The Moral Horror of America’s Prisons

(Bloomberg Opinion) -- Now that President Donald Trump has signed a bipartisan criminal justice bill into law, it is worth looking at this issue in more fundamental terms. I would like to suggest a radical — but to me commonsensical — conclusion: Much of the American penal system is an unconstitutional moral horror.

The law, called the First Step Act, will expand early-release programs and change sentencing laws, for instance by weakening mandatory minimum sentences for some classes of nonviolent offenders. I’m all for those changes, but most of the bad features of the current system will remain intact.

For instance, it is widely accepted that rape is commonplace in American prisons. Precise numbers are hard to come by, but estimates are that between 2 percent and 21 percent of prisoners have been victims. Note that in prison even apparently voluntary interactions can have a strongly coercive element, such as when a prisoner trades sexual favors for protection or privileges. So it is not just the number of rapes. It is the broader system under which the very notion of voluntary interaction is often meaningless.

Even if a prisoner is never raped, that threat can be hanging over their heads for their entire stay. In the #MeToo era, this should be clear by now.

The upshot is that many incarcerated people suffer cruel and unusual punishment far beyond any issues they might raise about the unfairness of their sentence. Furthermore, once they are in prison, they often have little recourse to the rule of law if they are beaten, harassed, raped or intimidated — including, of course, by prison guards. In essence, they are being sentenced to live outside the protection of a system of laws, and that is clearly not the intent expressed in the Constitution. It is not unusual for a prison to be found guilty of violating common standards of decency, never mind constitutionality.

I am familiar with the cynical riposte that jail isn’t supposed to be fun. But we Americans can do better than that. The punishments received should be those mandated by the legal system, as properly expressed through the decisions of judges and juries. Some people might wish to argue for tougher penalties for some crimes and thus for some criminals, and that is a debate worth having. That is precisely the point: Such judgments should be made after public debate, not by gang powers within a prison.

Two additional features of the system further militate in favor of prison reform. First, because of DNA testing, there is increasing evidence of numerous false convictions, including for murder. That should make penal reform all the more imperative.

Second, the constitutional right to a fair trial has been badly battered. Most criminal court systems are overloaded, and too many defendants are encouraged to make a plea — and those that do not are often accompanied by a presumption of guilt (and often, if found guilty, a harsher sentence). Too many parts of the U.S. court system have ceased to be venues for the accurate, factual examination of innocence and guilt. Instead, they are dominated by a series of procedural kludges designed mostly to keep the process orderly but certainly not fair.

So what then to do? The first and most important step is for Americans to realize they have been creating and sanctioning a moral horror, and to treat it as a major political issue. Step No. 2 is to modify the career incentives for prosecutors to seek out ever tougher sentences. Step No. 3 is to experiment with more electronic monitoring of criminals, and to see if that can limit the number of people behind bars. Step No. 4 is to frame prison reform in more straightforward economic terms. It is not only about guaranteeing rights on paper. It’s also about designing the economic incentives for prisons to create secure and orderly environments. That has hardly been the focus of current systems. Finally — and this idea is broader in scope — the decriminalization of additional offenses should also be considered.

I realize these are complex issues, and potential remedies require far more consideration than I can give them here. But if you think America’s current penal system is the very best we can do, that is about the most pessimistic verdict on this country I have ever heard. Has anyone ever suggested that the American prison system is the world’s best? The can-do attitude is one of my favorite features of American life. We just need to apply it a little more broadly.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Tyler Cowen is a Bloomberg Opinion columnist. He is a professor of economics at George Mason University and writes for the blog Marginal Revolution. His books include “The Complacent Class: The Self-Defeating Quest for the American Dream.”

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