In 1970, the United States had incarceration rates similar to the other Western democracies.
Thereafter, the rate exploded in the US while the rest of the comparable countries stayed consistent with changes in population. Today, the US leads the world with 2.2 million people incarcerated, more than anywhere else. Per capita our rate is 830 for every 100,000 of population; five times what it was in 1972, and is five times comparable democratic nations. One out of every 38 people in the US is under some form of criminal justice supervision. We now live in a country where one out of every three adults has a criminal record. For every 17 people born in 2001, 1 of them will go to prison or jail; an almost unfathomable change of scale.
As terrible as the above changes are, black people bear a disproportionate share of it. One-third of black males have a felony conviction, and black adults are six times more likely to be incarcerated than white adults.
What is the reason for this? It certainly is not the Constitution. For the framers of the Constitution, the evidence of their thinking and in the Constitution is that the document is obsessed with checking the government’s criminal power. Alexander Hamilton points out in The Federalist Papers that political agents would get rid of their political enemies by targeting them personally but for Article I prohibiting bills of attainder that target particular people and ex post fact laws that attempt to make things criminal after the fact. Article II vests the president with the ability to give pardons for all federal offenses except impeachment; the Supreme Court has widened this relief to undue harshness or evident mistakes in the operation or enforcement of criminal law.
Before a victim can be convicted of a crime, they’re entitled to judicial process. Judges have life tenure making them somewhat immune to coercion by members of Congress or officers of the Executive branch of the government. It goes even further, as Article III requires that all criminal charges must be heard by jury, not judges. Jurists must furthermore be drawn from the community where the crime took place. (This should be a violation of the Constitution, except for the fact it is the Supreme Court that caused this anomaly.)
Four of the first ten amendments deal explicitly with the criminal process. The Fourth Amendment prohibits trial of the same offense twice. The Fifth Amendment provides that a person may refuse testifying against himself. The Sixth Amendment brings up jury trial, drawn from the community, a right to a speedy trial, to receive adequate notice of being charged with a crime, to confront the witnesses brought by the accuser, and to be represented by counsel. The Eighth Amendment prohibits excessive or cruel punishment and fines.
It is not that the criminal justice process is failing, but rather that the guardian of the system, the Supreme Court has since 1972 permitted federal prosecutors of crimes to completely by-pass all the safeguards put in place for fair treatment of the accused person. Why would a defendant give up the benefit of a trial by jury of their peers? The answer lies in the fact that defendants by and large do not give up willingly. They are coerced; some would say bludgeoned! Prosecutors excessively over-charge the crimes alleged so as to increase severity of punishment if they go to trial. Prosecutors put forth the possibility of bringing family members into the plot, even if unrelated to defendant’s crime, and without disclosure of what the crime consists of. (Nice family you’ve got there. It would be a shame if something happened to them.)
In 1971, the Supreme Court not only gave official recognition to plea bargaining in Santobello v. New York. The justices actually praised it as necessary for preventing onerous backlogs of trials. Without plea bargaining the courts would have to multiply by many times the number of judges, courtrooms, and delays. What an inconvenience the jury trial would become!
Another consideration is that the pool of candidates for appointment to federal courts is often composed of current government employees; i.e., drawn from the same pool of candidates as the judges and justices have come from. People who have spent their careers defending and representing the government. People accused of crimes rarely see judges that have represented regular people, or witnessed government abuse. The Constitution prevents juries to be drawn from biased or tainted sources, but the same appreciation does not come under consideration to bring forth persons to oversee justice for the government. It really matters what perspective people are bringing to the bench. Summarizing, thnk about the fact that over 95% of convicted criminals are convicted by plea bargaining, and not by jury trial.
Publishers Note: A previously published essay dated August 18, 2019 is available to access from the side-bar of one-page essays for that month and year or under the Category: Justice
Publiustoo.com December 20, 2021