(Cross-posted to dKos and MyDD. – promoted by SFBrianCL)
Last week, I wrote an article about the 3 Strikes Law and its effect on the California prison system. Of course, Arnold is talking about building more prisons. But, the problem is really deeper than that. And in today’s California Report on KQED, a discussion about California’s prisons centered around the question of whether to build new prisons and how to actually incorporate the “and Rehabilitation” to the Department of Corrections. Of course, the question of the strength of the prison guards union, CCPOA, came up. Strangely, the CCPOA’s defense to that claim was “If we controlled the system, would we really be complaining so strenuously.” I’m not sure that such a statement is really their best argument, but that’s really a sidebar to this discussion. A real kernel of truth was revealed at the end, when the commentator said that (rough paraphrase), “After the election, perhaps the government can face what has been the big taboo of the prison debate, the mandatory sentencing guidelines which are keeping thousands of prisoners in prison.” The actual program will likely appear on the California Report website tomorrow, I will try to correct it then.
Indeed, mandatory sentencing is the Big Taboo. In Joel Dyer’s The Perpetual Prisoner Machine: How America Profits from Crime
, he explains why mandatory sentencing is so important to the prison industrial complex. Justice Anthony Kennedy, the most powerful judge in the nation right now, said the following of mandatory sentencing:
I think I’m in agreement with most judges in the federal system that mandatory minimums are an imprudent, unwise and often unjust mechanism for sentencing – Justice Anthony Kennedy in 1994 Congressional hearings
Lots more on the flip…
America has approximately 5% of the world’s population, but approximately 25% of the world’s prison population. We have well over 2 million prisoners, which equates to 724 prisoners per 100,000 citizens. At our current rate of prison growth, it will not be long until a full percent of our nation will be in prison. (Source: BBC News) Put in another way, our rate of prison growth is untenable, and unquestionably related to mandatory sentencing guidelines, of which 3 strikes is just one.
Resolving The Big Taboo really involves focusing on two issues, which, while related, are really separate problems:
1. The “Tough on Crime” meme
George Bush the elder liked to fashion himself “tough on crime.” He ran on his toughness against Dukakis using the now infamous Willie Horton campaign. However, Dyer also points out a quote by then Congressman George H.W. Bush from 1970 when he voted to repeal the last of the federal minimums:
“Contrary to what one might imagine, however, this bill will result in better justice and more appropriate sentences. … Federal judges are almost unanimously opposed to mandatory minimums, because they remove a great deal of the court’s discretion. … As a result [of repealing mandatory minimums], we will undoubtably have more equitable action by the courts, with actually more convictions where they are called for, and fewer disproportionate sentences.” – Congressman George H.W. Bush, 1970
During the 70s, the last of the mandatory sentences were gone. They had been tossed on the scrapheap of bad ideas from the 1800s. Congress understood that they were impractical But by the mid 1980s, Congress reversed course by passing the Sentencing Reform Act. And by the 1990s, the tough on crime meme held complete sway, prompting Orrin Hatch to say:
The reason why we went to mandatory minimums is because of these soft-on-crime judges that we have in our society, judges who just will not get tough on crime. (Cited in Dyer, originally from Frontline, 4/28/98)
As can be seen in the contrast of these two quotes, there was a fundamental sea change in the mood of the country. We began to get more isolated, locked up in our own homes, in constant fear of the next boogeyman to come down the street. It’s also what W is using in his march against civil liberties: Fear®. Fear Sells. It works, it got W re-elected in 2004, just as it worked for his father in 1988.
But tough on crime isn’t enough. It doesn’t address the root of crime and only results in increased prison populations. The increased prison populations breed additional crime, and we end up with a vicious cycle. Recidivism increases and the overall crime rate is not decreased, but rather increased. We get large, extremely violent prison gangs that end up controlling the drug trade from within the prisons that are able to send messages within prisons. We get many things, but the one thing we do not get from being “tough on crime” is less crime.
2. The Failed “War on Drugs”.
It’s time to change the framing on the war on drugs. It’s not a war on drugs. We aren’t putting drugs in jail (although there are plenty there, which makes the prison environment doubly unsafe), we aren’t trying drugs for crimes of addiction, we aren’t removing the children of drugs from their parents. No, we are doing this to Americans. In America.
Further, the drug war has had bizarre twists and turns. For example, crack cocaine is punished far more heavily than traditional cocaine? Why? Who knows, but it is difficult to see any reason other than the one based on poverty.
The War on Drugs is Lost. It’s time to accept that and deal with the problem in a more realistic way. Prop 36, which was recently “renewed” by the legislature in a controversial move that included possible brief jail stays, set a tone of rehabilitation. However, drug treatment needs to be a priority not only for drug offenders, but also for other criminals. The number of crimes that are related to drugs is substantially larger than the actual number of drug offenses. It is imperative that we solve the root problem, addiction, and not keep trying to punish addicts into submission.
In his testimony to Congress, William B. Moffitt, President of the National Association of Criminal Defense Lawyers closed with the following statement. I could not hope to do better, so I will reprint that here:
No; my question to you is when will our society be unable to pay, fiscally, for incarcerating our own? When will our society be unable to cope with our bloated prison population? When will our very fabric crumble as the hundreds of thousands of individuals who we have locked away for five, ten or twenty years, return to our midst, unenlightened and disfranchised. For I do not believe that they have assimilate and become “one of us.” I believe that they will feel betrayed and angry and we will have no answers only regrets.
The question that remains is when will you, our elected officials recognize that we cannot continue down this path of ever increasing incarceration. I will end my testimony with some remarks from Don Williamson, Philadelphia Daily News, November 4, 1985.
If for no more honorable reason than our own societal self preservation, we need to heed where the current state of affairs is taking us: A raging epidemic of poor, dumb children in the richest, most educated nation on earth can be ignored (for now) because these children have no power, no constituency. They cannot vote.
They have no money. They own no property. There is no well financed, influential Washington based lobby group insuring that their birth right is protected.
But there will be more of them every day. And they are having babies who will be poorer, and dumber then they are. They will be poorer and dumber and have no allegiance to this or any nation, no concept of right or wrong, no adherence to cherished traditions and no compassion or regard for the elders who abandoned them. Soon fourteen million poor children will become fourteen million unskilled uneducated, angry dangerous adults. There will not be enough jails, enough bullets, enough quick fix federal programs. There will be them and an older feebler, increasingly dependent us. They will blot out the sky, foul the air, make the water unfit to drink. They will steal tomorrow. They are time bombs.
They will steal tomorrow. And society will have aided and abetted the theft. (National Association of Criminal Defense Lawyers May 11, 2000)
