Punishment, American Style


There are just a few things I get really angry and passionate about and one of them is the way our system of criminal justice so often comes down the harshest on the most marginalized among the population, those who typically commit some minor crime and essentially gets the shaft from a system that cares little about the consequences.  It is a system that preys on the weak, often ignoring the worst of crimes.

We have a judicial system that in recent years has been virtually handed over to the prosecutor's office by the legislative branch of state and federal government.  The judicial branch has been left out in the cold and judges no longer have much authority to “judge” cases. Instead of the punishment fitting the offender all too often the punishment fits the crime and legislators assume that every crime and every offender who commits them are exactly alike. Some call this “one size fits all legislation.”

 A study conducted by two noted criminologists illustrates one of the consequences of this kind of legislation, which all too often hands down excessive sentences to those who commit minor offenses.  James Austin and John Irwin, in their book It’s About Time: America’s Incarceration Binge, devote a chapter where they take a sample of cases in three states (Nevada, Illinois, Washington).  They examine in some detail the crimes that these prisoners committed and they categorize them according to a seriousness scale based upon a public opinion survey conducted by the University of Pennsylvania.  Austin and Irwin group their crimes into four major categories: (1) Very serious crimes (e.g., rape, murder, manslaughter, a child victim, kidnapping); (2) Serious crimes (e.g., theft of more than $10,000, serious injury, attempted murder, sales of dangerous drugs); (3) Moderate crimes (e.g., crimes involving minor injuries, the threat of an injury, use of a weapon, use of heroin or cocaine, selling pot); (4) petty crimes (those that do not fall within any of the above categories, such as stealing less than $10 worth of merchandise in a store, smoking pot, etc.).

According to their analysis of those admitted into these three prisons during a recent year just over half (52.6%) had committed petty crimes, while 29% committed moderate crimes, 13% committed serious crimes, and just under 5% committed very serious crimes. From extensive interviews and close examination of the records of these prisoners, Austin and Irwin discovered that relatively few of them fit the stereotype of the “hardened felon” depicted by the news media and by politicians.  Yet because of various “habitual offender laws” (e.g., “Three strikes”) many minor and moderate offenders received sentences usually reserved for the extremely serious offenders. 

            Austin and Irwin site other studies that have arrived at the same results, such as one conducted by the New York Department of Corrections that reported on the kinds of prisoners serving long, mandatory prison sentences for drug crimes.  Like the cases noted by Austin and Irwin, this report found excessively long sentences for relatively minor crimes because of “mandatory sentencing” (e.g., a sale of 2.9 ounces of heroin resulted in a sentence of “15 to life”).  Similarly, a study by the Rand Corporation arrived at almost identical conclusions.  Finally, a study of Florida’s “habitual sentencing” law arrived at similar conclusions, but also noted that blacks were about twice as likely to have received a habitual offender sentence, regardless of the offense and prior record.

The United States is without peer when it comes to the punishment it metes out.  The only other countries that come close in severity are Third World dictatorships! A recent study found that out of the approximately 1.3 million people in American prisons, about 275,000 were serving either “natural life” sentences, life with the possibility of parole or a sentence of 20 years or more; most of these stem from “one-size-fits-all legislation.”

Another one of my pet peeves was expressed by a former prisoner who told me once that the criminal justice system punishes honor and rewards dishonor, or words to that effect. The criminal justice system, especially the police, thrives on getting people to “rat” on others, to violate a “code of honor.”  Undercover drug enforcement is especially guilty of this, where cops pose as drug dealers and “set up” otherwise relatively innocent people to buy drugs and then turn around and arrest them.  I call them “relatively innocent” because most of those arrested have done something somewhere illegally, but they live “on the margins” of social life and are often ignorant or desperate or both.  The cops rarely get the smart ones, especially the big time drug traffickers.   

Prosecutors are all too often interested only in having a high “batting average” - a high rate of convictions.  And they do this anyway they can, but especially by inducing guilty pleas by making “deals” with defense attorneys, who are only too willing to cooperate since they want “clear the docket” of their heavy caseloads.  Anyone who challenges this cozy relationship between these two actors of the court system gets punished severely.  There are many people serving long sentences who, acting according to a code we all supposedly learned, are willing to “take the rap” rather than be a “rat” on their friends.  Demanding a trial (which ironically is our constitutional right) results in more severe punishment.  Prosecutors don't look favorably upon those who challenge their system, even though they are acting honorably.   

Lost in this twisted world are concerns for crime victims and public safety, for the name of the game is achieving power and then maintaining it once it has been achieved.  Politicians couldn’t care less about public safety, except their own safety in getting re-elected.  They don't want to sound “soft” on crime, so instead they make policies that are basically stupid.  Three strikes, mandatory sentencing, truth in sentencing, etc. have done nothing to reduce crime and instead have helped thousands of corrupt politicians get elected and have filled the prisons to over-capacity, all of which are costing taxpayers billions of dollars each year.   A case in point is this simple fact: in the early 1970s the overall crime rate was about the same as today, while during that time period the incarceration rate went up by about 500% and criminal justice expenditures went up by an astounding 1500%!  It has been literally the case that criminal justice “empires” have been built and a “criminal justice industrial complex” has risen to the benefit of an “iron triangle” of politicians, criminal justice officials and big business, just as it happened with the “military industrial complex.”  Both crime victims and their offenders have become sort of “cannon fodder” for the huge profits being made.

            An informed public, with the ability to look critically at what is going on, is the only answer to this horrible problem.  Instead of “getting tough” on crime, we need to someday “get smart.”