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America Incarcerated

A Veteran Brooklyn Cop and Prosecutor Explains Why America's Criminal Justice System is a Disaster

What we need to do to put fewer Americans behind bars.

by Eugene O'Donnell
Oct 6 2015, 4:00am

Jim Goldberg/Magnum Photos

Eugene O'Donnell is a former NYPD officer and Brooklyn prosecutor, an advocate for the rights of police officers and criminal justice reforms, and teaches at John Jay College of Criminal Justice, where he is at work on a book about street policing.

You can only be proud of the American criminal justice system if you've managed to stay far away from it. If you've worked in it, done jury service, been charged by it, or know someone who has, there is a very good chance you came away alarmed and rattled by its capriciousness. Most unsettling is the difference between America's advertised reverence for justice, for safeguarding the little person's rights against omnipotent government, and the creaky, overburdened, embarrassing product often on display at your local criminal court.

This country has a lengthy, inglorious history of targeting the poor, minorities, immigrants, and outcasts. Punitive laws have long attacked perceived moral failings, shortcomings and foibles, and even if criminal justice reform is all the rage right now, we still have a long way to go.

Nowhere is this more true than the long-running, obviously futile "war on (some, selected) drugs," an effort premised on ending drug experimentation and abuse via the tools of punishment and the ruination of reputations. Someone was arrested for a marijuana offense every 51 seconds in 2014, while America's alcohol industry is invariably assumed bereft of responsibility for the many deaths and arrests in which its products play a decisive role.

The failures of this asymmetrical approach—imposing punishment and degradation on those who need care, or support, or just to be left alone—are by now well-documented, but drug law reform continues at a snail's pace. In a nation where so many events revolve around alcohol abuse, the predictable tragedies and bad outcomes represent a profit center for the industry, which preaches moderation but cashes in on excess. And the fallout and costs of the abuse are borne almost exclusively by the abuser and the victims around him or her.

It's true that a handful of broader criminal justice reforms are being pursued, but the rate of change is glacial and could still easily be thwarted. With roughly 20,000 law enforcement agencies, and thousands of criminal courts (and lawmakers feverishly adding liberty-impairing criminal laws with each passing year), the country is jammed with bad laws and dumb policies. On any given day, nearly 7 million Americans are under some form of correctional supervision—a number that has been very hard to nudge lower over the past decade or so even as federal and state prison numbers have begun to come down.

But questioning the punitive and arbitrary system in place can still be dangerous in American public life. Consider the ferocious response to relatively mild comments made by President Barack Obama about race relations and the police over the last year— more than a few commentators essentially suggested he was an accomplice to, or at least an enabler, of police murders.

Through the president's legal training, and a life lived across the nation's racial divide, he cannot possibly be unaware of the infirmities and absurdities of the justice system. But many Americans demand that he deny its essential faults. It remains to be seen whether reactionary criticisms will embolden the president to propose new, more aggressive criminal justice reforms—or simply make him more fainthearted in his remaining 16 months in office.

As a young Brooklyn cop, working in one of New York's busiest precincts then awash in violent crime, it was amazing to me how devoid of strategy policing was.

In a nation suffering a white-collar crime wave, where so many business practices are as fraudulent as they are lucrative, the nation's court dockets are jammed with relatively minor offenses that target what a British chief police constable once described to me as "the sad and the mad." In my experience, a surprisingly small proportion of criminal cases involve the truly dangerous—and that depends on whether you consider low-level drug dealers or robbers scary. Meanwhile, the defendants in criminal court—especially those headed off to incarceration—are almost always impoverished, mentally ill, or uneducated. As a young Brooklyn cop, working in one of New York's busiest precincts then awash in violent crime, it was amazing to me how devoid of strategy policing was. Serious crimes went unsolved while police resources were deployed indiscriminately. Some cops made oodles of arrests, while others didn't. The concept of making arrests that were necessary, lawful, and purposeful was not—and still isn't—the priority it should be in a free society.

In those rare situations when the well-to-do or successful find themselves before the bar of American justice, they howl their disbelief at the unfairness, the factual dissembling and the disregard for their personhoods that are familiar systemic hallmarks to the system's usual suspects. Whole libraries have been generated by the self-described law-abiding citizen who got on the criminal justice system's radar screen: Bernard Kerik, Conrad Black, Martha Stewart, Whitewater Clintonista Susan McDougal, New York State Chief Justice Sol Wachtler. The common refrain by these prison authors, many of whom were "tough on crime" advocates before their own troubles, is one of shock at the in-court cruelties they suffered and, worse, the total absence of recourse to redress during their harsh confinements. Solitary confinement is a feature in many jails and prisons, and medical care is shockingly primitive—and can even be life-threatening when one is lucky enough to access it. But pleas by regular prisoners about these and other issues almost always go unheard.

What happens once someone goes behind bars has been of little concern to few, which is why President Obama's visit to inmates in Oklahoma was such big news. For decades, prison reformers crashed headlong into courts that were totally unwilling to order prison authorities to remedy brutal conditions. "Who are we to tell prison wardens how to do their jobs?" was a common response to lawsuits, with a so-called "hands-off" doctrine applied to claims of prison barbarity. In a 1951 case in Alaska federal court, the judge cited the hands off doctrine as an insurmountable obstacle to providing relief to a prisoner under the Eighth Amendment. Even today, one of the most common admonitions of federal judges in courts is that they can recommend a prison or a program or a course of therapy for a convict, but they cannot overrule the mighty federal Bureau of Prisons.

One thing the system is good at is stigmatizing and destroying the already-low self-esteem of those it levels charges against.

For the poor, the American police are too often not guardians, but incarceration expeditors, using routine pedestrian and vehicle stops as a pretext for finding something bigger that can land someone in lockup. Minority Americans, especially, all too frequently see approaching police as people on a mission to uncover wrongdoing that will lead to their ensnarement in a fearsome system that degrades and destroys. (Minorities comprise about 60 percent of the US prison system.) Broken-windows policing, the criminalization of drug abuse, and numbers-driven police enforcement can make a motorist's failure to signal the start of a nightmare. Lawmakers condemn overcriminalization while they fuel it with each passing session by turning tragic events and trends into punishable offenses.


Watch the VICE HBO documentary on America's incarceration system, featuring President Barack Obama's first-ever visit to a federal prison:


In wealthy neighborhoods, there is often an unspoken understanding that the children of community residents will not have the formal system invoked against them. While it is difficult to prove, my sense is that there are still parts of the nation—notably well-to-do communities—where even relatively serious wrongdoing, such as fights and vandalism, can be settled with a good talking-to by officers and payment of restitution.

But for those unfortunate souls who find themselves charged, even with minor offenses, there is often an enmeshment factor. The first exposure, especially for young people, leads to life on a criminal justice treadmill. Millions of Americans lead lives spent interacting with parole and probation officers, bail bondsmen, and public defenders. They know all about electronic monitoring, restraining orders, and visiting hours in various jails and prisons. In the morasses their lives have become, the last thing on their minds is how to take care of themselves or contribute to others. One thing the system is good at is stigmatizing and destroying the already-low self-esteem of those it levels charges against.

If there is any one clear imperative right now, it is that we must create many more routes to holding people accountable that do not involve locking them up. And we need better, earlier interventions by caretakers, not jailers.

The costs and consequences of having such a faulty system are profound, and go well beyond the staggering financial outlays. Operating an apartheid justice system where those at the margins are always in the crosshairs sickens our nation. So far, America is reaching for a scalpel to make changes when, the closer you look, only a wrecking ball will give us the fresh start we need.