In Defense of Flogging (6 page)

Poor people, innocent and guilty alike, and even low-level nonviolent offenders languish in jail for days, weeks, and even years before their day in
court. More than 10 percent of felonies take more than a year to resolve. But the majority of people in our jails have not been convicted of any crime. Jail is supposed to be for brief detentions before trial and for sentences of less than one year (sentences of more than a year are usually served in prison). If you have to pay bail—and through a bail-bond agent, you generally need to come up with only a fraction of the actual bail amount—you can pay and get out.

In New York City more than three-quarters of nonfelony defendants are released on their own recognizance. But of 19,000 misdemeanor cases with bail set at $1,000 or less, 16,500 did not post bail. No matter how low bail is set, if you don't have it, you stay in jail. The average stay for these minor offenders was sixteen days, which costs the city approximately $3,000 per person.

Every year millions of people like this get funneled through a very dysfunctional criminal justice system that is too overwhelmed to properly administer justice. Literally and figuratively, justice is pleabargained. Given the capacity of our courtrooms, most cases
can't
go to trial. For serious crimes—prosecuted felony cases—fewer than one in twenty
goes to trial. Baltimore City, where I worked, provides a typical example. The city's Circuit Court has ten thousand felony cases a year and the capacity to hold five hundred jury trials. Something has to give, so the system does its best to clear its caseload. In the seventy-five largest counties, about two-thirds of defendants accept a guilty plea, and most of the rest have the charges against them dropped. The small remainder are “diverted” (into drug treatment, for instance) or have “exceptional” outcomes (such as the suspect's death).

Nationwide, three-quarters of those who plead guilty to felony charges are given time behind bars. But with time served and a median sentence length of a year, simply saying you're guilty can allow you to walk free. If you refuse to accept a guilty plea—you might be innocent—you stay behind bars to wait your day in court. In a further Orwellian twist, some suspects spend more time in jail awaiting trial than the maximum possible time they could receive even if found guilty. Such can be life if you're poor and innocent and stubborn.

Of course it's not that everybody in jail is an innocent victim. People usually have some behavioral problems before they go to jail, but these problems
just get worse behind bars. In jail people naturally fulfill the role expected of them. Consider Philip Zimbardo's notorious 1971 Stanford Prison Experiment. Two groups of college students were randomly assigned to play the role of either prisoners or guards in a make-believe prison experiment (it was pretty realistic in that students were “arrested” on the street and the prison was a refitted basement in the psychology department building). Both groups fell all too readily into their arbitrarily assigned roles: Students who were objectively similar just a few days earlier began acting like guards and prisoners. After only six days, the experiment had to be called off because “guards” were abusing “inmates,” and some inmates were beginning to rebel, and others started to crack psychologically.

Almost as horrifying as what goes on in modern jails and how so many people wind up there is what happens after they're released. Whereas the process that sends so many Americans to prison is fundamentally defective, getting
out
of prison is equally problematic, albeit in different ways. Coming home after prison is called “reentry,” and like every other stage of the criminal justice system, it fails. Just take the simple standard of making people not commit
crime: Of the more than seven hundred thousand prisoners released each year, two-thirds are rearrested within three years, and half end up back in prison. Why? Maybe they're bad eggs. But even good eggs can do stupid things when they're without money, a stable home, antipsychotic medication, common sense, or the ability to find a job. Whatever circumstances led somebody to commit a crime probably haven't changed by the time they're freed. A released prisoner hangs out with the same friends in the same neighborhood and without the same job he never had. Or maybe a prisoner is a badass who enjoys adrenaline and the thrill of the crime.

Part of the problem is that not only do prisons not “cure” crime, they're truly criminogenic: Prisons
cause
crime. When released, people who go to prison are more likely to commit a crime than similar criminals who don't go to prison. This should be no surprise considering what happens when you group criminals together with nothing to do and all the time in the world. People make associations, form bonds, learn illegal skills, and reinforce antisocial norms.

Furthermore, to point out the obvious, criminals often come from neighborhoods with more
crime. But what may not be obvious is the direction of the relationship between the two. It is not just that high-crime neighborhoods increase incarceration; high-incarceration neighborhoods also increase crime. Prisons and the war on drugs have turned entire neighborhoods into self-sufficient criminal creators. Currently, at some point in their lives, more than 50 percent of black men without a high school diploma do time in prison. Moreover, these men disproportionately come from very specific neighborhoods. A few years ago a researcher did an innovative analysis that highlights a phenomenon dubbed “million-dollar blocks.” These are individual city blocks where more than $1 million is spent each year to incarcerate people from that block. Some particularly high-crime blocks require more than $5 million per year. This is money we're already spending, but poorly.

When too many young men from one neighborhood are in the criminal justice system, whether locked up or on probation or parole, the area reaches a tipping point, after which it can't function properly. When such a large segment of the population is sent away, everybody loses. Crime increases
because
a significant portion of the male population
is not present. Of course there is a community benefit when a criminal menace is removed from the streets, but not all prisoners are menaces or will commit crimes all the time. And even bad people have some attributes that help their family and community function. From behind bars a prisoner can't be a father, hold a job, maintain a relationship, or take care of elderly grandparents. His girlfriend suffers. His baby's mother suffers. Their children suffer. Because of this, in the long run, we all suffer.

