
Policing, Mass Imprisonment, and the Failure of American Lawyers - philrea
http://harvardlawreview.org/2015/04/policing-mass-imprisonment-and-the-failure-of-american-lawyers/
======
CPLX
There's all this discussion of these issues, which relate to racism, economic
issues, police brutality, crime, etc.

They seem complicated and nuanced and people throw their hands up and say well
what can we do. The answer to that question is actually so simple you can say
it in four words:

 __End the drug war. __

Someone far more eloquent than me, The Wire creator David Simon, can flesh
that out a little:

[http://www.washingtonpost.com/rweb/commentary/want-to-fix-
ba...](http://www.washingtonpost.com/rweb/commentary/want-to-fix-baltimore-
end-the-drug-war-says-david-
simon/2015/04/29/696c2063a2386c61999ad0ae2f96956d_story.html?tid=kindle-app)

~~~
ams6110
I'll agree that the drug war is out of control and as a "cure" it's worse than
the disease. But people are not being locked up just because they are black,
or poor. They are committing crimes, and pleading or being found guilty. The
problem I have with pieces like the original article are that they are making
it sound like we are engaging in a Gestapo-like rounding up of large numbers
of minorities for _no reason_ and throwing them in jail.

By blaming the war on drugs we are also completely ignoring the other elephant
in the room, and that is the massive breakdown in family structure that has
occurred amongst the impoverished.

This is particularly the case for African-Americans but I don't claim that
it's a racial thing, directly. It's part of the cycle of poverty. In DC, which
is a large focus of the original piece, over half of babies are born out of
wedlock. For African Americans it's close to 70%.

With no parents working, and fathers typically absent, children do not learn
the behaviors and responsibilities that are required to be a productive and
self-supporting member of society. They then perpetuate this in subsequent
generations. Our "war on poverty" has, like the war on drugs, been a failure.
The poverty rate in 1965 was about 15%, same as today, with trillions of
dollars spent.

The war on drugs funds a massive effort to catch and punish drug dealers and
users. So of course that happens. The war on poverty rewards disfunctional,
irresponsible, and self-destructive life choices.

You get what you pay for.

~~~
sbov
The problem isn't that we're throwing them in jail for _no reason_. The
problem is we aren't throwing non-poor non-minorities in jail for the same
reasons.

Most friends of mine regularly do drugs. Even the self made multi
millionaires. None of them have been to jail. They aren't subject to the
random ass searches like the poor are.

If things were different - if the millionaires were treated with the same
suspect, you bet your ass these laws would change.

But they aren't. So the laws stay the same. And that's a problem.

~~~
mc32
Growing up I lived in a town where there were hippy dealers and there were
dreadlock dealers. They both got harrassed pretty evenly and the users I knew
also would get stopped and issued summonses for small possession. The police
would also confiscate beer in the car, etc. They were nice enough not to cite
us for underage drinking, but I think the police were busy with the car
thieves and guys testing out the small time illegal arms trade.

So if the police get complaints from neighbors they respond to that. If your
rich neighbors tolerate your coke addiction, they don't come knocking. If you
have a noisy neighbor who complains they do come knocking. Police respond very
much to community complaints, from my experience with them growing up.

Whenever the police came to "bust" activities, it was mostly due to neighbors
calling in "suspicious activity" I.e. Underage drinking and weed.

~~~
pyrocat
>> it was mostly due to neighbors calling in "suspicious activity" i.e. being
black

FTFY

~~~
mc32
We were middle and lower middle class, a majority non black with a few blacks
who acted like other middle class kids in the burbs. So in our case it was
"underage drinking teenagers" in places we "should not be".

------
neverminder
> The United States has 5% of the world’s population but 25% of the world’s
> prisoners.

This sums it up for me.

