Mass incarceration and procedral justice

[nancylebov]

A overview of the incarceration rate in the US.

The numbers are probably fairly familiar, but the article has a new-to-me discussion of the roots of the idea in the US that procedure is more important that truth, kindness, or effectiveness:

William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.

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. 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, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.

There's also an argument reducing opportunities for crime is more effective than either punishment or kindness.

Instead, small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened—“hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk”—“designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it—that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced. “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.

Comments

[chickenfeet]

I'm not sure how related this is. I think it is. I've been struck by how unaccountable the federal bureaucracy is. Congress seems to exercise no oversight at all, in contrast to Parliamentary systems where ministers get publicly embarrassing harassment from MPs if their officials screw up. I've seen gross and egregious errors made by the INS that have badly damaged people's lives but there seems no earthly way of addressing the problems. Even a personal acquaintance with one's congress critter seems to make no difference. Process has been followed therefore, a priori, no error has been made so there's nothing to correct.

[siderea]

Well. There are parts of the Bill of Rights which are principle-oriented, not procedural, and they've been fiascos, too.

For one hundred+ years, the First Amendment was a joke. It was never enforced. If your First Amendment rights were violated by the state, you had no recourse; you'd be laughed out of court if you got so far. It was not, frankly, until the founding of the ACLU in the 20th century and a whole private movement to establish case law that courts begun to take freedom of speech and freedom from the establishment of religion seriously.

And we still don't get Right to Peaceably Assemble in any meaningful way. It's a principle, but there's no procedure.

Meanwhile, one door down, we have the principle, "A well regulated Militia, being necessary to the security of a free State...". And we're still arguing over just what relevance that should have today.

So can we have both? Do we have to choose?

I've long thought the point Stuntz elaborates about "cruel and unusual", myself. In addition to what he explains, "unusual" has shut down innovative and experimental sentences that where attempts to be more efficacious, more humane, and more appropriate to specific circumstances. It seems to me we badly want a clause about the undesirability of disproportionate punishment.

[siderea]

This article, while it has a bunch of things I appreciate, has a bunch of stuff in it that is (1) just wrong, and/or (2) pretty alarming as policy recommendation.

Example of the first:

Whatever happened to make street crime fall, it had nothing to do with putting more men in prison. The logic is self-evident if we just transfer it to the realm of white-collar crime: we easily accept that there is no net sum of white-collar crime waiting to happen, no inscrutable generation of super-predators produced by Dewar’s-guzzling dads and scaly M.B.A. profs; if you stop an embezzlement scheme here on Third Avenue, another doesn’t naturally start in the next office building.

Actually, no, we don't so easily accept that: right now, the fad is the whole "sociopaths in suits" thing, which is precisely the "white-collar super-predators" scenario he says we reject.

I'm not making a statement here as to whether it's correct or not. I'm just saying his argument is predicated on his audience not closely tracking their own paradigms of crime, and not recognizing that how he's characterizing their thinking simply isn't true.

Example of the second:

He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches. [...]
When the New York City police stopped and frisked kids, the main goal was not to jail them for having pot but to get their fingerprints, so that they could be identified if they committed a more serious crime.

I don't think imposing widespread surveillance by the back door this way is a good thing.

If our society decides that identifying criminals is a high enough priority and that fingerprints are good and reliable enough way to do that, such that the police should have available a searchable database of all the fingerprints of everyone in the country, well, then, our society can pass a law (i.e. follow all those tedious procedures with their irritating checks and balances) to that effect. The police using the loophole that being arrested for a crime (even if you're then released, "Oh, sorry, our bad") is ground for fingerprinting to build a database of citizen fingerprints and de facto impose a surveillance state? Not okay.

[siderea]

Having gone and read the French Declaration of the Rights of Man, I like much of it, and wonder how the French people themselves feel about it, their opinion of how it's worked out in practice for them.

[madfilkentist]

I started working on a comment and found so many points I wanted to work in, and clauses in the Declaration of Rights of Man that seemed to say one thing on a first reading then something different on a more careful reading, that I don't have time to come up with the polished comment I'd like. I'll say just that a few of those clauses could have stopped some serious problems with the US system, and at least one would be really bad. I'll have to think more about the "principle" vs. "procedural" claim.

[nancylebov.livejournal.com]

I think we have an out-of-control procedural system. I have no doubt that principle systems have their own ways of going bad.

And if you tell people "Pay attention to what you're doing, not just your theories", they're say you're being too vague. And if you can punish them, they have something of a point about wanting clear instructions.

[avram]

The cops also began an aggressive, controversial program of "stop and frisk" [...] This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color

I gotta go "what the fuck?" at this point right here. "Not so much racial"? Does he imagine that "stop and frisk" programs are implemented equally across all regions of the city, and are just as likely to catch white guys as black and latino guys?

[doomspark.livejournal.com]

I'd be willing to bet that it had a lot more to do with social class than race, at least in theory. Poverty does tend to breed crime.

[avram]

Those concepts are not easily disentangleable. As long as poor neighborhoods have a disproportionate number of minority residents, class-based profiling is also going to be race-based profiling.