Reforming the CAN WE BALANCE SOCIAL JUSTICE WITH LEGAL JUSTICE? Incarceration Nation Norm R. Allen, Jr.

marily on legal justice are often unconcerned with—and, in bout two million people are currently incarcerat- some cases, opposed to—social justice. ed in the United States, a fact from which various But why must legal justice and social justice be mutually A observers have drawn widely varied inferences. exclusive? Why should people's politics determine the kinds of Some believe that, because a disproportionately high number justice they will support or oppose? It is only fair—indeed, of prisoners are poor African Americans and Latinos, the just—that people strive for a single standard of justice when- "prison/industrial complex" is part of a racist conspiracy to ever the subject of justice arises. oppress non-Whites and to further enrich the wealthy. Others, unconcerned about the huge prison population, simply accept INCARCERATION AND RACE that large numbers of criminals require large numbers of pris- A principal consequence of America's War on Drugs has been ons to contain them—regardless of the criminals' background a sharp increase in the U.S. prison population. During the or color. People whose main concern is social justice often Reagan and Bush administrations of the 1980s, Congress have little interest in—and may even oppose—efforts to bring established harsher penalties for drug dealers and gave about strictly legal justice. Meanwhile those who focus pri- broader powers to law enforcement. The government spent billions to combat the drug scourge. In 1986, Congress man- Norm R. Allen, Jr. is executive director of African Americans dated significantly longer prison sentences for people convict- for Hionan ism. ed of possessing crack cocaine than for those possessing cocaine in the powdered form. Because most crack users were Black, many within—and outside—the African American com- munity believed the laws were part of a racist conspiracy to imprison Blacks. In truth, however, many Blacks supported these laws—including the Congressional Black Caucus. Black neighborhoods were being terrorized in violent crack wars nationwide. Lawmakers from all backgrounds felt extreme measures were needed to save Black neighborhoods. The conclusion seems inescapable: Blacks and Whites have identified Blacks as the main targets of the War on Drugs. According to a report issued by Human Rights Watch, a non- governmental organization that monitors human rights abus- es worldwide, Blacks account for 62.7 percent of all drug offenders sent to state prison. Whites account for just 36.7 per- cent. Yet according to the U.S. Department of Health and Human Services' Substance Abuse and Mental Health Services Administration (SAMHSA), there are five times as many White drug users as Black. Another SAMHSA survey found that drug users most often buy drugs from dealers of their own racial or ethnic group. Between 1991 and 1993, SAMHSA researchers found that 16 percent of admitted drug dealers were Black and 82 percent were White—a ratio radi- cally at odds with the racial makeup of the population impris- oned on drug offenses. Clearly, the War on Drugs is largely a war on Blacks. Social justice advocates argue that it is unfair to imprison vast numbers of poor, Black criminals, in part because such offenders cannot afford criminal lawyers capable of mounting a competent defense. Many liberals and radicals further main-

