Criminal Justice System Reform

Criminal Justice System Reform

Part I - The Death Penalty

POSTED OCTOBER 19, 2019

From enforcement to trial to imprisonment and its aftermath, the criminal justice system in the United States is in need of reform.  Shot through with economic inequality, fueled by a desire to punish, and tainted by racism, it fails to achieve the equality before the law that a democracy requires.  

The United States incarcerates more people than any other country, approximately 2.2 million.  We also incarcerate at the highest per capita rate, 737 per 100,000 population.[1]  According to the National Institute of Justice, about 68 percent of 405,000 prisoners released in 30 states in 2005 were arrested for a new crime within three years of their release from prison, and 77 percent were arrested within five years. [4]  The failure of a justice system based on punishment rather than on correction is nearly total.  

This is the first of a series of posts on the US criminal justice system.  We'll start at the end - the barbaric death penalty - rather than the beginning.  

The US is one of just 14 countries that have legalized and retained the right to execute criminals for their crimes and the only one outside Asia and Africa[2]. In 2018, the US  ranked seventh in the number of executions[3].  In July, the Trump Administration announced that it would overturn an effective moratorium on the Federal death penalty that had lasted over 16 years.

News Item (Democracy Now!, Aug 15): "On July 25, in a surprise announcement, U.S. Attorney General William Barr said that the federal government would be resuming executions, with five scheduled in the coming months. This overturns an effective moratorium on the federal death penalty that has lasted over 16 years." [link in sidebar]

The Administration's announcement came one year after Pope Francis strengthened the Catholic Church's moral argument against the death penalty:

Vatican News, August 2, 2018: Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.  In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state.  Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.  Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”, and she works with determination for its abolition worldwide”.

Twenty one states and the District of Columbia have abolished the death penalty and four state governors have placed a moratorium on executions.  Among the states still executing, some are more culpable than others - with Texas, Virginia, and Oklahoma having the most executions for the period from 1977 to now. As the Death Penalty Information Center (DPIC) notes, "1507 men and women have been executed in the United States since the 1970s, although executions have declined significantly over the past two decades. Most executions have been concentrated in a few states [Image blow left] and a small number of outlier counties."   Five counties (Harris, Dallas, Bexar, Tarrant in Texas and Oklahoma City County) accounted for more than 20 per cent of the executions in this period.  

DPIC's analysis of the thirteen remaining 2019 Texas Death Warrants raises troubling questions about execution practices:

In a year in which few states have carried out any executions, the aggressive execution practices of a single state — Texas — stand in sharp contrast. The Lone Star State has scheduled thirteen executions for the last five months of 2019, more than the rest of the country combined. And a DPIC review of the circumstances in which the warrants were issued raises troubling questions as to whether the state is executing the most morally culpable individuals for the worst of the worst crimes or the most vulnerable prisoners and prisoners who were provided the worst legal process. 

Eight of the thirteen Texas inmates to be executed have intellectual disabilities, brain damage, serious mental illnesses, and/or have experienced chronic trauma.

The DPIC site presents information about numerous issues that afflict death penalty implementation.  Here is what they say about race:

The death penalty has long come under scrutiny for being racially biased. Earlier in the twentieth century when it was applied for the crime of rape, 89 percent of the executions involved black defendants, most for the rape of a white woman. In the modern era, when executions have been carried out exclusively for murder, 75 percent of the cases involve the murder of white victims, even though blacks and whites are about equally likely to be victims of murder....Today there is growing evidence that racial bias continues in society, particularly within the criminal justice system. The existence of implicit racial bias among some law enforcement officers, witnesses, jurors, and others allows harsher punishment of minorities, even without legal sanction or intention. Although these prejudices are hard to uproot, the unfair application of the death penalty could be halted by eliminating that sentencing option altogether. 

Democracy Now! reminds us of another problem with the death penalty - the execution of innocent people:

Not only is the death penalty administered in an unjust, biased way, but it is also irreversible. Death is final. Clifford Williams Jr. and Charles Ray Finch became the 165th and 166th death row prisoners to be exonerated. Each of these innocent African American men spent over 40 years on death row. 

The Innocence Project works to free wrongly convicted prisoners.  Its latest project involves Texas inmate Rodney Reed, who is scheduled for execution November 20. [link below left]

One of the heroes of the anti-death penalty movement is Sister Helen Prejean, whose book "Dead Man Walking" was made into a motion picture.  A link to her Democracy Now! interview is below right.

 [1] BBC  [2] World Population Review [3] US News & World Report [4] Wikipedia

Prior to these political maneuverings, rehabilitation was a key part of U.S. prison policy. "Prisoners were encouraged to develop occupational skills and to resolve psychological problems--such as substance abuse or aggression--that might interfere with their reintegration into society. Indeed, many inmates received court sentences that mandated treatment for such problems. Since then, however, rehabilitation has taken a back seat to a 'get tough on crime' approach that sees punishment as prison's main function. The approach has created explosive growth in the prison population." [1]

Daniel Nott, writing at Medium.com, puts it well:"Over the past 30 years, the U.S. has put in place radical, unprecedented policies and practices that attempted to address crime through prioritizing harsh and disproportionate punishment, rather than prevention or rehabilitation. By 2010, 7.25 million Americans were under some form of correctional control — either in prison or jail, or on probation or parole — up from 1.84 million in 1980." [2] 

Although incarceration rates peaked in the late twenty-aughts, the United States still has a higher prison population and a higher per capita incarceration  rate than any other nation.  According to a 2018 report from the Bureau of Justice Statistics (BJS), nearly 2.2 million adults were held in America's prisons and jails at the end of 2016. That means for every 100,000 people residing in the United States, approximately 655 of them were behind bars. [3] 

These"radical, unprecedented policies and practices" have had serious effects for both the individual and the community: 

- Upon release, prisoners are unprepared to rejoin society, making them more prone to become repeat offenders.  One study found 77 percent were arrested within five years of their release.  

