A response to Leonard Pitts, Jr. on "The justice system's revolving door"

 Leonard Pitts, Jr., writes in the Miami Herald:

"America is now the greatest jailer on Earth. Prison overcrowding is a growing problem; we literally cannot build facilities fast enough. As CBS News recently reported, the United States has less than 5 percent of the world’s population, but about 25 percent of its prisoners. As CNN recently reported, at 760 prisoners per 100,000 citizens, the United States jails its people at a rate seven to 10 times higher than most any other developed nation."

As of 2006, there were 7.6 million people in prison or on probation or parole in the U.S.  About 2.3 million were in prison, far more than the estimated 1.6 million in Chinese prisons. The actual rate of incarceration is far higher in the U.S. than in China, whose population is four times greater (see chart below, on which China doesn't appear).

Racial and ethnic disparities in sentencing have received considerable, and well-deserved, attention in recent years.  According to the Sentencing Project, 60% of prisoners in U.S. jails are members of racial or ethnic minorities.  SP also notes that, "of black males in their thirties, 1 in every 10 is in prison or jail on any given day" and "two-thirds of all persons in prison for drug offenses are people of color."

According to the 2010 census, the U.S. population is currently 63.3% white, so the minority/majority ratio is reversed in the prison population.  Only 44.7% of prisoners on death row are white.

The stock response to this data goes something like this: "If minorities commit more crimes, they'll be overrepresented in the prisons." This facile argument neglects the many variables that affect the practices of police departments and courts -- from enforcement priorities (especially concerning drug offenses) to sentencing (as seen in the false distinction between powder and crack cocaine).  [Example: A recent study showed that 89% of those stopped, questioned and frisked on the streets of New York were nonwhites.]

In an excellent special report on "Mass Incarceration in America" in The American Prospect, Michelle Alexander describes the obstacles facing members of racial and ethnic minorities upon their release from prison (which for 70% of offenders is followed by arrest and reincarceration within three years).  These obstacles include such civil disabilities as inability to vote, enter public housing, apply for food stamps and obtain certain types of employment.  Alexander notes: "We have not ended racial caste in America; we have merely redesigned it."

It's sadly predictable that the most effective media coverage of the prison-industrial complex and the solidifying U.S. caste system is provided by journalists of color like Leonard Pitts, Jr., and Michelle Alexander.

[Charts from Wikipedia] 

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*A tangential NOTE:  Racial and ethnic disparities in prison populations seem destined to increase even further over time, as suggested by recent demographic changes in the U.S.: "Overall, racial and ethnic minorities accounted for 91.7% of the nation’s population growth over the past 10 years. The non-Hispanic white population has accounted for only the remaining 8.3% of the nation’s growth. Hispanics were responsible for 56% of the nation’s population growth over the past decade.

"There are now 50.5 million Latinos living in the U.S. according to the 2010 Census, up from 35.3 million in 2000, making Latinos the nation’s largest minority group and 16.3% of the total population. There are 196.8 million whites in the U.S. (accounting for 63.7% of the total population), 37.7 million blacks (12.2%) and 14.5 million Asians (4.7%). Six million non-Hispanics, or 1.9% of the U.S. population, checked more than one race."

[More on minorities driving U.S. population growth.]

Read more here: http://www.miamiherald.com/2012/05/08/2789863/a-pertinent-question-amid-us-justice.html#storylink=cpy

Cruel and usual punishment

New scientific evidence suggests that supposedly humane executions by lethal injection are medically and morally suspect because some prisoners remain conscious, and experience intense pain, through all or part of the procedure.

In particular, the three components of lethal injections may not work together as intended to cause prisoners to lose consciousness before dying of paralysis and cardiac arrest. Some unknown percentage of prisoners may appear to be in a comatose state when in fact they remain or become conscious (a phenomenon known as "anaesthesia awareness") as their lungs stop functioning and they slowly die of "chemical asphixiation."

All this from a study reported in PLoS (Public Library of Science) that found:

Most US executions are beset by procedural problems that could lead to insufficient anesthesia in executions. This hypothesis has been supported by findings of low postmortem blood thiopental levels and eyewitness accounts of problematic executions. Herein we report evidence that the design of the drug scheme itself is flawed.

The study concluded that:

Execution outcomes from North Carolina and California together with interspecies dosage scaling of thiopental effects suggest that in the current practice of lethal injection, thiopental might not be fatal and might be insufficient to induce surgical anesthesia for the duration of the execution. Furthermore, evidence from North Carolina, California, and Virginia indicates that potassium chloride in lethal injection does not reliably induce cardiac arrest.

