Some years ago, I was at a Saturday Morning Meeting at WalMart
… an incredible experience. The head of ethics presented the top 5 reasons for unethical and illegal behavior among its over 1 million employees. Among them was a category entitled, “Blind Precedent.” It made me think about how wrong we can be in our decision making when we just rely on how others have done things for years … It’s the way things have always been done. On reflection, our criminal justice system has become so based on blind precedent that it has become apparent about how unethical it has become.
The United States is the greatest country on earth, personal bias, but one of the things we are the best at doing is something we should not be so proud of, incarceration. Incarceration, taking away one’s freedom, started in the 17th and 18th century when European settlers turned to enslaving Africans as a cheaper, more plentiful labor source than indentured servants from Europe. America, in all its ingenuity, was good slavery. According to a terribly sad article I read, historians have estimated that 6 to 7 million enslaved people were imported to the New World during the 18th century alone. Even these many years since the Civil War, many African Americans continue to struggle for equality, and freedom. According to the latest census information, African Americans make up 13.4% of the American population, the same group makes up nearly 40% of the federal inmate population. Even when it comes to white-collar crime, where most people think of white male Ponzi Schemers like Bernie Madoff, African Americans made up over one-third of those prosecuted (See US Sentencing Commission Report for 2020, Economic Crimes).
Congress established the federal Bureau of Prisons (BOP) within the Department of Justice and charged the agency with the “management and regulation of all Federal penal and correctional institutions.” It was the beginning of a industrial boom in incarceration. The federal prison system had already existed for nearly 40 years under the Three Prisons Act (1891), which authorized the first three federal penitentiaries: USP Leavenworth, USP Atlanta and USP McNeil Island. By the end of 1930, the agency operated 14 facilities for just over 13,000 inmates. In 1932 the Bureau opened USP Lewisburg, the first penitentiary built by the newly established agency. By 1940, the Bureau had grown to 24 facilities with 24,360 inmates. Except for a few fluctuations, the number of inmates did not change significantly between 1940 and 1980, when the population was 24,252. However, the number of facilities almost doubled (from 24 to 44) as the Bureau gradually moved from operating large facilities confining inmates of many security levels to operating smaller facilities that confined inmates with similar security needs … ah, the efficiency of American ingenuity. All of this from the BOP’s own website where it reflects on its humble beginnings with a photo of seven white men proudly holding rifles in front of a barred-window institution.
As a result of Federal law enforcement efforts and new legislation, much of which was influenced by legislators led by then-senator Joe Biden, the growth in inmate population was most dramatic as a result underpin the The Sentencing Reform Act of 1984. That Act established determinate sentencing, abolished parole, and reduced good time credit. From 1980 to 1989, the inmate population more than doubled, from just over 24,000 to almost 58,000, and the number of federal prisons increased to 62. During the 1990’s, the population more than doubled again, reaching approximately 136,000 at the end of 1999 as efforts to combat illegal drugs and illegal immigration contributed to significantly increased conviction rates. By the end of the decade, the Bureau was operating 95 institutions. For the next 13 years, the inmate population continued to increase to over 217,000 in 119 institutions. Today, it operates 122 institutions and manages an inmate population of 152,085. The reduction in population has been the result of correcting the most inhumane of sentences associated with crack cocaine, another law based on bias against minorities, and the Department of Justice changes in priorities initiated by then-Attorney General Eric Holder on drug prosecutions.
COVID-19 made us rethink how we work, how we are entertained and, most importantly, the our reliance on our interaction with one another. Even the BOP addressed the pandemic by transferring thousands of inmates from prison to home confinement to reduce contagion of the virus (CARES Act). Since March 2021, the BOP transferred over 25,000 inmates to home confinement, only 5,000 or so under the CARES Act, but it is a fact that those thousands of inmates completed a portion of their sentence on home confinement. According to BOP Director Carvajal when providing testimony to House Appropriations subcommittee in March about the number of those inmates who violated the terms of their home confinement and were returned to prison … the answer was 21. That is a 99.92% success rate for the program. How has the Department of Justice responded to this successful program? In the final days of the Trump administration in January 2020, the DOJ gave an opinion that those on home under the CARES Act may have to return to prison. It’s the way we’ve always done things.
This unethical way of thinking leads to tragic consequences. The New York Times
featured an Opinion piece by Ian Manuel who spent 18 years in solitary confinement in a Florida prison! 18 years! So perhaps over the first 4 to 5 years of his solitary confinement, some prison staff may have known of the incident that sent Manuel to solitary. I’m not even saying that is justified but let’s assume that some people believed he deserved some isolation (just crazy to even contemplate that). After that, some additional 15 years, most staff probably didn’t know any more about Manuel other than “he’s the guy in solitary.” It was the way business was done.
The rule of law can be upheld with punishments other than putting people in prison. While some may applaud the fact that those of privilege went to prison for the violations associated with the wide-sweeping investigation into wealthy individuals paying for their children’s admittance into prestigious colleges (Varsity Blues), it was nothing more than further proof of a broken justice system. Prison for rich white people is nothing but a means of justifying sending many minorities to prison for decades.
The numbers do not lie … criminal punishments of incarcerating people we’re mad at rather than those we need to be protected from can no longer be justified. Not only is it too expensive, its immorality is becoming more apparent every day.