Our False Promise of Justice

From the prosecutorial state to prison to reentry, we perpetuate unending cycles of dehumanizing punishment. Enough.

By Rylee Sommers-Flanagan

Tagged criminal justiceInequalityPrisonssocial justice


In April 2020, the Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system, reported that the number of prisoners diagnosed with coronavirus had grown threefold in a single week. Their data showed that prisoners diagnosed with COVID-19 were dying at four times the rate of prison staff. The 6,664 new cases reported the week of April 22 did not include prison staff, which accounted for an additional 1,310 new cases. Only 2 percent of the federal prison population had been tested at that point and yet 70 percent of that 2 percent were positive for COVID-19.

This piece is not a direct discussion of the global pandemic—or of the just uprisings taking place in the wake of police killings of George Floyd, Breonna Taylor, Ahmaud Arbery, Tony McDade, and many other black people. It is nevertheless essential to understand that both coronavirus and the Black Lives Matter movement are intertwined within the indictment of the criminal justice system that follows.

Thousands, if not hundreds of thousands, of human beings who were not sentenced to death for their crimes will die as a result of this country’s prison policies. (Consider, as well, the 470,000 people incarcerated in jails who have not been convicted of anything.) In the best of times, we struggle to consistently track the number of individuals who die in custody. With coronavirus on the loose, testing practices opaque, and a nation experiencing widespread instability and police violence, it is difficult to know what will happen going forward in any population, let alone among the incarcerated. We can be certain, however, that the situation is currently both frightening and dire. And the magnitude of the disaster is directly attributable to deplorable prison conditions that we have allowed to endure and escalate for decades. The Marshall Project will continue monitoring COVID-19 among the incarcerated as much as reporters can, but what is already clear is that the “prison infection rate now eclipses the spread among the general population by more than 150 percent.”

And now, in June 2020, thousands of protestors are being detained illegally across the country, including in New York City, Washington D.C., Los Angeles, Houston, Milwaukee, and Cincinnati. By June 4, 2020, more than 10,000 protesters had been arrested. Protestors have documented police taking away their masks and detaining them in vans, cells, and other tightly enclosed spaces for hours. As Malika Fair, director of Public Health Initiatives at the Association of American Medical Colleges, explained to Politico in early June: “The police tactics—the kettling, the mass arrests, the use of chemical irritants—those are completely opposed to public health recommendations.” The protests are the result of centuries of systemic oppression and violence; participating in the midst of a global pandemic carries an inherent risk. Police actions are increasing that risk dramatically.

The Problems of Piecemeal Reform

I first came across the story of Steve Alm’s HOPE program in an article that I fact checked for this journal in 2013. It was before I went to law school, in the intervening years of my mid-twenties, when, full of optimism and self-assurance, I felt certain that everything would look a lot simpler on the other side of a J.D. I understood injustice to an extent, had even occasionally witnessed it up close, and felt complicit in it perhaps by virtue of being altogether too lucky in everything. Yet I maintained the naïve belief that remedying injustice was simply a matter of figuring out how the system worked and then lining up with other committed, bright, and responsible people to fix things; deliver justice. As if no one had ever thought of that before.

At the time, Alm was a judge in Hawaii. Confronted with the way an inadequate justice system unfairly affected drug offenders, he launched HOPE, a probation program that attempted to introduce logic and predictability into his corner of the criminal justice world by imposing swift, certain, and proportional punishment for probation violations—positive drug tests in particular. So, rather than inconsistently detecting violations and imposing six weeks of jail time or more for potentially arbitrary detection, HOPE allowed judges to impose regular testing and immediate but less severe repercussions for violations (usually only up to four days in jail).

Thinking about punishment this way—formulated around notions of swiftness, certainty, and severity—is an old idea. Italian criminologist Cesare Beccaria identified these as the characteristics of punishment that effectively deter crime…in 1764. According to the Encyclopedia Britannica, when Beccaria wrote “the first succinct and systematic statement of principles governing criminal punishment,” well over 250 years ago, the 26-year-old became an international celebrity nearly overnight. He decried torture, brutality, secret tribunals, and, above all, disproportionality, advocating for a criminal justice system based primarily on deterrence but also on human dignity.

Deterrence is among the four classically accepted goals of punishment in criminal law. The others are retribution, incapacitation, and rehabilitation. Together, these concepts act as guiding principles in the enactment of punishment, at least theoretically. After its introduction in 2004, preliminary findings showed HOPE worked exceedingly well as a deterrent. In a year-long study, researchers found that HOPE participants were 72 percent less likely to use drugs and more than 50 percent less likely to be rearrested compared to a control group—that is, 21 percent of HOPE participants were re-arrested within one year, compared to 47 percent of the control group. This is an exceptional reduction. Usually, within three years of release, about 67 percent of previously incarcerated individuals are rearrested. (Note that recidivism in the United States is usually measured in terms of re-arrest rates, which is a much broader measure than reconviction or reincarceration rates and makes cross-country comparisons difficult.)

