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March 17, 2007

A socialist perspective on sentencing realities

The Socialist Worker online has this intriguing piece entitled "Incarceration Nation" providing a distinctive perspective on crime and punishment in the United States.  Here are snippets:

We are often told that the U.S. is the "freest" nation on the planet. But to judge from the U.S. prison system, the exact opposite is the case.  The U.S. incarcerates more of its people than any other country on the planet -- not just proportionally, but in absolute terms.... Though the U.S. has just 5 percent of the world’s population, it has an incredible 25 percent of the world’s prison population -- 2.2 million people.  Since 1970, the U.S. incarceration rate has increased by 700 percent, and that number is still rising....

Who winds up in prison? The answer is African Americans and Latinos, most of all. They are fully 60 percent of the U.S. prison population today. If current trends continue, one out of every three Black men and one of every six Latino men born in the U.S. today will go to prison at some point in their lifetime.  Overall, in 2005, African Americans were 40 percent of all inmates -- three times larger than their proportion in the U.S. population.  As sociologist Loïc Wacquant wrote in a 2001 article, "The rate of incarceration for African Americans has soared to astronomical levels unknown in any other society, not even the Soviet Union at the zenith of the Gulag or South Africa during the acme of the violent struggles over apartheid." 

Immigrants and women are also increasingly ending up behind bars in the U.S. According to statistics released by the Justice Department last year, between 1995 and 2003, convictions for immigration offenses rose by 394 percent.  Between 1980 and 2005, the number of women in state and federal prisons jumped by 873 percent -- from 12,300 to 107,500.

Poverty has always been the defining feature of who is imprisoned in the richest country on earth. Today is no exception.  As of 2005, approximately 37 percent of women and 28 percent of men in prison had monthly incomes of less than $600 prior to their arrest....

In a different kind of society -- a socialist society based on meeting people's needs, instead of making profits -- whole categories of "crimes" would simply cease to exist.  Immigration violations, for example, would no longer land people in prison in a society that recognized that no human being is illegal.  Likewise, drug use would no longer be considered a crime.  The money and resources currently spent to incarcerate those suffering from addiction could be put to use providing free treatment instead.  More generally, a society that made its priority meeting people’s needs would attack the roots of much crime by working to end poverty and alienation.

Of course, crime would not be magically end overnight.  "The point," however, as Paul D'Amato writes in The Meaning of Marxism, "is that, under socialism, society’s surplus wealth would be collectively used to enhance the welfare of all, rather than that of a small group. Why would I steal what was freely available?  Such a society may seem too utopian.  But as [American socialist James] Cannon said: 'What’s absurd is to think that this madhouse is permanent and for all time.'"

March 17, 2007 at 02:17 PM | Permalink


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This is why we need to get people to come out and state what their preferred rate of incarceration is, as a policy matter, in advance.

Then, we can adjust our substantive (most likely) and procedural laws to adequately meet the above goal.

Posted by: S.cotus | Mar 17, 2007 4:29:39 PM

If the goal of this blog is to build support for sentencing reform, I don't think quoting a socialist anything is a good way to achieve that. Socialism lost all credibility long ago.

Posted by: William Jockusch | Mar 17, 2007 7:35:52 PM

Mr. Jockusch, I don’t know if Professor Berman has a “goal” for this blog beyond 1) promoting himself; and 2) discussing all aspects of sentencing. I have not seen a discernible political agenda.

(By the way, self-promotion is a legitimate scholarly and legal goal. Moreover since Professor Berman actually knows the law and is passionate about it, it is entirely reasonable for him to show how much he knows on a daily basis.)

Naturally, most people who study a complex systems have ideas about the ramification of changes in the system. This might be what you are talking about regarding reform.

As to the remainder of your comments:
1) There are still self-identifying socialists in the US and in other countries. Some of them even hold office.
2) A coherent argument can be made that some parts of the constitution are extremely socialist in nature. E.g. the 4th amendment assumes that all people have “homes” (or perhaps that they should be given homes), and that those homes are to be deemed to have the same amount of privacy, and the 6th amendment right to counsel is just about as socialist as it gets. Think about it: no matter how poor or stupid a criminal defendant is, he gets a lawyer. What is up with that?

Finally, as a mode of analysis Marxism is just as viable as other theories. After all, is it really that radical to argue that our system of justice favors the rich, or that our laws are made by an upper class? Indeed, legislatures fairly often acknowledge this and attempt to tweak systems to equalize differences between rich and poor. Granted, they don’t break out the pictures of Marx or Mao, but a Marxist could easily conclude that they are simply trying to stave off the proletariat revolution.

Maybe, for political reasons, it is a bad idea for lawyers or lobbyists to mention Marx, or “socialism.” But make no mistake, arguments that can be mapped onto such theories are made – and succeed – every day.

Posted by: S.cotus | Mar 17, 2007 8:17:54 PM

Yes, who winds up in prison? Not anyone who did something wrong (much less, bad [gasp!]). It's not their fault because "the system" set them up to fail. And all of this benefits the "status quo" which is the rich, who we all know commit their own crimes against humanity but have "the man" on their side. It has nothing to do with biology either (unless it reduces culpability) but everything to do with just how bad the U.S. is at everything because we all know what bastions of social justice those socialist nations have become.

