Tomgram: Rebecca Gordon, Arresting Our Way to "Justice"
By Rebecca Gordon
Posted on September 25, 2016, Printed on September 25, 2016
http://www.tomdispatch.com/blog/176190/ ;
The figures boggle the mind. Approximately 11 million Americans cycle
through our jails and prisons each year (including a vast "pre-trial
population" of those arrested and not convicted and those who simply can't
make bail). At any moment, according to the Prison Policy Initiative, there
are more than 2.3 million people in our "1,719 state prisons, 102 federal
prisons, 942 juvenile correctional facilities, 3,283 local jails, and 79
Indian Country jails as well as in military prisons, immigration detention
facilities, civil commitment centers, and prisons in the U.S. territories."
In some parts of the country, there are more people in jail than at college.
If you want a partial explanation for this, keep in mind that there are
cities in this country that register more arrests for minor infractions each
year than inhabitants. Take Ferguson, Missouri, now mainly known as the home
of Michael Brown, the unarmed black teenager shot and killed in 2014 by a
town policeman. The Harvard Law Review reported that, in 2013, Ferguson had
a population of 22,000. That same year "its municipal court issued 32,975
arrest warrants for nonviolent offenses," or almost one-and-a-half arrests
per inhabitant.
And then there are the conditions in which all those record-breaking numbers
of people live in our jails and prisons. At any given time, 80,000 to
100,000 inmates in state and federal prisons are held in "restrictive
housing" (aka solitary confinement). And those numbers don't even include
county jails, deportation centers, and juvenile justice institutions.
Rikers Island, New York City's infamous jail complex in its East River, has
990 solitary cells. And keep in mind that solitary confinement -- being
stuck in a six-by-nine or eight-by-10-foot cell for 23 or 24 hours a day --
is widely recognized as a form of psychosis-inducing torture.
And that, of course, is just to begin to explore America's vast and
ever-expanding prison universe. The fact is that it's hard to fathom even
the basics of the American urge to lock people away in vast numbers, which
is why today TomDispatch regular Rebecca Gordon focuses instead on what it
might mean for justice in this country if we started to consider
alternatives to prison. Tom
There Oughta Be a Law...
Should Prison Really Be the American Way?
By Rebecca Gordon
You've heard of distracted driving? It causes quite a few auto accidents and
it's illegal in a majority of states.
Well, this year, a brave New Jersey state senator, a Democrat, took on the
pernicious problem of distracted walking. Faced with the fact that some
people can't tear themselves away from their smartphones long enough to get
across a street in safety, Pamela Lampitt of Camden, New Jersey, proposed a
law making it a crime to cross a street while texting. Violators would face
a fine, and repeat violators up to 15 days in jail. Similar measures, says
the Washington Post, have been proposed (though not passed) in Arkansas,
Nevada, and New York. This May, a bill on the subject made it out of
committee in Hawaii.
That's right. In several states around the country, one response to people
being struck by cars in intersections is to consider preemptively sending
some of those prospective accident victims to jail. This would be funny, if
it weren't emblematic of something larger. We are living in a country where
the solution to just about any social problem is to create a law against it,
and then punish those who break it.
I've been teaching an ethics class at the University of San Francisco for
years now, and at the start of every semester, I always ask my students this
deceptively simple question: What's your definition of justice?
As you might expect in a classroom where half the students are young people
of color, up to a third are first-generation college goers, and maybe a
sixth come from outside the United States, the answers vary. For some
students, justice means "standing up for the little guy." For many, it
involves some combination of "fairness" and "equality," which often means
treating everyone exactly the same way, regardless of race, gender, or
anything else. Others display a more sophisticated understanding. An
economics major writes, for instance,
"People are born unequal in genetic potential, financial and environmental
stability, racial prejudice, geographic conditions, and nearly every other
facet of life imaginable. I believe that the aim of a just society is to
enable its citizens to overcome or improve their inherited inequalities."
A Danish student compares his country to the one where he's studying:
"The Danish welfare system is constructed in such a way that people pay more
in taxes and the government plays a significant role in the country. We have
free healthcare, education and financial aid to the less fortunate.
Personally, I believe this is a just system where we take care of our own."
For a young Latino, justice has a cosmic dimension:
"My sense of justice tends to revolve around my idea that the universe and
life are so grand and inexplicable that everything you put into it comes
back to you. This I can trace to my childhood, when my mother would tell me
to do everything in life with 'love, faith, and courage.' Ever since, I
believe that any action or endeavor that is guided by these three qualities
can be considered just."
