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Thoughts from Michael Segal

Thoughts on over criminalization

Updated: Jan 11, 2019



When you really think about it (if you ever do), who do you suppose is incarcerated in American prisons? This is a question I don't think a lot of us give much real consideration to.  For many people, on some fundamental, child-like level, I'd bet the answer is pretty simple: it's "the bad guys."  


It's an easy assumption to make.  The folks in the black and white stripes must have all done terrible things; they are brutal murderers, sexual assailants, armed robbers, violent drug dealers, and trigger-happy gang members. In short: if a person is behind bars, they must have done something really bad to get there.


In reality, more than half of federal inmates are doing time for non-violent offenses.

For a lot of people, that's surprising. And here's something that should be even more surprising: many leaders in law and government argue they shouldn't even be there at all. In fact, in 2016, a study conducted by the Brennan Center for Justice found that up to 39% of the American prison population should not be locked up.


So what's going on here? Why do we have such a huge prison population of non-violent criminals?  

There are, as you might expect, a multitude of reasons, but here's a big one: in the federal justice system, we keep creating new laws and regulatory offenses that routinely prescribe incarceration as punishment (often times with severe sentences), when perhaps we might be better served by mandating community service, or levying fines. This is most common in drug cases.  Here's a story, for instance, of a woman who was given a life sentence for a first time, non-violent drug offense. Here's one about a judge so outraged over being required to hand out absurd prison terms, he quit.


Now, at this point, maybe you're thinking, "who cares, I don't like drugs, and people who use drugs are criminals" - but of course, it's never so simple. First off, we should think about what we're considering "criminal," and why.  Should we really hand out prison sentences for shipping lobster in plastic bags, instead of cardboard boxes?  For possessing an ounce of pot? For "violating" an obscure regulation you didn't even know existed?  Stories of regular people going to prison for vague violations of bizarre regulations are legion.


If nothing else, you should consider the result of such unrestrained "laws." Namely: the numbers.  As of 2018, America has a prison population of approximately 2.3 million souls. To put that in perspective: the United States represents about 5% of the world's population, but houses a quarter of of the world's prisoners


And what good comes of this? It doesn't take much research to see that we are not well served by paying for the imprisonment of (so many!) people who pose so little threat to our well-being. Prisons are better at creating repeat prisoners than they are at rehabilitation, and the tax burden (about $80 billion a year) could be better spent elsewhere. 


Remarkably, this is one of the few issues in American politics that both liberal and conservative leaders agree is a major problem, and have worked across the aisle to fix. Unsurprisingly, progress is slow.


At the core of this issue in one crucial truth: we cannot live justly in a society where so many people are so over-punished for so little. And while this may not seem like a pressing issue to you - the fact of the matter is, it won't be; not until you find yourself being prosecuted for a building a home on your own property, or selling flowers from your backyard, or who knows what, really.


This may not be a problem with an easy fix, but it's one we need to address. Because if we don't demand our legislators inject some common sense into questions of crime, punishment, law, and order - well, then we really would be criminal.

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