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Justice in America Episode 30: A Conversation with Rodney Spivey-Jones and Max Kenner

In this episode, Josie Duffy Rice and her producer, Florence Barrau-Adams, travel to Fishkill Correctional Facility in Beacon, New York, to interview Rodney Spivey-Jones and Max Kenner about the Bard Prison Initiative and Bard College.

In January 2020, Josie Duffy Rice and her producer, Florence Barrau-Adams, traveled to Fishkill Correctional Facility in Beacon, New York, to interview Rodney Spivey-Jones and Max Kenner. Max is the founder and executive director of the Bard Prison Initiative, and Rodney received his bachelor’s degree from Bard College in 2017 through the Bard Prison Initiative. Rodney has been incarcerated for 17 years and is currently incarcerated at Fishkill. Both are featured in the PBS documentary series College Behind Bars. They joined Josie to discuss why Max started BPI 20 years ago, Rodney’s experience as part of BPI, and what he hopes to do upon his release.

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Rodney Spivey-Jones:  You have a bunch of, quote-unquote rehabilitative programs in prison. They are supposed to fix us, right? But then this is a punitive setting, those labels — violent and nonviolent — they carry a lot of weight in prison as well. It’s hard to imagine anything therapeutic or rehabilitative happening in this kind of setting. But you still need to make the effort to try to change this environment and I think college in prison is probably the only thing, where you can actually have a chance to look at the environment and have the important conversations that we need to have to do what I call heavy lifting.

Max Kenner: Look, there’s a long tradition in this field that unfortunately, many decision makers are still susceptible to, where we think we can, as Rodney says, fix people. And there’s no place that that happens more than in the prison. It’s a complete failure of empathy on the part of those social scientists and those decision makers in that they refuse to look at incarcerated as people who are fully as complicated and difficult and terrific and wonderful and fraught as themselves. 


Josie Duffy Rice: Hi everybody, I’m Josie Duffy Rice and this is Justice in America. Each show we discuss the topic in the American criminal justice system, and we try to explain what it is and how it works. 

As always, you can find us on Twitter at @Justice_Podcast, we’re also on Facebook at Justice in America, please subscribe and rate us on Apple Podcasts, we’d love to hear from you.

We started the podcast with a clip from our guests Rodney Spivey Jones and Max Kenner. Rodney is currently incarcerated at Fishkill Correctional Facility which was in upstate New York, and he’s a graduate at the Bard Prison Initiative. Max is the founder and executive director of the Bard Prison Initiative. And I’ll tell you some more about my guests soon. But first, I want to say that this is the last episode of Season 3 of Justice in America. It’s been really an incredible season. I’m so proud of everything that we’ve done this season and everything we’ve covered and we’ve just been so lucky. We’ve had some incredible guests, and we’ve had really, really generous, interesting, warm and charismatic co hosts that I’m so grateful were kind enough to join me this season. So I want to give a special shout out and especially thank Donovan X Ramsay, Darnell Moore, Derecka Purnell and Zak Cheney Rice for being such incredible co host this season. I’m so grateful to each of you for joining me. And Justice in America would not have been the same without you. 

I also just want to say that as many of you know, Justice in America is a project of The Appeal. I’m president of The Appeal. We’re a news outlet produces original journalism about the criminal justice system. All of the issues that we talked about on Justice in America are covered on The Appeal all the time, and we are producing some really incredible articles, new media, and other resources about the criminal justice system. So I highly, highly recommend checking us out if you haven’t. Please sign up for our newsletter and check us out at We really appreciate your support. And as always, we really appreciate your support of Justice in America. 

To close this season, my producer Florence and I traveled to upstate New York in January before the COVID-19 crisis kind of began, to Fishkill Correctional Facility which is in Beacon New York. If you’ve ever been to a prison or you know anything about prisons, you may imagine that it’s a real challenge to tape a podcast in a correctional facility, certainly not an easy thing to do. And we want to give a special shout out to the Bard Prison Initiative and the College Behind Bars team who made it possible for us to go do this interview at Fishkill. While we were there we met with Max Kenner, who again is the founder and executive director of the Bard Prison Initiative and we met with Rodney Spivey-Jones, who received his bachelor’s degree from Bard College in 2017, through the Bard Prison Initiative. Rodney is currently incarcerated at Fishkill, and he’s one of the main people featured in the PBS documentary series College Behind Bars. 

Again, we went to Fishkill before the corona virus crisis. And in the couple of months since, the COVID-19 virus has hit correctional facilities hard nationwide. It’s hit correctional facilities in New York particularly horribly. The rate of infection in correctional facilities, in prisons, in jails, can be 10 times, 12 times, 20 times what it is outside. There’s a Release Aging People In Prison Campaign and they were tweeting about Fishkill just a few days ago and what they said was that the “Fishkill correctional facility is exploding on New York Governor Cuomo’s watch.  He doesn’t care about the incarcerated elders there. He doesn’t care about the people in prison medical units and he’s leaving them there to die.” We want to take a second and emphasize how critical it is to protect people who are incarcerated right now from this virus. That may mean mass release. If we don’t actually take care of people who are in prison and ensure that they don’t get sick as well, we’re putting everybody at risk, not just them, but their families, the guards, the correctional officers, the people who work in facilities, their families. When we allow a virus to run rampant in a correctional facility we’re actually putting all of us at risk because we refuse to take care of people who are incarcerated. And right now, the facility where we were just a few months ago, is ravaged by this virus. So we encourage you to reach out to Governor Cuomo and or your own governor. We encourage you to do your research to look at your own local correctional facilities and determine how many people there are sick, how many people may have already died, what kind of testing they’re doing, and what your state or your county is doing to ensure that people are staying healthy, and to prevent the virus from ravaging those who are already in such precarious conditions. 

