The Death of American Justice Part III: Prisons are the Problem and We Need a Solution

A forward concerning recent events: 

I wrote this series on criminal justice reform before the murder of George Floyd sparked protests across the country. In the articles, I took care to briefly mention race as a factor in our justice system, but not to focus on it as some other reform advocates do. That racism plays an important factor is inarguable, yet its influence (as in all things) is frustratingly complicated and often indirect. If American criminal justice is about imposing righteous vengeance on those who deserve it, then preconceived racial biases and the reality of systemic black disenfranchisement simply make this ethos even more destructive. In other words the police and justice system’s monstrous infringement of black lives is not as simple as white men sitting in a room constructing a system specifically for the purpose of racial oppression. But in a system built off vengeance rather than assistance–one developed for years by progressives, conservatives, and African-Americans alike–George Floyd becomes inevitable, because to the police punishing men who look like him is the meaning of justice.

So with his death, where are we left? As tiring as it is to say, the answer is obviously complicated. The racial intent that choked him out and has spilled countless gallons of blood across the United States must be dealt with both on a cultural and systemic level. Yet while racism may be to blame for Floyd’s death, that racism is merely the poisoned tip of the sharpened sword of retributive justice. And Floyd and his brothers and sisters can only be saved if we’re willing to radically change the purpose and therefore the structure of American criminal justice. What this article puts forward, while necessarily simplistic and incomplete, is that type of change. It posits a system of justice where prison and punishment are not the objective. Where instead the natural born human rights of defendants are protected, and we prioritize humane rehabilitation and efficient crime prevention.

But how do we get this system? How do we stumble through the haze of tear gas and hopelessness to a better country? The answer is as simple as it has proven so often historically unattainable: we must vote and engage with our democratic institutions. Richard Nixon campaigned for law and order and began the war on drugs because they were effective electoral strategies. Ronald Reagan greatly expanded mass incarceration and pushed the nation far to the right because he dominated at the ballot box. Bill Clinton and Joe Biden pushed for the 94 crime bill because that’s what the overwhelming majority of voters wanted. So if you have the time, advocate for these reforms publicly and call your elected representatives. But at minimum you must use your most fundamental American right. 

Please, vote. 

 Vote for progressive reformers on a local level, a national level, and come November vote for Joe Biden over Trump. Abstaining out of a sense of nihilistic frustration or moral purity is a dereliction of your duty to combat the injustices of our criminal justice system. There is always a better option between two viable candidates, and to choose to support neither candidate is a morally irresponsible choice in and of itself. A progressive system of criminal justice is attainable, but only if we’re willing to grab it. 

Prisons are the Problem and We Need a Solution:

According to a recent poll 91% of people claimed to support criminal justice reform, while 71% deemed decreasing prison populations to be important. Yet although there exists a consensus in the need for change, what that change entails is less clear. As this series of articles have argued, if people truly want a moral justice system, both progressives and conservatives must reject punitive vengeance and prioritize practical solutions. Whether this view can ever become mainstream is regrettably debatable. But for those who share even a small part of this ethos, its implications on what America’s justice system should be are clear: we must approach prisons as a problem and not the solution. Cruelly retributive, ineffective, and drivers of crime themselves, prisons are a crutch we must limit as much as possible. And in their place we must be bold–willing to experiment with a wide variety of humane alternatives that prioritize rehabilitation and preventing crime, rather than punishing it. 

Although prisons are commonly portrayed as a tragic necessity, with prison populations up 700% since 1970 the last few decades have painted a starkly different picture. While part one in this series explored the immorality and ineffectiveness of mass incarceration (the latter of which will be touched on throughout this article), as a tool for fighting crime prisons have proven not just unhelpful but actively damaging. For starters as a core domestic policy, the fiscal ramifications of mass incarceration are monumental and should scare conservatives and liberals alike. The US blows over 182 billion dollars a year on everything related to mass incarceration, an institution which has concurrently played a pivotal role in increasing and ingraining national poverty. Far from being just a wasteful financial pit however, prisons have actually shown a tendency to increase crime. By destabilizing communities, promoting job loss, and introducing prisoners to concentrated groups of lawbreakers, the effects of even a brief stay can be catastrophic. One study found that when imprisoned for 8-14 days, people were “51% more likely to commit a crime two years later” compared to those let free. Because mass incarceration has been tied anywhere from a 0% to a 15% decrease in crime, it’s fiscally, morally, and strategically irresponsible to rely on such a flawed institution rather than searching for superior alternatives. 

 To combat the penal system, the ACLU has put forth a recommendation to safely cut prison populations by 50%. While a worthwhile goal, accomplishing it (or something similar) will require targeted reforms on a wide variety of crimes–including more uncomfortable offenses. Of these targets, combatting the war on drugs is by far the most agreed upon. Approximately 300,000 people are currently imprisoned in America on drug charges (up from 25,000 in 1980) and research has found no evidence these imprisonments are effective in reducing overdose rates, drug use, or even drug-related arrests. Indeed, reducing drug sentences by just half would decrease the federal prison population 18% by 2023

But drug offenses are responsible for only 16% of all prisoners, and it’s been widely proven were not the main drivers of mass incarceration. Instead, any radical reduction in mass incarceration can only be accomplished by targeting everything from low level alcohol bookings to more controversial crimes–of which the most important are violent offenses. Politically unglamourous but totally essential, violent criminals constitute the majority of state prisons which in turn are the largest domestic jailer. Research has consistently argued that people sentenced for violent crimes are not “inherently violent”, and accordingly once out of prison they have the lowest rates of recidivism (a fact that’s especially true for older prisoners). Likewise many so-called “violent crimes” refer only to incidents such as “breaking into an empty house or snatching a purse or iPhone on the street.” Yet the population of violent convicts has grown over 300% since the 80s. 

