Fault Lines
29 June 2017

We Are Responsible For Mass Incarceration

Feb. 18, 2016 (Mimesis Law) — Over at Seven Scribes, Josie Helen ripped a gaping hole of truth through a lazy and shallow point that has been bandied about recently. Speaking about the recent kerfuffle over Hillary Clinton’s support of her husband Bill’s 1994 Violent Crime Control and Law Enforcement Act, Helen points out the disconnect between 1994 and now. Although she recognizes that this law has not been without disastrous impact, her article focuses on its limits.

Yet, much of what has been reported about the 1994 act is critically mistaken. The law had much less influence on widespread mass incarceration than the articles [Michelle Alexander’s in The Nation and Donna Murch’s in the New Republic] imply and than many seem to believe. Our federal government doesn’t wield the real power when it comes to criminal justice, and the more we perpetuate that perception the farther we get from true reform.

Helen goes on to note that President Clinton’s crime bill is absolutely responsible for travesties of justice. However, these instances are primarily within the federal system, a system very much in need of reform, but a system that is only responsible for 10% of America’s world-leading prison population.

Currently, our embarrassing stats place our federal prison population at about 200,000. State prisoners on the other hand, 2 million.  200,000 human beings is far from insignificant.  But allowing our focus to remain on a law that impacts 10% of our problem shows just how bad we are at democracy.  We seem to love pointlessly shouting about problems almost as much as the people we keep voting for.

And while we distract ourselves and ignore complex problems, the people with the real power, local prosecutors and judges, often get a pass from the electorate.

Here’s the reality: if you want to fix mass incarceration, stop talking about Hillary and start talking about your local district attorney.

If you want to fix mass incarceration but you don’t know the name of your local district attorney – or you don’t know when the primary is, or who is opposing them – you are making the biggest mistake you can make as a voter and as a responsible citizen. You cannot improve this problem if you don’t know who is prosecuting cases in your county.

These “lock-em-up” DA’s did not just work their way up from the mail room. The vast majority of them were elected.  And they were elected by people who wanted to make sure that the bad people got locked up.  Sure, with criminal justice reform grabbing the attention of America, it is compelling to imagine solution by ballot box.  But all it takes is one Willie Horton to make us forget the complex reasons that mass incarceration is a terrible idea.  Vengeance is much more simple.

Removing the wasted focus on Clinton and her support of a 22-year-old federal crime bill is important.  But then the election of local prosecutors and judges is nothing new, is it?  Things could certainly change for the better if an informed citizenry focused on these local elections, but what if they do not?

One of the biggest reasons for our mass incarceration problem is that we have spent decades giving in to our baser fears and supporting ‘tough-on-this’ or ‘hard-on-that’ laws. Our elected prosecutors and judges were doing exactly what we elected them to do.  By blaming the Clintons, we miss the true culprit of our failed criminal justice system turned carceral state – ourselves. Pogo

Dig into the inner workings of the criminal justice system and you will be exposed to a confluence of processes and procedures all geared toward sending busloads of (often minority) people off to prison cells. There are state laws that are absolutely unfair and contribute to the problem.  However, there are many, many more laws that, if followed properly, would turn our system good.  We just need local prosecutors and judges to follow them.

The biggest reason we have 25% of the world’s prison population is the power players in the system. The rules say that everyone is presumed innocent, but if that is the case, then why is bail, jail, and guilt the default?  Simple.  Because it is easier.

Our system has thousands of people crammed into it every day. The job of the prosecutor is supposed to be to seek “justice.”  The job of the judge is to ensure that “justice” is fairly administered.  But every defendant, every one of them, is different.  And every defendant should receive the justice that their case and their circumstances demand.  Truly examining a case to see if the defendant is guilty, innocent or the thousand iterations in between is complex and difficult.  Assuming that everyone is guilty is much easier.  Our system fills our jails because it refuses to recognize that each case and each defendant is unique.

It all begins at arraignments. A local judge looks down over a local defendant.  A local prosecutor then tells the judge, without providing any actual evidence, that the defendant committed certain acts that constitute certain crimes.  If the allegations are not enough to sway the judge to send the defendant off to jail pending prosecution, then the fact that the defendant has a prior record certainly will.  If that does not work, then his lack of employment will do the trick.  No family in the audience?  How can we be sure you will return to court?  Ten thousand dollars bail.

In certain jurisdictions, bail is a foregone conclusion for the vast majority of defendants. For some, it is appropriate.  For many, it is not.  But when our local prosecutors and judges refuse to take the time to administer a just process that distinguishes between the two, the default is jail.  The presumption of innocence looks great when it is carved into the front of a courthouse.  But when the starting point of so many criminal prosecutions is governed by the opposite presumption, those words of protection are just a slap in the face.

Beyond that initial step of arraignment lies a sea of process and procedure that overlooks the undeniable fact that our courts and prisons pull in the good and the bad alike. Far too many prosecutors and judges take the easy way out and ignore the difference between the two, in spite of the law.  And that is why our country imprisons 2.2 million people.

There is hope in Josie Helen’s words. Electing fair local prosecutors and judges has the potential to produce positive change.  But there is a major hurdle to seeing that change.  The voting public must recognize that a properly functioning justice system will occasionally produce bad results.  The bad guy will occasionally win and we must not only live with that, we must appreciate it.  If bad people do not occasionally win, the good ones never will.

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