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Reforming the Incarceration Nation
Can we balance social justice with legal justice?

by Norm R. Allen, Jr.

The following article is from Free Inquiry magazine, Volume 21, Number 3.

About two million people are currently incarcerated in the United States, a fact from which various observers have drawn widely varied inferences. Some believe that, because a disproportionately high number of prisoners are poor African Americans and Latinos, the "prison/industrial complex" is part of a racist conspiracy to oppress non-Whites and to further enrich the wealthy. Others, unconcerned about the huge prison population, simply accept that large numbers of criminals require large numbers of prisons to contain them-regardless of the criminals' background or color. People whose main concern is social justice often have little interest in-and may even oppose-efforts to bring about strictly legal justice. Meanwhile those who focus primarily on legal justice are often unconcerned with-and, in some cases, opposed to-social justice.

But why must legal justice and social justice be mutually exclusive? Why should people's politics determine the kinds of justice they will support or oppose? It is only fair-indeed, just-that people strive for a single standard of justice whenever the subject of justice arises.

Incarceration and Race

A principal consequence of America's War on Drugs has been a sharp increase in the U.S. prison population. During the Reagan and Bush administrations of the 1980s, Congress established harsher penalties for drug dealers and gave broader powers to law enforcement. The government spent billions to combat the drug scourge. In 1986, Congress mandated significantly longer prison sentences for people convicted of possessing crack cocaine than for those possessing cocaine in the powdered form. Because most crack users were Black, many within-and outside-the African American community believed the laws were part of a racist conspiracy to imprison Blacks. In truth, however, many Blacks supported these laws-including the Congressional Black Caucus. Black neighborhoods were being terrorized in violent crack wars nationwide. Lawmakers from all backgrounds felt extreme measures were needed to save Black neighborhoods.

The conclusion seems inescapable: Blacks and Whites have identified Blacks as the main targets of the War on Drugs. According to a report issued by Human Rights Watch, a nongovernmental organization that monitors human rights abuses worldwide, Blacks account for 62.7 percent of all drug offenders sent to state prison. Whites account for just 36.7 percent. Yet according to the U.S. Department of Health and Human Services' Substance Abuse and Mental Health Services Administration (SAMHSA), there are five times as many White drug users as Black. Another SAMHSA survey found that drug users most often buy drugs from dealers of their own racial or ethnic group. Between 1991 and 1993, SAMHSA researchers found that 16 percent of admitted drug dealers were Black and 82 percent were White-a ratio radically at odds with the racial makeup of the population imprisoned on drug offenses. Clearly, the War on Drugs is largely a war on Blacks.

Social justice advocates argue that it is unfair to imprison vast numbers of poor, Black criminals, in part because such offenders cannot afford criminal lawyers capable of mounting a competent defense. Many liberals and radicals further maintain that poor Blacks who break the law are victims of an unjust, racist society that leaves them few viable options. On this view offenders from highly disadvantaged backgrounds should be viewed more as victims than as criminals.

But what does it mean for this view when the supposed victims become violent criminal victimizers? Are their victims entitled to legal justice? Or should society exonerate poor criminals in the name of social justice without regard to victims' plight? Should anyone other than the victim or the victim's loved ones have the right to forgive the victimizer?

To social justice advocates, rehabilitation, not retribution, should be the goal of the justice system. But these, too, need not be mutually exclusive alternatives. It is certainly important to guard against cruel and unusual punishment. To dispense with punishment altogether, however, would be an unwitting call for vigilante or "street" justice. Every society must give its citizens hope that they can turn to their legal system for justice.

The Causes of Crime

What are the root causes of crime? On the conservative Christian view, Satan tempts fallible human beings to commit evil acts and only God can save them. Therefore spirituality is the answer to the crime problem. This simplistic view fails, largely because it shifts the ultimate responsibility for crime from the individual and society to beings for whom there is no clear evidence. If God created Satan or allows Satan to exist, God is ultimately responsible for crime, though Satan is set up as the fall guy. (And if God is responsible for crime, what can any human justice system hope to do about it?)

In reality, however, the causes of crime are very complex and multidimensional. A partial list of the factors leading to crime would have to include all of the following: poverty, lack of opportunity, desperation, substance abuse, fear, greed, hatred, ambition, selfishness, loneliness, peer pressure, uncontrolled rage, lack of love, lack of ethical guidance, poor parenting skills, family dysfunction, child abuse, violence in the home, a crassly materialistic culture, the glamorization of violence in the popular culture, and easy access to guns.

