A Factory of Human Suffering: The Truth Behind Mass Incarceration

By Ballard Morton

Nearly every aspect of American society has been influenced—if not entirely revolutionized—by our passage into modernity. Among other things, our technology has grown smarter, our consumer goods have become cheaper, and our healthcare and medicine have been engineered to save more lives and to ensure greater quality of life. It is almost impossible to name a feature of our American civilization that has gone entirely untouched by our several decades of scientific, technological, economic, social, and political progress. Our criminal justice and prison systems, however, are exceptions of cosmic proportions. In an era otherwise defined by modernity, American justice is a relic of our primitive past.

The majority of those reading will very likely never have to face the direct consequences of mass incarceration. Thus, criminal justice and prison reform may seem altogether unimportant, or at the very least, a distraction from more pressing political issues such as healthcare and climate change. Nevertheless, mass incarceration is one of the most pressing issues of our time, and it merits political solutions and deliberation accordingly. To this end, I believe that the American criminal justice and prison systems are exceedingly harmful and counterproductive institutions. They are systems for which we pay great costs and reap no benefits in return.

In this article, I will be addressing three main issues that, in my view, contribute most to mass incarceration:

1) Overcriminalization & Sentencing 2) Prosecutorial Tactics & Incentives 3) The Conditions & Punitive Nature of Jails & Prisons

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Overcriminalization & Sentencing

Currently in the United States, roughly 1 in 3 American adults has a criminal record, and approximately 2.1 million Americans are incarcerated in local, state, and federal jails and prisons. 2.1 million. That’s about 1 in every 100 American adults, or the population of Houston, Texas, America’s 4th most populous city. This rate of incarceration is higher than that of any country in the world. Although one may reasonably suspect that this is a justifiable cost to pay for public safety, mass incarceration is in fact detrimental to public safety and does very little to actively promote the security of American citizens.

One of the reasons for America’s outrageously high rate of incarceration is the problem of overcriminalization as well as the lengths of inmates’ sentences. This is particularly true of drug offenses. Approximately 350,000 people are incarcerated in a local, state, or federal jail or prison for a drug offense. Between 1980 and 2017, the number of Americans incarcerated in local jails for drug offenses jumped from approximately 20,000 to 185,000. In federal prisons, it jumped from 5,000 to 92,000. In 2009, the U.S. Sentencing Commission found that high-level traffickers and importers accounted for only 11% of those federally incarcerated for a drug offense.

Furthermore, the problem is not only the number of people incarcerated for drug offenses, but also the time they are spending behind bars. The average time drug offenders in the U.S. spend behind bars in state prisons jumped from 1.6 years to 2.2 years between 1980 and 2009. For federal drug offenses, the average time jumped from approximately 2 to 5 years on average between 1988 and 2012. Mandatory minimums (minimum sentences required for certain, generally benign offenses) and “threestrikes” laws are no doubt blameworthy for these trends in drug sentencing. With regard to crime more generally, a University of Nottingham study found that, although the U.S. comprises only 4% of the global prison population, the U.S. is responsible for approximately one-third of the world’s total life sentences.

In considering these data, a skeptic may intuitively believe the following: 1) repeated drug use is bad for people, and strict drug laws are required to deter people from abusing substances; 2) strict drug laws reduce rates of violent crime and thus promote public safety.

As to the first point, no correlation between the harmful effects of drug use and drug laws has been proven to exist. In fact, to the contrary, a 2018 study by the Pew Research Center shares the following:

“Pew compared state drug imprisonment rates with three important measures of drug problems— self-reported drug use (excluding marijuana), drug arrest, and overdose

death—and found no statistically significant relationship between drug imprisonment and these indicators. In other words, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.”

To the question of whether or not drug laws reduce violent crime and promote public safety, one need look no further than our own state of South Carolina. In 2010, South Carolina passed the Omnibus Crime Reduction and Sentencing Reform Act, designed to decrease the state prison population and improve state parole and probation. A November 2018 report confirms that South Carolina’s prison population decreased by 14 percent and that parole and probation success rates went up substantially. Five years after the legislation was passed, the violent crime rate in South Carolina had gone down by 16%, and the state’s rate of incarceration dropped from 11th to 20th highest in the U.S. As NYU law professor Rachel Elise Barkow states in her book Prisoners of Politics: Breaking the Cycle of Mass Incarceration:

“We have seen state after state reduce sentence lengths without an increase in crime rates or recidivism. [...] California is a particularly striking example; from 2006 to 2012, it cut its prison population by 23%, and violent crime fell by 21%. [...] Indeed, states that lowered their incarceration rates have seen a greater drop in their crime rates than states where imprisonment rates have increased. West Virginia, for example, increased its incarceration rate more than any other state but experienced a 6% increase in crime.”

