Criminal Injustice

A system designed to protect the innocent has instead become a menagerie to imprison them. A legal code designed to proscribe specific behavior has instead become a vast, vague, and unpredictable invitation to selective enforcement.

It’s fitting that Reason‘s last issue with Radley Balko on the masthead is devoted to outrages in America’s criminal justice system. He points us to Matt Welch‘s editor’s note.

A system designed to protect the innocent has instead become a menagerie to imprison them. A legal code designed to proscribe specific behavior has instead become a vast, vague, and unpredictable invitation to selective enforcement. Public servants who swear on the Constitution to uphold the highest principles of justice go out of their way to stop prisoners from using DNA evidence to show they were wrongly convicted. Even before you start debating the means of the four-decade crackdown on crime and drugs, it’s important to acknowledge that the ends are riddled with serious problems.

America has one-quarter of the world’s prisoners. More than 7 million people are under correctional supervision in this country. These staggering statistics—no other country comes close in percentage terms, let alone raw numbers—have serious consequences. For one thing, there is the fiscal cost: The corrections system lags only Medicaid in government spending growth on the state level. Yet most prisons are overcrowded, underserviced, and exponentially more dangerous than any decent society should tolerate.

Worse are the cascading social effects, some of which you might not initially expect. Although prison is overwhelmingly the province of men, black women in America’s inner cities have some of the highest HIV infection rates in the developed world. Why? Because their male partners contracted the virus behind bars, via consensual sex or rape, often going undiagnosed while serving out their terms.

Very few in our political and media classes are familiar with the communities most ravaged by crime and punishment. No politician ever lost an election by alienating the ex-con vote (in no small part because in a dozen states, ex-felons who have completed parole are still permanently barred from voting). It is no accident that the people most likely to languish behind bars—poor minorities, sex offenders, illegal immigrants—tend to be among the most reviled groups in American society.

To the extent that we even think about our prison population bomb, we have allowed ourselves to believe it’s an acceptable price to pay for the recent reduction in crime. But the rates of incarceration and crime aren’t so easily correlated, let alone quantified in terms of cause and effect. And the notion that we are keeping dangerous predators off the streets is belied by the fact that an estimated 1 million prisoners in the U.S. are serving time for nonviolent offenses, predominantly related to drugs.

[…]

Why did all this happen? Because we let ourselves be OK with the ends justifying the means.

Would you torture a terrorist suspect if he could reveal enough information to prevent a ticking time bomb from exploding in a big city? That was the armchair interrogator’s debate question eight years ago, recently revived when a variety of U.S. intelligence sources finally pinpointed the hiding place of 9/11 mastermind Osama bin Laden. It was the intellectual successor of CNN anchor Bernard Shaw’s famous debate question to 1988 Democratic presidential nominee Michael Dukakis: “Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?”

These questions are intended not to further discussion but to end it. Only a monster would oppose either final retribution or preventive action against those who murder innocents. Even though the examples are always and necessarily fictional, these are the ultimate in cost-benefit analysis and base emotionalism. The mind-set behind them has dominated America’s policies for using deadly government force for decades.

Alas, I don’t expect that mindset to change any time soon. We can’t get Americans excited enough about abuses of police authority that target ordinary citizens to do anything about them; we’re surely not going to create a revolution against a system that primarily affects the underclass.

FILED UNDER: Law and the Courts, Police, Quick Takes, ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. michael reynolds says:

    Americans, especially conservatives, have a shrill, insecure obsession with the notion of “toughness.” That’s the American answer to just about everything: toughness. Tough on crime, tough on foreign policy, tough on airport security, tough on budgets, tough on the poor, tough love, tough schools, tough on everything. (Except of course the rich and powerful.)

    If we can’t get Americans to grow up, maybe we could get them to pay attention to the cost. Here in CA it’s 40 grand, round numbers, for a year in prison. That’s 40 billion a year for each million guys, not counting the damage done to society, the cost of arrests and trial. Even when you’re counting in trillions, that’s real money. The much-hated-by-conservatives Department of Education costs 70 billion a year. Non-military foreign aid is something like 24 billion.

  2. John Burgess says:

    @Michael: I’m conservative and I’m all for winding down the war on drugs. It has failed insofar as I can tell, but has succeeded in putting an awful lot of people in jail… or graves.

    I think prison is the right answer for serious crime–blue or white collar–but not the right answer for minor (or relatively minor) offenses.

    Sure, sometimes somebody needs to be put in prison to put the fear of God in the minds of his professional peers. That is not the right answer to less serious crimes, particularly when it’s difficult to establish just who has been damaged by them.

