And Justice for All: We Must Reverse Our Zeal to Incarcerate

The movie Atonement is a heart-breaking love-story, a historical WWII saga. Without giving away the ending, which must be seen to be adequately felt, it tells the tale of two lovers' lives irrevocably changed by false testimony against one of them - for a crime he did not commit. Thus, it's also a condemnation of unreliable witnesses, the willingness of people to believe the worst, particularly of those in a lower economic-class, and the havoc that a false accusation and conviction can wreak upon human life. It's a film and message that every judge, jury member, and prosecutor should see and consider before convicting or sentencing anyone accused of a crime.On December 10th, the United States Supreme Court voted 7-2 to recognize a gross injustice with respect to sentencing guidelines which disproportionately penalize those convicted of crack versus cocaine related crimes. The disparity gives equal punishment to a person caught with 5 grams of crack (a poor person's cocaine) and one caught with 500 grams of coke (a drug dealer's amount). In their validation of a federal district judge's below-guideline sentence for a crack case, the Supreme Court reconfirmed the 2005 Booker ruling that federal judges could have more discretion in levying below-guideline sentences. They did not rule on the validity of the guidelines themselves.

This decision should be viewed as the tip of an iceberg. American prisons teem with non-violent prisoners. Our juries are caught between wanting to rush home for the evening and wanting to appear law-abiding. Members are too quick to bow to the loudest voice amongst them, and not necessarily in The Twelve Angry Men direction. Meanwhile, false convictions, due to witness error, prosecutorial misconduct, inferior defense lawyers or coerced 'snitching', continue to destroy multiple generations of lives. They throw the idea of 'equal protection under the law' under the same bus as our Declaration of Independence mantra of 'life, liberty and the pursuit of happiness.'

We've simply got to reverse this zeal to incarcerate. The United States has more inmates and a higher incarceration rate than any other nation: more than Russia, South Africa, Mexico, Iran, India, Australia, Brazil and Canada combined. Nearly 1 in every 136 US residents is in jail or prison. That's 2.2 million people, an amount that quadrupled from 1980 to 2005. (There were only 340,000 people incarcerated in 1972.) Adding in figures for those on probation or parole, the number reaches 7.1 million.

Over the next five years, the American prison population is projected to increase three times more quickly than our resident population. The Federal Prison system is growing at 4% per year with 55% of federal prisoners serving time for drug offenses, and only 11% for violent crimes. Women are more likely than men (29% to 19%) to serve drug sentences, dismantling thousands of families. One-third of prisoners are first time, non-violent offenders. Three-quarters are non-violent offenders with no history of violence. More than 200,000 are factually innocent. Whether our citizens are wrongly incarcerated or exaggeratedly so, our prison figures are shameful.

December 19th marked the five-year anniversary of the 2002 exoneration of the five 'perpetrators' who were originally caught, indicted, and convicted in the infamous Central Park Jogger case. The five black and Hispanic youths, ages 14 to 16 at the time of their imprisonment, were exonerated only after they had spent between 5 and 13 1/2 years in prison for crimes they did not commit. Their freedom came late, even as it was conclusively confirmed by DNA testing results. At the time of their arrests, they confessed to crimes after prolonged interrogation by police.

The Innocence Project counts 210 people, mostly minorities, who have been exonerated post-conviction by conclusive DNA results (350 people have been exonerated including non-DNA related exonerations). Fifteen of them spent time on death row for crimes they did not commit. The average age at the time of their convictions was 26 years old. The average time served was 12 years. The total number of violent crimes that were committed because the real perpetrators were free while the innocent were imprisoned was 74.

Those total numbers may seem small, as those who favor a harsher penal system would argue, but they only consist of the situations that have been put through years of legal battles to conclude innocence. They don't include cases where there is no money left for the wrongfully convicted to fight for their freedom. They don't include the cases of people who are so beaten down mentally or physically by their imprisonment, they can't fight. They don't include the ones who don't even know what steps to take.

Freedom is a basic human right destroyed by a felony conviction. And in some states, so is the right to vote. Other casualties include the ability to adopt children, find housing or have certain employment. The stigma is permanent. Thus any mistake in a court-room, whether due to a self-serving witness or an ambitious prosecutor, costs someone a part of their life, severing them from the fabric of a justice system designed to protect them. As Martin Luther King said from the Birmingham Jail in 1963, "Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly."

Thus, there's more work to do. Providing judges more latitude to reverse jury convictions in which there's no physical evidence, or there exists the potential of fraudulent or self-incriminating testimony coerced under hostile conditions or threats, would be another step in the direction of justice. Reducing guidelines substantially would also help, as would be alternatives to incarceration for non-violent offenders. Without addressing these issues, our prisons will continue to burst beyond the seams of their present 134% overcrowding rate, our prisons systems will continue to get more funding than our schools, and we will be a sadder nation for it.

Nomi Prins is a journalist and Senior Fellow at Demos, a non-partisan public policy research and advocacy organization. She is the author of Other People's Money: The Corporate Mugging of America and Jacked: How "Conservatives" are Picking your Pocket (whether you voted for them or not).

Copyright (c) 2007 The Women's International Perspective