In law school, prevailing wisdom teaches that recidivism rates tend to get sticky—hard to reduce—around this two-thirds rate. Within five years, recidivism rates grow to about 75 percent. And a Department of Justice study of state prisoners released in 2005 found that 83 percent were rearrested within nine years.

Rehabilitation skeptics have long plagued the criminal justice reform movement. In 1974, Robert Martinson argued in his article “Nothing Works,” that rehabilitation is a wild goose chase because, you guessed it, nothing works. (Martinson’s conclusion was immediately and roundly criticized. In 1979, he retracted it, acknowledging that it was a mistake and overstated, but it was too late because “nothing works” was too attractive a narrative; it had stolen the show.) Many, looking for a holy grail but convinced that only robust evidence-based reforms can obtain funding and produce change, seek to replicate studies of interventions like the HOPE program and find they fail on replication. Indeed, in recent years, experts have in fact begun to criticize the HOPE program. They claim that it is no more effective than other, less expensive probation programs and argue that because it may be unable to realize its goal of improving outcomes and lowering long-term costs, HOPE isn’t worth the investment. This is incorrect.

It’s not that the researchers studying HOPE conducted poor research. But they—as Martinson did in 1974—set their sights on answering the wrong questions and thus came to the wrong conclusions. It is altogether too easy to find fault with a narrow intervention that attempts to patch up one leaky component in a complex system of institutions that railroad, warehouse, and profiteer. Of course the patch cannot prevent the flood. Well-meaning so-called neutral parties set out to study outcomes and ask: Did it work? And, when the answer is inevitably “no,” critics jump at the chance to claim that criminal justice is not fixable because criminals are themselves unfixable, that the pursuit of justice is a fool’s errand, a pipe dream, a unicorn in the backyard.

But the reality of this public policy terrain is that we have committed to retaining intractable problems, despite having solutions at our fingertips that have, in many cases, been around for decades if not longer. Consider solitary confinement, for example. In 1890, the U.S. Supreme Court warned that victims of prolonged solitary confinement fall “into a semi-fatuous state” while “others became violently insane.” In 2011, the U.N. Special Rapporteur on Human Rights defined prolonged solitary confinement as confining an individual for 22 to 24 hours a day for any period of time lasting longer than 15 days, and concluded that these conditions are degrading and can amount to torture. And yet today, there are about 61,000 people in solitary confinement in this country. The rather obvious solution is to stop imposing isolation as punishment. But we have remained unwilling to condemn this brutality. There is no new way to say it; this is a system of injustice.

We have not tried serious legal reform and rehabilitation at a scale that could break the cycles of violence and inequity that mass incarceration reinforces.

The problem is this: We have not tried comprehensive, serious legal reform and rehabilitative punishment at a scale that could break the cycles of violence and inequity that mass incarceration reinforces day after day, decade after decade. HOPE needs help. It is time we do something—“something” being a real, concerted effort to end mass incarceration through a dramatic, comprehensive overhaul. It is time to understand the extraordinary injustice in our penal institutions as a human rights issue that deserves our complete attention, our best societal-level parenting wisdom (with all of the love and pragmatism that entails), and our most thorough morality and compassion.

Criminal justice inescapably implicates the integrity of our social fabric, notions of civic responsibility, and the survival of community, on small and large scales. The truth of its burden on individual human beings is undeniable, and it also assails families, neighborhoods, and communities at every level. Real-world consequences of this failed system abound.

A.    Three Stages in a Criminal Justice Framework

Rather than thinking of criminal justice in terms of component parts (law enforcement, courts, and corrections, for example), it is helpful to consider criminal justice in stages. These stages necessarily revolve around prison as a mainstay of our justice system, but they incorporate broader social structures as well.

The first stage is pre-incarceration. Here, certain actors—prosecutors, police, judges—exert remarkable influence and control, but institutional structures—laws, economic inequality, schools, the availability of diversionary programs—can be nearly as determinative.

Incarceration in jails and prisons is the second stage; 2.3 million people (almost seven outof every 1,000 people) are in prison in the United States. Here, corrections officials possess nearly absolute power, though legislators and judges can exercise some degree of control, and prison reformers and volunteers can and do influence available opportunities and resources, though in more limited ways.

The third stage is post-incarceration, or reentry. The primary forces of influence at this stage are the collateral consequences of incarceration, which come in the form of laws that prevent felons and even misdemeanants from voting, living in public housing, and receiving other forms of state support, and which require felons to inform potential employers or educational institutions of past criminal convictions, among other government-imposed repercussions.

