BRENDA VALENCIA, A NINETEEN-YEAR-OLD WITH NO HISTORY OF DRUG USE or criminal behavior, made a terrible mistake in 1991. She gave a ride to her roommate’s stepmother, a cocaine dealer. She drove the woman to the West Palm Beach, Florida, home of a man who turned out to be another dealer. Valencia remembers being impressed by the spacious, luxurious house. She watched the World Series on TV with the daughter of the man who lived there, and he and her passenger went outside to talk. The phone rang, and Valencia picked it up. Recalled Valencia, “The guy on the end of the line said, ‘Who’s this?’ I told him and asked if I could take a message. He said, ‘Yes, tell him to beep me.’ There was nothing said about money or drugs. Just, can I take a message?” But the prosecution would later argue that this phone call helped prove that Brenda Valencia was part of a conspiracy and that her passenger had picked up some money at the home with Valencia’s help. Swept up in a raid, Valencia was sentenced to the mandatory minimum. “That’s the first thing my lawyer told me,” she recalls, “the mandatory minimum, that I couldn’t get less than twelve years, seven months. I knew I deserved punishment for being stupid. But twelve years, seven months? I couldn’t believe it. I tried to tell them, ‘Look at my bank account. I’m not a drug dealer. I’m a student, just a regular person.’”1
Although her case was Kafkaesque, it was also terrifyingly routine. In only one respect was it unique: it attracted plenty of attention, probably because U.S. District Court Judge Jose A. Gonzalez Jr., forced to pronounce the zero-tolerance sentence predetermined by law, called that sentence “absurd” and “an insult to justice.”2 Editorials blasted away at the rigidity of the statute that prevented Gonzalez from giving Valencia probation and a stern lecture. But eventually the media moved on. Valencia served the full sentence.
President Bill Clinton, who pardoned 140 people on his last day in office, January 20, 2001, ignored a petition from Valencia, even though it was supported by a letter from Judge Gonzalez. Among those Clinton pardoned was Marc Rich, who had been charged with fifty-one counts of tax fraud and had fled U.S. jurisdiction for a sanctuary in Switzerland before he was indicted. While Rich thumbed his nose at the rules, his wife made substantial donations to the Clinton library and Hillary Clinton’s Senate campaign. Now married and the mother of two, Brenda Valencia Aldana works in a counseling program for incarcerated teens. The pardoned Marc Rich, no longer a fugitive, remains a billionaire financier living in a Swiss villa surrounded by his private collection of Monets, Picassos, and Renoirs. The law never touched him.
As for Valencia, her confinement for all those years was no accident. It was part of a deliberate policy pursued by a prison-industrial complex that profits from harsh justice, injustice, and sometimes no justice at all. It was nurtured by intellectual sloth, the war on drugs, and the same gratuitous fear and loathing that Hunter Thompson found dictating so many corners of American society. The economic war waged against the vast majority of Americans by a determined group at the top of the financial scale at last found broad recognition in 2011, when the Occupy movement spread from Wall Street to cities around America. But few Americans have recognized the connection between accelerating economic inequality and the leap in incarceration that accompanied it. Both trends were made possible by the acceptance of the underlying premise that some people’s lives have less value than others.
Starting around the time President Ronald Reagan took office in 1981, a combination of economic, social, and political forces hijacked the criminal justice system, tossing punitive sentences around like Frisbees and creating a structure that works contrary to the mission of creating a safer, more humane society. Providing false solutions through political posturing, fear-mongering, and manipulating the twenty-four-hour news cycle has resulted in the incarceration of 2.3 million people, a population about the size of Houston’s.3 Most of these prisoners don’t belong behind bars.
A healthy society will always struggle to achieve a balance between freedom and security, but since 9/11 America seems to have abandoned this struggle. Freedom has received short shrift. With fear driving the agenda, we’ve heaped on additional layers of bureaucratic “security,” launched wars of vague purpose, and even surrendered some of our constitutional rights. Obliging courts have allowed government technocrats, hiding behind the little-known Stored Communications Act, to sift at will through our e-mails. The National Security Agency intercepts phone calls without judicial warrants. The National Defense Authorization Act, signed into law in 2012, allows the federal government to arrest American citizens on American soil for suspicion of terrorism and to hold them the rest of their lives without offering them a trial. President Barack Obama added a signing statement to the law, professing that his administration would never allow these abuses of American liberties, but even if he keeps his word, future presidents will retain this ominous power.
