REFORMING THE INCARCERATION NATION

Can We Balance Social Justice With Legal Justice?

About two million people are currently incarcerated in the United
States, a fact from which various observers have drawn widely varied
inferences. Some believe that, because a disproportionately high
number of prisoners are poor African Americans and Latinos, the
"prison/industrial complex" is part of a racist conspiracy to oppress
non-Whites and to further enrich the wealthy Others, unconcerned about
the huge prison population, simply accept that large numbers of
criminals require large numbers of prisons to contain them -- regardless
of the criminals' background or color. People whose main concern is
social justice often have little interest in -- and may even
oppose -- efforts to bring about strictly legal justice. Meanwhile those
who focus primarily on legal justice are often unconcerned with--and,
in some cases, opposed to -- social justice.

But why must legal justice and social justice be mutually exclusive?
Why should people's politics determine the kinds of justice they will
support or oppose? It is only fair -- indeed, just that people strive for
a single standard of justice whenever the subject of justice arises.

Incarceration And Race

A principal consequence of America's War on Drugs has been a sharp
increase in the U.S. prison population. During the Reagan and Bush
administrations of the 1980s, Congress established harsher penalties
for drug dealers and gave broader powers to law enforcement. The
government spent billions to combat the drug scourge. In 1986,
Congress mandated significantly longer prison sentences for people
convicted of possessing crack cocaine than for those possessing
cocaine in the powdered form. Because most crack users were Black,
many within -- and outside -- the African American community believed the
laws were part of a racist conspiracy to imprison Blacks. In truth,
however, many Blacks supported these laws -- including the Congressional
Black Caucus. Black neighborhoods were being terrorized in violent
crack wars nationwide. Lawmakers from all backgrounds felt extreme
measures were needed to save Black neighborhoods.

The conclusion seems inescapable: Blacks and Whites have identified
Blacks as the main targets of the War on Drugs. According to a report
issued by Human Rights Watch, a non-governmental organization that
monitors human rights abuses worldwide, Blacks account for 62.7
percent of all drug offenders sent to state prison. Whites account for
just 36.7 percent. Yet according to the U.S. Department of Health and
Human Services' Substance Abuse and Mental Health Services
Administration (SAMHSA), there are five times as many White drug users
as Black. Another SAMHSA survey found that drug users most often buy
drugs from dealers of their own racial or ethnic group. Between 1991
and 1993 SAMHSA researchers found that 16 percent of admitted drug
dealers were Black and 82 percent were White -- a ratio radically at odds
with the racial makeup of the population imprisoned on drug offenses.
Clearly, the War on Drugs is largely a war on Blacks.

Social justice advocates argue that it is unfair to imprison vast
numbers of poor, Black criminals, in part because such offenders
cannot afford criminal lawyers capable of mounting a competent
defense. Many liberals and radicals further maintain
that poor Blacks who break the law are victims of an unjust,
racist society that leaves them few viable options. On this view
offenders from highly disadvantaged backgrounds should be viewed more
as victims than as criminals.

But what does it mean for this view when the supposed victims become
violent criminal victimizers? Are their victims entitled to legal
justice? Or should society exonerate poor criminals in the name of
social justice without regard to victims' plight? Should anyone other
than the victim or the victim's loved ones have the right to forgive
the victimizer?

To social justice advocates, rehabilitation, not retribution, should
be the goal of the justice system. But these, too, need not be
mutually exclusive alternatives. It is certainly important to guard
against cruel and unusual punishment. To dispense with punishment
altogether, however, would be an unwitting call for vigilante or
"street" justice. Every society must give its citizens hope that they
can turn to their legal system for justice.

The Causes Of Crime

What are the root causes of crime? On the conservative Christian view,
Satan tempts fallible human beings to commit evil acts and only God
can save them. Therefore spirituality is the answer to the crime
problem. This simplistic view falls, largely because it shifts the
ultimate responsibility for crime from the individual and society to
beings for whom there is no clear evidence. If God created Satan or
allows Satan to exist, God is ultimately responsible for crime, though
Satan is set up as the fall guy (And if God is responsible for crime,
what can any human justice system hope to do about it?)

In reality however, the causes of crime are very complex and
multidimensional. A partial list of the factors leading to crime would
have to include all of the following poverty lack of opportunity,
desperation, substance abuse, fear, greed, hatred, ambition,
selfishness, loneliness, peer pressure, uncontrolled rage, lack of
love, lack of ethical guidance, poor parenting skills, family
dysfunction, child abuse, violence in the home, a crassly
materialistic culture, the glamorization of violence in the popular
culture, and easy access to guns.