B.   Dysfunction in Criminal Justice, Stage by Stage
1. Pre-incarceration: Seven Deadly Prosecutorial Advantages

Prosecutors, police, judges, socio-economic inequality, and even the law itself play a tremendous role in the pre-incarceration stage. Because any of these institutional actors is by itself complex enough to fill the pages of a Robert Caro-length set of volumes, I focus only on prosecutors, with a few pointed notes about law and politics. To be clear, police, judges, and inequality are critical. They—as individuals and in systems—regularly introduce bias (implicit or otherwise), fear, and violence into the world adjacent to criminal justice as much as into the criminal justice system itself. (In consideration of these issues, I recommend Chokehold by Paul Butler, Elizabeth Hinton’s From the War on Poverty to the War on Crime, James Forman Jr.’s Locking Up Our Own, and Marianne Robinson’s article, Is Poverty Necessary?)

Think of the prosecutorial role as one illustration of the breadth and nuance of dysfunction within pre-incarceration. Prosecutors wield extraordinary discretion. Criminal justice experts use words like “breathtaking,” “expansive,” “limitless,” “unregulated,” “absolute,” and “unreviewable” when referring to prosecutorial discretion. In stories about crime, whether acknowledged or not, prosecutorial discretion is a landscape character, like the moors of Wuthering Heights. Thus, it is for good reason that the problematic implications of the enormity of prosecutorial discretion have been the new vogue in criminal justice reform literature.

By way of context: Prosecutors have no client on a case-by-case basis. They are considered the sovereign’s lawyer; in a sense, they represent victims, but they also prosecute on behalf of the broken law as much as the individual harmed. Many, especially at the state level, are elected, and so, inasmuch as democracy works, they represent the interests of the community that elected them. Unfortunately, elected prosecutors often view “representing the community” as taking the most punitive approach available to them to avoid attack ads from opponents—a quintessential race to the bottom. Federal prosecutors are appointed and are likewise theoretical representatives of the larger electorate as translated through a given administration. Across the United States, there are about 2,400 prosecutors. When a person is accused of a crime, the prosecutor assigned to his or her case will choose how to charge in pursuit of a plea deal, whether to investigate alternative theories of a crime, whether to seek bail, whether to offer alternative or diversionary sentencing options, and, perhaps most importantly, whether even to prosecute in the first place.

This set of choices has been created and empowered by the legal environment and its evolution. Some examples. First, prosecutors can only charge someone with a crime if it’s a crime. Obvious, maybe; but consider marijuana and the impact of decriminalization.

Second, prosecutors can decide not to prosecute specific crimes or types of crime—and can choose to prosecute inequitably without repercussion. (Disciplining a prosecutor for misfeasance in the exercise of prosecutorial discretion borders on the impossible.) This discretion can meaningfully impact individual’s lives for the worse orthe better. In Philadelphia, District Attorney Larry Krasner dropped 51 simple possession charges in one fell swoop in 2018, stating that resources were better dedicated to more serious crime.

Third, laws determine how much time a crime is worth. Here, prosecutors’ authority to interpret the facts of a crime combined with the law’s definition of what constitutes that crime intersect. More than one charge typically applies to the same set of facts. For example, journalist Emily Bazelon describes New York law as giving prosecutors “a huge menu for how to charge gun possession.” It can qualify as “a serious, violent felony with a three-and-half-year mandatory minimum, or it can be a misdemeanor.” If a prosecutor pursues a felony charge, a judge’s hands are tied: Even when judges disagree with prosecutors’ charging decisions, if an accused pleads or is found guilty, judges must impose a sentence of at least the mandatory minimum term. Outrageous examples of this are heartbreaking and ubiquitous.

(Note that laws are not endogenous. They are written by politicians who, like prosecutors, are often rewarded for law-and-order platforms that criminalize broadly and harshly.)

Fourth, the existing legal infrastructure creates immense pressure to plea bargain. In 97 percent of criminal cases, the accused pleads guilty. Judges do not oversee the process and, as Dylan Walsh reported for The Atlantic in 2017, the only uniform “bargaining restriction placed on prosecutors is that they cannot use illegal threats to secure a plea.” The result is that prosecutors can threaten any of a litany of charges. Going to trial can mean facing charges that equate to life in prison, while a plea can mean doing five years, or 11 years, or some larger number that is, nonetheless, not the rest of a life. Other elements of the system, including overworked public defenders’ offices and systemic issues—like cash bail—that impose delays and leave defendants in jail awaiting trial, contribute pressure to plead.

Unfortunately, elected prosecutors often view “representing the community” as taking the most punitive approach available to them.