There are indeed better ways to curtail drug use than to incarcerate those with addiction. In 2001, Portugal decriminalized all narcotics and implemented statesponsored rehabilitation for drug addicts, rather than incarcerating them. In the 90s, Portugal’s population was exceedingly heroin-addicted and downtrodden; the 2001 decriminalization law changed everything, as described in an NPR article by Lauren Frayer:

“Under the 2001 decriminalization law, authored by Goulão, [...] anyone caught with less than a 10-day supply of any drug — including heroin — gets mandatory medical treatment. No judge, no courtroom, no jail. Instead they end up in a sparsely furnished, discreet, unmarked office in downtown Lisbon, for counseling with government sociologists, who decide whether to refer them to drug treatment centers. ‘It’s cheaper to treat people than to incarcerate them,’ says sociologist Nuno Capaz. ‘If I come across someone who wants my help, I’m in a much better position to provide it than a judge would ever be. Simple as that.’ Capaz’s team of 10 counselors handles all of Lisbon’s roughly 2,500 drug cases a year. It may sound like a lot, but it’s actually a 75 percent drop from the 1990s. Portugal’s drug-induced death rate has plummeted to five times lower than the European Union average.”

If I were tasked with solving America’s drug problem, I would take a similar approach. The state could legalize all drugs, making them available for recreational use and purchase, and impose a 5 to 15 percent consumption tax (depending on the intensity of the drug) that would be used to fund state-sponsored rehabilitation for anyone suffering with addiction. This policy would cut the United States prison population in half, would save taxpayers hundreds of millions of dollars, would increase twoparent households, would reduce poverty, would make drug use and consumption safer, would shrink the black market (and thus reduce violent crime), and would above all reduce needless human suffering.

31 For the sake of brevity, I have decided to focus exclusively on the overcriminalization and excessive sentencing associated with drugs. However, there are countless examples in the American criminal justice system of laws and legal precedents that contribute to these issues.

Prosecutorial Tactics & Incentives

The toxic cycle of mass incarceration is propped up largely on the unconstitutional tactics and incentives employed by prosecutors. For the purposes of this article, I will be addressing only two of them: pre-trial detention and plea bargaining.

Let’s begin with pre-trial detention. Pre-trial detention is the process by which individuals accused of a crime are detained before a trial has taken place—and thus before they are even proven (or not proven) to have done anything wrong. A Vox article referring to a recent study of pre-trial detention states that “the number of people being detained before trial increased by a whopping 433 percent between 1970 and 2015” and that “of the 740,000 people currently sitting in jails around the country, about two-thirds of them have not been convicted of a crime.” This can largely be attributed to an inability to post bail; in other words, the vast majority of those affected by pretrial detention are in poverty. A December 2018 report from The Hamilton Project states that those unable to post bail are likely to spend anywhere from 50 to 200 days in pre-trial detention. The report goes on to say:

“Even for durations that are relatively short—for example, 54 days for those accused of a driving-related felony—pretrial detention represents a nearly twomonth period during which individuals are separated from their families and financial hardships are exacerbated.”

Once again, these are punishments that people endure before they are even brought to trial and thus proven innocent or guilty. Prosecutors generally take advantage of pre-trial detention in order to leverage yet another unconstitutional tactic that contributes to mass incarceration: plea bargaining. Plea bargaining is when a defendant agrees to confess to a certain crime in exchange for a more lenient sentence. 95% of U.S. criminal cases never go to trial, and instead result in a plea bargain—a judicial transaction that may seem benign in theory but is frequently exploited and weaponized. Prosecutors are inclined to use plea bargaining, as it is more dependable, consistent, and cost-effective than repeatedly taking cases to trial and leaving the outcome up to legal precedent or the discretion of a judge or jury. In an article entitled “The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice,” Cato Institute scholar Tim Lynch writes the following:

“People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a ‘witness’ who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a ten‐year sentence, the decision becomes harder.”