Posted by: Bill | Mar 17, 2007 9:59:30 PM

Bill, I am trying to follow your logic. Setting aside the executive’s argument that they can detain people indefinitely without review, people wind up in prison because 1) legislators prohibit certain behaviors; 2) executives enforce the laws against people; and 3) courts convict them. At each step in the process there are class biases.

Generally, poor people are simply unable to serve on legislatures. They rarely are smart enough, and they can’t mount a campaign. The executive(s) of states generally don’t see rich people (even if they are committing a crime) as nearly as much of a threat as they do poor people. This might be because rich people are better at concealing it, or it might be because the “crimes” of the rich are easier to justify on moral grounds. Convictions by courts (even with truly random juries) are also tempered by class biases. My personal favorite is the 4th amendment, which generally ends up protecting people with bigger homes more since such owners of homes have simply more area to be secure in.

I didn’t make any argument about rich people having “the man” on their side. Nor did I say that the US is bad. Your argument about “socialist” countries having more or less social justice would need to be fleshed out with concrete examples to be taken seriously.

But, Bill, the other perspective on socialism is simply that the constitution is a largely socialist document, which purports to provide guarantees to individuals, at the expense of the public fisc!

Many state constitutions are even worse – going so far as to provide education to people who probably can’t afford it and are unlikely to give much back to society. Pretty socialist !

Posted by: S.cotus | Mar 18, 2007 12:05:42 AM

typo in your title. "Scoialist" should be "Socialist."

Posted by: smiley | Mar 18, 2007 1:10:02 PM


I think your moniker and this: "poor people are simply unable to serve on legislatures. They rarely are smart..." pretty much sums up your elitist position. Rather than responding to YOUR comment (believe it or not) I was commenting on the actual post. If by crimes of the poor you mean violent crimes, yes there are "biases" against these because they usually entail violence. That bias, IMHO, is a good one. Indeed, people with bigger homes have more property, but I've never bought this Stuntzian argument -- it implies that rich folks are committing just as much crime as poor people, but can just hide it better. This is mere speculation which the facts simply don't support. Are we really to believe that there's violence on par with Atlanta occurring in the 'burbs of Seattle but it's just "all covered up" or unreported? Please, you tell me where you'd prefer to live. But, the most fraudulent aspect of your post is calling the constitution a socialist document. Okay, it's a collective agreement, but it hardly embraces equal distribution of wealth. Of course, who am I to question the Supreme Court groupie?

Posted by: Bill | Mar 19, 2007 12:42:02 AM


Yes, I am a supreme court groupie. So what?

Elitism is embedded into the law. As compared to most judges and lawyers that I know, my elitism is quite tame, because I have a rather egalitarian view of merit: anyone can be good so long as they work hard enough. Other people judge peoples’ worth by who they know and what school they went to.

I have commented elsewhere on this blog that sentencing of middle-class people and above often appears biased in their favor (and again poor people) because, the values that are at issue during sentencing phases generally favor the middle-class and rich. I.e. richer people tend to be better more educated, more stable, and generally make more of a contribution to society. Any criminal activity they have can more easily be chalked up to one-time deals, whether it is easy to see a poor person’s crime as part of a pattern.

Although I made two points about the 4th amendment, I can rephrase the one you are responding to. The 4th amendment protects peoples’ houses against unreasonable search and seizure sans a warrant. A large body of law surrounds what is 1) reasonable; 2) what is a search; and 3) what is the “curtilage” of a house. While #1 and #2 might be “objective” standards that don’t differ from defendant to defendant, #3 will differ between house and house. If someone has no house they likely have an extremely diminished area of privacy. If someone has a small house, what is in plain view is considerably reduced. And, if one lives in a big house, surrounded by gates, their degree of privacy is pretty much at a maximum.

What this means is that assuming good faith by all law enforcement, laws will simply not be enforced against rich people as much because they do a lot more within their zones of privacy. If, for example, a rich person wants to possess (and use) a drug outside, they don’t have to sit on a stoop and wait for the cops to see them in plain view. They can go outside on their deck, which is not visible from any public street. The result: less enforcement against rich people. In other words, you can buy more 4th amendment protection. But, we pretend that the amount of money people have doesn’t matter.

Violent crime might be a different story because, in my experience, most investigation is done pursuant to warrants or consent. (Though one can argue that consent is more easily obtained by poor people without a pre-arrest right to counsel.)

The other point I made about the constitution being “socialist” was that certain parts of it might indicate that is socialist in nature. I pointed to a specific example – the 6th amendment right to counsel (as opposed to the 5th amendment rtc). You didn’t rebut the example, but you called it fraudulent. While one might argue whether Gideon and other cases actually were decided correctly, they do essentially require that at trial, everyone be assisted – sometimes at the expense of the rest of the country – by counsel. This seems quite socialist. Unlike the above-mentioned “search and seizure” provision, someone that has never worked a day in their life is constitutionally entitled government-funded counsel! How much more socialist can it get? (Again, you didn’t provide a specific rebuttal, so it seems like you are conceding the issue.)

Finally, I noted that it is possible to argue that the 3d and 4th amendments require that the government provide people with homes to be secure in. But, I concede that this interpretation has not gained any traction.

Posted by: S.couts | Mar 19, 2007 10:41:06 AM

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