Justice Is Punishment
The most common response to my question, however, brings us back to those
street-crossing texters. For most of my students -- for most Americans in
fact -- justice means establishing the proper penalties for crimes
committed. "Justice for me," says one, "is defined by the punishment of
wrongdoing." Students may add that justice must be impartial, but their
primary focus is always on retribution. "Justice," as another put it, "is a
rational judgment involving fairness in which the wrongdoer receives
punishment deserving of his/her crime."
When I ask where their ideas about justice come from, they often mention the
punishments ("fair" or otherwise) meted out by their families when they were
children. These experiences, they say, shaped their adult desire to do the
right thing so that they will not be punished, whether by the law or the
universe. Religious upbringing plays a role as well. Some believe in
heavenly rewards for good behavior, and especially in the righteousness of
divine punishment, which they hope and generally expect to escape through
good behavior.
Often, when citing the sources of their beliefs about justice, students
point to police procedurals like the now-elderly CSI and Law and Order
franchises. These provide a sanitary model of justice, with generally tidy
hour-long depictions of crime and punishment, of perps whose punishment is
usually relatively swift and righteous.
Certainly, many of my students are aware that the U.S. criminal justice
system falls far short of impartiality and fairness. Strangely, however,
they seldom mention that this country has 2.2 million people in prison or
jail; or that it imprisons the largest proportion of people in the world; or
that, with 4% of the global population, it holds 22% of the world's
prisoners; or that these prisoners are disproportionately brown and black.
Their concern is less about those who are in prison and perhaps shouldn't
be, than about those who are not in prison and ought to be.
They are (not unreasonably) offended when rich or otherwise privileged
people avoid punishment for crimes that would send others to jail. At the
height of the Great Recession, their focus was on the Wall Street bankers
who escaped prosecution for their part in inflating the housing bubble that
brought the global economy to its knees. This fall, for several of them,
Exhibit A when it comes to justice denied is the case of former Stanford
student Brock Turner, recently released after serving a mere three months
for sexually assaulting an unconscious woman. They are (perhaps properly)
outraged by what they perceive as a failure of justice in Turner's case.
But they are equally convinced of something I struggle with -- that a
harsher sentence for Turner would have been a step in the direction of
making his victim whole faster. They are far more convinced than I am that
punishment is always the best way for a community to hold responsible those
who violate its rules and values.
In this, they are in good company in the U.S.
There Oughta Be a Law
Of course, the urge to extend punishment to every sort of socially
disapproved behavior, including texting in a crosswalk, is hardly a new
phenomenon. Since the founding of the United States, government at every
level has tended to make unpopular behavior illegal. Just to name a few
obvious examples of past prohibitions now likely to stop us in our tracks:
at various times there have been laws against having sex outside marriage,
distributing birth control, or marrying across races (as highlighted in the
new movie Loving).
In 1919, for instance, a constitutional amendment was ratified outlawing the
making, shipping, or selling of alcohol (although it didn't last long). You
might think that the experience of Prohibition, including the rise of
violent gangs feeding on the illegal liquor trade, would have given us a
hint about the likely effects of outlawing other mind-bending substances,
but no such luck.
One big difference between the 18th Amendment and today's drug laws was
that, although Prohibition outlawed traffic in alcohol, it didn't mention
consumption. No one got arrested for drinking. By comparison, as the
Huffington Post reported last year,
"Law enforcement officers made just over 700,000 arrests on
marijuana-related charges in 2014... Of that total, 88.4 percent -- or about
619,800 arrests -- were made for marijuana possession alone, a rate of about
one arrest every 51 seconds over the entire year."
One marijuana arrest every 51 seconds. It should be no surprise, then, that
drug possession is a major reason why people end up in debt (from
court-imposed fines), locked up, or both -- but hardly the only reason.
Punishment is the response of choice for all kinds of behavior, including
drinking in public (which is why people wrap their beer bottles in paper
bags and kids who look up to them do the same with their soda cans),
indecent exposure, "lewd conduct," prostitution, gambling, and all kinds of
petty theft.
But doesn't punishing undesirable behavior have a deterrent effect, and more
and harsher punishment increase that effect? This is obviously a hard thing
to measure, but there is data available suggesting that lighter penalties
for a particular crime do not necessarily result in more of that crime.
Take petty theft. Different states have different thresholds for what counts
as "petty" and what is the more serious crime of "grand" larceny. Petty
theft is usually classified as a misdemeanor, a category of crime that
carries sentences of up to a year in a county jail. Above a certain dollar
amount, thefts become felonies, which means those convicted serve at least a
year -- and often many years -- in state prison. Depending on the state,
some felons also lose their voting rights for life. Those convicted of
federal felonies may not serve on juries, may not be able to work for the
federal government, and are often not permitted to work for labor unions. A
felony conviction is a big deal.
