Criminal Justice, Civil Liberties Issues Missing From 2012 Campaign

A discussion worth having with or without elections…

Our broken criminal justice system wasn’t discussed in the first two 2012 debates, and it’s unlikely it will be addressed in the two that remain. In fact, crime hasn’t been a factor in any presidential campaign since 1988, when Vice President George H. W. Bush and political strategist Lee Atwater — along with assists from Al Gore and CNN anchor Bernard Shaw — hit Michael Dukakis over the head with them. Since then, the only way either major party nominee has talked about crime has been to promise he’ll be tougher on it than his opponent.

Even during Supreme Court hearings, the topic only comes up when partisans promise a nominee will crack down on those technicalities crime hawks (mistakenly) believe have turned prison gates into revolving doors. When the Senate was considering Sonia Sotomayor, for example, Sen. Chuck Schumer (D-N.Y.) complemented her judicial history by noting she had “ruled for the government in 83% of immigration cases, in 92% of criminal cases.” Former prosecutor Sen. Amy Klobuchar (D-Minn.) then praised Sotomayor for those occasions in which she had excused police officers who had violated the Fourth Amendment. Vice President Joe Biden told a gathering of law enforcement organizations that Sotomayor “has got your back,” an incredibly inappropriate thing to say (even for Biden). Imagine the uproar if the vice president had said the same thing to the National Association of Criminal Defense Lawyers, or the American Civil Liberties Union.

When crime has been an issue in presidential politics — most notably in 1968, 1980, 1984, and 1988 — it’s been when crime was on the rise. When crime is falling (as it has been for nearly 20 years), the voting public isn’t particularly concerned about whether old laws passed when crime was higher have gone too far. So, neither are the candidates. The result is a ratchet effect on the Bill of Rights.

But those laws have had consequences. For all the talk about “the one percent” over the last eighteen months, the economist David Henderson recently looked at the other one percent. That is, the bottom one percent. Henderson writes:

It turns out that about two-thirds of the people in the bottom 1 percent are in U.S. prisons. And of these people, a few hundred thousand are there for victimless crimes. Letting them out would help them and save us taxpayer money. That’s a win-win …

We have a higher percent of our people in prison than any other country in the world and the percent of our population in prison has, shockingly, more than doubled since 1980 …

We may question the wisdom of using such drugs as marijuana and cocaine, but the people who use them should be free to make their own decisions. They might make bad decisions, but should people go to prison for making bad decisions that hurt no one but, perhaps, themselves?

Former offenders struggle when they leave prison. Sociologists Bruce Western and Devah Prager have conducted experiments (PDF) in which they’ve sent trained testers to apply for job openings. Some were told to check the box on applications indicating that they had a criminal record. The applicants were dressed similarly, and had identical levels of experience. The results? White applicants with a criminal record were half as likely to get callbacks as applicants without a record. Blacks with a criminal record were two-thirds less likely. Former offenders earn 40 percent less than someone with a similar background and experience, but no record. And they’re far less likely to increase their income over time.

An arrest without a conviction can be devastating, too. A check in the “Have you ever been arrested?” box is a handy way for an employer to winnow down a stack of job applications. Why take the risk? In New York City, half a million people are stopped and questioned by police each year without probable cause. In some communities, nine in ten residents have been stopped. Aggressive stop-and-frisk policies have lead to thousands of arrests of people who have done nothing wrong, or have been tricked by police into committing a misdemeanor.

According to Western’s research, as of 2008 about 2.6 million children had a parent in prison or jail, and by age 17, a quarter of black children will have father who has done time. Children of incarcerated parents are more likely to be depressed, get into trouble at school, and drop out of school entirely.

The collateral damage then spirals outward into neighborhoods and communities, where it’s corroding the very institutions law-and-order politicians use to enforce the laws in the first place. In many communities where police use confidential informants or employ an aggressive stop-and-frisk policy, residents no longer call the police to report crimes, and are reluctant to cooperate with them when asked. Western writes:

Part of the power of punishment as a deterrent to crime is the shame and stigma of a criminal record. Where incarceration has become commonplace … the righteousness of the police is no longer assumed and a prison record is not distinctive. The authority of the criminal justice system has been turned upside down, and the institutions charged with maintaining safety become objects of suspicion …

We may care little about the job prospects of ex-cons. We may not even care much about their children or neighborhoods. But if the social costs of imprisonment grow without limit along with the prison population, mass incarceration becomes a self-defeating strategy for crime control.

There are other problems. The onset of DNA testing has revealed that our criminal justice system is more flawed and prone to error than most of the country probably suspected. The gaps in the system that produced the wrongful convictions uncovered by DNA testing are undoubtedly at work in other cases as well.

Other issues we won’t hear about in this election: The common perception that prison rape is part of the punishment that comes with a felony conviction. The disturbing amount of prosecutorial misconduct within the Department of Justice–and the lack of accountability for the prosecutors who cheat.

There’s an important debate to be had about privatizing prisons, and whether it’s wise to have a government-created industry with a bottom line dependent on keeping as many people locked up for as long as possible. There’s the vastly under-reported national scandal of corrupt crime labs and corrupted forensic evidence. The latest incident involves a crime lab technician in Massachusetts who may have faked thousands of drug tests.

We’re in a 30-year trend toward police militarization, a phenomenon that has been driven by federal incentives. And we’re expanding the use of solitary confinement (even for children).

Politicians are risk-averse creatures of habit. For decades they’ve been trained to mutter the same soundbites about crime. Polls show America’s opinions on many of these issues are shifting, but few people actually vote on them. And the people most affected when the crime policy pendulum swings too far toward government power aren’t large enough in number or stature to force a debate.

These aren’t commercial-ready, culture warring, fundraising issues like something some candidate said about rape, funding for Big Bird, or whether or not Clint Eastwood is losing his mind. They’re difficult, important, and — especially for the communities they affect most — they’re immensely consequential. But until there’s a penalty at the polls for looking the other way, most candidates will avoid the political risks that come with tackling them.

– Radley Balko

Posted: 10/15/2012 12:24 pm Updated: 10/15/2012 5:43 pm