Is Opportunity the Antidote?

Social justice advocates believe the best way to reduce crime is to bring about social and economic justice, primarily by reducing poverty and increasing opportunity. One way to reduce poverty is to create more jobs paying good wages. Yet most high-paying jobs supposedly require college degrees, which many poor Americans are unable to attain. Traditionally, only a minority of citizens throughout society has earned degrees. Moreover, if college education is not free, as it is in some nations, the college-educated minority may continue to shrink. This could cause the crime rate to rise.

Access to the workplace is an additional complication. Many more-desirable jobs are created in the suburbs rather than the inner cities. People from the inner cities often lack transportation. Making matters worse, suburban Whites frequently oppose public transport route expansions that would give inner-city non-Whites improved access to the suburbs.

Indeed, getting to and from work can be downright deadly for the inner-city poor. In 1995, Cynthia Wiggins, a Black teenage-mother from Buffalo, New York, was struck by a truck as she tried to cross a busy intersection. She later died of her injuries. Wiggins was trying to get to work at the Walden Galleria, a mall located in Cheektowaga, a Buffalo suburb. At the time, buses from the city were not allowed on mall property. After Wiggins's death, mall owners permitted buses to enter. (Since then, more blacks have been hired at the mall). Eventually, famed attorney Johnnie Cochran helped to win a multimillion-dollar wrongful death suit in favor of Wiggins's family.

The implications of all this for ex-convicts are stark. When reentering society, their first priority will be finding work. But employers often refuse to hire job applicants with criminal records. Yet, if ex-convicts cannot find employment, they are far more likely to return to crime. Hardliners may argue that former convicts should have thought about the consequences of their actions before they committed the criminal acts that caused their imprisonment. But if ex-cons cannot find gainful employment, society will continue to suffer under the burdens of spiraling crime and the taxes to pay for recidivists' re-imprisonment.

Childhood's End?

Observers from across the ideological spectrum are exasperated by heinous crimes committed by youthful offenders. Increasingly, children charged with particularly violent and horrific crimes find themselves being tried as adults. The Justice Department reports that some 3,500 juveniles already serve time in adult prisons. Moreover, the United States leads the world in putting juveniles to death, a practice outlawed in nearly every other nation.

In forty-seven states, lawmakers have made it easier to convict children as adults. For example, Florida prosecutors may try children of any age as adults when charged with crimes punishable by life imprisonment or death. They may also try children as young as fourteen as adults for arson, robbery, kidnapping, armed burglary, aggravated stalking, and other crimes. Florida resident fourteen-year-old Lionel Tate was sentenced to life in prison in the violent death of six-year-old Tiffany Eunick. The defense argued that the 170-pound boy was merely imitating the moves of professional wrestlers, and that he killed the 48-pound girl by accident. Tiffany, however, had a fractured skull, a lacerated liver, and over thirty additional injuries. Tate-who was twelve at the time of the death-was convicted of first-degree murder. Judge Joel Lazarus denied a request to reduce the sentence to second-degree murder or manslaughter. He said that the beating was "cold, callous, and indescribably cruel."

Tate is one of the youngest defendants in U.S. history to receive a life sentence. The prosecutor said that the sentence was so extreme that he would support clemency. Defense attorney Jim Lewis has appealed and asked Florida Governor Jeb Bush to lower the sentence. As of this writing, Bush is considering clemency. Several famous attorneys, including Cochran, have traveled to Florida to press for reduction in the boy's sentence.

Ironically, a child convicted as an adult might get less time than if convicted as a juvenile. In Ohio, Oregon, Illinois, and Minnesota, juveniles convicted as adults for some nonviolent crimes receive shorter sentences than those convicted of the same crimes as juveniles.

Everyone must be held accountable for his or her actions, regardless of age. And, despite what many experts say to the contrary, at least some youthful offenders know exactly what they are doing. But every case is different. Some states have found creative, effective ways to combine juvenile and adult sentencing practices. A child might be convicted as an adult, yet serve time in a facility for juveniles. If not successfully rehabilitated by the time of his or her majority, only then is the offender transferred to the adult penal facility.

