The Los Angeles Times in a report by Carol J. Williams headlines that U.S. Justice [Anthony M.] Kennedy laments the state of prisons in California, writing:

"U.S. Supreme Court Justice Anthony M. Kennedy criticized California sentencing policies and crowded prisons Wednesday night, calling the influence that unionized prison guards had in passing the three-strikes law "sick."

He said U.S. sentences are eight times longer than those issued by European courts."

Kennedy is an expert in this field of legal inquiry. See the 2004 Report of the ABA Justice Kennedy Commission Fact Sheet which stated:

"The United States imprisons more people than any other country in the world.

- The nationwide inmate population today is about 2.1 million people. In California alone, there are more than 160,000 persons behind bars.

- Between 1974 and 2002, the number of inmates in federal and state prisons rose from 216,000 to 1,355,748, a more than six-fold increase.

- The likelihood of an American going to prison sometime in his or her life more than tripled between 1974 and 2001.

- According the U.S. Department of Justice Bureau of Justice Statistics, the number people incarcerated under state and federal jurisdictions per 100,000 of the total population grew from 139 in 1980 to 476 in 2002....

- In countries such as England, Italy, France and Germany, the incarceration rate is about 1 in 1,000 persons.

- Between 1982 and 1999, direct expenditures on corrections by federal, state and local governments jumped from $9 billion to $49 billion, an increase of more than 440%.

Over-reliance on incarceration disproportionately affects minorities.

- An African American male born in 2004 has a 32.2 percent likelihood of being incarcerated sometime during his lifetime....

- An African America male born in 2001 has a 1 in 3 chance of being imprisoned during his lifetime, compared to a 1 in 6 chance for a Latino male and a 1 in 17 chance for a white male. If current rates of incarceration continue, 32.2 percent of African American males born in 2001 will be incarcerated at some point in their lives, compared to 16.7 percent of Hispanic males and 5.9 percent of white males.

- About 10 percent of African-American men in their mid-to-late 20s are behind bars. In some cities more than half of young African-American men are under the supervision of the criminal justice system.

- More than 60 percent of the people behind bars in America are people of color.

- In 1999, African-Americans constituted 13 percent of drug users, Hispanics, 11 percent, and whites, 72 percent. In that same year, African-Americans constituted 35 percent of drug arrests, 53 percent of drug convictions, and 58 percent of those in prison for drug offenses.

Criminal justice systems do not prepare people to successfully reenter society.

- Approximately 95 percent of all inmates are eventually released.

- Nationwide, more than 650,000 inmates will be released from prison in 2004.

- According to the Criminal Justice Institute, the national recidivism rate in 2000 was almost 34 percent.

- In California, the state with the highest recidivism rate in the country, more than 55 percent of inmates released from prison return within 2 years.

Drug laws, particularly mandatory minimum sentences for drug crimes, are the largest driver of expanding prison populations.

- Between 1980 and 1990, the number of drug arrests almost doubled – from 581,000 to 1,090,000

- In 2001, the average federal drug trafficking sentence was 72.7 months, the average federal manslaughter sentence was 34.3 months, the average assault sentence was 37.7 months, and the average sexual abuse sentence was 65.2 months.

- In state court, the average sentence imposed in state courts for felony drug trafficking was 35 months."

The ABA subsequently issued a June 23, 2004 press release as follows:

"ABA COMMISSION CITES OVER-RELIANCE ON INCARCERATION, CALLS FOR NEW "SMART ON CRIME" APPROACH

Recommendations presented to Supreme Court Justice Anthony M. Kennedy

WASHINGTON, D.C., June 23, 2004 - According to a report issued today by a special American Bar Association commission, America's criminal justice systems rely too heavily on incarceration and need to consider more effective alternatives.

"For more than 20 years, we have gotten tougher on crime," said ABA President Dennis W. Archer. "Now we need to get smarter. We can no longer sit by as more and more people-particularly in minority communities-are sent away for longer and longer periods of time while we make it more and more difficult for them to return to society after they serve their time. The system is broken. We need to fix it."

The recommendations, which do not reflect ABA policy, will be considered by the ABA House of Delegates for adoption as policy at its Annual Meeting in Atlanta, August 9 and 10.

Archer today joined Stephen Saltzburg, chair of the ABA Justice Kennedy Commission, in presenting the commission's recommendations to U.S. Supreme Court Justice Anthony M. Kennedy.

The recommendations, the result of a nearly year-long review of issues confronting state and federal criminal justice systems, address four primary sets of issues: sentencing and incarceration issues, racial and ethnic disparities in criminal justice systems, prison conditions and prisoner reentry issues, and pardons and clemency processes.

The commission noted that the United States imprisons more people than any other country in the world. With more than 2.1 million people behind bars, and some 650,000 set to be released this year, the commission urged jurisdictions to invest in programs that help inmates return to communities, provide alternatives to incarceration for offenders who would benefit from substance abuse and mental illness programs, and help eradicate the disproportionate impact "tough on crime" laws have on minorities. The commission also called on Congress to repeal mandatory minimum sentences.

