How to Fix Our Monstrously Unjust Criminal Justice System

Two pieces in our latest print issue take a look at the slow-motion avalanche of cruelty and racism that is the American criminal justice system. The first, by Glenn Loury, looks at the the scale of the racial disparity in punishment, and what we might do about it:

Put it all together and look at what we have wrought. We have established what looks to the entire world like a racial caste system that leaves millions stigmatized as pariahs, either living behind bars or in conditions of concentrated crime and poverty that breed still more criminality. Why are we doing this?

The present American regime of hyper-incarceration is said to be necessary in order to secure public safety. But this is not a compelling argument. It is easy to overestimate how much crime is prevented by locking away a large fraction of the population. Often those who are incarcerated, particularly for selling drugs, are simply replaced by others. There is no shortage of people vying to enter illicit trades, particularly given how few legal paths to upward mobility exist for most young black males.

The key point for Loury is how every American is complicit in this failure. Even if we assume that every single person in prison deserves to be there, there is simply no excuse for such an enormous, racially skewed level of incarceration.

The second, by Mark Kleiman, looks at how by abandoning Old Testament-style conceptions of punishing the wicked with fire and brimstone, we might use parole in a much more effective way:

It would be hard to imagine a system that could combine more punishment with less effective social control. It’s no surprise that so many people wind up what we could call “doing life in prison on the installment plan.” A parent who acted the way the probation system acts—letting most misconduct go unpunished, and occasionally lashing out with ferocious punishments—would be called both neglectful and abusive.

But it turns out to be possible to make “swift-certain-not-severe” sanctions work, by giving each offender a clear and explicit warning of exactly what’s going to happen every time he gets caught breaking a rule. Ideally, that warning would be accompanied by sincere expressions of goodwill and confidence that the offender can muster the capacity to comply.

Read on for examples of how this has already worked quite well in practice.

Neil Pierce has an interesting proposal for this problem. Jim Webb’s (recently retired senator from Virginia) proposal from years ago for a congressional commission to look at criminal justice reform was filibustered by Senate Republicans, but the president could still do one on his own:

Still, President Obama’s hands are not tied. While congressional sponsorship would be preferable, he could, by executive order, create a national criminal justice commission. He might even tap Webb, a highly respected Marine combat veteran and Navy secretary under President Reagan, to chair it. The eventual recommendations, identifying best practices and reforms for federal, state and local implementation, could lead to more rational laws and dramatically reduced arrest and incarceration rates. In the process it would represent a huge gain for blacks embroiled in the criminal justice system, for their families and by extension, the United States as whole.

Traditionally, presidential commissions are for ignoring problems, something you staff and then promptly forget. But I think in this case it could do a lot of good, simply because as Loury points out the scale of the problem is almost impossible to grasp. Facts like “there are more black men in prison today than were enslaved in 1850” are simply not widely known or grappled with. This could also go with sentencing and prosecutorial reform to curb the abuse that drove Aaron Swartz to take his own life.

High time for some work on this, America, let’s get cracking.

@ryanlcooper

Ryan Cooper

Ryan Cooper, a contributing editor of the Washington Monthly, is currently the Washington correspondent for The Week.