We hear a lot these days about the problem of mass incarceration and over-criminalization in the U.S. With less than 5% of the world's population we have over 20% of the world's prisoners. We have gone completely off the rails.
According to The Sentencing Project, "There are 2.2 million people in U.S. prisons and jails--a 500% increase over the last 40 years. Changes in law and policy, not changes in crime rates, explain most of this increase. The results are overcrowding in prisons and fiscal burdens on states, despite increasing evidence that large-scale incarceration is not an effective means of achieving public safety." I recommend taking a look at their web page, which documents this criminal justice data.
President Obama has taken on the issue and has called for reforms. In September, 2015, the HBO program "Vice" did an excellent piece on the President's initiative.
Criminal justice reform has bipartisan support. There is a bill working its way through the Senate that would ease mandatory minimum sentences for nonviolent offenders. At this stage, backers need to get Senate Majority Leader Mitch McConnell to take up the bill. It appears that one reason some Republican Senators (Senator Charles Grassley of Iowa, for example) are trying to look reasonable on this bill is that their refusal to address the vacancy on the Supreme Court is making some of them feel vulnerable going into the November election, and could lead to Democratic control of the Senate.
There is increasing evidence that the most powerful players in this story are prosecutors. District attorneys and their deputies have wide latitude regarding whether to press charges and what charges to file. Adam Foss, a prosecutor with the Suffolk County District Attorney's Office in Boston, recently did a wonderful TED talk where he clearly and passionately articulates the role of prosecutors like himself and how they can pursue the greater good for our society, rather than just promote a culture of conviction. I recommend his presentation. It is 15 minutes well spent.
For those of us who live in safe and comfortable communities, I think it is easy to think of this issue as an abstract societal problem that doesn't happen near us. But this runaway "tough on crime," "culture of conviction" permeates our entire criminal justice system throughout the U.S.
For example, there is an ongoing massive prosecutorial abuse scandal in Orange County, California. Thanks to the work of Public Defender Scott Sanders we know that for decades the Orange County District Attorney's office has been secretly planting informants near defendant's jail cells, illegally withholding information about this practice from defense attorneys, and then lying about the practice in court. It is illegal for law enforcement to deliberately deploy informants to coax incriminating statements from a defendant who's already been charged and has the constitutional right to an attorney and to remain silent.
Erwin Chemerinsky, along with more than thirty other legal experts, including ex-prosecutors, has called for a federal investigation into the Orange County District Attorney's office and the Orange County Sheriff's Department.
I recently learned from a Washington Post opinion piece that two prosecutors from that same Orange County DA's office (Michael Murray and Larry Yellin) are running for Superior Court judgeships on the June 7 ballot. According to the opinion article in the Washington Post, both of these prosecutors have, by their own admission, withheld evidence--a practice that seems to carry little risk for prosecutors, as they seem to face few, if any, sanctions when it occurs. Might this have something to do with the fact that most judges are ex-prosecutors?
As we cast our ballots in this and future elections, we should think about how our mass incarceration problem is being addressed, and where the candidates stand.
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