Decreasing these criminal populations requires reforms from many different angles, although the basic goals are to reduce criminal bookings, prison sentences, and apply reforms retroactively. To achieve this, there’s first the juicy penal-code side. On the lower end of the spectrum, we can work to drastically limit prison entrance numbers through laws that decriminalize drugs or impose no jail time for minor offenses. Similarly ending cash-bail would stop what is effectively mass debt-bondage; for example, in 2018 Texas jailed a jaw-dropping 524,628 people for unpaid parking tickets. 

Dramatically limiting prison sentences, though, requires more monumental changes. Abolishing infamous laws like mandatory minimums, 3-strikes, and truth-in-sentencing would substantially decrease prison populations. But it’s widely believed by reform advocates that prison sentences need to be more proportional and lower across the board, as sentencing length has climbed in recent decades completely unabated by a decrease in crime. In fact, following in the footsteps of Norway, the US would be wise to go so far as to adopt their 21-year sentence maximum (for reference in 2016 there were over 160 thousand people serving life sentences across the US), which agreeably still grants courts the ability to increase sentences for dangerous criminals. Following the policy’s inception over 20 years ago, Norway saw a marked reduction in recidivism, which again is unsurprising considering how often people age out of crime. 

 In addition to these reforms, many indirect factors must be addressed. To deal with recent sky-high increases in imprisonment rates, there needs to be a comprehensive crackdown on perverse incentives for police arrests. And when people are arrested and brought to court, we must follow in the mold of the Warren Court and seek to provide them as much protection as possible. 80% of defendants can’t afford a lawyer, yet their appointed public defenders are often overworked, underpaid, and therefore ineffective–obstacles that require increased funding. Likewise the rise in power of overzealous prosecutors, and in contrast the decline in the power of merciful judges, are seen as driving factors of mass incarceration. Reducing prosecutors’ ability to execute plea deals and aggressively charge defendants is a start, but in the long run both judges and prosecutors will most likely need to be appointed (not elected) civil servants to prevent retributive pressure by the general public. These reforms of course are just the beginning, yet they follow a trend that must be expanded upon of finding comprehensive ways to limit prisons. 

But what’s the alternative? What does a utilitarian justice system look like instead of a penal-forward one? In short, it’s about improving the prisons we’re forced to keep while additionally expanding parole and social services. Following the method of countries like Norway, a utilitarian justice system necessitates prisons based on the principle of rehabilitation. That means first and foremost the abolishment of America prisons’ infamously exploitative, damaging, and ineffective abuses. In their place, we need to implement programs that benefit the psychological and professional well being of prisoners to promote success on the outside. For instance cognitive behavioral therapy has been shown to halve recidivism, while job training and educational programs have had similar effects.  

For those no longer in prison, the US will also need to provide alternative solutions. Logistically, greatly expanding parole and probation are promising ways to grant convicts a chance at normal life. While punitive lawmakers and victim rights organizations have fought hard to restrict and entrap parole opportunities, a progressive probation system would be different. As seen in South Carolina in 2010 where expanded probation decreased both the prison population and violent crime by 15%, probation and parole are humane alternatives that allow successful reintegration into society. 

Of course as the ultimate goal of progressive justice is prevention and rehabilitation, a utilitarian system would need to be based on extensive social programs beyond distanced parole in order to release Americans from the strangling grip of law enforcement. Though extremely wide-ranging, any honest attempts to limit the penal system and prevent crime more generally would start with systemic reforms. Race, poverty, homelessness, and poor education systems have been driving reforms of mass incarceration for years, and require structural changes and ambitious social programs to tackle them. 

Yet when people are inevitably charged with crimes, humane social programs are a necessary band-aid. Beginning with criminals who have been motivated by sicknesses, splitting off defendants into specialized mental illness and drug courts allows targeted and practical sentences such as rehab and psychiatric support. This system has dramatically reduced tax-payer expenditures and recidivism rates in the US, so expanding it in place of simply cramming sick people in cells should be a key priority. Likewise, other social programs would work for conventionally “at fault” criminals. Especially for the vast majority of economically vulnerable criminals, both criminology based programs like violence intervention as well as more economically focused support are important alternatives to perpetual imprisonment. Investigating which social programs are most effective is difficult to pre-determine and will require trial and error; thinking outside the box for example, one program that gave housing stipends and removed criminals from their structurally dysfunctional home communities decreased crime. Whatever the answers though, removing barriers to integration for convicts should be a priority. And although the vengeful needs of the general public and victims should not be caved to, as stated in the previous article social programs related to restorative justice are a harmless and popular way to wrangle over emotional restitution–with one study finding that 85% of victims were satisfied with their experience.  

That America will completely embrace this vision of justice–emancipated from an overwhelming reliance on prisons–is unlikely in the near future. Change is slow, difficult, and in recent decades justice reform has too often barreled away in the wrong direction. Likewise the proposition of this article is nothing less than a radical rethinking of justice as an institution–a vision that while humane goes against long-held human tenets. But it is the approach we need, because it’s the approach that treats prisoners as people and efficiently limits crime. So it exists as both a distant, hazy ideal and a starting point for real change, in order to one day protect the lives of millions of Americans.