Consider the length of our sentences. There's no evidence that longer sentences deter crime. Unfortunately, we don't hear much of a call for shorter sentences for criminals. But the more time prisoners serve, the worse they and their job prospects will be upon release, and 95 percent of prisoners get released. What would happen if we just cut sentences in half? It's not too hard to imagine; Canada, just across the border, gives us a clue. The majority of all incarceration sentences in Canada are for less than one month. In Canada those convicted of “major assault” receive an average sentence of thirtynine months. In America, however, the equivalent mean sentence for any violent offense is sixty-seven months. Shorter sentences are not the only reason
for Canada's lower rates of crime and incarceration, but it's a small contributing factor.

In truth, even though very few people openly advocate that all prison sentences should be life sentences, all too often, that is essentially what happens. What would you do as a released felon? Get a job? On a job application there's a little box where you can write a paragraph to explain your felony conviction. Go ahead and write the best story you can, because it won't matter. When a potential employer asks if you've ever been convicted of a felony, there's a correct answer—and it's not “Yes, but. . . .” Given the choice between a convicted felon and a nonfelon, why hire the felon? There's almost always a hard-working immigrant applying for the same job. And immigrants effectively get any criminal history expunged when they cross the border. Most of these immigrants do quite well, at least judging from the disproportionately few, compared to native-born Americans, who end up in prison. Maybe some US citizens deserve a similar clean slate.

Programs to help convicts reenter society are essential, but they don't receive the support they should. And they're too easy to target during budget cuts. Sometimes there's still lip service to helping
prisoners, but it's usually nothing more than political rhetoric. Take California: In 2005 the Department of Corrections officially became the Department of Corrections and
Rehabilitation
. But there was no actual increase in rehabilitation. In New York State the Department of
Correctional Services
expresses the official desire to teach a mature work ethic through “positive individualized treatment plans.” Really? Who goes to Attica or Sing Sing for vocational training? One of the few useful job skills that can be learned in prison is cutting hair, but it wasn't until 2008 that New York State allowed even nonviolent felons to get a barber's license. Most states still prohibit the practice.

After release, we want prisoners to work and become independent. But programs to help prisoners—such as assistance in finding jobs, paying rent, or finishing school—are a tough sell politically, especially when we don't offer similar benefits for noncriminals. And if some ex-con in a program, no matter how effective the program is, commits a newsworthy crime, the program is doomed. Reentry services are undercut at almost every turn, but without them, most released prisoners have little chance of staying out of jail.

New York's largest jail provides just one example of dysfunctional reentry. Rikers Island, which you can see while taking off or landing at LaGuardia Airport, can hold eighteen thousand inmates (though it's currently running under capacity). Let's say you get arrested for disorderly conduct in New York City. (“Dis-con,” as it's known, is the general catch-all charge for disobeying or pissing off a police officer in New York. Every police department has a similar charge.) If this happens, you might spend a night or two on Rikers. If you've committed a real crime, you may be there much longer. Regardless, when your time is up, they'll take you on a white school bus to Queens Plaza South, just short of the bridge to midtown Manhattan. Getting off the bus by twelve lanes of traffic in the wee hours of the night (local business owners don't want prisoners released during business hours), you'll be greeted by a mixed crowd of loved ones, pimps, prostitutes, drug dealers, scam artists, strip clubs, and fried chicken joints. Hopefully you have somewhere to go or somebody is there to meet you. At this hour, the shelters are full or closed.

It's a sad day when the best-case scenario after getting out of jail is being homeless—but this is
reality. Only the most hopeful among us would seriously think a functionally illiterate broke man with nowhere to go—and perhaps with substanceabuse and anger-management issues to boot—is going to turn his life around in the pre-dawn chill at Queens Plaza. If he's like many offenders, he'll do whatever crime comes best. To expect crime is not to justify it, but really, what is the choice if someone literally has nothing but the clothes they were arrested in and a paper card worth two subway fares?

Prison reentry causes a host of problems. Flogging, however, cleverly sidesteps these pitfalls because convicts don't enter prison in the first place. Although flogging wouldn't alter the circumstances that contribute to crime, at least it won't make things worse. With flogging, one isn't derailed from attempts to hold onto jobs, relationships, and housing. The lash may not set lives straight, but it would at least give those who want to turn their lives around more of a fighting chance.

I've never been incarcerated, and I don't personally know anybody who is. I'm part of the country's
lucky half. For the other half, it's hard to imagine
not
knowing somebody behind bars. If you're poor or black or a high school dropout, you probably know people behind bars. If you're poor, black,
and
a high school dropout, there's a very good chance you
are
behind bars. If you commit a crime, no matter the crime, you're much more likely to end up behind bars if you're African American. All too often in this country race is a predictor for imprisonment. For any given crime committed, blacks are more likely than whites to be caught, jailed, prosecuted, convicted, or sentenced. This flies in the face of basic democratic principles of fairness—and yet it's a reality that many Americans have, astonishingly, learned to rationalize and accept.

Nationwide, about one-third of those behind bars are white. In New York City more than 80 percent of those arrested are minorities. But on Rikers Island 95 percent of those jailed are minorities. This is not to say that whites get handed a get-out-of-jail-free card, but because of how justice punishes the poor, this is essentially what happens. Nationwide there are more whites than blacks living under the poverty line, but the black poverty rate of 25 percent is twice as high as the white poverty
rate. Of course we don't lock up people for being poor, but almost everybody we lock up is poor.