Once upon a time, justice meant something. Innocent people didn’t feel intense fear and pressure to plead guilty and the punishment fit the crime. The tough on crime legislation of the 1980s and 90s changed all that. Noble notions of Lady Justice blindly holding balanced scales were replaced by a win at all costs attitude more appropriate for a battlefield than a courtroom. This massive social experiment only marginally decreased crime while ushering in an unparalleled era of mass incarceration causing untold collateral damage.
The annual cost of housing an inmate is upwards of $37,000 (Bureau of Prisons 2018), about the salary of an average American family. This, however, does not include the tremendous expense of FBI, DEA, and DHS agents, courtrooms, judges, prosecuting attorneys, public defenders and the rest of the bureaucracy involved in the process, pegged at $270 billion by the Brennan Center for Justice. It also fails to account for the drastic social impact.
Most families spiral into financial calamity due to the loss of the major bread winner, or at least a second income. They fall behind on bills and start collecting welfare, food stamps, housing assistance and whatever other type of aid is available, while joining the ranks of Medicaid to cover their health care needs. The remaining spouse must deal with life as a single parent and all the stress that entails, tipping him or her to the emotional breaking point. Kids, in turn, lose all sense of security, leading to extreme anxiety, depression and even PTSD. They often get bullied at school and then withdraw or act out, to disastrous effect. The tears are endless, the pain eternal, the costs incalculable. Family destruction, part and parcel of public policy.
It’s no wonder that the United States is far and away a world leader in divorce, drug addiction, overdose deaths, suicide rates and numerous other unenviable categories of social distress. After all, we now house over 25 percent of the world’s prisoners despite only having 5 percent of its population, averaging 6 to 12 times as many incarcerated as other large prosperous democracies. Are Americans truly that much more criminal than the rest of the planet? Sentences, moreover, are ridiculously longer at an average of 63 months, compared to Finland at 10 and Germany at 12. In fact, the next closest country is Australia at 36. Over 10 percent of US adults have fallen under the thumb of the criminal justice system at some point in their lives, with over one-third of the population deeply impacted, when factoring in close friends and relatives. Even American life expectancy has shockingly fallen for the past three consecutive years, after decades of steady increases. Mass incarceration and its domino effects are having a devastating impact.
The Frankenstein Monster of Federal Sentencing Guidelines was birthed to take decision making away from judges who were deemed too soft on crime. Many states followed suit shortly thereafter. This knee-jerk reaction led to double and even triple counting of acts deemed to be crimes, resulting in multi-count indictments that became impossible to beat at trial. Most jurors, moreover, arrive at the courtroom with an inherent bias. Decades on a steady diet of such TV shows as Law & Order and CSI have done wonders to socially condition all of us. “Why would the government bring charges against someone who is innocent? He (or she) must be guilty of something.”
The courtroom itself is remarkable theater, a grand performance of persuasion to galvanize the jury. If it’s a drug case, there’s a script for that. White collar crime, there’s a script for that. US Attorneys brush with broad strokes playing upon jurors’ base fears and damning with generalities, molding the narrative of the facts to suit their purposes. A close friend of mine was acquitted on 25 of 26 counts. Afterwards, one juror actually called to congratulate his attorney on the victory saying, “we had to give the government something for the effort.” Little did she know was that “something” was a 3-year sentence that could have been as high as 20. In the meanwhile, my friend missed years of birthdays, holidays and family events. It happens much more often than you realize.
Because of this formidable obstacle, most people plead guilty rather than risk a trial, where sentences can be double or triple if you lose, as payback for making prosecutors go through the “effort”. It’s facetiously referred to as a trial tax, mocking the dark comic result of fighting for your innocence. The US Attorney’s office touts its formidable 97+ percent conviction rate as proof of its success. What government agency, however, or anyone for that matter, would you trust to be correct 97 percent of the time? It’s a testament to unfairness, not efficiency. For that reason (and many others), people are effectively presumed guilty the moment they’re indicted, leading to both too many innocent people in prison and sentences absurdly longer than required for rehabilitation or as a deterrent.
It’s universally recognized that strong social connections with family and friends are the greatest deterrent to recidivism. Yet, despite all the evidence, prisons make maintaining them difficult, at best. Phone time is expensive, extremely limited and on ancient payphones. Emails are routed through a clunky centralized system that often fails to notify recipients of messages, and visitors are made to feel like inmates themselves during brief visiting hours that are sometimes delayed or cancelled without notice, with no regard for the hardship it causes, especially for those travelling from long distances. There’s no access to internet, texts or social media and inmates cannot receive incoming calls. Even something as simple as the US mail can take days or weeks longer than usual, for no apparent reason. We want ex-felons to return as productive members of society, but the system undermines that likelihood at each and every turn.
Getting a job, renting an apartment and opening bank and brokerage accounts can be downright impossible. The formerly incarcerated are flagged in every application that asks, “Have you ever been convicted of a felony?” And, while it seems to be an inherently fair question on its face, it is frequently used as an automatic disqualifier. Overly long sentences are also problematic. The constant march of technology ensures that former skills are no longer useful, and prisons provide woefully inadequate training for modern society. Prison programming looks great on paper but is hollow to its core. The sad reality is that few people exit prison prepared for any kind of job. Even the few quality programs that do exist only have space for a fraction of the inmates who want to take the courses, making them functionally irrelevant on the whole. The natural reaction is that inmates get what they deserve, but from society’s perspective it’s much better for them to succeed and not be tempted to return to a life of crime.
Hard core critics rage that prison reform will tear apart the fabric of our country. What they fail to mention, though, is that over 95% of inmates will be released at some point and that criminal justice reform provides no relief for anyone with a history of violence. Look a little deeper and you’ll understand their motivation, probably discovering some funding or connection to the prison industrial complex. There are considerable powerful forces strongly intent on maintaining the status quo.
Perhaps one of the biggest problems, though, is use of incarceration as a punishment of first resort. There are numerous alternatives that serve the same purpose when sentencing non-violent first-time offenders. In fact, most democratic countries around the world do just that. Even China sentences over 30% of its convicted to home confinement, where the guilty can repay society with community service instead of monumentally draining valuable public resources. The criminal justice system was originally intended to serve as equal parts (1) punishment, (2) rehabilitation, and (3) deterrent, underpinned by the philosophy of it being better to let 10 guilty people go free than send one innocent person to prison. In the 1980s and 90s the pendulum swung drastically turning that paradigm on its head, ravaging society in the process. Mass incarceration is having a generational impact making it dramatically more likely that children of the incarcerated will follow down the same path, or worse.
The Covid 19 pandemic sadly laid bare some of the system’s numerous deficiencies as inmates were housed on top of each other at the mercy of a highly contagious coronavirus and an inefficient and indifferent BOP medical system. Inmates were treated as sheep led to slaughter, while the rest of the world was, ironically enough, threatened with jail time for not practicing social distancing. As a result, Covid rates in prison unsurprisingly spiked to as high as 90 percent of the population in numerous locations. Thankfully, the BOP then partially came to its senses releasing hundreds of elderly offenders at high-risk for illness to home confinement and, guess what? Prison costs were reduced with society no less safe as a result. So, you see, there are alternatives for incarcerating non-violent offenders, that don’t result in playing Russian Roulette with their lives.
Great countries are judged by how they treat their most defenseless and disenfranchised. By that measure we’re failing and failing badly. Numerous nations around the world are in complete turmoil for this very reason. We too are not immune, neither from the disease nor its consequences. Systemic Injustice. The inevitable result, as old as time, when there’s no one watching the watchers (“Quis Custodiet ipsos Custodes?”).