The Pew Charitable Trusts wondered what would happen if states treated fewer
thefts as felonies by raising the dollar cutoff for a felony prosecution.
Pew asked: Would there be more minor theft because the penalties were lower?
(Some state felony thresholds were, in fact, shockingly low. Until 2001, in
Oklahoma, stealing anything worth more than $50 would throw you into that
category. Even that state's new limit, $500, is still on the low side.)
The Pew researchers examined "crime trends in 23 states" that have raised
the dollar threshold for felony theft and concluded that it had "no impact
on overall property crime or larceny rates." In fact, since 2007 property
theft has been declining across the country, with no difference between
states with higher and lower felony thresholds. So at least in the case of
petty theft, threatening to send fewer people to state prison does not seem
to raise the crime rate.
What's the Alternative?
In the late 1980s, the United Kingdom's first woman prime minister, Margaret
Thatcher, adopted the slogan "there is no alternative," often shortened to
TINA. In Thatcher's case, she meant that there was no imaginable economic
alternative to her campaign to destroy the power of unions, deregulate
everything in sight, and gut the British welfare state. It's hard indeed to
imagine other ways of organizing things when there is -- or at least is
believed to be -- no alternative. It's hard to imagine a justice system that
doesn't rely primarily on the threat of punishment when, for most Americans,
no alternative is imaginable. But what if there were alternatives to keeping
2.2 million people in cages that didn't make the rest of us less safe, that
might actually improve our lives?
Portugal has tried one such alternative. In 2001, as the Washington Post
reported, that country "decriminalized the use of all drugs" and decided to
treat drug addiction as a public health problem rather than a criminal
matter. The results? Portugal now has close to the lowest rate of
drug-induced deaths in Europe -- three overdose deaths a year per million
people. By comparison, at 45 deaths per million population, the United
Kingdom's rate is more than 14 times greater. In addition, HIV infections
have also declined in Portugal, unlike, for example, in the rural United
States where a heroin epidemic has the Centers for Disease Control and
Prevention worried about the potential for skyrocketing infection rates.
All right, but drug use has often been called a "victimless" crime. Maybe it
doesn't make sense to lock up people who are really only hurting themselves.
What about crimes like theft or assault, where the victims are other people?
Isn't punishment a social necessity then?
If you'd asked me that question a few years ago, I would probably have
agreed that there are no alternatives to prosecution and punishment in
response to such crimes. That was before I met Rachel Herzing, a community
organizer who worked for the national prison-abolition group Critical
Resistance for 15 years. I invited her to my classes to listen to my
students talk about crime, policing, and punishment. She then asked them to
imagine the impossible -- other methods besides locking people up that a
community could use to restore itself to wholeness.
This is the approach taken by the international movement for restorative
justice. The Washington, D.C.-based Centre for Justice and Reconciliation
describes it this way: "Restorative justice repairs the harm caused by
crime. When victims, offenders, and community members meet to decide how to
do that, the results can be transformational."
Similarly, "transitional justice" is the name given to a range of measures
taken in countries that have suffered national traumas, including ethnic
cleansing and other massive human rights violations. According to the
International Center for Transitional Justice, such measures to heal a
wounded country and deal with often terrible crimes do "include criminal
prosecutions," but the emphasis is often placed on "truth commissions,
reparations programs, and various kinds of institutional reforms," or even,
as the Centre for Justice and Reconciliation suggests, "meetings between
victims, offenders, and other persons" to emphasize accountability and make
amends.
The most famous of such experiments has undoubtedly been South Africa's
Truth and Reconciliation Commission. From 1948 to 1994, South Africa
operated under the official policy of apartheid, the legal separation of
South Africans into four different racial categories with four different
levels of rights. The South African government employed all the usual tools
of state terrorism -- murder, torture, beatings, incarceration, and daily
repression -- to keep the oppressed majority out of power. Eventually,
international sanctions and internal resistance, followed by an
extraordinary negotiation between African National Congress leader Nelson
Mandela and then-president F.W. De Klerk, brought a peaceful end to
apartheid.
In 1994, after Mandela had become president and the crimes of that country's
white regime were at an end, that Truth and Reconciliation Commission was
established to confront the country's history of apartheid atrocities.
Behind that process was a recognition that there could be no peaceable
future without a public acknowledgement of the harm that had been done by
those who had done it. In South Africa, even torturers and murderers under
the apartheid system were granted amnesties for their crimes as part of a
social healing process, but only after they had publicly admitted their
actions and genuinely asked for forgiveness. It was not punishment but the
acknowledgement of wrongdoing that marked the beginning of justice in that
country and it seemed to work for many of those who had suffered grievously
under apartheid.
