Impersonal, procedural justice system needs immediate revision

In this three-part discussion of the historical decline in violence as hypothesized in Steven Pinker’s latest book, the most consistent catalyst to this trend has been the presence of the rule of law. The Wild West was wild because law and punishment were arbitrated, in a large part, by the speed of your trigger finger.

While Hobbes’ Leviathan ideal maintains that a powerful government can control violence by credibly punishing any form of aggression, the government itself often becomes the violent aggressor. This paradox is revealed in the United States’ prison system, which aims both to control the spread of violence by providing a credible deterrent (“doing time”), but in the process targets its subjects with both physical and mental violence.

In the first column of this series I offered the question: What exists in our society today that in 30 or 50 years will be considered morally abhorrent? There are too many answers to this question, and most of them quietly exist out of mainstream cultural (and physical) visibility.

Life behind bars in America is one such moral scandal. The psyche attached to being locked-up is something like a timeless chasm of anxiety and boredom, where time is done to you and not something you do things with. The free are detached from this reality in a way that blinds us from the real suffering, the mental sentence, that the imprisoned daily undergo, many for a majority of their lives.

So how have we arrived at this point? The spike in the raw number of inmates in the United States is relatively recent. Since 1980, the incarceration rate has tripled, from locking-up 220 per 100,000 Americans to 731, in “2010”:http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?currentPage=all. During the same period, the number of people in jail for drug crimes has increased 12-fold, from 40,000 to 500,000 “Americans”:http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html?pagewanted=all.

Part of the moral problem for William J. Stuntz, the Harvard Law School professor who died last fall shortly before the publication of his magnum opus “The Collapse of American Criminal Justice,” is the Bill of Rights’ emphasis on “procedural” justice rather than a declaration of general principles, such as the French Declaration of the Rights of Man. In our impersonal, process-driven system, a murderer can “get-off on a technicality,” while in many states getting caught for petty crimes can earn a “third strike” for a repeat offender, or a mandatory 25 years to life.

Atrocities are able to persist in otherwise humane societies because of the emotional detachment from the sufferers. A procedural justice system reads like a blueprint for human suffering to go unnoticed.

Another prominent theory on American criminal justice has a distinct human face: The fallacy of “colorblind justice.”

Ohio State law professor Michelle Alexander points out the simple fact that today there are more blacks in the criminal justice system — in jail, on parole, or on probation — than were enslaved in “1850”:http://www.alternet.org/rights/150465/more_black_men_now_in_prison_system_than_were_enslaved. Prevented from voting and legally discriminated against for the remainder of their lives, ex-convicts are often cycled right back through the system. Her outcome is grim: “If mass incarceration is considered as a system of social control — specifically, racial control — then the system is a fantastic success.”

The procedural emphasis and the racial paradigm combine to create what is the ultimate rationale for why the prison system is in need of immediate and fundamental change: the for-profit incentive that keeps men and women behind bars for as long as possible. The Corrections Corporation of America spends millions lobbying Congress so that they will continue to receive government contracts for their services (that is, building “supermax” prisons). “The relaxation of enforcement efforts and leniency in conviction practices … with respect to controlled substance and illegal immigration, could affect the numbers of persons “arrested”:http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?currentPage=all” thereby reducing the number of the contracts they receive. For the CCA, easing the limits of human suffering in detention is a matter of earnings reports, not morality.

The greatest virtue to be taken from Steven Pinker’s overall “hypothesis”:http://www.ted.com/talks/steven_pinker_on_the_myth_of_violence.html that violence has radically declined in human society is “to force us not just to ask ’why is there war?,’ but also, ‘why is there peace?’; not just what have we been doing wrong, but also, what have we been doing right.”

Our ability to protest against injustice and violence is something our ancestors discovered to be essentially “right.” From the darkness of a prison cell, tomorrow may seem like it will never show up and a free life outside as anything but a guarantee. We all have the duty to shine light into the dark corners of the world, yet it’s also true that awareness agencies don’t receive contributions for talking about how great things are going. But humans have been doing things that are right, and by maximizing our awareness of where suffering still persists and understanding how non-violence has triumphed, a peaceful world seems more than possible.

_Michael is a senior in LAS._