Lynch proceeds to quote former chief judge of the U.S. District Court of Massachusetts William Young:

“The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

Plea bargaining becomes an even more exploitative practice when taken in the context of pre-trial detention. People are significantly more likely to confess to a crime they did not commit when they have been detained (and will continue to be detained) pre-trial.

The Conditions & Punitive Nature of Jails & Prisons

As we have seen, many of those incarcerated are imprisoned because they committed a relatively benign drug offense or were forced to accept a plea bargain after facing pre-trial detention. However, let us set this aside temporarily. Let’s assume for the time being that everyone who is incarcerated is in prison because they committed a violent, malicious offense. Even with this flawed predisposition, Americans should still be concerned about the state of jails and prisons in this country. At least 95% of those currently incarcerated will one day be back in the outside world. As Americans, we have an interest in ensuring that those 95% of prisoners will be less inclined to commit crimes than when they entered. However, this is not the case: the U.S. has one of the highest rates of recidivism in the world.

American prisons are filthy and overcrowded. They focus primarily on punishment and retribution rather than rehabilitation. Tens of thousands of men are raped in state jails and federal prisons annually. Prisoners receive very little guidance as to how to act in the outside world, how to reintegrate into society upon their release, and how to perform basic, necessary tasks that are crucial for civilian life: dieting, fostering healthy sleep patterns, maintaining wellness, seeking employment and educational opportunities, developing literacy and social skills, and much more. How are we to expect prisoners to be any more functional upon their release if not provided proper rehabilitation?

No discussion of prison rehabilitation would be complete without discussing Norway. An American would be likely to mistake a Norwegian prison for a three-star hotel. Norwegian prisons are among the most rehabilitative and restorative in the world. Halden Prison, among Norway’s most humane correctional facilities, is a minimum-security campus with a gym, a courtyard, a music room, a library, as well as common spaces and private bedrooms. The prison provides ample open space, numerous windows and views of the outside world, and outdoor greenery and landscaping. Inmates receive vocational training and are given opportunities to prepare for jobs in any number of sectors from art and graphic design to engineering to food preparation. Inmates are entrusted with a high degree of autonomy; they receive private keys to their bedrooms and have constant access to sharp knives and tools in kitchen spaces and work areas.

Norway has the lowest recidivism rate of any country, and one of the lowest crime rates globally. Reports confirm that the frequency of violence in Norwegian prisons is among the lowest in the world. Norway’s restorative approach and substantially smaller per capita prison population are, in large part, responsible for their low recidivism and high public safety. I’m not suggesting that the Norwegian model can be seamlessly applied to the United States. Norway and the U.S. are two entirely different countries. However, there are measures the U.S. can adopt to lower its rate of recidivism and to make its penological institutions more humane. In addition to shrinking its prison population, the U.S. should provide prisoners greater resources for vocational training and basic preparation for civilian life. Cognitive Behavioral Therapy (CBT) is a method of psychotherapy that focuses on separating people’s intuitive perception from their response and thus their behavior. Dr. Aaron T. Beck founded CBT in the 1960s at the University of Pennsylvania with the goal of mitigating people’s “automatic thoughts” and providing people with a rational framework for perception, response, and behavior. Numerous studies and reports suggest that providing CBT to inmates at jails and prisons lowers rates of recidivism. Resources like CBT, vocational training, civilian preparation, and greater inmate autonomy and freedom are critical in promoting a prison system that is more humane and thus more effective in ultimately promoting our public safety.

Conclusion

In an age defined by political controversy, and innumerable political issues competing for your attention, it isn’t immediately obvious why you should seriously consider the problems and potential solutions associated with the American criminal justice and prison systems. I would contend, however, that no political progress—with regard to any issue—is capable of taking place if our sense of justice, if the institutions designed to safeguard our moral and legal interests, is perverted. Mass incarceration touches every area of society and exacerbates every problem the U.S. intends to solve— from poverty to fiscal irresponsibility to a lack of state accountability.

As I stated earlier, modernity has defined virtually everything about our civilization. And yet, one would expect that our system of justice was devised by Hammurabi himself. By rolling back punitive laws and sentencing, by correcting perverse, prosecutorial tactics and incentives, and by promoting a rehabilitative, restorative approach to incarceration, we may finally thrust our judicial and penological institutions into the age of modernity. Such is among the foremost moral and political imperatives of our time, and only with the utmost urgency and deliberation will we be successful in adequately addressing it.