Our criminal justice system is based on a curious set of rules and
a double moral standard. The state's burden of proving guilt is pitted against
the accused's right to thwart such proof. The state claims to be the victim
because its law has been broken, but if the accused lacks the resources of O.
J. Simpson or Paris Hilton to defend himself, he feels victimized by the state,
and too often is.
What about repairing the harm done to the other victim, the person who was robbed or raped? The prosecutor's job is to win the case and punish the accused, not make the victim whole. This means the victim's role is reduced to that of a mere witness for the state in its battle to win by making the accused lose. For the accused to win, defense counsel must try to make the victim appear as untruthful as possible. Caught in the middle of the attorneys' battle to win and make their adversary lose, the victim often feels revictimized. If a plea agreement makes a trial unnecessary, this victim becomes irrelevant.
Is this a good system for getting at the truth? About 130 death sentences have been commuted since 1973 because evidence later proved these people were innocent. Is the prosecutor's win more important than the truth about the guilt of the defendant? In many of these 130 cases, the answer was yes. Sam Millsap, a former Texas prosecutor, now speaks openly of having sent an innocent man to death by presenting weak evidence that later proved to be false. Does this deserve to be called justice?
There is a better way, a form of justice that delivers fairness, mends broken relationships, and helps us get at the root causes of crime. There is, in fact, justice beyond vengeance.
"Get tough on crime" has been a common mantra in the U.S. since the 1970's and, indeed, we have. We now have over 2.3 million people locked up on any given day, approximately the same number as China and Russia combined. More than one in every one hundred adults in America is presently in jail or prison. Nationally, our prison industrial complex is a $60 billion-a-year industry.
This incarceration binge is destroying the fabric of our communities, some more than others. One in every 15 African American men lives in a prison or jail cell. If you are an African American male between the ages of 20 and 34, the ratio is one in nine. Hispanics are disproportionately affected as well. As of 2006, one in 36 Hispanic adults was behind bars.
Few stop to think that, 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. This choice between hiring teachers and locking people up hits our young people hard. Our tax dollars pay to incarcerate one in every 53 of Americans in their twenties. As more tax dollars are used for incarceration instead of supporting colleges and universities, tuition is rising so fast, fewer and fewer young people can afford to attend. Some officials even demand zero tolerance to deal with behavioral problems in our grade schools and high schools, giving our children an early taste of how readily our culture uses punishment to secure compliance.
As life sentences and sentences that span decades are now common, the elderly experience it, as well. Although criminal activity generally decreases dramatically with age, between 1992 and 2001, the number of state and federal inmates aged fifty or older almost doubled. The cost of keeping an older prisoner locked up is around $70,000 a year or more--not one, but two, teacher's salaries.
Before ever being judged guilty, many people held in jail (not prison) are awaiting trial. Those who can afford to post bail are generally released pending trial. Those who can't post bail remain locked up in what amounts to a modern debtor's prison. In 2006, more than 60 percent of those who spent time in jail were not convicted, a number that continues to grow.
In this punitive world, prisons have taken up the slack for the state and county hospitals that released millions of mental patients between the 1950s and 1980s. Because the majority of people behind bars in the United States have some type of mental illness, our prisons and jails are our "new asylums."
Not everyone in the system is locked up for a long time. When you add up all the people who go in and out, about ten million cycle through our jails and prisons every year. They bring the lessons they've learned, the diseases they've contracted, and the trauma they've experienced back to our communities. We have become a nation of jailers, not only of petty offenders and serious criminals, but also of ourselves.
It's true, there are periods of escalating crime, and assuring the safety of our communities requires that some offenders--murderers, serial killers, psychopaths--be kept behind bars for long periods of time and perhaps for life. We have lost sight of the fact that these types of offenders are the exception.
Two Models of Justice