"These recommendations are intended to make our criminal justice systems more effective and to utilize our limited resources more efficiently," said Saltzburg. "For too long we have focused almost exclusively on locking up criminals. We also need to look at the other side of the coin: what happens when they get out. We have to remember that roughly 95 percent of the people we lock up eventually get out. Our communities will be safer and our corrections budgets less strained if we better prepared inmates to successfully reenter society without returning to a life of crime."

The commission noted that about one-third of the more than 650,000 inmates who will be released this year can be expected to return to prison. Many of its recommendations are intended to help jurisdictions find ways to reduce the recidivism rate. One method, the commission noted, is for Congress and state legislatures to eliminate unnecessary legal barriers that make it difficult for some to become productive members of society. People with drug convictions-even minor possession charges, for example-are permanently ineligible for federal student loans, housing assistance or public assistance.

The commission also called on Congress to repeal mandatory minimum sentences, particularly with respect to drug crimes. "Mandatory minimum sentences tend to be tough on the wrong people," said Saltzburg. The commission's report notes that the average federal drug trafficking sentence was 72.7 months in 2001. By comparison, the average federal manslaughter sentence was 34.3 months, the average assault sentence was 37.7 months, and the average sexual abuse sentence was 65.2 months.

For minorities the situation is even more striking. The commission noted that an African American male born in 2004 has a 1 in 3 chance of being incarcerated sometime during his lifetime, compared to a 1 in 6 chance for a Latino male and a 1 in 17 chance for a white male. Nationwide about 10 percent of African American men in their mid-to-late 20s are behind bars. In some cities more than half of young African-American men are under the supervision of the criminal justice system.

The commission recommended numerous steps that jurisdictions across the country can take to address those problems. Among the highlights are proposals to:

* repeal mandatory minimum sentences;
* study and fund alternatives to incarceration for offenders who may benefit from treatment for substance abuse and mental illness
* develop and implement policies and procedures to combat racial and ethnic profiling;
* implement prison policies and programs that, from the beginning of incarceration, assist prisoners in preparing to reenter society by providing, for example, substance abuse treatment, educational and job training opportunities, and mental health counseling and services;
* identify and remove unnecessary legal barriers that prevent released inmates from successfully reentering society;
* establish community partnerships that include corrections and police officers, prosecutors, and community representatives committed to promoting successful reentry into the community and that measure their performance by the overall success of reentry;
* expand the use of executive clemency to reduce sentences, as well as other processes by which persons who have served their sentences can request a pardon, restoration of legal rights and relief from collateral disabilities.
* establish criminal justice racial and ethnic task forces to study and make recommendations concerning racial and ethnic disparity in the various stages of the criminal justice process; and
* establish reentry clinics in law schools in which students assist individuals who have been imprisoned and are seeking to reestablish themselves in the community, regain legal rights, or remove collateral disabilities

Archer formed the ABA Justice Kennedy Commission in October 2003 to address the "inadequacies - and the injustices - in our prison and correctional systems" identified by Justice Kennedy in his speech to the 2003 ABA Annual Meeting in San Francisco. In the months since, the commission has held public hearings in Washington, D.C., San Antonio, and Sacramento, Calif. During those hearings the commission heard testimony from more than 75 judges, prosecutors, defense lawyers, corrections officials, state and federal sentencing commissioners, former inmates, victims advocacy groups, and law enforcement officials.

For more information on the ABA Justice Kennedy Commission or a complete set of the commission's draft recommendations, visit the ABA Web site at www.abanews.org.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society."

In spite that report, little has been done in the United States to reform the criminal justice system or its draconian three-strikes sentencing system.

Europe, for example, still has a much lower violent crime rate than the United States:

"The US homicide rate, which has declined substantially since 1991, is still among the highest in the industrialized world. Only the homicide rate of Northern Ireland in the early 1990s compares to that of the United States today. There were 17,034 murders in the United States in 2006[35] (666,160 murders from 1960 to 1996).[36] In 2004, there were 5.5 homicides for every 100,000 persons, roughly three times as high as Canada (1.9) and five times as high as Germany (1.0).[37][38] Most industrialized countries had homicide rates below the 2.5 mark. Overall the homicide rate in the United States was similar to that of some lesser developed Eastern European countries."

It is of course not entirely correct to compare the United States and Europe directly, since each have different demographics, but there are a lot of people in jails and prisons in the United States who simply should not be there and for whom society must find OTHER solutions.

As written by Gary Fields in the Wall Street Journal (November 12, 2009) in U.S. Commission to Assess Mandatory Sentences:

"Congress has ordered the panel that advises judges on prison terms to conduct a review of mandatory-minimum sentences, a move that could lead to a dramatic rethinking of how the U.S. incarcerates its criminals.

The review is a little-noticed element of the National Defense Authorization Act signed into law last month by President Barack Obama. The defense-spending bill calls on the commission to perform several tasks, including an examination of the impact of mandatory-minimum sentencing laws and alternatives to the practice."

