Political Animal


February 01, 2013 1:15 PM How to Fix Our Monstrously Unjust Criminal Justice System

By Ryan Cooper

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.


Ryan Cooper is a National Correspondent at The Week, and a former web editor of the Washington Monthly. Find him on Twitter: @ryanlcooper


  • Dave in Austin on February 01, 2013 1:42 PM:

    Re: the impact of more incarceration on crime, check out William Spelman's article in The Crime Drop in America, on the impact of prison expansion. If I recall correctly, the quadrupling (!) of the number of people in prison produced a paltry 29% drop in the crime rate. Pretty terrible ROI.

  • c u n d gulag on February 01, 2013 1:44 PM:

    Thank you for covering something few people notice, and probably even fewer people care about - except of course, the friends and relatives of the people incarcerated.

    I haven't been in a prison since 1981 (where I was a teacher, not an inmate), when, immediately after Reagan was inaugurated, he killed Federal money for a program that allowed inmates to get Associate's, Bachelor's, and even some limited Masters Degrees, while they were incarcerated - all, without any time off their sentences. And they had to take the classes, study, and do their homework, on their own time.

    I taught in a Maximum Security Prison in Upstate NY, and let me tell you, that was a very tough, tough, place!

    And, I'm 100% sure it's worse now, since, in the past 30 years, we as a society have become more punitive. We're not happy until the people in prisons are as miserable as we as a society can tolerate.

    Needless to say, after Reagan cut the program, the recidivism rates for prisons which had those college classes, sky-rocketed.

    Inmates who earned college degrees had many more job opportunities than those who just left prison after working some menial job(s).

    But, as the cost of college also sky-rocketed, it was easier for us as a people in this society to say, "Hey, I can't afford to send my own kids to college. Why are my tax dollars being spent on other parents kids getting degrees? Especially since they're in prison!!!"
    Things like that, make me wonder if some of these things aren't actually planned.

    Our prison system is too harsh, too punitive, and too inhmane.
    And without a shadow of a doubt - horribly racist.
    But, that kind of describes the way that our society has changed too, in the past 30 years.
    I call that, "The Reagan De-evolution."

    And don't get me started on 2 things:
    -The fact that former inmates in some states are not getting back their right to vote once they're paroled.
    -And, my all-time favorite, besides the privatization of our military - privatized prisons.
    Unaccountable corporations, imprisoning people. George Orwell would be so, so proud.

    I'd have a lot more to say, but I'm probably nearing the max word count, so, I'll leave it at that.

    Thanks again, Ryan.

  • Anonymous on February 01, 2013 2:09 PM:

    Most employers now use background checks, so once someone has been in prison, nobody will hire him once he's out, no matter how rehabilitated he may be. So sending someone to prison basically makes him unemployable, no matter how much he wants to change.

  • mb on February 01, 2013 2:40 PM:

    For profit prisons, what a charming idea. What could possibly go wrong? What happens if/when there's a "shortage" of prisoners? Debtors might fill the bill. Maybe ALEC can get stiffing your Visa card criminalized. I guess that's what you might call "growing the market."

  • Sgt. Gym Bunny on February 01, 2013 4:44 PM:

    Living in Baltimore has definitely made me aware of how deeply ingrained prison culture is in a large segment of its society. It is not unusual for me to meet black men, no matter what station in life they are, who have had some scuffle with the law. Hell, I was buddy-buddy with a guy who was suspected of murder!!! I also dated a guy who would casually ask me to drop him off at drug deals (which I didn't do). Everything about going to jail and committing crimes is just TOO NORMAL for a lot of people now. And those who aren't committing crimes, per se, have to "hustle" because they can't find legitimate work. And that's a problem because it's now become a way of life for people. Prison doesn't have to be this disruptive to society. It's creating more problems than it's solving.

  • yocona on February 01, 2013 5:29 PM:

    "For profit prisons, what a charming idea. What could possibly go wrong? What happens if/when there's a "shortage" of prisoners?"

    As a resident of Mississippi, I can tell you exactly what happens when there is a shortage of prisoners. They turn to our public schools. A quick google search will fill you in on the horrors of the school-to-prison pipeline.

  • Arby on February 03, 2013 3:42 AM:

    "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."

    This ignores the fact that there IS one readily available path to upward mobility for young black males: education. That's the path for most other groups too, of course. It takes years to pay off, but it works and most people can do it if they want to.

    Please don't say they can't because of institutional racism or whatever. They can, and many do. But it takes following the rules, working hard, and staying out of trouble with the law -- exactly the same things that other groups have to do in order to attain upward mobility.

  • yocona on February 03, 2013 11:34 AM:

    Arby, unfortunately the premise upon which you base your argument is incorrect. A good education is not "readily available" to all of our citizens.

  • rich300 on February 14, 2013 7:38 PM:

    Sgt. Gym Bunny I agree with you, in Oklahoma a county called Seminole they arrest you for old fines and warrants you got while in prison once you get released from DOC , so once you do your time, you still do time, smh, the county jail charges a person $30 to book you in, $30 each day you stay, and $30 to process you out. I have actually seen where they go through certain peoples cases, change the court minutes to benefit them where they can issue warrants for arrest which leads to more money in fines. A few years ago a court clerk was taking peoples money for fines and not turning in her copy then some time later your're arrest for not paying on your fines, what a racked, because she figured out that most people only kept their receipts for the fine and cost docket and then get rid of them. She was later told to resign, not to pay and money back, no charges were ever filed against and get this, people are now going to jail and have to start paying all over again behind her embezzlement of the money. How unjust is that? They there was a Special District Judge who was taken off the bench, he was taking money from the Government for the Drug Court Program helping his self to purchase homes to rent to people in the community, no charges where ever filed, so how is some people go to prison on miner charges such a being drunk and saying the wrong name when asked. We see it on television all the time when a person is drunk they can say some of the darniest things, so when is saying an incorrect name a felon. I wish I knew where to start to right all the wrong doings of this county courts, police, court clerks, jailers, D.A. and some Judges. There is no Justice in America, "just us".