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U.S. legal system is the world’s most punitive, experts agree

17:00 | 25.02.2012 | Analytic


25 February 2012. PenzaNews. According to Penal Reform International, as a result of its history of slavery and discrimination, the United States is a very punitive nation with the largest prison system in the world and continued use of the death penalty despite international condemnation.

U.S. legal system is the world’s most punitive, experts agree

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The International Centre for Prison Studies in London estimates that there are currently more than 2.4 million people incarcerated in U.S. prisons and jails, the highest per capita rate in the world.

James Felman, Co-Chair of the Criminal Justice Section Committee on Sentencing of the American Bar Association (ABA), thinks that there is over-reliance on incarceration in the American criminal justice policy.

“For the first time in our nation's history, more than one in one hundred of us are imprisoned. The United States now imprisons its citizens at a rate roughly five to ten times higher than the countries of Western Europe. Roughly one quarter of all persons imprisoned in the entire world are imprisoned here in the United States,” he said in a testimony for the public hearing before the United States Sentencing Commission in February 2012.

A January 2012 article in The New Yorker which generated massive public debate also states that more black men are now under correctional supervision in the United States than were in slavery in 1850.

“For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850,” the article says.

Michelle Alexander, professor of law at Ohio State University and author of the book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, is convinced that the American legal system operates to discriminate against poor African Americans despite being officially colorblind.

“Mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow. Through the war on drugs and the ‘get tough’ movement, millions of poor people, overwhelmingly poor people of color, have been swept into our nation’s prisons and jails, branded criminals and felons, primarily for nonviolent and drug-related crimes — the very sorts of crimes that occur with roughly equal frequency in middle-class white neighborhoods and on college campuses but go largely ignored — branded criminals and felons, and then are ushered into a permanent second-class status, where they’re stripped of the many rights supposedly won in the civil rights movement, like the right to vote, the right to serve on juries, and the right to be free of legal discrimination in employment, housing, access to education and public benefits. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination — employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits — are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America: we have merely redesigned it,” she notes.

Noam Chomsky, a renowned philosopher and linguist and a professor at MIT, concurs in Michelle Alexander’s opinion. He believes that the totally ineffective and wasteful war on drugs was launched with the aim of getting rid of a superfluous population.

“There is a very close race/class correlation. Since the drug war started, there's been a very sharp increase in incarceration rates, and the target is primarily black males. After all, think of the history of this country. After the Emancipation Proclamation, there were about 10 years in which blacks were formally sort of free, and then slavery was reintroduced by incarceration. By the 1870s the states had passed laws, and federal government approved them, in which essentially black life was criminalized. If a black man was found standing on a street corner, he could be arrested for vagrancy. If somebody claimed he looked the wrong way at a white woman, he'd be incarcerated for attempted rape. Pretty soon, you had the black male population mostly in jail, and they were a slave labor force. A lot of the American industrial revolution was based on slave labor from leased prisoners in U.S. steel, the mines. This went on until the Second World War, when there was a need for labor. There was a post-war boom, and during that period black men could begin to integrate into the work force and get a job in an auto plant — a fairly decent job with wages — buy a house, send their kids to school, and so on. Well, by the ’70s it was over. The economy was being financialized, production was being exported, there was a rust belt developing where the manufacturing jobs were essentially no longer available. So what do you do with the black population? Well, the answer was throw them back in jail under the pretext of the drug war. That's the consequence, and it's pretty well understood. So we have policies that are carried out that have essentially no impact on the stated goal, there are measures available which could have an impact and are not used. The consequences of the policies happen to be significant for power centers — carry out social cleansing in effect, in a traditional American way,” Noam Chomsky explains.

As the Criminal Justice Policy Foundation notes in its report, the government arrests 1.5 million persons per year to curb the illegal distribution of drugs. In 2002 alone, 340,000 people were convicted as felons for drug offenses, and between 400,000 and 500,000 persons are currently imprisoned in the U.S. for violating the drug laws, which is more than all the prisoners combined in the European Union.

As Human Rights Watch states in its World Report 2012, African Americans have historically borne the burden of far harsher federal sentences for crack cocaine offenses compared to white people.

“In our effort to quell the drug trade, we have greatly increased patrol and inspection on our nation's borders. We have increased arrests for violation of drug laws and lengthened sentences. We have stripped away the rights of drug offenders and introduced drug testing in our nation's schools and workplaces. We have poured billions of dollars into overseas anti-drug paramilitary operations that commit violent human rights abuses. We have tried to use force, prohibition and incarceration to control the drug market, but our efforts have actually led to a more efficient drug trade and a hugely profitable drug market,” the Criminal Justice Policy Foundation stresses in its report.