Fifth, federal and state laws determine the use and prevalence of cash bail. The purpose of bail is theoretically to ensure that people are present for court appearances. But the evidence shows not only that bail isn’t necessary to accomplish this goal, but that for those who end up stuck in jail awaiting trial because they are unable to pay, the increased jail time is associated with longer prison sentences and can lead to more, rather than less crime. That cash bail disproportionality affects low-income populations and people of color while lining corporate pockets should come as no surprise. On an individual level, being jailed can lead to firing, lost or changed child custody arrangements, and eviction, among other negative impacts. All without a conviction. It is also psychologically traumatizing; 16-year-old Kalief Browder was jailed for three years awaiting trial for allegedly stealing a backpack. Prosecutors dropped the charges against him and shortly after his release, Browder died by suicide. As the Vera Institute for Justice explained: “Although prosecutors don’t set bail, they can play a vital role in changing bail practices because their recommendations are one of the most significant factors affecting whether bail is set and in what amount.” Notably, New Jersey did away with cash bail in 2017 and Washington, D.C. largely did the same in 1992.

(Here again politics plays a huge role. As Jamiles Lartey recently reported for Politico, New York passed broad bail reform in April 2019, only to roll back significant elements of that reform in April 2020, responding to backlash that resulted from fearmongering coverage in tabloids and even some mainstream media outlets.)

Sixth, if vetted diversion opportunities are available, prosecutors can use them instead of jail and prison sentences. Diversionary programs are alternatives to incarceration usually oriented toward youth, as well as individuals with mental health and addiction issues. These programs can save money—one study found that if 10 percent of eligible individuals were “sent to community-based substance abuse treatment programs rather than prison, the criminal justice system would save $4.8 billion when compared to current practices.” And, importantly, it reduces the number of people who are sent to prison. Prosecutors’ offices sometimes sponsor these programs, though they come in a variety of forms. Note, however, Rebecca Burns’s excellent reporting on problems associated with profit-oriented diversion programs. She explains that the “expansion of private, for-profit diversion programs” arises at “the intersection of two troubling trends: the outsourcing of crucial operations of the criminal justice system to the private sector, and the growing imposition of fees on mostly low-income defendants.”

Seventh, discretion is systematically and institutionally entrenched, founded in a lore of prosecutorial wisdom that entrusts in prosecutors an unrealistic faith and deference. Justice George Sutherland described federal prosecutors in 1935 as benign representatives of the sovereign, “whose interest … is not that it shall win a case, but that justice shall be done.” Expecting prosecutors to pursue the vague and nebulous goal of “justice” rather than to prosecute ruthlessly any crime with or without significant evidence is both irrational and demonstrably wrong. The Brady rule—which prohibits withholding evidence that may be material to a defendant’s guilt or innocence—is notoriously difficult to enforce. Emily Bazelon describes prosecutors as “tennis players calling their own lines when their opponents, and even the referee, can’t see the other side of the court.” She goes on in her book, Charged: “Chillingly, prosecutors may be more likely to withhold evidence when proof of guilt is uncertain.” This impulse is explained at least in part by the “tunnel vision” concept that Keith Findley of the Innocence Project identifies as contributing to wrongful convictions. Tunnel vision is the product of several common cognitive distortions—including “confirmation bias, hindsight bias, and outcome bias, which can impede accuracy in what we perceive and in how we interpret what we perceive.” Perhaps obviously, prosecutors are humans, too, and these psychologically normal tendencies disrupt the pursuit of truth or justice by allowing competitive impulses to bias the whole system.

Prosecutorial whim is the ominous backdrop to all decision-making within the justice system. We have given them too much power. We accept them as truth seeking when they are not incentivized to seek truth, and we have failed to provide clear guidelines or oversight, repercussions for wrongdoing, or opportunities for feedback.

First-Step Prosecutorial Reforms

Plenty of established reforms can begin to limit prosecutorial discretion and realign incentives toward reducing incarceration. Four crucial reforms include conviction review units, open file discovery, parity in funding for public defenders’ offices, and structural changes to institutions such as separating adjudicative and enforcement roles, as described in Prisoners of Politics by law professor Rachel Elise Barkow.

In brief, conviction review units, sometimes called conviction integrity units, sit within a prosecutor’s office and, ideally, dedicate a team of well-resourced, seasoned attorneys with some background in criminal defense to investigate potentially wrongful convictions. Writing for The New Republic, Anna Clark described them as “an in-house variation of the Innocence Project model, in which a team of outside lawyers dig into cases, but they have the unique authority to subpoena witnesses and documents, to test physical evidence,” and ultimately to challenge convictions. Having identified a dubious case, they go back over it, revisiting every element, looking out for misconduct or unsound science. Although The Washington Post reported that there are now 49 conviction review units in district attorneys’ offices across the country, many are relatively new—half are fewer than four years old—and they vary widely in terms of resource constraints and best practices. The New York Times wrote that at least nine units “have been operating for three or more years without a single exoneration…[and] seven others have only one exoneration in that period.” With proper training and resources, conviction review units can act as a check on otherwise unrestrained prosecutors’ offices.