Meanwhile, stratification of wealth and income in the United States since 1980 has been well documented. This rising inequality contaminates the criminal justice system. As the government has coddled the top 1 percent, the plight of the 99 percent at its most desperate has been in many cases a life behind bars. The American legal framework has become less dedicated to sifting out the schizophrenics and drug abusers, for example, who have committed no crime against others but who find themselves behind bars because their traditional safety nets have been swallowed up by budget cuts at all levels of government. Their jailing is a crime against humanity. Consider also the petty offenders who, with proper help, could be steered into the mainstream via education and job training, instead of into the career-criminal underclass as a result of their unnecessary incarceration. Because the system holds so many inmates, the truly dangerous offenders more easily fall between the cracks.
The Land of the Free holds more prisoners than any other country in the world and has the highest per capita incarceration rate. Its prisoner ratio of 748 per 100,000 residents is nearly five times that of Spain, which has the highest ratio in Western Europe. With only 5 percent of the world’s population, the United States holds 25 percent of its prisoners, exceeding the per capita levels even of dictatorships such as China and Iran. In fact, one of every hundred American adults is behind bars.4
Defenders of the American system claim it jails so many people because it does its job more effectively, but any police state might make the same claim. When Casablanca’s Captain Renault instructed his subordinates to round up the usual suspects, he wasn’t terrribly as concerned about the rights of the innocent.
Obviously there are victims of vicious crimes whose circumstances cry out for justice and dangerous perpetrators who should be locked away for the good of society, but the United States imposes lengthy sentences on the Brenda Valencias, on drug users who can’t afford treatment, on low-grade shoplifters, and the mentally ill. In fact, the American Psychiatric Association points out that jails and prisons are the primary mental health care facilities in the United States.5
Jurists elsewhere are baffled by America’s curious infatuation with keeping so many nonthreatening people behind bars and in such awful conditions. The United States not only imprisons offenders who would not go to jail in other countries; it gives them long sentences. Supreme Court Justice Anthony Kennedy figures American sentences are eight times longer than those meted out in European courts. Justice Kennedy, usually described as a conservative, has noted that California’s infamous three-strikes law was sponsored by the prison guards union. “And that,” he says indignantly, “is sick.”6 This book’s title was derived from Kennedy’s searing description of a system that has taken a very wrong turn. In 2010 the prison guards he singled out were averaging more than $100,000 annually and belonged to the most powerful labor union in the state. Their pensions are fatter than those of nurses, teachers, or firefighters, and they continue lobbying for additional prisons, harsher sentencing, and even stiffer parole regulations. The guards make up one small segment of a nationwide prison-industrial complex. Arizona’s scheme to lock up suspected undocumented immigrants, for example, was an economic contrivance orchestrated by lobbyists employed by the increasingly powerful private-prison industry.7 Its corporate chieftains view the jailing of housemaids and busboys as a business opportunity.
Vivien Stern, a research fellow at the Prison Studies Center in London, has said that America’s bloated incarceration rate has made it “a rogue state, a country that has made a decision not to follow what is a normal Western approach.”8 James Whitman, a specialist in comparative law at Yale, points out that the United States is the only advanced country that incarcerates people for minor property crimes such as passing bad checks.9 But such pronouncements and innumerable similar studies have had little to no effect on this shockingly inequitable system.
