It’s a crime

Susan Atkins, the member of the Manson family who stabbed the pregnant Sharon Tate, and smeared the word “pig” in Tate’s blood on the murder scene wall, recently made an appeal for a compassionate release from prison. For those not up to speed on her health, Atkins is suffering from the final stages of brain cancer, which has rendered her paralyzed and has cost the state of California about a million and a half dollars in inflated, prison-priced medical expenses. The confessed murderer, who was married several years back, hopes to spend her final days living in the care of her husband in a home she’s never known.

As of my writing this post, the state parole board has denied Atkins’ request.

Given a cursory look, this case is obviously one in which the concept of incarceration is not based on reformation of the convicted or on protecting the public – Atkins is no more a threat to public safety than any other bed-ridden cancer patient. These things said, it is also important to remember that Atkins did commit an incredibly heinous crime, which may leave even the most liberal-minded of us wondering why she was never just put down like a rabid dog. Ironically, however, the man who prosecuted the Manson family, and who sought the death penalty for Atkins and the rest, Vincent Bugliosi, has come out in favor of her release.

Simply stated, from a crime prevention (and economic) standpoint, it makes less than no sense to keep Atkins in prison. But few politicians or public figures would ever be willing to suggest compassion for a participant in one of the most infamous murders in history.

The above story has piqued my interest not because of the violent nature of the crime or because the Manson family signaled an end to the popular concept of flower power and is thus culturally significant, but because I have been thinking a lot about the American penal system lately. Actually, my interest emerged through a jurisprudence class I took about four years ago, but was re-ignited by a recent interview I heard with Adam Liptak, the author of a series of articles in The New York Times called “The American Exception,” which looks at our judicial system.

During the interview, which can be streamed here, Liptak mentions a couple of simple statistics that almost made me swerve off the road with shock. The most striking: The U.S., which holds about 5% of the world’s population, houses about 25% of the world’s prisoners.

I’ll say it again; listen carefully for my inflection: “TWENTY-FIVE PERCENT OF THE WORLD’S PRISONERS!” That’s more than China, North Korea, Iran, or any other “totalitarian” or “rogue” country. Another shocking stat that I read about a year ago is that the U.S. has reached the ominous milestone of imprisoning more that 1% of its entire population. That means more than one in one hundred Americans, over three million people, are currently incarcerated, and 25% of those are serving time for non-violent drug offences.

So what’s the big deal? Is it a problem that we jail so many people? Can’t it be said that we simply have a more efficient justice system than any other country in the world? As illuminated by Steve Borgia in his book Courtroom 302, this is partially true. In urban courtrooms, like the one Borgia spent a year observing, the justice system resembles a fast-food kitchen more than a thoughtful institution that takes greater social implications into account.

Another concept, which cannot be denied, is that crime (or what qualifies as such) is socially constructed. For example, returning to the previously mentioned non-violent drug offenses, which constitute about a quarter of our prison population: whereas we are currently housing about 750,000 people for such “crimes,” most other Western countries treat these transgressors as a medical and not a criminal problem.

One might think that it’s common sense to treat drug addiction (categorized by the medical community as a disease) in a hospital rather than in a penitentiary. Of course, if someone else’s property is actually damaged in a drug-related crime, the convicted should be made to pay. But shouldn’t it also be common sense that if jail – even in its most base conceptualization – is intended to prevent further criminal activity, it should focus to a degree on rehabilitation? And if this is the case, shouldn’t we listen to the experts who mostly agree that prison tends to harden non-violent offenders and create more social problems than it cures?

One of the larger hurdles in dealing with our penal system, of course, is that the phrase “soft on crime” has crashed the party of our collective common sense and refuses to leave. Certainly, no politician wants to be perceived as “soft on crime,” as such a blemish would likely dash any hopes of re-election. For those or us who are old enough to remember the presidential race between George H.W. Bush and Michael Dukakis, the name Willie Horton says it all. For those too young to remember, here’s the original campaign commercial:


You may also remember that this commercial was quite controversial, but not because of its stance on crime; it was seen as racially divisive. The way the ad depicts Horton, as a criminal, was never (at least to my recollection) called into question. When it comes to crime, most everyone tends to agree that the best way to deal with felons is to extend their sentences as long as possible so that they may be “kept off the streets.”