Open file discovery is one means of preventing prosecutors from withholding evidence from defense counsel while a case is ongoing. It reduces discretion by requiring disclosure of all non-privileged case-related information within a prosecutor’s possession, which includes information that the police or forensic laboratories possess. The Justice Project and the American Bar Association recommend pairing open file discovery with automatic and mandatory disclosures of tangible objects, information related to witnesses, including expert witnesses, the results of physical or mental examinations, and sentencing materials. Unfortunately, all too often, the failure to disclose relevant information contributes to wrongful convictions. The National Registry of Exonerations estimates that 54 percent of exonerations since 1989 are based on Official Misconduct, defined to include a range of prosecutorial misconduct including flagrant abuses such as committing perjury or engaging in highly coercive interrogations, but which most commonly takes the form of “concealing exculpatory evidence from the defendant and the court.” As Jessica Brand has explained for The Appeal, prosecutors face few repercussions for this type of misconduct and often claim that the information they conceal is not “material.” Even when caught, prosecutors often avoid admitting misconduct by settling claims—and can sometimes spin their misconduct to avoid political fallout. The goal of open file discovery is to prevent miscarriages of justice by giving defense counsel access to all potentially relevant information and, again, placing some, albeit relatively minor, constraint on prosecutors.

Parity in funding for public defenders is essential. In a report published in 2019, the Brennan Center for Justice’s Bryan Furst explained that many of the troubles affecting “our criminal justice system today—overly long sentences, racial bias, wrongful convictions—are exacerbated by overwhelmed indigent defense systems.” He noted that, until recently, single public defenders in New Orleans “were forced to handle upward of 19,000 misdemeanor cases in a year—translating into seven minutes per client.” And while the report pointed to chronic underfunding as “the heart of defender resource disparity,” it also identified five challenges that contribute to the problem, namely: “improperly structured indigent defense systems; unsustainable workloads; defender-prosecutor salary disparity; insufficient support staff; [and] disparate federal funding as compared to law enforcement.” What this means, essentially, is that we have a lot of room for improvement when it comes to supporting public defender offices.

Finally, Rachel Barkow recommends separating adjudicative and enforcement roles within prosecutors’ offices to reduce bias and realign incentives. This approach borrows from the theory that separation of powers prevents abuse. It also builds in increased supervision and opportunities for feedback and disagreement that don’t ordinarily exist within prosecutors’ offices. This division—between who makes charging and plea-bargaining decisions and who in fact prosecutes or enforces those decisions—creates a mutual check on prosecutors within a given system. Barkow also emphasizes that investigative decisions should also be kept separate, especially from adjudicators. This may curb bias and reduce over-affiliation with a case from beginning to end.

No solution is, on its own, a panacea. These issues are interconnected and urgent. They require a multiplicity of effective, dynamic solutions. Failure in one dimension undermines effectiveness in others.

2. Incarceration: Where Cruelty Is Commonplace and Options Limited

Fundamentally, prisons in the United States fail because they do not orient toward rehabilitation or even toward effective deterrence. Instead, our prisons focus almost entirely on retribution and incapacitation. This presents a practical problem because 700,000 individuals are released from prison annually (and 90 percent of people in prison will ultimately be released) whether or not we make any effort to provide them with resources, skills, or opportunities. It is also a moral problem, being thoroughly disgraceful on a human level. What follows is a non-exhaustive list of six of the most damaging features of prison today.

First, prison conditions are deplorable. In 2011, the Supreme Court, notoriously unconcerned with the plight of prisoners, upheld a lower court’s order requiring California to reduce its prison population by more than 30,000 inmates in Brown v. Plata. Two cases were brought before the Court by classes of California prisoners—one defined by serious mental disorders and the other by serious medical conditions. The Court described one “inmate who had been held in [a telephone-booth sized cage without a toilet] for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic.” It also listed prisoner deaths associated with delayed care: “A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with ‘constant and extreme’ chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a ‘failure of MDs to work up for cancer in a young man with 17 months of testicular pain.’” The court order required California to reduce its prison population to 137.5 percent of design capacity in two years, based on the assessment from experts who stated that the inadequacy of mental health and medical services was due in large part to severe overcrowding.

