We hear a great deal nowadays about criminal justice reform, but it may not be addressing the most serious problems of American criminal law. We hear about such things as police brutality, racial bias, excessive sentences for drug offenses, and problems of mass incarceration. The validity of these claims is certainly debatable. Even if they are valid, other, more sweeping socio-cultural problems are likely to be responsible for certain of them. For instance, the disproportionate percentage of blacks in prison, which some say demonstrates racial bias, may be a result largely of the breakdown of the black family, which has been talked about for fifty years. However, there are more basic problems that necessitate a searching reconsideration of the direction that American criminal law and its enforcement have taken.
What are these problems? One is, simply, overcriminalization: police officers and judges stretch the law to treat certain acts as being against law when they clearly are not. A much-publicized example is the college admissions scandal. Paying a fixer to get one’s children into prestigious universities by dishonest and underhanded methods is nowhere forbidden or addressed in federal law. Yet that didn’t deter federal prosecutors. They have used the “all-purpose” federal statutes concerning fraud and conspiracy to go after the parents.
Quite the contrary of the alleged bias of the criminal justice system against the poor and racial and ethnic minorities, these prosecutions may have been influenced by a bias against the rich and famous—or at least sought to make the point, by stretching the law, that they simply have to be held accountable. To be sure, these prominent parents acted dishonestly. But that doesn’t mean they acted illegally.
Apart from stretching the law, there is a tendency by legislatures and bureaucratic agencies—on both the federal and state levels—to use statutory and regulatory law to prohibit an ever-increasing number of behaviors. Legislators and bureaucrats are seldom willing to spell out precisely what behavior they’re criminalizing. Vague laws are a scourge and source of great injustice in contemporary America. As one prominent legal commentator put it, the average American commits three federal felonies a day and doesn’t even know it.
One criterion used to determine whether a law is just (i.e., in accordance with sound ethics) is whether it spells out clearly what behavior it’s proscribing. Vague laws by their nature fail to measure up to this. And when people don’t even know that a law exists, another ethical requirement for a law to be considered just is not met: it has to be properly promulgated to those who are subject to it. In an era when there is a veritable explosion of statutory and (even more) regulatory law, this problem abounds.
We see here a movement away from the traditional requirement of intent, or what is called mens rea, or “guilty mind.” So, we find people being arrested and prosecuted for actions that they indeed thought were entirely legal, or even for accidental mishaps, or absent-minded or forgetful actions that were in no way intended. Take, for example, parents who forget that their babies or small children are in car seats in the back seats of their cars—even though state laws have encouraged such situations by requiring young children to be put in rear-facing car seats in the back seat where they can’t even be seen in the rearview mirror. So, a parent has a momentary lapse of memory, forgets about a sleeping child, and runs into a store for five minutes—only to come back out and be handcuffed and shoved in the back of a police cruiser.
Such cases are frequent enough if we judge by news reports. I remember when this was the fate of a good, loving mother several years ago in the city where my university is located. The Good Samaritan, who could have very easily remained by the car to watch the child while having the mother paged inside the supermarket, instead reflexively called the police—who, just as reflexively, whisked her off to jail.
That brings to mind another problem with current criminal justice: police are too ready to arrest. One wonders if this is both a result of inadequate officer training, which doesn’t sufficiently stress their role as problem-solvers and conflict-resolvers. Maybe it’s time to think about returning to the 19th-century notion of the police officer as partly a social worker—at least to the degree that it’s possible in a society that has become more violent and morally unhinged.
This reflex to arrest perhaps reached its ultimate just days ago in Florida when a school resource officer arrested a 6-year-old girl after she threw a temper tantrum (possibly caused by a health problem) at her school. She was carted out in handcuffs to a juvenile detention center, had her mugshot taken, and was fingerprinted. If she doesn’t show up for a court appearance, a warrant will be issued for her to be arrested again.
Following from over-policing is another common complaint among criminal justice reformers: excessive incarceration. In recent years, the U.S. has had the highest incarceration rate in the world. There are probably multiple causes for this, including a tendency to prescribe longer sentences for a range of crimes, including those involving drugs. Interestingly, the last two decades have seen a disproportionate increase in women being incarcerated compared to men.
At the most basic level, one wonders if American criminal justice has come to almost reflexively seek jail time as punishment. It seems the judge in the admissions scandal just had to sentence Felicity Huffman to prison, even if only for two weeks. Cases like this make one ask if incarceration is excessively motivated by a desire to play to the grandstands, if you will, where the public thinks that the offender—especially in a highly-publicized case—should “pay the piper.” Courts should have only one object in mind when handing down decisions: securing justice.
Regarding incarceration—and this also takes us back in a certain way to the question of intent—it has been commented that American prisons are full of people with mental illness. Is there some other way of dealing with offenders whose crimes may be related to mental illness, even if they don’t rise to the statutory standard of insanity?
If one is to speak of police misconduct, he must also speak of an even more serious problem: prosecutorial misconduct. The use of plea bargaining (which has become the norm in criminal cases) pressures the accused into accepting a conviction without requiring prosecutors to go through the trouble of proving their cases. Similarly, inmates will often cut deals with attorneys, fingering innocent people as the culprits in open cases for their own gain. Then there’s the widespread violation of defendants’ attorney-client privileges, the refusal to disclose exculpatory evidence, and the use of questionable sting operations that set up crimes and entrap offenders—all of which brought the American criminal justice system to a crisis point decades ago. The problems are especially acute at the federal level, where promotion often comes as a reward for securing lengthy sentences and not for delivering justice. Of course, a successful prosecutorial career is a ready stepping-stone to higher political office.
American criminal justice is, in many respects, in disarray. The reasons listed above seem to me to be the major reasons, and they are of a fundamental character. Any reform efforts that fail to address them are likely to be of limited value.
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