By Wade Lee Hudson

     In a New Yorker essay, “Who Belongs in Prison?”, Adam Gopnik comments on several recent books that address key criminal justice issues, including scapegoating and the desire for revenge. Those concerns apply throughout society.

     Locked In by John Pfaff argues that prosecutors have been given freedom to imprison whomever they wish for as long as they like without going to trial. Prosecutors resolve ninety-five percent of criminal cases with plea bargains. They threaten severe punishment and get defendants to accept less severe terms. This pressure persuades innocent people to plead guilty, and results in the incarceration of people who would never be found guilty in a trial.

     Gopnik reports that Charged by Emily Bazelon “puts flesh and faces to Pfaff’s statistical and largely abstract proposition.” Based on “a study of two cases in which prosecutorial misconduct or overreach put two people through hell,” her book “is meant to, and does, provoke pity and terror in us at the sheer inhumanity of all imprisonment.”

     Revenge is an issue Gopnik examines in some detail. In one instance, “the prosecutor, in the  standard way that prosecutors exact revenge on a suspect for refusing to plead guilty, obtained at trial a sentence of ninety-one years.” These cases lead Gopnik to conclude that “our sense of justice here demands not less but more prosecutorial discretion—more power to charge or not to charge.”

     Moreover, the current system “adds bureaucratic labyrinth to unjust arrest” with attempts “to move [offenses] out of the normal criminal courts and into a special ‘diversion’ program.” Punishment Without Crime by Alexandra Natapoff calls this process “net widening.”

     Anti-incarceration efforts aim to move past

the question of “guilt,” making us see that the categories of guilty and innocent…miss harder social truths, and replace empathy with bureaucratized vengeance. “The crime is what you did, it’s not who you are” is an aphorism of anti-incarceration activists, and this perspective enlivens almost all the reformist literature.

     Gopnik writes that “most of the current crop of books on crime and incarceration” argue that most incarcerated people “are as much victims of society as they are wicked perpetrators of crime. Born into disadvantage, they arrived, in a sense, imprisoned already.” The Limits of Blame by Erin Kelly, Prisoners of Politics by Rachel Elise Barkow, and Until We Reckon by Danielle Sered also adopt this perspective.

     It’s easy to be indignant when innocent people are incarcerated, Gopnik argues, but guilty people present more difficult questions. Gopnik asks, what if the defendant had murdered her mother? “Would a night of crazy rage justify the years—it might well have been a lifetime—of despair and misery enforced by the state? …Would it have been what her mother wanted?”

     Gopnik believes these books avoid the question of what to do with serious evil.

It’s often said that white-collar criminals should not be treated better than no-collar ones, and yet the taste for punishing the white-collar miscreant is no less vindictive—indeed, there’s depressing social-science research showing that, once people are made aware of the inequities of the American criminal-justice system, they want even harsher penalties for white-collar offenders….

The pressing issue is not whether white-collar criminals should be punished more or less than others; it is whether the practice of locking anyone up in a closed penitentiary for long periods is an effective way of punishing or preventing criminal behavior.

     What we really need, he insists, is “to humanize the treatment of the guilty…. The moral question remains whether anyone deserves to be put in a bathroom-size cell for the rest of his or her life.”

     Sered’s book examines an extralegal process called “restorative justice,” which

brings perpetrators of violent crimes face to face with their victims in an effort to make both sides see each other not merely as captives of categories—bad person, good person—but as human beings caught in often painful and resistant circumstances. How far such reconciliations can go, and how violent an act the victim is prepared to forgive, or at least understand, is not always clearly defined, but the attempt to move past indictment and incarceration to some social process that holds out hope for transformation rather than just punishment is obviously possessed of moral energy.

     No other liberal democracy, for example, uses plea bargaining.

Ours remains a singularly punitive society, a society obsessed, right and left alike, with inflicting punishment on our preferred villains…. The right-wing desire to appease white fear by locking up black offenders…is mirrored by the urge that the left feels to annihilate its own sanctioned offenders. The quality of mercy has never been more highly strained than it is in America today…. We have to ask whether the incarceration of offenders we deplore makes sense.

     One alternative Gopnik considers is to cap all sentences at no more than a certain number of years, such as twenty, as Norway does. Another is to release everyone at the age of forty. Most older people are not prone to violence.

     Gopnik concludes his essay:

We have to want to humanize the treatment of those we think “belong” in prison with the same energy with which we agitate for those we don’t. Deincarcerating our society may, in the end, involve making harder, and more foundational, moral choices than we quite care to know.

     However, other than questioning the length of confinement and the use of bathroom-size cells, Gopnik does not address what humane imprisonment might look like.

     One possibility, it seems to me, is that punishment should only involve the denial of liberty, including the freedom to travel wherever you want and socialize with whomever you want. There should be no punishment beyond that restriction.

     Another principle is the right to be left alone. High-quality rehabilitation services should be offered, but if prisoners prefer to simply do their time, that should be accepted.

     These concerns raised by Gopnik are relevant to society at large. Harsh personal judgments, the failure to distinguish behavior from an individual’s essence, and scapegoating that ignores other factors are widespread throughout society.

     The criminal justice system is a microcosm of the larger society. It is interwoven with our social system. To transform one, we must transform the other.