Mass Incarceration and Overcriminalization in Today's America

”Our criminal justice system is not as smart as it should be” and ”Mass incarceration makes our entire country worse off, and we need to do something about it” is what President Obama declared in 2015. Now, in 2020, five years later, despite all the changes the President did to reform the legal system, there still are different problems about it in the American society. The Improper use of prison for minor, petty offenses and the excessive use of pre-trial detention in the US is a hotly debated topic that often divides opinion, in fact as a result of this situation, in the last years, we have discovered phenomena like mass incarceration and prison overcrowding. Regardless of the high incarceration rate may seem an insignificant factor, it has a truly relevant role that nobody should undervalue.

Currently, the USA has the highest incarceration rate in the world, beating out much larger countries like China and India, and more totalitarian ones like Russia and the Philippines. As reported by the statistics, more than 2.12 million people are right now behind the bars, in national prisons and jails. This situation seems to be worrying in particular because the number of prisoners has quadrupled, from only 500,000 in 1980, but also because despite the United States represents about 4.4 percent of the world’s population, the country houses 25 percent of the world’s prison population.

we are dealing with an extremely relevant phenomenon, in fact, we know that the high incarceration in the last years has spread out. According to the Vera Institute of Justice, the statistics overwhelmingly demonstrate that the US has an enormous prison problem since most of the people are jailed for minor infringements such as driving with a suspended license, public intoxication, or shoplifting.

What caused mass incarceration? One of the main reasons is the Crime Bill of 1994, written by Joe Biden and proposed by President Clinton to the Congress. The Crime Bill aimed to solve street crime, which in the 1960s became a national political issue. Furthermore, this decree put key provisions in every field of the juridical system and imposed strict punishments on the people that violated the law. It implemented many things including the” three strikes” mandatory life sentence for repeat offenders. After the enactment of the Crime Bill, the US assisted in a general boom of imprisonment and to the start of an era of exceptional punitiveness. For the implementation of this legal project, over $30 billion were spent. Clinton increased the funds to build prisons and hired about 100,000 additional police officers, as a result of this situation the number of incarcerations increased drastically.

From an international point of view, there is a correlation between human rights and mass incarceration, in particular, the U.N. Human rights Council encouraged the United States to solve the problem of Incarceration that evidences different problems including racial disparities.

A really interesting document is the first-ever U.N. Report on mass incarceration, it focuses on outlining the problems of this particular phenomenon and bringing global attention to the negative impact of the mass-incarceration on the enjoyment of human rights. The human rights-based approach to criminal justice focuses on” crime prevention and rehabilitation efforts: behavioural therapy, intensive treatment for mental health and substance abuse, and preventive programs can deliver crime reduction without destroying lives and families.”

The mass incarceration is strictly tied to prison overcrowding, caused not only by an insufficient prison capacity but also by a high proportion of people that have not been convicted yet, that are over two-third of all the inmates in local jails. Over the last 30 years, the number of federal laws on the books has almost doubled; this is due to criminalization, a rising problem, it consists of an over-use or a misuse of the criminal law, that generally leads to criminalizing too much and punishing to many. This modern-day phenomenon is caused by an excessive number of laws and regulations that transformed America into an over-policed country.

The 8th Amendment of the American Constitution has an essential role in the phenomena above mentioned, it limits the federal government from imposing harsh penalties on criminal defendants. Moreover, it affirms that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. Unfortunately, different elements demonstrate that there is not a real implementation of this amendment in real life, as a matter of fact, we can evidence discrepancies between legal reality and objective reality. These differences became even more noticeable analysing the incarceration rate of the US and the 8th Amendment side by side.

Different legal cases like Brown v. Plata are perfect examples of trials against mass incarceration and prison overcrowding. In this particular case, the US Supreme Court ordered the state of California to reduce its prison population by approximately 40,000 felons or to find another way by which to achieve a 137 percent of design capacity, within two years. The essential problem of this case was the prison overcrowding in California’s prisons. At the time of the US supreme court’s decision, the situation of overcrowding was uncontrolled and, in fact, as a consequence, the primary cause of the inmates’ inadequate medical and mental care, violating in this way the inmates’ Eighth Amendment rights. Other interesting legal cases are Graham v. Florida and Sullivan v. Florida, both cases show a” cruel and unusual punishment” to sentencing juveniles, differently to what provides the Eight amendment. The amicus brief exhorts the U.S. Supreme Court to evaluate global laws as indicators that life in prison without parole is indecent and is evaluated as an excessive punishment for juveniles under the age of 18. The United States is the only nation in the world that imposes sentences of life without parole against juveniles.