And:

We were able to analyze only a limited number of executions. However, our findings suggest that current lethal injection protocols may not reliably effect death through the mechanisms intended, indicating a failure of design and implementation. If thiopental and potassium chloride fail to cause anesthesia and cardiac arrest, potentially aware inmates could die through pancuronium-induced asphyxiation. Thus the conventional view of lethal injection leading to an invariably peaceful and painless death is questionable.

...potentially aware inmates could die through asphyxiation induced by the muscle paralysis caused by pancuronium.

...even if lethal injection is administered without technical error, those executed may experience suffocation, and therefore... “the conventional view of lethal injection as an invariably peaceful and painless death is questionable.”

Lethal injection is currently authorized for use by 37 states, the federal government and the military. Its use has recently been suspended in 11 states due to questions about its efficacy and possible violations of the Eighth Amendment's ban on "cruel and unusual punishment."

Only one of 53 executions in the U.S. during 2006 utilized a method other than lethal injection. The PLoS report makes it clear that lethal injection became the most widely used method of execution in the U.S. despite the lack of peer-reviewed scientific evaluations on the effects of the three chemicals. In fact, the methods used on animals have received far more attention, resulting in strict guidelines:

In the United States and Europe, techniques of animal euthanasia for clinical, laboratory, and agricultural applications are rigorously evaluated and governed by professional, institutional, and regulatory oversight. In university and laboratory settings, local oversight bodies known as Animal Care and Use Committees typically follow the American Veterinary Medical Association's guidelines on euthanasia, which consider all aspects of euthanasia methods, including drugs, tools, and expertise of personnel in order to minimize pain and distress to the animal. Under those guidelines, lethal injections of companion or laboratory animals are limited to injection by qualified personnel of certain clinically tested, Food and Drug Administration–approved anesthetics or euthanasics, while monitoring for awareness.

In stark contrast to animal euthanasia, lethal injection for judicial execution was designed and implemented with no clinical or basic research whatsoever [my emphasis]. To our knowledge, no ethical or oversight groups have ever evaluated the protocols and outcomes in lethal injection. Furthermore, there are no published clinical or experimental data regarding the safety and efficacy of the three-drug lethal injection protocol. Until the unprecedented and controversial use of bispectral index monitoring in the last two North Carolina lethal injections, no monitoring for anesthesia was performed.

The biologist who led the study commented: "You wouldn't be able to use this protocol to kill a pig at the University of Miami" without more proof that it worked as intended. The researchers also found that doses were not adjusted to reflect a prisoner's weight or other variables. In cases where the dosage was wrong:

"The person would feel either asphyxiation or the burning sensation associated with the potassium," said Dr. Leonidas Koniaris, a surgeon and co-author at the University of Miami. "The potassium would cause extreme discomfort, something like being put on fire."

The study was limited in scope to just four states and about 40 prisoners due to "the secrecy surrounding lethal injections" in the U.S. The authors propose "that the secrecy surrounding protocol design and implementation should be broken. The available data or lack of data should be made public and deliberations should be open and transparent."

A prosecutor in Indiana described a response that many people, faced with this evidence, would probably share: "It doesn't matter a whole lot to me that someone may have felt some pain before they were administered poison as a method of execution." I always thought that the intentional infliction of significant pain on someone is a form of cruelty. Apparently this prosecutor's Con Law class bypassed the last half of the Bill of Rights.

Others have protested that the evidence supporting the study is a bit thin, reflecting a Catch-22 paradox: the execution protocols have never been seriously evaluated by scientists in the first place, and much of the limited data has been kept secret, so there's precious little evidence available for study.

Capital punishment is a travesty in itself no matter how it is implemented. But this latest study suggests that its basic moral infirmity is compounded by a reckless and inexcusable failure to make sure that executions do not result in prolonged agony for unknown numbers of prisoners.

PHOTO: A gurney used for executions by lethal injection in Florida.

Innate or acquired?

The debate over "nature vs. nurture" rages on anew among sociologists, psychologists and philosophers, often couched in the strict polarities of genetic or environmental determinism. The following essay—actually some long excerpts from a French blog—suggests that the controversy has long been settled in the U.S. in favor of a strong and highly judgmental religious sensibility: humans are born with innate tendencies toward good and evil, within which freedom of choice can only play a minor role. In fact, this freedom of choice is just enough to create personal responsibility for our bad decisions, bringing with it shame and punishment.

The essay, from a philosophical blog linked to Paris Libération, will probably raise three instant objections: it's rather long, it's rather dry, and it was written by a French observer who has lived in the U.S. for several years. But, living as we do in a narcissistic culture, it's always worthwhile to seek out other perspectives. [Besides, some of the themes came up in a posting on March 31st.] Entitled "Innate and acquired seen from the U.S." (No. 198) and written by Corinne Narassiguin, the essay was posted on April 12th from New York (my translation from the French):

...in the U.S., the idea of a genetic predisposition to certain social behaviors is very widespread. For decades American scientists have sought to identify a gene for violence. The fatalistic attitude of the average American toward criminality in society allows us to identify how this ideology became established in this country. The fervor of the ultraconservative Christian movement has surely contributed to the acceptance of the idea that some are born good, others evil...