Faith Is Not Enough

Religion does not always have humane answers to modern problems. Though some religionists advocate progressive approaches to crime and punishment, in doing so they must disregard their own sacred texts. Typically scripture offers harshly primitive views on legal and social justice. The first-or Old-Testament, for example, endorses a tit-for-tat, "eye-for-an-eye" brand of justice. Moreover, the biblical death penalty-stoning-is both cruel and unusual by contemporary standards of justice.

The Bible was written at a time when society had no conception of universal human rights. We see this clearly when we read, for example, that if a man rapes a virgin he must buy her from her father for fifty shekels of silver and remain married to her until one of them dies (Deuteronomy 22:28-29). Leaders must stone people to death if they work on the Sabbath (Numbers 15:32-36). Innocent people are to be put to death because of the "sins" of their parents (2 Samuel 12:14). The Bible also commands the death penalty for those who embrace different religions or practice astrology. Under Old Testament morality, disobedient children do not have to worry about serving life in prison, but their parents may have them stoned to death!

These notions of justice are not always relics of the past. In some nations such as Iran, law enforcement officials still stone offenders to death. In Saudi Arabia, those convicted of theft may have their hands chopped off. These nations might have low crime rates, but the price paid in fear and inhumanity is grotesque. At the same time, those who would work for justice worldwide must guard against both cultural chauvinism and cultural relativism.

Felons and Disenfranchisement

The U.S. prison system has numerous failings. One of its most reprehensible is the denial of the right to vote to millions of Americans. About four million people lack the right to vote because of felony convictions. Ex-felons may be disenfranchised even for minor offenses, or even if they had never been jailed or imprisoned. Many are disenfranchised for life-even after they have paid their debts to society.

The Sentencing Project is a nonprofit organization that fights for sentencing reform and engages in scholarly research in the area of criminal justice. With Human Rights Watch, the group published a report titled "Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States." The report-published in October 1998-pointed out many startling inequities, including:

  • One and one-quarter million persons disenfranchised for a felony conviction are ex-offenders who have completed their criminal sentence. Another 1.4 million of the disenfranchised are on probation or parole. (Only 27 percent of the disenfranchised are in prison.)
  • Thirty-six percent of the disenfranchised are Black men.
  • Ten states disenfranchise more than one in five adult Black men; in seven of these states, one in four Black men are permanently disenfranchised.
  • Given current rates of incarceration, three in ten of the next generation of Black men will be disenfranchised at some point in their lifetime. In states with the most restrictive voting laws, 40 percent of African American men are likely to be permanently disenfranchised.
  • Many other countries let not only felons, but prisoners, vote-including France, Peru, Japan, Kenya, Israel, Norway, Sweden, Poland, Denmark, Zimbabwe, Romania, and the Czech republic.

There is no good reason why prisoners should be forbidden to vote, unless they have been convicted of election fraud or a similar offense. Moreover, it is both irrational and unconscionable to deprive people of the right to vote after they have served their time. What better way to re-integrate ex-convicts into society than to grant them the internationally recognized right to vote?

A Plea for Justice Unskewed

At the same time, critics who complain about lax treatment of criminals are not always in the wrong. Too often criminals escape legal justice and rehabilitation by means of technicalities, plea bargains, light sentences, ineffective "anger management" programs, errors by incompetent jurors, and the like. The guilty are then free to commit other crimes and to victimize more innocent people. Law-abiding citizens richly deserve the right to live in safety, a right that must never be jeopardized or abandoned in the name of social justice. The legitimate rights of victims must never be trampled upon in misguided efforts to rationalize the crimes of the guilty. Just as there is a need for prison reform, I would argue that there is a corresponding need to reform and punish the guilty.

Social justice activists generally oppose harsh prison sentences. But they will work doggedly to send certain alleged offenders to prison. For example, a civil rights worker might fight to imprison a cop charged with police brutality, or a person or group charged with a hate crime. Yet this same civil rights advocate might work to defend a poor inner-city male caught in the act of murder. Similarly, a radical feminist might work to free women convicted of violent crimes, yet work to imprison a man accused of rape or sexual assault. In these cases, social justice advocates often attempt to use the legal system to make a political point, rather than to seek true legal justice. In their eyes, "justice" simply means sending an accused member of a particular group to prison-regardless of whether the accused is innocent or guilty. An excellent example of this phenomenon was the Tawana Brawley rape hoax in New York in the 1980s. Despite all evidence to the contrary, civil rights advocates insisted that the teenager had been raped, and destroyed the reputations of innocent people in the process.

