The Way Forward For Prison Reform: What Went Wrong and What We Can Do About It

Do It For Uncle Sam

Every society has its untouchables. Prisoners, the mentally ill, the disabled, the poor and other undesirables are often the first to feel the blowback created by the excesses of ruling elites. This poor treatment is usually tolerated as long as it does not threaten the stability of the system from which the middle and upper classes benefit. “Out of sight, out of mind” tends to be the modus operandi of the privileged classes, as long as the good times keep rollin’. However, things are not the way they used to be.

The continued economic crisis has shaken the foundations and assumptions upon which we have based our entire American system. The United States does not have the luxury of waste and inefficacy any longer. One of the most wasteful and distasteful public institutions is the criminal justice system. If we are to create a more perfect union, one that is both just and cost-effective, we must reform the broken institution of the American prison system. For the sake of our wallets and our souls, something needs to be done.

The American Drug War

I can’t stress enough how important the War on Drugs is to the current state of affairs. When a war is fought indefinitely, collateral damage is a daily occurrence. This collateral damage takes many forms but perhaps the most visible is the explosion in prison population growth, demonstrated visibly in the chart below. Of this growth, the number of inmates in state prisons for drug offenses has increased 550% over the past two decades.

Of the more than two million people currently imprisoned in the United States, approximately one-quarter have been convicted of a drug offense. An oft-used counterpoint claims that most of these drug offenders deserve to be behind bars because they are traffickers; “no one gets arrested for possession,” they say. The facts seem to indicate otherwise. According to FBI data, 83% of drug arrests are for possession alone.

A curious fact of the matter is that despite the prison population growth, rates of violent and property crime have declined consistently over the past two decades. Violent crime rates declined by 32% between 1995 and 2005 while property crime rates declined by 23% over the same time period. The continued population growth is due to the ever-increasing number of drug arrests.

Tellingly, the growing number of drug arrests does not correlate to an increased rate of drug use. What then is driving this perpetual growth? Simply, the structure of the system is flawed. As violent and property crimes decrease, law enforcement has increased flexibility to pursue drug crime. Law enforcement is expected to achieve specific quotas, often mandated by politicians and central bureaucracies, for reducing crime. With less people committing violent or property crimes, the source for meeting these quotas must come from drug offenders. To consistently meet this quota, law enforcement often targets the same neighborhoods it expects will produce the results it is looking for. This “hood profiling” leads to the disproportionate imprisonment of people of color. Finally, it is worth noting that although drug use rate is not correlated with drug arrests, the amount of money spent on “cops and courts” is. Counties that spend more money on law enforcement and the judiciary imprison more drug offenders than those who spend less.

This represents the demand side of the scenario. What about supply? This system of never-ending quotas and incarceration increases requires a never-ending supply of drug offenders. First, let’s look at the drug users. Drug addicts are driven to use drugs regardless of what sort of sanctions society places on them. That is the nature of addiction. No matter how expensive the drug becomes under prohibition, addicts will not and cannot stop their drug abuse. It is worth noting that the artificially inflated price of illegal drugs may in fact be leading to additional crime. 16% of state inmates and 18% of federal inmates report having committed their crimes to pay for their drug addictions.

Life is a vicious cycle for these addicts: streets, jail, repeat. Once the addicts are brought into the prison system, they do not receive the proper treatment that could help them mitigate their addiction. Not only is this treatment of addicts unjust, it is a waste of taxpayer money. Community treatment of addicts is one of the most cost effective means for reducing drug related crimes and costs about $20,000 less annually than incarceration. Every dollar spent on drug treatment yields over $18 in crime-related costs savings while every dollar spent on prison yields only $.37. It seems obvious that we would choose to pursue this cost-effective, pragmatic, and humane approach towards the public health problem of drug addiction. Sadly, the War on Drugs continues to blind policymakers and perpetuate this broken system.

The second part of the supply side is the drug dealers. Our rationale for imprisoning dealers and users alike is the assumption that the punitive measures imposed by the prison system will deter others from making similar decisions. This assumption is flawed and fails to take into account the market forces at play. When we remove a dealer from the streets, we are faced with the dilemma of the replacement effect. Because the illegal drug trade is so lucrative, a result of prices artificially inflated by prohibition, incarcerated dealers are quickly replaced, often by younger recruits more prone to violence. At a time when the national unemployment rate floats stubbornly around 9.4%, the frequency of job openings as a dealer encourages more people to become involved with this type of criminal activity. In economically depressed areas, joining the illegal drug business seems like the best option for many young people.

Quick review. Our current criminal justice policies are causing an enormous increase in the prison population, perpetuating a system based on perverse incentives and flawed assumptions, treating those with mental health problems as criminals, and wasting taxpayer dollars. But that’s not all!

The Prison Song

We must also remember that once criminals are cycled from street to cell, the treatment of prisoners can be atrocious. The current illegal detention of Bradley Manning, accused WikiLeaker, shines a spotlight on the egregious treatment of prisoners across the United States. Manning has been held in solitary confinement by the United States government for seven months without being charged with a crime. Upon his eventual release into the justice system, he will likely be declared unfit to stand trial. This is because solitary confinement is psychological torture. Human beings need social interaction to keep their brains healthy and functioning. If we are denied this, our brains disintegrate and we are left with severe long-term damage.

While Manning’s case may be unique as it exists in the context of the War on Terror, solitary confinement is the norm in America’s Supermax prisons. Though ostensibly designed to house the “worst of the worst,” less than 9% of Supermax inmates are in categories believed to require “special security needs,” such as those involved in organized crime, terrorist activities, drug cartels or similar crimes. The remaining 91% is composed of those deemed to be at risk of escaping or being violent, designations applied subjectively by prison staff. It is not hard to imagine a situation in which a prisoner, frustrated and disheartened by his imprisonment, verbally assaults a guard and ends up in solitary confinement.