We’ve talked about prisons a lot on this podcast, obviously, but we haven’t talked specifically about prison healthcare. It’s worth emphasizing just how horrific the conditions in prison are. And that includes the medical system in prison. They don’t have quality healthcare in prison. They barely have any health care in prison. And when you think about what it looks like to be at risk of a contagious virus, which all of us are possibly at risk of this contagious virus, to be trapped in cells, packed with people, no possibility of social distancing, no possibility of protecting yourself. Prison is absolutely the worst place you could possibly experience something like this. 

So I want to emphasize that, when you’re listening to Rodney speak, I want you to remember where he is right now. And that he, like all of us, is worried about his family. He’s worried about staying healthy, and he’s worried about staying alive in the midst of what is an international pandemic unlike anything any of us have ever seen. So that’s just something to keep in mind when you’re listening to us talk. 

Rodney, Max and I sat down in January and we talked about the criminal justice system, about Rodney’s experience as a person currently incarcerated in America, and about the impact that the Bard Prison Initiative and a college education has had on him. And about his future and what he images for himself, when he is one day released. So please stay tuned to hear my conversation with Rodney Spivey-Jones and Max Kenner.

[ Music]

Josie: We are extremely excited and honored to be here today at Fishkill Correctional Facility. We are here with Rodney Spivey-Jones and Max Kenner. Thank you guys so much for being here.

Rodney Spivey-Jones: Thank you for having me. 

Max Kenner: Thank you for being here with us.

Josie: So let’s start Rodney, for people who are listening who haven’t seen College Behind Bars yet, can you tell us a little bit about how you got involved in the program?

Rodney Spivey-Jones: So it was 2011 I think, I was at Coxsackie Correctional Facility and it was the first time that BPI had started its program at Coxsackie. I went to, I think we call it an orientation, they just wanted to introduce BPI to the prison population there at Coxsackie and I happened to be in the audience. I really wanted a college education. So I went and I listened to Delia Mellis, who gave a speech about the importance of a liberal arts education. I listened to Daniel Karpowitz explain how rigorous the program was and I was sold. At first, I only wanted an associate’s degree, I wanted to get that out of the way and then work my way up to a BA degree and I wanted to just have straight As. I knew I had to get into the program with the BA and know there’s going to be a lot of competition and the best way to do that is to get all As. So that was my approach when I first started the program. So it’s very competitive. It was very competitive Coxsackie. We had maybe about 120-150 people who were packed into the gymnasium to take the interest exams. Out of the 150 I think about 30 of us were interviewed and 15 or 16 of us were accepted into the program. That was the first cohort at Coxsackie Correctional Facility. It was a great experience for my first cohort and later on earning the BA degree as well.

Josie: Can you tell us about what the test was like? The entrance test that you had to take?

Rodney Spivey-Jones: So the entrance exam consisted of one essay. You had to choose from I think it was three prompts and I chose — so long ago now — it was a quote from Eric Foner’s books, one of his books, and I wrote about the importance of the Civil War and Reconstruction, I can’t remember the details it was so long ago, there were a lot of us in the gym and it was difficult. You have, what, I think maybe an hour or an hour and a half to write this essay, and maybe one or two drafts and you have to hand that in, knowing that it’s not your best work, and that someone else is looking at it and they’re going to make their judgment on whether or not you qualify. And so just waiting for the acceptance letter in the mail that was so stressful. 

Josie: How long did you have to wait for?

Rodney Spivey-Jones: Oh my goodness. I don’t know. Maybe about a week? Two weeks? I can’t remember exactly.

Josie: So can you talk to us a little bit about the actual education process, so what your classes were like, what classes you like the most? For people who haven’t seen College Behind Bars yet, understanding what the actual program is like can give them some context into your own experience.

Rodney Spivey-Jones: The first semester we had to take a composition course, which basically teaches you the fundamentals of writing, how to compose an essay, the importance of a cohesive paragraph, a thesis statement in the beginning of your introduction, things like that. We also had to take an anthropology course which introduced us to important concepts and not just the concepts itself, but the practice of taking a concept and deconstructing it and coming up with an argument to explain how you see things. We also had to take a grammar class, which is very difficult for a lot of the students, we’re used to communicating verbally and when you’re communicating verbally, for the most, most of the time, you’re not thinking about punctuation and subject verb agreement, so that was challenging for many of us. Later on, the following semesters after the first semester, we’re focusing on history. And a whole new world starts to open up with taking higher level anthropology courses, and a whole new world starts to open up. Instead of learning the importance of grammar and paragraph cohesion, you have these own ideas that you’ve developed over a period of time and you’re trying to do your best you can to articulate those ideas. I would say, anyone who’s been on a traditional college campus there’s a lot of parallels there. I think the biggest difference, we learn all the important topics we need to learn in college here and it’s very rigorous, that may be another thing that distinguishes the BPI program from a lot of other college programs. Another thing that distinguishes us being in a non traditional school setting in prison from those who have been in a classroom on a campus, we are not only learning, acquiring the same tools that an 18 or 20 year old is acquiring, but we’re acquiring it in this context, in prison. So just learning how to critically engage your environment, you can do that in a college setting, right? 

Josie: Right. 

Rodney Spivey-Jones: But it’s not as oppressive as it is in the prison.

Josie: To say the least. 

Rodney Spivey-Jones: Right. So when we talk about criminal justice issues, these are things that are immediate concerns of ours and we don’t look at them in abstractions, we can look at the concepts of justice, inequality, but they really mean something to us when we start thinking about sentencing. We really start to look at that, not just having a conversation where we’re complaining about it, but we’re starting to really critically engage these topics. A program like BPI provides us with the tools to do that. I mean, that may be one of the biggest takeaways.

