11 Kan. J.L. & Pub. Pol'y 415 (2001-2002)
Closing the Circle: When Prior Imprisonment Ought to Mitigate Capital Murder

handle is hein.journals/kjpp11 and id is 423 raw text is: Closing the Circle: When Prior Imprisonment Ought to
Mitigate Capital Murder
James E. Robertson*
For 25 years I have worked with people doing time in prisons and jails. I have seen
the anger and destructiveness that these institutions breed and foster. We live in a
very small world; our lives are interconnected by a fragile and intimate weave. We are
choosing to build factories of rage and pain and violence. We are choosing to destroy
lives and communities, to plant dragon seeds. And if there is any lesson that we know,
it is that we reap what we sow.'
I.     INTRODUCTION
He approached me with a pronounced swagger, but his slight stature betrayed
his vulnerability to predatory inmates. Not even his status as a death-row inmate
ensured his safety from sexually aggressive inmates.
When he had first entered prison, his youth, small physique, and passive nature
had rendered him fodder for sexual exploitation. As a mitigation consultant, I listened
intently to his telling of the horrors of his first prison sentence and the seeming
indifference of the staff to his fate.2 Shortly after his release from the state's big
house, he allegedly committed capital murder.
This article advances a syllogism. The major premise posits that deplorable
prison conditions often arise from institutional failure - the latter being the inability of
a large-scale organization to discharge fiduciary responsibilities because of systemic
shortcomings.3 One commentator observed:
It would be an error to assume that most of these late-  James E. Robertson is
twentieth-century mutations of the prison tend toward  Distinguished Professor of
leniency and comfort. The most common prisons are  Correctional Law at Minnesota
the overcrowded prisons proximate to the big cities of  State University in Mankato,
America; they have become places of deadening    Minnesota. He can be reached at
routine punctuated by bursts of fear and violence.  (james.Robertson @mnsu.edu).
The minor premise of the syllogism represents institutional failure as
potentially a fatal turning point in offenders' lives. Indeed, imprisonment can be a
415

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