Convicts who maintain contact with family and friends in the outside world are less likely to be convicted of additional crimes and usually have an easier reintegration back into society, yet the clumsy federal system still incarcerates inmates far from home. Brenda Valencia, for example, was convicted in Florida but imprisoned in California.
Narcotics Anonymous meetings are often heavily populated with addicts ordered there by judges, and the meeting places are often prime locations for drug buys, an unintended negative consequence that’s also seen around many methadone dispensaries. If judges took the time to check out some of these gatherings in person, they might draw up a different strategy. In the meantime, they repeat their mistakes and pretend they’re accomplishing something.
Specialized women’s and veterans courts, which hear cases involving particular types of defendants and focus on turning their lives around, show promise. Also, we don’t always have to reinvent the wheel. Over the last decade, Portugal, for example, has tested a method that could easily be applied in the United States. As of 2001, people caught with small amounts of any drug can no longer be charged with a criminal offense, but they may be placed before a panel that includes a psychologist, social worker, and legal adviser. The panel suggests an appropriate treatment for the user, but the user reserves the right to refuse help. Drug trafficking is still a crime. Before 2001 Portugal had one of the worst drug problems in Europe. In the years since the law was changed, however, the libertarian Cato Institute, the World Health Organization, and BMJ (formerly the British Medical Journal) have documented a turnaround.20
But even though several more effective models are out there, we have to recognize that some U.S. and state policies are so damaging that they’ve made solutions more elusive. When we revoked the Volstead Act in 1933, the criminal gangs that had taken over distribution and sales of alcoholic beverages didn’t all disappear. Many of the groups pursued other criminal ventures. Like the gangster network of the Prohibition era, narcotics syndicates that reach around the globe are dug in and staffed by nasty, organized characters. It’s unlikely that any legalization could suddenly crush the traffickers, whose power along much of the U.S. border rivals and often exceeds that of the Mexican government. They’d use their elaborate criminal networks to commit other crimes, such as kidnapping and shaking down legitimate businesses, practices they’ve already adopted. Frankenstein’s monster walks among us, but we can at least choose to stop feeding it its meal of choice.
Up to 60 percent of ex-convicts in New York State are still unemployed one year after release, according to a study from the Independent Committee on Reentry and Employment.21 Glenn Martin, vice president of the Fortune Society in Queens, a nonprofit group that trains former inmates in job-hunting skills, says that ex-cons are “always at the back of the line, and the line… got a lot longer” after the economic tremor of 2008. When ex-cons are laid off and forced to return to job searching, they face the stigma of criminal conviction” all over again.
Not nearly enough resources have been brought to bear on the crisis of hyperincarceration. The problem has been heating up like the frog that sits undisturbed in a pan of water while it’s brought slowly to a boil. A long-term solution is to educate the public, primarily in schools but also with accurate and substantial news coverage—the kind that’s a rarity in today’s degraded twenty-four-hour news cycle. Democracy works best when the electorate understands the issues. But even if we adequately educated the public, we couldn’t wipe out crime and addiction. We’re dealing with human beings, after all. Financiers and corporate chieftains take mad chances and commit reprehensible acts to expand their already enormous fortunes, while cabdrivers barely earning minimum wage turn in jewelry and wallets left on the rear seat. Some corners of the heart can’t be fully understood.
Still, we can and should recognize the overwhelming evidence that incarceration is not always the best answer to crime and that in many cases it makes the problem worse. Then we must incorporate this understanding into actual practice. The key to this overdue reassessment is redefining the meaning of “crime” because when no victim exists, as is true in so many substance abuse cases, for example, that’s a pretty solid clue that no criminal offense was committed. Making the penal system our automatic response to drug addiction and mental illness is an outmoded course of action that so far continues to prevail over reason. Additionally, we need to find and act upon buried injustices—the legions of wrongly confined prisoners like Anthony Fletcher in Pennsylvania, Atiba Parker in Mississippi, and former Alabama deputy sheriff Wilmer Breckenride, who’s locked up somewhere in the federal system.
Good, well-intentioned people work in the criminal justice system, but they’re repeatedly undermined by the sloppy, malevolent practices of their colleagues. As a consequence, our bloated penal structure probably holds two or three times the number of prisoners it should. A model for remedial action can be found in the Truth and Reconciliation Commission that investigated human rights violations after South Africa abolished apartheid. That’s how tragic and askew our situation has become.
And although the U.S. Supreme Court protects outlaw prosecutors from civil suits, it hasn’t made them immune from criminal prosecution when they hide or manufacture evidence, conspiring to convict defendants who are clearly innocent. Yet in case after case their fellow prosecutors have looked the other way and filed no charges despite strong clues of criminality by authorities. (See, for example, the John Thompson case in chapter 8.)
A free country should protect its prisoners from inhumane treatment, but as I write this, convicts in Texas still auction off convict-victims to convict-rapists while authorities look the other way. Our knowledge of right and wrong seems to have little or no effect on such facts on the ground, where broad sections of our penal system are out of control. Finally the profit motive must be removed from the criminal justice equation. We have to stop locking up more people and extending sentences in order to satisfy the financial cravings of California prison guards or Gulag corporations such as Corrections Corporation of America. Justice Kennedy accurately defined that kind of revenue-based policy as “sick”—sick justice.
Tolstoy speculated that if nothing else worked, perhaps the czarist government should continue to pay prison profiteers in exchange for their stepping aside to allow reforms. Our republic, based on the inalienable principle of liberty and justice for all, surely has the courage and know-how to find better answers and achieve a better result.
NOTES
1. THE MOSTLY INVISIBLE CATASTROPHE
1. All quotations by Brenda Valencia are from the author’s several interviews with her during August and September 2011.
2. David B. Kopel, Prison Blues: How America’s Foolish Sentencing Policies Endanger Public Safety, Cato Policy Analysis No. 20 (Washington, DC: Cato Institute, May 17, 1994).
3. Human Rights Watch (http://www.hrw.org/sites/default/files/reports/usprisons0112webwcover_0.pdf), the Sentencing Project, and the U.S. Justice Department (http://bjs.gov/index.cfm?ty=tp&tid=11) websites all concur on the number of U.S. prisoners.