Before I delve into my own personal story of my entanglement with the U.S. judicial system, I am going to give you some facts. These are not opinions, hypothesis surmises, or conjecture, they are cold hard facts.
According to BBC News, the United States has the highest incarceration rate in the world, outstripping Russia, Cuba, Rwanda, Belarus, and Kazakhstan. Though America is home to only about one-twentieth of the world’s population, we house almost a quarter of the world’s prisoners. Since the mid 1970s, American prison populations have boomed, multiplying sevenfold while the population has increased by only 50 percent.
The Innocence Project estimates that at least 1% of the U.S. prison population, or approximately 20,000 people, are falsely convicted. Even worse, the Prison Policy Initiative estimates that over 450,000 people in U.S. prisons have never actually been convicted of a crime!
The first reason that you are more likely to go to prison in the United States than any other country in the world is that we have over 6,000 confinement facilities. That’s more than we have colleges and universities combined! Prisons are there to make money. Prisons are not there to rehabilitate anybody. In order to make money, prisons need to stay full and right now they are full to overcapacity.
Once you get into the U.S. judicial system, it’s no longer justice. The District Attorney has all the power. If you get arrested for anything, and you go before the court, the District Attorney will say “if you plead guilty, I will give you a lot less time.” The American judicial system is not a justice system, it is a deal-making system.
The Prison Policy Initiative estimates that there are currently 2.3 million people incarcerated in the U.S. The prison population is generally quite poor, and if you don’t have money, and you have a public defender, you’re going to take a plea bargain. The district attorney’s job has nothing to do with justice. It has to do with convictions. District Attorneys’ job performance are measured on convictions and plea bargains are convictions. It doesn’t matter if the judge believes the person is innocent, if the defendant has plead guilty, he or she is going to jail.
The Bureau of Justice Statistics estimates that approximately 13 million Americans are arrested every year. For women, the United States has the highest number of female inmates in the world, housing almost one-third of the total number of women incarcerated in the entire world.
We have been taught to believe that defendants in America are innocent until proven guilty, but these days, this is simply not the case as hundreds of thousands of people languish in American prisons before they have even had their day in court or been convicted of a crime.
The sad truth is that the U.S. prison system doesn’t work. The Bureau of Justice Statistics estimates that prisons in the U.S. have an 83 percent recidivism rate, with five out of six state prisoners going back to prison within nine years of their release.
Because of over-criminalization, there is virtually no one in the United States over the age of 18 who cannot be indicted for some federal crime. The United States has hundreds of federal agencies that create a staggering amount of new rules and regulations every year. In 2016 alone 3,853 rules were issued. The Library of Congress actually states that determining the actual number of federal laws in the U.S. is “nearly impossible”. Every year, new laws are passed, some laws are passed to amend existing laws and other laws are passed to repeal old laws. There are so many regulations and criminal statutes on the books that the average American likely commits three felonies a day, and the great preponderance of them are not even aware they are breaking the law. That is, not until a federal agency begins an investigation and they are indicted into the judicial system.
Doctor Floyd Ferris, in Ayan Rand’s Atlas Shrugged told Hank Reardon, a proud producer who had earned the ire of crony special interests and government officials, that “there’s no way to rule innocent men.” The only power government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them,” said Ferris. “One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.” The eery fiction stated in this novel has now become our reality.
The constitutional right afforded a defendant in America – that he or she should be considered innocent until proven guilty – doesn’t exist anymore. The U.S. judicial system now works such that, upon arrest or indictment, the defendant is guilty and most prove their innocence.
So our judicial system puts people in prisons, but our prisons don’t work. They are built on revenge not on rehabilitation. When prisoners get out they are going to need need housing, jobs, and something to eat, and training to help get them back into society. Prison does a wholly inadequate job of preparing inmates for life outside of prison. Ex-felons, like victims of Jim Crow, are a stigmatized underclass, excluded from voting, juries, jobs, housing, education, and public benefits. So is it any wonder why five out of six convicted felons find themselves back in prison again within nine years of release? If we as a society make it so impossible for ex-cons to resume a normal life and adequately sustain themselves upon release, are we really surprised when those same people resort back to crime as a way to better their lives? Today we have a permanent second-class status for ex-cons.