A similar approach might work in the United States. Indeed, it already
happens all the time on a small scale around the country, through community
mediation services. These organizations help neighbors settle disputes that
might otherwise result in a trip to civil courts or the pressing of criminal
charges. An important aspect of the process is listening to and
acknowledging the harm others have experienced. It might be possible to
expand this kind of mediation to address more serious instances of harm to
individuals or a community, and to work out means of restitution that did
not involve prison time.
There are other alternatives to punishment as well. For example, as Critical
Resistance suggests, instead of training police forces to "deal" with people
experiencing mental health breakdowns by arresting them and putting them in
the "justice" system, we might begin to treat such events as what they are:
health crises. It's a horror that jails and prisons have become the biggest
mental "hospitals" in the country -- with the Justice Department reporting
that half of those now incarcerated have some form of mental illness.
Some communities have also begun to question the wisdom of the "broken
windows" approach to policing first proposed by criminal justice scholar
George Kelling and political scientist James Q. Wilson. They argued that
when the police enforce laws and informal rules against nuisance behavior in
neighborhoods, reductions in more serious crimes followed. In their seminal
1982 article on the subject in the Atlantic, Kelling and Wilson suggested
that just as an "untended" building with one broken window was eventually
likely to end up with all its windows broken, "'untended' behavior also
leads to the breakdown of community controls." They wrote approvingly of a
police officer who made a habit of arresting for vagrancy anyone who broke
the "informal rules" of the neighborhood to which he was assigned -- by
begging for money at a bus stop or drinking alcohol from an unwrapped
container or on the sidewalk of a major street.
Bill Bratton, New York City's just-retired police chief, championed this
"broken windows" approach to policing, including a race-based
"stop-and-frisk" policy in which police searched New Yorkers on the streets
of their city five million times between 2002 and 2015. Nearly 90% of those
stopped were, according to the New York Civil Liberties Union, "completely
innocent" of anything and of the remaining 10%, only one-quarter, or 2.5% of
all stops, resulted in convictions -- most often for marijuana possession.
But hundreds of thousands of people, mostly young African American and
Latino men, lived with the expectation that, at any time, the police might
stop them on the street in a humiliating display of power. In a landmark
2013 decision, a New York federal court found the police department's
stop-and-frisk policy unconstitutional.
Here's another idea: Even people of goodwill who are not yet ready to jump
on any prison abolition bandwagon might agree that we could stop sending
people to jail for many misdemeanors.
In my state, California, there were 762,002 arrests for misdemeanors in 2014
alone. Of these, 92,469 were for drug possession, 1,265 for glue sniffing (a
"crime" of the truly poor and desperate), and another 90,061 for being drunk
in public. The largest single category, however, was driving under the
influence, or DUI, with 151,416 arrests. That's a total of almost 335,000
people arrested in one state in one year for crimes connected with the use
of either legal or illegal drugs. Add to that the 58,569 people arrested for
petty theft, imagine similar figures across the country, and you can see how
the jails might begin to fill with record-setting numbers of prisoners.
Even when never convicted, those arrested often end up spending time in jail
because they can't afford bail. And spending time in jail can cost you your
job, your children, even your home. That's a lot of punishment for someone
who hasn't been convicted of a crime. In August 2016, the U.S. Justice
Department filed documents in federal court arguing that holding people in
jail because they can't afford to bail themselves out is unconstitutional --
a major move toward real justice.
So the next time you find yourself thinking idly that there oughta be a law
-- against not giving up your seat on a bus to someone who needs it more, or
playing loud music in a public place, or panhandling -- stop for a moment
and think again. Yes, such things can be unpleasant for other people, but
maybe there's a just alternative to punishing those who do them.
I'll leave the last words to a student of mine, who wrote, "My definition of
justice is some sort of restitution and admission of wrongdoing from someone
who wronged you in the past... My family has influenced my definition of
justice in teaching me that even if someone does something wrong there
should always be room for forgiveness and, if they are sincere, forgive them
and that is justice."
Now, it's your turn to define the term -- and so our world.
Rebecca Gordon, a TomDispatch regular, teaches in the philosophy department
at the University of San Francisco. She is the author of American Nuremberg:
The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes (Hot
Books). Her previous books include Mainstreaming Torture: Ethical Approaches
in the Post-9/11 United States and Letters from Nicaragua.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
Dispatch Book, Nick Turse's Next Time They'll Come to Count the Dead, and
Tom Engelhardt's latest book, Shadow Government: Surveillance, Secret Wars,
and a Global Security State in a Single-Superpower World.
