Justice Reform and the Case against Double Sentences
President Obama has repeatedly stressed the need to reform of the criminal justice system. “In recent years, even before the current wave of scrutiny, the cost of resolving police misconduct has surged for big U. S. cities. The 10 cities with the largest police departments paid out $247.7 million last year in settlements and court judgments, up 48% from $168.3 million in 2010. The same municipalities have paid $102 billion for police misconduct in the last five years alone. The Wall Street Journal, “Police Misconduct Costs Soar” Thursday, July 16, 2015, p. A 1.
True to his word the President has recently commuted the sentences of 46 imprisoned drug offenders, bringing the total number of commutations to 89, more than the last four Presidents combined. And he is the first Chief of State to meet non-violent drug offenders in a federal prison.
But the President is not alone in advocating justice reform. According to the July 15, 2015 edition of the Wall Street Journal, the U.S. Sentencing commission has revised its guidelines to retroactively reduce the sentences of more than 9,500 drug offenders, three-quarters of whom are Blacks and Hispanics.
Even conservatives like Rand Paul and Chris Christy have joined the crusade. Christy posits that “justice isn’t something we can jail our way to. Justice is something we have to build into our communities.”
And former President Bill Clinton has admitted that by signing the 1994 Violent Crime Control and Law Enforcement Act, he made mass incarceration worse. The Act gave the states billions to build new prisons, reduced prisoners’ eligibility for parole by fostering “truth in sentencing laws” and established mandatory life-sentences for people convicted of a third violent felony. According to the Brennan Center for Justice by the end of the Clinton presidency, the number of people in America’s prisons rose by nearly 60%. http://www.msnbc.com/msnbc/clinton-admits-his-crime-bill-made-mass-incarceration-worse.
We are pleased by the rising chorus to reform a system of justice that is anything but just. To this we add the following.
First, we should restore decency and common sense to the system by ending the 60-year-old failure known as the War on Drugs. The way to deal with recreational drugs is by regulation, education and taxation. We should therefore treat methamphetamine, cocaine or marijuana no differently than we do alcohol and cigarettes. And just like liquor or nicotine addictions, we should treat all such compulsions as public health problems rather than criminal or moral lapses. Additionally, ending the War on Drugs will help remove the profit incentive from warehousing people in prison.
Second, we must hold prosecuting attorneys and judges to the same standard of personal accountable that we do for everyone else. This is especially true where it concerns unjust convictions or sending innocent people to prison. It further applies to violations of their oaths of office, abuses of power and/or acts of official misconduct.
The corporate culture of the system is set by the upper echelon. Yet, when something goes wrong, personal accountability is invariably shifted to the bottom. Police officers and prison guards are therefore held personally accountable but seldom are prosecutors, District Attorneys and judges.
And by accountability we do not mean a mere reprimand or the loss of a professional license. Judges and prosecutors who in bad faith convict and send innocent people to jail should be subject to the same punishment that the system imposes on all other lawbreakers including arrest, conviction and when appropriate incarceration. Only then will law enforcement be incentivized to dispense substantive as well as procedural justice.
Third, we should end the life long stigma and discrimination imposed upon offenders. Putting an end to the double sentence is perhaps the most significant way to reform the system.
A criminal conviction carries two legally sanctioned outcomes, i.e., the forfeiture of assets usually in the form of a monetary fine and/or the loss of personal freedom via some term of incarceration or community based supervision. But in reality a criminal conviction carries a second sentence. Not only is the defendant fined or imprisoned but is forever stigmatized and discriminated against.
“Life course research on desistence (the cessation of offending or antisocial behavior), shows that all ex-felons eventually stop re-offending and that the risk of re-offending drops precipitously as the period of non-offending increases. However, lifetime bans bar entry into many types of employment, impedes formation of stable family units and blocks access to education assistance, low-income housing and public assistance. These bans therefore block the very domains that are central to the desistance process.” http://the-stigma-and-discrimination-of-ex-offenders-in-modern-society.app-brighan-1.aid.
Nor is there is constitutional support for double criminal sentences. Said sentences violate a number of Constitutional provisions, specifically: the freedom of association (1st Amendment), the right to bear arms (2nd Amendment), the requirement of probable cause and the ban on unreasonable searches and seizures (4th Amendment), due process (5th Amendment), the prohibitions against cruel and unusual punishment (8th amendment), equal protection under the law (14th Amendment) and the right to vote (15th Amendment).
To our eternal shame, the 13th Amendment does impose slavery and involuntary servitude upon the criminally convicted. It does not however sanction other constitutional deprivations. And once punishment has been satisfied the Amendment permits no further penalty.
In summary, it is often argued that America is the land of second chances. This depends however on who you are and what you bring to the table. Bruce/Caitlyn Jenner, Donald Trump, Jay Z or Snoop Dog are afforded a second chance no matter how many bankruptcies, failed marriages, sex changes or criminal convictions they possess. But those without fame, fortune or connections are usually not so fortunate.
Finally, we must be the change we wish to see, a requirement directed at the very heart of the minority community. The criminal and destructive element within us is not excused for any reason. Until and unless we reform ourselves we can expect no respite from the criminal justice system, the reform movement notwithstanding.
Leo Barron Hicks, Founder and CEO
Blackacre Policy Forum