How To Put Our Broken Prisons Back Together
The Article: America’s punishment addiction: how to put our broken jails back together by Robert Ferguson in The Guardian.
The Text: In the United States, people can land in prison for life over minor offenses. They can be locked up forever for siphoning gasoline from a truck, shoplifting small items from a department store or attempting to cash a stolen check. Sentences across the United States in the last 30 years have doubled. Roy Lee Clay, for example, received in 2013 a sentence of mandatory punishment of life without parole for refusing to accept a plea bargain of 10 years for trafficking 1kg of heroin. Even the sentencing judge found this “extremely severe and harsh”. The bigger picture: a recent Human Rights Watch report found that the threat of harsh sentences leads 97% of drug defendants to plead guilty rather than exercise their right to a public trial.
Most citizens are shocked when they hear such reports. Federal judge John Gleeson of New York said that the way prosecutors use plea bargaining “coerces guilty pleas and produces sentences so excessively severe they take your breath away”. Federal judge Mark Bennett of Iowa has described the “shocking, jaw-dropping disparity” of prior-conviction enhancements to force a plea bargain in a case.
But these and other shocks mean nothing without a larger shock of recognition: Americans like to punish.
We like it so much that we ignore what legal punishment means in the nation’s jails and prisons. Incarceration extends far beyond the official designation of time served. It means horrifying levels of degradation and cruelty to prisoners at all levels. Overcrowding, gang activity, endemic rape, unchecked violence and overly long sentences have turned our jails and prisons into pocket war zones.
Recent federal governmental decisions to reduce or commute overly harsh drug sentences have been commendable initiatives in response. So has the Justice Department’s decision under Eric Holder to urge early release of low-level drug criminals sentenced under overly tough laws. But these efforts are drops in a very large bucket, and the bucket has a hole in it. That hole is the American belief in retribution.
Reacting against that belief, Justice Anthony Kennedy of the Supreme Court has written “a people confident in its laws and institutions should not be ashamed of mercy”. President Obama’s decision in December to commute the sentences of eight federal inmates of crack cocaine offenses was a step in that direction, but it was a baby step. In his first four and a half years, the president received 10,000 applications for clemency. The numbers in prison, at the cost of $167,000 a year per inmate in New York City, has moved the problem beyond palliative measures.
A combination of elements – social, economic, historical, political, religious, philosophical and legal in scope – has produced a perfect storm of punishment in America, and the most important question about our justice system’s punitive impulse is rarely asked: who do we want prisoners to become when they walk out?
In this country, a prior conviction can prevent a released prisoner from getting a job, a necessary license or public housing. State policies that deny a convicted felon the right to vote disenfranchise 5.8 million Americans, including one in 13 African-American adults. If we are to restore inmates to reasonably responsible public lives, we must change these policies, and we must begin by making time on the inside functional. We must take the idea of punishment apart and put it back together in new ways. Too many in our prisons have no way out, find nothing to do while waiting for nothing to happen, and reach for an available depravity to make existence somehow meaningful.
This country has 5% of the world’s population and 25% of its prison population. On average, western European nations incarcerate 95 per 100,000 inhabitants, while the US incarcerates a stunning 714 out of 100,000. We also put away very large numbers in solitary confinement, a sentence unknown in most other democratic countries. Over 2 million people live behind bars in the United States. That’s more than the combined populations of New Hampshire and Vermont. According to a recent report by The Sentencing Project (pdf), 159,000 of these inmates are serving life sentences, a third without the possibility of parole – and about 10,000 of them for non-violent offenses. Few other countries allow such sentences for any offense.
The size of the problem means that it will be hard to turn around. Incarceration has become big business in the United States. The states and federal government spend $80bn dollars on their punishment regimes. Whole communities now depend on prison dollars for the livelihood of their citizens. One out of nine state government employees works somewhere in corrections. Prisons employ nearly 500,000 correctional officers, and their powerful unions want to keep prisons packed. More inmates mean more jobs for union members.
The role of money grows with the rise of private prisons. A full 7% of America’s inmate population resides in commercially run enterprises, places where overcrowding becomes an aspiration instead of the problem! The more people you push into lightly guarded and therefore poorly run institutions, the greater your financial gain. The administrators of private institutions openly acknowledge this marginal cost curve. Prison beds are their “honey holes”. The profit motive in the privatization of punishment spawns every form of corruption. Count on it. In any state with a large number of private prisons, legislators are on the dole.
Many see these problems, but nearly everyone in the system has reasons to keep things the way they are. Legislators raise their profile by criminalizing more conduct. Police must maintain arrest quotas. Prosecutors need high conviction rates. Judges are handicapped by harsh sentencing guidelines and often by the need to win reelection. An average prison guard has a better salary and benefits than would be available on the open market.
Law schools are seldom better on this topic. Aspiring legal professionals are taught how to punish in large, obligatory first-year courses on criminal law. Rarely do they receive detailed instruction on the plight of the punished except in small, voluntary clinics. Even law professors wonder whether mass incarceration is the problem that most deserves their attention.
No one, however, can ignore the reality that American prisons have become a public reproach. We are throwing away too many lives by making them worse instead of better. Most crime happens early in a life span. Does so much of it still deserve a life sentence? The real shock of recognition must come here. Nothing less than the ideals of the republic are at stake in the answer. A community is ultimately defined by how it treats those under its control.
That control begins with the right to punish, but the legal right is defined today from what the inflictor may do. More functional utility for the punished is needed. We now know that long sentences promote criminal behavior in and out of prison. European minimum sentences range from one to five years. Many jurisdictions in the United States set minimums at 10 years or more. Think about what this means: a single mother of two children, aged 11 and 12, may be put away for at least 10 years – all over a very peripheral role in drugs, because she is forced to accept a prosecution’s plea bargain against a possible charge of life without parole. Think about what that means: she will emerge from a prison far away from her family, when her grown son and daughter are 21 and 22 years old. What kind of development can we expect from these prison-induced orphans, and what is the prisoner – the mother – prepared to become upon her release?
Shorter sentences, more outside solutions, better parole arrangements, more vocational skills directed toward life after prison represent only the beginning of wisdom in 21st century penology. Action must follow language. The most popular and liberal New York governor in decades, Andrew Cuomo, speaks often against mass incarceration. On 1 January 2014, the traditional date for executive pardons, he pardoned three people. All three had long been out of prison. All elected political figures fear another crime and are haunted by the charge of “soft on crime”.
No one in America is soft on crime.
If we ignore those who are so unjustly treated in the name of justice, where up the ladder of concern do the rules say that it is time to start caring? Mistreatment in rampant punishment regimes tarnishes us all, and we have to worry about what comes next. Legal punishment grows when left alone. It never stands still.