Is Opportunity The Antidote?

Social justice advocates believe the best way to reduce crime is to
bring about social and economic justice, primarily by reducing poverty
and increasing opportunity. One way to reduce poverty is to create
more jobs paying good wages. Yet most high-paying jobs supposedly
require college degrees, which many poor Americans are unable to
attain. Traditionally only a minority of citizens throughout society
has earned degrees. Moreover, if college education is not free, as it
is in some nations, the college-educated minority may continue to
shrink. This could cause the crime rate to rise.

Access to the workplace is an additional complication. Many
more-desirable jobs are created in the suburbs rather than the inner
cities. People from the inner cities often lack transportation. Making
matters worse, suburban Whites frequently oppose public transport
route expansions that would give inner-city non-Whites improved access
to the suburbs.

Indeed, getting to and from work can be downright deadly for the
inner-city poor. In 1995, Cynthia Wiggins, a Black teenage mother from
Buffalo, New York, was struck by a truck as she tried to cross a busy
intersection. She later died of her injuries Wiggins was trying to get
to work at the Walden Galleria a mall located in Cheektowaga, a
Buffalo suburb. At the time, buses from the city were not allowed on
mall property. After Wiggins's death, mall owners permitted buses to
enter. (Since then, more blacks have been hired at the mall).
Eventually famed attorney Johnnie Cochran helped to win a
multimillion-dollar wrongful death suit in favor of Wiggins's family.

The implications of all this for ex-convicts are stark. When
reentering society their first priority will be finding work. But
employers often refuse to hire job applicants with criminal records.
Yet, if ex-convicts cannot find employment, they are far more likely
to return to crime. Hardliners may argue that former convicts should
have thought about the consequences of their actions before they
committed the criminal acts that caused their imprisonment. But if
ex-cons cannot find gainful employment, society will continue to
suffer under the burdens of spiraling crime and the taxes to pay for
recidivists' re-imprisonment.

Childhood's End?

Observers from across the ideological spectrum are exasperated by
heinous crimes committed by youthful offenders. Increasingly children
charged with particularly violent and horrific crimes find themselves
being tried as adults. The Justice Department reports that some 3,500
juveniles already serve time in adult prisons. Moreover, the United
States leads the world in putting juveniles to death, a practice
outlawed in nearly every other nation.

In forty-seven states, lawmakers have made it easier to convict
children as adults. For example, Florida prosecutors may try children
of any age as adults when charged with crimes punishable by life
imprisonment or death. They may also try children as young as fourteen
as adults for arson, robbery, kidnapping, armed burglary, aggravated
stalking, and other crimes. Florida resident fourteen-year-old Lionel
Tate was sentenced to life in prison in the violent death of
six-year--old Tiffany Eunick. The defense argued that the 170-pound
boy was merely imitating the moves of professional wrestlers, and that
he killed the 48-pound girl by accident. Tiffany however, had a
fractured skull, a lacerated liver, and over thirty additional
injuries. Tate -- who was twelve at the time of the death was convicted
of first-degree murder. Judge Joel Lazarus denied a request to reduce
the sentence to second-degree murder or manslaughter. He said that the
beating was "cold, callous, and indescribably cruel."

Tate is one of the youngest defendants in U.S. history to receive a
life sentence. The prosecutor said that the sentence was so extreme
that he would support clemency. Defense attorney Jim Lewis has
appealed and asked Florida Governor Jeb Bush to lower the sentence. As
of this writing, Bush is considering clemency. Several famous
attorneys, including Cochran, have traveled to Florida to press for
reduction in the boy's sentence.

Ironically a child convicted as an adult might get less time than if
convicted as a juvenile. In Ohio, Oregon, Illinois, and Minnesota,
juveniles convicted as adults for some nonviolent crimes receive
shorter sentences than those convicted of the same crimes as juveniles.

Everyone must be held accountable for his or her actions, regardless
of age. And, despite what many experts say to the contrary at least
some youthful offenders know exactly what they are doing. But every
case is different. Some states have found creative, effective ways to
combine juvenile and adult sentencing practices. A child might be
convicted as an adult, yet serve time in a facility for juveniles. If
not successfully rehabilitated by the time of his or her majority only
then is the offender transferred to the adult penal facility

Faith Is Not Enough

Religion does not always have humane answers to modern problems.
Though some religionists advocate progressive approaches to crime and
punishment, in doing so they must disregard their own sacred texts.
Typically scripture offers harshly primitive views on legal and social
justice. The first -- or Old Testament, for example, endorses a
tit-for-tat, "eye--for-an-eye" brand of justice. Moreover, the
biblical death penalty -- stoning is both cruel and unusual by
contemporary standards of justice.

