Is the Criminal Justice System Failing in the United States?

This post was written in collaboration with the team at C³. Learn more about C³ at the end of the post. 

Our work is not meant to serve as an all-inclusive summary on the topic, but instead is meant to serve as a starting point for thinking and learning about it. We outline important factors to consider as you form your own opinion rather than trying to push you in one direction or another

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Structuring the topic

History of slavery and civil rights in the United States

  • The past few hundred years of history in the United States is filled with key moments, laws, and movements, all of which shape the criminal justice system we see today.

The United States criminal justice system in 2020

  • Here we need to think about 3 distinct parts. As we think about these parts, it is important to keep in mind what the goal of the criminal justice system should be.
    • How do people end up in prison?
    • How are inmates treated in prison?
    • How are their lives impacted when they return to society?

Key issues and implications

Key moments, laws, or movements leading to the criminal justice system today

  • End of slavery with the 13th Amendment
    • The 13th Amendment to the U.S. Constitution, ratified in 1865 in the aftermath of the Civil War, abolished slavery in the United States. The 13th Amendment states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
    • Is the second part of the amendment itself problematic, or is the problem linked to how it has been applied?
      • The problem with the 13th Amendment is that it created an incentive to put as many people in prison as possible to ensure that there would be sufficient “free” labor for growing production needs.
      • However, even beyond the misuse of the 13th amendment, many will argue that forced labor of any nature, regardless of crime, is a human rights violation.
  • Creation of the African American stereotype
    • Over the course of several decades post the abolition of slavery, the media, and films such as Birth of a Nation, built a narrative of African Americans as criminals. 
    • It has been argued that this criminal narrative was developed because the white elite needed bodies working, and they were aware that through the 13th Amendment they could obtain free labor.
    • However, at the time that this stereotype was being developed, it was in fact the white population that was overwhelmingly responsible for destructive behaviour and crimes. This took place in the form of attacks, abuse or explosives by whites to push African Americans out of their neighbourhoods.
  • Civil rights movement
    • At the same time as the Civil Rights Movement picked up, crime was increasing due to demographic shifts in the United States. However, a narrative was built to portray the Civil Rights Movement as the source of the spike in crime because of how closely these events were correlated.
    • This provided the ‘evidence’ for many to label the Civil Rights Movement leaders as criminals, reinforcing the narrative built many decades earlier of African Americans as criminals.
  • War on Drugs
    • Although first announced in the 1970s, the United States’ “War on Drugs” really picked up in 1982. The US government put the problem of drugs high on the agenda, even though it was not clear that society felt it was that important.
    • Although difficult to prove a causal link, there is a lot of contextual evidence to suggest that this War on Drugs was a major driver of the increase in incarceration rates of African Americans during the 1980s and 1990s.
    • Of particular interest, was the movement of crack cocaine in African American neighbourhoods which really only picked up after the War on Drugs was announced.
    • The discrepancy between the prison sentence for crack cocaine, used in poor neighbourhoods, and powder cocaine, used by the rich, is often cited as evidence of the racially and economically biased criminal justice system.

The criminal justice system in 2020 – How do people end up in prison?

  • People spend time in prison even for minor offenses
    • The United States has one of the highest incarceration rates in the world. In Germany, only 93 out of every 100,000 citizens are in jail, in the US it is 750. Are people in the US inherently more criminal or does the system in the US punish harshly for minor offenses?
  • Higher crime rates in African American communities
  • The law is often not equally applied to citizens across race and class
    • African Americans versus Whites:
      • Over the last 50 years, there has been a huge increase in the number of incarcerated individuals in the US, particularly individuals of color.
      • According to several studies, including a 2000 study by the US Department of Health and Human Services, people of all races use and sell drugs at equal rates, but the prison records show that African American’s are disproportionately imprisoned for drug related offenses. 
      • A 2006 study by Snyder and Sickman in fact reported that white youth are more likely to sell drugs than any other race, but this is certainly not seen in incarceration rates. Why then could it be that African American males are admitted to jail at rates 20-50 X greater than white males (Human Rights Watch, Punishment and Prejudice: disparities in the War on Drugs)
  • Rich versus Poor
    • These disparities described above do not only apply along racial lines, but also along the lines of class. In Alec Karakatsani’s book Usual Cruelty, he cites the concrete example of the differing drug enforcement standards on Yale’s campus versus the rest of New Haven. It highlights that the way the law is enforced reflects the distribution of power in society.
    • Another prominent example are the laws and regulations around low-stakes street and online betting, while at the same time the high-flyers on wall street can gamble on currencies or the supply of commodities. 
  • With high minimum sentences, people are forced into plea bargains
    • Most individuals who end up in federal prison end up there having taken a  plea bargain, and not because they had a fair trial and were convicted. Why would somebody admit to having done something they did not do? 
    • People plead guilty for crimes they did not commit, because they are scared of having to face the minimum sentences which are often bizarrely high. Being offered a small jail sentence with certainty rather than risking an extreme jail sentence with high probability (due to not being able to afford expensive legal fees) is an attractive proposition to many.
  • The elitism of cash bail
    • The main aim of asking an individual to post bail is to ensure that they do not flee the city before their court hearings. However, in the US many families have little to no disposable savings, hence cash bail is not an option for them. The time that these individuals spend in jail, as opposed to at home, can be damaging and leave lasting impacts.