These conditions are representative of prisons across the country. Consider the DOJ’s report released in March 2019 detailing extreme physical and sexual violence in Alabama’s prisons. As Matt Ford summarized for The New Republic, “The accounts are stomach-churning: …One prisoner was doused with bleach and beaten with a broken mop handle. Another was attacked with shaving cream so hot that it caused chemical burns.” The New York Times opened its coverage with the horrific story of a prisoner who “had been dead for so long that when he was discovered lying face down, his face was flattened.” Ford also cataloged deaths in other states, but explained that reporting practices in jails and prisons were inconsistent at best, resulting in a spotty summary: At least 306 people died, “often from suicide and other preventable causes,” over the last decade in Oregon and Washington jails, but there was no comprehensive tracking, making the actual total unclear; meanwhile, 428 prisoners died in Florida prisons in 2017; and 16 died in Mississippi state custody in August 2018. To be sure, not every prison or jail is the same, but overcrowding consistently leads to violence as well as inadequate access to mental health and medical care, and it is rampant.

Although the severity of violence and the extreme nature of inadequate care can overshadow other problems, the prison environment proliferates harm. In addition to more “traditional” solitary confinement discussed briefly above, Christie Thompson and Joe Shapiro have reported for NPR that other practices, like double cell solitary confinement, “can be even more mentally damaging than being locked down alone.” Double-celling solitary confinement may sound almost oxymoronic, but it describes a now-common practice of placing two fully grown adult men in a 5- or 8-foot by 11-foot space that Thompson and Shapiro described as a cell built for one, where two inmates “have to eat, sleep, and defecate inches from one another for nearly 24 hours a day in a space smaller than a parking spot, if a parking spot had walls made of cement and steel on all sides… If one stood, the other had to sit.” Such a setting is psychologically and physically dangerous and dehumanizing.

Second, prisons and jails also dehumanize the incarcerated and their families by imposing extraordinary costs for basic services. Even more prevalent than private prisons—discussed below—is the public prison practice of outsourcing services to private companies, including, as the Marshall Project reports, for “healthcare, food, transportation, financial services and messaging, phone, and video calls.” The nonprofit advocacy organization Worth Rises has identified about 4,000 companies that work in this space and profit from incarceration. Incentive structures are perverse, as coverage in The New Yorker describes, with private companies offering “state and local authorities a percentage of their revenue, which contributes to the surging cost.” And the Prison Policy Initiative, a nonprofit criminal justice think tank, estimates the costs to families between commissary and phone calls alone add up to $2.9 billion annually.

Indeed, a whole industry has developed around “corrections telecommunications.” National Consumer Law Center Fellow Brian Highsmith testified before the Connecticut General Assembly in March 2019 that limiting prisoners’ contact with the outside world “and charging inflated prices for it is unfair and exploitative, and weakens family bonds by reducing the frequency of contact between prisoners and their families, which is known to reduce reentry success.” In Highsmith’s words, these egregious rates result in the “systematic transfers of wealth from already vulnerable families and communities to private companies profiting off their struggle.”

Some progress has been made in communications—Peter Wagner and Alexi Jones report that the FCC has capped many of the fees associated with calling out of prison and jail and has also capped the cost of out-of-state phone calls from both prisons and jails at about 21 cents a minute. But these costs are still scandalously high. And in-state calls made from county- and city-run jails can still cost as much as $1 per minute. Forcing prisoners to pay to talk to their families and support networks is senseless cruelty for profit.

Third, although many prisons offer some educational and job training opportunities, when these are available, waitlists are long. Around 41 percent of inmates have no high school diploma. A recent Vera Institute report finds that while 64 percent of inmates are “academically eligible to enroll in a postsecondary education program,” only about “9 percent of incarcerated people completed a postsecondary program while in prison.” Expanding access could reduce recidivism rates, likely saving states “a combined $365.8 million per year” in reincarceration costs—and improving countless lives.

Fourth, about half of the 2.3 million incarcerated people in the United States work for a pittance while in prison. In eight states, Daniel Moritz-Rabson reports for Newsweek, prisoners “are not paid at all for their labor in government-run facilities.” The average wage across all states for regular prison jobs—like custodial, laundry, or food service work—ranges from 14 cents per hour at the low end to 63 cents per hour on the high end. For jobs in “correctional industries,” which produce goods and services to sell to government agencies, the range is 33 cents per hour to $1.41 per hour. According to the Prison Policy Initiative, this represents a decline from what inmates were paid in 2001. But perhaps most importantly, few of the jobs available to incarcerated people teach any skills in demand in today’s job market, making the experience relatively valueless.

For jobs in “correctional industries,” which sell goods to government agencies, the range is 33 cents to $1.41 per hour.

