The course of our criminal justice system (CJS) is long and meandering with several under-appreciated currents that have doomed recent reform efforts.
CRIMINAL JUSTICE IN SIX BOOKS
Given its size and complexity, I’ve attempted to frame the problem by referencing SIX BOOKS that illuminate different facets of our CJS — Updated in December 2020.
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The course of our criminal justice system (CJS) is long and meandering with several under-appreciated currents that have doomed recent reform efforts. Given its size and complexity, I’ve attempted to frame the problem by referencing SIX BOOKS that illuminate different facets of our CJS.
The Big Data revolution has transformed the social sciences just as the microscope and the telescope transformed the natural sciences. Big Data now allows for the scaling of the behavioral sciences from the individual to the crowd and from the realm of pseudoscience theory into causal application.
The scope of this societal problem is set out by the Prison Policy Initiative.
The CJS exists to promote public safety by imposing sanctions on criminal conduct. The most common and expensive sanction is incarceration. Incarceration plays an essential role in incapacitating violent criminals and reducing crime. However, in economic terms, the CJS should employ effective mechanisms to ensure the benefits exceed the costs. Recent studies estimate that the legal and social stigmatization of ex-convicts increases the likelihood of re-offending by four to seven percent for each year of incarceration. Longer sentences, according to the experts, actually fosters future crime and costs more than it benefits the United States.
Critics have a well-worn narrative of our current punitive CJS and the costly mass incarceration it generates:
● Mass incarceration was ignited by the war on drugs.
● It is self-perpetuating by draconian sentencing enhancements and a ‘prison-industrial complex’ that puts profit before humane treatment and rehabilitation.
● Racially disparate impacts evidence intentional causation, not just correlation.
America cannot rely upon this skewed diagnosis if it is to rationalize its CJS while achieving the policy goals of public safety and social justice.
Still, this one statistic should give pause to decarceration efforts. According to the US Department of Justice, African Americans accounted for 52.5% of all homicide offenders from 1980 to 2008, with Whites 45.3% and “Other” 2.2%. The offending rate for African Americans was almost eight times higher than Whites, and the victim rate six times higher. Most homicides were intraracial, with 84% of White victims killed by Whites and 93% of African American victims killed by African Americans.
Having experienced the criminal justice system from the inside-out, I find the following SIX BOOKS provide a thorough framing of how we arrived at our current state of mass incarceration and hints as to how to rationalize it.
- 100-year arc of the war on drugs: Chasing the Scream by Johann Kari (2015) — Ninety percent of illegal drug uses never fall prey to the CJS; unless they are Black.
2. 50-year arc of the war on drugs: Locking Up Our Own by James Forman Jr. (2017) — A former D.C. public defender, Forman’s “Locking Up Our Own” enriches our understanding of why our society became so punitive and offers important lessons about the future of race and the criminal justice system in this country.
3. 40-year arc on violent crime masked d by the war on drugs: Ghettoside: Investigating a Homicide Epidemic by Jill Leovy (2014) — Ghettoside explains the history of homicide in the United States and why particularly black communities struggle with high murder rates, as well as what can and must be done to change the status quo for the better.
4. 30-year arc on unintended consequences of the war on drugs: The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander (2010) — A book to educate social commentators, policymakers, and politicians about a glaring wrong that we have been living with that we also somehow don’t know how to face.
5. Big Data-driven analysis of our CJS: Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform by John Pfaff (2017) — By using the new tools of data-driven research, Pfaff dispels myths frequently trotted out to explain the unprecedented 40-year boom in U.S. incarceration. Pfaff instead identifies prosecutorial discretion's role in enlarging the prison population.
6. Unexamined treatments include a failing cultural narrative: The Cultural Matrix: Understanding Black Youth by Orlando Patterson & Ethan Fosse (2014) — Sociologists who study black America have long been dominated by structuralists, who emphasize the role of institutional racism and economic circumstances. Patterson, emphasizes the importance of self-perpetuating norms and behaviors, is a culturalist.
While many people believe ethnicity drives conflict and mass incarceration, when controlled for the strength of institutions, any link between ethnic diversity and conflict disappears (according to William Easterly). We need new and better institutions in our low-trust communities where calls of racism mask the failure of the existing institutions. These institutions include the cultural narratives of our at-risk communities.
What do I mean by weak institutions and low-trust communities?
Read The Divide: American Injustice in the Age of the Wealth Gap by Matt Taibbi. In the most insightful book I’ve found on the topic, Taibbi illustrates the “divide” by looking at the relationship between the criminalization of poverty and the undocumented (as poor people are increasingly harassed, arrested and imprisoned for minor crimes in the U.S.) even as crime rates are near multi-decade lows, resulting in a prison population that “is now the biggest in the history of human civilization.” At the same time, white-collar criminals who continue to defraud the financial system avoid punishment, allowing them to accumulate even more wealth without fear of future prosecution. This growing divide, Taibbi argues, means money has now redefined the meaning of justice, distorted the very notion of American citizenship and challenging the founding ideals of its nation.
FUTURE OPPORTUNITIES
The Big Data revolution has transformed the social sciences just as the microscope and the telescope transformed the natural sciences. Big Data now allows for the scaling of the behavioral sciences from the individual to the crowd and from the realm of pseudoscience theory into causal application.
If the United States will apply evidence-based public health metrics to the CJS, it would allow for its reconfiguration. By clearing the way, we many implement restorative justice mechanisms and achieve a corresponding reduction in the over-reliance on personal retributive justice sanctions (i.e., mass incarceration). With these new Big Data tools, institutions can acknowledge and treat criminal behavior as a social disease, not just an individual’s crime. Such a characterization would reduce the stigma/shame/ostracization of millions of both perpetrators and victims and allow true healing to take place.
The uniquely American community known as African Americans must be central to any reform effort. The current generation of reform activists are stymied by a fixation now hardened into orthodoxy to expose or acknowledge what America has/is doing to this community (e.g., slavery, Jim Crow laws, segregation, discrimination, institutional racism, socio-economic marginalization, achievement gap, etc.) via structural causation at the cost of ignoring the role of self-perpetuating norms and behaviors (i.e., cultural causation) upon this distressed community.
This fixation on a racist orthodoxy blinds America to cultural causation and potential treatments that are available once we acknowledge this social dynamic. Still, the drug war corrupted law enforcement by generating an adversarial war mentality, transforming local police into drug-user catchers and diverting energy, resources, and attention away from violent crime. This does not negate the structural consequences of a CJS that exacerbates racial inequality; however, to address the needs of both public safety and justice curbing violent crime must be central to any effort to end mass incarceration.
America faces a new battle against an unprecedented wave of heroin and opioid abuse. More than 107,000 Americans died of overdoses in 2021. There has been double-digit growth in overdose deaths for years (30% in 2019, 50% in 2020 & 15% in 2021). This number exceeds homicides by some four times and car accident deaths by fifty percent. Curbing this epidemic and its devastating consequences requires a comprehensive pragmatic approach grounded in public health, not just the ‘big stick’ of criminalization, stigma, and shame. We cannot use current criminal justice policies and expect a different outcome.
If you are curious about prison life and the real work that goes on there, read The San Quentin News or listen to Ear Hustle.
Free of the twin distractions of mobility and community, I spent my time pondering deep concepts — one was survival on the Main Line in an infamously famous and brutal prison, San Quentin.
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