We wrote about this problem earlier at LawPundit in USA Drug Policy Flawed : 2.3 Million in Jail or Prison : Limits of the Criminal Sanction : Portugal Leads Way to Legal Reform & Drug Decriminalization.

Solutions are there to be had, but it would require some modernization of the American criminal justice system. Certain aspects of the American economic system also need be reformed and modernized, something which there is a reluctance to do. People must be taken off the streets - and then be put into gainful employment, not into jails and prisons.


A couple of interesting reads on these subjects are also found at:

Marijuana Policy Project (MPP):

• "Someone is arrested for a marijuana offense every 37 seconds.

• The Holder-McConnell Letter

  By Scott Horton

  The American political landscape is heavily populated with fake debates—hot-button issues designed to rile people up, but which are not likely to have any real impact on policy. One of the best examples of this in modern times is the fake rage over trying terrorists in federal courts and the procedures that followed the arrest of the “panty-bomber” Abdulmutallab. The simple fact is that the policies of the Bush and Obama Administrations have been essentially indistinguishable, and the rhetorical war is little more than political demagoguery.

  Attorney General Eric Holder has been remarkably staid in response to these attacks. On this score, he’s doing what his office requires of him: the attorney general shouldn’t take the bait and sink into partisan mudfights. But he has struck back with a closely reasoned, detailed letter to Senate Minority leader Mitch McConnell that deserves to be scrutinized closely. The letter’s tone is even and patient, but it makes the essential points:

  Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government’s legal authority to do so is far from clear. In fact, when the Bush Administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.

  It’s worth reading the whole thing.

  Karl Rove settled on the “weakness” of the criminal justice system and the “strength” of the war paradigm as a major Republican talking point in 2002. We’re now eight years into this process, and Republican leaders continue mindlessly to mouth the same points. They don’t grapple with the obvious replies because the Democrats rarely make them. So here goes:

  (1) The idea that criminal justice is “weak” and war is “strong” is absurd. In fact, the political dynamics are just the opposite. Margaret Thatcher realized that during the “troubles” in Northern Ireland, when she correctly resisted using the war paradigm to address the situation, and instead chose to label the terrorists as thugs and criminals and dealt with them through the criminal justice process. Terrorists actually love the war paradigm. It elevates them to the status of acknowledged warrior-opponent, which is a propaganda win for them. On the other hand, the criminal justice approach allows the government to portray them as vicious killers–assuming that’s the case–and to try and sentence them as criminals.

  (2) The idea that the criminal justice and war paradigms are mutually exclusive is wrong. Of course, both of these approaches exist, and the executive is free to use both as the circumstances warrant. The president can certainly deploy military resources against a terrorist threat, and he can seize and hold terrorists as belligerents without charges—provided that they actually are belligerents. This does not exclude bringing criminal charges against them. But it’s undeniable that the war paradigm muddies the waters and may actually make it more difficult to bring some kinds of criminal charges, such as material support, which are available in the criminal justice world.

  (3) The idea that military commissions will lead with more certainty to convictions and long sentences is wrong. Republicans seem to proceed from the assumption that the military commissions are kangaroo courts in which defendants have no rights and we move straight from the charge sheet to sentencing, with little in between. But our experience with the commissions in the Bush era shows that they are broadly like the military’s court-martial process, and the more they deviate from that process the more likely they will be overturned on review and disrespected. If we compare the sentences handed out by military commissions so far with those obtained by federal prosecutors in criminal court proceedings, the scales tip decisively in favor of the latter—they are faster to judgment, have equal likelihood of ending in conviction (all around 90%), and produce longer sentences.

  (4) There is little meaningful difference in the Bush and Obama approaches. Holder drives this point home. The Republican rhetoric starts by dispensing with everything the Republican administration actually did between 2001-2009. In fact the Obama Administration reflects straight-line continuity with the decisions made by Ashcroft, Gonzales, and Mukasey. Most criticisms that the Republicans articulate could just as easily be seen as criticisms of their own management of the Justice Department.

  (5) Justice is not a weakness. It is not, as Rove would have it, a flaw in the democratic system, best replaced by presidential discretion. It is a strength of that system that establishes its legitimacy. When the U.S. and its allies acted swiftly to bring defendants to justice at the end of World War II, that was broadly recognized in the world as proper. It helped materially advance an education process for the occupied nations of Japan and Germany about the fundamental criminality of their leaders. The failure of the Bush Administration to bring Al Qaeda leaders to trial, present clear evidence of their criminal misdeeds, and secure convictions was a fatal error.

  When the Republicans rant about trials and arrests, they want to distract us from the mistakes they made over the last eight years, which cost the nation precious blood and treasure, and which continue to hamper us in the battle against terrorism. Much of the argument offered by the Republican leaders is not carefully studied strategy, but rather an attempt to cover up horrendous mistakes of the past. The real worry is not that the Obama Administration has deviated from the course that the Bush-Cheney team set, but that it is more a prisoner of the past than it needs to be.