Max Kenner: Something that’s implicit in what Rodney is saying and that your listeners should understand is that BPI students from the moment that they are enrolled with the college, engage in a curriculum that is identical to what Bard College offers on its main campus and what you see or experience on virtually any liberal arts college university campus across the United States. And of course, we encounter students at all different parts of their lives and for them, there is something so palpable at stake in that classroom, that they are able to overcome the fact that they have not had the kinds of elite high school experiences in New York or Chicago or Los Angeles or in Eastern Europe or East Asia, that the conventional undergraduates at a place like Bard typically have had, and they engage in a breadth of curriculum that is identical to what happens on campus. That includes the humanities and American history and literature and the arts, but also foreign language and math and science as well. We don’t come to the prison with an assumption that because a person is an adult or because a person is incarcerated or convicted of a crime or what have you, that they are either interested in or capable of a certain kind of learning. We come with the same disposition that we have with students on campus and that we hope the schools where the people we love most also enrolled.

Josie: Right. I mean, one of the things that’s interesting when you’re watching is reflecting on my own college experience and you know how they say youth is wasted on the young and I always think back to college about how I didn’t have the tools or perspective or foresight to actually engage with the work as it applied to my own experience. So everything feels very academic. It doesn’t feel like any of the academics intersect with real life or it didn’t to me. I like what you guys said because what I take from is sort of, you get from it, what you put in and part of that has to do with how you’re able to relate what you’re learning to your own experience. And I think about that because Rodney, I don’t remember if this is on the broadcast, or in the interview you did with Ted Alcorn, but I really liked the point you made about literature and empathy and that getting more involved in literature, reading more literature, you learn the sort of empathy for people, you kind of like learn people’s lessons with them on the page and you were saying that the only real experience you had about that, in terms of your own conviction, was the parole board, like the parole board is kind of the only place you have to do that. But we talk about education as if the only value is kind of mental but there’s so much emotional value in this education for you and I thought you could talk about that, not just what you learned, but how it changes the way you feel, how it changes, sort of like your emotional life. 

Rodney Spivey-Jones: Yeah so it’s not just an intellectual exercise, right? 

Josie: Right.

Rodney Spivey-Jones: We’re not just sitting in the classroom, and then we’re leaving from the classroom and now we have this essay to write and then we’re done. When I’m speaking for myself, I think I’m speaking for quite a few of us, who are earning an education while incarcerated. You look at everything. You look at your life. So it’s not just literature. It’s history as well. You see yourself in history or at least you try to envision, you know, yourself in history, if you’re missing from the text, you try to put yourself there, right? So just speaking about literature though, you take a story like Crime and Punishment, by Dostoevsky, I hope I’m pronouncing his name, you try to put yourself in that character’s shoes so that you can understand what motivates him. And if you have a good professor, really good professor, and they’re all good professors, Professor Mason taught this class, Crime and Punishment, and we would focus on two or three pages for two hours, and just have a discussion about justice, humanity. And while we’re trying to do the best we can to define these concepts because that’s where it starts at first, right? You have to define these terms and then we can have a conversation. We’re asked to look at the things we have around us to help inform the definitions we have for this term. And you get to see that maybe for one character, it’s pain that moves him and how can you understand this pain? You dig inside and you see what pain that you’re experiencing and you get to analyze that, that may seem like it’s an intellectual exercise, but really isn’t. You’re kind of taking this feeling which isn’t tangible and you try to objectify it a little bit so you can look at it from different sides, right? And you’ve got a different perspective on it. And you start to really see the shape of the pain, the contours of it. Knowing your pain in that way, if you can really get to experience it in that way, you may be able to empathize with someone else’s pain as well. And that’s the only way you can really empathize with anyone and I think education, any kind of education, but specifically a liberal arts education, because you’ve studied so many topics, it’s so broad, in that way it’s helpful. It’s very helpful, and I think it’s related to a sense of community and on and on and on. You can’t really have a sense of community and how important a community is without being able to empathize with another member in your community. So.

Josie: It’s interesting because it reminds me that, to your point about history and literature, the great thing is that you sort of begin to understand how small you are in the context of the world, in a good way, you know, once you sort of realize that what you experience has been going on for decades, right? And that plenty of people have experienced something like it, it’s both, I think, to me infuriating and relieving that you’re not alone. That’s part of what the purpose of education is, right? At least in the grand scheme of things.

Max Kenner: Every bachelor’s degree candidate at Bard or at BPI culminates their time at the college with something we call a senior project and in the humanities or social studies, that’s an 80 or 100 page original research paper. And students tend to learn more and know more and understand more about that subject than they have anything in their lives. But one of the things that is most important that students learn is that once they become truly an expert in something, how little they actually know or understand it and therefore, all those other trivial opinions that we have, the ignorance of most of what we say, comes to the fore when you actually truly become an expert in something and all your opinions in that subject are filled with more doubt than those things that you actually know less about.

Rodney Spivey-Jones: Yeah.

Josie: We were talking earlier about people who don’t know what they don’t know and it strikes me that once you actually dive into something, you realize how much you don’t know about pretty much anything. 

Max Kenner: Humbling.

Josie: Yeah, it’s very humbling. Let’s talk about your senior project.

Rodney Spivey-Jones: Yeah, so the title of my senior project is “The Messianic Black Bodies from the Raging Waters of the Tallahatchie River to the Burning Streets of Ferguson, Missouri,” and it’s so difficult to explain it, to give a short summary.

Josie: Doesn’t have to be short. Tell us the story. 

Rodney Spivey-Jones: I was really, really interested in how language is used. So I had this idea that there was a connection between how language is used, and how that may shape the perceptions of our opportunity.

Josie: And by “our” you mean black people?

Rodney Spivey-Jones: Yeah, African Americans. As I tried to research that question and try to figure out what I meant by it, it was just puzzling to me. I didn’t think, so we have the material conditions, they certainly shape our outcomes in what we call an opportunity. That’s one aspect of it, but it’s so obvious, right?

Josie: Right. 

