Analysis: America behind bars

The United States has more people in prison than any other country. More than 1 in 100 American adults are behind bars, according to a new Pew study. The number of prisoners is also growing at a faster rate. CNN notes that the 50 states spent more than $49 billion on corrections in 2007, "up from less than $11 billion 20 years earlier." In detail, the numbers look even worse. Of people in their 20s, 1 in 53 is locked up. Fully 1/9th of all black men are incarcerated.

This is a massive failure of our criminal justice system. We spend far too much money on far too many prisoners. While there are many ways to reduce the prisoner population, some of the most urgent are finding alternatives to prison for non-violent offenders, reducing the use of mandatory minimums, ending the drug war and stiffer jail terms for violent offenders.

Do non-violent offenders belong in jail at all? Those forced to go to a normal prison may be more likely to commit crime due to the brutal conditions there. Department of Corrections data show that about 25% of those initially imprisoned for non-violent crimes are later convicted a second time for a violent offense- jail is more likely to transmit violent behavior than discourage it. . The Department of Justice reports that nearly 5% of all prisoners in state and federal prisons were sexually victimized at least once between April and August 2007. If anyone deserves that, it is not non-violent offenders. Furthermore, their presence is a waste of vital money, time and room.

Those going to minimum security prisons are less likely to face the horrors of rape and gang violence. Those wretched souls are faced with finding a partner for squash. Is this not the height of unneeded incarceration? If your crime does not deserve a real prison and does not merit basic ways to prevent your escape, why are you in jail at all? Especially on the left, the urge to punish white-collar criminals is strong. But there are other, more productive ways to discourage their behavior; hefty fines, bans on working in business and house arrest. Did the public really need Martha Stewart off the streets? Off the air would have been enough. Minimum security prisons should be done away with all together. Club Fed was never a great deterrent anyway.

Mandatory minimums are to criminal justice as zero tolerance policies are to schools. Zero tolerance policies are why teenagers who take aspirin for their headaches get suspended, or why a 6 year old who kisses a classmate is labeled a sexual predator. Both remove the possibility of common sense or mercy. While justice is blind for the verdict, this was never the case for sentencing. Judges are there specifically to weigh the merits of a particular case, to look at the defendant's record, the exact nature of their crime and to make an informed, reasonable decision.

Congress and the state legislatures, however, are always looking for a way to appear tough on crime. Hence, they pass laws that establish absurd mandatory penalties that judges cannot ignore no matter how inappropriate they are to the case. This strips judges of a power that is vital to a just criminal system. If we greatly reduced the use of mandatory minimums, trained judges would once again be able to utilize the wisdom that got them on the bench in the first place. The guardians of the rule of law are in the best position to decide when lenience is proper; the Congress is in no position to determine that it never is appropriate. Without the minimums, thousands of convicts who pose little danger to society would have shorter sentences or possibly escape jail time. Chest-beating politicians looking for the middle class vote have no place usurping the judge's role.

The drug war is a totally failed policy. It not only causes far more harm than good, it fails to meet its own goals, let alone good ones. Yet, in service of this boondoggle, America puts a huge number of people behind bars. Around 20% of prisoners are there for drug offenses, and even massive reductions in the hippie population could not justify such waste.

Even if one were to accept the Puritanical premise that our policy should be to reduce drug use for its own sake, the current approach goes nowhere. Hundreds of thousands languish in prison under the premise that jail is better for them then drugs and after their sentences, they will not want drugs anymore. Ha!

The idea of ending drug use, or making drugs impossible to obtain, is laughable. To anyone who honestly believes a "Drug Free America" is possible: I offer you some very attractive windmills to tilt at- and at competitive rates!

The comic Get Your War On joked in its second strip that "this War on Terror is going to rule" because it will work just as well the war on drugs and "now we can't buy drugs anymore". The drug war shares the same "don't ask us to prove results" mentality with the war on terror. For both, the idea of effectiveness or accountability is divorced from its daily cheerleading.

Where would Al Capone be without the squares? By making alcohol illegal, the government simply transfered its production, distribution and sale to criminals. Because, like drugs today, alcohol was not going anywhere. What practical effect did prohibition have? It enabled criminal gangs to fund and arm themselves. The same is true of drugs; forcing a commodity to the black market does not make it go away, it just makes it a tool of modern day Capones. This means that the drug war is causing more crime to happen. More people get caught up into the cycle of crime and gang life, and our prisons get fuller.

Even to a Second Amendment supporter like myself, there is something perverse about being able to own an automatic assault rife but not a joint. In a philosophical sense, drug laws violate personal sovereignty by telling citizens what they can put into their own bodies. This implies ownership; is it your body or the government's? Does someone deserve prison for answering that question differently?

There must also be longer prison terms for violent offenders. This may seem an odd argument to make for someone looking to reduce the number of prisoners. But real jail time may have a deterrent effect, hopefully reducing the number of people who resort to violence and get locked up. Right now, violent offenders rarely get the punishment they deserve; on average, violent felonies earn shorter sentences than felony drug convictions. Even if this were not so, our prisons would have the space and resources to deal with the increased sentences because they would no longer be wasting them on non-violent offenders.

The political will to do most of this is lacking, of course. Few politicians want to appear soft on crime, especially regarding drugs. Faced with unavoidable shortages of space and money, however, some jurisdictions are looking at the alternatives. The Pew report highlighted Kansas and Texas as states which have taken steps to slow the growth of their inmate population. Those states are employing greater use of community supervision for low-risk offenders and employing sanctions other than reimprisonment for ex-offenders who commit technical violations of parole and probation rules.

The report explains that "the new approach, born of bipartisan leadership, is allowing the two states to ensure they have enough prison beds for violent offenders while helping less dangerous lawbreakers become productive, taxpaying citizens." It is a small step towards solving a big problem.