our community, and with our legislators, we've been able to change perspective.

You have to have very difficult debates and conversations with yourself about what justice means, and we need to be having them publicly. Arguably, the relationship between police and black bodies has never been more visible. Look at what came out yesterday. This is not anecdotal. What do you want the conversation to look like and how honest do you think it has to be to move the political element of this forward?

I think people have to recognize that mass incarceration is not a myth. It exists. Communities of color have been targeted. And as a result, people of color were given more time, and little opportunity to get out – and in between they were getting old, and dying in prison. How do we correct that? And what's the reason for correcting? The parole commissioner who released me said that in her opinion, New York, as well as other states, are addicted to punishing people of color. And thats rooted in slavery. Addicted to punishing people of color. We have to really understand the underlying racism behind all of this.

We have to transform the criminal legal system into a system that is not focused on punishment. In my readings, the indigenous didn't have prisons. Of course today is a different civilization. But we don't have to do this, this is not the only way. Just like, when I was growing up, my parents used to beat me. That's all they knew. But now in society, everyone recognizes that that is not the only way to discipline kids. In fact, that is not the way.

We have to have this conversation. What is the value of prisons? Really. What do prisons really do?

I spent damn near four decades in prison, and I can tell you that there's no such thing as a good prison. Prisons do not rehabilitate at all. All they do is destroy, dehumanize, degrade.

There is no good in prisons, no matter how it may look from the outside.That's not a necessity in our society. Now that's a hard conversation because of the interpersonal violence that is prevalent in our community, but we really don't have to address crimes in this manner. It's definitely not the first solution, it can never be the first solution.

Do you feel like we're capable of having that conversation?

That's a difficult question. We are still in the very early stages of trying to introduce the conversation. But you know, yes. I do a lot of speaking at campuses, at just about every major university in New York, and all the students that I've talked to claim to be abolitionists. That has to give me some sense of optimism. These are people who are going into the legal profession, claiming abolitionist status. I’m like, “Yes. That's great. Let's keep it up.” So, even when you think things will never get better, you can see areas where they are obviously getting better.

I think what convinces people that rehabilitation is possible is an example.  I'm an example, and there are others like me. We were all in prison together, we all did decades. We are the original credible messengers. We are the first ones that went out to the so-called worst neighborhoods in our communities, and have been able to reach these kids that have been neglected and abandoned. If that defines our value, then that defines the value of everyone else who is also incarcerated. And there's no denying this.  The Commissioner of DOCCS testified during the Senate Budget Hearing this year, “that the best credible messengers are the old timers who have spent decades in prison.”  At least he got that right.

Once we are released, if there's nothing else we can do, we can do that. A lot of us choose to do just that. I have an old friend of mine who was born and raised in Brownsville and he has now created a program that dramatically reduces violence in Brownsville. If many incarcerated people are coming out of prison and come out with ideas and solutions that are working, then we need more of them to be released from prison, not die in prison.

I'm pretty visible in New York to the men that I left behind. And when they see me or hear me speaking on the radio stations that they listened to, it inspires them. It affirms that they have a place in this society, and that they definitely have a place in their community. And that's all a person who had no vision of a future needs to have to have the ability to envision an alternate future for themselves. It’s huge.