Unconscionable contradictions permeate America’s criminal justice system. Our “land of the free” has only 5% of the world’s total population, but over 20% of its prisoners. The thousands who were convicted but subsequently lucky enough to be exonerated by DNA evidence imply that an unknowable but certainly nauseating number of remaining prisoners are also innocent. An even greater number of prisoners are of questionable blameworthiness when considering the nonviolent nature of the offense, the accused’s mental health or intellectual ability, or factors such as socioeconomic duress and institutional racism.
Even in cases in which culpability is clear, justice is dubious: we sentence individuals to years, decades, lifetimes of confinement in subhuman conditions in which they are further deprived of the opportunities they probably lacked in the life leading up to the crime. There we subject them to brutality at the hands of other inmates and guards. Meanwhile, many political officials, police officers, military commanders, corporate executives, and domestic partners who commit repeated financial, environmental, and physical abuses against vulnerable victims go largely unpunished and remain in positions of power.
And, perhaps the most perverse contradiction of criminal justice, not only is the system unjust, it makes all of us less safe. It drains tax revenue that could fund education, medical and mental health care, affordable housing, employment and anti-poverty programs, and prosecution of the most harmful crimes. Upon re-entry, former prisoners are routinely rejected for jobs, housing, public benefits, student loans, and never permitted to have a say in the democracy of which they are supposedly citizens. These consequences of conviction leave those who supposedly paid their debt to society with few incentives but to commit more, and more dangerous, crimes, employing the knowledge and connections gained from living amidst criminals.
The need for reform is pressing. Yet where Obama attempted to chip away at the power of the prison industrial complex, Trump and his Attorney General Jeff Sessions promise to amplify it. Nonetheless, and all the more so, now is the time for criminal justice reformers to be ambitious. There may be more hope than you would think from reading national headlines.
Consider that when Obama suspended the federal government’s use of for-profit prisons and reduced the sentences of hundreds of nonviolent prisoners, it was both a momentous step and a small one. He reversed course from decades of perverse policy, but only for a relatively small share of the nation’s prisoners, over 90% of whom are locked up on the state and local level. By the same token, when Sessions recently reverted federal policy to embrace private prisons and double-down on severe sentences for nonviolent offenders, these steps were shameful, racist, tragic — but limited in effectiveness for the same reason as Obama’s reforms: states hold most of the power in America’s criminal justice system.
And there are reasons to be hopeful about the prospect of reform on the state level — real reform, on the scale of decarceration and prison abolition. New York is poised to close Rikers Island and replace it with smaller, more community-based jails. And reforms are not limited to liberal jurisdictions. Even Sessions’s home state of Alabama has been working to reduce its prison population by incarcerating fewer nonviolent offenders. States and cities continue legalizing or decriminalizing recreational marijuana despite Sessions’s anti-factual and probably race-motivated opposition to it.
There is an important feature of state government that makes such reforms appealing. States must balance their budgets, and criminal justice reform is an investment in cost savings. It costs more to warehouse people in prisons than to provide them mental health services in the community or send them to college. It costs more to militarize police forces than to train more officers to walk a beat in communities. Legalizing marijuana generates revenue for states while policing, prosecuting, and punishing people for marijuana wastes money better spent on protecting people from actual harms. And keeping nonviolent offenders out of prison reduces recidivism, saving taxpayer money.
But this compelling economic argument raises a question. Why are lawmakers not already falling over each other to achieve such cost savings? The likely answer is the tremendous pressure exerted by two factors working in tandem: the powerful prison lobbies and the electoral popularity of being “tough on crime.” It is time for voters to become smart about crime. We need to counter the scaremongering about “inner cities” and immigration with the truth: being tough on crime ruins lives, wastes money, and makes our country more dangerous, so that a few may profit.