Rachel Myers, ACLU

We believe that America’s criminal justice system should keep communities safe, treat people fairly, and use fiscal resources wisely. But more Americans are deprived of their liberty than ever before – unfairly and unnecessarily, with no benefit to public safety. It’s a problem that affects people of color most of all. In the latest issue of The New Yorker, Adam Gopnik tackles the subject of mass incarceration in America, and takes on questions many of us in the criminal justice world as every day: how did we get here, and where do we go now?

As Gopnik explains:

More than half of all black men without a high-school diploma go to prison at some point in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today — perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal justice system — in prison, on probation, or on parole — than were in slavery then. Over all, there are now more people under ‘correctional supervision’ in America — more than six million — than were in the Gulag Archipelago under Stalin at its height.

That’s right: If all the people under “correctional supervision” were a city, it would be the second largest city in the U.S.

As more people find themselves locked up, more people face the culture of violence and inhumanity that persists in many of America’s prisons. Many prisoners are kept in solitary confinement — “at least fifty thousand men — a full house at Yankee Stadium,” says Gopnik — where they are confined to a bathroom-sized cell for 23 hours a day with little or no human contact. It is literally enough to make the sane go crazy. In our own work to end the overuse of solitary, we argue that the practice is not only a waste of taxpayer dollars, but threatens public safety and is fundamentally inhumane. A U.N. expert has called solitary confinement torture. The Washington Post has called for its use only as a last resort.

Those not in solitary endure brutal conditions as well, including the constant threat of guard brutality and rape.

How did we get here? Gopnik’s piece explores two theories. Those who subscribe to the “Northern” theory point to the American justice system’s emphasis on process and procedure over principles, arguing that we tend to accept brutal conditions when we think of them as regular and systematic, imposed after a measure of due process has landed someone in prison. In other words, “The more professionalized and procedural a system is, the more insulated we become from its real effects on real people.” The “Southern” theory holds that prisons are a modern-day extension of plantations; that, as legal scholar Michelle Alexander has argued, mass imprisonment is the “new Jim Crow.” Blacks face police harassment as youths, are incarcerated at a far greater rate than whites, and are released often stripped of their right to vote — a cycle of legal discrimination and disempowerment.

These schools of thought converge to conclude, most basically, that there are too many people in prison and for all the wrong reasons. Overcrowded prisons, in turn, only worsen the conditions of confinement, as we have seen in California where the Supreme Court recently ordered a reduction in prisoner population.

Inflated prison populations have also fueled the for-profit prison industry. As a recent ACLU report shows, mass incarceration provides a gigantic windfall for this special interest group, which includes businesses like the Corrections Corporation of America (CCA) — even as current incarceration levels harm the country as a whole. Says Gopnik, “the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible.” By CCA’s own admission, anything that would decrease the prison population would be bad for business. In a 2005 annual report, the company wrote:

Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities… The demand for our facilities and services could be adversely affected by the relocation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.

Private prison corporations, then, have a self-preservation motive to push for an increase in incarceration. And there are others, too, who argue for the continued detention of more and more Americans, pointing to a decline in crime over the same period that incarceration skyrocketed. But there is little proof of a direct causation, and we must not simply accept that overincarceration cured crime. In fact, Gopnik’s piece argues and we agree, this culture of mass incarceration has actually had little effect on crime levels. A better explanation might be that there is no one reason for the decline but rather several smaller pieces of the puzzle that have slowly chipped away at the problem; that there are more effective policies that are also more fair and cost less. As we wrote in another recent report, many states have already begun to show that smart reform is possible, introducing policies that reduce their dependence on incarceration while protecting communities.

And if that’s true — if, indeed, mass incarceration plays a small role in reducing crime — then, Gopnik concludes, “very few people, rich or poor, should be in prison for nonviolent crime.”

Like Gopnik, we believe it’s time for a change. It’s time to improve our criminal justice system, by reducing the number of people who needlessly enter prison in the first place, by shrinking the existing prison population by allowing prisoners who have proven they are ready to re-enter society the opportunity to transition out of confinement, and by investing in alternative solutions that are more effective than lengthy sentences.

We can and must be both safe and fair.

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