The New Yorker Has a Sobering Look at the Whys of America's Prison-Industrial Complex


There are two million Americans currently in prison, with six or seven million under some kind of "judicial supervision" such as parole; Adam Gopnik at The New Yorker asks,"How did we get here?"  

Gopnik covers a lot of ground in "The Caging of America." He notes the nastiness of U.S. Prisons — including the scores of thousands of prison rapes a year (if not more), as well as the new popularity of solitary confinement— the great mystery of the falling crime rates of the past three decades, and condemns the war on drugs (at least on marijuana).

Gopnik, on one theory as to why our justice system is rife with misery and injustice:

William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, "The Collapse of American Criminal Justice," was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, "procedural" nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; "zero tolerance" policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn't a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can't search someone without a reason; you can't accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren't guilty in the first place and the jury got it wrong. [Emphasis added]

Gopnik also comes to this heartening conclusion about prisons:

[O]ne piece of radical common sense: since prison plays at best a small role in stopping even violent crime, very few people, rich or poor, should be in prison for a nonviolent crime. Neither the streets nor the society is made safer by having marijuana users or peddlers locked up, let alone with the horrific sentences now dispensed so easily. For that matter, no social good is served by having the embezzler or the Ponzi schemer locked in a cage for the rest of his life, rather than having him bankrupt and doing community service in the South Bronx for the next decade or two.

The rest here. It's a longish read, but an excellent overview of what Reason called "America's national disgrace" in our "Criminal Injustice" Issue from July 2010. (I can boast freely, because I was not involved in the production of it.) 

(Hat tip to John from the Department of Homeland Security.)