But isn’t this previous phrase a bit racist as well? We don’t have catch phrases about keeping criminals out of boardrooms or off country roads – places predominantly inhabited by white people. Instead we use coded words (in this case the urban term, “streets”) so we don’t have to come out and say, “the country would be safer if we swept up as many non-whites as possible and threw them in jail.”

We do, however, create laws that, for example, make it illegal for more than three young men to congregate in certain neighborhoods. Obviously the difference between a gang and a group of guys hanging out is the color of their skin (or at least their socioeconomic background, which is often tied to race).

In further exploring whether or not our penal system is racist, I share some more statistics, these from Human Rights Watch: African Americans comprise 13% of the U.S. population, but 41% of our prison population; 9% of all African Americans are either in prison or on probation or parole; 1 in 3 African American men between the ages 20 and 29 were either in prison or on probation or parole as of 1995; finally, 1 in 10 African American men in their 20s is in prison.

The effect on our democracy: 13% of all African American men cannot vote due to prior felony convictions. Since African Americans vote overwhelmingly for Democratic candidates, this stat works out particularly well for our Republican friends, and may give a more cynical person reason to believe that criminal codes may be created or perpetuated to keep the status quo chugging along at the expense of a healthy democracy…and the African American community.

Is it possible that what we deem as criminal activity is an updated version of a Jim Crow-era poll tax? I’ll leave this particular hot potato to commenters.

At this point, you may be wondering what the African American population’s over-representation in prison has in common with whether Susan Atkins (a middle-aged white lady) receives a compassionate release. As Liptak sees it, our overzealous penal system has everything to do with this “American exception:” we are the only country in the world that elects state, county, and municipal judges. According to Liptak, this creates a situation in which sitting judges are forced (assuming they want to keep their jobs) to mete out maximum sentences regardless of whether or not the punishment fits the crime. Ultimately, as with other elected officials, it is career suicide for judges to appear “soft on crime.”

Despite what conservatives want us to think, this understanding of the role of judges (as thoughtless disher-outers of punishment) runs counter to the Western tradition of the judiciary’s place in society. For example, those whom the Right have labeled “activist judges” because they “legislate from the bench” are much more in line with tradition than those who simply throw the book at felons. By this I mean that the historical role of a judge is to look at the case presented before him or her and to seek justice in the most appropriate way he or she sees fit. And if there are no prior court decisions relevant to the current case, a judge is supposed to create law (or “LEGISLATE FROM THE BENCH”). This tradition is what we call “common law,” and it is where we’ve derived many of our rights, like the right to privacy, which is not numerated or mentioned anywhere in the Constitution.

(God, it annoys the shit out of me when I hear people throw around the phrase “activist judges,” as if a judge using his or her mind is a bad thing!)

Those of us who are (for the most part) law-abiding may take the position that since the system doesn’t directly affect us, we don’t need to concern ourselves with its problems. But the reality is that our system does not only punish violent criminals. Through mandatory sentencing for drug and other non-violent offenders, it creates and perpetuates a class of violent offenders where none previously existed, and this will continue to snowball, creating a self-fulfilling prophecy – the need for more and more prisons.

The bottom line is that unless elected officials (especially judges) are willing to face oversimplified arguments head-on and propose that it doesn’t always make sense to throw non-violent criminals in jail, we are faced with the likelihood of an ever-expanding prison and recidivist population.

As a good quasi-Marxist who follows the money trail (admittedly sometimes in an over-simplified way), I expect that our overgrown prison population will wind up being America’s answer to cheap labor competition with China. Frankly, I’m shocked that no legislator has suggested the prison-sweatshop solution already! At the very least, corporations that benefit from the privatization of prisons will continue to profit – for those of you hoping to capitalize, I suggest buying stock in any company involved in this growth industry.