Rodney Spivey-Jones: How does language influence how we look at things too? That shapes, we have the environment, but what pieces of that environment stick out at us? That’s perception too. So I wanted to really look at that. But as I’m trying to figure out how to wrap my mind around that question and research that question is very difficult. You have the Black Lives Matter movement happening all over the country, they’re demonstrating all over the country. I’m reading Michel Foucault’s books, his Archeology of Knowledge and how discourse, this power inherent in discourse and it creates constraints and sets the rules of conversation. And I’m looking at the die-ins in the middle of the highways, the major thoroughfares all over the country and I’m reading about Emmett Till, and just the way his mother used his body. I’m like, wow, that’s the same thing we’re doing right now in the 21st century, when you have hundreds of people lying in the middle of the street, staging a die-in for four and a half minutes to represent Michael Brown’s lying in the street for four and a half hours. And there was something powerful about that. That for me was an object of rhetoric, right? That’s language. And so I’m trying to figure out why is this happening and what does this mean? And so I just kept looking at it. And one of the answers I came up with for why it’s happening is that this is a demand for recognition, right? So you take this disfigured body you want, I think the impulse is to hide it. ‘This is not my son.’ This is probably your first impulse. ‘I don’t want anyone to remember my son this way.’ She had a bunch of photos. She could have just shown the photos and had a closed casket funeral instead, she said, ‘No, I want you to see it.’ This disfigured body so that you can empathize with him. And so she placed a photo of him happy and smiling, leaning on a television. She placed it right in the casket, so that you could look from both his disfigured body, his disfigured face to the photos to emphasize on one hand the brutality of the murder, of racism and this life that was lost, and he’s just like all of our children, that was the message. But then I also had to look at why did this happen? Why does it continue to happen? And you have to look at race, you can’t have a conversation about Emmett Till or the Black Lives Matter movement and not talk about race. And for me, I think the disfiguring of Emmett Till is a national metaphor. You can’t define whiteness without blackness, right? Because these two are binary opposites, it’s terrible that it’s that way. That’s the way it is. You can’t have white without black, you can’t have black without white, and blackness needs to be inferior. But it isn’t. Black people, we’re just not inferior but how do you do that? You have to create this inferiority and that’s disfiguring, this disfiguring that’s taking place. So on a very physical level, you see it happening with Emmett Till, this disfiguring and that became a metaphor but then we look at language, I go back to this full circle with this idea of language, this rhetorical disfiguring that takes place too. And we look at the 21st century, not just the 1950s, but the 21st century as well. You can see how the media, particularly conservative media, they’ll take someone like Laquan McDonald, who was gunned down in Chicago by an officer.

Josie: A child.

Rodney Spivey-Jones: A child but all of a sudden became an adult and it wasn’t enough that he was shot and he was unarmed. 

Josie: Right. 

Rodney Spivey-Jones: He couldn’t have been innocent because not only was he an adult, but he also had drugs in his system. And we saw the same thing with Trayvon Martin.

Josie: He was “menacing.” 

Rodney Spivey-Jones: He was yeah, he was menacing and he had a hoodie on. So this disfiguring that I’m talking about, so they lose their personhood. We no longer see them as an individual, we see them as a representation of this race, blackness, which is inferior, which is how we come to define whiteness but it’s a continual thing. And so and here’s where the importance of messianic black body comes in. So Benjamin, philosopher Benjamin, he said that we shouldn’t understand history in linear terms, one event progressing to another and then we reach the supposed telos, that doesn’t happen. Instead, we should understand history as if it’s a constellation. That history is made up of several different moments, these turning moments, and we can take any turning moment and we can take it and we can peel back some of the layers and see some of the same social tensions, and all the other pivotal moments in history. Some are amplified, and others lie dormant. But we can see the same sorts of things happening. And this allowed me to understand why we’re seeing the same thing in the 21st century that we saw in the 20th century. Why we saw the same thing in the 20th century that we saw the 19th and on and on and on. We’re still grappling with these same issues. And the black body is messianic because it continues to represent this symbol for both recognition on behalf of African Americans so that you see me and as a symbol to define whiteness and, you know, that’s what the senior project is about.

Josie: So I’m thinking about what you said about reading Foucault and one of the things I thought — I read Foucault late when I started doing this work — and I thought, what I kept thinking about when you were talking is that he talks about how we punish people.

Rodney Spivey-Jones: Mhm.

Josie: How the ways that society punishes people, how it evolved from being purposefully public to purposely not public. You writing this senior project made you reflect on your own experience incarcerated in a place like America, I think in particular, because in America, we talk about liberty and freedom. And just when you were talking, I was just thinking, the intensity in which what Emmett Till’s mom did, we do the opposite in the prison system. We are given a view of the incarceration system in America, but it is very biased and it shows a very specific kind of thing and I think the broader question is how you’re, when you’re writing a senior project, how is it making you think about your own experience and your own life, I guess more generally?

Rodney Spivey-Jones: So I say messianic black bodies, I could have just as easily said the criminal body. 

Josie: Mm hmm. 

Rodney Spivey-Jones: Because prisons do the same kind of work. There is a representation and it’s always negative. As I’m writing this senior project, and I mentioned this in the afterword of the senior project as well, like that category — prisoner, inmate, offender — just being in that category, it starts to feel like scurf that you can’t scrub clean from the body. It lingers all the time, right? And I know in society what most people in society think about me, and it’s all negative. And I know that some of the representations of the quote-unquote “criminal,” someone who snatches a purse or harms a woman, or robs a jewelry store, like that’s me, that is always me because I’m here. It doesn’t matter that I don’t commit crime. 

Josie: Mm hmm. 

Rodney Spivey-Jones: I happen to be in prison, so if I’m in prison, that means I’m a criminal. 

Josie: Mm hmm. 