free inquiry http://www.secularhumanism.org HUMANISM AND THE DEATH PENALTY

tain that poor Blacks who break the law are victims of an give inner-city non-Whites improved access to the suburbs. unjust, racist society that leaves them few viable options. On Indeed, getting to and from work can be downright deadly for this view offenders from highly disadvantaged backgrounds the inner-city poor. In 1995, Cynthia Wiggins, a Black teenage- should be viewed more as victims than as criminals. mother from Buffalo, New York, was struck by a truck as she But what does it mean for this view when the supposed vic- tried to cross a busy intersection. She later died of her injuries. tims become violent criminal victimizers? Are their victims Wiggins was trying to get to work at the Walden Galleria, a mall entitled to legal justice? Or should society exonerate poor criminals in the name of social justice without "Under Old Testament morality, disobedient regard to victims' plight? Should any- one other than the victim or the vic- children do not have to worry about tim's loved ones have the right to for- serving life in prison, but their give the victimizer? To social justice advocates, reha- parents may have them stoned to death!" bilitation, not retribution, should be the goal of the justice system. But these, too, need not be mutu- located in Cheektowaga, a Buffalo suburb. At the time, buses ally exclusive alternatives. It is certainly important to guard from the city were not allowed on mall property. After Wiggins's against cruel and unusual punishment. To dispense with pun- death, mall owners permitted buses to enter. (Since then, more ishment altogether, however, would be an unwitting call for blacks have been hired at the mall). Eventually, famed attorney vigilante or "street" justice. Every society must give its citi- Johnnie Cochran helped to win a multimillion-dollar wrongful zens hope that they can turn to their legal system for justice. death suit in favor of Wiggins's family. The implications of all this for ex-convicts are stark. When THE CAUSES OF CRIME reentering society, their first priority will be finding work. But What are the root causes of crime? On the conservative employers often refuse to hire job applicants with criminal Christian view, Satan tempts fallible human beings to commit records. Yet, if ex-convicts cannot find employment, they are evil acts and only God can save them. Therefore spirituality is far more likely to return to crime. Hardliners may argue that the answer to the crime problem. This simplistic view fails, former convicts should have thought about the consequences largely because it shifts the ultimate responsibility for crime of their actions before they committed the criminal acts that from the individual and society to beings for whom there is no caused their imprisonment. But if ex-cons cannot find gainful clear evidence. If God created Satan or allows Satan to exist, employment, society will continue to suffer under the burdens God is ultimately responsible for crime, though Satan is set up of spiraling crime and the taxes to pay for recidivists' re- as the fall guy. (And if God is responsible for crime, what can imprisonment. any human justice system hope to do about it?) In reality, however, the causes of crime are very complex CHILDHOOD'S END? and multidimensional. A partial list of the factors leading to Observers from across the ideological spectrum are exasper- crime would have to include all of the following: poverty, lack ated by heinous crimes committed by youthful offenders. of opportunity, desperation, substance abuse, fear, greed, Increasingly, children charged with particularly violent and hatred, ambition, selfishness, loneliness, peer pressure, horrific crimes find themselves being tried as adults. The uncontrolled rage, lack of love, lack of ethical guidance, poor Justice Department reports that some 3,500 juveniles already parenting skills, family dysfunction, child abuse, violence in serve time in adult prisons. Moreover, the United States leads the home, a crassly materialistic culture, the glamorization of the world in putting juveniles to death, a practice outlawed in violence in the popular culture, and easy access to guns. nearly every other nation. In forty-seven states, lawmakers have made it easier to IS OPPORTUNITY THE ANTIDOTE? convict children as adults. For example, Florida prosecutors Social justice advocates believe the best way to reduce crime may try children of any age as adults when charged with is to bring about social and economic justice, primarily by crimes punishable by or death. They may reducing poverty and increasing opportunity. One way to also try children as young as fourteen as adults for arson, rob- reduce poverty is to create more jobs paying good wages. Yet bery, kidnapping, armed burglary, aggravated stalking, and most high-paying jobs supposedly require college degrees, other crimes. Florida resident fourteen-year-old Lionel Tate which many poor Americans are unable to attain. was sentenced to life in prison in the violent death of six-year- Traditionally, only a minority of citizens throughout society old Tiffany Eunick. The defense argued that the 170-pound boy has earned degrees. Moreover, if college education is not free, was merely imitating the moves of professional wrestlers, and as it is in some nations, the college-educated minority may that he killed the 48-pound girl by accident. Tiffany, however, continue to shrink. This could cause the crime rate to rise. had a fractured skull, a lacerated liver, and over thirty addi- Access to the workplace is an additional complication. tional injuries. Tate—who was twelve at the time of the Many more-desirable jobs are created in the suburbs rather death—was convicted of first-degree . Judge Joel than the inner cities. People from the inner cities often lack Lazarus denied a request to reduce the sentence to second- transportation. Making matters worse, suburban Whites fre- degree murder or manslaughter. He said that the beating was quently oppose public transport route expansions that would "cold, callous, and indescribably cruel."

