For As Long As You Breathe

"This is the hammer that killed John Henry,

Twon't kill me, baby,

Twon't kill me."

To be sure, George Jackson reentered the prison system of California in 1961 with a chip on his shoulder. In an act which seemed to culminate the 20 year progression of mistreatment he had received, he had been duped into confessing to a crime--of which he may or may not have been legally guilty--in exchange for the promise of a light county jail sentence instead of a term in the penitentiary.

However, the promise never materialized. Instead of going to a country house of detention, Jackson was recomitted to the state's Youth Authority, the agency charged with the disposition of convicted minors. Moreover, Jackson was going back to the joint this time as a long time man.

A long time man is a prison expression conceived on the southern chain gangs and used to describe an inmate who is serving a long sentence. When George Jackson confessed to the $70 gas station stick-up of which Los Angeles Country had accused him, he became a three-time loser. Moreover, he lost forever his legal status as a free man, for California law proscribes that three-time losers receive indeterminate one to life sentences. Under California law, as in most states, though a con may be paroled from prison before the expiration of his maximum sentence, he is not released from the jurisdiction of the parole board until his full time has elapsed. Thus George Jackson, at age 20, faced the inevitability of living the rest of his life without ever again being legally his own man.

Although it can be argued that Jackson brought this fate upon himself by his unlawful actions--or at least by being caught at them; the psychological impact of this prospect must have been awesome. Yet, Jackson had far more immediate problems than those that might have been raised by his speculation upon the dismal future that awaited him on his release. As are all lifers, he was faced with the legal potentiality of never being released from prison alive.

However, Jackson also had a number of reasons to expect that he might be released within a year or at least within a few years. The average time served by a California lifer is less than 15 years. So, at worst, Jackson might have anticipated parole by the time he was 35. Moreover, that average includes the times served by lifers before California established the Youth and Adult Authorities in the 1940's and adopted the indeterminate sentence. Before those two actions, which were both hailed as enlightened reforms, incarcerations of 40 years and more were not unusual, and many more cons would have served sentences of that length if only they had lived that long. Finally, though life was the legal maximum of Jackson's sentence, the prescribed minimum, which determines the date of earliest possible release, was just one year.

Why, then, did George Jackson serve a full life, or more precisely, death term behind bars? Why was he imprisoned for more than ten years, while the man who confessed to the same $70 crime was paroled in seven?

The answer to these questions lies in a complex sequence of action and reaction. Jackson played a major role in this sequence, but the chain began long before he was born and, as is evidenced by Attica and the tide of prison disturbances that have followed, the chain was not broken by Jackson's death on an August afternoon in San Quentin.

II

One of the primary links of the part of the chain that entangled George Jackson was the nature of the terms of his imprisonment. As has already been noted, Jackson was, at the beginning of his term, only a potential lifer, for his sentence was indeterminate.

The indeterminate sentence is an old idea first advocated by British and French penal reformers in the 19th century. The European reformers and their American counterparts argued that the practice of giving a convict a fixed sentence--one in which the time to be served is immutable by any action by the convict--provided to incentive for the inmate to reform. With nothing to gain by reforming, the prisoner usually became bitter and dangerously hostile to prison officials and the society they represented. The con served hard time, and often after his release sought revenge on society for his incarceration. The penal reformers also pointed out that the convict's bitterness was compounded by the corrupt manner in which inmates with pull on the outside could obtain pardons from governors--then the only mechanism of premature release--while poorer cons had to serve their full sentences.

As early as 1787 American prison reformers recommended the indeterminate sentence, in which an inmate's release would be dependent upon evidence of his rehabilitation, as a remedy for the faults of the fixed sentence. In the words of one of the early advocates of the indeterminate sentence:

It seems perfectly reasonable that those whose misconduct compels us to send (them) to a house of correction should not again be let loose on society until they shall have made some indication of amended character. Instead of being sentenced, therefore, to confinement for a certain fixed period, they should be sentenced to earn, at a certain specified employment, such a sum of money as may be judged sufficient to preserve them on their release...and orderly, decent, and submissive behavior should...be enforced, under the penalty of a prolongation of their confinement.

Essentially then, the indeterminate sentence uses two means to attempt the reform of the convict. First, it removes the power or responsibility of sentencing from the courts and invests it in the penal system. Second, it attempts to use the flexibility derived from that shift as a means of inducing the convict to make "some indication of amended character."

Whether or not a man has amended his character is ultimately a judgment call, and any decision concerning that depends as much, if not more, upon the nature of those who sit in judgment, as upon the actions and attitudes of the judged. If a convicted rapist frees the warden's daughter's cat from a tree is he ready for release back to society? An improbably example to be sure--few convicted rapists serve their time in joints that have any trees--yet perhaps it does illustrate the degree to which the prejudices--moral, racial, or otherwise--of the keepers define the futures of the caught under the system of indeterminate sentencing.

