The Realities of Mass Incarceration - What I didn’t learn in 1L Crim

           Over 2.3 million Americans are now incarcerated, with an additional 5 million individuals on parole, making the United States the most incarcerated country in the world. The U.S. now spends $200 billion on the correctional system each year, with some states, like California, devoting more resources to locking-up criminals than educating their children.

           This increase in incarceration comes at the heels of a steady decline in violence. According to government statistics, Americans are safer today than at any time in the last forty years. These statistics of course do not account for the incredible violence occurring in American prisons and jails – the Justice Department reported 216,000 victims of sexual assault in US prisons in 2008 and author Christopher Glazek states that “prisoners are the victims of an ideological system that dehumanizes an entire class of human being and permits nearly infinite violence against it.” Mandatory minimums, three-strikes policies and prison-sentences for the use and distribution of drugs mean that millions of Americans are being incarcerated, many for a long time, for non-violent crimes.

            Unfortunately, those convicted of crimes do not only pay for their actions in prison or jail; upon reentry, they are faced with a host of collateral punishments and legal discrimination. Although significantly increasing the costs of a guilty plea or verdict, often in ways unjustifiably disproportional to the individual’s actions, these collateral punishments have been consistently deemed constitutional. For example an individual found guilty of a felony, even one so minor as first-time possession of marijuana, may face time in prison, and then find themselves ineligible for federally-funded health and welfare benefits, food stamps, public housing, federal educational assistance, and certain employment and professional licenses. If they are citizens, they may lose the right to vote, if not, they become immediately deportable. These consequences create a permanent underclass, even pushing individuals back into lives of crime.

            Neither are the effects of mass-incarceration neutrally divided throughout society. As presented by Marc Mauer, Director of the Sentencing Project, “most prisoners are from poor or working class communities, and two-thirds are racial and ethnic minorities … one-sixth [have] a history of mental illness, and more than half the women inmates a history of sexual or physical abuse.” Michelle Alexander highlights that one in three young African American men are currently under the control of the criminal justice system largely for convictions related to drug crimes – a stark disparity when compared to young White Americans considering that African Americans do not use or sell illegal drugs at higher rates than non-minority populations.

            My 1L criminal law class did not discuss any of these issues.

            We focused on the intricacies of criminal legal doctrines, as if the law was just and fairly applied, and as if the human consequences of a guilty verdict were of no importance. We discussed the requirements for proving murder and theft, but failed to come to terms with the incredible violent reality of mass-incarceration and the racialized and classist effects of a system solely concerned with punishment to the detriment of prevention, proportionality or humanity. Where we spoke about problematic aspects in the law, we failed to discuss possible reforms, contributing to the publicly held opinion that criminal justice reform is largely impossible.

          To the ILs reading this column – I hope you can recognize the importance of reading past appellate-level debates and think about the real-life consequences of criminal law. Unfortunately, the de-humanized nature of legal education is not restricted to criminal law.
          But fortunately, the focus of our classes is in our power. This year when your criminal law professor brushes off comments about the potentials of restorative justice or the racialized nature of prosecutions, probe further and force your class to debate the realities of criminal justice.

Published in the Harvard Law Record