http://www.secularhumanism.org f i summer 2001

Tate is one of the youngest defendants in U.S. history to chised even for minor offenses, or even if they had never been receive a life sentence. The prosecutor said that the sentence jailed or imprisoned. Many are disenfranchised for life—even was so extreme that he would support clemency. Defense after they have paid their debts to society. attorney Jim Lewis has appealed and asked Florida Governor The Sentencing Project is a nonprofit organization that Jeb Bush to lower the sentence. As of this writing, Bush is con- fights for sentencing reform and engages in scholarly research sidering clemency. Several famous attorneys, including in the area of criminal justice. With Human Rights Watch, the Cochran, have traveled to Florida to press for reduction in the group published a report titled "Losing the Vote: The Impact boy's sentence. of Felony Disenfranchisement Laws in the United States." The Ironically, a child convicted as an adult might get less time report—published in October 1998—pointed out many star- than if convicted as a juvenile. In Ohio, Oregon, Illinois, and tling inequities, including Minnesota, juveniles convicted as adults for some nonviolent • One and one-quarter million persons disenfranchised for crimes receive shorter sentences than those convicted of the a felony conviction are ex-offenders who have completed their same crimes as juveniles. criminal sentence. Another 1.4 million of the disenfranchised Everyone must be held accountable for his or her actions, are on probation or parole. (Only 27 percent of the disenfran- regardless of age. And, despite what many experts say to the chised are in prison.) contrary, at least some youthful offenders know exactly what • Thirty-six percent of the disenfranchised are Black men. they are doing. But every case is different. Some states have • Ten states disenfranchise more than one in five adult found creative, effective ways to combine juvenile and adult Black men; in seven of these states, one in four Black men are sentencing practices. A child might be convicted as an adult, Permanently disenfranchised. yet serve time in a facility for juveniles. If not successfully • Given current rates of incarceration, three in ten of the rehabilitated by the time of his or her majority, only then is the next generation of Black men will be disenfranchised at some offender transferred to the adult penal facility. point in their lifetime. In states with the most restrictive voting laws, 40 percent of African American men are likely to be per- FAITH IS NOT ENOUGH manently disenfranchised. Religion does not always have humane answers to modern • Many other countries let not only felons, but prisoners, problems. Though some religionists advocate progressive vote—including , Peru, Japan, Kenya, Israel, Norway, approaches to crime and punishment, in doing so they must , Poland, Denmark, Zimbabwe, Romania, and the disregard their own sacred texts. Typically scripture offers Czech republic. harshly primitive views on legal and social justice. The first— There is no good reason why prisoners should be forbidden or Old—Testament, for example, endorses a tit-for-tat, "eye- to vote, unless they have been convicted of election fraud or a for-an-eye" brand of justice. Moreover, the biblical death similar offense. Moreover, it is both irrational and uncon- penalty—stoning—is both cruel and unusual by contemporary scionable to deprive people of the right to vote after they have standards of justice. served their time. What better way to re-integrate ex-convicts The Bible was written at a time when society had no concep- into society than to grant them the internationally recognized tion of universal human rights. We see this clearly when we read, right to vote? for example, that if a man rapes a virgin he must buy her from her father for fifty shekels of silver and remain married to her A PLEA FOR JUSTICE UNSKEWED until one of them dies (Deuteronomy 22:28-29). Leaders must At the same time, critics who complain about lax treatment of stone people to death if they work on the Sabbath (Numbers criminals are not always in the wrong. Too often criminals 15:32-36). Innocent people are to be put to death because of the escape legal justice and rehabilitation by means of technicali- "sins" of their parents (2 Samuel 12:14). The Bible also com- ties, plea bargains, light sentences, ineffective "anger man- mands the death penalty for those who embrace different reli- agement" programs, errors by incompetent jurors, and the gions or practice astrology. Under Old Testament morality, dis- like. The guilty are then free to commit other crimes and to vic- obedient children do not have to worry about serving life in timize more innocent people. Law-abiding citizens richly prison, but their parents may have them stoned to death! deserve the right to live in safety, a right that must never be These notions of justice are not always relics of the past. In jeopardized or abandoned in the name of social justice. The some nations such as Iran, law enforcement officials still stone legitimate rights of victims must never be trampled upon in offenders to death. In Saudi Arabia, those convicted of theft misguided efforts to rationalize the crimes of the guilty. Just as may have their hands chopped off. These nations might have there is a need for prison reform, I would argue that there is a low crime rates, but the price paid in fear and inhumanity is corresponding need to reform and punish the guilty. grotesque. At the same time, those who would work for justice Social justice activists generally oppose harsh prison sen- worldwide must guard against both cultural chauvinism and tences. But they will work doggedly to send certain alleged cultural relativism. offenders to prison. For example, a civil rights worker might fight to imprison a cop charged with police brutality, or a per- FELONS AND DISENFRANCHISEMENT son or group charged with a hate crime. Yet this same civil The U.S. prison system has numerous failings. One of its most rights advocate might work to defend a poor inner-city male reprehensible is the denial of the right to vote to millions of caught in the act of murder. Similarly, a radical feminist might Americans. About four million people lack the right to vote work to free women convicted of violent crimes, yet work to because of felony convictions. Ex-felons may be disenfran- imprison a man accused of rape or sexual assault. In these

