The Injustice System

This is, however, a bureaucracy that the public has demanded and helped shape by electing demagogues who promised to be tough on crime. In the past two decades, with apparent public approval, Congress has enacted laws greatly expanding federal criminal jurisdiction, restricting appeals of convictions, imposing harsh mandatory sentences on nonviolent offenders, and encouraging the states to pass their own mindless "three-strike" laws. These have resulted in life imprisonment for three-time felony offenders, regardless of the seriousness of their crimes. In a notorious California case, for example, a 27-year-old man was sentenced to 25 years to life for swiping a slice of pizza.

Some attribute the recent decrease in violent crime to an increase in the prison population occasioned by such laws [see Nicholas Confessore's "Prisoner Proliferation," page 69]. But violent crime is affected by numerous factors, notably demographic trends and police practices; the effects of imprisonment on crime are highly debatable. Prison terms increased dramatically during the 1980s—but while violent crime decreased in the early 1980s it rose in the latter half of the decade. A 1993 National Research Council report concluded that the lengthened sentences in the 1980s had little effect on crime, adding that "a 50% increase in the probability of incarceration would prevent twice as much violent crime as a 50% increase in the average term of incarceration."

But criminal justice policy has not reflected much rational analysis and is not simply focused on crime control. It is also an anti-vice crusade. Repressive criminal laws and practices initiated in recent years are weapons in an ongoing, consistently ineffective war against drugs—a war against some drugs, that is, like crack cocaine and marijuana. Racial profiling was designed to catch drug offenders, and mandatory minimums were designed to punish them. Popular opposition to illicit drugs has always been fueled in part by racism (marijuana was originally targeted partly because of its associations with blacks and immigrant Mexicans), and the government war against drugs quickly turned into a government war against its citizens—a war against some citizens, that is, notably (but not exclusively) racial minorities. While African Americans constitute 12 percent of our general population, they represent more than 50 percent of our prison population. As David Cole observes in his incisive new book, No Equal Justice, African Americans make up an estimated 14 percent of illicit drug users, but they are subject to 55 percent of all drug convictions and 74 percent of all sentences for drug offenses.

Progressives have long held that if these figures were reversed—if middle-class whites were targeted by police and prosecutors and incarcerated in such grossly disproportionate numbers—the public would revolt. In fact, the revolt would start long before the imprisonment of so many whites. The recent attention paid to misconduct by federal prosecutors has been prompted partly by the spectacle of white women—Susan McDougal, Julie Hiatt Steele, Monica Lewinsky and her mother Marcia Lewis—being prosecuted or coerced by Kenneth Starr. Concern about federal prosecutorial abuses may also reflect an increase in federal prosecutions of technical, white-collar crime. Criminal defense attorney Harvey Silverglate reports that growing numbers of businessmen are being indicted for what might have once been considered "sharp" (but legal) business practices.

I'm not suggesting a majority of voters will knowingly tolerate injustice as long as it does not appear to threaten them. I suspect, instead, that many people simply don't recognize injustice unless they can identify with its victims. Fear of crime and prejudice about the use of drugs are stronger than logic and political consistency, and people blessed with no firsthand knowledge of the justice system have probably been unaware of its abuses. Many people seemed genuinely shocked by the conduct of the Starr team—but as defense attorneys quickly observed, Starr's investigation was typical of many federal prosecutions and considerably less abusive than some.