Rodney Spivey-Jones: I’m not a law abiding citizen, even though I don’t commit crime, and I’m just trying to do the best I can to survive the next day and the day after that like everyone else. I’m a criminal. And so, I think that when I’m looking at this, the criminal body, if we can call it the criminal body, it becomes a way to define ourselves, those of us who haven’t been to prison, in relation to the criminal that’s doing all the harm, we’re the people who need to be safe, they’re the people that we need to be protected from. They belong there. We still have the spectacle. Foucault talks about the spectacle, how important the spectacle was, to legitimize the power. We still have it.

Josie: Right.

Rodney Spivey-Jones:  It’s on every news channel. We still have it.

Max Kenner: On the question of the visibility or invisibility of punishment, you know, I think what we do today is invisible to much of the general public but obviously, if you’re inside one of these institutions, the physicality of it all is overwhelming.

Josie: Right.

Max Kenner: That said, for me, after a couple decades of doing this work, I’ve come to believe that of all the qualities of this experience that is most insidious for all the cement and all the bars and all the steel, what has come to seem to me to be most painful and most destructive, is actually an idea. And it’s an idea that very often, people who are in prison are complicit in making real and that is that this time, this portion of a person’s life and all of us who are human have a limited amount of time that we’re alive, that this time can be made not to matter. And what college does, what education does is help people assert that though the conditions in which they live are terribly far from optimal, that it’s still a portion of the limited time that they have alive on the earth and we together as a group of students, and teachers and a community, are going to make this time we have as fulfilling and important and as terrific, as agonizing as life can be anywhere else. And that we will refuse, despite the conditions, to participate in this living mythology, that this time isn’t real, that it doesn’t count.

Rodney Spivey-Jones: Preparation. 

Josie: I’m taking it to be, you know, college can be hard, obviously, what happens for students who are struggling in the program, or maybe, you know, I have two siblings who decided college wasn’t for them, right? How often is it, you see kind of a very hard program that these people are, you know, that everybody’s excelling at and it seems like a really linear path, but everybody’s different and it’s probably not as easy for some people or the path isn’t as linear, what is that like or do you know what that’s like for other students?

Rodney Spivey-Jones: You don’t really get to see this in the film and it’s not like tutoring, right? But the real learning takes place outside of the classroom. We co-opt any space we can. If it’s an empty room, we take it over. And it may be just three of us, it could be four, could be five, it may be ten of us and we’re having a discussion about that puzzling question that the professor posed. We make sure that we get it done. We provide each other support. So I’m a writing fellow. I tutor people with writing, but they may not come to me. They may come to the person who’s in their classroom, who’s in the class with them. They may not be the greatest student right then, but they’re still learning and I mean, that’s part of the process, right? You need to struggle. You don’t start off knowing everything and the minute you start knowing everything there’s no point of really sitting in the seat, you’re constantly struggling, right? So I have one example of that, that I came up with, me and six other guys, we came up with the quote-unquote, “the group,” we call it. We helped each other during our senior projects. We would meet maybe two or three times a week, we’d take over an empty classroom and we would discuss our research topics, we’d give presentations, and we give feedback. We’d pass our papers around, maybe a two or three page paper around, where we were in our senior project process and what kinds of ideas we were exploring at the moment. So the learning takes place, the real learning, I think, takes place outside of the classroom. The classroom, the professor and the discussions that we have during class, those become springboards for deeper conversations, deeper engagement with the material afterward. So, yeah.

Max Kenner: There have always been people in the United States who’ve taken more advantage of a little bit of educational opportunity than others. The first primary eternal group in American history is immigrant communities, right? But throughout the 20th century, our colleges, universities were filled with veterans coming home from foreign wars who transformed the landscape of higher learning in America. 80, 90 years ago, the best learning colleges in the United States were community colleges in Brooklyn and Queens filled with people from Eastern Europe for whom they were quotas in the ivy Leagues, right? And we never ever talk about it but no group of people accomplished more in formal education or through informal education than the generation or two of Americans who experienced emancipation from slavery. And in my view, incarcerated Americans are analogous, or contemporary analogues to those groups of people, people who will make the most of what we as educators have to offer. And there are a handful of things that are deeply inspiring about doing the work and one of them, of course, is watching and working with people who later in life are doing all of this stuff, and doing it with a level of seriousness that most people don’t, if they’re lucky enough to go to college, go to a terrific college, when they’re 18 or 19 years old, right? But it’s important to emphasize, when we look at all of this in its totality, it’s so easy to focus on the criminal justice side of this equation and as liberals to blame law enforcement or jailers or prosecutors or conservatives or what have you. The fact is the leaders of our richest, most liberal institutions, our most terrific learning colleges and research universities in the United States have shown absolutely zero imagination in how to engage more and different kinds of people who will make the most of what they have to offer rather than seeking out more students who will make the most of what they have to offer they look to the same group of students who accomplish the best, the most on, you know, bubble test or whose parents went to those institutions or what have you and we can’t, we as educators, we as people who believe that it’s important to have a population that understands history and knows natural science and has a little bit of math and honors the arts, we can’t live those values unless we revolutionize how we help Americans access those values.

Josie: Just thinking about how the lack of imagination and access to education is a microcosm of how inequality and lack of access exists all across America more generally, access to housing, access to jobs, access to, you know, nutrition for your kids, right? Like we are pros at leaving people, deciding who gets what, and not actually using our resources to make what we have available to everybody.

Max Kenner: I think it is for inclusion, you know, there, there are other forces at work but let’s remember in 1988, we spent three times as much, on the state university system here in New York and then we did on the prison system and by 1998 that was inverted. We spend twice as much on prisons as we did on public colleges, universities. And I think both of these institutions, higher education on the one hand, and prisons on the other are a reflection of our concern, our care, our love for young people, for the future and that’s why education itself is the thing that can transform the purpose and outcomes of the prisons.

Rodney Spivey-Jones: The expansion of prison, and in ‘98 is our care for loved ones, our young ones. Oh, my goodness, who’s young ones? That’s the question. Who’s young ones? They don’t look like me. They don’t look like me. We’re always grown men, and wayward women, when we’re young, and we’re getting into trouble. So it’s almost as if those young ones, the ones that look like me, we’re protecting the rest of the young ones from. That’s sad. Yeah, that’s sad. I don’t know. It just made me think about that. Yeah.