The Bible was written at a time when society had no conception of
universal human rights. We see this clearly when we read, for example,
that if a man rapes a virgin he must buy her from her father for fifty
shekels of silver and remain married to her until one of them dies
(Deuteronomy 22:28--29). Leaders must stone people to death if they
work on the Sabbath (Numbers 15:32--36). Innocent people are to be put
to death because of the "sins" of their parents (2 Samuel 12:14). The
Bible also commands the death penalty for those who embrace different
religions or practice astrologer. Under Old Testament morality
disobedient children do not have to worry about serving life in
prison, but their parents may have them stoned to death!

These notions of justice are not always relics of the past. In some
nations such as Iran, law enforcement officials still stone offenders
to death. In Saudi Arabia, those convicted of theft may have their
hands chopped off. These nations might have low crime rates, but the
price paid in fear and inhumanity is grotesque. At the same time,
those who would work for justice worldwide must guard against both
cultural chauvinism and cultural relativism.

Felons And Disenfranchisement

The U.S. prison system has numerous failings. One of its most
reprehensible is the denial of the right to vote to millions of
Americans. About four million people lack the right to vote because of
felony convictions. Ex-felons may be disenfranchised even for minor
offenses, or even if they had never been jailed or imprisoned. Many
are disenfranchised for life -- even after they have paid their debts to
society

The Sentencing Project is a nonprofit organization that fights for
sentencing reform and engages in scholarly research in the area of
criminal justice. With Human Rights Watch, the group published a report
titled "Losing the Vote: The Impact of Felony Disenfranchisement Laws in
the United States." The report--published in October 1998 pointed out
many startling inequities, including:

One and one-quarter million persons disenfranchised for a felony
conviction are ex-offenders who have completed their criminal
sentence. Another 1.4 million of the disenfranchised are on probation
or parole. (Only 27 percent of the disenfranchised are in prison.)

Thirty-six percent of the disenfranchised are Black men.

Ten states disenfranchise more than one in five adult Black men; in
seven of these states, one in four Black men are permanently
disenfranchised.

Given current rates of incarceration, three in ten of the next
generation of Black men will be disenfranchised at some point in their
lifetime. In states with the most restrictive voting laws, 40 percent
of African American men are likely to be permanently
disenfranchised.

Many other countries let not only felons, but prisoners,
vote--including France, Peru, Japan, Kenya, Israel, Norway Sweden,
Poland, Denmark, Zimbabwe, Romania, and the Czech republic.

There is no good reason why prisoners should be forbidden to vote,
unless they have been convicted of election fraud or a similar
offense. Moreover, it is both irrational and unconscionable to
deprive people of the right to vote after they have served their time.
What better way to re-integrate ex-convicts into society than to grant
them the internationally recognized right to vote?

A Plea For Justice Unskewed

At the same time, critics who complain about lax treatment of
criminals are not always in the wrong. Too often criminals escape
legal justice and rehabilitation by means of technicalities, plea
bargains, light sentences, ineffective "anger management" programs,
errors by incompetent jurors, and tile like. The guilty are then free
to commit other crimes and to victimize more innocent people.
Law-abiding citizens richly deserve the right to live in safety a
right that must never be jeopardized or abandoned in the name of
social justice. The legitimate rights of victims must never be
trampled upon in misguided efforts to rationalize the crimes of the
guilty Just as there is a need for prison reform, I would argue that
there is a corresponding need to reform and punish the guilty

Social justice activists generally oppose harsh prison sentences. But
they will work doggedly to send certain alleged offenders to prison.
For example, a civil rights worker might fight to imprison a cop
charged with police brutality or a person or group charged with a
hate crime. Yet this same civil rights advocate might work to defend a
poor inner-city male caught in the act of murder. Similarly a
radical feminist might work to free women convicted of violent crimes,
yet work to imprison a man accused of rape or sexual assault. In these
cases, social justice advocates often attempt to use the legal system
to make a political point, rather than to seek true legal justice. In
their eyes, "justice" simply means sending an accused member of a
particular group to prison -- regardless of whether the accused is
innocent or guilty An excellent example of this phenomenon was the
Tawana Brawley rape hoax in New York in the 1980s. Despite all
evidence to the contrary civil rights advocates insisted that the
teenager had been raped, and destroyed the reputations of innocent
people in the process.