Copyright 2016 Rebecca Gordon
C 2016 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176190
Tomgram: Rebecca Gordon, Arresting Our Way to "Justice"
By Rebecca Gordon
Posted on September 25, 2016, Printed on September 25, 2016
http://www.tomdispatch.com/blog/176190/ ;
The figures boggle the mind. Approximately 11 million Americans cycle
through our jails and prisons each year (including a vast "pre-trial
population" of those arrested and not convicted and those who simply can't
make bail). At any moment, according to the Prison Policy Initiative, there
are more than 2.3 million people in our "1,719 state prisons, 102 federal
prisons, 942 juvenile correctional facilities, 3,283 local jails, and 79
Indian Country jails as well as in military prisons, immigration detention
facilities, civil commitment centers, and prisons in the U.S. territories."
In some parts of the country, there are more people in jail than at college.
If you want a partial explanation for this, keep in mind that there are
cities in this country that register more arrests for minor infractions each
year than inhabitants. Take Ferguson, Missouri, now mainly known as the home
of Michael Brown, the unarmed black teenager shot and killed in 2014 by a
town policeman. The Harvard Law Review reported that, in 2013, Ferguson had
a population of 22,000. That same year "its municipal court issued 32,975
arrest warrants for nonviolent offenses," or almost one-and-a-half arrests
per inhabitant.
And then there are the conditions in which all those record-breaking numbers
of people live in our jails and prisons. At any given time, 80,000 to
100,000 inmates in state and federal prisons are held in "restrictive
housing" (aka solitary confinement). And those numbers don't even include
county jails, deportation centers, and juvenile justice institutions. Rikers
Island, New York City's infamous jail complex in its East River, has 990
solitary cells. And keep in mind that solitary confinement -- being stuck in
a six-by-nine or eight-by-10-foot cell for 23 or 24 hours a day -- is widely
recognized as a form of psychosis-inducing torture.
And that, of course, is just to begin to explore America's vast and
ever-expanding prison universe. The fact is that it's hard to fathom even
the basics of the American urge to lock people away in vast numbers, which
is why today TomDispatch regular Rebecca Gordon focuses instead on what it
might mean for justice in this country if we started to consider
alternatives to prison. Tom
There Oughta Be a Law...
Should Prison Really Be the American Way?
By Rebecca Gordon
You've heard of distracted driving? It causes quite a few auto accidents and
it's illegal in a majority of states.
Well, this year, a brave New Jersey state senator, a Democrat, took on the
pernicious problem of distracted walking. Faced with the fact that some
people can't tear themselves away from their smartphones long enough to get
across a street in safety, Pamela Lampitt of Camden, New Jersey, proposed a
law making it a crime to cross a street while texting. Violators would face
a fine, and repeat violators up to 15 days in jail. Similar measures, says
the Washington Post, have been proposed (though not passed) in Arkansas,
Nevada, and New York. This May, a bill on the subject made it out of
committee in Hawaii.
That's right. In several states around the country, one response to people
being struck by cars in intersections is to consider preemptively sending
some of those prospective accident victims to jail. This would be funny, if
it weren't emblematic of something larger. We are living in a country where
the solution to just about any social problem is to create a law against it,
and then punish those who break it.
I've been teaching an ethics class at the University of San Francisco for
years now, and at the start of every semester, I always ask my students this
deceptively simple question: What's your definition of justice?
As you might expect in a classroom where half the students are young people
of color, up to a third are first-generation college goers, and maybe a
sixth come from outside the United States, the answers vary. For some
students, justice means "standing up for the little guy." For many, it
involves some combination of "fairness" and "equality," which often means
treating everyone exactly the same way, regardless of race, gender, or
anything else. Others display a more sophisticated understanding. An
economics major writes, for instance,
"People are born unequal in genetic potential, financial and environmental
stability, racial prejudice, geographic conditions, and nearly every other
facet of life imaginable. I believe that the aim of a just society is to
enable its citizens to overcome or improve their inherited inequalities."
A Danish student compares his country to the one where he's studying:
"The Danish welfare system is constructed in such a way that people pay more
in taxes and the government plays a significant role in the country. We have
free healthcare, education and financial aid to the less fortunate.
Personally, I believe this is a just system where we take care of our own."
For a young Latino, justice has a cosmic dimension:
"My sense of justice tends to revolve around my idea that the universe and
life are so grand and inexplicable that everything you put into it comes
back to you. This I can trace to my childhood, when my mother would tell me
to do everything in life with 'love, faith, and courage.' Ever since, I
believe that any action or endeavor that is guided by these three qualities
can be considered just."
Justice Is Punishment
The most common response to my question, however, brings us back to those
street-crossing texters. For most of my students -- for most Americans in
fact -- justice means establishing the proper penalties for crimes
committed. "Justice for me," says one, "is defined by the punishment of
wrongdoing." Students may add that justice must be impartial, but their
primary focus is always on retribution. "Justice," as another put it, "is a
rational judgment involving fairness in which the wrongdoer receives
punishment deserving of his/her crime."
