All three Texas murderers who, in 1998, dragged a hitchhiker to a horrific death behind their truck were ex-cons.11 Sentenced originally as nonviolent offenders, they were ruined human beings when the justice system spit them out, willing to torture and kill a man because of his race. An intelligent system doesn’t make killers out of smalltime offenders. But foolish, even indefensible practices have a way of masquerading as reasonable after they’ve become standard procedure. Still, time has a way of holding up the past to the light of reason and exposing absurdity for what it is. Respected magistrates wearing judicial robes used to sentence people to death for witchcraft. Our Saudi allies still behead “witches.” Officials rendering these judgments in the Western world considered themselves sensible people protecting society from danger. Looking back from a more rational perspective, we see that their monstrous proceedings were divorced from truth, justice, wisdom, and decency. But by exercising intellectual honesty and examining solid empirical evidence, we no longer have to wait three hundred years to know when something is terribly wrong.
In addition to its blanket surveillance of electronic communications, our government confesses to ongoing torture (minus waterboarding), secret jails, vaguely accountable search and seizure, and a macabre list of other extraconstitutional procedures. In fact, our government holds terrorist suspects who, even if freed by the court, will, it assures us, remain jailed anyway. U.S. contractors who have killed unarmed civilians overseas reside in a legal limbo that blesses them with a mysterious immunity from courts. Officers of financial institutions who created absurd derivative securities based on phony collateral weren’t prosecuted and even gave themselves fat bonuses. Citigroup, for example, which suffered more than $27 billion worth of losses in 2008, paid an estimated $5.33 billion worth of bonuses for that year, as reported by then New York attorney general Andrew Cuomo in a detailed study he released July 30, 2009. He titled his report “No Rhyme or Reason.”
USA Today, after painstakingly assembling records from across America, reported in a major 2010 series that it had uncovered 201 documented cases since 1998 of federal prosecutors (the people’s attorneys) falsifying or suppressing evidence, suborning perjury, or committing other serious misconduct, just to boost their convictions. Citing privacy rules, the Justice Department refused to disclose whether any of the guilty prosecutors were subsequently disciplined.
The nation’s vast network of penal fortresses, some of them operated by low-bidding private corporations, is a gray, seething petri dish of menace and disease, constituting a cruel and unusual punishment that courts rarely recognize as such. This enormous system has gotten so out of hand that some states, reverting back to earlier eighteenth-and nineteenth-century practices, again jail debtors. Complainants initiating these proceedings are frequently collection agencies owned by the very lawyers who bought the debt for pennies on the dollar.
Psychiatrist Karl Menninger, after taking a good look at America’s criminal justice system, speculated that “all the crimes committed by all the jailed criminals do not equal in total social damage that of the crimes committed against them.” Society allows this system to steam ahead without knowing whether its practices are effective, “a total waste of time, or worse.”12 Menninger expressed these ideas in 1969, before the war on drugs began.
In the 1970s New York governor Nelson Rockefeller, still aspiring to be president, grabbed headlines by championing legislation that sent thousands of drug offenders away for a minimum of fifteen years to life. His “Rockefeller laws,” though eventually struck from New York statutes, were a beacon to other ambitious politicians looking for an express elevator to higher office. Michigan passed a bill that mandated life without parole for possessing 1.45 pounds of cocaine or heroin.13
From 1980 to 2003 the U.S. prisoner population quadrupled, and the number of imprisoned drug offenders skyrocketed 1,200 percent.14 In Washington, Congress established stiff mandatory sentences for a wide assortment of federal offenses and abolished parole entirely. The lives of millions of nondangerous lawbreakers were turned into throwaway items. Day after day police and prosecutors squeeze more of these people into America’s Gulag, as inmate education and other rehabilitative programs are quietly strangled to reduce the enormous expense of keeping so many people locked up. Judges not numbed by the parade of horrors find their hands tied in case after case.
In 2005 the Supreme Court ruled that federal judges could begin using the Federal Sentencing Guidelines, created as an outgrowth of the Sentencing Reform Act of 1984, as a guide rather than as a set of inflexible edicts. Even so, most federal judges continued to mete out the same stiff penalties anyway, treating them as mandatory. The thousands of convicts sentenced prior to the 2005 ruling continued to serve out their mandatory sentences without special appellate privileges. Among them was construction worker Brian Ison, sentenced in 2001 to eleven years, three months.15 At age eighteen, Ison was in the wrong place at the wrong time, buying crystal meth at a mobile home in rural Kentucky that was raided by Drug Enforcement Administration (DEA) agents. The home had been under surveillance for months. Under a complex web of drug laws, Ison was convicted in federal court for manufacturing five hundred grams of meth, even though only eleven grams were found on the property and he wasn’t a drug manufacturer. Witnesses thought they’d seen him help cook meth at the mobile home on several occasions. Ison, who’d had a drug problem since he was sixteen, was engaged to be married with a child on the way at the time of his trial. His daughter suffers from muscular dystrophy. His only previous nontraffic offenses were being a minor in possession of alcohol and drinking in public.
Any thinking person who spends much time within the criminal justice system cannot help but notice how wildly disparate sentences can be. It’s not unusual for federal defendants convicted of downloading child porn to get ten years for a first offense (twenty years if there’s been a prior conviction). But in November 2011 a circuit court judge in Naples, Florida, sentenced Daniel Vilca, twenty-six, a stockroom worker, to life without possibility of parole for downloading hundreds of photos of child pornography. Vilca, who had no previous criminal record, turned down a plea bargain offer of twenty years. Had he actually molested a child, he probably would have received a lighter sentence. Former federal judge Paul Cassell reasoned that Vilca’s crime was not victimless; if there were no consumers of child porn, fewer children would be victimized by it. However, Cassell also added, “a life sentence is what we give to murderers, and possession of child pornography is not the equivalent of first-degree murder.”16
Because laws are passed by politicians, there is fundamentally no advantage to standing up to extreme sentencing. It’s easier for an officeholder to look the other way as thousands of families are ripped apart by years and years of gratuitous incarceration than it is to leave one’s self open to just one Willie Horton. After twelve years in the Massachusetts prison system, Horton, a murderer and armed robber, was furloughed under a program that operated during Governor Michael Dukakis’s term in office. Once outside the walls, Horton disappeared. He turned up again in Maryland, where he raped a woman and stabbed her fiancée. He was subsequently recaptured. George H. W. Bush seized on the case as he coasted to victory over Dukakis in the 1988 presidential election. He injected it into speeches, and his political action committee gleefully plastered Horton’s ugly, sinister mug in TV ads. The story stuck to Dukakis like flypaper. The specter of Horton haunts officeholders to this day.