Mad As Hell About the Failed U.S. Prison System

Yeah, I'm angry. I'm all riled up because our misguided criminal justice policies destroy individuals, families and entire communities. I'm steamed because at a time of financial crisis worse than any downturn since the Great Depression, government throws away billions of dollars (more than $39 billion, by most estimates) on policies that have proven to be abject failures. And I'm furious that people continue to call for ever harsher sentences, penalties and the further stigmatization of offenders in the face of overwhelming evidence that current practices are counter-productive and unsustainable.

It's especially frustrating, because we know that there are more positive, effective means of holding criminals accountable that are far more successful and far less costly.

The insatiable desire for vengeance is itself mad! The statistics are stark, and by now familiar. The U.S. incarcerates more people than any other country in the world, whether you consider it in terms of a percentage of the population or in absolute numbers. Yes, more than South Africa during the years of apartheid. More than the Soviet Union before its dissolution. More than China. And more even than the brutal regime of North Korea. Shameful!

Roughly 2.4 million people are locked up in this country, many for nonviolent offenses. Some reports conclude that as many as 50% of federal prisoners are serving time for drug-related offenses. (In some future article, I'm sure I'll get around to discussing the draconian drug laws that infringe personal liberty in this "land of the free," but at the moment there are bigger fish to fry.)

It's crazy! It costs an average of about $24,000 a year to lock somebody up. But years of experience, social science research and common sense all point to work, education and the strengthening of family and community ties as the best way to bring criminal offenders back into the fold. And after all, given that 95% of prisoners eventually return to our communities, shouldn't that be our objective?

Prisoners are people just like us: sons and daughters, brothers and sisters and mothers and fathers of people we all know. And in case you don't think you could possibly find yourself among them, staring out from a small, foul-smelling cell through cold steel bars, think again. There are more than 4,000 federal criminal laws, and vastly more federal regulations that can lead to criminal penalties. Additional laws and regulations at the state level mean that virtually everyone violates the law every day.

Don't believe it? How 'bout on the highway? Your taxes? And, hey! Ever heard of the "honest services" law? Under that laudable piece of legislation, a person can be convicted and sentenced to prison for depriving another of "honest services." (18 U.S.C. § 1346, just in case you're doubtful.) What are "honest services," you might well ask?  No one knows because the law doesn't define them and the courts have yet to decide. The issue was heard by the Supreme Court on March 1 (Skiling v. U.S., Docket No. 08-1394), but at least until a decision is announced, don't take anything home from your job.  Be sure to perform your work competently, and for goodness sake, be punctual. It simply wouldn't do to be late for work or stay too long on a break. It might turn out to be criminal! So, be kind to your fine feathered friends. For a duck may turn out to be you!

We can find better ways to use $39 billion than locking people away for years at a time, especially when they pose little or no risk to the public. Instead, require the perpetrator to rectify the wrong done (if there was a wrong done). Surely crime victims are better served by being repaid for financial harms sustained or receiving compensation for injuries inflicted. Currently, they have to be content with the offender's incarceration and an noncollectable restitution order. An offender who's required to truly "pay" for the crime would be more likely to realize the error of his or her ways than someone who's warehoused with more dangerous career criminals, and all without access to meaningful opportunities to work and gain an education.

Here's an idea: Let's reserve expensive prison cells for those who really must be punished harshly: people, that is, who pose too great a risk to public safety or social order. As for others, let's see if we can get them to pay for their crimes in rational ways. If such an approach fails, it's never too late to lock 'em up. To me, that makes a lot more sense. But no politician has ever lost an election by advocating the criminalization of an ever-expanding range of conduct. To many of them, I suppose that abandoning such a potent political lever would seem insane.

Someone defined the term "crazy" as doing the same thing repeatedly, expecting a different result each time. We'd be crazy to continue the failed policies of the past. They simply cannot be sustained. Sooner or later, we'll run out of money. (Oh, wait. We already have.)