Josie: I just want to ask you all about the response that you’ve encountered to College Behind Bars, the PBS program, about BPI, the college program. And I think for a lot of people, this might be the second interaction that they’re having hearing about BPI, because they may have heard about when BPI beat Harvard at the college debate a few years ago. So that’s a kind of open ended question. I guess I’m wondering both, I don’t totally know what the response has been so I’d love to hear what it’s been like and I guess I’m also kind of wondering if there’s been negative response, or if the good response has been well intentioned, but misdirected or something? So I’d love to hear your thoughts about that. 

Max Kenner: For me. The response to the film has been surreal, in that it has been overwhelmingly, almost exclusively positive. The Harvard debate actually figures in this story in an interesting way but you have to remember that when we embarked on the work 20 or so years ago, and for the really the first ten, twelve years of being in this field, you know, I get up in the morning and put on a suit and get ready for people to be mad and sometimes they hate me for doing this work. And that the popular belief, or at least we thought the popular belief, was that this work was wrong in an ethical way, in the moral way and that has really changed. Now, I would say two things. One, the Harvard debate really figured in changing either public perception or our understanding of public perception because when that happened, just to give a little backstory, we had a debate team for a few years and started debating internally, Rodney participated in that, we have a terrific debate coach who runs the Bard Debate Union someone named David Register. We’d been doing that for a while. We started competing against West Point and then other teams and then we were relatively successful and invited Harvard to come and then we won that Debate. Some, one of the engineers at Google told us that that became the ninth most viewed headline in the world that year.

Josie: Wow.

Max Kenner: The story was everywhere and that was extraordinary, because there actually was no story. We didn’t share any information with the public. There was one journalist there who wrote a story that was maybe 300 words, you know what I mean? It was just the title, “Prison Beats Harvard.” And the first thing you learned was how much America loves to see Harvard lose. 

Josie: (Laughing.)

Max Kenner: (Laughs) We were secondary there. But more to your point, I think in the United States, in our public imagination, when people think of something being free, they imagine what is being offered to be cheap or not earned, right? So what just that headline symbolized to a lot of people was that what’s happening in this classroom is not some kind of unwarranted handout and that the students in the classroom are accomplishing something so real, that we should all be proud of it and that initial assumption is wrong and should be corrected but also that that symbolized both how much more we can expect of people who are in prison in the United States, and how much better we have to do in higher education in engaging more different kinds of people.

Rodney Spivey-Jones: The response has been overwhelming for me. I mean, just being, like I mentioned earlier being in prison, I still have access to television, to the newspaper and magazines. I know what many in America think about me but then College Behind Bars airs on PBS  and just a few days after that, about a week or two after that I started to get letters in the mail from teachers and principals and students working on their dissertation. Some were asking for copies of my senior project, others were explaining how I had inspired them to go back to college. These are people who’ve never been to prison, from as far away as Arizona to Oregon and Canada, from Florida to California, all over the country. Some say ‘Listen, I didn’t even think about prison but when I saw the documentary, it made me want to get involved in the prison that’s in my community, ‘ and that was touching. And just to hear, just to read the positive responses about me, and comparing that to what I know most of America thinks about me like that, I cried. I cried. I felt seen. 

Josie: Yeah.

Rodney Spivey-Jones: But I think the most important response to me was the ones I received from the men that I had an opportunity to sit down with and watch the film, some on the housing unit and it airs on PBS. I don’t think anyone wants to see it. We don’t normally watch PBS or a documentary. We’re watching an action film where, you know, there’s shooting and car chasing. But we sat down and we watched it and it was completely silent in the room. We watched the first and second episode that first night and then the next night we watched the final episodes and I had men come up to me with tears in their eyes and say, ‘Listen, you told my story. I think you did a good job of describing to America how important it is to see us as human.’ It was so moving and that film provided a springboard for just a bunch of conversations, we talked about so many criminal justice reform issues, I think it’s important that incarcerated citizens have the right to vote. People. 

Josie: Yes.

Rodney Spivey-Jones: Even prisoners are not really open to that idea. They have counter arguments immediately, they come up with counter arguments, but they were so receptive to it now. We were talking about parole reform and sentencing reform, and the importance of maintaining relationships with family and friends on the outside, it just opened up a lot of opportunity to have discussions that we don’t normally have. So I mean, it was great. When I agreed to participate in the film project what was most important for me was having a seat at the table to talk about some of these important issues that we explore in the film but more than that, that we at least have a conversation. We might not change anyone’s mind, but maybe you haven’t had this conversation yet. If we can start a conversation, then we’re successful and that was enough for me that night, those two nights, to start that conversation, I know we succeeded.

Max Kenner: That’s a lot.

Josie: Yeah, that’s not nothing.

Max Kenner: There are two things the film does that I’m, I think I’m most proud of, and one might think of them as very different. The first relates most directly to criminal justice and in criminal justice reform, where I’ve spent my whole adult life, you know, we have a long history and a deeply ingrained habit of sticking to the easier questions, easier problems and least fraught solutions and we can talk a lots, we can make a catalogue of what they are, innocence and guilt being one of them. But most crucially, if you talk about ending mass incarceration, decarcerating America, reducing the number of people in prison, you can move that ball a long way up the field, most of the way up the field and then you’re going to have to encounter the reality that a huge portion of people in prison in United States, particularly for longer periods of time, are incarcerated and convicted of violent crime. And in our community, in the criminal justice reform community, we’ve been afraid to confront that reality and I don’t think there is a piece of media in the United States, in American history that focuses almost exclusively on individuals convicted of crime that is violent crime that also attempts in the way that Lynn and Sarah do to show those individuals on their own terms in their own context and in their own words. And that is not the only context in which to understand anyone from one’s own perspective, but it is the only one we never hear of when it comes to incarcerated people. The second thing, and it’s worth mentioning, has nothing to do with criminal justice, it is the representation of Americans of every different age, experiencing an undergraduate education, and showing on national television, a level of curiosity and love of learning that the cynics in us think is somehow old fashioned or no longer relevant and I just want to say, I don’t think those two things are unrelated. It was precisely cynicism about young people, and particularly young people of color, and a betrayal of the future that led us to this crisis of mass incarceration and a betrayal of the young and that’s the same thing that has led to our cynicism about education in the United States.

