Perhaps the most intriguing, shocking, and clearly thought-provoking idea in Adam Gopnik's New Yorker article is one he cites from Harvard Law Professor William J. Stuntz's book The Collapse of American Criminal Justice (2011). In trying to arrive at the root cause of our "incarceration epidemic," Stuntz apparently starts with such obvious and immediate examples as tough drug laws, zero tolerance policing, and mandatory sentencing laws. But his search leads him all the way back to the Bill of Rights, "a terrible document with which to start a justice system," and which he contrasts with the French Declaration of the Rights of Man, which Jefferson "may have helped" to shape at the same time Madison was writing the Bill of Rights.
His problem with the Bill of Rights is its emphasis on process rather than principles. This emphasis, Stuntz says, leads to a system where accused criminals get "laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice."
As an example, "you may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren't guilty in the first place and the jury got it wrong." We see stories all the time that validate the truth of that assertion.
Our obsession with due process and our "cult of brutal prisons" share an important and essential trait, their impersonality. "The more professional and procedural a system is, the more insulated we become from its real effects on real people. That's why America is famous both for its process-driven judicial system...and for the harshness and inhumanity of its prisons." Stuntz argues that all countries started sending fewer people to the gallows in the 18th century and more to prison. He says it was that same Enlightenment inspiration which led to our "taste for...profoundly depersonalized punishment."
"Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence."
"Don't Take It Personally" is the slogan engraved over the gates of the American penal "Inferno."
Gopnik quotes Dickens' published comments after his visit to a "model" prison in Philadelphia in 1842 about the psychological torture, the "tampering with the mysteries of the brain," that is just as pertinent to what is being done today in our supermax prisons, or the supermax wings of other prisons.
Having grown up with the idea that our focus on legal process is its strength, it is shocking to consider that there is a dark side to it.
We're not done yet with the Gopnik article. We haven't even touched on the absurd subject of prisons as for-profit businesses.
2 comments:
After you deal with the absurdity of prisons as for-profit businesses, Spanky, you can take on health care as for-profit business. Tell me the profit motive in health care is a good idea.
Fred, I completely agree with you, at least as to the health insurance business. A single payer program would be so much better. The insurance company profits don´t add anything to the quality of health care. In fact the history over the years is the exact opposite, as insurance companies dropped people when they most needed care. Am I right in my understanding that they will no longer be able to do that under the healthcare bill that was passed?
Post a Comment