    So, yes, there are some conservatives who think being ‘tough’ is the answer to all things, just as there are those who think God is the answer. I don’t think they represent the class, however, particularly when more and more of them get to feel the sting of over-the-top law enforcement and incarceration.

  3. Lit3Bolt says:

    Remember kids!

    Alcohol and nicotine and prescription pain pills = good, safe, legal drugs

    Crack, heroin, marijuana, LSD = bad, illegal, must be jailed for possession drugs

    Please don’t ask any questions.

  4. george says:

    Americans, especially conservatives, have a shrill, insecure obsession with the notion of “toughness.” That’s the American answer to just about everything: toughness. Tough on crime, tough on foreign policy, tough on airport security, tough on budgets, tough on the poor, tough love, tough schools, tough on everything. (Except of course the rich and powerful.)

    The really odd thing is that they’ve replaced the ideal of personal toughness with societal toughness. A tough individual would rather take chances meeting up with a criminal on the street than give up personal liberties … but the new ideal is to keep the streets as safe as possible for delicate individuals, even if it means giving up on personal liberties (Patriot Act, war on drugs etc).

    When a nation becomes afraid of personal physical risk (as opposed to just financial risk) then liberty is well on the way out.

  5. Southern Hoosier says:

    I don’t have any problem with the death penalty, just as long as it is the right person.

  6. Southern Hoosier says:

    How about justice for the guilty? I find this a very disturbing story.

    The 12-year-old who could become America’s youngest ever ‘lifer’ for killing two-year-old brother

    Read more: http://www.dailymail.co.uk/news/article-1394557/12-year-old-Cristian-Fernandez-Americas-youngest-lifer-gets-life-prison-killing-year-old-brother.html#ixzz1OXVJ4U1d

  7. OzarkHillbilly (used to be tom p) says:

    America has one-quarter of the world’s prisoners.

    James, I have read many horriffic statistics. THAT one boggles the mind. Please give me a cite.

    Seriously, there is something wrong with this country.

  8. James Joyner says:

    @OzarkHillbilly: I gather he’s including anyone on parole, probation, house arrest, etc. in his stats, which would lean toward us. And we’re the third largest country by population on the planet–although way behind China’s 1.4 and India’s 1.2 billion with a measly 310 million. Still . . .

  9. OzarkHillbilly (used to be tom p) says:

    I don’t have any problem with the death penalty, just as long as it is the right person.

    The right person being black, correct SH?

    “The major factor is race, not population density. DC is 65% Black,”

  10. OzarkHillbilly (used to be tom p) says:

    I gather he’s including anyone on parole, probation, house arrest, etc. in his stats, which would lean toward us. And we’re the third largest country by population on the planet–although way behind China’s 1.4 and India’s 1.2 billion with a measly 310 million. Still . . .

    Yeah, that is the part that gets me, India? China???

  11. OzarkHillbilly (used to be tom p) says:

    1980’s South Africa?

  12. CB says:

    I don’t have any problem with the death penalty, just as long as it is the right person.

    man, come on. i know hoosier can fend for himself, but is that really necessary? not to mention it was a perfectly valid comment.

  13. CB says:

    oops. i mean this:

    The right person being black, correct SH?

  14. Southern Hoosier says:

    OzarkHillbilly (used to be tom p) says: Monday, June 6, 2011 at 21:07

    I don’t have any problem with the death penalty, just as long as it is the right person.

    The right person being black, correct SH?

    “The major factor is race, not population density. DC is 65% Black,”

    No, the right person is the guilty one. Are you suggesting we have a quota system for executions? 75% of the population is white. Should 75% of those executed be white, regardless of guilt? That would be just as absurd as executing someone just because they are Black.

    I’m not sure why you feel it in necessary to inject race into to the issue, when no one else has.

  15. Franklin says:

    Comparisons to other countries are always difficult. You’ll get executed for drunk driving in some countries, IIRC, so you don’t show up as part of the prison population.

    I suppose I could look it up, but I wonder what the actual breakdown is by “crime” committed. If half of them are non-violent drug offenses, there’s your problem and solution right there. But I’m guessing that’s a high estimate.

  16. Southern Hoosier says:

    Up to a third of the U.S. federal prison population is composed of non-citizens, according to Federal Bureau of Prisons statistics – but not all non-citizen prison inmates are illegal aliens.

    http://archive.newsmax.com/archives/ic/2006/3/27/114208.shtml

    How about we start by keeping illegals out of the country and reducing immigration quotas to 1965 levels? The money saved would go a long way for drug rehab.