Josie: One of our favorite drums to beat on Justice in America is talking about the failure of any sort of politician, program, reform, policy reform to really grapple with people who have committed violent crimes, because it doesn’t sound pretty and it sounds complicated and we like easy solutions and to me that kind of gets back to what we’ve been talking about in terms of the value of education, of having to see things as complicated when we don’t like complication.

Max Kenner: You know, let’s not put violent crime in air quotes, you know, violence is a real thing and it’s not something that anyone wants for people that they love. The question that we face as a society is how we honor victims of violent crime and whether punishment alone does anything to that end and also, as we allocate government, taxpayer, public resources into institutions, whether we want to focus on a past, even an egregious past, or on the possibility of a better future and violent crime not shying away from what can be the terrible reality of it, but facing the terrible reality of it can be an opportunity for us to find the courage in all kinds of different contexts that is required of us if we are going to build a better future for the young today.

Josie: Well, when I say “violent crime” in quotes, I think what I’m referencing is the way our legal system sees and defines violent crime versus how we would define it on our own terms and so is a boy getting in a schoolyard fight a violent crime in the way that we think about violent crime? Is what Bernie Madoff did, is that its own type of violence? What do we mean when we talk about violence and I think the idea that violence is easily defined, that all violence is on the same plane, but also I think that our legal system gets to make that definition is what we have talked about on Justice in America before because, you talk about binaries, it’s a binary concept that is probably a little rougher, you know, a little more blurry around the edges than we’re willing to kind of, or that we ever have thought about, I don’t know if willing is the right word, but that, you know, it’s just a word we accept for what it is, when it maybe is different than how we picture it. At least that would be my read.

Rodney Spivey-Jones: That’s an interesting question of “violent.” So when we say violent, we’re usually talking about the people who are unworthy of — fill in the blank. The non violent, well, they’re redeemable. You made me think about, as you were talking, I was thinking about, I was watching CSPAN, and you had this bipartisan bill that was passed, but what was it called the First?

Josie: First Step Act.

Rodney Spivey-Jones: First Step Act and they were talking about how great the bill was and — guess what? — it’s not going to benefit any violent offender. No violent criminals. And I’m looking at it like, wow, why is this a good thing? Why is this a good thing? How does this help anyone? How does this deal with mass incarceration? Yeah, so even the quote-unquote “violent criminals” will get out of here and go home one day. But how do we prepare them for society if we’ve attached this label to them that says that you’re not redeemable? That you’re violent and this is what we expect from you, you’re violent, we’re not going to help you because you don’t deserve it. What do you expect? What can you expect from them? What can you ask from them? 

Josie: Right.

Rodney Spivey-Jones: You know I think that’s the best I can do to answer that question. 

Josie: No, yeah, I mean, I was thinking about, so you have this quote in the film where you talk about if there’s no programming in prison what are we preparing people for? 

Rodney Spivey-Jones: Yeah.

Josie: What you basically say is that then they’re just always defined by the terms of what got them in here.

Rodney Spivey-Jones:Okay, so programs. You have a bunch of, quote-unquote rehabilitative programs in prison. They are supposed to fix us, right? But then this is a punitive setting, those labels — violent and nonviolent — they carry a lot of weight in prison as well. It’s hard to imagine anything therapeutic or rehabilitative happening in this kind of setting. But you still need to make the effort to try to change this environment and I think college in prison is probably the only thing, where you can actually have a chance to look at the environment and have the important conversations that we need to have to do what I call heavy lifting, to dig deep, not just into the structures that surround you, but your own life experiences. That’s important. Whether or not you’re, you’re in here for nonviolent crime or quote-unquote “violent crime,” it’s important.

Max Kenner: There’s a long tradition in this field that unfortunately many decision makers are still susceptible to, which is about making people entangled in the criminal justice system, making them suspect to a set of assumptions that created 20th century social science that no one actually believes in anymore. And there’s no place that that happens more than in the prison, where we think we can, as Rodney says, fix people. In our business, the great preoccupation is with what they call recidivism, the rate at which people leave prison then come back. There’s no acknowledgement that recidivism is first of all, a question more of public policy than it is of individual decision making, but also it’s a complete failure of empathy on the part of those social scientists and those decision makers in that they refuse to look at incarcerated as people who are fully as complicated and difficult and terrific and wonderful and fraught as themselves. They refuse to think of them with the same seriousness as they would anyone they love.

Josie: It’s like measuring your child by recidivism or something right? You would never do—

Max Kenner: You would never do that, right? And so reducing a person in prison’s future to just a question, which, by the way, is a terribly low bar, right? 

Josie: Right. 

Max Kenner: We would like to measure people by how terrific they do in their civic or family or private lives, not at their worst moments but it’s a kind of bigotry that’s pervasive in the field, and one that is proving harder to overcome then I think even I would have expected.

Josie: Can you say more about that Max? You’ve been doing this work for 20 years. He started this in 1989. So oh, man, it’s 2020. When did that happen? So the way that we talk about criminal justice that the platform it has, the conversations we’re having about it have changed and yet, we have a long way to go. I’d love to hear you say more about how this has been more pervasive than we really could have thought about. In 1999, if you would have thought, what is this program going to be in 2019? Or where are people going to be in 2019? How do you think you would have imagined 20 years down the road and how is that different from what you actually are seeing?

