Justice swings both ways

by Sonny Bunch on February 1, 2012

Adam Gopnik’s piece on the level of incarceration in this country has gotten a lot of play over the last couple of weeks. I thought it had some glaring blind spots, especially its lack of consideration for personal agency (nobody’s forcing convicts to abuse and/or sell drugs; they made the choice, they knew it was illegal, they have to live with the consequences). But on the whole, I largely agreed that we shouldn’t be sending people who smoke or (non-violently) deal pot to prison.*

As Gopnik puts it, the question is one of justice vs. procedure:

The trouble with the Bill of Rights, [William Stuntz] argues, is that it emphasizes process and procedure rather than principles. The [French] Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong.

I think this is a fair point, if a little melodramatic. (I’d like to know how many people are serving life sentences for possessing a joint.) But that door swings both ways: Justice means reacting harshly against those who deserve it, just as it means reacting leniently against those whose crimes are minor. I agree that we should be more cognizant of those on death row who might be innocent instead of running through decades of appeals rooted in technocratic legalese. Which leads me to this Atlantic piece by Mary A. Fischer with the subhead “Why would a California convict opt for a death sentence? With few executions and better living conditions, why not?” Apologies for the lengthy excerpt coming up, but it’s key:

AS AN ORANGE COUNTY jury debated in 2009 whether the white supremacist Billy Joe Johnson should live or die for murdering a fellow gang member, he asked to be sent to death row. Not because he felt any sudden remorse for the five people he’d killed over the years—“I commit crimes when people piss me off,” he once explained, matter-of-factly—but because Johnson believed he’d have better living conditions, including liberal phone privileges, a bigger cell, and daily human interaction, at San Quentin’s death row than he would at Pelican Bay, one of the state’s toughest maximum-security prisons, where he was serving a 46-year-to-life sentence, primarily in solitary confinement.

He also knew that the odds were good that he might never be executed. Bogged down by constitutional challenges and appeals, California’s system takes an average of 20 years to move a prisoner from conviction to execution.

Experts on both sides of the death-penalty debate have long agreed that California’s system is the nation’s costliest and least efficient. This June, a landmark report by Paula M. Mitchell, a professor at Loyola Law School, and Arthur L. Alarcón, a senior judge on the Ninth Circuit Court of Appeals, unearthed new data that reveal just how bad the system is.

Their report showed that since the current death-penalty statute was enacted in 1978, taxpayers have spent more than $4 billion on only 13 executions, or roughly $308 million per execution. As of 2009, prosecuting death-penalty cases cost upwards of $184 million more each year than life-without-parole cases. Housing, health care, and legal representation for California’s current death-row population of 714—the largest in the country—account for $144 million in annual extra costs. If juries continue to send an average of 20 convicts to San Quentin’s death row each year, and executions continue at the present rate, by 2030 the ranks of the condemned will have swelled to more than 1,000, and California’s taxpayers will have spent $9 billion to execute a total of 23 inmates.

“I was stunned by the report,” said Loni Hancock, a Democratic state senator from Oakland and a member of the senate budget committee. Hancock had spent the previous five months agonizing over deep cuts to California’s general budget, and “it broke my heart,” she said. “That’s when I decided the time had come for Californians to reconsider the death penalty.”

Emphasis mine, because I can’t fathom the mindset that a.) comes across the fact that it’s extremely expensive to execute people who murder their fellow human beings who “piss them off,” b.) realize that this is because the appeals process is absurdly long (some would say, unjustly long), and c.) decide that the proper recourse is to not execute people who commit murder to get an upgrade in room accommodations in prison. I actually find it mind-boggling. My mind, it has been boggled. I feel like Peggy Hill before an important Boggle tournament. Etc.

My point is simple: I’m all for justice being the predicate for determining punishments. We should strive to eliminate injustice. But that door swings both ways. If it’s unjust to send a pot smoker to prison for life simply for smoking pot, it’s equally unjust to spend hundreds of millions of dollars of taxpayer money protecting the “rights” of morally depraved monsters who sport-kill because it pleases them to do so. That’s not “justice.” That’s a travesty.

*Random question: People often say that we need to “end the drug war” to decrease incarceration, and that’s fine. But how many people are sent to prison for dealing/possessing pot, specifically, as opposed to opiates, meth, prescription meds, etc.? You can convince the American public to end the war on weed, sure; they’re going to be much less sanguine to ending the crackdown on crack cocaine. A quick Google search showed a NORML release from 2006 that showed one in eight drug prisoners was in jail for pot, but what percentage of prisoners are in jail for drugs? Even if we freed every single pothead and pot dealer, we’re looking at a reduction in the prison population of what, five percent?

(Photo by thefixer)

{ 3 comments… read them below or add one }

Ben February 1, 2012 at 10:24 am

Putting aside the injustice and absurdity of jailing people for marijuana use/possession, there is an argument (put forward by economist Mark Thornton) that the demand for potency is motivated by the prohibition of less potent drugs. So you can shift [some] demand from harder drugs to marijuana, and then expect a smaller population consuming, selling, and being jailed for drugs like meth. Whether that bears out is subject to testing, of course.

I’d add, too, that ending the war on drugs does not necessarily entail full legalization of all drugs. Reasonable sentencing and treatment rather than jail time for users would go a long way to extracting the nation from the quagmire. Still, reducing the prison population by 5%, of non-violent offenders who used or traded a Cheetohs binge inducing drug, is nothing to sniff at. Or snort at.

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SonnyBunch February 1, 2012 at 10:35 am

Or snort up?

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Fake Herzog February 1, 2012 at 12:32 pm

A couple of thoughts:

1) I saw this article linked on another blog (a liberal who agreed with everything Gopnik had to say and bemoaned the fact that America locked up too many people). Here is the comment I left there:

“I look forward to reading the whole article, if only to be reminded why liberals are so confused about crime and punishment.

Which is not to suggest that prisons need to be “brutal”. On the other hand, it is to suggest that we need to “keep locking ‘em up”.

2) I tend to agree with Ben, although I’m not totally convinced that we should completely make pot legal (folks tend to underestimate the harm regular use can cause). But I’m onboard with shifting to a focus on less punitative measures coupled with treatment.

3) The French are goofy — how do you define “justice”? Of course, it can be difficult at times to define fairness, but that’s why the Bill of Rights exist — to detail all those “processes and procedures” that go into what we as Americans think of as fairness. It seems to me justice is more foundational — how people think of morality and what they choose to punish via the law.

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