Even if we made the assumption that there was no abuse of power and all those in solitary confinement deserved it, to what end do these punishments serve? Long-term solitary confinement destroys a person’s ability to function socially; what do we expect of these prisoners when they are released back into society? These prisoners, unable to adapt, are likely to commit crimes again and end up right back in the prison system. If our goal is to separate these prisons from society in an effort to keep society safe, how safe can we possibly be when these prisoners are released in a worse state than they were before they were imprisoned? If our goal is to punish prisoners in an authoritarian effort to “beat the bad” out of our undesirables, then we’ve truly lost it.

Prisoners are making it known that they refuse to accept the treatment they receive from the State. In December, thousands of prisoners in the Georgia State institutions engaged in a six-day strike by refusing to leave their cells or work. This strike was the largest in American history. For more in-depth coverage, check out that from the Institute of Southern Studies and Black Agenda Report.

Solutions? Anyone? Anyone?

The criminal justice system is riddled with so many problems that is impossible for me to properly detail all of them. For-profit prisons, racial disparities, forced labor… so so much wrong. What should we do right? A few suggestions:

- Decriminalize the personal possession of all drugs. Since we know that the disincentive of extremely punitive measures does not serve its intended purpose, we should stop imprisoning drug addicts in the vain belief that it will help society at large. I would argue for regulation of all illegal drugs but that is another matter for another time.

- Invest heavily in rehabilitation and treatment programs, as well as addiction research. This is the most humane and cost-effective way to deal with the public health problem of drug abuse.

- Abolish the use of solitary confinement. It is torture. Also, general treatment of prisoners needs to be seriously examined and improved. I’m not an expert on this, so I will not comment further.

- End the privatization of our prison system. Though I did not discuss it in this article, for-profit prisons are becoming a major player in the criminal justice system.

Ultimately, it does not matter what I think should be done. It matters what our policymakers think should be done and what they are willing to do. With Congress deeply divided, it may seem unlikely that something as controversial and complex as prison reform could be achieved. Contrary to conventional wisdom, I believe that prison reform is an initiative that has significant support from the left and the right.

Progressive-Libertarian Coalition

The anti-prohibition angle of prison reform is embraced by libertarian conservatives who see the government’s efforts to control personal drug consumption as an infringement on human liberty. Dr. Ron Paul (R-Texas) has long been the leading congressional voice against the War on Drugs. The recent rise of organizations such as Young Americans for Liberty and the Tea Party Movement is an indication that these ideas may be finding public support at long last. Many often dismiss the Tea Party as a product of ignorance and intolerance. While it is true that some Tea Partiers are motivated by prejudice, there are many authentic Tea Party supporters who are just as willing to take on corporatist Republicans as they are to take on the left. When one examines the demands of the libertarian right and the left wing, there is an astonishing amount of overlap. It is my belief that this agreement can be built upon for mutual advantage as a weakened Democratic Party and a newly emboldened Tea Party attempts to ward off the GOP establishment. This phenomenon is already visible in the bipartisan efforts to cut military spending, led by Dr. Paul and Sen. Bernie Sanders (I-Vermont).

Even the right-wing establishment is reconsidering its long-standing “tough on crime” stance. Last month, former Speaker and potential 2012 presidential candidate Newt Gingrich joined with other prominent conservative leaders, such as Grover Norquist and former drug czar William J. Bennett, to announce the Right on Crime campaign. Right on Crime is a project that aims to promote the conservative case for prison reform. Many of the points that I’ve mentioned are similarly being promoted by Right on Crime. On the religious right, Pat Roberston recently sent shockwaves through the media in his denouncement of our overly harsh marijuana laws. While these developments do not guarantee support from the right-wing, they are positive developments upon which those interested in prison reform should build a coalition.

The left, long having talked the talk on social justice, is walking the walk in prison reform initiatives across the country. One of the most painful casualties of this past Congress was the failure to pass the National Criminal Justice Act of 2009. This bill, sponsored by Sen. Jim Webb (D-Virginia) and supported on both sides of the aisle, would have “established a ‘National Criminal Justice Commission’ to hold public hearings and undertake a comprehensive review of the criminal justice system, including Federal, State, local, and tribal governments’ criminal justice costs, practices, and policies.” Empowering criminal justice experts rather than clueless politicians to make policy is the best way to reform our prison system. I am pleased that this is the chosen approach in the NCJA, though I am disappointed that that the bill slipped into obscurity. Another obscure yet important initiative was the Obama Administration’s fruitful efforts to reduce the sentence disparity between cocaine and crack cocaine possession. Though Congress failed to completely end the disparity, this success demonstrates the willingness of top government officials to push for reforms that might once have been considered politically untenable.

It’s very easy to become frustrated and jaded by American politics. I often find that there is little I can relate to in either of the two national parties. Despite this alienation, I am still occasionally drawn into an Us vs. Them mindset, a product of my reactionary sentiment towards the “new” GOP. Losing the House to John Boehner is not something I can easily stomach. But where to go from here? Though it is tempting to blame “the other side,” we must recognize that it gets us nowhere. Divide-and-conquer is an effective strategy for keeping us at each other’s throats while those in charge continue to swindle us. We must find our common ground, for without it, we are alone. It is up to us, progressive and conservative, young and old, to get this right. We must think outside the box and collaborate as much as possible to pursue our shared interest in a better America. Reforming the broken prison system of the United States is a perfect place to begin this daunting but important task.