Justice Overwhelmed Is Justice Denied

I don't teach Criminal Law. I've never practiced criminal law. But it doesn't take much expertise to suspect that our criminal justice system is disastrously flawed. Stories like this one are, I fear, too routine. The hell of it is, large parts of the system are full of well-meaning people. Not all of them—no system is—but even so. The problems are, I think, systemic more than anything else.

Here in Florida, as in much of the nation, we have a prison-building craze; meanwhile, the United States already leads the world in the percentage of its population behind bars. According the Justice Dept. there were 2,019,234 people incarcerated last April. It's probably more now. And let's not even get into the racial composition of the prison population, or the racial (and electoral) consequences of felony convictions.

The callousness of the justice system is in some part—although how big a part is a nice question—a result of its being overloaded and under-funded. And while throwing more money at the problem might improve the job prospects for graduating law students, something I am generally in favor of, I don't think that there is any chance this state, or this nation, would spend what it would take.

The US is a diverse, mobile, multi-cultural society. Those are among its strengths. As a result of these properties, however, it probably lacks some traditional means of inspiring self-regulation and order among its citizens that exist in those increasingly rare homogenous nations with strong national traditions governing public and private behavior. Indeed, the US is composed of citizens who probably don't all share the same exact idea of what that regulation and order should look like. In those circumstances, I'm prepared to believe that the US may need to regulate through crime more than might otherwise be necessary in, say, Japan.

But not this much.

The choices are inescapable: either we live with a broken system, or fund the system, or take some of the strains off the system. The first is likely, but horrible. The second is unlikely and would probably mean de-funding something else that we need. So I'm tentatively persuaded that we need to investigate the third option. That means a painful conversation about which things we currently call crimes might be taken off the statute books. And what sort of investments other than in new prisons (schools! teachers! schools! teachers!) might make the taxpaying life seem more realistic and attractive to the young people who commit a disproportionate share of violent crime.

If the deal were, decriminalize all so-called victimless crime (drugs, mainly), spend part of the savings on schools and teachers, and part on having more cops walking dangerous streets to make them safe enough for old people to walk without fear, I'd take it in a minute. But no one is offering me that deal. It may be because drug laws are the true third rail of politics. Or, it may be that the problems go a lot deeper, and that wouldn't be enough. OK, now I do need an expert…

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