As for Valencia, her confinement for all those years was no accident. It was part of a deliberate policy pursued by a prison-industrial complex that profits from harsh justice, injustice, and sometimes no justice at all. It was nurtured by intellectual sloth, the war on drugs, and the same gratuitous fear and loathing that Hunter Thompson found dictating so many corners of American society. The economic war waged against the vast majority of Americans by a determined group at the top of the financial scale at last found broad recognition in 2011, when the Occupy movement spread from Wall Street to cities around America. But few Americans have recognized the connection between accelerating economic inequality and the leap in incarceration that accompanied it. Both trends were made possible by the acceptance of the underlying premise that some people’s lives have less value than others.
Starting around the time President Ronald Reagan took office in 1981, a combination of economic, social, and political forces hijacked the criminal justice system, tossing punitive sentences around like Frisbees and creating a structure that works contrary to the mission of creating a safer, more humane society. Providing false solutions through political posturing, fear-mongering, and manipulating the twenty-four-hour news cycle has resulted in the incarceration of 2.3 million people, a population about the size of Houston’s.3 Most of these prisoners don’t belong behind bars.
A healthy society will always struggle to achieve a balance between freedom and security, but since 9/11 America seems to have abandoned this struggle. Freedom has received short shrift. With fear driving the agenda, we’ve heaped on additional layers of bureaucratic “security,” launched wars of vague purpose, and even surrendered some of our constitutional rights. Obliging courts have allowed government technocrats, hiding behind the little-known Stored Communications Act, to sift at will through our e-mails. The National Security Agency intercepts phone calls without judicial warrants. The National Defense Authorization Act, signed into law in 2012, allows the federal government to arrest American citizens on American soil for suspicion of terrorism and to hold them the rest of their lives without offering them a trial. President Barack Obama added a signing statement to the law, professing that his administration would never allow these abuses of American liberties, but even if he keeps his word, future presidents will retain this ominous power.
Meanwhile, stratification of wealth and income in the United States since 1980 has been well documented. This rising inequality contaminates the criminal justice system. As the government has coddled the top 1 percent, the plight of the 99 percent at its most desperate has been in many cases a life behind bars. The American legal framework has become less dedicated to sifting out the schizophrenics and drug abusers, for example, who have committed no crime against others but who find themselves behind bars because their traditional safety nets have been swallowed up by budget cuts at all levels of government. Their jailing is a crime against humanity. Consider also the petty offenders who, with proper help, could be steered into the mainstream via education and job training, instead of into the career-criminal underclass as a result of their unnecessary incarceration. Because the system holds so many inmates, the truly dangerous offenders more easily fall between the cracks.
The Land of the Free holds more prisoners than any other country in the world and has the highest per capita incarceration rate. Its prisoner ratio of 748 per 100,000 residents is nearly five times that of Spain, which has the highest ratio in Western Europe. With only 5 percent of the world’s population, the United States holds 25 percent of its prisoners, exceeding the per capita levels even of dictatorships such as China and Iran. In fact, one of every hundred American adults is behind bars.4
Defenders of the American system claim it jails so many people because it does its job more effectively, but any police state might make the same claim. When Casablanca’s Captain Renault instructed his subordinates to round up the usual suspects, he wasn’t terrribly as concerned about the rights of the innocent.
Obviously there are victims of vicious crimes whose circumstances cry out for justice and dangerous perpetrators who should be locked away for the good of society, but the United States imposes lengthy sentences on the Brenda Valencias, on drug users who can’t afford treatment, on low-grade shoplifters, and the mentally ill. In fact, the American Psychiatric Association points out that jails and prisons are the primary mental health care facilities in the United States.5
Jurists elsewhere are baffled by America’s curious infatuation with keeping so many nonthreatening people behind bars and in such awful conditions. The United States not only imprisons offenders who would not go to jail in other countries; it gives them long sentences. Supreme Court Justice Anthony Kennedy figures American sentences are eight times longer than those meted out in European courts. Justice Kennedy, usually described as a conservative, has noted that California’s infamous three-strikes law was sponsored by the prison guards union. “And that,” he says indignantly, “is sick.”6 This book’s title was derived from Kennedy’s searing description of a system that has taken a very wrong turn. In 2010 the prison guards he singled out were averaging more than $100,000 annually and belonged to the most powerful labor union in the state. Their pensions are fatter than those of nurses, teachers, or firefighters, and they continue lobbying for additional prisons, harsher sentencing, and even stiffer parole regulations. The guards make up one small segment of a nationwide prison-industrial complex. Arizona’s scheme to lock up suspected undocumented immigrants, for example, was an economic contrivance orchestrated by lobbyists employed by the increasingly powerful private-prison industry.7 Its corporate chieftains view the jailing of housemaids and busboys as a business opportunity.
Vivien Stern, a research fellow at the Prison Studies Center in London, has said that America’s bloated incarceration rate has made it “a rogue state, a country that has made a decision not to follow what is a normal Western approach.”8 James Whitman, a specialist in comparative law at Yale, points out that the United States is the only advanced country that incarcerates people for minor property crimes such as passing bad checks.9 But such pronouncements and innumerable similar studies have had little to no effect on this shockingly inequitable system.
In the French novel Les Misérables, after serving nineteen years in prison for stealing a loaf of bread and for the botched escape attempts that followed, Jean Valjean must carry a yellow passport that identifies him to all as a convict. His life is dogged by a relentless, often irrational judicial system in Victor Hugo’s fictional account of corrupted innocence, blind injustice, mercy, and redemption. U.S. prisons coast-to-coast are bursting with Jean Valjeans. The cruel details of “zero tolerance” are largely hidden from view. Jerry DeWayne Williams, for example, attracted fifteen minutes of fame when a judge handed him twenty-five years to life for stealing a slice of pizza in Redondo Beach, California. His sentence was later reduced to six years.10 Another Valjean, a laid-off construction worker, is serving three and a half years for wheeling a rusty bicycle with two flat tires and no chain out of someone else’s garage and then leaving it behind. The defendant, whose case never made the news, was Chris Martinez. He’s a friend of our family, and his case was part of the inspiration for this book. The list of Valjeans is endless and depressing. They spend day after day in a system that routinely dumps lesser offenders into a claustrophobic nightmare ruled by gangs and sociopaths.