How Did Our Criminal Law System Become So Broken?

The state of our criminal law system is shocking. More than one in every one hundred adults in the U.S. is in jail or prison. We now have over 2.3 million people locked up on any given day, approximately the same number as China and Russia combined. With 5 percent of the world's population, the United States now has more than 25 percent of the world's prisoners.

In this land of liberty, our tax dollars pay to incarcerate one in every fifty-three of our young people in their twenties, at enormous cost to our citizens and loss to society. When the costs are added up, every year an inmate spends in jail or prison costs us about the equivalent of one teacher's salary. That means a lot of teachers' salaries are being spent not on teaching kids but on locking up those kids' dads, moms, sisters, and brothers.

This incarceration binge is destroying the fabric of our communities, some more than others. One in every fifteen African American men lives in a prison or jail cell. If you are an African American male between the ages of twenty and thirty-four, the ratio is one in nine.

One is compelled to ask, how is it that a nation like the United States, known for its commitment to liberty and justice for all, became embedded in an incarceration binge of such magnitude? To find the answer, we need only step back in time to when the pollsters and politicians became bedfellows.

From 1950 to 1960, the number of televisions in U.S. homes grew from nineteen million to forty-seven million. As television took over as our main entertainment and source of information, the media, politicians, and pollsters became more savvy about how to use feelings, images, and thirty-second sound bites to shape how Americans vote. They discovered that our fear of crime is easily manipulated and can be used to mobilize voters, even if it means the collateral damage must be kept under wraps and it does little to change the crime rate.

The late 1960s and early 1970s were the turning point. In 1970, there were only 196,429 men and women in state and federal prisons. Just two years before, the assassination of Martin Luther King Jr. had sparked race riots across the country.

The 1968 presidential campaign between Richard Nixon and Hubert Humphrey was the first to market the presidential candidates as if they were consumer products. What better ribbon to tie that package together than our fear of crime? It was a time of turbulence for the nation, and we were offered punishment and revenge as the answer.

Politicians began to see thirty-second sound bites about crime as essential campaign tools. Within a decade, the incarceration rate nationwide began to surge upward at an unprecedented rate. They crafted snappy messages, like "the war on drugs," "abolish parole," "truth in sentencing," "three strikes, you're out," "mandatory minimums," "zero tolerance," and "try juveniles as adults." These clever sound bites were translated into more punitive laws that have deeply impacted the system.

For nearly forty years, to get themselves elected, U.S. politicians have used the get-tough punitive approach to crime to convert complex problems into simple slogans that play on our fear of crime. They didn't tell us that their get tough on crime policies had little effect on the rate of violent crime, even though by the 1990s the evidence was clear. They were primarily locking up nonviolent offenders.

Between 1980 and 1993, nonviolent offenders accounted for eighty-four percent of the growth in state and federal prison populations. Nonetheless, once elected, the politicians continued to pass laws and adopted policies that take the punitive form of justice to greater and greater extremes. Getting tough on crime has become a crusade, used even when crime rates are falling.

It is now standard political practice to label candidates who object to this wasteful path and propose better answers as being soft on crime, which, in an environment of vengeance at any cost, makes them a target. While tough on crime is an easy sell, the assertion that this excessively punitive approach is good public policy is refuted by a mound of evidence. A stream of reports, studies, books, and documentaries warned of an impending crisis, long before it arrived.

The politicians who do not consciously realize they are part of a larger, destructive pattern are those who do not look at the big picture.

Based on the author's book, Beyond Vengeance, Beyond Duality: A Call for a Compassionate Revolution.

Posted on GenuineJustice.com on 8-24-10.