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Can we fix our broken criminal justice system?

Written By | May 15, 2015

WASHINGTON, May 14, 2015 – America’s criminal justice system is broken.

That isn’t a liberal position in the wake of Ferguson and Baltimore. It isn’t a conservative position, either. It is a rare instance of bipartisan agreement on a matter of national importance, bringing together people as diverse as former Texas Gov. Rick Perry, Senate Republican John Cornyn, President Obama, former President Bill Clinton, the ACLU and the Koch brothers.

Addressing a CPAC panel in March 2014, Perry criticized tough sentencing guidelines that many conservatives have favored for decades. “You want to talk about real conservative governance? Shut prisons down. Save that money.” Perry and New Jersey Gov. Chris Christie have attempted to expand drug treatment and reduce incarceration to fight drug use, an effort endorsed by former Arkansas Gov. Mike Huckabee.

Bi-Partisan Agreement: The criminal justice system is broken

As president, Clinton signed an omnibus crime bill that included a three-strikes sentencing provision. Since then, Clinton has expressed regret for the human cost of that bill. He said in a TV interview, “We cast too wide a net and we had too many people in prison.” He wrote in the foreword to a book, Solutions: American Leaders Speak Out on Criminal Justice Reform, “Too many laws were overly broad instead of appropriately tailored … Some are in prison who shouldn’t be, others are in for too long, and without a plan to educate, train, and reintegrate them into our communities, we all suffer.”

That book includes essays by current presidential hopefuls Hillary Clinton, Sen. Marco Rubio, Sen. Ted Cruz, Gov. Scott Walker, Sen. Rand Paul, Vice President Joe Biden and former Maryland Gov. Martin O’Malley. This is as bipartisan as it gets.

Americans pay over $80 billion per year for our criminal justice system, and for the money we incarcerate more people per capita than any other nation in the world. We imprison people at 10 times the rate that Western Europe does, with no apparent advantage in the level of public safety. There are currently more than 2.2 million adults in federal, state and local prisons and jails, about 1 percent of the adult population. Almost 5 million more are on probation or parole.

The racial element of the problem is clear. Blacks, who comprise 13 percent of the total population, are almost 38 percent of the prison population. There are between 1.7 and 1.9 million black men in prison, on probation or on parole. More than twice as many black men are in the criminal justice system today as were enslaved in 1850.

Many of those men are incarcerated for drug crimes. Only 8 percent of federal prisoners are in prison for violent crimes; 48 percent are in prison for drug crimes.

America’s for-profit prisons: Greed over justice

The problems with our criminal justice system go beyond the enthusiasm with which we imprison people. The riots in Ferguson and Baltimore weren’t sparked by high rates of incarceration, but by the deaths of black men at the hands of police. Whether those particular black men were good guys or bad guys has ceased to be the point. Rather, as liberals and conservatives alike have observed, the police sometimes kill civilians, and a disproportionate number of those civilians are black.

It is difficult to determine just how many people are killed by the police every year. The Justice Department doesn’t collect those data for every jurisdiction. Participation in the FBI’s program to collect those numbers is voluntary, and some jurisdictions, like New York City, don’t report police shootings. When the FBI reported over 400 deaths at the hands of police last year, its numbers didn’t include Eric Garner.

A citizen-run website attempts to gather more comprehensive data, putting every reported killing by police in an online spreadsheet with a link to available media reports of those killings. By their count, the police killed just over 1,100 people in 2014.

Not all those people were killed in cold blood or with callous disregard for life. Some were killed in the commission of a crime; some were killed because they presented a clear danger to others. But some were killed because police are sometimes jumpy or afraid, and they face almost no danger of being punished for killing a civilian.

How many of those killings were justified and how many were not is even harder to determine than the actual number of killings. This discussion is thus guided by perceptions and emotion, not by data.

Our criminal justice system is failing not for one reason, but for several. Among the obvious ones are:

  1. The war on drugs has created a climate in which draconian laws are passed, sending too many people to prison for too long a time.
  2. The move to harsh sentencing across the board, born of fear of violent crime and a sense that the courts are soft on crime, has further increased incarceration rates and times, often through such rules as three-strikes laws and mandatory sentences.
  3. High-profile killings and disproportionately high rates of incarceration have primed a sense of unfairness and outrage in minority communities and reduced respect for the law. More generally, unfair sentences and increasing police militarization have heightened distrust and disrespect for the law on both the left and the right.

There are less obvious issues here as well. One is that data collection, as for police killings, is patchy. It is difficult to argue rationally and dispassionately about a problem when we can’t quantify the problem in the first place. Amazingly, most police departments don’t keep track of which officers are most often identified in complaints against police departments. Nor do they or city governments keep track of how much these complaints, court cases and settlements cost. The costs come from general funds, not from police budgets, so police departments have no incentive to identify and deal with problem officers.

A further issue is the ever-growing use of police to deal with problems that we managed without police involvement just a generation ago. As Chase Madar observes in Mother Jones, if the only tool you have is a hammer, every problem looks like a nail. If the only tool you have is the police and prosecutors, then every problem looks like a crime.

Madar points out that the police have been called into schools to deal with everything from a grade-schooler kissing a classmate to aggressive farting. The expansion of SWAT teams and military equipment to even small-town police departments has led to shock-and-awe tactics and no-knock raids being used against small-time criminals and to recover trace amounts of drugs.

The mayor of Peoria even tried to send in a SWAT team to deal with a man who mocked him on Twitter.

Peoria mayor deploys SWAT team to stop Twitter parody

What Mother Jones doesn’t mention is that the problem is far more profound than that. Our growing regulatory state has sent people to prison for selling orchids with incomplete paperwork and taken them away in handcuffs for giving customers free mimosas at a bridal shop. In 2014, government agencies issued 16 regulations for every law that was passed – 3,554 new regulations just in 2014. Over 90,000 new regulations have become the “law of the land” since 1993.

The ways in which we can run afoul of the law are so numerous and so pervasive that the odds are that you did something that could land you in prison last year. You were simply fortunate that no one cared enough to find out what it was, and you went about your business blithely unaware of your legal peril.

Our justice system is broken. Too much of daily life is regulated and subject to police intrusion, even from the time we enter pre-school. The police are militarized, prone to use their military muscle, and rarely accountable when they kill the family dog or the kid sleeping on the sofa. Sentences are too long, served in a system that does little to rehabilitate or to educate, and that instead seems designed only to warehouse, to punish, and to recycle inmates through to maintain high bed counts.

Whether the growing bipartisanship on this issue will survive the current election cycle is a big question. The odds are that the Republicans and Democrats will gravitate to different solutions, demonize the opposition and eliminate room for compromise. That would be a pity, because everyone will lose.

Jim Picht

James Picht is the Senior Editor for Communities Politics. He teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years doing economic development work in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He has also worked in Latin America, the former USSR and the Balkans as an educator, teaching courses in economics and law at universities in Ukraine and at finance ministries throughout the region. He has been writing at the Communities since 2009.