JUSTICE DUNGEON

2.3 Million Behind Bars in the 'Land of the Free'

The United States has more people in prison and jails, 2.3 million,
than any other country. China, with a population four times as large
and a reputation for repression, is a distant second, with 1.6
million people behind bars.

Those aren't figures to be proud of or take comfort in. Nor can they
be justified by the falling crime rate. The New York Times quotes
Paul Casell, a law professor from the University of Utah, saying that
"one out of every 100 adults is behind bars because one out of every
100 adults has committed a serious criminal offense." The quote,
reported without qualification, is a flat-out error in at least one
regard: Based on 2006 figures by the Sentencing Project, 62 percent
of jail inmates, or almost half a million people, were not
convicted, but awaiting trial in jail.

The assumption that people are in jail because they unquestionably
deserve it is wrong in other regards. Puffing on a marijuana joint or
taking a snort of cocaine may be considered a "serious criminal
offense." But it is so only because it's been categorized as such.
Taking a puff of marijuana is demonstrably less dangerous than
getting drunk, while taking a snort of cocaine does not in and of
itself pose harm to anyone. Drug use is not the same thing as drug
abuse. The law treats the two as such, which is like treating
recreational drinking as alcoholism. The result has been an explosion
of imprisonment for personal vices rather than violent crimes.

Drug arrests, especially for innocuous drugs like marijuana, have
more than tripled in the last 25 years. In 2005, more than 42 percent
of all drug arrests were for marijuana offenses. In 1980, just 41,000
people were in prisons and jails on drug offenses. That number has
risen to half a million. The criminalization of largely victimless
behavior has little to do with the prevention of violent crime.

The country's disproportionate prison addiction is even more
disgraceful when racial disparities are taken into account. The
numbers suggest that blacks and other minorities, who constitute more
than half the prison and jail population, are more predisposed to
commit crimes than whites. In fact, laws are predisposed to punish
minorities, and blacks especially, more than whites. Judging from
arrests and sentences for the very same offenses, cops, judges and
juries, who tend to be white, are predisposed to punish blacks and
other minorities more than whites. (Blacks account for 14 percent of
the country's regular drug users, for example, but 37 percent of
those arrested for drug offenses.) It hasn't helped that
legislatures, including Florida's, have diminished judges' discretion
through mandatory- and minimum-sentencing guidelines.

Cash-strapped and felon-filled states are discovering that the
politically expedient punish-and-banish habits of the last 25 years
have created more problems than they're solving -- in costs to
taxpayers, in broken families, in untreated diseases, in fostering an
enormous subculture of ex-felons (Florida has more than 1 million
out of a population of 18 million) who'll struggle to find willing
employers. Last year Texas radically altered course, investing
millions in drug treatment, diversion beds, parole procedures and
drug courts. Nevada is releasing inmates who "earn time" by
completing rehabilitation and education programs. Kansas is no longer
imprisoning "technical" parole or probation violators -- people who
miss a drug test or an appointment with a supervisor. Instead,
they're diverted to some form of community service.

All of those approaches have value. So would reforming the mindset
that one-cell-fits-all punishment has much to do with crime-fighting,
let alone with justice.