By almost every measure, the American prison system is broken. For a nation that claims one in every 20 human beings on Earth, it also claims one in every four prisoners. Approximately one in every 107 American adults is currently behind bars, producing both a rate of incarceration and an actual prison population that outpace any other nation in the world. Within the last 30 years, the prison population more than quadrupled — from roughly 500,000 in 1980 to nearly 2.5 million today. Almost half of all those incarcerated in the United States are Black.
On Aug. 28, at the “Let Freedom Ring” celebration to commemorate the 50th anniversary of the 1963 March on Washington for Jobs and Freedom, Rep. John Lewis (D-Ga.) — the only surviving speaker from the original march — spoke to the assembled crowd on the inadequacies of the American penal system and the challenges left to be solved in this nation:
“[There] are still invisible signs buried in the hearts in humankind that form a gulf between us. Too many of us still believe our differences define us instead of the divine spark that runs through all of human creation. The scars and stains of racism still remain deeply embedded in American society, whether it is stop-and-frisk in New York or injustice in the Trayvon Martin case in Florida, the mass incarceration of millions of Americans, immigrants hiding in fear in the shadow of our society, unemployment, homelessness, poverty, hunger or the renewed struggle for voting rights.”
For the most part, incarceration rates have been dramatically out-of-sync with the proliferation of crime in America. According to the FBI’s uniform crime reporting statistics, the number of violent crime reports in the country has been on the decline since 1993 — from a high of 1,932,274 nationwide in 1992 to 2011’s total of 1,203,564. Property crime reports have also been on the decline since 1991.
As reported by the Census Bureau, only drug abuse violation and seizure rates have risen in recent years. This is consistent with a national trend of increased illicit drug use — particularly, marijuana use — in the United States, per the National Institute on Drug Abuse.
Herein lies the problem. Many of the nation’s drug laws are draconian. In response to the crack cocaine epidemic of the 1980s, most of the state legislatures and Congress passed mandatory minimum sentencing laws for drug-related offenses, initiated “three strikes” policies to force repeat offenders off the streets and enacted conspiracy laws to make everyone involved in a drug trafficking scheme culpable.
All of this created a system in which minor possession charges — such as being caught with five grams of crack cocaine — resulted in mandatory multi-year prison sentences.
A prison system on the brink
This has created a situation where America’s prisons are at 96 percent of their capacity. California — the largest state in the nation by population — has a state prison system that is critically over-saturated, leading the state to spend $315 million in the next year to pay for private beds for its overflow. In 2011, the U.S. Supreme Court ruled that California’s prison overcrowding denied prisoners their constitutional right to uncompromised access to medical and mental health care and that the state has knowingly ignored court orders to remedy the situation for more than 10 years.
“For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs,” Justice Anthony Kennedy wrote for the majority’s decision, noting that as many as 200 prisoners had lived in a gym and as many as 54 prisoners had shared a single toilet. Kennedy also noted that at one point, the California State Prison System was in excess of 200 percent saturation.
Prisoner mediators have found that the prisons, at most, can safely hold only 137.5 percent of design capacity. “As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty,” Kennedy said. “Yet the law and the Constitution demand recognition of certain other rights.” It was ordered that the state reduced its prison population to safe level through the early release of prisoners serving minor crimes or prisoners with good behavior credits.
California Gov. Jerry Brown (D) has indicated that he will release no prisoners, despite the Supreme Court ruling — which has legislative leaders from his own party feeling the governor is only seeking a short-term solution.
California is not the only system burdened with prison problems. A recent study of the New York City Jails shows that the city spends nearly $168,000 per year per inmate, nearly three times the rate of the rest of the state — which already spends the most per prisoner among the states — making New York City’s correctional system the most expensive system per prisoner in the world. Compounding this is the fact that almost 76 percent of all of the city’s inmates are only waiting to be disposed, due to court backlogs and staffing issues with the courts.
“On paper you would think that with a lot less work, these things should be blowing through the system and they are not,” said Michael P. Jacobson, the director of the City University of New York’s Institute for State and Local Governance and a former city correction and probation commissioner. “If you have more time to do something, you will take more time.”
This results in more than $1.5 billion lost from the city’s general fund.
In Anderson County, Tenn., legislators have passed three new resolutions that will force prisoners in its local jails to pay for their stay — charging for everything from the per day charge to stay in the jail ($62) to the cost of toilet paper ($0.29 per roll) to the charge of their prison uniform ($9.15 for pants). This “pay-to-stay” policy has been practiced in various municipalities since 1984.