[I]n reality, no serious American scientist denies the importance of the environment and nurture in the development of individual personalities. The majority of American sociologists, psychologists and politicians don't believe that everything is fixed from the cradle onwards. Even if they think that most of our behavior is the result of genetic predispositions, they continue to insist that the environment can counterbalance those predispositions. If the average American is ready to believe that some are born under the sign of divine grace, others under the mark of the devil, they believe nonetheless that most of us can exercise our freedom to choose between Good and Evil, either in spite of or because of our genetic heritage.

It should still be noted that theories about a gene for addiction, obesity, homosexuality, violence and mental illness find a resonance in the general population. In the U.S., as in France, in these uncertain times, people are seeking certainties.

How does this philosophy, which privileges genetic determinism over educational, social, and environmental factors, translate politically in the U.S. in terms of the treatment of criminals?

Politically and socially, the predominance of genetic determinism as a philosophy translates itself into a certain fatalism concerning criminality. [The fundamental idea] is that there are genetic predispositions to criminal behavior, that the role of education and society is to neutralize those predispositions by blocking their expression. Unfortunately, they think, when proper conditions don't develop early enough, and the evil gene has therefore profited from fertile ground to assert itself, it is very difficult to go back.

This is the source of a justice that privileges punishment and almost completely ignores the necessity of rehabilitation. Of a population which has never learned to see the difference between justice and vengeance. Of a country which doesn't openly question itself over capital punishment unless there's some risk of judicial error, but rarely concerning any ethical issue. The American prison: a place for punishment, where you deserve everything that happens to you, because you made the bad choice to give in to your criminal leanings. Rehabilitation is reserved as a last chance for those who haven't yet taken the plunge into serious criminality.

Prison as a school for crime? Rape, rackets, gangs in prison? In the the media, TV serials and political campaigns they speak of such things as an established fact. They rarely speak of them as a source of shame for the country, as a problem to remedy. Because, in the end, what do you expect to happen in a prison—a place full of criminals and deviants? Good people can do nothing about it, except perhaps to find alternatives to prison for delinquents who are not yet seen as incurable criminals, and who are still judged capable (by what criteria?) of being saved from that school of vice...

Work in prison is seen first as a supplemental way for criminals to pay their debt to society, to earn the food and care to which they have a right while there.

Prison is only seen secondarily as a way of reintegrating [into society]. Otherwise, for those guilty of serious crimes, the only acceptable form of rehabilitation for the majority of Americans is the (re)discovery of religious faith—the Born Again, the converted, who repent and place themselves, body and soul, before the destiny that God has decided for them. Because only divine grace can, in the eyes of the majority of Americans, deliver a criminal from his innate Evil and give him a second chance*.

I can't speak about American prisons without mentioning the overrepresentation of blacks. This tragic situation is certainly the direct result of a long history of discrimination, which largely continues today (in education, housing, hiring, professional advancement). But in the southern states in particular, where the memory of segregation remains strong, painfully for some and nostalgically for others, this overrepresentation of blacks in prison is associated with a possible genetic determinism that can only reinforce racial prejudices...

It is evident that in the U.S., as in Europe, genetic determinism as an intellectual position on the human condition is more dominant on the right than the left. One finds that Democrats have a greater will to develop policies of reinsertion, to fight against prison abuses, a greater capacity to believe in rehabilitation—with or without a religious epiphany. But it is interesting to note that, even for the Democrats, the vocabulary of Good and Evil has currency, and that prevention, education and equality of opportunity are seen above all as ways to reduce the effects of a genetic determinism that demands to express itself.

But this worldview isn't unique to the U.S. It has its extreme political expression in France itself, in the form of the current presidential candidacy of Nicolas Sarkozy, from the conservative Union for a Popular Movement. Another French writer and philosopher, Michel Onfray, describes his recent encounter with the candidate (my translation again):

He makes a gesture with a tight fist drawn to the right side of his abdomen and speaks about evil like it's a visible thing in the body, the flesh, even the viscera of one's being. I am led to believe that he thinks evil exists as a separate entity, clear, metaphysical, objectified, like a tumor, without any relation to the social, to society, politics, historical conditions. I questioned him to confirm my intuition: in fact, he thinks that we are born good or evil and that, no matter what happens, no matter what one does, everything is already regulated by nature.

Between the polarities of nature and nurture, there seems to be a highly complex middle ground where some traits and proclivities can be assigned to one's genetic heritage, while others are acquired (or perhaps reinforced) through one's environment.

