Posted on 08/06/2024 10:51:01 AM PDT by Heartlander
Not only have we adopted more criminal laws at an astonishing clip, but the punishments our criminal laws carry have also grown markedly. Beginning in earnest in the second half of the 20th century, legislatures began to adopt laws that had, as Judge Jed Rakoff has noted, "two common characteristics: they imposed higher penalties, and they removed much of judicial dis-cretion in sentencing." Notable among these laws were statutes imposing mandatory minimum terms of imprisonment for certain crimes.
Today, sentencing changes like these can propel some sentences into the stratosphere. A defense attorney in Florida told The Economist that, looking at his clients' prison terms, it appeared to him that the United States was conducting "an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone." One of his clients who had been convicted of fraud was sentenced to 845 years. "I got it reduced to 835," the lawyer said with a sigh. A group that looked across state prison systems found "a consistent upward trend in the amount of time people spend in state prisons" and that the "longest prison terms are getting longer." Another group found that one out of every seven of those now incarcerated is serving a life sentence—more people in total than were serving any sentence in 1970. And while crime tends to be a "young man's game," 30 percent of those serving life sentences were found to be over the age of 55.
Thanks to developments like these, the United States is now a world leader when it comes to incarceration. Our incarceration rate is not only eight times as high as the median rate in western European democracies, it is higher than the rates found even in Turkmenistan and Rwanda. As in those of many states, federal prisons have been operating for years around or above 100 percent capacity. And those who emerge from our prisons often confront collateral consequences that haunt them for years—including the loss of voting rights, licenses, public benefits, jobs, and access to housing.
Just how new is all this? For a good portion of the 20th century, incarceration rates in this country were pretty flat—so much so that, as the Georgetown law professor David Cole has explained, some criminologists imagined that they'd always be the same. From the 1940s to the 1960s, the prison population actually decreased. But since the 1970s, it has "mushroomed." In all, more than a million Americans today are behind bars. When those on parole or probation are included, the Department of Justice estimates, one out of every 47 adults is under "some form of correctional supervision."
Nor do the numbers tell the whole story. Much has been written about how, when the number of crimes increases and the punishments they carry grow more severe, respect for criminal law as a whole decreases. As far back as 1967, a presidential commission convened to study the nation's criminal justice system warned that a "substantial cost of overextended use of the criminal process is the risk of creating cynicism and indifference to the whole criminal law." As the late legal scholar William Stuntz once put it, "too much law amounts to no law at all," for "when legal doctrine makes everyone an offender, the relevant offenses have no meaning independent of law enforcers' will. The formal rule of law yields to the functional rule of official discretion."
Take what happened during the COVID-19 pandemic as a microcosm. Before the pandemic, many legislatures across the country adopted laws granting executive officials discretion to declare states of emergency. Many governors, mayors, and others deployed those emergency powers during the pandemic and used them to announce their own new rules. Some observers defended the rules as essential; others questioned them. Either way, the rules often shifted from week to week and from town to town in ways difficult for people to track. In some jurisdictions, people were arrested or criminally charged for doing what at any other time could only be described as "living life." One researcher looked into the practices of a single city and found that one man had been cited for "sitting in front of his home listening to music," another for "being on a city street unnecessarily with two other individuals," and one group for "milling around aimlessly." Many of the targeted individuals were members of less powerful constituencies or minority groups. Government officials targeted churches but not favored businesses. Early in the pandemic, Time pointed to a study finding that "people of color were 2.5 times more likely to be punished for violations of COVID-19 orders than white people."
Much more could be (and has been) said about the hidden costs of expanding the reach of criminal law and the wreckage it can leave behind for individuals, their families, and their communities. But consider just one man's story. As a young man George Norris fell in love with orchids. Eventually, he quit his job as a construction worker with the hope of turning his passion into a living. He worked hard, traveling to Peru, Ecuador, and Mexico in search of exotic plants, building his business slowly over time. Eventually he made a name for himself, collectors increasingly turned to him, and his small business began to flourish. Then one day in October 2003, his life turned upside down.
That day, six federal agents dressed in black body armor and bearing firearms pulled up to his home in three pickup trucks. Two went around the back of the house while another approached the front door. When George opened the door, the agents announced that they were executing a search warrant and swept in, ordering George to sit in the kitchen while an agent watched over him. His wife was out at the time, but a neighbor soon alerted her about the brewing trouble. (Apparently agents had been asking passersby what they knew about "the criminal activity" going on at the house.) When she called her husband, she found him "frightened" and "confused"; "there was no telling what this was about."
Mrs. Norris later testified that the agents "ransacked" their home, dumping drawers full of belongings onto the floor, before carting away 37 boxes of the couple's possessions, including Mr. Norris' computer. It took about five months for the Norrises to learn that George was under investigation for importing orchids without proper documentation. After federal authorities indicted him on seven counts, George surrendered to officials, who placed him in handcuffs and leg shackles—by that point he was 67 years old—and confined him in a cell with three other arrestees. One was suspected of murder, two of dealing drugs. When he told his cellmates he was in for orchids, they erupted with laughter. One quipped: "What do you do with these things, smoke 'em?"
George tried to fight, but the legal bills racked up. Eventually, he changed his not-guilty plea to guilty. "I absolutely hated that," he later said. "The hardest thing I ever did was stand there and say I was guilty to all these things. I didn't think I was guilty of any of them." He was sentenced to 17 months in prison. (The government had asked for about double that time.) He was then and forever labeled a federal felon. He reported to prison in January 2005, was temporarily released while an appellate court heard his case, then returned to prison to serve the remainder of his term. For 71 days, officials reportedly segregated him in solitary confinement (though as it turned out, he was actually with two other inmates thanks to overcrowding). Finally, George was released in April 2007.
