Third World Justice System

By Penny Smith

Last week the British Court of Appeals refused to extradite accused British hacker Laurie Love. Why? It determined that America’s prison system was too oppressive; our jails were unable to address the unique needs Love presented. Now this is someone who probably hacked into confidential United States sites and the country refusing to extradite him is our closest ally. This is a friend calling our justice kettle black.

Once upon a time, the United States was known as a justice innovator. Most people don’t remember that the reason Alexis de Tocqueville came to the United States in 1831 was not to write one of the great commentaries on American character (Democracy in America), but to inspect our prison reforms.

Initially, if you did something wrong there were a limited number of redresses available in pre-revolutionary America. You could be executed; almost all felonies today would have led to that conclusion a couple hundred years ago. You could face some sort of corporal punishment, usually public humiliation and temporary pain using such devices as the stocks, dunking stool or whips. If the crime were serious, you could be branded, a more permanent announcement of your failings, after some sort of corporal ordeal. Or you could be banished, which, depending on timing and your natural abilities to sustain yourself in isolation, could also be a death sentence. And some of those consequences were a decided improvement on the reduction of your status to some form of temporary or permanent servitude, which was also a possibility then.

Incarceration for a specified time was, at the beginning of the 19th-century, considered a humane and just alternative. Moreover, incarceration provided time, training and climate for reclamation. You could be rehabilitated; imprisonment would teach you the skills and attributes necessary to become a productive citizen. By the 1820’s the penitentiary was the institution of choice and its very name suggested the potential benefits of learning penitence.

That reform endeavor was part of a constellation of rehabilitation efforts that today’s historians label “the asylum movement”  (see David Rothman, Discovery of Asylum). But we went wrong after that early endeavor. By the late twentieth-century, we had deviated from anything resembling justice sanity.

Today the United States incarcerates more people than any other nation on earth. That wasn’t always the case, but once the war on drugs got going and prisons became one way to sweep up large numbers of citizens whose only real crime was being black in the wrong place at the wrong time, we doubled down on the Calvinist side of our national character.

Most of the offenders in prison are there for non-violent offenses. Many of them are victims of the “thee strikes and you’re out” movement, even though their three strikes were for piddling offenses. When, in the 1980s, tough on crime meant you appeased your voter base, politicians supported prison population proliferation. The movement to mandatory sentencing and the reduction of judicial discretion added to those numbers. It didn’t hurt that some capitalists found ways to make justice pay, as the private prison movement took off and sent their lobbyists to DC.

Compounding the increase in prisoners, there was a decrease in any efforts at rehabilitation. Prisons became human warehouses. Solitary confinement, itself considered inhumane by much of the developed world, became the go-to solution for recalcitrance. Our recidivism rates suggest how poorly prisons today perform any tasks linked to assisting prisoners to see the error of their ways. And, with what was billed as mental health reform beginning in the Nixon era, an increasing percentage of the prison population is certifiably suffering from one or more mental impairments.

To further worsen matters, in the name of immediate financial prudence as opposed to strategic financial investment, we have reduced whatever help is available in those institutions. Laurie Love, our non-extradited Britisher, suffers form a range of challenges, both physical and mental. Given our current abilities to care for the men and women in our punitive custodial care, the British court probably did the humane and just thing.

Compare recidivism rates among developed nations and we have among the worst. Compare prison conditions, expectations and opportunities among developed nations and we, again, rank on the bottom end of almost all scales. Are we an inherently evil people, more prone to crime than, say, Canadians? Are we a particularly cruel people, nurtured by centuries of harsh Calvin theology? Do we lack the imagination to do well or do we prefer the power to do what we now do? Have we become a playground bully kind of culture? Is part of the issue an inherent racism, since prisons now play a crucial role in keeping certain minority populations poorer than our majority population? Are we even willing to examine such questions any more?

Once we were the leaders in re-imagining crime and justice. Today we are not even followers of mediocre practices, much less good ones. Compounding the problem, what we now do is extremely expensive. Are we really getting full value for those costs? Or, have we created a system designed to dehumanize inmates and their custodians as well, designed to teach crime rather than prevent it? And, given the results, why are we willing to continue to finance it?

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