Fifth, correctional officers are underpaid and face a terrifying work environment. This is bad for everyone. Mother Jones reporter Shane Bauer went undercover for four months as a private prison guard, and described his experience in his book, American Prison, as well as in a longform article. Bauer notes that “corrections officers experience above-average rates of job-related stress and burnout,” that 34 percent “suffer from post-traumatic stress disorder… a higher rate than reported by soldiers returning from Iraq and Afghanistan.” They “commit suicide two and a half times more often than the population at large” and a “recent study of Florida prison guards and law enforcement officers found that they die 12 years earlier than the general population.” Our prisons obviously fail prisoners, delivering outsized, irrational, and unequal punishment. In this failure, abhorrent on its own, we impose incidental suffering on everyone caught in the vicinity.

Sixth, private prisons incarcerate nearly 122,000 people—about 8 percent of the total prison population. This number does not include public prisons that have private companies operating within them, as discussed above. As Lauren-Brooke Eisen of the Brennan Center concludes in her book, Inside Private Prisons, “If the United States didn’t have forty years of policy promoting mass incarceration, it couldn’t have sustained a business model allowing for extensive profits on the backs of inmates.” Eisen argues that we can use private prisons “to perform a new state goal: reducing recidivism and preparing inmates for life in the community.” But existing incentive structures are difficult to overcome. The business model motivates private prisons to keep expenses low, cutting corners when it comes to healthcare, safety measures, food, and more. Private prisons take their profits seriously, lobbying legislators to keep and put more people behind bars, as documented by many organizations including the Justice Policy Institute and the National Institute on Money in Politics.

As with pre-incarceration, better incarceration models exist and can be replicated. The question is one of social and political will. If prisons should exist at all (check out an excellent summary of the prison abolitionist movement here), they should be filled with plentiful educational opportunities, job training opportunities, and mental health treatment options, and they should house far fewer people. When inmates seek education and growth opportunities, they should not be out of reach for being in short supply. Incarceration should permit daily opportunities for self-direction to prepare inmates for life outside. Privatization in all forms should be reduced, restricted, and, if possible, eliminated. All incarceration facilities should incorporate restorative justice programs to the greatest extent possible. The ACLU’s Vanessa Hernandez defines restorative practices to include “peacemaking circles, mediation, and family conferencing,” all with the goal to “bring people who have committed crimes together with victims of crime, their families, and other community members to identify and address the damage caused by crime.” Our current understanding of what can and should constitute punishment is an archaic vision disconnected from our better impulses as humans. This vision has disserved society for as long as prisons have existed.

3. Post-Incarceration, or Reentry: No End to Punishment; No End to Injustice.

It is, I hope, beginning to become clear how steeply the odds are stacked against individuals accused and convicted of crimes, but a final stage of criminal justice remains. When the 90 percent of incarcerated individuals in this country are released from prison, they return home with a bevy of collateral consequences.

First, the actual process of release can be traumatic and doomed to failure. The excellent podcast Ear Hustle provided a window into the moment of transition in a recent episode that followed two former inmates—Cutty, released on parole, and Ronnie, released on probation—as they leave San Quentin State Prison and navigate the California streets. Before his release, Cutty described the plan he’d made, structured day by day, with appointments in place to get his driver’s license, Social Security card, and school registration. He also planned a first meal outside, and time with his family—as well as a place to live. Ronnie, by contrast, had almost no plans. After his release, a friend picked him up and drove him a little over an hour and a half to Stockton, where he quickly became homeless. He spent one night sleeping on the floor in the lobby of the police department. Within two weeks, Ronnie was using drugs again.

Ronnie, 50, has been in and out of prison since he was 22. His longest stretch out of prison lasted two years. He knows he has a drug problem and would like to be in treatment, but he wasn’t enrolled in any form of transitional housing or program. (It may be difficult to understand for those of us who have not struggled with addiction, but after living 28 years in and out of an institutional setting, finding housing and support without any external guiding force usually presents an insurmountable obstacle.) Earlonne Woods, a host of the podcast, explains that in California at least, people released on parole, which is run by the state, tend to have “plans lined up” related to where they’ll live and work. If they need placement for drug or alcohol treatment, they’ll be placed appropriately. But, he explains, probation is run by the counties, which means that services and structure vary wildly by the county responsible for the released person. Transition can be a springboard or a sinkhole. Parole and probation officers, and the presence or lack of support systems, can mean success or failure. Cutty’s success defined by a safe and permanent return to freedom is far from guaranteed, but he at least has a shot.

Also significant at this stage are state policies that dictate how much money a person will be given when released from prison—in most states the amount is less than $200; many states provide nothing at all.

The persistent desire to become contributing members of society carries many people to a better future.

Second, after being released, many states and the federal government label the formerly incarcerated as ineligible for most government-run support programs as a result of their convictions. That is, people with a conviction on their record are often precluded from living in public housing, accessing food stamps, unemployment, or other forms of state support. In many, though not all states, felons lose the right to vote.