Max Kenner: That’s terrific. So first of all, you know, we’ve made a lot of progress. And one thing that I wouldn’t have predicted is the degree to which however much the First Step Act isn’t something I would have designed, the degree to which we have created a bipartisan coalition that involves evangelical Christians and fiscal conservatives and created a really broad alliance that’s unique in American life and that’s a terrific thing and we should celebrate that. That’s number one but number two, in the context of how we have finally started, gradually, slowly, little bit by little bit reducing the prison population in the United States. We haven’t turned the corner in thinking about how we would otherwise spend this money and devote these resources in a way that would invest in people rather than in holding them down. We have a bipartisan consensus about reducing the size of this system. We have no consensus and really very little imagination about what we might build in its place. 

Josie: Right.

Max Kenner: And that is proving to be a much more challenging question. It’s a lot easier to burn a house down than it is to build one, or even to maintain one.

Josie: Twenty years ago did you think you’d still be doing this twenty years later?

Max Kenner: I have to say, I think the answer is probably yes. This is the only job I’ve ever had. It’s terribly fulfilling work and being able to be a part of this community as we’ve built it over the years and seeing everyone, all of our alum, do the things that they do, achieving the things that they achieve is the most wonderful and amazing thing and I can’t imagine doing anything else.

Josie: So we’re gonna close, but before we close, I want to ask you about what you imagine for your future, what you want when you’re out of here, and to the extent that BPI has changed what you imagine, I’d just love to hear you talk about what you imagine?

Rodney Spivey-Jones: You know, before BPI, I think, I was hoping that one day, I’d leave prison and just be a law abiding citizen, have a job, have a wife and some children. And now, you know, I have higher aspirations and I want to get involved in criminal justice reform in some capacity. I’m undecided on whether or not I should go to law school or grad school but I know I want to be involved in this kind of work. It’s important.

Josie: What kind of post carceral support exists for people who are leaving prison and are alumni of the program?

Max Kenner: So we work with alumni after release in a variety of ways and some of them are about just addressing what we call acute reentry, just the crisis of those first 90 days or three months or a year and just helping people situate themselves in a way that’s conducive to making something better possible. But the bulk of what we do is quite different from say, the social services, right? I would say it’s about two things. It’s about helping alumni make the most of their education. We talked earlier about recidivism, right? Most people, particularly funders and decision makers, want to judge our success by rates of recidivism. And if we did that we’d be content with, you know, giving an alum a broom or a mop and a minimum wage job and if they don’t come back to prison you declare victory and move on. Not that there’s anything wrong with that kind of work, but, you know, I think we want to make sure that alums feel that more and different things are possible. So BPI alum who’ve been released from prison have finished graduate degrees at places like Columbia, Yale, NYU, now someone who’s prominent in the film is doing a Ph.D. at Cornell right now. We have alumni in senior positions in business, and in not for profits all over New York City. And most importantly, we have BPI alum, an increasing number of them, working in leadership positions and in decision making roles at the best criminal justice reform institutions in New York City. And I think we know in our field, that we’re only going to be serious about transforming the nature of criminal justice in United States if we include in a serious and decision making way people who’ve experience incarceration directly and there’s no better way to prepare people for that kind of leadership, and that kind of life after prison, than college within it.

Josie:  So can you talk about what you think the future of this system needs to be?

Rodney Spivey-Jones: I don’t know how this is related but I mentioned earlier that it’s difficult to expect “rehabilitation,” and I put that in air quotes, to work in a punitive setting, right? It might make sense to start thinking about how important it is to include restorative justice in our criminal justice system. How do we start a conversation that allows those of us who have harmed people to start thinking about how to repair that harm? How do we facilitate a way to connect with those that we’ve harmed, so that we can figure out what they need and how we might address those needs because at the end of the day, you can send someone to prison for something they did for a very long time, because that thing was horrible, but the person who was harmed or the people who were harmed, are not going to be any better for it probably. There’s still harm. They’re still sitting with that. They still have questions, that the way the system is set up right now there’s no way to provide answers to those questions. So I would ask the listeners and anyone who’s seriously concerned about criminal justice reform and just reenvisioning the system differently, to consider that. How do we repair the harm? That’s the question.

Josie: Guys, this has been great. Thank you so much for joining us. Thank you so much for letting us join you guys here at Fishkill Correctional Facility and I really encourage everybody to watch College Behind Bars. I think that it provides a perspective that you never see, you never see, and the fact that it’s widely available to everyone is a gift. So thank you.

Rodney Spivey-Jones: Thank you. 

Max Kenner: Thank you for having us.


Josie: Thank you so much to our guests Rodney Spivey-Jones and Max Kenner, thank you for being so open and thoughtful about your experience. Please do not forget to go to and read up on the COVID-19 crisis happening right now in correctional facilities across the nation. We’ve been covering it ad nauseum. And there’s basically no better place to get information about COVID-19 and how it’s affecting the criminal justice system prisons in particular.  

For show notes and additional resources please also visit

A special thanks to Sarah Botstein, Lynn Novick, Megan Callaghan, Chris Pigott, Bella Feinstein, and Lancy Downs. Your participation and help in scheduling this episode and our previous episode 29 Schools in Prison were much appreciated. Remember College Behind Bars is now available on PBS and Netflix, please check it out! 

You can find us on Twitter at @Justice_Podcast, you can also like our Facebook page at Justice in America and subscribe and rate us on Apple Podcasts.

Justice in America is produced by Florence Barrau-Adams, and the production assistant is Trendel Lightburn, our researcher this season was Nawal Arjini, and a special shout out to Craig Hunter, he one of our incredible editors at The Appeal and every week he made sure this podcast got on the web, so thank you Criag.

 I’m Josie Duffy Rice and I want to thank you, thank you so much, everyone, for listening to Season 3 of Justice in America!