Ironically, when Mario Cuomo governed New York and struggled to find room for all the human detritus from the Rockefeller drug laws, he built dozens of prisons by siphoning billions from the Urban Development Corporation, an agency created to build housing for the poor.24 The organization ended up performing its mission, only with a special Dickensian twist, building the prisons and workhouses invoked by Ebenezer Scrooge.
Hang around a courthouse long enough and you begin to see that almost everyone in it believes the defendants in their manacles and jail uniforms are guilty. As a case moves from station to station on the legal conveyor belt, evidence—or lack of it—comes into play, but so do attitudes and perceptions. When an Indiana jury convicted ex-boxing champion Mike Tyson of a rape he almost certainly didn’t commit, he told himself, well, he’d escaped punishment for other wrongful acts, so he wouldn’t let this outcome destroy him.25
Sentencing got tougher around the time of the Vietnam War as the crime rate went through one of its cyclical climbs. Then along came the eighties and with it the Reagan administration and the nirvana of zero tolerance. Twenty-four-hour news channels began to terrify the public with a never-ending parade of crimes, plagues, and overhyped disasters. British-style sensationalism blasted its way into the basic cable package with the launching of Rupert Murdoch’s hard-right, tabloid-inspired Fox News Channel in 1996.
News, journalism textbooks exclaim, is man bites dog, not its inverse. Following this dictum, journalists routinely splash in the blood of exceptional events, the more traumatic and violent the better. Yet this directly contravenes the paradoxical claim that the news conveyed to the public is an accurate reflection of society at large.
During the nineties, as round-the-clock news ramped up the value of whatever was repulsive and objectionable, three-strikes laws, which mandated tougher sentences for each “strike” and an extended or life sentence for a third consecutive felony, became popular. The term “three strikes” had an instantly recognizable, irresistible ring to it. It was lousy law but a brilliant marketing slogan. Twenty-six states and the federal government now have three-strikes statutes covering a smorgasbord of “serious” offenses that in some states, notably California, could include nonviolent or even petty crimes, such as the previously cited bicycle and pizza thefts. Inherent in many of these hard-line statutes is the belief and practice of preventive detention. That is, even if the defendant didn’t inflict much damage on this particular occasion, next time he might, so why not use this opportunity to keep him off the street?
The process became even more grievous after the Great Recession rolled across the country in 2008. To maintain their hard line on criminal justice, states cut funding to social service agencies, thus smothering recreation, drug counseling, and sports programs and axing teaching staffs and classes. At the same time they closed down clinics and libraries and crossed their fingers in hopes that more bridges wouldn’t collapse. Parole officers’ caseloads rose to impossible heights. They spent so much time keeping track of people who were never a threat in the first place that they paid less attention to dangerous criminals.
To hit the pause button on all this, lawmakers would have to ramp up education, humanize criminal statutes, build aggressive antipoverty programs, and make therapy for drug abuse robust and truly accessible. But that would provide their political opponents with the opportunity to brand them as soft on crime in TV ads financed by the hard-line lobby. The safer political course is to stand back and let sick justice take its course, as it did in the cases of Brenda Valencia, Jerry DeWayne Williams, Joe Haskell, and so many others.
America has a hard time looking beyond its borders for ideas that work. Year after year its health care system puts up relatively awful statistics on longevity, infant mortality, costs, and other key demographic measurements. Yet when reforms were proposed during the early part of the Obama administration, many politicians argued that it was senseless to change what they called the “best health care system in the world,” and their argument almost carried the day. In the same vein, few Americans realize how irrational and gratuitously cruel our criminal justice structure is or how it got that way.
The absurdities of the system could never have become so pronounced were they not boosted by the robot logic of Jean Valjean’s obsessed nemesis, Inspector Javert, Victor Hugo’s humorless peace officer who disdains humanity and compassion. Our system is teeming with Javerts, without whom there could be no Valjeans.
Oddly, the U.S. criminal justice system leans toward victimizing the defendants who deserve a break and awarding prizes to career criminals who don’t. When Brenda Valencia was arrested in Florida, she knew no one on whom she could inform to reduce her sentence. Because she wasn’t a drug dealer, she had no underworld connections and nothing to trade. “But the guy who originated the deal,” she told me, “got fifteen months. His wife served no time at all. The two who did the most got the least time. The two who did the least got the most time.”
Tell this story to lawyers who work in criminal courts day after day and they’ll look at you quizzically, as though waiting for the punch line. They see these cases all the time. Talking about it just makes it worse. Offenders know it’s safer to snitch on people who aren’t terribly guilty. Because they’re not part of a criminal network, they’re less likely to wreak vengeance or spread the word about informants.
If hard-liners took a pragmatic look at the chaos and injustice created by their callousness, they might realize that tossing around harsh sentences has the potential to create crime. It produces a glut of ex-cons who are largely unemployable in a tough job market and, should they return to crime, provides them the incentive to leave no witnesses.
Most middle-class people don’t know anyone in the penitentiary system and thus tend to think of inmates as the “other,” a dangerous, barely human type best kept behind bars. Hapless wretches are routinely shuffled from sad urban rat-scapes into local jails and out to rural penitentiaries without arousing much notice. Swept from the bottom of the socioeconomic strata, their cries are drowned out by the louder voices of dying industries and occupations, unemployment, debts, taxes, underwater mortgages, wars, Monday Night Football, and celebrity dance contests. But there are plenty of neighborhoods with residents who understand how easy it is to get swept into the U.S. Gulag. They know flesh-and-blood human beings—family and friends—who experienced it. One in nine African American men aged twenty to thirty-four is in prison, many because of drug laws that lack a key ingredient—a victim. So even though people residing in high-crime areas are far more likely than other Americans to be harmed by crime, they tend to retain compassion for arrestees.
Seventy percent of children with a parent in prison wind up being incarcerated themselves.26 It’s as though our civilization prescribes jail as a standard solution to all manner of situations, some of which have only a tangential relationship to criminality.
The prison-industrial complex proffering a one-size-fits-all solution to so many societal problems isn’t made up of just the guards’ union and prison corporations. It also includes service contractors, prosecutors, judges, bailiffs, court secretaries, clerks, police officers, and the politicians passing the draconian laws so diligently sought by their benefactors who maintain the sprawling complex of lockups. Other insider corporations secure contracts for practically free convict labor and sometimes use it to replace nonconvict workers, who then get laid off. Working separately and together, these components of the industry have set our criminal justice system on autopilot and aimed it far beyond the boundaries of the rest of the civilized world. At the same time they’ve managed to skirt the pragmatic tests for which America has long been celebrated, establishing, bit by bit, an unreasonably cruel system that devours an increasingly larger slice of our citizenry.