Our Awful Criminal Justice System

A stroll down memory lane.

Many readers took my partial defense of prosecutors taking longer than they should have in arresting Derek Chauvin for killing George Floyd as an endorsement of the system. It was not. Rather, it was a description of the system.

We have written 53,202 posts at OTB over the years and it’s rather difficult to sift through them to find discussions of particular topics. And it’s made more challenging by it having been a group blog for the last seventeen years. Doug Mataconis, both because he’s trained as an attorney and because he was for many years more prolific, has written tons on the criminal justice system over the years. His fellow libertarian, Steve Verdon, tended to handle that beat in the earlier years. And I seldom engaged issues they’d already dealt with in posts of my own unless I either strongly disagreed or otherwise had a markedly different take.

Still, I have written a lot on the topic.

  • Rise of the Warrior Cop (The paramilitarization of American law enforcement has had deadly consequences.) July 9, 2013
  • Militarization of Police (David Rittgers, a legal policy analyst at the Cato Institute who served three tours in Afghanistan as a special forces officer, laments the militarization of police in America.) June 15, 2011
  • 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.) June 6, 2011

I’m sure there are older examples but that takes us back almost 13 years. I’ve also written a ton on the horrendous conditions to which convicted felons are subject in our prison system.

  • Solitary Confinement as Torture (WikiLeaker Bradley Manning has been held “under conditions that constitute cruel and inhumane treatment and, by the standards of many nations, even torture” for seven months and counting.) December 16, 2010
  • Prison Rape and the 13th Amendment ( The state has an 8th Amendment duty to protect those it incarcerates from brutality, a duty which it quite often fails to carry out because of indifference and the hiring of “corrections officers” who are often of incredibly low intellectual caliber and moral character.) April 12, 2008
  • Prison Rape (Rape is the de facto sentence for prisoners placed in many of our prisons and penitentiaries.) February 12, 2007
  • Domestic Prison Abuse (Many of the things that happened at Abu Ghraib routinely take place in our domestic penitentiary system.) May 8, 2004

Again, there are likely hundreds of other posts of that sort in the archives, and probably dozens more by me.

Given how much my views on other issues have evolved over the last sixteen years, I’m surprised how consistent I’ve been. Indeed, the only real critique 2020 me would offer 2004 me is how little attention I paid until recent years to the disparate racial impact of these outrages.

FILED UNDER: Afghanistan War, Crime, Law and the Courts, OTB History, , , , , , , , , , , , , , , , , ,
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.


  1. mattbernius says:

    Indeed, the only real critique 2020 me would offer 2004 me is how little attention I paid until recent years to the disparate racial impact of these outrages.

    Thank you for being willing to say that publicly. As someone who has spent the last few years — and most likely the rest of my career exploring the Criminal Justice space, I implore you to continue to look into the racial component of our criminal justice system.

    I say this because if you do, you will end up understanding that the *disparate racial impact* of the criminal justice system didn’t just happen. Whether accidentally or intentionally (and honestly it’s a mix of both) it is the system acting as intended. Our system has desperate racial outcomes because it is already, inherently structurally (and more often than any of us White folks want to admit, intentionally) racist. I know it’s an uncomfortable thing to read as a classically liberally minded individual. It’s still not easy for me to write.

    But it remains the truth.

    This isn’t to advocate for the elimination of the police, the abolition of prisons, or anything else. I do not support any of that. This isn’t to minimize the many White people who have been victimized by this system.

    But it is to say that anyone who cares about fairness and prosperity for all Americans needs to understand that means fundamentally reforming all aspects of our fragmented and unmanageable criminal justice system. And part of that is saying out loud that it’s racist.

  2. Kurtz says:


    I hope I didn’t go overboard with my long post–written as an open letter to you. I attempted, other than the personal exhortation at the end, to keep it neutral. I specifically attempted to avoid accusing you of being apologist, because many of the posts in that thread did exactly that.

    I am struggling to figure out a way to get to common ground. I thought the appeal to the root of our rule of law–that agents of government are constrained by it. In fact, in many ways, applying it to the government is a priori to its application to citizens.

    I should note that the Wardlow decision was made in 1999, well before Balko was prominent.

    Additionally, the snark about broken windows and stolen merchandise is connected to the 1896 decision that describes the personal nature of a bodily search. The fact that Stevens also mentions that Terry acknowledges the risk of resentment as an argument against giving impunity to police.

    The fact that we are not dealing with personal property, but the very breath of a person ought to make us guard against the resentment engendered by letting the loudest, most ignorant voices prevent us from solving a problem that threatens the basis of our legal system.