In a criminal justice system that emphasizes punishment over rehabilitation and with mentally ill people making up 10-20 percent of the incarcerated population, mental health professionals often struggle to implement rehabilitation  programs while keeping up with their regular prison caseloads. "We're focused so much on the basic mental health services that there's not enough time or emphasis to devote to rehabilitative services," says Robert Morgan, PhD, a psychologist at Texas Tech University who has worked in federal and state prisons and studies treatment methods for inmates. [1] 

The Hill notes that"The U.S. prison system lacks the prisoner rehabilitation programs needed to help inmates take control of their emotions and stress, needed steps in order to transform the inmate from within and address the anger and despair that led the individual to opt for a life of crime....Sadly, when an individual in the U.S. commits a crime, all too often there are no rehabilitation programs that help the offender address the core issues — rage, sadness, anguish, misery, frustration, greed, jealousy, vengeance — that led him or her to commit the crime. The offender is usually locked away and not given access to effective consultation, evaluation and treatment for his or her core issues." 

 - Mass incarceration has devastated entire communities and causes the cycle to be repeated with children experiencing their first arrest in their early teenage years.  The Catholic Charities website of the New Orleans Archdiocese sums up the impact: 

"Economics aside, the toll that mass incarceration takes on communities is immeasurable. Losing one or more parents to incarceration can set a child up for a life of poverty and detrimental mental health issues.  Further, communities that suffer from a high rate of mass incarceration often are impacted by “zero-tolerance” policies in schools. Thus, children often experience their first arrest in their early teenage years and quickly find themselves on a path of repeated incarceration.  One of the most heartbreaking pieces of the mass incarceration story is the repeated injustices that inmates find themselves faced with.  1 in 5 individuals serving time in federal prison was charged with a drug offense. Almost 3 percent of black male U.S residents of all ages were imprisoned in 2013. When released and searching for a job, many felons aren’t even given the chance to apply to many jobs.

It will take decades to undo the harm from the "law and order" crowd's mandatory sentencing laws and their "punishment not rehabilitation" mindset.  But we need to start somewhere.

1. Stop arresting people for non-violent drug offenses like possession.  This is low-hanging fruit and could be implemented immediately.  Replace the arrests with treatment and we help all involved.

Drug offenses still account for the incarceration of almost half a million people, and nonviolent drug convictions remain a defining feature of the federal prison system. Police still make over 1 million drug possession arrests each year, and many of these arrests do lead to prison sentences. Drug arrests continue to give residents of over-policed communities criminal records, hurting their employment prospects and increasing the likelihood of longer sentences for any future offenses [4]

2. Support and expand restorative justice programs.  Restorative justice views crime as more than breaking the law – it also causes harm to people, relationships, and the community. It posits that a just response must address those harms as well as the wrongdoing. The Centre for Justice & Reconciliation summarizes the approach on its website:

Restorative justice...

• is a different way of thinking about crime and our response to crime

• focuses on repairing the harm caused by crime and reducing future harm through crime prevention

• requires offenders to take responsibility for their actions and for the harm they have caused

• seeks redress for victims, recompense by offenders and reintegration of both within the community

• requires a cooperative effort by communities and the government

3. Provide additional funding to broaden rehabilitation programs to include psychological and counseling programs that "help inmates take control of their emotions and stress...and address the anger and despair that led the individual to opt for a life of crime." (The Hill)  

4. Change sentencing guidelines to reflect the ineffectiveness of increasingly punitive sentences and to recognize, as most criminologists believe, "that just about anyone over the age of forty is not much of a risk to society, even those who committed violent crimes in their youth." [5]  Marc Mauer of the Sentencing Project explains:

Increasingly lengthy prison terms for federal offenses have become counterproductive for promoting public safety. There are several reasons for this: long-term sentences produce diminishing returns for public safety as individuals “age out” of the high-crime years; such sentences are particularly ineffective for drug crimes as drug sellers are easily replaced in the community;  increasingly punitive sentences add little to the deterrent effect of the criminal justice system; and mass incarceration diverts resources from program and policy initiatives that hold the potential for greater impact on public safety. 

5. Reform the parole and probation systems.  Their numerous and burdensome requirements set up released prisoners to fail.   In their report for The Prison Policy Initiative ("Mass Incarceration: The Whole Pie 2019"), Wendy Sawyer and Peter Wagner write: 

...while remaining in the community is certainly preferable to being locked up, the conditions imposed on those under supervision are often so restrictive that they set people up to fail. The long supervision terms, numerous and burdensome requirements, and constant surveillance (especially with electronic monitoring) result in frequent “failures,” often for minor infractions like breaking curfew or failing to pay unaffordable supervision fees.

In 2016, at least 168,000 people were incarcerated for such “technical violations” of probation or parole — that is, not for any new crime. Probation, in particular, leads to unnecessary incarceration; until it is reformed to support and reward success rather than detect mistakes, it is not a reliable “alternative.”