Another Measure of American Injustice
The new consensus that something is wrong with American criminal justice is welcome. The amazing number of people in prison -- a measure on which, adjusting for population, no other nation comes close -- is indeed a sign that the U.S. system is broken. It's good that the will to fix it seems to be growing.
Yet dwelling too much on that one statistic is unwise. There's a danger of missing the point.
Consider, for instance, the idea that the leading cause of mass incarceration is long prison sentences handed down to nonviolent drug offenders. President Barack Obama has called this the "real reason" that so many people are in prison. Not so.
The Urban Institute just released a web tool that lets you see the effect on incarceration figures of state-by-state changes in prosecution and sentencing practices. As Erik Eckholm notes in the New York Times, fewer and/or shorter prison terms for nonviolent drug offenders help a lot less than you've been told. Bloomberg View's editors recently criticized this and other aspects of the president's comments about incarceration.
Ending the war on drugs would make a big difference to the number of federal prisoners -- but most of the incarcerated are in state, not federal, prisons. (In 2013, state prisons held 1,270,800 people; federal prisons only 215,000; another 731,200 were in local jails.) Drug offenders make up a much smaller share of the state prison population. Keeping fewer of them locked up would hardly dent the states' head count.
Handing down long terms in prison for nonviolent drug offenders is grossly unjust, and ought to stop -- but not because it's the main cause of overcrowded prisons. Those sentences would be grossly unjust even if the prisons were half-empty.
For the same reason, you ought to recoil when a politician argues that justice reform is necessary because keeping people in prison is expensive. If justice is served by keeping people in prison for decades, the cost is money well spent. When it's unjust, the cost is irrelevant -- a secondary issue at best.
I've argued previously that the U.S. criminal justice system is a national disgrace. Sentences are indeed often savage, and at any rate far longer than needed to punish and effectively deter -- but, bad as they may be, they aren't the system's most evil aspect.
What would that be?
The U.S. has all but abolished the jury trial. It has enshrined the repugnant practice of plea-bargaining, which equips prosecutors with terrible and largely unchecked powers of coercion. Charge-stacking, mandatory minimum sentences, and the eagerness of legislators to criminalize as much behavior as possible -- all cause for dismay in their own right -- compound the offense. If you set out to design a system that would empower the state and its law-enforcement officials to destroy whomever they set out to destroy, guilty or innocent, you could hardly improve on this.
Where was the Constitution while legislators and the law-enforcement complex were annulling the most basic and essential liberties? Good question. In all this, courts have meekly acquiesced.
Mass incarceration should indeed be a cause of national shame -- but it sure isn't the only thing wrong with American criminal justice.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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