Well before Martin Luther King Jr. was born in 1929, W. E. B. Du Bois was making the case for racial equality in America. In his 1903 book “The Souls of Black Folk,” Du Bois highlighted several profound injustices in America’s legal system. “Daily the Negro is coming more and more to look upon law and justice, not as protecting safeguards, but as sources of humiliation and oppression,” he wrote. “The laws are made by men who have little interest in him; they are executed by men who have absolutely no motive for treating the black people with courtesy or consideration; and, finally, the accused law-breaker is tried, not by his peers, but too often by men who would rather punish ten innocent Negroes than let one guilty one escape.”
Many think little has changed.
Today a huge number of Americans — disproportionately those from underprivileged backgrounds — are trapped in a cruel and senseless system of mass incarceration. According to New York University’s Brennan Center for Justice, over two million Americans are held in federal, state and local facilities: “The United States has less than 5% of the world’s population and nearly one-quarter of its prisoners. Astonishingly, if the 2.3 million incarcerated Americans were a state, it would be more populous than 16 other states. All told, one in three people in the United States has some type of criminal record. No other industrialized country comes close.”
A December 2023 report by the Department of Justice, moreover, detailed how populations in local jails around the country rose by 21% from midyear 2020 to midyear 2022.
But America doesn’t just imprison too many people. While incarcerated, people are often subject to unconscionable abuse and neglect. Long-time political prisoner and former President of South Africa Nelson Mandela once said that, “No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”
Under Mandela’s standard, America’s performance is shameful. Our jails are consistently overcrowded, under-resourced and without proper oversight. The Department of Justice, for example, detailed conditions in Alabama’s state-run prisons in 2018. “The violations are severe, systemic and exacerbated by serious deficiencies in staffing and supervision,” the Department of Justice explained. There was “a high level of violence that is too common, cruel, of an unusual nature and pervasive.” The Department of Justice also recently announced probes into two state-run South Carolina jails. An Associated Press report found white supremacists worked as prison guards in Florida with no repercussions.
Not that prisoners or even former prisoners are in a position to do much. Many with criminal records can’t vote. This distorts the franchise — preventing truly free and fair elections — and undermines reform initiatives in Washington and state capitals. A constituency that can’t vote has a long, hard road to achieving meaningful reform.
Mass incarceration has several underlying causes. Mandatory minimum sentences require judges to sentence defendants convicted of certain crimes to minimum — and often excessive — sentences. In her book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” Michelle Alexander describes the resulting injustice: “All of us violate the law at some point in our lives. In fact, if the worst thing you have ever done is speed ten miles over the speed limit on the freeway, you have put yourself and others at more risk of harm than someone smoking marijuana in the privacy of his or her living room. Yet there are people in the United States serving life sentences for first-time drug offenses, something virtually unheard of anywhere else in the world.”
Legal representation for underprivileged defendants, moreover, is abysmal. Poor defendants are typically saddled with overburdened and incompetent attorneys. As civil-rights attorney Bryan Stevenson put it, “Our criminal justice system treats you better if you are rich and guilty than if you are poor and innocent.”
And the court system is often arbitrary and capricious. Judges are overworked. Prosecutors enjoy large budgets, broad discretion to pursue charges, and immunity for bad acts. And juries — the system’s linchpin — are prone to bias, prejudice and delivering erroneous verdicts.
A functioning society does, of course, need a criminal-justice system. Enforcing laws fairly and proportionately deters criminal behavior and provides important redress to victims. And many guilty people do deserve to be punished. But the degree of over-incarceration in America — and the corresponding societal harm — is a staggering failure of both governance and conscience.
William Cooper is an attorney and the award-winning author of “How America Works … And Why It Doesn’t.” He lives in Truckee, California.
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