In the French novel Les Misérables, after serving nineteen years in prison for stealing a loaf of bread and for the botched escape attempts that followed, Jean Valjean must carry a yellow passport that identifies him to all as a convict. His life is dogged by a relentless, often irrational judicial system in Victor Hugo’s fictional account of corrupted innocence, blind injustice, mercy, and redemption. U.S. prisons coast-to-coast are bursting with Jean Valjeans. The cruel details of “zero tolerance” are largely hidden from view. Jerry DeWayne Williams, for example, attracted fifteen minutes of fame when a judge handed him twenty-five years to life for stealing a slice of pizza in Redondo Beach, California. His sentence was later reduced to six years.10 Another Valjean, a laid-off construction worker, is serving three and a half years for wheeling a rusty bicycle with two flat tires and no chain out of someone else’s garage and then leaving it behind. The defendant, whose case never made the news, was Chris Martinez. He’s a friend of our family, and his case was part of the inspiration for this book. The list of Valjeans is endless and depressing. They spend day after day in a system that routinely dumps lesser offenders into a claustrophobic nightmare ruled by gangs and sociopaths.
All three Texas murderers who, in 1998, dragged a hitchhiker to a horrific death behind their truck were ex-cons.11 Sentenced originally as nonviolent offenders, they were ruined human beings when the justice system spit them out, willing to torture and kill a man because of his race. An intelligent system doesn’t make killers out of smalltime offenders. But foolish, even indefensible practices have a way of masquerading as reasonable after they’ve become standard procedure. Still, time has a way of holding up the past to the light of reason and exposing absurdity for what it is. Respected magistrates wearing judicial robes used to sentence people to death for witchcraft. Our Saudi allies still behead “witches.” Officials rendering these judgments in the Western world considered themselves sensible people protecting society from danger. Looking back from a more rational perspective, we see that their monstrous proceedings were divorced from truth, justice, wisdom, and decency. But by exercising intellectual honesty and examining solid empirical evidence, we no longer have to wait three hundred years to know when something is terribly wrong.
In addition to its blanket surveillance of electronic communications, our government confesses to ongoing torture (minus waterboarding), secret jails, vaguely accountable search and seizure, and a macabre list of other extraconstitutional procedures. In fact, our government holds terrorist suspects who, even if freed by the court, will, it assures us, remain jailed anyway. U.S. contractors who have killed unarmed civilians overseas reside in a legal limbo that blesses them with a mysterious immunity from courts. Officers of financial institutions who created absurd derivative securities based on phony collateral weren’t prosecuted and even gave themselves fat bonuses. Citigroup, for example, which suffered more than $27 billion worth of losses in 2008, paid an estimated $5.33 billion worth of bonuses for that year, as reported by then New York attorney general Andrew Cuomo in a detailed study he released July 30, 2009. He titled his report “No Rhyme or Reason.”
USA Today, after painstakingly assembling records from across America, reported in a major 2010 series that it had uncovered 201 documented cases since 1998 of federal prosecutors (the people’s attorneys) falsifying or suppressing evidence, suborning perjury, or committing other serious misconduct, just to boost their convictions. Citing privacy rules, the Justice Department refused to disclose whether any of the guilty prosecutors were subsequently disciplined.
The nation’s vast network of penal fortresses, some of them operated by low-bidding private corporations, is a gray, seething petri dish of menace and disease, constituting a cruel and unusual punishment that courts rarely recognize as such. This enormous system has gotten so out of hand that some states, reverting back to earlier eighteenth-and nineteenth-century practices, again jail debtors. Complainants initiating these proceedings are frequently collection agencies owned by the very lawyers who bought the debt for pennies on the dollar.
Psychiatrist Karl Menninger, after taking a good look at America’s criminal justice system, speculated that “all the crimes committed by all the jailed criminals do not equal in total social damage that of the crimes committed against them.” Society allows this system to steam ahead without knowing whether its practices are effective, “a total waste of time, or worse.”12 Menninger expressed these ideas in 1969, before the war on drugs began.
In the 1970s New York governor Nelson Rockefeller, still aspiring to be president, grabbed headlines by championing legislation that sent thousands of drug offenders away for a minimum of fifteen years to life. His “Rockefeller laws,” though eventually struck from New York statutes, were a beacon to other ambitious politicians looking for an express elevator to higher office. Michigan passed a bill that mandated life without parole for possessing 1.45 pounds of cocaine or heroin.13
From 1980 to 2003 the U.S. prisoner population quadrupled, and the number of imprisoned drug offenders skyrocketed 1,200 percent.14 In Washington, Congress established stiff mandatory sentences for a wide assortment of federal offenses and abolished parole entirely. The lives of millions of nondangerous lawbreakers were turned into throwaway items. Day after day police and prosecutors squeeze more of these people into America’s Gulag, as inmate education and other rehabilitative programs are quietly strangled to reduce the enormous expense of keeping so many people locked up. Judges not numbed by the parade of horrors find their hands tied in case after case.