Most of the early advocates of the indeterminate sentence, like other reformers of the period, were men of pronounced prejudices. They prefered Christ to anti-Christ, and for that matter, Christ to Buddha. They found industrial pollution more excusable than prostitution. Most importantly, they prefered Adam Smith to Karl Marx, and believed that ultimately the criminal bore personal guilt for his crimes.

It is these last two prejudices that lie at the core of the passage quoted above. It is the criminal's "misconduct" that "compels us to send" him to an institution for personal correction. The criminal, now a convict, is to be interred in the institution until he displays a willingness to accept the profit motive and the work ethic in personal practice. In effect, regardless of his acceptance of society's complicity in crime as a theory, the author of this passage rejected the notion in practice. He was and is not alone.

First applied in America as early as 1825 to children committed to Houses of Refuge, the indeterminate sentence, in vivo, did not adhere to the procedure outlined in the passage above. However, it did retain the spirit of that passage. Children, though they were not required to earn a fixed sum while in the Houses of Refuge, did have to demonstrate not only their acceptance of the laws and abstract principles of American society but also, if only by mime, their genuflection to the dictates of a Christian God and of capitalism.

In 1867, Michigan became the first state to use the indeterminate sentencing concept on adult offenders by passing a law changing the procedure of the penal disposition of convicted prostitutes. Under the new law, hookers were sentenced to a maximum of three years in the Detroit House of Correction but could be released earlier at the discretion of the institution's board of managers.

Four characteristics of the nature and history of the indeterminate sentence in America bear significantly on the life of George Jackson. The first is that in theory and practice the indeterminate sentence is a janus-faced weapon. Although it offers the con the hope of being released prior to the time that he would have had to have served under a fixed sentence, it also threatens him with the possibility of indefinite incarceration if he does not display "orderly, decent, and submissive behavior" to the satisfaction of his captors. This other more threatening side of the indeterminate sentence did not figure into its earliest applications nor does it in the current universal use of the indeterminate sentence in American reform schools; because in each of these cases a maximum time of incarceration is prescribed by law. However, this threatening edge does play a prominent part in California's three-time losers law; simply because the sentence has no practical maximum.

The second relevant characteristic is that the indeterminate concept was originally applied only to the poorest and most powerless classes of offenders, juveniles and prostitutes. People with no reliable leverage on the outside, they were committed to indefinite imprisonment without having legal or practical methods to protect themselves from any abuses the detention officials might make of their absolute power. That the indeterminate sentence concept was not widely applied to other classes of convicts in America until after 1935 is perhaps more due to the efforts of the organized crime lobby than to those of the "treat 'em rough" school of penology.

Thirdly, as Clemenceau noted, power corrupts and absolute power corrupts absolutely. Because lower-class women and children, particularly those who have done time, rarely publish autobiographies, the extent to which prison authorities have in general abused the absolute power granted them under indeterminate sentencing is difficult to establish. Clearly, though, the potential for abuse is there, as it is whenever men are granted access to total control over others. According to many observers, that potential is being realized. Among those who feel that the absolute power is being abused is Ramsey Clark. Clark, a supporter of the indeterminate sentence in theory, says that the abuse occurs because, "No correctional system in the United States is yet staffed to make effective use of the indeterminate sentence."

Finally, because California's three-time losers law sets the maximum of the indeterminate sentence at life, George Jackson faced a life in which he would always have something to lose--his chance for release from prison or his life--but in which there would always be something he could not gain--total self-determination. Although it is often argued that no one is or should be totally free, to be deprived of the freedom of movement and association as one is in prison and on parole tends to obscure the distinctions between relative and absolute freedom and also those between relative and absolute captivity. Freedom is seen in its purest, most desirable form, and captivity, to any degree, becomes contemptible. Yet, there are always checks or brakes on this train of thought. Men are not meant to ride it to the desperate state of mind that is its terminus. There are always checks--almost always.

The prison and governmental officials of California have argued that to George Jackson the checks did not apply. They have portrayed him as a man driven so deep into irrationality as to be able to explode into violence for the sake of revenge or in the hope of escape. According to their depiction of him, he was not merely a man of extremes but one possessed and perverted by absolutes. To substantiate their charge, they cite Jackson's records as a criminal and as a con. The authorities note that he was a three-time loser and accumulated 45 charges against himself while he was an inmate--including the charge of murder.

However, just as there seems to be substantial evidence for a vastly different interpretation of Jackson's life on the outside, so is there much justification for taking a view of his prison career that runs counter to the exegesis that has been made by the California authorities