Third, employers, educational facilities, housing facilities of various kinds, and other settings may use individuals’ prior criminal convictions as a reason, whether legally permissible or not, to prevent them from gaining access to employment, education, or non-public housing.

This list of collateral consequences is not at all exclusive. Yet, as Michelle Alexander noted in her blockbuster book, The New Jim Crow, in spite of the countless barriers obstructing the paths of those subjected to our policies of overincarceration, the persistent desire to become or remain contributing members of society carries many people to a better future nonetheless. That achievement belongs to individuals and the communities of support they have cultivated. It is not ours.

C. Concluding Thoughts

So, the problem is as follows: At the front end, disparate and racist policing practices, prosecutorial discretion, excessively and disproportionately punitive laws, the common use of cash bail, the lack of community resources and opportunity, and a dearth of diversionary alternatives to incarceration mean that too many people are prosecuted and spend too much time incarcerated. Next, prisons themselves are criminogenic. They fail to provide consistent or significant opportunities for rehabilitation. They radicalize and even undermine skill building by imposing a highly regulated life and making a productive return to society nearly impossible.

At the end, reentry comes with insidious collateral consequences. They result in a near complete dismantling of the social safety net that individuals might require and would otherwise be able to access. Without family or money to step in and save the day, it’s hard to imagine even the highest functioning among us succeeding under such circumstances, let alone those who have in turns been scorned and targeted by a systemically unforgiving society.

On the plus side, many, many solutions are available. We must commit now to curtailing prosecutorial discretion, reducing funding for and demilitarizing police departments improving training and pay for corrections officers, capping sentences at 20 years for most crimes (if this sounds crazy, go read The Radical Humanness of Norway’s Halden Prison by Jessica Benko and A 20-Year Maximum for Prison Sentences by Marc Mauer), legalizing marijuana, providing dramatically expanded publicly funded alternative diversionary programming, abolishing all but the most tailored collateral consequences, andsupporting communities with needed resources, good schools, job training, and networks of support for youth on every street, as well as similar networks for adults who come on hard times.

One grim truth is that we have focused for far too long on retribution and have become accustomed to it. Our understanding of punishment remains simplistic. Yes, consequences can act as a deterrent, and greater consequences often deter people to a greater extent. But consequences have decreasing marginal utility. And yes, incarceration can literally incapacitate a person from active participation in crime. But it is foolish to pour resources into unnecessarily lengthy terms of incapacitation and even more foolish to believe that removing a few individuals from a community prevents crime from occurring. This is so in part because communities with higher crime rates have been deprived of resources and face disparate policing practices, making the removal of particular individuals or groups of individuals less meaningful because circumstances will quickly replace them with others seeking opportunity and with others unjustly targeted by police. My point is this: If we cannot fix the system that created the problem, we face cycles of endless problem replication. Retribution is not without value, but determining its reasonable bounds presents challenges. Our fantasies of avenging death—on near constant display in various media—are never as straightforward as they appear in fairy tales or movies. Few real humans are as flatly evil as a cartoon villain or a T.V. drama sociopath. The complexity of violence and its web of interwoven collisions is painful and, without intervention, never-ending.

I am a white person writing about an issue that, on its face, appears not to belong to me. Policies in and around policing, prosecutorial discretion, prisons, collateral consequences of incarceration, and reentry primarily and disproportionately affect communities of color in the United States. I do not know firsthand the experience of having a parent, partner, sibling, or child in prison, nor do I directly understand the impact it has on the cohesiveness of community. I note this for two reasons: First, I have written less about how our criminal justice system is fundamentally and profoundly racist not because I see that as less central or important in this discussion, but because others eloquently address this more effectively than I can. I recommend The New Jim Crow by Michelle Alexander, Just Mercy by Bryan Stevenson, Solitary by Albert Woodfox, among many other excellent books. Second, I point out my whiteness to acknowledge that there are elements of this injustice that I am simply unable to see by virtue of my race. That fact, however, renders me no less complicit in the evils our criminal justice system perpetuates.

We cannot go on playing at the peripheries of the nightmarish system that we have condoned and perpetuated for decades. The damage we have done cannot be undone, but change is within our grasp. In a time when we face fear and uncertainty, we may choose to encounter the world with hope and resolve to accomplish great progress. It will require that we demonstrate, organize, vote, and embrace an entirely new view of punishment that favors restorative justice, human dignity, and wholeness over retribution. We can and must do better.

The author thanks Garrett Turner for his insightful editorial guidance, as well as Sameer Jaywant and Allen Dreschel for their thought-provoking comments.

Read more about criminal justiceInequalityPrisonssocial justice

Rylee Sommers-Flanagan is a graduate of Emory University and Stanford Law School who lives in Helena, MT. She was most recently a legal fellow with the class action firm Cohen Milstein Sellers & Toll in Washington, D.C.

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