The land of the unfree - Skip Kaltenheuser

America has five percent of the world’s population, but a quarter of the world’s prisoners. Overcrowding undermines rehabilitation and increases recidivism, but efforts to reform are meeting with wealthy and powerful resistance.

Consider that the ‘land of the free’ has the highest incarceration rate in the world. The US, with five percent of the world’s population, incarcerates a quarter of the world’s prisoners, far more than China or Russia. Several years ago, the International Association of Chiefs of Police, a sober group, called for the candidate that won the US presidency to create a national commission to ‘address and solve the issues facing the law enforcement community and the criminal justice system in the 21st Century.’ The IACP pointed out that there hadn’t been a similar effort since President Lyndon Johnson established the Commission on Law Enforcement and Administration of Justice. That was 1965. Any objective appraisal now reveals a rusty tin man crying out for oil.


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Senator James Webb, a Democrat from Virginia, had already embarked on this mission. A former Assistant Secretary of Defense and Secretary of the Navy under President Reagan, with two purple hearts from Vietnam, Webb has what it takes to make political opponents look silly when they launch the typical soft on crime accusations. Webb gained bipartisan support for his National Criminal Justice Commission Act, which would create a bipartisan group of experts tackling an 18-month top-to-bottom review and generating recommendations for reform, aiming for fairness and reduced costs. The proposed budget, a mere $5million dollars, approved by the Senate Judiciary Committee on January 21, 2010, with 39 bipartisan co-sponsors, passed the US House on July 28, 2010, with support by Lamar Smith, a Republican who later became chairman of the House Judiciary Committee. Despite an earlier delay over a non-related procedural issue, with the support of scores of organizations, including many law enforcement groups, it seemed a done deal.

Until October 20th of this year, when 43 Senate Republicans, including some who previously supported the bill, flocked together to block passage. The 57 supporters, including several Republicans, fell short of the 60 votes needed to overcome the filibuster. The reasoning that suddenly gripped the minds of those who banished support - the money needs to go elsewhere and the commission, by also studying state and local laws, would be an assault on states’ rights. Senator Kay Bailey Hutchison, a Texas Republican, called Webb’s proposal a Federal ‘overreach of gigantic proportions. There is no starker demonstration than this vote of how dysfunctional Congressional politics has become, of how dedicated the Republicans are in derailing any Democratic initiatives. Why? There is no aspect of government more desperate for reform than criminal law.

With America’s disproportionately large prison population in mind, Webb points to Japan, which in 1984 had a population half the size of America’s, but imprisoned only 40,000, compared to 580,000 in the US then. By 2009, Japan’s prison population had risen to 71,000, but that of the US rose to 2.4 million. About one in 31 US adults are in prison, in jail or on supervised release, with a huge alumni population. The annual costs of local, state and federal spending on corrections adds up to about $75 billion. The frantic search for prison space in California makes the excuse from the bill’s opponents - needing the commission’s five million dollar cost elsewhere - a big laugh.

Conditions from prison overcrowding undermine rehabilitation, creating environments that increase recidivism, and public peril. The US Department of Justice estimates that 16% of incarcerated adults suffer mental illness, with an even higher percentage in juvenile custody. Most are not likely to improve in the bedlam of many prison environments, some housing double or more of what they were designed for.

Webb says an increasing number of those in prison, now about a third, are there for drug crimes. Nearly half of drug arrests are for marijuana. Moreover, 60% of those in state prisons for drug offenses had no history of violence or significant, if any, dealing. This diverts resources from coping with more serious drug threats, such as the violent cartels and gangs with operations infiltrating 230 or so US cities.

The ongoing toll on minority populations, with disproportionate conviction rates and higher sentences, is particularly striking. African-American men have a one in three chance of spending a year or more in prison. Imagine the impact on the fabric of minority-dominated communities.

There are multiple reasons for incarceration rates going off the charts, but one might start with the politicization of criminal law. For example, California’s ‘three strikes you’re out’ iniquity has put people away for life without parole for third offenses such as stealing a set of golf clubs, even pizza. It typifies what Webb calls ‘the political logic that brought the massive shift to incarceration.’

Another factor behind the derailed bill might be the push for privatizing prisons. A non-profit group, the Justice Policy Institute, recently published a report detailing that the political action committees of private prison companies, with a vested interest in increasing sentence length, have assisted Federal and state politicians with millions of dollars in campaign contributions, much going into Texas. Last year, the two biggest prison outfits, Corrections Corporation of America and GEO Group, exceeded $2.9 billion in revenue.

The ‘get tough’ poster child used to be George W. Bush. As a Texas governor, he held the modern record on executions. He’s since been eclipsed by Rick Perry, another born-again Texas governor with presidential ambitions. Both have had executions on their watch that gave rise to very serious doubt of guilt.


 ‘Private prison companies with a vested interest in increasing sentence length, have assisted Federal and state politicians with millions of dollars in campaign contributions. Last year, the two biggest prison outfits, Corrections Corporation of America and the GEO Group, exceeded $2.9 billion in revenue.’

Asked for an example of necessary reform, Jack King, a spokesman for the National Association of Criminal Defense Lawyers, points to the need to address the lack of consequences for prosecutors who  ignore their constitutional duty to disclose information favorable to defendants. As former NACDL president Jim Lavine put it, ‘a criminal trial should not be a game.’

Meredith Mays Ward, with the IACP, said her group was ‘extremely disappointed with the vote and will continue to fight for passage.’ ‘For far too long,’ says Ward, ‘our nation’s law enforcement and criminal justice system has lacked a strategic plan that will guide an integrated public safety and homeland security effort in the years ahead.’

Webb is still committed to pushing for the commission. But he’s retiring at the end of his term. It’s not apparent that a dedicated advocate waits in the wings. Prisoners are not renowned for their political influence.