How Can We Reduce Injustice in our Justice System?
Two months ago, a seventy-year-old Black man, Glynn Simmons, was freed from jail in Oklahoma after serving the longest wrongful sentence in American history, 48 years. He had been convicted and sentenced to death for a liquor-store murder which prosecutors now say he did not commit. Although his death-sentence was commuted to life, Simmons’ life was still stolen: He now has cancer and perhaps not long to live.
Sadly, Simmons is not the only innocent man to lose what he can never regain. Two years ago, Ronnie Long was exonerated in North Carolina after 44 years in prison. Seven years ago Ricky Jackson was declared innocent in Ohio after 39. In the last half-century, nearly 200 Americans sentenced to death have been cleared. According to the National Registry of Exonerations, nearly five wrongfully jailed people are discovered in the United States every week. How can these injustices happen in the land of the free?
This problem is hardly a new one. The possibility of wrongful conviction has long been a powerful argument against the death penalty. Better that the guilty should go free, it’s often said, than that we should kill the innocent. Yet the unjust denial of life or liberty is only the most egregious form of a wider problem. Our criminal-justice system is rife with wrongs.
To be sure, incarceration problems can occur anywhere. But there’s a reason why they occur disproportionately here. The United States, with just five percent of the world’s population, has nearly a quarter of the world’s prisoners. Two million Americans are in jail today, ten times the number just fifty years ago. At 1972 incarceration rates, adjusted for population growth, just 300,000 Americans would be behind bars.
Our national spending on jails has increased more than a thousand percent during this buildup, but that figure hides a more shameful fact. Since prices have risen around 680% since 1972, real spending on prisons has actually increased about 320%. America has really just tripled its spending on prisons, even as the prison population increased tenfold. In real terms, we spend just thirty-two percent of what we spent on each prisoner half a century ago. Stated another way, we reduced per-prisoner spending by seventy percent while our prison population grew by a thousand percent. We did mass incarceration on the cheap.
Perhaps that’s why many prisoners endure deplorable conditions. Law-abiding taxpayers may begrudge every penny spent on lawbreakers, but economizing beyond a certain point becomes counterproductive. Prisons are not only overcrowded but, with fewer guards per-prisoner, more violent. To contain costs, prisons deny inmates medical and psychiatric care. Limited access to hygiene products creates what some call a human rights issue. Having to use the same towel for weeks straight, as in some prisons, is not only unsanitary but also dehumanizing. Children are increasingly held in adult prisons. A lack of independent oversight exposes inmates to sexual and other abuse.
The prevalence of these conditions raises moral-political issues. The preamble to Our Declaration of Independence states that our Creator endowed us with certain unalienable rights, including “Life, Liberty and the pursuit of Happiness.” Victims’ advocates will argue that criminals forfeit the rights which they deny others. But the Constitution says otherwise. The Eighth Amendment prohibits “cruel and unusual punishment,” even to those who cruelly and unusually violate the rights of others. Forcing inmates to use the same towel for a month might not be especially cruel, but it is certainly unusual. Getting raped in jail is, alas, not as unusual as it should be, but it is certainly cruel.
Similar arguments apply with even greater force to the death penalty. Capital punishment grants the government the power to end human life. Yet the government is run by humans, and humans make mistakes. When the justice system wrongfully denies liberty, or the pursuit of happiness, the victim has at least some prospect of redress. There’s no undo key to an electric chair.
But banning the death penalty would still leave the system in need of reform. How can we compensate those who spend their lives jailed for crimes they did not commit? Glynn Simmons will get just $175,000 unless he files a federal lawsuit, which might be quite an ordeal for an old man with cancer who is living off donations from crowdfunding. Even if he gets millions, money cannot turn back time or redeem a wasted life. Just ask Ricky Jackson, cleared after forty years, who said, “I didn’t know what the sky looked like anymore.”
How can we reduce injustice in our justice system? To start, we can provide humane conditions, so that released criminals are not more damaged and dangerous than they were when they went in. Consent decrees should bind government to increase prison spending in pace with increasing imprisonment. Violent and nonviolent criminals should be held in separate prisons (as they often but not always are) and perhaps even tried in separate courts. Children, if they must be jailed, should be held in jails with other children.
Most importantly, we should understand why so many Americans are in jail in the first place. One reason is that, unlike the Constitution envisions, criminal justice today is decided not by judges and juries, but by prosecutors. Nearly 97% of all people charged criminally accept prosecutors’ plea bargains, fearing to go to trial because of mandatory-minimum sentences. These mandatory minimums should be restricted to repeat offenders of the most violent crimes.
The picture is not totally bleak. Incarceration rates have decreased since 2006, and they have decreased sharply for Black males. This trend in part reflects presidential efforts by both Barack Obama and Donald Trump to de-incarcerate.
Yet the reality of mass incarceration remains – and the trend began before prosecutors weaponized plea deals. Relative to our population, we jail five times the number of people as the rest of the world. Does this mean that we commit five times the crimes? Why is it, as the novelist Saul Bellow once noted, that “where liberty had been promised most,” we find “the biggest, worst prisons”? Is there something about freedom that undermines responsibility? If poverty causes crime, why are crime rates lower in many countries poorer than our own?
To be the beacon of the world, we don’t have to have all the answers. But we should at least start asking the questions.
Eden Riebling attends the Horace Mann School in the Bronx, New York, where she is a contributing editor to its literature-humanities journal, The Classicist. Her policy passions include liberty of conscience, freedom of speech, and promoting equity through empathy.