The criminal justice system in 2021 – How are inmates treated in prison?

  • As we assess the time individuals spend behind bars, it is important to consider the following:
    • What is the main aim of the criminal justice system? 
    • What do we want to achieve while the individuals are behind bars?
    • Do the brutal prisons actually create crime rather than prevent it, due to the emotional, mental and physical strain on those that are imprisoned?
    • Is this system meant to break those in it as punishment for what they have done? Or rather, is the system meant to prepare them to be better once they re-enter society?
  • Should the exploited free labor in the US prison system be tolerated?
    • In many correctional facilities around the country, inmates are forced to work with little or no pay. This is a modern day comparison to slavery, and such labor has been used by prominent companies in an attempt to save on costs. Whether or not this is acceptable, will certainly depend on the goals one sets out for the criminal justice system.
  • How should we think about the treatment of inmates?
    • Both anecdotal and larger scale evidence highlights the brutal treatment of inmates in the United States while they are serving their sentences. 
      • One of the most famous cases is that of Kalief Browder, who was jailed on Rikers island for over two years for allegedly stealing a backpack. A few years after his release, he committed suicide after not being able to recover from the mental, emotional and physical abuse suffered in prison.
    • How one believes inmates should be treated in jail or prison, will once again be determined by the goals one has for the system:
      • If you believe that prison is designed to punish, the US model of incarceration may not be that shocking, however, if you believe that the system should be designed to prepare the inmate for re-entry into society, the Swedish model is likely a better approach.

The criminal justice system in 2020 – How are criminals’ lives impacted after prison?

  • Even if we ignore the emotional and mental baggage accumulated during a prison sentence, once released, a web of laws, regulations and informal rules, which are backed up by social stigma, ensure that those that were once convicted remain at the fringe of society.
  • The aspects of life most impacted are voting rights in some states, employment possibilities and credit applications. These are all essential to re-engaging with society and to avoid re-entry into the criminal justice system. This web of laws is often argued as a central reason why many continually return to prison as assimilating to society is often too difficult.

Argument Nuances

The Black Excellence argument

  • Many do not believe that systemic racism or inequality remains in the United States or its criminal justice system today because there are no explicit laws in place to create it. Those arguing against systemic racism will often cite examples of successful African Americans to show that the system is not biased.
  • As Michelle Alexander argues in her book The New Jim Crow, the current system of systemic inequality is reinforced by black excellence rather than disproving or undermining it. This is because the system is allowed to subtly operate while providing ‘evidence’ of fairness by allowing for a few African Americans to rise above the rest. The fact that there are only a few examples that are recycled (Oprah Winfrey, Tiger Woods, Barack Obama etc), is in its own way evidence of how broken the system is. 

Not as simple as changing the law

  • Unfortunately, history shows that it is not as easy as changing a few laws to repair the system. Even though Brown v. Board of education, ruling segregation in schools as unconstitutional, over half a century ago, schools remain just as, if not more segregated than before. 
  • Why is this the case? Because the underlying systems of oppression were never tackled. It will take a larger societal movement, not simply rewriting a few laws, to transform the US criminal justice system.

Segregation is by choice

  • There is no doubt that although not written in the law, the US remains somewhat segregated today. There are largely white, and largely non-white communities in every city. Those that do not believe there are any systemic problems in the US will argue that the segregation that remains is by choice, as families chose not to move.
  • However, there is ample evidence of families being pushed out of white neighbourhoods throughout the 20th century, whether forcefully or simply by having their lives disrupted until they would leave. 
  • In Richard Rothstein’s The Color of LawA Forgotten History of How Our Government Segregated America, he highlights both anecdotal and statistical evidence of government sanctioned violence against African Americans moving into white neighbourhoods, particularly in the 1950s. Mobs would threaten and harass families until they left the white neighbourhoods. We then cannot say that today’s segregation is a product of free choice.
  • Important to remember here that these crimes against African Americans took place at the same time as the media was trying to build the narrative of African Americans as ‘criminals’.