    As I am talking to a Conservative, I cannot think of a more persuasive argument.

    Best Wishes,


  3. Kurtz says:

    As a quick (for me) addendum, I wanted to highlight this, from Bernius:

    This isn’t to advocate for the elimination of the police, the abolition of prisons, or anything else. I do not support any of that.

    The surest way to lead people to the conclusion that rather than attempting reform, we must abolish the system is to continue on our current
    path. We are letting the Stephen Millers, Trumps (all of them, including Ivanka,) and Steve Kings of the world become the dominant voice for ~25% of the population.

    Until we just ignore them as the anachronism that they are, kick them out of our parties and our government, they will continue to obstruct, obfuscate, and incite. Until then, riots will continue to happen.

  4. Monala says:

    @mattbernius: I was listening to an NPR story yesterday, and they were interviewing someone from the prison and police abolition movement. It was a frustrating interview, because the person kept answering questions by saying, “Well, we don’t have time for me to get into all the reasons why…” So I turned to the internet to read a few articles about it.

    What I read made me recall when I read the book Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy by Emily Bazelon, back when my daughter was in elementary school. The first half of the book addresses the problems of bullying, and the second half addresses promising solutions. When I started reading the second half, I recognized the solutions immediately. My daughter’s school, multiracial and with a large proportion of kids living in poverty, was a calm and orderly place. As I read Bazelon’s book, I realized that it was because they had put into practice many of those positive solutions: lots of support services for families and children; positive behavioral norms that are emphasized regularly; regular recognition and rewarding of good behavior by students; non-punitive ways of helping kids deal with struggles, behavioral challenges, and conflicts; etc. The idea, Bazelon said, is to create a positive and supportive school environment, and by doing so, you prevent 90% of problems and bullying, so that school faculty can more easily deal with the 10% that remain.

    I think likewise, we will never eliminate the need for police and prisons altogether. But there are so many things we could do to eliminate 90% of crime and violence: economic opportunities; youth activities and mentorship; neighborhood gatherings and support systems; mediation to resolve minor conflicts; mental health and drug treatment services, etc. But we don’t. Like so many things in the U.S. (healthcare for instance), we don’t invest in the things that would make things better over time for everyone.

  5. James Joyner says:


    But there are so many things we could do to eliminate 90% of crime and violence: economic opportunities, youth activities and mentorship, neighborhood gatherings and support systems, mediation to resolve minor conflicts, mental health and drug treatment services, etc.

    We could certainly do better by our underclass. But Sweden doesn’t have a mere 10% of our crime. They’re smarter about who they lock up and for how long, though.

  6. Kurtz says:


    Sure. This is why outsourcing manufacturing jobs is not bad policy on its face. But if you don’t make subsequent investments in education at all levels to prepare a workforce for white collar jobs that require more specific, technical knowledge, then you end up with poorly paid jobs.

    Either way, you’re importing workers–either for blue collar jobs harder on the body from poorly run countries or for white collar jobs filled by highly educated foreigners from well run nations.

  7. Monala says:

    @James Joyner: Sweden has far lower.

    Sweden’s prison system boasts impressive numbers. As the Guardian notes, in the past decade, the number of Swedish prisoners has dropped from 5,722 to 4,500 out of a population of 9.5 million.

    That’s about five one-thousandths of a percent. Link

    Wikipedia says this:

    At the end of 2016, the Prison Policy Initiative estimated that in the United States, about 2,298,300 people were incarcerated out of a population of 324.2 million. This means that 0.7% of the population was behind bars.

    So we’re imprisoning 14 times as many people per capita as Sweden, if I did the math correctly. (and if not, someone please correct me!)

  8. Monala says:

    @Monala: actually, I think the US might be incarcerating 140 times as many folks as Sweden. (0.7 / .005 = 140). Math isn’t my strongest subject, and some folks are much better with stats than I am, so again, I’d appreciate any corrections.

  9. James Joyner says:

    @Monala: Incarceration is a different issue than crime. We almost surely have more crime than Sweden, for a variety of reasons, some of which might be alleviated by better public policy. But we also incarcerate a far larger percentage of our criminals, especially the nonviolent ones, and for longer times than does Sweden.

  10. Matt says:

    @James Joyner:

    But we also incarcerate a far larger percentage of our criminals, especially the nonviolent ones, and for longer times than does Sweden.

    In Sweden they learn how to not be a criminal. In the USA they learn to be a better criminal.

    Not to mention being locked up for longer means even more costs and difficulty finding jobs once they are released. Throwing a non violent offender in jail is a great way to make them desperate upon release…