The Imprisonable Class And The Crisis Of American Criminal Justice

While Americans might assume by default that police states only exist in strange, faraway countries, there's plenty in our broken system that rivals the Gulag.
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    A militarized police force, a disastrous "war" on drugs, private prisons, and unequal application of laws and punishments are all part of the systemic ruin that is the U.S. criminal justice system, writes Jeffrey Cavanaugh. (Photo Norbert Schiller/Mint Press)

    A militarized police force, a disastrous “war” on drugs, private prisons, and unequal application of laws and punishments are all part of the systemic ruin that is the U.S. criminal justice system, writes Jeffrey Cavanaugh. (Photo Norbert Schiller/Mint Press)

    When Americans think of police states they often envision an authoritarian country like North Korea, the old Soviet Union or Nazi Germany. The very phrase conjures up images of men in dark uniforms breaking down doors in the middle of the night so as to catch unawares enemies of the ruling regime. It evokes the idea of a vast, unaccountable police force and prisons that swallow huge numbers of citizens, many never to be heard from again.

    Police states are things that other people, living in faraway places, have to contend with. It is not something found in the United States, which touts itself as the home of the free – kept so because it is the land of the brave.

    Americans that think this, however, are not members of what might in other times and places be called the tortureable class – individuals who as a group are remarkable only for their collective lack of power, wealth, connections and their shared belief that the law, such as it may be in their country, will never be in their corner.

    In America, as we only torture foreigners unfortunate enough to be caught by our legions operating abroad, it would be more accurate to term those described above as America’s “imprisonable” class. This class is largely black and brown, though there are many whites, too, and they overwhelmingly come from the ranks of America’s poor, uneducated, and mentally ill. They are the social flotsam of the Land of Liberty – Marx’s lumpenproletariat – and as America has no use for them, they are locked away and largely forgotten about.


    Cruel and (horrifyingly) usual

    The statistics are damning. At present, America currently has more people under “correctional supervision” – six million – than ever existed in Stalin’s gulags. On any given day, 50,000 people wake up in solitary confinement in a “super” maximum security prison. 70,000 are raped every year. Hundreds-of-thousands more are housed, warehouse-like, in vast prison complexes that do little other than to support depressed local rural economies and teach incoming inmates how to be better, more vicious criminals.

    The result of all this confinement? Whole communities stripped of young men and entire swathes of Black and Hispanic America for whom prison is not just a common, but an expected experience — the way college is the expected experience for upper middle-class white people.

    An emphasis on arrest and detention has also created a police force that is increasingly militarized, willing to use force at the drop of a hat, and, while it may be able to routinely bust poor and minority corner dope pushers and the odd terror bomber, is helpless in finding women chained up in a basement for ten years or combatting higher-level crime that takes time, patience and superb detective work to pursue.

    While there is good evidence to suggest that packing our prisons has indeed lowered America’s overall crime rate, recent research suggests the link is not so clear and, in fact, mass incarceration may be responsible for only one-quarter of the documented decline in crime since the 1990s. Indeed, states which had smaller increases in prison populations actually had bigger decreases in crime.

    Moreover, government — and now private-sector — investment in prisons represents a massive loss to society in the form of dollars not spent on education and welfare efforts aimed at early, positive intervention in the often insecure, chaotic lives of young people who have a high statistical likelihood of a run-in with the law.


    Out of sight, out of the headlines?

    Mass imprisonment on a scale never seen before in human history, however, is just one symptom of criminal justice system in an advanced state of decay. Take, for instance, the brutal slaying of a possibly intoxicated man in Bakersfield, CA on May 8 by Kern County Sheriff’s Deputies.

    According to eyewitnesses, many of whom called 911 to report the incident of police brutality, a father of four begged for help and mercy as cops beat him to a bloody pulp with their batons. “When I got outside,” said one witness, “I saw two officers beating a man with batons and they were hitting his head so every time they would swing, I could hear the blows to his head.”

    To cover up the crime, police then confiscated witnesses’ cell phones. As it happens, video recordings of the beating taken by bystanders the night of the incident in question appear to have been deleted. Meanwhile, the Kern County Sheriff, Donny Youngblood, has asked the FBI to investigate the phones to see if, how, and when video footage of the beating was deleted.

    Unfortunately, incidents like this are all too common and easy to find online. In Galveston, Texas, on March 11, for instance, police also seized a camera that had allegedly captured video of an incident of police brutality.  The New Orleans cops who beat an elderly man in 2009 weren’t so lucky – footage of their attack on an elderly man not only made it online, but made headlines, too.

