if we are going to put millions in prison, WE should make millions of decisions

(Washington, DC) Our jails and prisons hold 1.6 million people: the highest incarceration rate in the world. One percent of us are incarcerated at any given time, not counting almost 14 million ex-fellons. These rates are much higher for young adults and especially for young men of color. There are 1.5 million children with at least one parent in prison. When you consider that prison rape and the use of solitary confinement (which causes severe mental illness) are common, it is clear that we are sentencing many of our fellow citizens to conditions similar to torture. Not to mention that it costs us about $23,000/year to incarcerate a person in the United States.

We are doing this–choosing to do it by passing referenda and by preferring politicians who support minimum sentencing laws. According to brilliant forthcoming work by Albert Dzur, we are motivated in part by distrust for lawyers and judges, whom we see as elite and effete. Certainly, hatred for whole classes of people whom we call criminals plays a role–an emotion that is at least tinged with racism and class prejudice.

We make these decisions abstractly about nameless people and generic laws. Although 1.6 million people are incarcerated, the American people people have made many fewer than 1.6 million decisions, because most prison terms result from plea-bargaining. Distrusting lenient professionals, we impose punitive laws on top of a system that continues to function by negotiation among professionals. In turn, the lawyers and judges who negotiate plea bargains become inured to individual circumstances as they deal with one case after another.

If we are going to put our fellow citizens in prison, we should do it. They should be tried by juries of their peers who are required to listen to their stories. New to the courtroom, but guided by experienced professionals, the juror is an ideal listener.

I would endorse this proposal even if it didn’t change the incarceration rate. We simply have the responsibility to make decisions of such importance. But Dzur and others suggest that when we act as jurors, our beliefs and attitudes change. We trust the system more and make more nuanced (and often more merciful) decisions about particular cases. Thus I would expect rates of incarceration to fall if we had to put our fellow citizens in prison one at a time instead of en masse by the million.

About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University’s Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.

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  • A friend writes that the number of incarcerated Americans should be “2.29 million, or just a little less than
    the population of the Pittsburgh metro area.”

  • RW



    While your argument is logical and seems the fairest, I
    would like to remind you of a topic that you discuss most often,
    education.  What is the average reading
    level in this country?  I believe it is 8th
    grade.  Often times, juries have to
    listen and re-read testimony that deals with complex math (calculating the
    speed of a car) and medical information (DNA, fingerprints, blood alcohol
    levels etc.).  I don’t believe the common
    citizen has enough education or intelligence to make decisions in these life-changing
    situations.  I would rather leave it up
    to the “experts”.   I would also argue
    that making the decision to put someone in prison for a significant period of
    time is difficult.  It takes courage and
    conviction…sadly I don’t believe an average juror has those
    characteristics.  I believe our
    entertainment (television shows) have skewed the common perception of what the
    evidence should look like and what the legal concept “beyond a reasonable
    doubt” in fact means.   Finally, I
    believe that most people do not want to serve on a jury.  No one deserves to be tried in front of a
    group of peers that really don’t want to be there. 


    Realizing that I may sound like a negative, critical person,
    I think it is best to leave it up to the “experts” and have a majority of cases
    decided by attorneys and judges.  I
    believe our money, time and energy would be better spent on rehabilitation




    • Peter

      RW, I think you raise the important and valid issues on the other side of this debate. But I would just add that there seems to be a powerful critique of the experts (prosecutors, defense attorneys, and judges) who become very cynical, immersed in routines, and inured to suffering as they deal with one case after another. The ideal would be a regular interchange between naive but open-minded amateurs and experienced but weary professionals.

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