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Mass incarceration and procedral justice - Input Junkie
February 4th, 2012
10:51 am


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Mass incarceration and procedral justice
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.

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(4 comments | Leave a comment)

[User Picture]
Date:February 4th, 2012 07:06 pm (UTC)
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.
[User Picture]
Date:February 4th, 2012 07:55 pm (UTC)
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.
[User Picture]
Date:February 4th, 2012 09:40 pm (UTC)
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?
(Deleted comment)
[User Picture]
Date:February 5th, 2012 09:10 pm (UTC)
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.
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