Having committed the cyber equivalent of shouting myself hoarse and becoming blue in the face advocating reform and humanization of American criminal justice, I would be churlish in failing to recognize distinct signs of progress. What amounts to a holy alliance is taking form, between traditional humanitarian liberals and cost-conscious conservatives. The liberals were long silenced, if not martyred, by the thundering hooves and foaming mouths and flaming nostrils of law-and-order mob-think; but the conservatives, who had generally served in leading or supportive roles in that mob-think, have finally retrieved their sense of arithmetic sufficiently to be concerned about the horrible fiscal burden of keeping 2.5 million people in prisons and jails, more than 7 million others under supervised release, and up to a million under indictment. A vast apparatus has arisen, including about a million correctional officers, highly unionized and surpassed in political militancy only by the National Rifle Association, and aggressive private-sector prison companies, such as Wackenhut and Correctional Corporation of America. All join with the law-enforcement associations to demand ever harsher sentences for an ever greater number of offenses.
Because most states require a referendum to increase bonded debt significantly, and voters are unenthused, the practice was settled upon decades ago of assuring private-prison operators that prison populations would be maintained at a certain level and that a given rate would be paid for each prisoner. These guarantees enabled the private sector to operate the prisons at a built-in profit, while the local politicians had the free lunch of claiming to be throwing blackguards in prison, in greater numbers and for ever-longer sentences, without increasing state or municipal debt. In fact, of course, the financing arrangements agreed to with the private prison companies were much more onerous financially than a decision actually to build the prisons would have been. The private-sector companies also administer the prisons differently: There is better telephone and e-mail service and the commissaries are better stocked, all to build the profit centers at the expense of the inmates — the ultimate captive customers — but any prison services, such as job training, counseling, and libraries are dispensed with and the inmates are press-ganged into every activity except guarding themselves. (And in some places, the private sector parted with sorrow with the brutal trusty system of olden time.)
Every other advanced country in the world has a prison-reform movement, as the United States did until the storm troopers of law and order put them to the bayonet decades ago. The whole nation quivered with fear of the black-extremist movements after the Attica and San Quentin uprisings and riots in many cities, and the early feminists sold the theory that all American men were potential rapists. And, in a most infelicitous coincidence, the country officially went completely mad over drug use. The War on Drugs has caused the imprisonment of approximately 2 million people and the expenditure of over a trillion dollars, and was another mighty bonanza for the prison industry. (Predictably, and as was widely predicted, drugs have become more plentiful and accessible than ever.) The acute stigmatization of convicted people created a Manichaean society in which any ostensible felon was ostracized like a medieval leper, even as the numbers of such people ballooned to the astonishing total, including DUI and disorderly conduct and other such cases that are irrelevant if not repeated, of 48 million people. They are all in the computers and are thus routinely denied entry into cooperating countries like Canada.
Politicians of right and left uniformly demanded draconian sentences, and vote-seeking legislators wrenched out of the hands of judges their traditional discretion within guidelines and reduced the bench to puppets imposing bone-cracking sentences on conviction, even as evidentiary rules and the misapplication of catchall criminal statutes enabled prosecutors to ensure convictions in almost every case. Scores of counts were thrown at every accused person; all property is deemed to be ill-gotten gains and routinely frozen, leaving the accused defenseless against the rapacity of the American legal profession; and acquaintances of the target are frog-marched into court to recite rehearsed lies as part of the plea-bargain system, in which witnesses are granted immunity for perjury if they cooperate and threatened with indictment as co-conspirators if they don’t. The convicted have had no advocates; numerous though they became, they were not a constituency. The vast mass of the convicted, even prominent and wealthy people such as Martha Stewart and Alfred Taubman (both of whom were probably innocent) and Michael Milken, just took their lumps and moved on. The criminal-justice system is a gigantic and ravenous monster that convicts 99.5 percent of the accused, 97 percent without trial, because of the corrupt operation of the plea-bargain system. In other civilized countries, defendants do win sometimes, up to nearly 40 percent of cases in Canada and rather more than that in Britain, and not because those countries don’t have criminals, don’t care about crime, or have prosecutors who are incompetent or legally impotent.