On the 18th of August, the United States Department of Justice announced it would phase out its use of privately-run prisons, after a review that concluded these facilities were less secure and effective. Campaigners across the country celebrated – the news was welcome to activists trying to fix major flaws in the US justice system. To them, the way the United States administers justice has gone awry, with the poor and minorities discriminated, and excessive punishments for relatively minor offenses. They criticize the US for being the country with the highest rates of prison inmates in the world.
Tough on crime
In the late 1980s, the American public was very concerned with rising levels of drug abuse and violent crime. And politicians, especially those of the Democratic Party, feared that voters would consider them inactive on these issues. Therefore, they decided to get “tough on crime”. In 1986, a bill was passed that introduced mandatory minimum sentences for certain drug offenses. Two years later, a right-wing attack advertisement did significant damage to Democratic presidential candidate Michael Dukakis. The ad referred to Willie Horton, a convicted criminal who committed robbery and rape, being allowed to leave jail for a weekend. The decision to let Horton out was made by Dukakis, who was Governor of the state of Massachusetts at the time.
After suffering a defeat in that year, Democrats were determined not to lose another election to the issue of crime. When Bill Clinton ran for the president as a moderate Democrat four years later, he flew back to Arkansas, where he was Governor, from the campaign trail to supervise the execution of a mentally ill criminal. Clinton won; and his harsh stance on criminal justice was just what most Americans wanted. In 1980, most Americans believed that prison should serve to rehabilitate, not punish. By 1993, that had turned around. And Washington was keen to follow the voters’ calls to “Lock them up and throw away the keys”.
In 1994, Bill Clinton signed another anti-crime bill into law. It included a wide variety of provisions that made sentencing even tougher, particularly a so-called “three strikes rule”. This rule meant that individuals with two previous felony convictions would effectively be jailed for life if they committed another offense. 24 states copied the federal government’s approach and created three-strikes laws of their own. What may sound very sensible on paper has led to shockingly harsh results when applied in the courtroom. Curtis Wilkerson, a Californian, had two convictions on his rap sheet from 1981, when he was 19. He spent too much time around the wrong people and ended up as a lookout on robberies. He went to jail for six years, and once released, found himself a proper job. Things went well until July 15, 1995, when a ridiculous slip-up would destroy his future. Waiting for his girlfriend in a mall, Wilkerson stole a pair of white socks. He didn’t get far: security guards caught him, and called the police. The socks were only worth $2.50, but given his two previous convictions from fourteen years earlier, the court counted the petty theft as a third strike. Sentence: 25 to life.
The purpose of ‘three-strikes’ was to keep dangerous repeat offenders off the street. But the law, just as mandatory minimums, took all discretion away from judges who were forced to impose certain sentences. This means that they couldn’t take into account a defendant’s individual situation, or whether the third offense is something minor. The result has been absolutely disproportionate sentencing. If the punishment is supposed to fit the crime, how can somebody be sent away for decades for stealing a pair of socks? A slice of pizza? A CD?
Such policies have led to the increasing overcrowding of prisons with people who have committed lesser crimes. For instance, the number of people in federal prison for drug offenses has increased almost 20-fold since 1980, and their average sentence increased from slightly less than two years in 1988 to almost five years in 2012.
The devastating impact of three-strikes-laws has not gone unnoticed by the ‘tough-on-crime’ ex-President, Bill Clinton. In recent years, he has expressed regrets about the large number of minor offenders who received brutally long sentences under the laws he passed. And his wife Hillary, who was running for president in this November’s election, has included detailed proposals for criminal justice reform in her platform.
In 1996, following the terrible Oklahoma city bombings, yet another crime bill was passed. Among its provisions was one that severely limited the legal options for people sentenced to death. These changes meant, in effect, that some prisoners were executed simply because their lawyer didn’t make a filing deadline.
Poor man’s law
Among the most worrisome aspects of “tough on crime” policies is how disproportionately they were applied: mass incarceration has most affected poor, minority communities. In 1963, in the landmark decision Gideon v. Wainwright, the US Supreme Court ruled that any citizen, regardless of income, had the right to legal representation. As a result, public defenders’ offices were established across the nations, providing taxpayer-funded counsel to those who couldn’t afford a lawyer. But today, the promise of legal representation regardless of income is nothing more than an empty promise. Most public defenders’ offices are hopelessly overworked and understaffed. According to news reports, New Orleans public defenders have an average of seven minutes to prepare one case. In Detroit, a public defender spends an average 32 minutes on a case.
These impossible time constraints undermine the promise of a fair trial, and have led to a concerning practice known as “meet ’em and plead ’em”, meaning that attorneys, lacking time to mount a real defense, simply tell their clients to take a deal involving a guilty plea in exchange for a reduced sentence. In some cases, this may even pressure innocent and wrongly charged clients to plead guilty to crimes they did not commit. And that’s not it: because of impossible caseloads, trials are often delayed while defendants wait forever in jail – what about “innocent until proven guilty”? And in some jurisdictions, indigent defendants are even charged fees for public defenders.
The Color of Justice
But it’s not just your position on the income scale that may end up defining the chances you have in court. The color of skin matters just as much. The numbers tell the shocking extent of racial disparity in the justice system. African-Americans are arrested 2.5 times as often as white Americans, Native Americans 1.5. African-Americans and Latinos are less likely to be released on bail. They are more likely than whites to be put in pretrial detention. They get probation far less often than white defendants. The sentences federal courts impose on black defendants are, on average, 20 percent longer than those they give to white Americans. African-Americans are also much more often sentenced to death or life without parole. If current trends continue, 1 in 3 black boys born after 2001 will go to jail in their lifetimes, and 1 in 6 Latinos will.
Activists and lawmakers have spent a long time lobbying in Washington and state capitals across the US for justice reform to be passed to address these frankly unacceptable flaws and inequalities in the system. But momentum for broad reform seems to have gone by, as the for-profit prison industry defends its interests and the once bipartisan consensus on the need for reform is destroyed by a Republican presidential nominee crying for “law and order” and rambling about the alleged lawlessness of ‘inner cities’ – racial code for minority groups. Politicians in the state of New Mexico have even recently made moves to reintroduce the death penalty, which had been abolished in the state. Years after it was buried by politicians across the country, “tough on crime” may just be coming back from the dead.