NOTES

*As it did for George Bush, whose born-again claims gave him a pass with conservative voters, who then ignored his history of drug/alcohol abuse and the fact that he is the only U.S. president who has been convicted of a crime. [My note, not Narassiguin's.]

[DISCLAIMER: By reproducing parts of Narassiguin's essay, I don't mean to indicate approval or agreement with everything she writes.]

PHOTO: Nicolas Sarkozy with his soulmate George Bush.

The punishment culture

In an article headlined "U.K. headed for prison meltdown," describing the rapid increase in prison populations in the U.K., the London Guardian notes:

"The last three years has seen a 26% increase in the number of children and young people criminalised and seven times as much is spent on youth custody as on prevention schemes."

The head of the U.K.'s prison service warns that:

"I wouldn't be surprised at all if by 2010 there were 100,000 people in prison. I think there is every chance that, at the end of the decade, we will look back nostalgically at a figure of 80,000. The US experience shows there is no end to this."

To see how far they still have to go towards adopting the U.S. model, the Brits might take a look at numbers like these (showing juvenile custody rates per 100,000 population):

• U.S. custody rate - all juveniles ....307
  
• White juveniles.......................190
• All minorities........................502
• Blacks................................754
  
• Hispanic..............................348
  
• Native Americans......................496
  
• Asians................................113

Here are a few western European rates per 100,000:

• U.K....................................23
• France..................................6
• Spain...................................2
  
• Finland.................................0.2
  

This huge disparity isn't limited to juvenile inmates. Here's a sampling of incarceration rates for adults per 100,000 population:

• U.S. .................................737
• England/Wales.........................139
• Canada................................116
• Germany................................91
  
• France.................................85

The U.S. currently has 2,193,798 inmates in its prisons and jails. China, with four times the population, comes in second with 1,548,498 prisoners.

These numbers begin to reveal the true dimensions of what Barbara Ehrenreich once described as the U.S. "punishment culture." And they raise a number of questions:

• Are too many convicted criminals put in jail for offenses that merit lesser sanctions such as probation and drug and alcohol rehab programs? Is drug addiction fundamentally a public-health challenge rather than a concern of the criminal-justice system?
  
  
• Does it make sense to lock people up for long periods when nothing is being done to prepare them for eventual release? (In Oregon, for example, 80% of all inmates are imprisoned for misdemeanors and will released within one year.) Should prisons focus more on education, job training, drug and alcohol rehab and counseling programs? Should more services be available to ex-cons after their release?

• How should we interpret the data showing that black, Hispanic and Native American juveniles are much more likely to be incarcerated than whites? Are minority juveniles more likely to be charged with serious offenses? Are they more likely to be sentenced to longer terms in detention?
  

• How does the huge increase in the number of adult ex-convicts, especially among minorities, affect their families, communities and job prospects? Should their civil rights, including the right to vote, be restored after they complete parole to give them a larger stake in their communities?
  
  
• Has a politician ever met a harsher punishment that he or she didn't like—and vote for? (But, here in Oregon, the legislature recently declined to lower the blood-alcohol threshold for drunk driving from 0.08% to 0.05%.) Should the discretion once given to judges in sentencing be restored?
  
  
• To what extent did the increase in prison populations affect declining (but now rising in some categories) crime rates since 1990?

• Should prison be the placement of last (or first) resort for the 300,000 inmates who are mentally ill in the U.S.—or the other 700,000 mentally-ill inmates on probation or parole?
  

For a detailed response to these and related questions, take a look at the current New York Review of Books article, "The American Prison Nightmare."

SOURCES

Juvenile custody rates in the U.S.: Office of Juvenile Justice and Delinquency Prevention (OJJDP), U.S. Department of Justice. Custody rates by state are also shown in detail, along with a vast wealth of related data about the juvenile justice system. One example: the custody rate for blacks in California is six times higher than the rate for whites.

Custody rates in Europe: London Guardian, March 31, 2007

Comparative rates for adults: International Centre for Prison Studies, London. Only Russia comes close to the U.S. in terms of adult incarceration rates, estimated at 613 per 100,000 in 2007.

New York Review of Books article, "The American Prison Nightmare," April 12, 2007. The article notes that:

By the late 1990s, 60 percent of federal inmates were in for drug offenses. The result is an ever-growing prison system, populated to a significant degree by people who need not be there. It was no liberal advocate but Supreme Court Justice Anthony M. Kennedy who offered a damning view of criminal justice in the United States: "Our resources are misspent, our punishments too severe, our sentences too long."

The definitive statistical source on juvenile crime is Juvenile Offenders and Victims: 2006 National Report from the U.S. Department of Justice.

PHOTO: A holding cell for juveniles in the maximum-security Wood County (Ohio) detention center.