The prosecutorial side of things is even more mind boggling. Prosecutor’s in the U.S. are afforded what is called “Prosecutorial Immunity”. Prosecutorial immunity is the absolute immunity that prosecutors in the United States have in initiating a prosecution and presenting the state’s case. Prosecutors cannot face civil lawsuits for prosecutorial abuses, no matter how severe. They can break the law to arrest somebody, or defame the character of someone in the press and are completely immune from any civil liability. Prosecutors are sheathed in protective armor while they pursue criminal convictions.
Prosecutors are generally entitled to absolute immunity from civil liability under the federal civil rights statute, 42 U.S.C. § 1983, for actions taken in their role as prosecutors that may have violated the rights of a criminal defendant. Absolute immunity is exactly what it sounds like—a blanket and unconditional grant of protection from civil liability even in cases of absolute intention misconduct or fraud in order to secure a conviction or plea bargain.
The U.S. judicial system and prisons are big-government institutions. They are manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets. Cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like. The Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.”.
Historically, the point of criminal punishment was to condemn the wrong, humble the wrongdoer, induce him to make amends and learn his lesson, and then welcome him back. The punishment fell on the criminal, not on his family or friends, and he went right back to work. Now, we warehouse large numbers of criminals, in idleness and at great expense. By exiling them, often far away, prison severs them from their responsibilities to their families and communities, not to mention separating them from opportunities for gainful work. This approach is hugely disruptive, especially when it passes a tipping point in some communities and exacerbates the number of fatherless families. And much of the burden falls on innocent women and children, who lose a husband, boyfriend, or father as well as a breadwinner.
There is plenty of evidence that shows that prison turns people into career criminals. On one hand, it cuts prisoners off from families, friends, and neighbors, who give them reasons to follow the law. Responsibilities as husbands and fathers are key factors that tame young men’s wildness and encourage them to settle down. But prison makes it difficult to maintain families and friendships. Visiting someone who is in person is difficult and time-consuming as prisons are often far away and telephone calls are horrifically expensive.
Additionally, prison does much to draw inmates away from lawful work. Most people arrested in the U.S. were employed lawfully within a month of being arrested. Many were not only taking care of their children but helping to pay for rent, groceries, utilities, and health care. But prison destroys their earning potential. Prisoners lose their jobs on the outside. Felony convictions also disqualify ex-cons from certain jobs, housing, student loans, and voting. The National Institute of Justice cites a study which reveals that between 60 and 75 percent of ex-cons are jobless even up to a year after release!
Conversely, prisons are breeding grounds for crime. Instead of working to support their own families and their victims, most prisoners are forced to remain idle. Instead of having to learn vocational skills, they have too much free time to hone criminal skills and connections. And instead of removing wrongdoers from criminogenic environments, prison clusters together neophytes and experienced recidivists, breeding gangs, criminal networks, and more crime. Long sentences, on average, breed much more crime after release than they prevent during the sentence. Any benefit our society might gain from locking criminals up temporarily is more often offset by the crime increase caused when prison turns small-timers into career criminals.
Over-imprisonment disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. It is madness that prisoners spend years in state-sponsored idleness punctuated by sporadic brutality. All able-bodied prisoners should have to complete their educations and work, learning good work habits as well as marketable skills, and be paid a fair wage, not pennies on the dollar. Prisoners’ wages could go to support their families, cover some costs of incarceration, and make restitution to their victims.
The U.S. judicial system has drifted away from its moral roots. The Left has forgotten how to blame and punish, and too often the Right has forgotten how to forgive. Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a white-supremacist conspiracy. It is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. Our judicial system strategies for deterring crime not only fail to work on short-sighted, impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it is wise, as well as humane, to temper justice with mercy.
Lawrence Goldfarb’s new book, From Hell to Eternity, will be released in 2018. Sign up to receive news, information and updates.