In Calloway County, Ky., inmates are charged up to $30 per day and can face additional civil and criminal charges for non-payment. Chesapeake (Va.) Correctional Center charges inmates five dollars per day. The Freemont, Calif. Police Department offers inmates the option of staying at a smaller facility for a flat fee of $45 plus $155 per night. Prisoners at Riverside County, Calif. are charged up to $142.42 per day.
Counties in Oregon, Arizona, Missouri and Michigan have all charged their inmates to cover prison expenses, and two-thirds of Ohio’s counties actively seek prison expense recoupment. These charges are not punitive; instead they are revenue-gathering efforts to meet shrinking budgets, which creates a situation wherein a person can receive additional prison charges or fines for actions not related to the original offense of not having the money available to pay for his or her involuntary stay.
Reversing the trend
With every week, new reports of prison abuse fill the media. The American prison crisis is so acute that on Aug. 12 at the American Bar Association’s annual meeting in San Francisco, U.S. Attorney General Eric Holder was forced to acknowledge it.
“Even as most crime rates decline, we need to examine new law enforcement strategies – and better allocate resources – to keep pace with today’s continuing threats as violence spikes in some of our greatest cities,” Holder said. “As the so-called ‘war on drugs’ enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective – and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach. And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate – not merely to warehouse and forget.
“Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them. It’s clear – as we come together today – that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason. It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges. And it is well past time to implement common sense changes that will foster safer communities from coast to coast.”
Holder has announced that “low-level, nonviolent” drug offenders will no longer face mandatory minimum sentences from Justice Department prosecutors. Washington state and Colorado have both legalized recreational marijuana use, and seven states are currently considering cannabis legalization. Fifteen states — Alaska, California, Connecticut, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, Oregon, Rhode Island and Vermont — have decriminalized possession of small amounts of marijuana.
Lessons in humanity
All the same, the U.S. prison system is one in which nearly 1 million of the nation’s 2.5 million inmates are Black and where 57 percent of drug convictions are given to African-Americans. It’s a system in which a person’s ability to afford quality counsel can be the difference between acquittal and 20 years in prison. It’s a system that feeds a $74 billion-per-year industry that covers everything from prison-made consumer goods and foods to private prisons.
The problem may be that the average American fails to see the prison population as being composed of people no different from his or herself — worthy of dignity, fair treatment and due process. Viewing prisoners as problems simply to be put out of sight, out of mind, allows for the lapses in morality that have produced the modern American prison system.
Arne Kvernvik Nilsen, the prison governor of Bastoy Island Prison in Norway, feels that a prison should not contribute to the criminal’s malfeasance toward society — as systematic prison abuse tends to do — but to alleviate it. He argues that if you treat a prisoner like a person, he will behave like a person.
“I don’t think I will ever be able to do that,” said Nilsen when asked if he could justify the need for revenge for crime victims versus the need for compassion for prisoners. He explains:
“If someone did very serious harm to one of my daughters or my family … I would probably want to kill them. That’s my reaction. But as a prison governor, or politician, we have to approach this in a different way. We have to respect people’s need for revenge, but not use that as a foundation for how we run our prisons. Many people here have done something stupid – they will not do it again. But prisons are also full of people who have all sorts of problems. Should I be in charge of adding more problems to the prisoner on behalf of the state, making you an even worse threat to larger society because I have treated you badly while you are in my care? We know that prison harms people. I look at this place as a place of healing, not just of your social wounds but of the wounds inflicted on you by the state in your four or five years in eight square metres of high security.”
“It is not just because Bastoy is a nice place, a pretty island to serve prison time, that people change,” continued Nilsen to the Guardian. “The staff here are very important. They are like social workers as well as prison guards. They believe in their work and know the difference they are making.”
Bastoy’s prisoners have a reoffending rate of just 16 percent. In the U.S., from 2004 to 2007, the nation had an average recidivism rate of 43.3 percent.
The United States faces serious questions in regards to the way it seeks justice. Does it seek justice based on societal prejudices? Is its treatment of its prisoners making the situation worse? Is the nation seeking justice for excusable offenses? The nation has moved to the point that these questions can no longer be ignored.
The most important question that remains is what is more important in this society: punishing the crime or reforming the criminal?