Changing sentence length won’t change the system

  • Many people will argue that one of the worst things about the US criminal justice system is the extreme sentence lengths. However, reducing the length of a sentence does not impact how the system of systemic inequality operates because of how individuals are treated in society after their release. 
  • For this reason, Michelle Alexander writes that the system relies on the prison label, not prison time. She argues that many parts of Jim Crow come back to life once you are branded a felon. That’s where her concept of ‘The New Jim Crow’ stems from.

The problem is too big to tackle

  • The US Prison Industrial complex is worth over $180 Billion dollar annually with multiple private interests profiting from it. This makes the problem harder to tackle as lawmakers may not always be incentivized to act in the public’s interest.
  • It is important to remember that democracy is always a work in progress and that big changes come in small steps. One answer to this argument is to ask ourselves whether we want to live in a society where minorities are perpetually oppressed in order to help a few private actors benefit from their free labor.

It is all about Drug convictions

  • One common misconception is that drug convictions alone account for the majority of the increase in incarceration rates over the last 4 decades. Michelle Alexander herself writes this in the introduction of The New Jim Crow. This implies that releasing non-violent drug offenders could hugely reduce incarceration rates.
  • However, drug convictions only make up a large part of the federal prison system. The key is that the federal system accounts for less than 15% of the overall US prison population, hence drug convictions playing a much smaller (but not insignificant) role in US incarceration than commonly believed.
  • Drug convictions is not to be confused with ‘drug related arrests’ or ‘arrests relating to the War on Drugs’, which both require contextual judgement to classify, hence making it tough to prove a causal link.

Potential Solutions

Transforming policing

  • Tiers of protection
    • A starting point for a transformation of the system is to integrate a ‘community watch’ with local police forces. This means that the local police department should not be the first point of contact if there is not a life threatening situation. 
    • Noisy neighbours, public intoxication or the like, should be handled by a local unarmed community watch team, only to be escalated to the police if force is required. This can allow close knit communities to often solve their own issues and avoid unnecessary contact with armed officers.
  • Training is vital
    • In some US states, training for police officers lasts only a few weeks, whereas in other countries the training may last for years. Some pastry chef training programs exceed the duration of law enforcement training in the United States. Spending more time in training is key to rethinking how arrests are made.
    • It’s not only about the duration of training but the type. A central pillar of any law enforcement training in the United States today should address issues of racial bias.

Rethink why we put people in prison

  • To many it may be surprising that drug related offenses see individuals landing in prison rather than society providing them with medical or mental assistance. 
  • Only jailing individuals who pose an imminent threat to society, will allow the system to be more sustainable and manageable both from a logistical and a financial standpoint. The saved money can be spent on mental health services for those that may be suffering from drug abuse.

Transform the way prisons operate

  • If we hope that one day convicted criminals can properly engage in society, this should guide our approach to the prison system. Some ideas are as follows:
    • Starting with bail:
      • Cash bail should only be needed for certain crimes that pose severe flight risk. This ensures that yet to be proven guilty individuals cannot be shaped and impacted by the prison system.
    • Rethinking prison labor:
      • There should be the option for prisoners to not work during their time in prison. This freedom acknowledges their humanity.
      • However, if an individual is happy to work during their sentence, they should be paid at an hourly rate equal to the relevant states minimum wage. The amount should accumulate in a savings account and be provided to the individual on the day of their release. These funds could go a long way to streamlining the transition back into society.
      • It could also be argued that the cost of living for the inmates may need to be deducted from their wages. This is a contentious issue and there are valid arguments for both sides.

Criminal justice system is not a silo

  • Most importantly, we should not see the criminal justice system in a silo. Intertwining solutions with education, healthcare and access to affordable and safe housing will be absolutely vital to overhauling this system that has caused the United States so much pain.

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C³ – Critical Creative Collaboration

This post was written in collaboration with the team at C³.

Who: We are a diverse community based in New York City. 

What: At its simplest form, C³ functions as an idea club. Every month we dig into a curated list of books, journals, articles, podcasts and documentaries focused on a core idea. We come together for a day of fruitful conversation and collect all our most insightful discoveries in a single post that we share here with you.

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