Why Won’t The Candidates Talk About Prisons?

By Richard Trinick | October 17, 2012
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California’s overcrowding has got a point that the state is finally embarking on reform, and the federal government is more than happy to leave the process to the states

Amidst all the talk of which candidate performed best and who lied the most (categories which don’t appear to be mutually exclusive), a number of things have been overlooked about the debates, including what wasn’t covered by the candidates. The Atlantic made a stab of things here, but still missed a crucial point that has been mentioned barely, if at all, in the whole campaign to date — namely, prisons.

Many people have written about why the USA’s criminal justice policy is a travesty, focusing on the human cost and the appalling conditions in which so many prisoners are kept, not to mention the problems with capital punishment. This is a hugely significant argument, and one that the candidates should be forced to address, but I am not going to dwell on it here, as other people have  already written excellently about it (see related articles). It is probably the most important reason why criminal justice policy should be addressed by the candidates, but given the existing coverage, I want to focus on the other reasons why criminal justice policy is such an important part of domestic policy; and why politicians from both sides of the aisle, and much of the ‘mainstream media’, are so intent on ignoring it.

Reasons why criminal justice policy is so important

1)The biggest issue in this election is the economy and, on a related note, the deficit and the tax more/cut spending debate. For the 2010 fiscal year, prisons cost taxpayers about $63.4 billion, at an average of between $30-50,000 per prisoner (depending upon the state). The numbers vary, but in most states spending on “corrections” costs more than anything except Medicaid and takes 1 in every 14 dollars spent by the states. This is a colossal amount of money that neither candidate appears even to have contemplated reducing.

2)It is an area of policy that disproportionately affects people from ethnic minorities. As just one sobering example, consider the fact that more black men are in prison today than were enslaved in 1850, before the Civil War. In many respects, the current criminal justice policy of the USA is a more effective method of segregation than the Jim Crow laws were. Inequality of all kinds is one of the biggest problems facing the future of the US, and this is the worst example of it.

3) Most commentators agree that the worst excesses of the current policy are largely down to the ‘War on Drugs’, with most estimates putting drug-related offences as behind around 25% of all incarcerations. This is not including non-drug offences committed by people who are addicted to drugs. Any change to the criminal justice system would also have to address the ‘War on Drugs’, which has been a catastrophic failure.

4) A related issue that has garnered some attention in the media is the fact that the current ‘hardline’ policy of many states towards prisoners means that not only can people currently serving sentences not vote, neither can people who have served their sentences. Reports suggest that nearly 6 million people could be disenfranchised in this election because of such laws, a significant number of people that could sway a tight race, and a real threat to the validity of any democracy.

5) The fact that the current system imprisons so many people means that it is a policy that affects millions of people.  The latest figures I could find suggest around 2.2 million people are imprisoned in the USA; when one includes people on parole or probation the number swells to 7 million. This number does not include the families of those swept into the system who are clearly affected by the current policy. If a policy affecting the entire population of Virginia was ignored by the candidates, there would be an outcry.

6) The current system would be a joke if it wasn’t so unfunny. An oft-misattributed definition of insanity is “doing the same thing over and over again expecting different results”, and by this definition the US criminal justice policy resulting from the ‘War on Drugs’ is insane. More and more people are being locked up, yet the ‘War’ is no closer to being won. This is in addition to the fact that numerous states have the ludicrous “three strikes” law — a criminal justice policy that, essentially, is based on baseball; rather than being “out”, you get 25 years to life in prison even if your third crime was stealing three golf clubs. Insanity doesn’t quite cover it…This year in California, Proposition 36 is looking to ensure that only “serious and violent” third crimes warrant a sentence of life under “three strikes”.

Reasons why criminal justice policy is ignored

1) It’s politically toxic. Any move to alter the current tough stance on criminal justice is inevitably viewed as being ‘soft on crime’, regardless of how much sense a new policy might make or how much it might reduce crime in the long-run. No politician, especially one running in a race as close as the current match-up, wants to be seen as ‘soft on crime’. For Republicans, “the party of law and order”, it would be sacrilege to even suggest a change in policy. For Democrats, especially Obama, the aim appears to be to avoid looking “weak and liberal” and avoid alienating middle-class white voters. In addition, it lacks appeal — few voters (read ‘people likely to vote in swing states’) care about the issue as they perceive that it does not affect them and it requires hard choices to be made.

2) People don’t like to have to think about it. This relates to the point above about having to make hard choices, but there is more to it. By its very nature, criminal justice is difficult and unpleasant to think about and so most people shy away from it — who wants to think about prison and criminals when there’s the new series of Homeland? The majority of people will have no interaction with the criminal justice system, especially not on the ‘wrong’ side of it, and so they shut their eyes, pretend they cannot see the problem and hope it will go away. The politicians and media know this and cater to the demands of their audiences.