~~~
zo1
I find it disturbing how those two tiny stats "sum" it all up for you, yet you
make no mention of the third and elusive stat that makes the biggest
difference of all:

"The percentage of criminals in the United States"

Like I said, drawing and inference from the two stats you posted is disturbing
because both of those stats say nothing of the actual amount of valid
criminals/lawbreakers.

~~~
vog
_> "The percentage of criminals in the United States"_

Not sure how this is really an additional fact. If you defined criminals in
the sense of "criminals as defined in the US", you have almost by definition a
direct correlation to the number of prisoners.

BTW, here in Germany we also have politicians who think that Europe's
criminals concentrate in Germany. Probably every country has some people
believing that all criminals come to them. The difference between countries is
how much influence those voices have.

~~~
zo1
The point I'm making is that it's implicit that they are "not" criminals by
virtue of there being such a huge discrepancy. This needs to be addressed in a
clear, and concise manner instead of making sweeping generalizations about the
discrepancy.

~~~
tim333
Who is 'criminal' is fairly arbitrary in many cases. Say you sell some hash to
a friend. Legal in some states, can lead to 30 years in some others, generally
not a huge crime in the sense of harming others.

~~~
a8da6b0c91d
Find me one specific example of a person in state or federal prison for small
time marijuana dealing or possession. No other crimes involved. Doesn't
happen.

Often, the DA will structure a plea bargain on drug or weapons posession (over
a long list of more serious charges) because those are very easy to prove.

This idea that the prisons are full of good guys caught up in the system is
detached from reality. Most guys doing hard time are guilty of about twenty
other things that they haven't been prosecuted for.

~~~
brianlweiner
Three strike laws in certain states can result in long prison sentences
despite relatively minor crimes being committed - including simple possession
-
[http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm#cr...](http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm#crim)
justice system

Furthermore black offenders receive sentences that are longer than white
offenders -
[http://www.wsj.com/articles/SB100014241278873244320045783044...](http://www.wsj.com/articles/SB10001424127887324432004578304463789858002)

And white people are significantly less likely to be arrested for drug
possession, despite usage rates being fairly similar -
[https://www.aclu.org/news/new-aclu-report-finds-
overwhelming...](https://www.aclu.org/news/new-aclu-report-finds-overwhelming-
racial-bias-marijuana-arrests)

A prisoner deserves to be sentenced for the crime they were convicted of, not
for any possible crimes that we think they may have committed. To behave
otherwise is completely antithetical to a society that supposedly values
justice

So no, prisons aren't "full of good guys", but they're full of people serving
sentences that are longer than any rational policy would dictate who have been
prosecuted in a system that has been shown time and again to have deep issues
with bias and inequality.

Not to mention the violence and overcrowding endemic in the prison system. It
should be a source of national shame that it has continued this long without
real reform.

~~~
a8da6b0c91d
> white people are significantly less likely to be arrested for drug
> possession, despite usage rates being fairly similar

This is an oft repeated lie. Blacks use narcotics at well over double the
white rate. Claims that rates are similar are based on surveys, as opposed to
test data.

Anyway, you are missing the point here that prosecutors know exactly who
they're convicting. Sentences now are almost all plea bargains. They get
serious criminals to plea out on narcotics charges rather than go to court and
face the full set of charges and a 25 year sentence. They don't even bother
prosecuting some kid with some drugs. This is how the system works. It may be
problematic, but it's not as broken as naive people assume.

~~~
vogan42
You point to data (not really, no sources) You ignore alcohol usage entirely.
You generalize the behavior of all prosecutors, without data again. And you
seem think you are not naive and that in some way the system is "working"...

System works to what end ?

------
teekert
In the US, back in 2007, I met some dutch guys, aged 20 and 21, the 20 y/o
just spend a night in jail because he was drinking in a bar. He didn't even
realize, back home he was drinking legally for over 4 years (and for drinking
before the age of 16 there was no real punishment). We had a good laugh, "they
must have a lot of jails here" we said.

Lately the government is becoming more firm here (the Netherlands) as well.
Beer drinking is now legal only from age 18 and up and serving minors is
punishable by law now, a bar owner pays 1360 euro the first time but may risk
closure of the establishment. Drinking in private is never punishable. For
public drinking (but not for being drunk) the fine is 90 euros, 45 when below
age 16. If you are sick from alcohol you will never be punished as it may be
inhibiting for seeking help.