In 2005 the Supreme Court ruled that federal judges could begin using the Federal Sentencing Guidelines, created as an outgrowth of the Sentencing Reform Act of 1984, as a guide rather than as a set of inflexible edicts. Even so, most federal judges continued to mete out the same stiff penalties anyway, treating them as mandatory. The thousands of convicts sentenced prior to the 2005 ruling continued to serve out their mandatory sentences without special appellate privileges. Among them was construction worker Brian Ison, sentenced in 2001 to eleven years, three months.15 At age eighteen, Ison was in the wrong place at the wrong time, buying crystal meth at a mobile home in rural Kentucky that was raided by Drug Enforcement Administration (DEA) agents. The home had been under surveillance for months. Under a complex web of drug laws, Ison was convicted in federal court for manufacturing five hundred grams of meth, even though only eleven grams were found on the property and he wasn’t a drug manufacturer. Witnesses thought they’d seen him help cook meth at the mobile home on several occasions. Ison, who’d had a drug problem since he was sixteen, was engaged to be married with a child on the way at the time of his trial. His daughter suffers from muscular dystrophy. His only previous nontraffic offenses were being a minor in possession of alcohol and drinking in public.
Any thinking person who spends much time within the criminal justice system cannot help but notice how wildly disparate sentences can be. It’s not unusual for federal defendants convicted of downloading child porn to get ten years for a first offense (twenty years if there’s been a prior conviction). But in November 2011 a circuit court judge in Naples, Florida, sentenced Daniel Vilca, twenty-six, a stockroom worker, to life without possibility of parole for downloading hundreds of photos of child pornography. Vilca, who had no previous criminal record, turned down a plea bargain offer of twenty years. Had he actually molested a child, he probably would have received a lighter sentence. Former federal judge Paul Cassell reasoned that Vilca’s crime was not victimless; if there were no consumers of child porn, fewer children would be victimized by it. However, Cassell also added, “a life sentence is what we give to murderers, and possession of child pornography is not the equivalent of first-degree murder.”16
Because laws are passed by politicians, there is fundamentally no advantage to standing up to extreme sentencing. It’s easier for an officeholder to look the other way as thousands of families are ripped apart by years and years of gratuitous incarceration than it is to leave one’s self open to just one Willie Horton. After twelve years in the Massachusetts prison system, Horton, a murderer and armed robber, was furloughed under a program that operated during Governor Michael Dukakis’s term in office. Once outside the walls, Horton disappeared. He turned up again in Maryland, where he raped a woman and stabbed her fiancée. He was subsequently recaptured. George H. W. Bush seized on the case as he coasted to victory over Dukakis in the 1988 presidential election. He injected it into speeches, and his political action committee gleefully plastered Horton’s ugly, sinister mug in TV ads. The story stuck to Dukakis like flypaper. The specter of Horton haunts officeholders to this day.
The Pew Center on the States reported in a 2009 study that the average annual incarceration cost for each inmate held by the states is $29,000.17 When KPBS Radio in San Diego crunched the California numbers in 2010, it figured the state’s true per-inmate cost at $50,000. The price triples, KPBS concluded, for geriatric inmates, who have special health needs.18 The growing population of elderly prisoners is the natural consequence of decades of megasentencing.
“Violent and career criminals need to be locked up, and for a long time,” said Adam Gelb, director of the Pew Center’s Public Safety Performance Project. “But our research shows that prisons are housing too many people who can be managed safely and held accountable in the community at far lower cost.”19 The number of violent criminals in prison has remained relatively constant for many years. Overcrowding stems from unreasonable sentences handed out to low-level offenders who could be rehabilitated in the community instead.