When people strive to realize a single standard of justice in every
situation, such blunders are less likely "No justice, no peace" is not
mere politically loaded rhetoric. It represents a serious effort to be
fair and to arrive at the truth.

A Hopeless Proposal

Angela Davis, Minister Louis Farrakhan of the Nation of Islam (NOI),
and others have suggested that Black prisoners be summarily released
from the U.S. prison system. Farrakhan has suggested that he could
take large numbers under his wing and ensure their rehabilitation.
This unrealistic and unworkable proposal strains credulity: NOI has a
relatively small number of devotees (although it's said that no one
knows the exact number, current estimates range from five to twenty
thousand), nowhere near enough to assist the whole of the Black prison
population. Further, the vast majority of American Blacks are
non-Muslim. Finally government has no business remanding ex-cons into
an authoritarian, theocratic, patriarchal, and reactionary religious
organization that influences anti-democratic leaders worldwide.

However, there must be ways in which the prison population can at
least be greatly reduced. There is a clear correlation between
unemployment and crime: the crime rate for employed Blacks is only
slightly higher than that for employed whites. Yet the number of Black
men attending college steadily declines. About half as many Black men
attend college as Black women. Meanwhile, the prison/industrial
complex continues to grow by leaps and bounds. Society would serve
social justice and realize enlightened self-interest by making
education, and consequently gainful employment, more equitably
available to all citizens.

Crime Does Pay - For Some

Before this can happen, American society must come to terms with
businesses that benefit from the prison/industrial complex and hope
to preserve the status quo. Although businesses such as prison
operating companies do not cause crime, it is at least problematic
when correction systems form dubious partnerships with private
enterprise. At the least, there is the appearance of impropriety that
undermines faith in institutions when businesses thrive from and
become dependent upon the incarceration of millions of citizens. It
suggests that the government has decided to give up on serious efforts
at crime prevention and rehabilitation, and settle for relying on the
private sector to warehouse criminals to the end of their days. That
is not the message that government should send to the citizenry. The
government, not private industry should run the nation's prisons.

An Issue Of Life And Death

But should the government be responsible for putting criminals to death?
Seventy countries worldwide outlaw capital punishment. So do twelve U.S.
states and the District of Columbia. Across virtually the entire
democratic world, the United States is regarded as incredibly reactionary
where the death penalty is concerned. In February Felix Rohatyn, U.S.
ambassador to France from 1997 to 2000, wrote in the Washington Post:
"There is a strong belief among our European allies that [the death
penalty] has no place in a civilized society"

Capital punishment is illegal under European and Canadian law European
and Canadian authorities will not return alleged criminals to nations
where they could face the death penalty For this reason, convicted
Pennsylvania killer Ira Einhorn remains a free man in France, four
years after his capture. Likewise, James C. Kopp -- who stands accused of
killing abortion provider Barnett A. Slepian -- probably will not be
extradited by French authorities unless the death penalty is waived.

Near the time of Kopp's arrest, French President Jacques Chirac
addressed the U.N. Human Rights Commission in Geneva and supported
"the universal abolition of the death penalty with a first step being
a general moratorium." American lawyers and lawmakers have made
similar calls.

There might be at least one good reason to administer the death
penalty. If an unrepentant first-degree murderer kills again while in
prison, one could persuasively argue that prison was not an effective
deterrent for that murderer. Moreover, be might escape and kill again.
It would not be right to give him more chances to kill. Generally
however, the death penalty is unnecessary. Killing the murderer will
never bring closure to the victim's family Indeed, nothing can. They
will be in mourning as long as they are of sound mind. Life in prison
with no chance of parole, however, is a very harsh, though fair and
humane, punishment.

It is time to take a comprehensive look at proposed solutions to
crime and poverty Social justice, economic justice, and legal justice
are all important. It is time to develop what Robert Green Ingersoll
called "a caring rationalism" in efforts to strive for true justice
for every citizen in all the arenas of life.

Conflict resolution programs, early-child intervention programs, crime
prevention programs, mentoring programs, stress management programs,
moral education, parenting classes, parental support programs, drug
prevention and rehabilitation programs, youth summits, and a host of
other solutions have already demonstrated their effectiveness in
reducing crime. Despite sensationalized media accounts of violence,
juvenile arrests in most categories of violent crime have fallen in
recent years. Moreover, psychologists, scholars, and law enforcement
officials agree in predicting an even sharper crime rate decrease in
the near future.

Positive and creative thinking wedded to activism can continue to
make all the difference in the world. The role of the death penalty -- if
any -- should be vanishingly small.