When I ask where their ideas about justice come from, they often mention the
punishments ("fair" or otherwise) meted out by their families when they were
children. These experiences, they say, shaped their adult desire to do the
right thing so that they will not be punished, whether by the law or the
universe. Religious upbringing plays a role as well. Some believe in
heavenly rewards for good behavior, and especially in the righteousness of
divine punishment, which they hope and generally expect to escape through
good behavior.
Often, when citing the sources of their beliefs about justice, students
point to police procedurals like the now-elderly CSI and Law and Order
franchises. These provide a sanitary model of justice, with generally tidy
hour-long depictions of crime and punishment, of perps whose punishment is
usually relatively swift and righteous.
Certainly, many of my students are aware that the U.S. criminal justice
system falls far short of impartiality and fairness. Strangely, however,
they seldom mention that this country has 2.2 million people in prison or
jail; or that it imprisons the largest proportion of people in the world; or
that, with 4% of the global population, it holds 22% of the world's
prisoners; or that these prisoners are disproportionately brown and black.
Their concern is less about those who are in prison and perhaps shouldn't
be, than about those who are not in prison and ought to be.
They are (not unreasonably) offended when rich or otherwise privileged
people avoid punishment for crimes that would send others to jail. At the
height of the Great Recession, their focus was on the Wall Street bankers
who escaped prosecution for their part in inflating the housing bubble that
brought the global economy to its knees. This fall, for several of them,
Exhibit A when it comes to justice denied is the case of former Stanford
student Brock Turner, recently released after serving a mere three months
for sexually assaulting an unconscious woman. They are (perhaps properly)
outraged by what they perceive as a failure of justice in Turner's case. But
they are equally convinced of something I struggle with -- that a harsher
sentence for Turner would have been a step in the direction of making his
victim whole faster. They are far more convinced than I am that punishment
is always the best way for a community to hold responsible those who violate
its rules and values.
In this, they are in good company in the U.S.
There Oughta Be a Law
Of course, the urge to extend punishment to every sort of socially
disapproved behavior, including texting in a crosswalk, is hardly a new
phenomenon. Since the founding of the United States, government at every
level has tended to make unpopular behavior illegal. Just to name a few
obvious examples of past prohibitions now likely to stop us in our tracks:
at various times there have been laws against having sex outside marriage,
distributing birth control, or marrying across races (as highlighted in the
new movie Loving).
In 1919, for instance, a constitutional amendment was ratified outlawing the
making, shipping, or selling of alcohol (although it didn't last long). You
might think that the experience of Prohibition, including the rise of
violent gangs feeding on the illegal liquor trade, would have given us a
hint about the likely effects of outlawing other mind-bending substances,
but no such luck.
One big difference between the 18th Amendment and today's drug laws was
that, although Prohibition outlawed traffic in alcohol, it didn't mention
consumption. No one got arrested for drinking. By comparison, as the
Huffington Post reported last year,
"Law enforcement officers made just over 700,000 arrests on
marijuana-related charges in 2014... Of that total, 88.4 percent -- or about
619,800 arrests -- were made for marijuana possession alone, a rate of about
one arrest every 51 seconds over the entire year."
One marijuana arrest every 51 seconds. It should be no surprise, then, that
drug possession is a major reason why people end up in debt (from
court-imposed fines), locked up, or both -- but hardly the only reason.
Punishment is the response of choice for all kinds of behavior, including
drinking in public (which is why people wrap their beer bottles in paper
bags and kids who look up to them do the same with their soda cans),
indecent exposure, "lewd conduct," prostitution, gambling, and all kinds of
petty theft.
But doesn't punishing undesirable behavior have a deterrent effect, and more
and harsher punishment increase that effect? This is obviously a hard thing
to measure, but there is data available suggesting that lighter penalties
for a particular crime do not necessarily result in more of that crime.
http://www.amazon.com/dp/1510703330/ref=nosim/?tag=tomdispatch-20
http://www.amazon.com/dp/1510703330/ref=nosim/?tag=tomdispatch-20Take petty
theft. Different states have different thresholds for what counts as "petty"
and what is the more serious crime of "grand" larceny. Petty theft is
usually classified as a misdemeanor, a category of crime that carries
sentences of up to a year in a county jail. Above a certain dollar amount,
thefts become felonies, which means those convicted serve at least a year --
and often many years -- in state prison. Depending on the state, some felons
also lose their voting rights for life. Those convicted of federal felonies
may not serve on juries, may not be able to work for the federal government,
and are often not permitted to work for labor unions. A felony conviction is
a big deal.