~~~
aidenn0
In the US if you go to the hospital for alcohol related symptoms and you are
under 21, you are essentially guaranteed to get an arrest ticket for underage
drinking.

Yes this is inhibiting for seeking help.

[edit] See replies, this isn't universally true.

~~~
dragonwriter
There may be some jurisdictions in the US where this is true, but it doesn't
seem to be _generally_ true. As this kind of thing is a matter of state law
and local agency practice, there probably is _no_ valid generalization one way
or the other on the level of "in the US".

~~~
aidenn0
For the 3 towns in 3 different states I have lived in, this is true. I accept
that this is a very small number of data points.

------
sgdesign
I've been "stopped and frisked" in France before, and it didn't seem out of
the ordinary at the time. I just assumed random identity checks was part of
the police's job. So I wonder how other countries' laws compare to the U.S.
when it comes to random checks like this.

And of course, it happened maybe twice in my life, not a couple times a week.

~~~
struppi
IIRC, in Austria, police CAN ask you about your name and home address at any
time, and they can even bring you to the police office if they don't believe
you and you don't have an ID to prove it. Even though we don't have an
"Ausweispflicht" like Germany, having an ID with you can be a good thing in
this situation.

They are not allowed to search you without a reason (In theory. I heared that
they might just say "I think I smelled cannabis" and then they have a reason.)

Disclaimer: IANAL, and maybe I got some details wrong.

~~~
chefkoch
"Ausweispflicht" in Germany only means you have to own an id card or passport,
not that you must carry it all the time.

~~~
maze-le
Yes, that is true. Interestingly most Germans I know don't even know that, and
think everyone has to carry an ID with them. This is really a common
misconception.

------
DanielBMarkham
I completely agree that we overcriminalize things and imprison far too many
people in the U.S. I'm 100% on-board with this. It's our shame the way we
treat non-violent offenders. A disgrace.

But guys, nothing is ever 100% one way or the other, no matter how much you
support it. So you have to look at differing points of view -- unless the
objective is just to have a good rant.

Here are the things that come to mind reading this:

\- Yep, highest incarceration rates ever. Also violent crime has been dropping
to unheard-of lows and the country is safer than it ever has been

\- Prisons are not about justice or reform. [insert really long discussion
here]. Political systems exist and function for political reasons. Therefore
the prison system is made and maintained to keep society together. They don't
put the guy who killed you friend in the electric chair because of justice.
They do it so you don't kill him yourself, or have a lifelong vendetta against
both him and the system.

\- This piece is written by a lawyer. Do not expect it to fairly talk about
all of the options. It's invective; well-written, emotional, powerful
invective. The goal is to make you turn off your brain and feel a certain way.
Treat it as such.

\- Although this is targeted at lawyers, whatever failings there are? Most
likely a result of judges and elected officials -- in other words, the public.
If the public wants something, and it wanted harsher sentencing, it gets it.
That means changes need to occur with the electorate, not elite legal minds

\- If the system is broken, it's broken. Toss out all of that racism stuff,
it's a red herring. People shouldn't have their civil rights abused because
it's the wrong way to run a country, not because they're a member of an
oppressed minority. If you want to win this fight and fix things, toss out
every other issue aside from fixing the system. Sure, use various things like
incarceration rates among blacks as an argument, but only very carefully. If
this is a true problem affecting everybody (and I believe it is), then don't
attach yourself to one particular cause or the other. That's just an easy way
to lose the discussion.

We desperately need to fix things, but that's only going to happen if we make
both impassioned and dispassionate arguments -- and only if we understand the
terms at stake. I'm not sure this article helped any, but it damned sure made
me angry at how broken things are.