Meanwhile, in mid-February 2012 the Obama administration released its Fiscal Year 2013 National Drug Control Budget, and it wants to spend nearly $26 billion on federal anti-drug programs. Despite the staggering federal debt problem and current budget deficits, the administration does not wish to make any cuts here. Instead, the proposed budget increases federal anti-drug funding by 1.6% as compared to fiscal year 2012.

“The hundreds of millions of dollar increases in funding requested for the Federal Bureau of Prisons is particularly outrageous. There are too many people doing too much time they don't need to be doing. Obama has the power to save hundreds of millions of dollars by commuting excessively long sentences. He could reduce the deficit and increase the amount of justice in America,” said Eric Sterling, executive director of the Criminal Justice Policy Foundation.

Moreover, as experts of the Justice Policy Institute note, despite a national decrease in 2010 in the number of prisoners for the first time since 1972 (a decrease of almost 10 000 prisoners from yearend 2009), the proposed budget for fiscal year 2013 supports the continued incarceration of people at the federal level and spending on policing.

“Such spending priorities are counter to current trends and undermine the efforts of states and localities to reduce the burden of incarceration or improve public safety in a lasting and meaningful way. The Department of Justice (DOJ) budget request is $27.1 billion, and includes nearly $7 billion to activate or open new prisons and more than $4 billion for policing while again reducing the amount of money spent on juvenile justice programming that was dedicated to helping youth involved in the justice system and keeping youth from becoming involved in the justice system. Research shows that the most cost-effective ways to increase public safety, reduce prison populations, and save money are to invest in proven community-based programs that positively impact youth. States already appear to be using this information,” the Justice Policy Institute states in its report.

Howard Steven Friedman, a statistician and economist for the United Nations and a professor at Columbia University, believes that politicians use incarceration in self-interest to lure voters with their tough stance on crime and to cater to the special interests of for-profit prison companies that see the escalating incarceration rates as a sure promise of higher profits.

For example, the 2005 annual report of the biggest of these companies, the Corrections Corporation of America (which spends millions lobbying legislators), cautions its investors about the risk that the spigot of convicted men might be turned off:

“Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities… The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them,” the report reads explicitly.

Notably, the international community has repeatedly called on the U.S. government to bring the American legal system into conformity with the international standards of non-discrimination and tolerance. Thus, in January 2012 the Inter-American Commission on Human Rights issued a report on “The Situation of People of African Descent in the Americas.” The report, written in the context of the International Year for People of African Descent in 2011, found that black people in the Americas continue to “face major obstacles for the exercise and guarantee of their civil and political, economic, social, and cultural rights” and are “deeply affected by the persistence of racism, which strategically prevents them from enjoying and exercising their human rights.”

In addition, in 2010 the UN Working Group of Experts on People of African Descent found after its official fact-finding visit to the U.S. that “African Americans have had economic, social and educational disadvantages, as well as challenges to the enjoyment of basic human rights.” Similarly, in 2008, the UN Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia and related intolerance issued a report to the UN Human Rights Council finding that despite progress against racial discrimination, “the historical, cultural and human depth of racism still permeates all dimensions of life of the American society.”

In 2008, the UN Committee on the Elimination of Racial Discrimination which assesses adherence to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (which the U.S. ratified in 1994) provided specific and detailed recommendations about the need for the U.S. to implement human rights obligations domestically in order to address systemic forms of racism and discrimination.

The American Civil Liberties Union (ACLU) and other human rights groups have long called for full implementation of U.S. obligations under ICERD, including the creation of a task force led by the Department of Justice to develop a plan to implement the treaty at all government levels. In the words of Howard Steven Friedman, the Americans should be asking themselves a question: why does the U.S. continue building larger prisons, even through crime rates have dropped sharply by 40-80% over the past few decades?

In December 2011 the Bureau of Justice Statistics of the U.S. Department of Justice released the following statistics current as of yearend 2010:

— 7.1 million persons or 1 in 33 Americans were under supervision of adult correctional authorities;

— about 7 in 10 or nearly 4.9 million persons under the supervision of adult correctional systems were supervised in the community on probation or parole;

— about 3 in 10 or almost 2.3 million were incarcerated in local jails or in the custody of state or federal prisons;

— the overall U.S. prison population declined in 2010 for the first time since 1972 with state and federal prisoners numbering about 1.6 million people, a decrease of 0.6% (9,228 prisoners) from yearend 2009;

— the 2010 imprisonment rate for the nation was 497 sentenced prisoners per 100,000 U.S. residents, which is 1 in 201 residents;

— males had an imprisonment rate of 938 per 100,000 male U. S. residents, 14 times higher than the rate for females (67 per 100,000 female U.S.residents); and

— about 3.1 percent of black males in the nation were in state or federal prison, compared to just under 0.5 percent of white males and 1.3 percent of Hispanic males. Also, an estimated 7.3 percent of all black males ages 30 to 34 were incarcerated with a sentence of more than 1 year.

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