About a third of the nation’s prisoners are in city or county jails, many because they can’t post the absurdly high bail amounts with which they’re saddled. An addict charged with possessing a small stash of drugs can easily confront bail of a half million dollars. Any attorney who even hints that the bail is excessive risks angering the judge over a fight the defense can almost never win.
Defendants desperate to escape the confinement of tiny county jail cells or horrific dormitories seething with violence and extortion are quicker to plead guilty. As defendants consider their options, their attorneys inform them that if they exercise their constitutional right to demand a trial and then lose that trial, the judge will likely impose a harsher sentence than they would face if they settled out of court. It is standard operating procedure: judges exact a price from a defendant who jams up the docket. If the defendant had a job, he probably lost it after his arrest, and if he was living on his own, he probably lost his apartment. His old life has vanished. But just as a medieval prisoner’s confession could result in a grisly execution, the modern plea bargain can land the defendant in an even more dreadful situation than the one that drove him to take the deal.
In the federal system, about 95 percent of criminal defendants plead guilty. Of the remaining few who demand a trial, nearly nine of ten are convicted. “A ninety-plus percent conviction rate isn’t something that should be applauded,” says Pittsburgh attorney Paul Boas. “I think it’s something you should worry about. That’s what you see in totalitarian regimes.”20
Innocent suspects often plead guilty in the face of this pressure and intimidation. Under the right circumstances, almost any innocent person might confess in order to end the nightmare and do less time. Copping a plea to someone else’s crime is sometimes a terribly rational choice. Just as the race does not always go to the swift nor the battle to the strong, neither does justice always protect the unjustly accused. The Innocence Project, an arm of the Benjamin N. Cardozo School of Law at Yeshiva University, has helped hundreds of convicts, including seventeen who did time on death row, prove their innocence through DNA testing. The wrongfully convicted inmates served an average of thirteen years before exoneration and release. Approximately 25 percent of them had pleaded guilty.21 And these weren’t offenders who eventually won their freedom through a technical finding. These people were undeniably innocent. Over the last several years other innocence projects aimed at winning release for the wrongfully convicted have sprung up in other states, and their number grows. Each innocent convict released is a badge of both victory and shame.
Prosecutors work in a perpetual chess game, always seeking checkmate by routinely pushing for the stiffest penalty. And when a defendant is looking at a possible sentence of ten or fifteen years, a plea bargain offering a three-to-five stint can seem like a gift. Josh Bowers, a professor of law at the University of Virginia, concludes, “Even the innocent defendant may end up taking a plea because it’s the rational thing to do.”22
The hard-liners now running the criminal justice system follow a philosophy akin to the belief system that calls evolution and climate change “unproved theories.” They generate fear and disregard the human cost of their policies. Take the case of Joe Haskell.23 A crystal meth addict with two burglary convictions on his record, Haskell was driving through a Los Angeles alley in 2010 when he spotted some discarded scrap iron and two used doors, which he loaded into the back of his pickup. “It was leaning over the fence. I didn’t even enter the yard,” he explains. Following his arrest, a hard-nosed prosecutor offered him a fifteen-year burglary sentence, promising twenty-five-to-life if he went to trial. At the last minute the arresting officer, perhaps because of the trivial nature of the offense, came in on his day off and interceded. He helped Haskell cut a deal for seven years for petty theft. When I spoke with Haskell, he was in county jail waiting to enter a state penitentiary. He told me, “I’m doing time for stuff I already did time for. You used to be able to do your time, do something else, and do time for that. Now the time you did before, you do all over again.” Haskell has never even been suspected of a violent crime. Inside prison he’s known as an easygoing inmate who cools others with his peaceful presence. “I wouldn’t harm a bug,” he says.