Perhaps every cloud does have a silver (or green) lining. But in the meantime, don’t worry; you only have a 1 in 100 chance of being on the wrong end of our jacked penal system…that is, assuming you’re white.

8 responses to “It’s a crime”

  1. Marleyfan says:

    How are we going to change the system to get judges appointed, legalize and regulate drugs, and fight poverty and employ the African-American male? Sometimes social change seems like a chasm too wide to cross. Hell, let’s just start another war and not worry about it.

  2. S. Godfree says:

    It seems like the de-criminalization of controlled substances would be a pretty good place to start. A decent public education system would be another. A news industry that doesn’t merely work as a proxy for a fucked-up penal system might be yet another place to start.

  3. Dave says:

    In case I haven’t mentioned it a dozen times already, I’ve been reading Rick Perlstein’s fabulous Nixonland, and one of many topics he covers is the origin of “law and order” rhetoric in the racial unrest and civil-rights backlash of the mid-60s. Ronald Reagan was elected governor of California and Nixon was elected president largely by coding racist fears in terms of crime, opposition to “criminal-coddling” liberal judges, etc. The direct antecedent of the Willie Horton ad. The laughable and disastrous “War” on Drugs was, similarly, a response to scary Negroes and out-of-control hippies; Nixon’s Silent Majority was always more than happy to use state violence against both groups, who represented an existential threat to the established order.

    So, Marleyfan, I agree that fixing this mess is hard — we’re going to have to reverse, somehow, the polarization of American cultural politics that has been the political reality of the last 40 years.

  4. Tim says:

    Thanks, Scotty, for this excellent post. All I have to add are a couple of book titles you might want to check out: American Furies by Sasha Abramsky, about how the American penal system is no longer focused on “rehabilitation” and Women Behind Bars by Silja Talvi, about the severe rise in incarcerated women (primarily women of color) in the US, particularly due to the ‘drug war’.

    (Full disclosure: I’m Talvi’s agent.)

  5. Marleyfan says:

    We have to remember to contact our legislators, speak-up, and tell our leadership what we value.

  6. ruben says:

    Nice points about how screwed up our system is, scotty, but what would you do with Atkins?

    The particulars of her case, a middle class white girl savagely murdering a pretty white pregnant woman on the orders (?) of a hypnotic hippie, etc. did end the myth of the 60’s, help set us up for Nixon’s “law and order” coded language by scaring a lot of mommies and daddies that their baby might be next (and I’m a huge Patty Hearst “fan” so don’t even get me started on that one) and pushes so many cultural buttons that it seems different than many of the issues you rightly skewer regarding the overincarceration of people of color or people convicted of drug offenses.

    Sure she’s not a physical threat to anyone at this point but that’s a slippery slope that I think would be difficult to truly assess if we tried and applied it to all future cases. Corrado Soprano was funny in his way but should some decrepti Nazi prison guards be riding on the bus next to me because they’re old and have lost a step?

    I’m not a huge fan of the symbolic value of some people being removed from our community forever but I would rather see a whole lot of small time drug offenders released from prison before Susan Atkins.

  7. S. Godfree says:

    What I would do with Atkins isn’t really the point of my post (but for the record, I’d probably let her out). The point is that we need to look at our penal system in an honest way.

    The big question is whether or not we hope to rehabilitate or just house prisoners. If we hope to rehabilitate, we are obviously going about it all wrong. If we are housing prisoners with the hope of creating a safer country, this is not working either.

    Moreover, if the point is to just remove criminals from our society, I think we are on the way to a much more frightening slippery slope: eugenics, or some other such quasi-scientific approach.

  8. Jeremy says:

    all day, i’ve been wanting to write a thoughtful comment about this superb post. unfortunately, this isn’t going to be it. but i just wanted say how shocking some of these statistics are–and to thank you for bringing them to light here… and, yeah, “activist judges”–i’m with you there. just such b.s.