Jim Webb on the Incarceration Crisis

Cross-posted at Raising Kaine

This comes a little late, but a week ago Senator Jim Webb was on the ABC show This Week with George Stephanopolous and said something which took me by delighted surprise.

We've -- this is a chance to put a lot of issues on the table. One of the issues which never comes up in campaigns but it's an issue that's tearing this country apart is this whole notion of our criminal justice system, how many people are in our criminal justice system more -- I think we have two million people incarcerated in this country right now and that's an issue that's going to take two or three years to try to get to the bottom of and that's where I want to put my energy.

Yesterday I had the chance to thank Senator Webb in person for bringing up this virtually invisible issue at Brian Moran's pancake breakfast and told him how grateful I am as a criminal defense attorney to see a United States Senator calling attention to this enormous crisis. He immediately (and impressively) off the top of his head started reciting the facts and figures of incarceration and expressed dismay that an entire segment of our sociey, the young black male, is growing up incarcerated or under court supervision. He said "it's terrible that you can make a mistake when you're 18 years old and have it follow you around for the rest of your life. We have to change that." He added that this issue is as important as the war and economic fairness. For information on some of those facts and figures see this New York Times article Plight Deepens for Black Men, Studies Warn

Senator Webb mentioned an article he wrote for Parade Magazine in 1984 on the Japanese prison system. What We Can Learn From Japanese Prisons. While I would never endorse the Japanese practice of interrogating prisoners and having them sign confessions without a lawyer present, we could learn something from the Japanese sense of fairness and honesty in dealing with prisoners. An American former prisoner told Webb

he prefers Japan's legal system to ours. Why? "Because it's fair," he says. "They never tried to trick me, even in interrogation. They were always trustworthy. I could have got five years and they gave me two. The Americans who were helping them wanted me to get 20. The guards at Fuchu were hard, but they never messed with you unless there was a reason. You didn't have to worry about the other prisoners coming after you, either. And the laws of Japan are for everybody. That's the main thing. The laws in this country depend on how much you can pay. I'd rather live under a hard system that's fair."

Having represented dozens of people suckered by detectives and private security personnel into confessing, usually on the promise of release or of lenient treatment, I say a change would do the entire system good. The bitter fact is that the police lie. They lie all the time. Their lying is trained into them at the academy and accepted by the courts with nary an eyelash batted. They lie about the evidence; they lie about the statements of suspected co-defendants; they lie about the legal effect of a conviction; they lie about their power to affect the outcome of the case once it has gone to the prosecutor. Having been forbidden to use force on criminal suspects they resort instead to interrogation techniques designed to elicit confessions, but not necessarily the truth, and they have little understanding of just how their techniques can in fact result in injustice. It is the poor and uneducated who are most susceptible to these techniques, which can account at least in part for the feeling among many of my young, poor, uneducated, and minority clients that their involvement with the system is an inevitability, perhaps even a rite of passage. Moreover, there is a sense among them that the only difference between their dishonest approach to life and the government's is that the government has power and that is why cops can lie to get what they want while the suspect is punished.

On top of this is the acceptance within our society of brutality and rape of prisoners within our prison system. People talk of such things with a smile and a wink instead of as the appalling thing it is.

Added to this are the extraordinary rates of incarceration, often for decades, for crimes which often involve only dishonesty or non-violent drug offenses. I asked Senator Webb to look into the skewed results produced by mandatory minimum sentencing in which all the power rests with the prosecutor - who chooses what charges to bring against defendants in order to bring about particular dispositions - and reduces the judges to mere clerks imposing sentences based on worksheet calculations.

I asked the Senator to consider the problems of the mentally ill. Few services are available for the mentally ill and they are often incarcerated for crimes committed while in the grip of their delusions or their compulsions. Many of them have fallen through the cracks and are off their medications when they commit their crimes. Don't get me started on how much of this is related to unavailability of mental health treatment services even in so-called "good" health benefit plans. We are warehousing the mentally ill in our jails and prisons.

Last, in a zero-tolerance state like Virginia, where possession of any drug but marijuana is a felony, I have seen long time resident aliens and undocumented aliens either deported for their drug felonies (one ecstasy pill is all it takes for a felony conviction) or denied the ability to apply for citizenship because of their status as felons. Senator Webb replied that he hopes some day soon to hold hearings on this issue and I wished him success.

Looking back, I realize I piled a lot on his plate in a two minute conversation, but at least he's willing to pay attention to this crisis. Once again, thank goodness that Jim Webb won that election instead of George Allen.