When people strive to realize a single standard of justice in every situation, such blunders are less likely. "No justice, no peace" is not mere politically loaded rhetoric. It represents a serious effort to be fair and to arrive at the truth.

A Hopeless Proposal

Angela Davis, Minister Louis Farrakhan of the Nation of Islam (NOI), and others have suggested that Black prisoners be summarily released from the U.S. prison system. Farrakhan has suggested that he could take large numbers under his wing and ensure their rehabilitation. This unrealistic and unworkable proposal strains credulity: NOI has a relatively small number of devotees (although it's said that no one knows the exact number, current estimates range from five to twenty thousand), nowhere near enough to assist the whole of the Black prison population. Further, the vast majority of American Blacks are non-Muslim. Finally, government has no business remanding ex-cons into an authoritarian, theocratic, patriarchal, and reactionary religious organization that influences anti-democratic leaders worldwide.

However, there must be ways in which the prison population can at least be greatly reduced. There is a clear correlation between unemployment and crime: the crime rate for employed Blacks is only slightly higher than that for employed whites. Yet the number of Black men attending college steadily declines. About half as many Black men attend college as Black women. Meanwhile, the prison/industrial complex continues to grow by leaps and bounds. Society would serve social justice and realize enlightened self-interest by making education, and consequently gainful employment, more equitably available to all citizens.

Crime Does Pay—For Some

Before this can happen, American society must come to terms with businesses that benefit from the prison/industrial complex and hope to preserve the status quo. Although businesses such as prison operating companies do not cause crime, it is at least problematic when correction systems form dubious partnerships with private enterprise. At the least, there is the appearance of impropriety that undermines faith in institutions when businesses thrive from and become dependent upon the incarceration of millions of citizens. It suggests that the government has decided to give up on serious efforts at crime prevention and rehabilitation, and settle for relying on the private sector to warehouse criminals to the end of their days. That is not the message that government should send to the citizenry. The government, not private industry, should run the nation's prisons.

An Issue of Life and Death

But should the government be responsible for putting criminals to death? Seventy countries worldwide outlaw capital punishment. So do twelve U.S. states and the District of Columbia. Across virtually the entire democratic world, the United States is regarded as incredibly reactionary where the death penalty is concerned. In February, Felix Rohatyn, U.S. ambassador to France from 1997 to 2000, wrote in the Washington Post: "There is a strong belief among our European allies that [the death penalty] has no place in a civilized society."

Capital punishment is illegal under European and Canadian law. European and Canadian authorities will not return alleged criminals to nations where they could face the death penalty. For this reason, convicted Pennsylvania killer Ira Einhorn remains a free man in France, four years after his capture. Likewise, James C. Kopp-who stands accused of killing abortion provider Barnett A. Slepian-probably will not be extradited by French authorities unless the death penalty is waived. 

Near the time of Kopp's arrest, French President Jacques Chirac addressed the U.N. Human Rights Commission in Geneva and supported "the universal abolition of the death penalty, with a first step being a general moratorium." American lawyers and lawmakers have made similar calls.

There might be at least one good reason to administer the death penalty. If an unrepentant first-degree murderer kills again while in prison, one could persuasively argue that prison was not an effective deterrent for that murderer. Moreover, he might escape and kill again. It would not be right to give him more chances to kill. Generally, however, the death penalty is unnecessary. Killing the murderer will never bring closure to the victim's family. Indeed, nothing can. They will be in mourning as long as they are of sound mind. Life in prison with no chance of parole, however, is a very harsh, though fair and humane, punishment.

It is time to take a comprehensive look at proposed solutions to crime and poverty. Social justice, economic justice, and legal justice are all important. It is time to develop what Robert Green Ingersoll called "a caring rationalism" in efforts to strive for true justice for every citizen in all the arenas of life. 

Conflict resolution programs, early-child intervention programs, crime prevention programs, mentoring programs, stress management programs, moral education, parenting classes, parental support programs, drug prevention and rehabilitation programs, youth summits, and a host of other solutions have already demonstrated their effectiveness in reducing crime. Despite sensationalized media accounts of violence, juvenile arrests in most categories of violent crime have fallen in recent years. Moreover, psychologists, scholars, and law enforcement officials agree in predicting an even sharper crime rate decrease in the near future.

Positive and creative thinking wedded to activism can continue to make all the difference in the world. The role of the death penalty-if any-should be vanishingly small.

Norm R. Allen, Jr. is the Executive Director of African Americans For Humanism (AAH).

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