Foreword: Criminal Justice Responses to the Economic Crisis

• Publication year: 2010

Georgia State University Law Review

Volume 28 . „

Article 2

Issue 4 Summer 2012

4-3-2013

Foreword: Criminal Justice Responses to the Economic Crisis

Caren Myers Morrison

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Recommended Citation

Morrison, Caren Myers (2011) "Foreword: Criminal Justice Responses to the Economic Crisis," Georgia State University Law Review: Vol. 28: Iss. 4, Article 2.

Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss4/2

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FOREWORD: CRIMINAL JUSTICE RESPONSES TO THE ECONOMIC CRISIS

Caren Myers Morrison

"Epidemics seldom end with miracle cures. . . . 'Merely chipping away at the problem around the edges' is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart."¹

The rate of incarceration in the United States has reached epidemic proportions.² While this fact is well known, the comparators still have the power to shock: there are "more African Americans under correctional control today—in prison or jail, on probation or parole— than were enslaved in 1850,"³ the United States keeps over 80,000 inmates in solitary confinement,⁴ and there are more people incarcerated in the United States today than in the Stalinist gulags at their height in 1953.⁵ This has come at significant financial cost: State prison expenditures have increased from $2.8 billion to $50 billion over the past 30 years.⁶ The bulk of these increases are due to

Assistant Professor, Georgia State University College of Law. My thanks to the Law Review staff and, in particular, to the Symposium editors, Mary Ellen Lighthiser and Jennifer Frazier West, for their hard work and attention to detail in putting together an excellent program.

1. Adam Gopnik, The Caging of America, New Yorker (Jan. 30, 2012), available at http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik.

2. Since the late 1970s, the number of inmates in American prisons and jails increased from 300,000 to a peak of approximately 2.3 million in 2008. See Pew Center on the States, One in 100: Behind Bars in America 2008, at 5 (2008), http://www.pewstates.org/uploadedFiles/PCS_Assets/2008/one%20in%20100.pdf [hereinafter Pew Center Report]. The numbers of people incarcerated in state and federal prisons and local jails have declined slightly since the high of 2,308,400 in 2008 to 2,266,800 in 2010. See U.S. Dept. of Justice, Correctional Population in the United States, 2010, at 3 (Dec. 2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf.

3. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 175 (2010).

4. See Angela Browne et al., Prisons Within Prisons: The Use of Segregation Within the United States, 24 Fed. Sent'g Rep. 46, 46 (2011) (noting that, as of 2005, there were 81,622 prisoners in solitary confinement).

5 . See Gopnik, supra note 1.

6. Marshall Clement et al., The National Summit on Justice Reinvestment and Public Safety: Addressing Recidivism, Crime, and Corrections Spending 16 (Jan. 2011), http://justicereinvestment.org/summit/report [hereinafter Justice Reinvestment Report]. Together,

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policy choices, particularly at the prosecutorial and local level, that send more violators to prison, and to a lesser extent, to innovations such as three strikes laws, mandatory minimums and other sentencing enhancements that keep them there longer.⁷

Worse, our country's insatiable appetite for incarceration feeds on itself. Mass incarceration has been likened to a disease that is itself criminogenic, as "[v]ery high rates of imprisonment concentrated in specific communities cause social disorganization, undermining the normal social controls of family and community that are the best (and most natural) guarantors of good behavior."⁸ The enormous socials costs inflicted by high incarceration rates tend to be focused on particular communities; those that suffer from the highest crime rates end up having high proportions of their population incarcerated, further destabilizing the community and leading to more crime and thus more incarceration.⁹ And corrections spending also competes with the funding states need to devote to other programs that could reduce crime in the long run, such as early childhood education.¹⁰

But the global financial crisis has forced the country to confront the fact that these choices have become unsustainable. At a time when states are facing severe budget shortfalls, and some municipalities have even filed for bankruptcy,¹¹ states can no longer

federal, state, and local governments spent $69 billion on corrections in 2006. Linh Vuong et al., The Extravagance of Imprisonment Revisited, 94 Judicature 70, 71 (2010). Even adjusted for inflation, modern prison expenditures are 4.5 times what they were 30 years ago. See John F. Pfaff, The Durability ofPrison Populations, 2010 U. Chi. Legal F. 73, 76-77 (2010).

7. See, e.g., Ewing v. California, 538 U.S. 11 (2003) (upholding sentence of 25 years to life for defendant convicted of stealing three golf clubs, priced at $399 each, under California's "Three Strikes" law).

8. Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America 106 (2011).

9. See Sharon Dolovitch, Foreword: Incarceration American-Style, 3 Harv. L. & Pol'y Rev. 237, 241 (2009) (noting that mass incarceration "operates to create a class of permanently marginalized and degraded noncitizens, marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control").

10. Pew Center Report, supra note 2, at 16.

11. See, e.g., Mary Williams Walsh, Alabama Governor Fails to Prevent County's Record $4 Billion Bankruptcy Filing, N.Y. Times, Nov. 9, 2011, available at http://www.nytimes.com/2011/11/10/us/alabama-governor-fails-to-prevent-jefferson-countys-record-4-billion-bankruptcy-filing.html; Sabrina Tavernise, City Council in Harrisburg Files Petition of Bankruptcy, N.Y. Times (Oct. 12, 2011), available at http://www.nytimes.com/2011/10/13/us/harrisburg-pennsylvania-files-for-bankruptcy.html.

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afford to house so many prisoners. The Supreme Court's decision in Brown v. Plata, which held that the overcrowding in California's prisons was so severe that it violated the cruel and unusual punishments clause of the Eighth Amendment,¹² was the most public recognition yet that the situation was untenable.

The economic crisis has forced legislators and government officials to face issues that they had previously...