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.)
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.
The 100-to-one greater penalty for crack than for powder cocaine use was in large measure simple discrimination against African Americans, and it was generally assumed that the first black president and attorney general in American history would address this, along with some other inequitable features of the system. The ratio has been reduced to 18 to one, a few people have been pardoned, and Attorney General Holder has testified to the Congress in favor of the reduction of the basic drug first-offense sentence by about 20 percent. California is under court instruction to release categories of nonviolent prisoners because of inhumane conditions of overcrowding in its prisons. Under the pressure of the undeniable failure of the policy of severity and the acute financial shortages the American public sector is suffering almost everywhere, necessity has become the mother of virtue, retrenchment is in fashion, and the forces of humane reason that are unconvinced of imprisonment as a remedy for nonviolent offenses have emerged, like Rip Van Winkle, after a very long sleep.
This is only half of the pincers that are impinging on the jail-’em, flog-’em, hang- (or gas- , inject-, or electrocute-) ’em American school of justice. The legalization of marijuana in Colorado and Oregon is producing such enhanced revenues in those states that eight other states, after only two months, are also calling for legalization. The straitened circumstances of the American public treasuries will soon banish all the tired pieties about the evils of the “gateway drug” and the stampede to legalize and pocket the proceeds will force a drastic downsizing in the prison population. That will not in itself recreate the balance between the prosecution and the defense, but any movement toward a sane incarceration policy should be a subject of rejoicing, and it will develop momentum. What is needed is for the vast mass of felons, millions of whom were innocent, and tens of millions grossly over-sentenced, to insist on the retrieval of the concept that once a sentence is served the slate is clean, at least in nonviolent matters. They should then use their numbers and economic weight – as other oppressed groups, including African Americans, women, and gays, have done – to restore justice. That is not a euphemism for a permissive attitude toward crime, only an argument to avoid torturing the innocent, punishing recoverable offenders into permanent maladjustment, treating the Bill of Rights as a dishrag, and making a mockery of the rule of law. American society always does the right thing in the end. Doing so with the justice system is an idea whose time is finally coming.
— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom, Richard M. Nixon: A Life in Full, A Matter of Principle, and the recently published Flight of the Eagle: The Grand Strategies That Brought America from Colonial Dependence to World Leadership. He can be reached at [email protected].