Newark, N.J. — While rambling along the New Jersey Transit system, I overheard two strangers fall into conversation — a young black woman and middle-aged white man. Their conversation turned toward traffic tickets, and the man related how he had gone to court to obtain some relief. The woman was surprised that he would risk any further encounter with the police or the courts.
“I tell my boys to have nothing to do with either — it can only go bad,” she said.
“I know — once you’re in front of that judge, he can ruin your life,” he conceded.
Two ordinary Americans, neither with any criminal history, were fearful of encountering America’s criminal justice system. They see the police and the courts not as friendly protectors, but a threat to be avoided. The facts show that they are right.
The United States has an election next week, but nowhere to be found is any discussion of the genuine national crisis in the criminal justice system. To put it dramatically, but not inaccurately, the right to a fair trial no longer exists in America, except by accident. The land of the free simply isn’t that for those who catch the eye of the police. Any nobody seems to care.
“The prosecutor kept the promise he made on that day, and the judge got mad and put me straight away” sang New Jersey’s Bruce Springsteen some thirty years ago in Working on the Highway. He was singing about an innocent run-in with the law that ended badly, being sentenced to a prison work gang. America’s justice system has gone mad, sentencing millions to various punishments without trials.
A combination of “tough-on-crime” measures implemented since the 1970s — the war on drugs; mandatory minimum sentencing; draconian punishments for even minor repeat offences; a bewildering array of new laws, many that are so obscure or complicated that it is near-impossible to know that they are even being broken; a massive increase in prison spending that has given rise to a veritable correctional-industrial complex — has created a phenomenon of mass incarceration heretofore unknown in any country in history. America has become, in the words of an Atlantic magazine feature story this summer, “the leader of the unfree world”.
How bad is America’s mass incarceration crisis? The country’s jails hold 718 inmates per 100,000 population. Canada’s hold 118. America’s per capita incarceration rate is more than twice that of the United Kingdom, Italy and France combined.
“Many states’ prison populations outrank even those of dictatorships and illiberal democracies around the world,” reported The Atlantic, based on figures from the Prison Population Initiative. “New York jails more people per capita than Rwanda, where tens of thousands await trial for their roles in the 1994 genocide. California, Illinois, and Ohio each have a higher incarceration rate than Cuba and Russia. Even Maine and Vermont imprison a greater share of people than Saudi Arabia, Venezuela, or Egypt.”
My fellow riders on the New Jersey commuter train knew of what they spoke. Nearly 2.5 million Americans are currently in prison, awaiting trial or serving a sentence outside of prison, all vacuumed up by a rapacious “justice” system. It is the foolish American who naively thinks that the police, prosecutors and courts are not a danger to his liberty.
So stacked is the system against the accused that even innocent people plead guilty, lest the prosecutor keep his promise to put them straight away
Mass incarceration is fueled by a system that has largely abandoned trials. More than 95% of convictions are the result of plea bargains. So stacked is the system against the accused that even innocent people plead guilty, lest the prosecutor keep his promise to put them straight away. The usual inducement for a plea to a lesser offence is to provide cooperating testimony against another accused, creating a massive incentive to offer embroidered testimony. The wheels of injustice are greased by suborned perjury. Unsurprisingly, all of this leads to false convictions on a not insignificant scale. (These pages profiled earlier this week the work of the California Innocence Project.)
Little political attention is paid because mass incarceration and the effective abandonment of trials has been a bipartisan consensus. Liberal states (California) and conservative states (Texas) alike have been on a decades-long prison-building binge, seeking to solve ever more social problems through incarceration. But even prison budgets are now strained, and both the American Supreme Court and the federal Sentencing Commission have in recent years arbitrarily granted parole to tens of thousands of inmates to reduce overcrowding. So many people are behind bars that even the richest country in the world cannot afford space for them all.
That’s good news for those released. But the question remains: How much longer can America afford to ignore the basic legal rights guaranteed by their constitution?