Few of us want someone like Haskell reaching over the fence to take what he pleases, but only the heartless would want him to do twenty-five years for it. When I spoke to him, Haskell was off the meth and spending much of his jail time reading literature from Alcoholics Anonymous. But there are smarter, more effective ways to clean up addicts than sending them to prison. Haskell will be forty-nine when he is released. The odds of landing a good job after a third stretch won’t be favorable. Generally in such cases, the ex-con, put back on the street with a small sum of gate money (cash provided to inmates in some states upon parole), quickly goes broke, gets depressed, and starts using again. Maybe he steals something to raise cash. Then he tests dirty for his parole officer or skips the appointment. Or maybe he’s nabbed for the theft. Any of these scenarios lands him back inside unless he decides to become an informant. Given the standard deal, he’d need to turn in three offenders on charges that stick. That can be a dangerous choice, but enough people take the snitch route to create an ever-wider network of nabbed, small-time felons. They don’t know the kingpins, and even if they did, these small-time offenders probably would be too scared to turn them in. Addicts and their dime-a-dozen suppliers are law enforcement’s low-hanging fruit. They leave Day-Glo trails of money, dope, and paraphernalia. Picking these plums off the branches is safer and more lucrative for prosecutors than pursuing dangerous sociopaths, and a lot less work than pursuing white-collar criminals.
Haskell and other sorry souls like him are routinely warehoused behind bars. Their bunks are stacked in gymnasiums, hallways, wherever space can be found. Almost all of them were poor, homeless, drug-addicted, or all three before they went inside, and without constructive, cost-effective intervention, they will almost certainly revert to their preconviction status upon release. They’re at the absolute bottom of the socioeconomic pile. No group in America has less political clout. Unlike lobbyists and contributors from the prison-industrial complex, prisoners and their families aren’t out there golfing with legislators and inviting them to speak at four-star banquets.
Ironically, when Mario Cuomo governed New York and struggled to find room for all the human detritus from the Rockefeller drug laws, he built dozens of prisons by siphoning billions from the Urban Development Corporation, an agency created to build housing for the poor.24 The organization ended up performing its mission, only with a special Dickensian twist, building the prisons and workhouses invoked by Ebenezer Scrooge.
Hang around a courthouse long enough and you begin to see that almost everyone in it believes the defendants in their manacles and jail uniforms are guilty. As a case moves from station to station on the legal conveyor belt, evidence—or lack of it—comes into play, but so do attitudes and perceptions. When an Indiana jury convicted ex-boxing champion Mike Tyson of a rape he almost certainly didn’t commit, he told himself, well, he’d escaped punishment for other wrongful acts, so he wouldn’t let this outcome destroy him.25
Sentencing got tougher around the time of the Vietnam War as the crime rate went through one of its cyclical climbs. Then along came the eighties and with it the Reagan administration and the nirvana of zero tolerance. Twenty-four-hour news channels began to terrify the public with a never-ending parade of crimes, plagues, and overhyped disasters. British-style sensationalism blasted its way into the basic cable package with the launching of Rupert Murdoch’s hard-right, tabloid-inspired Fox News Channel in 1996.
News, journalism textbooks exclaim, is man bites dog, not its inverse. Following this dictum, journalists routinely splash in the blood of exceptional events, the more traumatic and violent the better. Yet this directly contravenes the paradoxical claim that the news conveyed to the public is an accurate reflection of society at large.
During the nineties, as round-the-clock news ramped up the value of whatever was repulsive and objectionable, three-strikes laws, which mandated tougher sentences for each “strike” and an extended or life sentence for a third consecutive felony, became popular. The term “three strikes” had an instantly recognizable, irresistible ring to it. It was lousy law but a brilliant marketing slogan. Twenty-six states and the federal government now have three-strikes statutes covering a smorgasbord of “serious” offenses that in some states, notably California, could include nonviolent or even petty crimes, such as the previously cited bicycle and pizza thefts. Inherent in many of these hard-line statutes is the belief and practice of preventive detention. That is, even if the defendant didn’t inflict much damage on this particular occasion, next time he might, so why not use this opportunity to keep him off the street?
The process became even more grievous after the Great Recession rolled across the country in 2008. To maintain their hard line on criminal justice, states cut funding to social service agencies, thus smothering recreation, drug counseling, and sports programs and axing teaching staffs and classes. At the same time they closed down clinics and libraries and crossed their fingers in hopes that more bridges wouldn’t collapse. Parole officers’ caseloads rose to impossible heights. They spent so much time keeping track of people who were never a threat in the first place that they paid less attention to dangerous criminals.