free inquiry http://www.secularhumanism.org D HUMANISM AND THE DEATH PENALTY

cases, social justice advocates often attempt to use the legal AN ISSUE OF LIP'h AND DEATH system to make a political point, rather than to seek true legal justice. In their eyes, "justice" simply means sending an But should the government be responsible for putting crimi- accused member of a particular group to prison—regardless nals to death? Seventy countries worldwide outlaw capital of whether the accused is innocent or guilty. An excellent punishment. So do twelve U.S. states and the District of example of this phenomenon was the Tawana Brawley rape Columbia. Across virtually the entire democratic world, the hoax in New York in the 1980s. Despite all evidence to the con- United States is regarded as incredibly reactionary where trary, civil rights advocates insisted that the teenager had the death penalty is concerned. In February, Felix Rohatyn, been raped, and destroyed the reputations of innocent people U.S. ambassador to France from 1997 to 2000, wrote in the in the process. Washington Post: "There is a strong belief among our When people strive to realize a single standard of justice in European allies that [the death penalty] has no place in a civ- every situation, such blunders are less likely. "No justice, no ilized society." peace" is not mere politically loaded rhetoric. It represents a is illegal under European and serious effort to be fair and to arrive at the truth. Canadian law. European and Canadian authorities will not return alleged criminals to nations where they could face the A HOPELESS PROPOSAL death penalty. For this reason, convicted killer Angela Davis, Minister Louis Farrakhan of the Nation of Ira Einhorn remains a free man in France, four years after his Islam (NOI), and others have suggested that Black prisoners capture. Likewise, James C. Kopp—who stands accused of be summarily released from the U.S. prison system. killing abortion provider Barnett A. Slepian—probably will not Farrakhan has suggested that he could take large numbers be extradited by French authorities unless the death penalty under his wing and ensure their rehabilitation. This unreal- is waived. istic and unworkable proposal strains credulity: NOI has a Near the time of Kopp's arrest, French President relatively small number of devotees (although it's said that addressed the U.N. Human Rights Com- no one knows the exact number, current estimates range mission in Geneva and supported "the universal abolition from five to twenty thousand), nowhere near enough to of the death penalty, with a first step being a general mora- assist the whole of the Black prison population. Further, the torium." American lawyers and lawmakers have made sim- vast majority of American Blacks are non-Muslim. Finally, ilar calls. government has no business remanding ex-cons into an There might be at least one good reason to administer the authoritarian, theocratic, patriarchal, and reactionary reli- death penalty. If an unrepentant first-degree murderer kills gious organization that influences anti-democratic leaders again while in prison, one could persuasively argue that prison worldwide. was not an effective deterrent for that murderer. Moreover, he However, there must be ways in which the prison popula- might escape and kill again. It would not be right to give him tion can at least be greatly reduced. There is a clear correla- more chances to kill. Generally, however, the death penalty is tion between unemployment and crime: the crime rate for unnecessary. Killing the murderer will never bring closure to employed Blacks is only slightly higher than that for employed the victim's family. Indeed, nothing can. They will be in mourn- whites. Yet the number of Black men attending college steadi- ing as long as they are of sound mind. Life in prison with no ly declines. About half as many Black men attend college as chance of parole, however, is a very harsh, though fair and Black women. Meanwhile, the prison/industrial complex con- humane, punishment. tinues to grow by leaps and bounds. Society would serve social It is time to take a comprehensive look at proposed solu- justice and realize enlightened self-interest by making educa- tions to crime and poverty. Social justice, economic justice, tion, and consequently gainful employment, more equitably and legal justice are all important. It is time to develop what available to all citizens. Robert Green Ingersoll called "a caring rationalism" in efforts to strive for true justice for every citizen in all the are- CRIME DOES PAY—FOR SOME nas of life. Before this can happen, American society must come to terms Conflict resolution programs, early-child intervention with businesses that benefit from the prison/industrial com- programs, crime prevention programs, mentoring pro- plex and hope to preserve the status quo. Although business- grams, stress management programs, moral education, es such as prison operating companies do not cause crime, it parenting classes, parental support programs, drug pre- is at least problematic when correction systems form dubious vention and rehabilitation programs, youth summits, and a partnerships with private enterprise. At the least, there is the host of other solutions have already demonstrated their appearance of impropriety that undermines faith in institu- effectiveness in reducing crime. Despite sensationalized tions when businesses thrive from and become dependent media accounts of violence, juvenile arrests in most cate- upon the incarceration of millions of citizens. It suggests that gories of violent crime have fallen in recent years. the government has decided to give up on serious efforts at Moreover, psychologists, scholars, and law enforcement crime prevention and rehabilitation, and settle for relying on officials agree in predicting an even sharper crime rate the private sector to warehouse criminals to the end of their decrease in the near future. days. That is not the message that government should send to Positive and creative thinking wedded to activism can con- the citizenry. The government, not private industry, should run tinue to make all the difference in the world. The role of the the nation's prisons. death penalty—if any—should be vanishingly small. f©

http://www.secularhumanism.org in summer 2001