We Jail When Families Fail

If you represent a client who is found guilty and goes to jail, the first thing that happens is that you return to your office. You have a few moments together. Then the chasers come with cuffs in hand and take your client so that he can begin serving his time.

For anyone who has observed the sudden passage between liberty and confinement, the experience is deeply affecting. But one need not be a part of our criminal justice system to take pause that 2.38 million Americans are currently behind bars. To illustrate the magnitude of this figure, consider that America’s jails have a greater population than do sixteen states.

A recent initiative by Senator Jim Webb’s (D. VA) seeks to reduce the U.S.’s high incarceration rates. The senator’s bill (a summary of which can be found here) creates a blue-ribbon commission directed to find ways to ensure public safety other than incarceration.

For Webb, the central point behind his initiative is that the high number of Americans in jail must have one of two causes. Either we are worse than people in other countries or we put too many people behind bars. Given these choices, he naturally sides with the second.

Webb’s argument is that we are sending certain offenders to jail who have no business being there. In particular, he seeks to keep non-violent drug offenders from crowding our prisons. It would be helpful, however, for the commission to study how many of these inmates pled guilty to drug possession in return for the dismissal of other drug, or non-drug, related charges. Webb is also concerned with the high number of mentally-ill inmates, suggesting that the proper response to this class of prisoners should be treatment rather than confinement.

My own view is that the senator is correct on at least one point. We can deter crime without imprisoning millions of convicts. During New York’s dramatic crime drop, for instance, the state’s incarcerated population fell.

The example of New York shows that where it is possible to ensure public safety without imprisonment we should seize the obvious invitation. Still shunning imprisonment alone is not the whole solution. Rather, crime should be looked at as a failure of local government. An important focus of Webb’s commission, therefore, should be to study the extent to which our federal prisons are full because states have been preempted from prosecuting certain offenses by the federalization of local criminal activity.

Indeed, the level of policing required to protect the public’s safety ought to be handled at the lowest possible level. As a military veteran, who served in Vietnam and went on to become President Reagan’s Secretary of the Navy, Senator Webb is no doubt aware of the primary responsibility of communities to police their own. The military – whose justice system the senator singles out for praise – has successfully contained illegal drug use through a policy of local enforcement. At frequent intervals, service members are randomly tested for use of any controlled substance. These systematic tests, carried out at the unit level, make effective the Department of Defense’s zero tolerance policy for drug use.

The principle of local responsibility does not mean that states should have a monopoly on criminal justice. Nowhere in the promotional materials is Senator Webb’s blue-ribbon commission encouraged to study the documented link between family breakdown and high crime rates. Of course, the role of the federal government should remain limited. But any study group focused on analyzing crime rates across the United States should focus on the roots of the problem, including that children raised in two-parent homes are far less likely to engage in criminal activity.

The linkage between family breakdown and crime goes also to the issue of equality. America, throughout its history, has balanced liberty and equality by understanding that each is necessary for the other. Liberty is compromised when artificial distinctions are used to privilege one class of citizens against another.

But beyond merely stripping away artificial distinctions, it is necessary to ensure from the start that all people have the same opportunity to succeed. The discipline that parents provide may not always be appreciated. But when parents are not present, the lessons that were once learned at home are taught by increasingly more distant authority figures. Standing before a judge cannot be the first time that anyone realizes that as social beings our happiness depends on our getting along with those around us.