"The hardest part," his wife later testified, was that "I lost the man I married. He came home from prison and he ate and he slept and he sat on the couch and looked at the TV, but he wasn't really watching it. It was like having him in a coma, almost. He wouldn't water a plant, he wouldn't call the grandkids, he wouldn't invite a friend over, he didn't want to go out to dinner. Nothing."
The family struggled with their finances, having used their savings to pay for George's defense. George's business was done, his greenhouse abandoned; he simply didn't have it in him anymore. "I don't sleep like I used to; I still have prison dreams," he later told an interviewer. And then in a quiet voice he added, "It's utterly wrecked our lives."
Of course, not every federal felon is like George Norris. Many sitting behind bars are serving time for violent crimes or other conduct that most would recognize as reprehensible. Doubtless, too, new criminal laws are sometimes needed to address new social developments. And surely the federal government has a role to play in the criminal field, including to thwart criminal schemes that cross state lines or to secure fundamental rights protected by the federal Constitution. But are more criminal laws and longer sentences the answers to every problem?
This article is adapted from Over Ruled: The Human Toll of Too Much Law
"Two Tier" Keir in the UK would be proud.
Neil Gorsuch ping!
I tend to agree. Some crimes deserve long sentences. Some crimes might be better off requiring legitimate community services for social rehabilitation.
Violent criminals should be hanged after the third offense. Murderers and rapists after the first.
That’s more like it, what you just said in second statement!
Didn’t the GOP lead the way in prison reform during Trump’s first term?
Neil Gorsuch:
Neil Gorsuch, a Justice of the Supreme Court of the United States, may make Americans to really look at our judicial system to eliminate the B$ on both sides of our legal system.
I think it was Chuck Colson who said a long time ago that our punishments for violent crime were too weak and our punishments for nonviolent crime were too strong. (It might have been Marvin Olasky, or they might agree with each other.)
The Bible’s punishments in Torah are simple and explicit. Most violent crime was punishable by death. Property crime was punishable by reparation plus 20%. Some other crimes were punishable by exile.
There was no such thing as jail time, because there was no such thing as a jail. The concept of a correctional institution or penitentiary comes from the Quakers, who thought a person, given enough time to think about his crimes, would come to repentance. (Doesn’t work.)
Many years ago I was at a talk given by an NRA lawyer. He said that federal gun laws were so complex that almost everyone in the room has broken at least one of them.
The guy I was with snorted. “What an exaggeration!” he said to me. Then the NRA lawyer went down a list of common federal gun crimes.
“I’m a felon,” my friend said to me.
This article runs counter to the impression I’ve been receiving in recent years. It seems to me that we are decriminalizing more and more crimes and eliminating or greatly reducing prison time. The only notable exceptions are the treatment of J6 participants and right-to-life demonstrators.
“some form of correctional supervision”
Who and what are “correctional” facilities correcting?
> I think it was Chuck Colson who said a long time ago that our punishments for violent crime were too weak and our punishments for nonviolent crime were too strong. <
It’s a bit of a tough call. A thug threatens a clerk with a pistol, and steals $100 from a convenience store. A top executive types a few things into a computer and embezzles $1,000,000 from his company.
Given that part of punishment is to deter future bad behavior, which person above deserves the longer sentence? I dunno.
There are too many violent criminals on the street and too many violent crimes that never get punished. We have practically legalized rape in some cases.
I have a problem with background checks where one mistake can give you a life sentence when it comes to finding a job or other impediments to going on with your life. Violent criminals and child molestors are the ones to keep records on. After 7 to 10 years without further arrests scrub the records or give then non disclosures. Some states have Clean Slate laws and I think that’s a good thing.
Our legal system is unjust. People who commit terrible crimes skate off while draconian sentences are mandated for minor acts. Like disturbing an official meeting ... years in prison.
...
The family struggled with their finances, having used their savings to pay for George's defense.
Government has essentially unlimited funds with which to prosecute its targets. Government extracts those funds from We the People at gunpoint. Meanwhile, with rare exceptions, We the People do not have the means to defend ourselves in court.
This conundrum is entirely rooted in leftit ideology.
Judicial discretion in sentencing was essentially outlawed because too many leftist judges were letting hardened criminals, murderers, drug dealers, etc off lightly and justifying their decision in “he grew up in a racist society and had no choice but to choose crime” nonsense. There was a backlash by clear thinking citizens who demanded minimum sentencing requirements to counter it.
Same leftists demand harsher and harsher sentencing, and making everything a crime, where the targets are ordinary citizens going about their daily lives, such as imprisoning fisherman because they used the wrong packaging for their lobster catch, or praying in front of abortion mills, or posting internet memes the left doesn’t like. The no-discrection in sentencing then made it impossible for a reasonable judge to cater the “sentence” for such ‘crimes’.
Same leftists then decriminalized drug use/sales/public consumption and retail thefts committed to finance the drug users’ habit. See, c.f., San Francisco. Can’t park your car for an hour without it being broken into, or shop without a master key to the locked up items, and shoplifting is legal.
Same leftists free rioters when they burn, loot, and murder and build statues to their drug god but jail nonviolent republican political protesters for years without trial.
So while I agree with Justice G’s lament, the leftist roots have grown into a towering sequioa overshadowing the reasonable administration of justice. It’ll take alot more than passing laws to address it.
Then they impose higher and higher fines and restitution payments against those with no way to pay. Contempt of Court is then charged for non-payment. That uses to be know as debtor’s prison.
If a man or woman is released from jail, thatman or woman must have all of the rights back, especially those related to protection.
Back when we had the death penalty and used it regularly and swiftly we had a lot less crime.
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