These legal phenomena have a severe, negative bearing on the whole American society. The issues, in fact not just regard the individuals that have to spend time in prison or jail, but it involves also other fields like the communities, in ways that scholars are just starting to explore.

Firstly, because it causes various psychological effects to the prisoners of the inmates. Some prisoners are in fact, plagued with Post Incarceration Syndrome and in general with mental health disorders.

Secondly, because it has a major effect on community health and well-being, and in particular to the poorest families. But these problems do not regard only the health but also the social impact.

Thirdly, because of the high impact on the American economic system, mass incarceration costs approximately, $182 Billion every year. This economic impact interested as well families, in fact, children that lose even one parent because of the incarceration risk to grow up in a condition of poverty.

To solve all these legal issues, we need to reconfigure the incarceration law. This modification could also help us to facilitate judicial oversight and to convert the law into a more logical and fairer towards the citizens. Another reason to reconfigure this system is the existence of countless criminal acts, these acts in the US Legal system are many more than we can imagine, and as a result, we obtain disorder caused by the multiplicity of laws. Such a tough problem may lead people to an innocent and inadvertent violation of the rules and a more complicated and insidious understanding of these by the citizens.

For what concerns the efficiency of the laws, one of the most debated laws is the three-strikes law, this law consists of the application of a life-sentence condemnation when a person reaches three felonies.

To explain this law in a clearer light we might equate it to the baseball term “three strikes and you’re out” in fact, a baseball strike happens when the batter swings at the ball and misses, or more in general when the ball reaching the 'strike zone'. When the batter gets three strikes, we can say that the baseball team is “out”, the same thing happens in the legal field when a person reaches three felonies, we can say doubtless that he/ she is “out” or more specifically “out of the society”, behind the bars of a prison. The three-strike law was enacted in pursuance of limit recidivism, the tendency of a criminal to repeat an undesirable behaviour. At first glance, the law could seem to be a positive idea to discourage crime, but differently to how things appear, it does not work.

The evidence does not support the three-strikes law, this is due to the fact that law does not work as a deterrent against crime, there is not a real efficiency of it, but instead, it significantly increases the punishments as numerous analyses have shown.

The three-strikes law presents a well-evident dilemma that consists primarily of the fact that people with three non-violent felonies can qualify for such a harsh penalty. Researchers of the Stanford Law School have shown that more than 4,000 inmates in California were serving life sentences for nonviolent offenses under the three-strikes law.

Second of all, it may not always work efficiently to limit the violations of crime, as Community change asserts, “these laws encourage punishment rather than healing, and the vague wording surrounding them criminalizes far more people than is just”. In the aftermath, we obtain the already mentioned problem of mass incarceration, which has grown dramatically during the passing of the time, there is been an increase of 500% over the last forty years.

The legal reasonableness is generally related to constitutional texts, it has a prominent role because it intends to reconcile normative reasons with concrete needs. In the US, reasonableness is a prerequisite for the judicial review of fundamental rights, but sometimes, we may find an evident discrepancy between the American constitution and legal reasonableness.

In this case, this discrepancy is particularly evident as the mass incarceration phenomenon is constantly debated, especially by the ethical and philosophical approach.

Except for the eighth amendment that “prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments” no other constitutional laws, even indirectly aims to limit the US’ characteristic problem.

The most relevant issue consists in the fact that the US is substantially a system without penalty gradations, which is also denoted for its penalties which are usually mass corporal punishment and execute spectacles, intended to discourage offense before it happened.

To summarize, the Eighth Amendment is the final work against state-sanctioned tyranny. Nevertheless, the only decisive solution to this critical situation may be excluding cruel and unusual punishment, indispensable for the maintenance of a liberal democracy. In the last years, researchers have conducted numerous researches directed to discover the actual impact of the law in California and the whole country, as a result, evidence has shown that the effectiveness of the law is something uncertain.

Different ideas have been formulated to solve the problem of mass incarceration. Some ideas could be: reducing the use of jails, reducing sentence minimums and maximums currently on the book, eliminate the “three strikes law” and all the other policies that not only have an impact that is too strong on the offender but also that limits the power of the judges and renders his/her role on taking decisions nearly superfluous. Of course, there is not a simple way to solve this situation, most of all we need time and research to propose a better idea to improve the legal system. Some politicians have started to promote a smart justice-oriented vision to reject the 1994 crime bill for the sake of creating a better and well-ordered society.

In conclusion, mass imprisonment and overcriminalization are two of the most widely debated issues. These factors should not be underestimated, even because they represent an integral part of our society. What we can do to create someday a better a well-ordered society is to give value to these components and in general to the issues that characterize today’s America, but always keeping in mind the amendments of the American Constitution.