By Adam Gopnik (Edited) January 30, 2012
Six million people are under correctional supervision in the U.S.— more than were in Stalin’s gulags.
“Sometimes I think this whole world is one big prison yard, Some of us are prisoners, some of us are guards,” [Bob] Dylan sings, and while it isn’t strictly true, it contains a truth: the guards are doing time, too. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.
For a great many poor people, particularly poor black men—(editor’s note: brown men too) prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high- school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America— more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.
In 1980, there were about two hundred and twenty people incarcerated for every hundred thousand people; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education.
The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.)
How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction?
William J. Stuntz, a professor at Harvard Law School says that his search for the ultimate cause of the scandal of our prisons leads all the way to the Bill of Rights. The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. (Editor’s note: we see that in appellate decisions where the Court will write at length about some esoteric point of law while glossing over entirely the harshness of the sentence the defendant received.) You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are unworthy of reverence: the ban on “cruel and unusual punishment” was designed, when it was created, to protect cruel punishments—flogging and branding—that were not at that time unusual.
The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That’s why America is famous both for its process- driven judicial system (“The bastard got off on a technicality,” the cop-show detective fumes) and for the harshness and inhumanity of its prisons.
Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence. “Don’t take it personally!”—that remains the slogan.
In place of abstraction, Stuntz argues for the saving grace of humane discretion. Basically, he thinks, we should go into court with an understanding of what a crime is and what justice is like, and then let common sense and compassion and specific circumstance take over. There’s a lovely scene in “The Castle,” an Australian movie about a family fighting eminent- domain eviction, where its hapless lawyer, asked in court to point to the specific part of the Australian constitution that the eviction violates, says desperately, “It’s . . . just the vibe of the thing.” Justice ought to be just the vibe of the thing—not one procedural error caught or one fact worked around. The criminal law should once again be more like the common law, with judges and juries not merely finding fact but making law on the basis of universal principles of fairness, circumstance, and seriousness, and crafting penalties to the exigencies of the crime.”