Incarceration Nation

Professor Paul Butler penned an opinion piece for the New York Times this week, Gideon's Muted Trumpet, where he traces the history of incarceration in the United States since the Gideon v. Wainwright case was decided fifty years ago.  Essentially, Gideon guarantees that a poor person will be given access to a lawyer when charged with a serious crime.  Often the Miranda warning, repeated on a loop in television police dramas, comes to mind when thinking about Gideon's guarantee of legal representation (i.e., You have the right to remain silent . . .  You have the right to an attorney.  If you cannot afford an attorney, one will be provided for you . . .).  But what has this guarantee wrought after fifty years? 

Per Butler:  "A poor person has a much greater chance of being incarcerated now than when Gideon was decided, 50 years ago . . . . This is not because of increased criminality — violent crime has plunged from its peak in the early 1990s — but because of prosecutorial policies that essentially target the poor and relegate their lawyers to negotiating guilty pleas, rather than mounting a defense."

Butler's op-ed discusses the underrecognized problem of prosecutorial discretion, which infuses an enormous amount of power in the men and women that prosecute federal and state crimes in the U.S.  Butler writes:  "The so-called war on crime greatly expanded criminal liability. A prosecutor can almost always find some charge: there are over 4,000 crimes on the federal books alone. Recreational drug use is one of the more popular activities in America, but racial minorities suffer the brunt of drug-related convictions.  In part because of federal grants to states to incarcerate drug offenders, the United States experienced the largest increase in incarceration in the history of the free world. Our population is less than 5 percent of the world’s but we have nearly 25 percent of its prisoners. When Gideon was decided, about 43 percent of defendants were indigent. Now, over 80 percent are."

The United States continues to wage an internal war against its own citizens, particularly if a U.S. citizen happens to be poor and minority.  It is simply the easiest way to appear tough on crime and to fill our nation's prisons, increasingly operated by private prison corporations for profit.