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Our Justice System, So-Called

By Donald P. Lay, Chief Judge of the Eighth Circuit Court of Appeals.

(This article was adapted from an address to the National Association of Pretrial Service Agencies, in Minneapolis. It appeared in the NY Times on Monday, October 22, 1990)

In an effort to fight crime, we aimlessly set goals of putting more and more people into jails and prisons, regardless of consequential costs or the complete denigration of dignity and resulting human sacrifice. As a nation, we countenance, without apparent concern, increasing episodes of temporary banishment of individuals to horrific and indecent environs in our jails and prisons, and falsely assume on their return to society that they will become useful citizens bearing no resentment.

The criminal justice system is a disgrace to a civilized nation that prides itself on decency and the belief in the intrinsic worth of every individual. The system is a complete failure. The financial waste incurred by communities, cities, states and the Government is unbelievable. The crimes committed against those who are victimized by the system are intolerable.

The human waste caused by the warehousing of prisoners is unconscionable. The reverberation to our society is found in an increasing crime rate, resulting from the failure of the criminal justice system to adequately rehabilitate rather than show contempt for prisoners.

Charles B. DeWitt, President Bush's nominee to head the National Institute of Justice, has observed that the nation's prison and jail population recently passed the one million mark and is rising at a 13 percent annual rate. Maintaining that rate of growth would cost at least $100,000 million per week for construction of new facilities alone. There were 343,569 total inmates in the jail population in 1988. [Our Note: As of 1997 there are now over 1.61 million incarcerated and we are the world's leading jailer] Local jail occupancy rate in 1989 was 108 percent of capacity; in 1988, it was 101 percent, in 1953 it was 85 percent....

The atrocities that take place within jails and prisons are commonplace. A few years ago, I visited a correctional institution in a southern state. A 19-year-old farm boy had just been sentenced for one year for possession of marijuana. He was received in their central processing unit, designed to hold 120 prisoners. At that time there were 465 prisoners incarcerated in small cells in a four level building that afforded little ventilation and no recreational area.

The young man was sent to a psychological evaluation unit. After two hours they picked up his exam papers and he had written only two words: "Help Me. Help Me." Officials discovered that he had been put in a small cell block containing four beds with 11 other inmates who had sexually assaulted him for 48 hours, every hour on the hour.

A 19-year-old prisoner at the Missouri Training Center, the victim of a number of homosexual rapes was given three alternatives by a prison official: submit, fight back or escape. He chose the last alternative. The Missouri Supreme Court affirmed his conviction for the escape charge, concluding that conditions of confinement do not justify escape and are not a defense.

The public has every right to deeply resent those who commit crime. However, the knee-jerk reactions by angry executives, politically conscious legislatures and vindictive judicial officers is taking us down a primrose path with little success in combating crime.

The resulting approach is accomplishing nothing more than exorbitantly wasting tax dollars, creating a warehouse of human degradation and in the long run breeding societal resentment that causes more crime.

In the Federal System, the commitment to double the size of our prisons, by 1995, to increase mandatory minimum sentences and to sentence by the crime and not the individual is simply a corollary to this societal attitude.

There exists a crying need to develop a nationwide system of intermediate sanctions for those who are convicted of nonviolent felonies. Our penology system needs to develop work release programs, community service programs, schooling, vocational training and other forms of supervised productivity in lieu of wasteful expenditures of tax dollars and warehousing of individuals.

Punishment is one thing, but our incarceration policies are wasteful and should be changed. Present policies breed further crime, dehumanize individuals and require gross expenditures of tax dollars needed for other purposes. With our nation facing both societal and fiscal crises of unrivaled proportions, we must move quickly and forcefully to overhaul the current system.

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