The Beguiling Myth of “Mass Incarceration”


It is not surprising that those at opposite poles of the ideological spectrum generally view public policy issues—and proposed solutions—differently. What is surprising is when conservatives adopt the rhetoric of the Left (along with the accompanying narratives, memes, and canards) regarding a subject as important as criminal justice.

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Scientifically Undermining the Rule of Law

brain network

Before he turned murderously religious, one of the Belgian bombers had been a bank robber. He fired a Kalashnikov at the police when they interrupted him in an attempted robbery, for which crime, or combination of crimes, he received a sentence of nine years’ imprisonment. Of those nine years he served only four, being conditionally discharged. The principal condition was that he had to attend a probation office once a month: about as much use, one might have supposed, as an igloo in the tropics.

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Judicial Process as a Game of Poker

A Game of Poker

In the prison in which I used to work as a doctor, I would ask prisoners in confidence who were held pending trial whether they intended to plead guilty or not guilty.

“It depends,” they replied.

“On whether or not you did it?”

“On what my counsel says.”

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Crime and Sentencing in America: A Conversation with Frank Zimring

Cop walkingThis next podcast is with criminal law expert Frank Zimring, author of The City That Became Safe: New York's Lessons for Urban Crime and Its Control, on the state of policing, crime, and sentencing in America. We discuss the revolution in policing and criminal deterrence in New York and what it has meant overall for criminal justice in America. In addition, our conversation focuses on recent efforts to reform state and federal sentencing laws.

Life, Death, and the New Orthodoxy

廃屋の廊下In a village in South Wales, 34-year-old Matthew Williams was recently stunned by a taser discharged by a policewoman. He died soon afterward in police custody.

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A Plea-Bargain Before Dying

Murder is a subject of perpetual interest, as the history of bestselling fiction amply demonstrates. Having met more than my fair share of murderers in the course of my professional life, I find it fascinating. There are genres of murder as there are of painting. Because I am a doctor, the murders committed by doctors and nurses get my attention, all the more so since one of my close friends is a great expert on the pharmacological aspects of such crimes.

Murder by healthcare staff is one of the few genres of murder in which poison remains the weapon of choice. When, therefore, I happened by chance on a book that promised to explain to me why the doctors and nurses in question killed, I bought it. Disappointingly, by the end of the book I was none the wiser. However, I was not too disappointed; in my heart of hearts I had never really expected enlightenment. Understanding murderers is a tall order, as opposed to describing, as this book did, some murderers’ acts and personal backgrounds.

But the book did fill me in on—and alarm me about—the state of plea-bargaining in the criminal justice system in the United States and, to a lesser extent, Britain.

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This Arbitrary Court

The European Court of Human Rights in Strasbourg has granted, by 16 votes to one, an appeal by three men in England who have been sentenced to life imprisonment without the possibility of release. These sentences, the men claimed, breached their human rights according Article 3 of the European Convention on Human Rights, which forbids ‘inhuman and degrading treatment.’ The court agreed.

In its ruling the court said, inter alia:

If such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence.

The court added that prisoners must have their sentences reviewed, with regard to release, after 25 years at the latest, and regularly thereafter.

At first sight, this ruling might seem compassionate; the judges clearly feel, or claim to feel, for the convicted men. But actually the sentimentality of the judgment is but the reverse side of its implicit brutality, as well as being an invitation to legal arbitrariness.

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Therapeutists as Teachers of Evil

In the year of my birth, which now seems to me a very long time ago, C. S. Lewis wrote a short and incisive essay entitled The Humanitarian Theory of Punishment. In this essay, Lewis drew attention to the potential for tyranny of this seemingly humane theory, according to which people were to be treated not according to their deserts, but according to what would make them ‘better’ on whatever scale of goodness was adopted by the therapists, who of course would also decide whether or not the wrongdoers were ‘cured.’

The horrors that Lewis foresaw as following from the humanitarian theory of punishment were those of cruelty and oppression disguised as benevolence.

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The Jury System’s Comparative Superiority

The jury system is like democracy, the worst system in the world except for all the others.

Quite often when giving evidence before a jury I have wondered how much they were taking in or even paying attention. Certainly they never dressed for the occasion; they looked rather as if they had popped out to the convenience store on a lazy Sunday morning to get something they had just run out of. Like most of the contemporary population most of the time, they looked a mess. It is probable that the defense would have objected to a juror who looked too well-dressed.

Usually on any jury, though, there are one or two jurors who take notes with fierce concentration; I presume they dominate or prevail upon their fellow-jurors in the deliberations to come, though in this I may be mistaken, for even now no one knows what goes on the jury room. At any rate juries, at least in my experience, rarely pass verdicts that are patently absurd or fly in the face of the evidence. Somehow, despite the fact that juries nowadays almost always contain people with attention deficit disorder, the terminally bored, flibbertigibbets, the drugged, the plainly idiotic, the too-young-to-care, the dreamers and the incapable (among others), they arrive at a sensible conclusion. In a way it is not only surprising, it is inspiring.

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Breivik’s 21 Years

The judges in the case of Anders Breivik, the young Norwegian who murdered 77 of his compatriots supposedly in protest against his country’s social and political policies (thus creating more victims per head of population in Norway than did the September 11th bombers in America), found him to have been fully responsible for his actions, and sentenced him to imprisonment as an ‘ordinary’ criminal. They did not yield to what must have been a strong temptation to accept the following specious bar-room syllogism:

No one but a madman would have killed 77 people.

Breivik killed 77 people.

Therefore Breivik was mad.

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