Our cherished “Land of the Free” isn’t all it’s cracked up to be. The term is not reality, even if it is a fantastic aspiration.
Parts 1 & 2 Provide Context
As I pointed out in Part 1, we imprison more people than literally any other country, even countries we consider downright evil. In Part 2, I contend the problem begins at the top with irrational criminal justice policy based on false assumptions, debunked beliefs, and knee-jerk emotions for overcriminalization, rather than knowledge and information.
Even Supreme Court of the United States Justice Neil Gorsuch recently said during oral argument, “We live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some—under some state law“.
Between Policy and Punishment
In Part 3, I’ll provide an overview of what takes bad policy and turns it into incarceration. Police agencies, prosecutors, and courts implement public policy for criminal law in predictable and tragic ways. All are major parts of the overall so-called “criminal justice” process, and they operate within the irrational confines set by policy makers.
As a general rule, all three use whatever discretion they are allowed to impose greater enforcement and harsher punishment. Both need to have limitations placed on their discretion, even while recognizing some discretion is necessary, and those actors must exercise their discretion in more responsible ways.
Police Need More Tools
Police generally have few options at their disposal. They face a multitude of situations while performing their duties, from welfare checks to auto accidents, to drunk driving, to murder investigations. Their typical options are twofold: to arrest or not to arrest. Often, if police don’t want to arrest, they may have little more at their disposal. They may be left with no more than imploring people not to further misbehave, rather than to leave the officer no choice but to arrest. Beyond that proverbial hammer to handle every problem they encounter, the toolkit police have is largely bare.
No one should be expected to know how to handle every societal dysfunction in an expert manner, but we ask police to do exactly that. It’s not fair to them, not to the public. Their skill set it simply not suited for expertly handling the myriad circumstances they face.
For example, a loved one calling 911 for help with a self-harming person in a mental health crisis should not result in police injuring or killing the person in need of help. Obviously, a mental health professional on scene would be a far more intelligent approach to the immediate problem. Police could be on standby, in case violence is inevitable and no peaceful alternative is possible.
More Training Still Won’t Fix It
Educational requirements to become an officer are usually minimal, even though they vary considerably by agency. Expecting them to be excellent counselors in family violence situations, bereavement experts when talking with people who have witnessed a loved one die a brutal death, or medical experts when dealing with people affected by mental health crises or drug addiction is unfair to them.
Even in the best of circumstances, police are ill-equipped to intervene in these situations. That is not so much a comment on police as it is a recognition of the need to use the appropriate tool for the appropriate problem, and the need to have that appropriate tool in the hands of someone trained to use it.
Funding Actual Solutions Is Key
These kinds of situations exemplify how budgetary considerations might favor a multifaceted approach to societal problems we now dispatch police to address on their own.
Rather than expect police to resolve every problem they encounter with the hammer of arrest, we must direct resources to resolve problems which don’t require criminal law enforcement.
The same principles of non-criminalization should apply to people with drug abuse and drug addiction issues, as well as extreme family dysfunction and people in extreme poverty and homelessness.
“Defunding” the Police
The so-called “defunding” of police, which I think is a terrible misnomer, is just such a recognition. Simply arresting people in crisis does no more than forcibly remove a person from a location of possible conflict. Obvious problems are created by this approach. The person likely is saddled with a permanent arrest and perhaps conviction record, as well as punishment at the hands of the judicial system.
Arrest + Punishment = Worse
When released on bail, the arrested person’s underlying problem is still not addressed, and all the negative consequences he/she must face further exacerbate an already harmful situation. With conditions and responses like this, it’s no mystery why we incarcerate more people than any other country. We created policies and funded those policies to create the destruction of freedom we are experiencing.
The next step in the process provides us with another challenge.
Discretion Greatest for Prosecutors
Prosecutors are by far the most powerful actors within the system, a fact which seems lost on the general public and even those within the profession.
Policies set by prosecutors determine how criminal laws are enforced, and how specific cases are charged. They have the ultimate power to simply decide not to formally file criminal charges at all, if they see fit. They also have the power to dismiss charges they choose not to further pursue.
If they choose to file a charge, they frequently can tailor the charge in a manner which maximizes or minimizes the ultimate possible outcomes. Only after these decisions are made do judges have the opportunity to affect outcomes.
A small, but growing contingent of “progressive” prosecutors have been elected in some places. Most campaigns for prosecutorial offices revolve around being “tough on crime” platforms, rather than “smart on crime” platforms favored by “progressive” prosecutor candidates. As described in Part 2, “tough on crime” is largely based on false assumptions which have been disproven, yet persist.
While policies from the highest levels set the stage for all others to follow, those policies set by individual prosecutors within the parameters of legislative policies, are the next most important and impactful in the system. An enlightened, knowledge-based approach must be favored and nurtured to combat the clearly flawed traditional notions of prosecution.
Judges Have Great Power
Trial courts, like prosecutors, are usually elected or answerable to some political figures, and they tend to rubber stamp prosecution evidence as gatekeepers, and they hand down harsh sentences. While exceptions exist, the norm has and continues to be judges who view the public interest over the individual accused’s interests.
Courts of Appeal
Appellate courts for decades tend to rule in favor of government expanse, especially search and seizure. Justices in the United States Supreme Court have long been devoid of criminal defense practitioners, yet they are the final word on all matters of constitutional criminal law. While occasional glimpses of knowledge-based opinions surface, “face value” claims by law enforcement tend to prevail.
Even the case in which Justice Gorsuch made his comment about overcriminalization, the state in Lange v. California is contending we have even fewer rights than we always have, even though no law has ever been passed to support its position. I hope Gorsuch’s comment reflects an unwillingness to further erode our freedom.
We Must and Can Improve
All these elements of law enforcement combine to create the perfect storm of less freedom for Americans than anyone in the world in this context. We are not truly the “Land of the Free”.
We can be better, and we already have the tools to make it happen as soon as we have the collective will to do so. It starts with top policy makers, who set the tone. Prosecutors need not “throw the book” at people at every opportunity. Trial courts need not rule in favor of the state as a reflex. Appellate courts can refuse to allow infringements upon freedom. If courts make rulings restricting rights, legislators can write laws to expand them.
Our attitudes need not be calcified. Our policies need not reject knowledge. Our people need not be reduced to inhuman units of “defendants”. All of these problems are choices our collective society has made.
We can choose to be free whenever we want. I see some glimmers of hope in progressive attitudes among a group of few, but growing, officials, those who embrace change propelled by knowledge and who recognize and value the humanity of everyone, especially those who have been arrested.
We must reverse the anti-freedom trends in our country to consider ourselves truly the “Land of the Free”.