~~~
pjc50
The racism is _not_ a red herring, it's the primary driver for the electorate
demanding that the system be broken in the ways it is. It's used to argue that
the victims of the system deserve it, and thereby to prevent change.

~~~
happyscrappy
Pretending that racism is the main problem with inner city poor actually
contributes to the problem. Not all poor in the city have the same outcome.
Victimology is crippling. If nothing I do is my fault, because racism, then
why would I not do whatever I feel like, consequences be damned? It is white
people's fault, right?

~~~
rmxt
Ignoring the disingenuity, if racism (e.g., redlining, gerrymandering,
selective use of semi-legal police procedures, etc.) _hasn 't_ led to the
current disparate state of affairs between races in America, then what _has_ ,
pray tell?

"Racism" isn't merely a buzzword or an excuse if it's actually a historic and
ongoing phenomenon.

~~~
netfire
I think racism plays a part, but there are are factors to consider as well,
including victimology. The current way we are approaching race in america
seems to be part of the problem.

We seem to be telling people of certain races that they are born
disadvantaged, that they are somehow second-class citizens and not fully
responsible for their actions or outcome of their life. We then distribute aid
and provide services based not only on economic or educational status, but
also on race, and we form organizations to benefit members of that race. We
become outraged when their rights are violated (but no so much when the rights
of members of another race are).

I don't think we'll truly eliminate racism in our society if we continue to
focus on race the way we are. Instead we need to care just as much about the
rights (or the violations of those rights) of a black man as we do a white man
(or any other race). Race needs to not be considered when creating programs to
benefit the poor or uneducated. After all, shouldn't a poor white man be just
as entitled to our compassion and assistance as an equally poor black man?

Martin Luther King said "I have a dream that my four little children will one
day live in a nation where they will not be judged by the color of their skin,
but by the content of their character." For me, that cuts both ways. Not only
should we not be judged unfairly in a court of law or be treated different by
police because of the color of one's skin. It should be a non-factor in
determining any sort of benefit or assistance as well.

~~~
beat
The reason blacks growing up poor in this country suffer bad outcomes isn't
because they're told that they're victims by well-meaning social programs.
It's because they're treated like criminals and given very few opportunities
to achieve something better.

~~~
netfire
They may not tell them that directly, but when you consider someone's race in
giving aid, aren't you telling them that they are disadvantaged because of
their race?

We should be focusing on helping someone because they are poor, because they
are unjustly treated like criminals or because they have few opportunities to
succeed, not because they are black or of a certain race.

~~~
beat
But the aid isn't itself racial. That's a myth.

Have you ever had to apply for any sort of public assistance? The process is
tremendously slow, complex, and bureaucratic, driven largely by layers of
demands for proof that the aid is actually necessary. The basic takeaway of
this process for the person in need isn't feeling like a victim, but rather
feeling like society assumes you're a lazy thief.

~~~
netfire
You say its a myth, but then don't provide not explanation as to why. I guess
I don't understand how race-restricted aid isn't racial. By restricting
assistance, scholarships and other aid to a particular race aren't you in
essence saying that you care more about helping people of a certain race than
you do about helping people of other races?

If a person is in the same circumstances, economic or otherwise, as another
person, why should I only give aid to one of those people based on their race?
How would restricting a scholarship to white students be less racist than
restricting a scholarship to african-american students?

~~~
beat
I'm saying that there isn't any race-restricted aid. You're saying there is.
You're wrong about that. Feel free to prove otherwise.

And sure, you can bring up some scholarship as an exception that proves the
rule (I wonder how Daughters of the American Revolution scholarships fit?).
But that's a very weak argument. I'm talking about the welfare state in
general, and it is pointedly _not_ about race.

~~~
netfire
I didn't mean to imply that there was government sponsored aid that was race-
restricted. There definitely is for scholarships[1] and affirmative action
policies for admission to schools or specific programs in those schools.
(although that's not necessarily monetary aid)

Some quick googling shows results of what appears to be private organizations
solely focused on providing assistance to african americans or people of
african descent. [2]

[1] - [https://www.scholarships.com/financial-aid/college-
scholarsh...](https://www.scholarships.com/financial-aid/college-
scholarships/scholarships-by-type/minority-scholarships/african-american-
scholarships/) [2] [http://www.diversitybestpractices.com/news-
articles/20-afric...](http://www.diversitybestpractices.com/news-
articles/20-african-american-organizations-you-need-know)

~~~
beat
Think about how circular this is... you're now arguing that the problem is a
sense of victimization brought on by racially-driven aid _in the form of
college scholarships_. So your victims have already succeeded in finding their
way out!

