The U.S. Department of Justice reported in April that the incarcerated population of the United States has topped two million—men, women and yes, children too. Drug offenses account for a large proportion of those currently behind bars. Even low-level drug offenders regularly receive long sentences because of the mandatory minimum provisions of both state and federal statutes. The United States now has the largest per capita rate of incarceration of any industrialized country in the world. This is indeed a strangely unwelcome distinction for a country that prides itself on its commitment to freedom and justice for all.
The same report notes that a staggering 12 percent of young black men between the ages of 20 and 29 are behind bars—more than ever before in the history of the United States. This astonishing rate is seven times the rate for white men in the same age bracket. African Americans and Hispanics also represent a disproportionate segment of females sentenced for drug offenses. The racial disparity extends to the use of capital punishment. In 1990 the U.S. General Accounting Office acknowledged that those who murdered whites were more likely to be sentenced to death than those who murdered blacks.
Not just prisoners themselves, but their families too are negatively affected by the severity and racial implications of penal sanctions. One provision of the welfare reform act of 1996, for example, stipulates a lifetime ban on welfare benefits for offenders convicted of drug felonies, even after they have served their time. Separate legislation prohibits their living in public housing. The benefits ban penalizes not only those who are parents, but their offspring as well. The Sentencing Project, based in Washington, D.C., has estimated that 135,000 children nationwide are subject to the provision that denies access to both food stamps and cash benefits. Ironically, ex-offenders guilty of far more serious offenses, like homicide, remain fully eligible for welfare cash benefits and food stamps throughout their lives.
Children suffer at the hands of our court system in other ways too. When accused of serious crimes, more and more of them are being tried in adult courts and held in adult facilities, where they face greater danger of physical and sexual assaults than they would in juvenile facilities. Their suicide rates in adult surroundings are correspondingly higher. Even at the trial level, they are at a disadvantage, because many lack the ability to understand proceedings that will affect many years of their lives. A study published in March by the Research Network on Adolescent Development and Juvenile Justice found that legal awareness among a third of children between the ages of 11 and 13 was equivalent to that of mentally ill adults who had been found incompetent to stand trial. Yet, the study notes, close to a quarter of a million of these children are charged as adults each year.
Only within the last 12 months did the Supreme Court rule that mentally ill capital defendants cannot be put to death. Juveniles have been less fortunate. In January the same court stepped away from making a similar ruling in regard to juveniles found guilty of committing capital crimes when they were 16 or 17 years of age. To their credit, four of the nine justices called the death penalty for juveniles “a shameful practice...inconsistent with evolving standards of decency in a civilized society.” The United States thus remains one of the few nations in the world to permit the execution of juveniles. As the Death Penalty Information Center in Washington, D.C., points out, condemning juvenile offenders to death has become “a uniquely American practice.”
The overall outlook for men, women and children remains dark. Since much of the increase in incarceration rates is a consequence of mandatory minimum sentences required by drug laws, one step toward reducing the prison population could be taken by doing away with mandatory sentences. Some leaders do favor this. Michigan’s former governor, for example, the Republican John Engler, signed into law last year legislation that eliminated most of the state’s mandatory drug laws, replacing them with sentencing guidelines. Another needed change is the elimination of lifetime prohibitions against those with drug felony convictions from receiving welfare benefits and food stamps and from living in public housing. Greater opportunities for education and jobs would be an incentive for many poor urban residents to abstain from criminal activity. Such incentives would not only be more Christian; they would be more effective.
So far, however, our approach to criminal justice has been more punitive than it has been preventive. The social and fiscal costs have been correspondingly great.