3) Changes would require the states and the Federal government to work together. This shouldn’t be a deal-breaker, but it adds more complexity to an already difficult area. Both states and the federal government maintain prisons and any systematic attempt to reduce the prison population would require co-operation and negotiation between all the parties. In gridlocked Washington, this would be unlikely even if the topic was not so politically explosive.

4) Criminal justice policy is hard. Really hard. What should be the moral basis for imprisoning criminals — Deterrence? Rehabilitation? Proportionate punishment? Public protection? Retribution? Economic reality? Most countries follow a mix of these, but a different balance of the justifications can alter dramatically the policy pursued in a particular jurisdiction. Agreeing on the precise balance is something fraught with potential for disagreement, even among those who have no political concerns, like academics. On top of this, of course, is the fact that a different weighting of the justifications can have real cost implications — for example, both rehabilitation programmes and capital punishment are hugely expensive.

5) The overlap with drug policy does not help. Realistically the only way the USA is going to reduce its prison population by a meaningful amount is either  to legalise (some) drugs or to impose far lighter (non-custodial) sentences for most drug related offences. While legalisation of (some) drugs may be a good idea, it is hardly an uncontroversial one and few, if any, politicians have the gumption, or the political capital, to take on both reform of the criminal justice system and drug legalisation.

Whether one is in favour of drug legalisation and fewer prisoners, or not, no one can deny that the current system is badly in need of reform. It’s time the presidential candidates discussed what they would do to bring it about.

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About Richard Trinick

Currently working for a legal software start-up company in London, Richard graduated in Jurisprudence (Law) from the University of Oxford and is a future joiner of Hogan Lovells LLP. His blogging interests include just about anything with a legal or political angle on either side of the pond. Away from a computer Richard enjoys great food, exciting music, any sport except golf, and gripping TV (not to mention giving recommendations about all of these things). All opinions are his own. Twitter: @richtrin
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Posted in: Civil Rights, Criminal, Election, Law, Policy, Politics, Society
  • Malcolm Kyle

    During alcohol prohibition in the 1920s, all profits went to enrich thugs and criminals. Young men died every day on inner-city streets while battling over turf. A fortune was wasted on enforcement that could have gone on treatment. On top of the budget-busting prosecution and incarceration costs, billions in taxes were lost. Finally the economy collapsed. Sound familiar?

    If you support prohibition then you’ve helped trigger the worst crime wave in history and raised gang warfare to a level not seen since the days of alcohol bootlegging.

    If you support prohibition you’ve a helped create a black market with massive incentives to hook both adults and children alike.

    If you support prohibition you’ve helped put previously unknown and contaminated drugs on the streets, and helped to make these dangerous substances available in schools and prisons.

    If you support prohibition you’ve helped create a prison-for-profit synergy with drug lords and terrorists.

    If you support prohibition you’ve helped escalate the number of people on welfare who can’t find employment due to their felony status.

    If you support prohibition you’re responsible for the horrific racial disparities which have bred generations of incarcerated and disenfranchised Afro Americans.

    If you support prohibition you’ve helped evolve local gangs into transnational enterprises, gifted them intricate power structures that reach into every corner of society, helped them gain control of vast swaths of territory, and put significant social and military resources at their disposal.

    Prohibition is nothing less than a grotesque dystopian nightmare. If you support it, you must be either ignorant, stupid, brainwashed, corrupt, or criminally insane.

  • http://www.facebook.com/profile.php?id=100000918531475 Michael Aguilar

    Politicians don’t want to look soft on crime. So they’re all afraid to get involve in prison talk. Its crazy that the United States has more prisoners then any other country. 737 people for every 100,000. China #2 in incarcerating its people 118 for every 100,000 people. Thats just crazy and something needs to be done. Its hard to believe that there is more black people in jail today then slaves in 1850. 70% of the prison population is non-white. When studies show white people sell and use drugs at about the same rate as people with a different color skin. As it says in this article that the United States prison system is more affective then Jim Crow with segregation. That’s just sad. Non-violent offenders need help and therapy, not 10 years with murders and rapist. The past 40 years the United States has spent over a trillion dollars for the “drug war”. Destroying 45 million families in the process. When a lot of these offenders just need some therapy and and love from there families. Yes I want America to be number one, but not number one in incarcerating its people.

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  • http://www.facebook.com/profile.php?id=100002029218266 Deborah Munson-Cardenas

    This is an excellent article showcasing the travesty of justice as well as common sense solutions for anyone with some good old fashioned common sense. Unfortunately the lack of common sense mixed with greed and power take over. I live in Texas and it’s horrible here. TDCJ is as corrupt as they come and the Texas government could care less of the suffering inside the Texas prisons and how the system makes it worse instead of rehabilitation and hope. I’m originally from Portland, Oregon and to move to an area claiming to be conservative Bible belt gives Jesus a bad name in my opinion. I doubt all his mentions of remembering prisoners in the Bible are taken into account when these officials sit down in that nice pew on Sunday morning. They should be ashamed.