To hit the pause button on all this, lawmakers would have to ramp up education, humanize criminal statutes, build aggressive antipoverty programs, and make therapy for drug abuse robust and truly accessible. But that would provide their political opponents with the opportunity to brand them as soft on crime in TV ads financed by the hard-line lobby. The safer political course is to stand back and let sick justice take its course, as it did in the cases of Brenda Valencia, Jerry DeWayne Williams, Joe Haskell, and so many others.
America has a hard time looking beyond its borders for ideas that work. Year after year its health care system puts up relatively awful statistics on longevity, infant mortality, costs, and other key demographic measurements. Yet when reforms were proposed during the early part of the Obama administration, many politicians argued that it was senseless to change what they called the “best health care system in the world,” and their argument almost carried the day. In the same vein, few Americans realize how irrational and gratuitously cruel our criminal justice structure is or how it got that way.
The absurdities of the system could never have become so pronounced were they not boosted by the robot logic of Jean Valjean’s obsessed nemesis, Inspector Javert, Victor Hugo’s humorless peace officer who disdains humanity and compassion. Our system is teeming with Javerts, without whom there could be no Valjeans.
Oddly, the U.S. criminal justice system leans toward victimizing the defendants who deserve a break and awarding prizes to career criminals who don’t. When Brenda Valencia was arrested in Florida, she knew no one on whom she could inform to reduce her sentence. Because she wasn’t a drug dealer, she had no underworld connections and nothing to trade. “But the guy who originated the deal,” she told me, “got fifteen months. His wife served no time at all. The two who did the most got the least time. The two who did the least got the most time.”
Tell this story to lawyers who work in criminal courts day after day and they’ll look at you quizzically, as though waiting for the punch line. They see these cases all the time. Talking about it just makes it worse. Offenders know it’s safer to snitch on people who aren’t terribly guilty. Because they’re not part of a criminal network, they’re less likely to wreak vengeance or spread the word about informants.
If hard-liners took a pragmatic look at the chaos and injustice created by their callousness, they might realize that tossing around harsh sentences has the potential to create crime. It produces a glut of ex-cons who are largely unemployable in a tough job market and, should they return to crime, provides them the incentive to leave no witnesses.
Most middle-class people don’t know anyone in the penitentiary system and thus tend to think of inmates as the “other,” a dangerous, barely human type best kept behind bars. Hapless wretches are routinely shuffled from sad urban rat-scapes into local jails and out to rural penitentiaries without arousing much notice. Swept from the bottom of the socioeconomic strata, their cries are drowned out by the louder voices of dying industries and occupations, unemployment, debts, taxes, underwater mortgages, wars, Monday Night Football, and celebrity dance contests. But there are plenty of neighborhoods with residents who understand how easy it is to get swept into the U.S. Gulag. They know flesh-and-blood human beings—family and friends—who experienced it. One in nine African American men aged twenty to thirty-four is in prison, many because of drug laws that lack a key ingredient—a victim. So even though people residing in high-crime areas are far more likely than other Americans to be harmed by crime, they tend to retain compassion for arrestees.
Seventy percent of children with a parent in prison wind up being incarcerated themselves.26 It’s as though our civilization prescribes jail as a standard solution to all manner of situations, some of which have only a tangential relationship to criminality.
The prison-industrial complex proffering a one-size-fits-all solution to so many societal problems isn’t made up of just the guards’ union and prison corporations. It also includes service contractors, prosecutors, judges, bailiffs, court secretaries, clerks, police officers, and the politicians passing the draconian laws so diligently sought by their benefactors who maintain the sprawling complex of lockups. Other insider corporations secure contracts for practically free convict labor and sometimes use it to replace nonconvict workers, who then get laid off. Working separately and together, these components of the industry have set our criminal justice system on autopilot and aimed it far beyond the boundaries of the rest of the civilized world. At the same time they’ve managed to skirt the pragmatic tests for which America has long been celebrated, establishing, bit by bit, an unreasonably cruel system that devours an increasingly larger slice of our citizenry.