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How mass incarceration makes the “land of the free” the home of the caged AP
GettyImages/Darrin Klimek

Is mass incarceration a myth?

A recent Wall Street Journal article claims the answer is yes—and that was just the latest instance of this argument, which downplays the proportion of jailed Americans, belittles the influence of race in our justice system, and pooh-poohs suggestions that nonviolent offenders make up a significant portion of state and federal inmates.

But as compelling as that narrative can be, it is deeply wrong. Measuring the dynamic prison population reveals that one out of every three prisoners admitted to a state or federal prison is there on drug charges, while just one in four is there for violent crime. Meanwhile, race has a significant effect on mass incarceration where the drug war—which is central to this debate—is concerned, as minority offenders are more likely to be arrested, convicted, jailed, and given a long sentence than their white counterparts.

Those two considerations only scratch the surface of the mass incarceration phenomenon. Here are four other factors that have been neglected by those who claim to be mythbusters.

1. Over-criminalization affects all of us. Did you know you probably should be in jail? By one legal expert’s estimate, as many as 70 percent of Americans have committed a crime that could land them in prison. In fact, according to John Baker, a retired Louisiana State University law professor, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”

Of course, most of us have no idea we’re felons. It’s impossible to keep track of the absurd complexity of our federal criminal law alone, which now lists more than 4,500 crimes—plus tens of thousands of additional agency rules whose violation can be punished as a criminal offense. At any given point, you could be doing something that logic and conscience suggest is perfectly harmless, only to discover that Uncle Sam disagrees…and we haven’t even gotten to state and local laws!

Over-criminalization affects all of us, and it’s a major reason why incarceration rates stay inordinately high even as violent crime rates have massively declined since the 1990s. People are getting jailed for things that are not—or rather, should not be—jail-worthy.

2. Bad sentencing laws are overdue for reform. Over-criminalization means ordinary Americans are tangling with the legal system more often than they ought, and once that contact has been made, draconian sentencing laws mean there’s a real chance they’ll be in prison way too long for the offense in question.

Mandatory minimum sentencing is the main culprit here, as it requires judges to hand down lengthy sentences regardless of the context of the crime in question. As conservative writer George Will has argued, this policy “has empowered the government to effectively nullify the constitutional right to a trial.”

In one particularly notorious case, a judge was forced to sentence a young father, Weldon Angelos, to 55 years without possibility of parole for just three marijuana sales. Now, that same judge is advocating for Angelos’ release because, he says, “That wasn’t the right thing to do. The system forced me to do it.”

The good news is that eight out of 10 Americans agree that mandatory minimums need to go away. The bad news is that (despite promising bipartisan efforts) our government has yet to concur.

3. The effects of mass incarceration aren’t limited to an inmate’s time in prison. It is well-established that time in prison leaves Americans—even those convicted of minor offenses and those who never re-offend—with broken families, difficulty finding employment, and other barriers that block a return to a normal life. As Senator Rand Paul has said, “Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration.” Data like this should encourage us to reexamine whether we really need to have so many people in prison.

4. Why is the “land of the free” the home of the caged? Finally, the simplest proof of America’s incarceration problem can be found with the rest of the world. As is increasingly well-known, the “United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.”

No other developed nation comes close to our rate of imprisonment or count of inmates. That’s a troubling thought in a country proud to consider itself the land of the free. Mass incarceration in America is not a myth—and it’s definitely not okay.

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