    Endemic brutality and routine abuse is not the only problem besetting American policing, however. As the one might expect in an environment of overzealous policing and public prosecutors bucking for promotions or electoral success, wrongful convictions of innocent Americans – sometimes on the flimsiest of evidence – is a huge problem. The journalist who has done yeoman’s work on this subject is Radley Balko, formerly of Reason and now at the Huffington Post, has long documented this disturbing trend in American jurisprudence.

    In a damning series of essays that were published in Reason in 2011, Balko examines several cases of police incompetence, prosecutorial misconduct and slipshod defense work that wrongfully sent, since 1989, 268 people to prison for an average of 13 years. These 268 souls, all cleared of their convictions by DNA evidence that was not available or otherwise not allowed into evidence during their trial, are likely the tip of a larger iceberg of wrongful convictions.

    Indeed, Balko reports that some scholars estimate that between 3 percent and 5 percent of capital criminal convictions were likely wrongful. Applied to the entire American prison population, that could mean nearly 180,000 innocent people sitting in prison. As for those on death row, while there are no firm statistics, and likely never will be, on the number of those wrongfully executed in America, there is very strong evidence that as recently as 2004 the State of Texas executed a man who was, in all likelihood, innocent of the crime he was convicted of committing.


    A criminally unjust system

    Of course, these cases at least deal with crimes that all agree should at least be termed crimes. It does not even scratch the surface of the amount of abuse and folly committed in the name of the drug war – as failed a policy as has ever been documented – the consequences of which, especially for minority communities, are akin to such horrors as slavery and Jim Crow. Nor does it deal with such absurdities as police responding to a school water-balloon fight with violence and arrests or arresting a teen after a failed science experiment frightened some people and damaged an eight ounce plastic water bottle.

    It also does not even begin to touch upon the ways electoral politics evilly corrupts criminal law and policing by, for instance, making it more likely that one will be executed or sentenced to death during an election year.

    Democracies often rightly pride themselves on the incorruptibility of the rule of law. In the words of American legal scholar Ronald Dworkin, the law is an “empire” wherein all citizens, regardless of race, color, or creed, are treated in the same manner. Under America’s system of procedural legalism, where all have the right to an attorney and in theory benefit from the same system of constitutional rights, this theory very often fails in practice. To work the legal code effectively enough to protect your rights requires legal training and expertise.

    None of this is cheap, and paying for lawyers skilled enough to work the system to your advantage is simply an expense that is out of reach for many, if not most, Americans. As for relying on the underpaid, understaffed and overburdened public defender, you are clearly better off copping a plea even if you didn’t do the crime than take the chance that a public defender pulled six ways from Sunday and with little financial interest in the outcome of your trial might be able to effectively plead your case to a judge or jury.

    The simple truth is that if you are rich and committed murder, as O.J. Simpson likely did, you can probably avoid prison by hiring a top-notch lawyer. If you are poor and innocent, you will likely be taken in, ground up, and disappeared into the American criminal justice system.



    In America, people don’t break laws — laws break people

    In fact, the situation is far worse than this. Even if you are guilty of the crime, and admit as much, if you are wealthy and powerful enough – as most large corporations are – you can avoid jail time altogether by simply paying a fine and promising, with a wink and a nod, that you won’t do it again. A nice option, if you can swing it.

    What this all translates into is an America that is no longer a rule-of-law country, but a rule-by-law country – a country where rules, laws, and regulations are enacted and enforced not to protect the interests and rights of the majority of most citizens, but to protect and defend the privileges and prerogatives of a wealthy, politically-connected elite. There are, therefore, effectively two Americas existing side-by-side in our legal system: There are the Americans that can afford to hire the lawyers necessary to protect themselves from the trepidations of the state, and there are those who cannot – the “imprisonable” class to whom most anything can, and has, been done by a law enforcement and criminal justice system that is a pale, corrupt shadow of what it could and should be.

    Fixing this massive problem won’t be quick or easy. Getting rid of the drug war is a first, necessary step. Demilitarizing the police and making them, once again constables and not SWAT members is also a requirement – but one premised on an American population that is far less armed than exists at present. Shifting the focus of American law away from procedural drama and towards establishing the actual truth of what occurred in any given crime is also a good step.

    Unfortunately, the biggest obstacle impeding reform is, like all other problems facing our country, the immense issue of economic inequality. Until our system becomes more equitable, the poor and vulnerable will, regardless of their innocence, never have the resources necessary to defend themselves in a court of law. In the long run this reality can only lead to more and greater disaster in the future, for a people who believe they have no recourse to law will, in the end, increasingly see no problem in breaking it.

    The views expressed in this article are the author’s own and do not necessarily reflect Mint Press News editorial policy.

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