Where “Cruel & Unusual” Meets Slavery… Lawfully?

 

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.”

13^th Amendment to the US Constitution

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”              8^th Amendment to the US Constitution

Let’s start with a few basic realities. Compared with the rest of the world, we have some of the longest prison sentences on earth, double the incarceration rate of even the Peoples’ Republic of China, and while we represent only 4% of the planet’s population, we have a quarter of all the inmates behind bars. We have double that number of felons on parole or probation.

To make matters worse, if you are a male inmate, the odds of your facing gang violence as part of your incarceration – unless you are in a perpetual and exceptionally cruel state of solitary confinement – hovers very close to 100%. You pick sides to survive. State or federal prison. Thus, prisons and jails are both training schools for crime and forced recruitment centers for gangs. The harsh environment, bad food and lost freedom are not the worse part of confinement.

Adding to this litany of horribles today is the high probability of a prisoner’s contracting COVID-19… which, sooner or later, spreads to those outside of prison walls. “Jails and prisons are proving to be viral hot spots in the COVID-19 pandemic — and outbreaks there are putting the lives of incarcerated individuals and other community members at risk.

“By July 21, at least 70,717 people in prisons across the United States had tested positive for the novel coronavirus, The Marshall Project reports [see below for updated numbers]… Public health experts warn that the spread of the novel coronavirus in those facilities is endangering incarcerated people, correctional staff, and the wider public… ‘Any national strategy to eradicate COVID-19 needs to focus aggressively on reducing outbreaks within prisons,’ Brendan Saloner, PhD, an associate professor of health policy and management at Johns Hopkins Bloomberg School of Public Health in Baltimore, Maryland, told Healthline… ‘COVID-19 got into prisons in the first place through the outside world — such as staff or visitors — and it will never stay within prisons,’ he said.

“In a letter published this month in JAMA [Journal of the American Medical Association], Saloner and colleagues reported that the COVID-19 case rate is 5.5 times higher in state and federal prisons than in the general population.

“When they made adjustments for age and sex, the authors of the letter found that the death rate from COVID-19 in prisons is three times higher than average… The true case rate may be even higher, since testing for the novel coronavirus has been uneven across facilities. In select prisons that conducted mass testing campaigns this spring, infection rates exceeded 65 percent at some sites.” Healthline.com. The Marshall Project, noted above, collects ongoing data on the spread of COVID-19 in US prisons. “By Aug. 11, at least 95,398 people in prison had tested positive for the illness, a 10 percent increase from the week before.” themarshallproject.org, August 14^th.

So aside from the fact that we are recruiting new gang members and training “better” criminals, even ignoring how we are using prisons to keep the novel coronavirus alive, active and growing in this human petri dish, we are paying north of $40 thousand on average per prisoner for the privilege. The recidivism rate, the blot on future earning power of convicted felons and the diabolical impact on families when a dad (or mom) goes to prison, and all of those risks noted above seem to suggest that we are actually harming ourselves with the criminal justice system we have created.

As the push to reopen schools and businesses without much concern for the impact on the spread of the virus, the devastating impact on vulnerable residents and particularly people of color, tells you that this is a nation – with few safety nets and the worst healthcare system in the developed world (one where many have lost or simply do not have access to healthcare) – where death and suffering are perfectly acceptable if those are the sacrifices we need to maximize the economy. We have a government, willing to incur massive deficits to implement huge tax cuts for the rich, with an unwillingness to use government funding to support and ultimately reignite the economy for most of us.

This proclivity to raise business and profit-making above all other American values has leaked one more cruel reality into our prison system. Rewarding “efficiency-seeking” private companies to run outsourced prisons, where the rights of individual prisoners are routinely sacrificed to enhance profits. You will notice, in the italicized words of the anti-slavery 13^th Amendment cited above, that slavery was not ended for convicted felons. Our prison systems are in fact predicated on pennies-an-hour wages and forced labor. And clearly, the 8^th Amendment’s proscription against cruel and unusual punishment has not stopped pushing inmates into ultra-violent, gang infested prisons where they now also stand a substantial risk of getting COVID-19.

The entire system stinks, does not work and costs taxpayers a bundle. We have more crime and now more disease as a result of this failed philosophy. Add profit-making over fair treatment of trapped prisoners, and you have injustice on steroids. “[The above 13^th Amendment] loophole made room for authorities to work around the abolition of slavery and gave birth to the American prison-industrial complex. Today, oppressive laws and policies continue to expand the reach and impact of that system rooted in enslavement and unjust, even torturous practices condemned by the Western world—from solitary confinement, withholding or delaying healthcare, and retaliatory practices from judges who increasing sentences for people who reject plea bargains to the outright murder of prisoners...

“A ‘prison-industrial complex’ is not possible without the ‘industrial’ part, which is made up of thousands of American businesses around the country, many of them publicly traded and household names, such as Sherwin-Williams, which sells the paint that covers prison walls and handily provides a design compliance guide for prison contractors; Aramark, which provides food, commissary items, and cleaning supplies to prisons and jails; and 3M, perhaps most well-known for manufacturing Post-its, which uses prison labor in its product cycle.

“Incarcerated people also make everything from license plates to body armor to mattresses—and are often paid less than a dollar per day for their work, if they’re paid at all. This labor isn’t always voluntary; if an inmate does not work, they can face punishments such as solitary confinement. The prison-industrial complex may not be visible to the average consumer,  but it’s massive: Tens of billions are funneled into the private sector through vendor contracts with healthcare providers, food suppliers, commissary merchants, prison contractors, and countless others. These private corporations have fully monetized crime and punishment with the help of our government.” Ashish Prashar, a justice reform campaigner, writing for FastCompany.com, August 18^th.

Add racial bias and a long history of oppressive laws, and the biggest burden of these injustices fall on people of color. “In a recent poll [by Washington Post/ABC], 69% of Americans say Black people and other minorities are denied equal treatment in the criminal justice system. If 30 years ago, American companies could begrudgingly agree to let go of a foreign economic interest because of public demands at home and abroad [divesting companies that had routine ties to the apartheid regime in South Africa], they can take action now to permanently root out racism and slavery on their own soil…

“In America, Black people are incarcerated at five times the rate of white people, and one in four Black men will go to jail at some point in their lives. Today, we are at a tipping point. Rather than continue to contribute to a fundamentally dehumanizing system, Americans are calling to dismantle it, and that pressure needs to come from every side—in the streets, at our desks, and on the trading floor.” FastCompany.com.

First, we need to get those who make a profit as the expense of justice out of the criminal justice system. Second, we need to ask ourselves if our current sentencing structure, the very assumptions that go into mass incarceration, actually benefit society. The answer is clear. We need a ground-up reevaluation of both our core values and the systems we have developed that continuously have failed us.

            I’m Peter Dekom, and our criminal justice system is a reflection of a nation gone astray from the very axioms of human rights and dignity that gave birth to the United States of America in the first place.