There are excellent arguments that the welfare state structure is a
significant cause of racial inequality. But your "teaches them to be victims"
argument is not one of them.

A much more interesting and defensible argument would be that the welfare
state in its current incarnation punishes people for getting off of welfare.
If the "reward" for finding a job is to take away aid on a 1:1 basis, why
would getting a job be a good idea? Another interesting angle is the fact that
minimum wage is not sufficient to keep a family out of poverty - especially
when you throw in the costs of transportation and child care associated with a
job.

To find the racial problem, look at history. When the welfare state first came
into existence, racism had kept the black community in deep poverty, so
poverty was already unevenly distributed. Since the welfare system merely
treats the symptoms rather than the causes of poverty, the disparity has
continued. And the disparity is driven not by welfare, but rather by
institutional racism.

There was a great photo by a trio of black artists at the Henderson protests.
It was a black woman dressed as a slave, a shirtless black man wearing a
noose, and a black man in an orange prison jumpsuit, standing together - the
history of institutional racism in America.

~~~
netfire
My main argument actually is that I think racism will continue until we
eliminate race from our decisions, positive or negative and treat and value
each other as members of the human race, regardless of one's skin color.

------
alwaysinshade
A recent article on HN made me realise that the U.S. might be on the right
track for fixing this. The article was called Game Theory's Cure For
Corruption Makes Us All Cops [0]. The solution is in your pocket.

 _Imagine a city where police commit blatant traffic violations and never
ticket one another. The authorities could decrease power inequalities by
developing an online system in which all citizens are able to anonymously
report dangerous drivers. Anyone who received too many independent reports
would be investigated – police included. This sounds almost laughably simple,
and yet the model indicates that it ought to do the trick. It is, after all,
essentially the same system used by many online communities._

[0] [http://aeon.co/magazine/society/game-theorys-cure-for-
corrup...](http://aeon.co/magazine/society/game-theorys-cure-for-corruption-
make-us-all-cops/)

~~~
btown
The article mentions but does not address the point of altruism. Nobody wants
to be a stool pigeon singing to the police on someone they know, even if it's
anonymous. The result is that the set of enforced laws is a strict subset of
the set of laws that the majority of people would find reasonable. That's why
we create police forces in the first place- to be our better selves. The war
on black America needs to end, but simply democratizing enforcement isn't the
way to do it.

~~~
triangleman
asanagi, you are unfortunately "hellbanned", which means no one can see your
post unless they are logged in and have "showdead" turned on.

------
dghf
That is the nicest and most readable typography I've seen for a long-form
article on the Web.

------
spodek
> _myths that the most serious types of crime affecting our society are the
> kinds of violent crimes that police patrolling the streets supposedly fight
> and that entire poor communities are “high-crime areas.”_

...

> _An intellectually rigorous system would, for example, study in great detail
> the connection between hundreds of billions of dollars in financial fraud
> and tax evasion and millions of easily preventable deaths, not dramatically
> reduce every year the resources devoted to fighting crime committed by the
> wealthy._

I'm glad when they said how over-policed some areas are that they also pointed
out how we don't police other areas at all and the effect of those other
areas, like white-collar crime, are HUGE.

The article stressed injustices based on race and geography. It touched less
on differences of injustices based on class. I don't think it mentioned sex at
all. Since I applied to volunteer with the Innocence Project --
[https://en.wikipedia.org/wiki/Innocence_Project](https://en.wikipedia.org/wiki/Innocence_Project)
\-- I've become much more aware of how what we all know, which is how much
more men are targeted and jailed.

I volunteered because after seeing a documentary on the project I felt
compelled to do something. The innocent people the project freed spent an
average of 13.5 years in jail -- completely 100% innocent. My taxes are paying
for the system this piece described.

You can do something to change the system too.

Edit: a quick search for the question below on differences in sex for the same
crimes -- " _Estimating Gender Disparities in Federal Criminal Cases_ "
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144002](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144002),
which I found in " _Men Sentenced To Longer Prison Terms Than Women For Same
Crimes, Study Says_ " [http://www.huffingtonpost.com/2012/09/11/men-women-
prison-se...](http://www.huffingtonpost.com/2012/09/11/men-women-prison-
sentence-length-gender-gap_n_1874742.html), which has links to other research
too.