The Pew Charitable Trusts wondered what would happen if states treated fewer
thefts as felonies by raising the dollar cutoff for a felony prosecution.
Pew asked: Would there be more minor theft because the penalties were lower?
(Some state felony thresholds were, in fact, shockingly low. Until 2001, in
Oklahoma, stealing anything worth more than $50 would throw you into that
category. Even that state's new limit, $500, is still on the low side.)
The Pew researchers examined "crime trends in 23 states" that have raised
the dollar threshold for felony theft and concluded that it had "no impact
on overall property crime or larceny rates." In fact, since 2007 property
theft has been declining across the country, with no difference between
states with higher and lower felony thresholds. So at least in the case of
petty theft, threatening to send fewer people to state prison does not seem
to raise the crime rate.
What's the Alternative?
In the late 1980s, the United Kingdom's first woman prime minister, Margaret
Thatcher, adopted the slogan "there is no alternative," often shortened to
TINA. In Thatcher's case, she meant that there was no imaginable economic
alternative to her campaign to destroy the power of unions, deregulate
everything in sight, and gut the British welfare state. It's hard indeed to
imagine other ways of organizing things when there is -- or at least is
believed to be -- no alternative. It's hard to imagine a justice system that
doesn't rely primarily on the threat of punishment when, for most Americans,
no alternative is imaginable. But what if there were alternatives to keeping
2.2 million people in cages that didn't make the rest of us less safe, that
might actually improve our lives?
Portugal has tried one such alternative. In 2001, as the Washington Post
reported, that country "decriminalized the use of all drugs" and decided to
treat drug addiction as a public health problem rather than a criminal
matter. The results? Portugal now has close to the lowest rate of
drug-induced deaths in Europe -- three overdose deaths a year per million
people. By comparison, at 45 deaths per million population, the United
Kingdom's rate is more than 14 times greater. In addition, HIV infections
have also declined in Portugal, unlike, for example, in the rural United
States where a heroin epidemic has the Centers for Disease Control and
Prevention worried about the potential for skyrocketing infection rates.
All right, but drug use has often been called a "victimless" crime. Maybe it
doesn't make sense to lock up people who are really only hurting themselves.
What about crimes like theft or assault, where the victims are other people?
Isn't punishment a social necessity then?
If you'd asked me that question a few years ago, I would probably have
agreed that there are no alternatives to prosecution and punishment in
response to such crimes. That was before I met Rachel Herzing, a community
organizer who worked for the national prison-abolition group Critical
Resistance for 15 years. I invited her to my classes to listen to my
students talk about crime, policing, and punishment. She then asked them to
imagine the impossible -- other methods besides locking people up that a
community could use to restore itself to wholeness.
This is the approach taken by the international movement for restorative
justice. The Washington, D.C.-based Centre for Justice and Reconciliation
describes it this way: "Restorative justice repairs the harm caused by
crime. When victims, offenders, and community members meet to decide how to
do that, the results can be transformational."
Similarly, "transitional justice" is the name given to a range of measures
taken in countries that have suffered national traumas, including ethnic
cleansing and other massive human rights violations. According to the
International Center for Transitional Justice, such measures to heal a
wounded country and deal with often terrible crimes do "include criminal
prosecutions," but the emphasis is often placed on "truth commissions,
reparations programs, and various kinds of institutional reforms," or even,
as the Centre for Justice and Reconciliation suggests, "meetings between
victims, offenders, and other persons" to emphasize accountability and make
amends.
The most famous of such experiments has undoubtedly been South Africa's
Truth and Reconciliation Commission. From 1948 to 1994, South Africa
operated under the official policy of apartheid, the legal separation of
South Africans into four different racial categories with four different
levels of rights. The South African government employed all the usual tools
of state terrorism -- murder, torture, beatings, incarceration, and daily
repression -- to keep the oppressed majority out of power. Eventually,
international sanctions and internal resistance, followed by an
extraordinary negotiation between African National Congress leader Nelson
Mandela and then-president F.W. De Klerk, brought a peaceful end to
apartheid.
In 1994, after Mandela had become president and the crimes of that country's
white regime were at an end, that Truth and Reconciliation Commission was
established to confront the country's history of apartheid atrocities.
Behind that process was a recognition that there could be no peaceable
future without a public acknowledgement of the harm that had been done by
those who had done it. In South Africa, even torturers and murderers under
the apartheid system were granted amnesties for their crimes as part of a
social healing process, but only after they had publicly admitted their
actions and genuinely asked for forgiveness. It was not punishment but the
acknowledgement of wrongdoing that marked the beginning of justice in that
country and it seemed to work for many of those who had suffered grievously
under apartheid.
