PRISONERS OF PANIC

Media Hype and Political Quick Fixes Have Swelled Our Inmate Population.

How much more folly, absurdity, fiscal irresponsibility and human
tragedy will we endure before we stop tolerating the political
pandering that has dictated our criminal justice law and policy over
the last two decades?

The pattern has become all too clear. Our politicians, fearful of
being labeled "soft on crime," react to sensationalistic coverage of
a crime with knee-jerk, quick-fix answers. Only years later do the
mistakes, false assumptions and unexpected consequences begin to
emerge, and then the criminal justice system is forced to deal with
the mess created by the bad lawmaking.

For example, remember the great crack scare of the 1980s? When
basketball superstar Len Bias, who'd been drafted by the Boston
Celtics as a franchise player, died of a crack overdose, the media
went wild in covering it. Alarmed by the sudden increase in crack use
and fearful that the drug was highly addictive and disposed users to
commit violence, Congress mandated tough minimum sentences for
crack-related crimes. A defendant convicted of possessing a small
amount of crack could receive the same sentence as one possessing 100
times that amount of powder cocaine. Because crack users were
disproportionately African American (and powder cocaine users were
disproportionately white), 85% of those receiving dealer-like
sentences for possession or sale of small amounts of crack were black
- -- an outcome that helped to fuel widespread perceptions among blacks
that there was a double standard of justice in the U.S.

In December, the overly harsh and misguided sentencing policy
concocted during the "war on drugs" in the 1980s was finally
modified. The U.S. Supreme Court ruled that judges were no longer
bound by the strict sentencing guidelines, freeing the jurists to
craft punishment that best fits the crime and the background of the defendant.

The 1990s produced its own racially tinged crime panics. Led by John
J. Dilulio Jr., a political scientist at Princeton University, and
William J. Bennett, a former secretary of Education in the Reagan
Cabinet, law-and-order proponents declared that the U.S. was being
overrun by a new generation of remorseless "super-predators" spawned
by crack-head mothers in violence-infested ghettos. Stories of kids
committing heinous crimes were common in the media. One of the most
sensational occurred in Chicago in October 1994. Two boys, one 10
years old, the other 11, dropped 5-year-old Eric Morse from the 14th
floor of a housing project, killing him, because he refused to steal
candy for them.

In response to such crimes, politicians across the country passed
anti-super-predator laws. In many states, including California, the
age kids could be tried as adults was lowered to 14, and in 48
states, the decision to try juveniles as adults was taken away from
judges and given to prosecutors. As a result, the number of people
under 18 tried as adults rose dramatically through the 1990s, and a
small percentage of them were even sentenced to prison. Ironically,
the predicted crime explosion caused by super-predators never
materialized. Juvenile arrests declined by more than 45% from 1994 to
2004, according to FBI statistics.

But the ultimate example of media hype meeting irresponsible
politicians to produce bad public policy is California's
three-strikes law. It was chiefly written by Fresno photographer Mike
Reynolds after the murder of his daughter, Kimber, in 1992.Introduced
in the Legislature, the bill languished until the rape and murder of
12-year-old Polly Klaas in 1993. A network of right-wing talk-radio
hosts reacted to the killing by fiercely promoting Reynolds' measure,
which had provisions like no other three-strikes bill in that
virtually any crime, no matter how petty, could be prosecuted as a
third strike.

In 1994, the Legislature unanimously put the measure on the November
ballot, and Proposition 184 passed easily. The law would eventually
send thousands of Californians to prison for 25 years to life, some
for such third-strike crimes as attempting to steal a bottle of
vitamins from a drug store, buying a macadamia nut disguised as a $5
rock of cocaine from an undercover cop and shoplifting $2.69 worth of
AA batteries.

Today, Californians are still paying the price for that folly and
other like-minded laws, not just in the ruined and wasted lives of
people sentenced under these laws, but in other ways. There are now
tens of thousands of inmates in California convicted of nonviolent
crimes and serving out long second- and third-strike sentences, as
well as thousands more behind bars because minor crimes were turned
into felonies with mandatory minimum sentences.

All these laws have contributed to severe overcrowding in the state's
prisons -- as high as 200% of capacity -- that has produced
conditions of such "extreme peril" for prisoners and guards that Gov.
Arnold Schwarzenegger was forced to declare a systemwide state of
emergency in 2006. Since 2003, the inmate population has grown 8%, to
about 173,000. But the budget of the Department of Corrections and
Rehabilitation has skyrocketed 79%, to $8.5 billion, becoming the
fastest-growing category in the state budget and a factor in opening
up a $14-billion budget deficit.

The get-tough-on-crime laws also have helped create a crisis in
California's prison healthcare system, where spending has risen to
$1.9 billion a year, up 263% since 2000. A large part of the problem
is that the prison population is aging because inmates are serving
the longer sentences approved by lawmakers, and with aging comes more
medical problems. The system became so understaffed and dysfunctional
that a federal judge ruled that it was causing at least one avoidable
death a week through sheer neglect and ineptitude. He has seized the
entire prison medical system and placed it under his direct supervision.

Faced with the huge budget deficit and judicial threats to cap the
state's prison population, Schwarzenegger's office has been floating
the idea of early release for about 22,000 inmates convicted of
nonviolent crimes. That 13% cut in prisoners, however, would require
legislative approval, something that is by no means certain. The
story of crime and punishment in California -- and the country --
since the 1980s, after all, has been quick-fix answers fueled by
media hype. Let's hope that such proposals as releasing nonviolent
inmates receive serious attention rather than panicky headlines that
lead to bad criminal justice laws.