The new consensus that something is wrong with American criminal justice is welcome. The amazing number of people in prison– a measure on which, adjusting for population, no other nation comes close – is indeed a sign that the U.S. system is broken.
Yet dwelling too much on that one statistic is unwise.
Consider, for instance, the idea that the leading cause of mass incarceration is long prison sentences handed down to nonviolent drug offenders.
The Urban Institute just released a web tool that lets you see the effect on incarceration figures of state-by-state changes in prosecution and sentencing practices. As Erik Eckholm notes in the New York Times, fewer and/or shorter prison terms for nonviolent drug offenders help a lot less than you’ve been told.
Ending the war on drugs would make a big difference to the number of federal prisoners – but most of the incarcerated are in state, not federal, prisons. Drug offenders make up a much smaller share of the state prison population. Keeping fewer of them locked up would hardly dent the states’ head count.
Handing down long terms in prison for nonviolent drug offenders is grossly unjust, and ought to stop – but not because it’s the main cause of overcrowded prisons.
For the same reason, you ought to recoil when a politician argues that justice reform is necessary because keeping people in prison is expensive. If justice is served by keeping people in prison for decades, the cost is money well spent. When it’s unjust, the cost is irrelevant.
The U.S. has all but abolished the jury trial. It has enshrined the repugnant practice of plea-bargaining, which equips prosecutors with terrible and largely unchecked powers of coercion. If you set out to design a system that would empower the state and its law-enforcement officials to destroy whomever they set out to destroy, guilty or innocent, you could hardly improve on this.