Saturday, January 28, 2012

Uncaging America requires 'a thousand smaller sanities'

At The New Yorker, Adam Gopnik this week has a remarkable article, "The Caging of America," which Grits recommends as a must read. If nothing else, it prompted me to purchase a copy of the late Bill Stuntz's book, The Collapse of American Criminal Justice, which arrived yesterday by post. Here's Gopnik's description of Stuntz's thesis:
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.
Read all of Gopnik's piece, but I wanted to point out a few other notable items from the story. First, he articulates ably the central conundrum of modern mass-incarceration in America: States that incarcerated their populace at lower rates generally saw even larger crime declines than high-incarceration states like Texas. New York, where crime declines doubled the national average, is the iconic example:
One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” [criminologist Franklin] Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison.
The secret to New York's super-high crime reduction during a time of de-incarceration, writes Gopnik, stemmed from "small acts of social engineering" as opposed to focusing on arrests and convictions. According to this view, New York City's experience undermined the "supply side" theory of criminal justice that "The only way to stop crime was to lock up all the potential criminals." Writes Gopnik:
In truth, criminal activity seems like most other human choices—a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.
Further, observes Gopnik:
Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things—just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime.
Grits would add the rise of the internet and video gaming to that list of non-law enforcement factors. (Anything that takes up lots of young men's time in benign activities will IMO reduce crime.) Gopnik notes that "Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either."

There's much more in the lengthy article; these were just tidbits. But it's a fascinating piece exploring some of the most thoughtful, contemporary literature in print on the subject. I'll close with Gopnik's expression of an incrementalist philosophy that in many ways mirrors this blog's approach to criminal-justice reform since Grits launched in 2004:
Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities.


David E said...

Gopnik is one of the saner voices on this subject. As a Baptist with a heritage of religious liberty as a foundational principle of our beliefs, I am not ready to give up the first amendment, however. I know the long, bloody, and tortuous battle that eventuated in John Leland and James Madison's agreement for the need of that amendment. I think Gopnik's incremental approach is a practical course. How about if good time and work time actually counted toward parole consideration?

Paul-UK said...

Unfortunately, the "Thousand smaller sanities" do not make eye catching headlines for politicians, indeed any politician who would dare address problems with realistic solutions would probably be lambasted in the press.

Anonymous said...

Turn them loose!

Gritsforbreakfast said...

8:19, given that Texas already releases more than 70K inmates from TDCJ facilities every year, that's been pretty much the GOP/Rick Perry approach. Perhaps instead of "turn them loose," it's time to reconsider who gets incarcerated in the first place.

RSO wife said...

Boy howdy!!!! Grits you said a mouthful. Why are we incarcerating people? It sure isn't to make the state safer, it's to satisfy the need for votes.

Please tell me what good it does to incarcerate a person for driving drunk and smashing into another vehicle or even a building. Wouldn't it make more sense to make them clean up the mess and to go talk to citizens groups about the hazards of driving drunk?

Of course, that would take some initiative on the prosecutor's part to even recommend something like that to the judge. And while some judges do think things through, lots of them could care less, just get this drunk out of my courtroom. I know, let's send him to AA and let those other drunks deal with him.

Texpat said...


Note Gpnick's article has been linked by a number of serious, widely read conservative sites. Most thoughtful people in this country are becoming fed-up with the current criminal justice system.

I loved this line from Gopnick.

"Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either."

Precisely perfect.

But, frankly, outside of a few paleolithic gasbags on the Right, I don't know anyone on my side of the aisle content with an out of control, SWAT-happy bureaucracy answerable to seemingly no one.

The prison industry has become very large and menacing to more than just a few civil libertarians.

john said...

A thousand points of light, then.
With specific procedure, you are in for a ride when those administering the procedure are incompetent or sell out.
There's where a jury was supposed to protect you from the judge and his owners.
For those in power to fight that, society was dumbed down, and juries are picked to pieces. Today you may be better off fighting a judge trial on procedure (and whether he's doing ANY of his magisterial duties, has an oath, etc.), than to go before a totally-ignorant and easily-manipulated jury. Tough crowd.

Texas Maverick said... this link to the tribute to Prof. Stuntz is the most inspiring internet item I've listened to for a long time. If you haven't read the reviews of Prof. Stuntz' book, do so. And get the book, I just did. Plus I let my representative know about it. Maybe there is hope that sanity can be restored to the system. It is obvious Prof. Stuntz will be missed by his colleagues and IMO criminal law has lost a great voice.