~~~
jcromartie
I'm sure there are some disparities in the way men and women are prosecuted
and sentenced, but doesn't the bulk of the difference in incarceration by sex
come from the difference in criminal behavior by sex?

------
bsenftner
There is an insidious reason driving our incarceration rates: prisons rent
inmates to corporations as contract workers for pennies an hour. With
guarantees of the number of inmates they will be supplied. Follow the money.
Follow the money. Follow the money.

~~~
jongraehl
I don't think that's the main cause (for-profit jails and police/prison-unions
are surely primary), but the argument does work - incarceration costs the
public far more than it could save in suppressed wages, but the companies that
benefit don't care about that.

------
quicksnap
This article was a great read; it made me feel awful.

> ... we’re starting to have symposia in which people talk about whether
> everything will be better if we give police more money to buy cameras for
> their lapels.

This was my mindset--that with more accountability, police will shape up.
However, this article highlighted this solution as a symptomatic treatment.

I wonder how we could help address this major problem technologically?

------
lasermike026
So when get over the depression of observing this system in action and the
desire to leave the US I feel the desire for action. This problem of over
criminalizing and over incarceration must be reversed and corrected. I refuse
to live in a country like this unless this is corrected.

------
lubesGordi
There is a question no one ever seems to ask anymore, "Does the punishment fit
the crime?"

------
comrade1
I guess the best you can do is hopethat you know the laws for the area you
live in. The u.s. has so many laws that are different across states and also
so many laws that are enforced arbitrarily.

Some states you only have to verbally identify yourself to police. Some states
you're required to show I.d. if requested. Some states you can decline a
breathalyzer and other states you cannot.

And if you know the law then you should exercise your rights to the limit of
the law. Of course they keep passing new laws to push the limits in the other
direction. And I don't think anyone wants to be a test case for throwing out a
bad law in the courts.

The problem is similar here in Switzerland with the exception that there are
fewer laws and that the federal government has very little power (unlike the
u.s. With its strong federal laws). For example, here in one canton you can
grow 2 marijuana plants for your own use while in another canton you will go
to jail for even a small amount of marijuana.

~~~
sillygoose
There's this widespread misconception that there are things the police _can
't_ do to you because some text somewhere says so.

In reality, it's just a question of what they _want_ to do, and whether they
can get away with it. For example, if an officer _insists_ on seeing your ID
even if the rulebook says you don't _have_ to show it, he can escalate until
he gets his way.

A police officer _can_ saw off your leg and feed it to some crocodiles if he
wants to, and no one's looking or filming.

But of course, this misconception is central to the belief in "the rule of
law", which keeps us misguidedly comfortable with the fact that there's a
bunch of guys in blue costumes who can abuse you as they please, confiscate
all your cash, shoot your dog, or just ruin your life on a whim.

~~~
a3n
There's a saying among cops, "You may beat the rap, but you can't beat the
ride." In other words, they can harass you all they want, with impunity. "Oh,
he was innocent? Well, darn."

~~~
sillygoose
Yep, and we're guilty of whatever bullshit crime they accuse us of, until we
somehow prove we're not.. from jail, after having all our accounts seized.

