Deeply embedded in our national consciousness is the notion that the United States of America is devoted to “liberty and justice for all.” Alas, we have failed to live up to that ideal.
Consider this: Here in the “land of the free” there are approximately 2.2 million people in jails and prisons—considerably more than in any other country in the world. Indeed, while the United States accounts for just 5 percent of the world’s population, it is home to 25 percent of the world’s prison population.
What may come as a surprise to you is that this is a relatively recent trend. For most of the 20th century, the prison population grew in small increments. That began to change in the 1970s with President Nixon’s “law and order” platform and his call for a “war on drugs.” A decade later, President Reagan took up that rallying cry, pledging more money for police and prisons. It was President Clinton, however, who was responsible for the sharpest spike in incarceration rates after he signed the Violent Crime Control and Law Enforcement Act of 1994. It was the most expansive crime bill in the nation’s history, providing $9.7 billion for prisons.
As a result of all this, the prison population today is roughly six times larger than it was in 1970.
On the face of it, this might not seem like a problem. After all, if people commit crimes they need to do their time, right?
The fact is, though, the system is deeply flawed.
For one thing, it reflects the institutional racism that remains pervasive in this country. Consider that black men account for just over 6 percent of the nation’s population but some 40 percent of the jail and prison population. And many of them are not in for violent crimes. In fact, some have never been convicted of any crime at all.
The best example I can give you is the case of Kalief Browder. In 2010, at the age of 16, the Bronx, N.Y. resident was accused of stealing a backpack containing cash, a camera and other items. Bail was set at $10,000, a sum his family could not raise. As a result, he was imprisoned for three years on Riker’s Island, awaiting trial, before the prosecution’s case was found to be lacking evidence. Two years later, apparently because of the trauma he’d experienced, he hanged himself.
Even if we assume, however, that the vast majority of incarcerated individuals are guilty of some crime or another, we cannot ignore the racial disparity in sentencing.
To understand this, we need to go much further back than the 1970s. As the producers of the Netflix documentary 13th argue, the seeds of this problem were planted with the ratification of the 13th Amendment, which abolished slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.” In the post-Reconstruction South—still economically devastated from the Civil War and the consequent loss of the economy’s foundation—slave labor—this stipulation in the amendment became a convenient loophole. Black men were arrested in large numbers for vague and petty “crimes” like “loitering” and sent to work in chain gangs, thus providing free labor once again.
The Civil Rights Era officially eliminated most of the Jim Crow laws but did not eliminate the institutional racism. If you don’t believe me, consider what Nixon advisor John Ehrlichman had to say in a 1994 interview that finally came to light in 2016.
“The Nixon … White House … had two enemies,” he openly acknowledged: “the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
That dynamic continued to play out in the mid-80s, with the emergence of the so-called “crack epidemic.” It didn’t take long for prison-reform advocates to reveal that sentences for possession of crack—largely associated with the black inner city—were far harsher than sentences for powder cocaine, which was favored by affluent whites.
Racial disparities aside, it is my firm belief that no one should be locked up for years and even decades simply for possessing or transporting drugs. Drug abuse should be treated as a social health problem, not a criminal justice problem. That we criminalize possession of certain drugs is especially hypocritical, given that the legal pharmaceutical industry is at least partly responsible for the current opioid epidemic.
But there are other problems with the court and jail system as well. The system is overburdened. As a result, many suspects never get their day in court. Increasingly, heavy-handed prosecutors offer plea bargains, threatening defendants with draconian sentences should they insist on a trial. Browder, in fact, received that offer but could not bring himself to confess to a crime he did not commit. Many other “convicts,” however, take such deals, fearing that in spite of their innocence they will be found guilty.
Then, too, as 13th points out, a lot of companies, from food vendors to phone service providers, make enormous sums of money as part of the prison-industrial complex. And as we all know, money equals lobbying power. It’s hard to change a system when it’s hugely profitable for powerful individuals and corporations.
All that said, the biggest problem with our prisons, as I see it, is that they breed a culture of violence and sadism. If you want to get a sense of this, take a look at the segment in 13th that shows Browder and others being brutally beaten. The culture of sadism plays out as well in the use of solitary confinement.
This may appeal to the lust for retribution that runs deep in our culture and history, but it serves neither the prisoners nor society. After all, the system is supposedly designed to rehabilitate and reintegrate people into society. Terrorizing them, physically and psychologically, is not the way to do that.
Fortunately, even Donald Trump has indicated recently that he’s open to discussing criminal justice and prison reform. I’m not holding my breath on that one. But for the good of our collective spirit, I hope that one day we will take a more civilized approach.