Criminal Injustice

Monday, June 6th, 2011

Matt Welch’s editor’s note introducing the Reason special issue on the criminal justice system is now available online.


America has one-quarter of the world’s prisoners. More than 7 million people are under correctional supervision in this country. These staggering statistics—no other country comes close in percentage terms, let alone raw numbers—have serious consequences. For one thing, there is the fiscal cost: The corrections system lags only Medicaid in government spending growth on the state level. Yet most prisons are overcrowded, underserviced, and exponentially more dangerous than any decent society should tolerate.

Worse are the cascading social effects, some of which you might not initially expect. Although prison is overwhelmingly the province of men, black women in America’s inner cities have some of the highest HIV infection rates in the developed world. Why? Because their male partners contracted the virus behind bars, via consensual sex or rape, often going undiagnosed while serving out their terms.

Very few in our political and media classes are familiar with the communities most ravaged by crime and punishment. No politician ever lost an election by alienating the ex-con vote (in no small part because in a dozen states, ex-felons who have completed parole are still permanently barred from voting). It is no accident that the people most likely to languish behind bars—poor minorities, sex offenders, illegal immigrants—tend to be among the most reviled groups in American society.

To the extent that we even think about our prison population bomb, we have allowed ourselves to believe it’s an acceptable price to pay for the recent reduction in crime. But the rates of incarceration and crime aren’t so easily correlated, let alone quantified in terms of cause and effect. And the notion that we are keeping dangerous predators off the streets is belied by the fact that an estimated 1 million prisoners in the U.S. are serving time for nonviolent offenses, predominantly related to drugs.

The drug war is a leading supplier to the prison industry and the biggest inspiration for new ways to circumvent the Fourth Amendment. More than 800,000 people are still arrested each year for marijuana alone, despite the widespread misconception that pot has been largely decriminalized, and despite the fact that close to half of all Americans by now have smoked it, and more than half, by some surveys, favor legalizing it. We can thank the drug war for “stop-and-frisk” harassment of young New Yorkers, for the transfer of military equipment and tactics to local police departments, for wrong-door SWAT raids that kill innocents, for an entire shadow economy of dubious jailhouse snitching and back-room sentence reductions. Vanishingly few public officials even pretend anymore that the drug war can somehow be “won.”

Meanwhile, government at every level continues to run out of money. So conditions are becoming increasingly ripe for a Johnsonian cost-benefit analysis to conclude that drug prohibition needs to go the way of alcohol prohibition. It remains my hope, even my conviction, that these hardheaded arguments will reverse this evil policy during the next decade or two.

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15 Responses to “Criminal Injustice”

  1. #1 |  fwb | 

    The government wants control. If they make everyone a criminal, then they decide who votes and who does not. When they, the govt, make you a criminal, they have the option of fining you. Thus they can take what is yours without just compensation because you are a criminal.

    It is an agenda. They are winning.

  2. #2 |  skunky | 

    maybe they’ll get a reprimand…

  3. #3 |  Judas Peckerwood | 

    The prison industrial complex is probably the main force driving this madness. We have huge, politically connected companies deriving enormous profits from locking up citizens –– through prison construction, privatized prison administration, prison-based industries, drug testing, etc. And because these corporations have a bottom-line interest in locking up more people for longer lengths of time, they lobby our elected officials to criminalize more activities and impose harsher sentencing guidelines.

  4. #4 |  John Jenkins | 

    I love a conspiracy theorist as much as the next guy, but the truth is much simpler in this case. District Attorneys, many state court judges and legislators are all elected. No one has ever lost an election by promising to “get tough” on even the mildest offenders. Elected officials do what they can to get re-elected, and that means harsher laws, more prosecutions and tougher sentencing, irrespective of any other influence. While criminal justice is subject to the vagaries of the political process, these conditions will continue to obtain unless something bigger comes along to put a stop to it (e.g., the present fiscal crisis might make a dent if states can’t afford to keep so many people imprisoned).

  5. #5 |  DontBurnLee | 

    Thumbs up to #3 post – you also forgot to mention prison guards unions, and other government workers.

  6. #6 |  Leon Wolfeson | 

    I’m with John. This is a *natural result* of allowing politics to infect the judicial system.

  7. #7 |  Chris Mallory | 

    Politics is going to infect the system no matter what we do, outside of randomly picking names out of the phone book for a limited term of service.

  8. #8 |  Chris Mallory | 

    Actually, picking names out of the phone book might be the best option. Criminal law should not be so complicated that a random sampling of citizens can’t understand and interpret it.

  9. #9 |  Dante | 

    This quote from Ann Rand explains it all for me:

    “There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

  10. #10 |  supercat | 

    #4 | John Jenkins | June 6th, 2011 at 12:55 pm “No one has ever lost an election by promising to “get tough” on even the mildest offenders.”

    Perhaps, but it would be interesting to see what would happen if someone were to run on a “law and order” platform whose primary thrust was the prosecution of government officials who act unlawfully.

  11. #11 |  JOR | 

    As long as the government officials they targeted weren’t cops (at least not cops who acted unlawfully by terrorizing people) they might do ok in the election. But 90% of the problem is government officials acting perfectly lawfully, anyway.

  12. #12 |  Leon Wolfeson | 

    Chris; I disagree. You can have a professional service handling cases across the country (state), according to central guidelines and with clear rules and accountability.

    The sort of prosecution grandstanding you hear about in America was virtually wiped out from the Crown Prosecution Service fifteen years ago, and wasn’t a major factor even then.

  13. #13 |  Leon Wolfeson | 

    @8 – See: The Nordic Countries. Try again.

  14. #14 |  Mattocracy | 


    The Nordic Countries have their police misconduct as well. It’s a fairly universal problem.

    Just google “police misconduct sweden” and let me know what you get.

    Try again.

  15. #15 |  Leon Wolfeson | 

    I was talking about *politics* in the process. Sigh, never mind the facts.