A similar approach might work in the United States. Indeed, it already
happens all the time on a small scale around the country, through community
mediation services. These organizations help neighbors settle disputes that
might otherwise result in a trip to civil courts or the pressing of criminal
charges. An important aspect of the process is listening to and
acknowledging the harm others have experienced. It might be possible to
expand this kind of mediation to address more serious instances of harm to
individuals or a community, and to work out means of restitution that did
not involve prison time.
There are other alternatives to punishment as well. For example, as Critical
Resistance suggests, instead of training police forces to "deal" with people
experiencing mental health breakdowns by arresting them and putting them in
the "justice" system, we might begin to treat such events as what they are:
health crises. It's a horror that jails and prisons have become the biggest
mental "hospitals" in the country -- with the Justice Department reporting
that half of those now incarcerated have some form of mental illness.
Some communities have also begun to question the wisdom of the "broken
windows" approach to policing first proposed by criminal justice scholar
George Kelling and political scientist James Q. Wilson. They argued that
when the police enforce laws and informal rules against nuisance behavior in
neighborhoods, reductions in more serious crimes followed. In their seminal
1982 article on the subject in the Atlantic, Kelling and Wilson suggested
that just as an "untended" building with one broken window was eventually
likely to end up with all its windows broken, "'untended' behavior also
leads to the breakdown of community controls." They wrote approvingly of a
police officer who made a habit of arresting for vagrancy anyone who broke
the "informal rules" of the neighborhood to which he was assigned -- by
begging for money at a bus stop or drinking alcohol from an unwrapped
container or on the sidewalk of a major street.
Bill Bratton, New York City's just-retired police chief, championed this
"broken windows" approach to policing, including a race-based
"stop-and-frisk" policy in which police searched New Yorkers on the streets
of their city five million times between 2002 and 2015. Nearly 90% of those
stopped were, according to the New York Civil Liberties Union, "completely
innocent" of anything and of the remaining 10%, only one-quarter, or 2.5% of
all stops, resulted in convictions -- most often for marijuana possession.
But hundreds of thousands of people, mostly young African American and
Latino men, lived with the expectation that, at any time, the police might
stop them on the street in a humiliating display of power. In a landmark
2013 decision, a New York federal court found the police department's
stop-and-frisk policy unconstitutional.
Here's another idea: Even people of goodwill who are not yet ready to jump
on any prison abolition bandwagon might agree that we could stop sending
people to jail for many misdemeanors.
In my state, California, there were 762,002 arrests for misdemeanors in 2014
alone. Of these, 92,469 were for drug possession, 1,265 for glue sniffing (a
"crime" of the truly poor and desperate), and another 90,061 for being drunk
in public. The largest single category, however, was driving under the
influence, or DUI, with 151,416 arrests. That's a total of almost 335,000
people arrested in one state in one year for crimes connected with the use
of either legal or illegal drugs. Add to that the 58,569 people arrested for
petty theft, imagine similar figures across the country, and you can see how
the jails might begin to fill with record-setting numbers of prisoners.
Even when never convicted, those arrested often end up spending time in jail
because they can't afford bail. And spending time in jail can cost you your
job, your children, even your home. That's a lot of punishment for someone
who hasn't been convicted of a crime. In August 2016, the U.S. Justice
Department filed documents in federal court arguing that holding people in
jail because they can't afford to bail themselves out is unconstitutional --
a major move toward real justice.
So the next time you find yourself thinking idly that there oughta be a law
-- against not giving up your seat on a bus to someone who needs it more, or
playing loud music in a public place, or panhandling -- stop for a moment
and think again. Yes, such things can be unpleasant for other people, but
maybe there's a just alternative to punishing those who do them.
I'll leave the last words to a student of mine, who wrote, "My definition of
justice is some sort of restitution and admission of wrongdoing from someone
who wronged you in the past... My family has influenced my definition of
justice in teaching me that even if someone does something wrong there
should always be room for forgiveness and, if they are sincere, forgive them
and that is justice."
Now, it's your turn to define the term -- and so our world.
Rebecca Gordon, a TomDispatch regular, teaches in the philosophy department
at the University of San Francisco. She is the author of American Nuremberg:
The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes (Hot
Books). Her previous books include Mainstreaming Torture: Ethical Approaches
in the Post-9/11 United States and Letters from Nicaragua.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
Dispatch Book, Nick Turse's Next Time They'll Come to Count the Dead, and
Tom Engelhardt's latest book, Shadow Government: Surveillance, Secret Wars,
and a Global Security State in a Single-Superpower World.
Copyright 2016 Rebecca Gordon
C 2016 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176190
