The Guardian
By JULIET RIX
December 10, 2008
Bryan Stevenson has a stark warning for the UK government: "Don't follow America down the road to over-incarceration." The award-winning US human rights lawyer, who has been in London this week to give the Prison Reform Trust annual lecture, says that American society has been fundamentally altered by its criminal justice policies over the past 35 years. And these are changes, he says, that "no civilised society should want to replicate". At a time when the prison population this side of the Atlantic is at an all-time high and rising steeply, and the government is planning to build more and larger prisons, Stevenson's portent couldn't be more timely.
In 1972, the US had 200,000 people in prison. Today, the figure has increased more than tenfold, to 2.3 million - with one in 100 of the adult population in jail. In addition, there are over 5 million people on parole or probation. Even policy-makers whose decisions contributed to this dramatic rise are shocked by what has happened, claims Stevenson, adding: "Nobody set out to multiply the number of people incarcerated in this way, but nor did they stop to think about what was happening, and now it is very hard to reverse."
He fears that the UK may be following a similar path. The British government's official policy is that prison is a last resort to be used for serious and violent offenders. But the prison population in England and Wales has almost doubled from 44,700 in 1992 to over 83,000 today, while violent crime, having peaked in 1995, has dropped by 41% since then. The government recently announced a £2.3bn plan to build three vast "Titan" jails, expanding the prison estate to 96,000 places. Stevenson wants us to look at America and see why we should take a sharp U-turn.
He points out that "mass incarceration" has not lowered the US crime rate, but he believes it has increased injustice, which he spends his working life trying to ameliorate. It is a subject he learned about early. As a black boy growing up in 1960s Delaware, Stevenson wasn't allowed to go to the white school. He had to go to the school for "coloureds" - the one with no playground and no resources.
Dying for assistance
His father, who worked in a food factory, and his mother, a church musician and clerk, saw education as a way out. Stevenson worked hard and shone. Via scholarships - academic and athletic - he found his way to Harvard Law School, where Barack Obama also studied. Here he took a class that involved visiting a human rights programme in the deep south. "I met people on death row who were literally dying for legal assistance," he recalls. How could he refuse? So he spent his law school summers working for the Southern Centre for Human Rights. When he graduated, he went to work there full-time, before, in 1989, founding the Equal Justice Initiative (EJI) in Alabama, which he still heads.
The EJI represents indigent defendants, death row prisoners, juveniles and anyone it believes has been denied fair treatment by the system - as well as campaigning for change. Stevenson and his staff recently overturned the conviction of Diane Tucker, a woman with learning difficulties imprisoned for a murder that never happened, and last month won release for Phillip Shaw, sentenced to die in prison (life without parole), at the age of just 14. The EJI has been instrumental in more than 65 prisoners being released or removed from death row.
For every eight death row inmates executed, Stevenson says, one is released after his conviction is overturned. "And if there is that level of error in the death penalty courts, which are meant to be the most careful, then how many miscarriages of justice must be occurring in other courts?" he asks. A rise in wrongful conviction, Stevenson believes, is just one of the many dire results of a system of mass incarceration.
"Mass incarceration has radical implications for society - economic and social," he states. When a system is overloaded, it doesn't work well, Stevenson argues, and the business of jailing people becomes normalised (so insufficient attention is given to each case). On top of that, it is phenomenally expensive: an inmate costs an average of $30,000 (£20,000) a year, which leaves much less money for other things. Defence lawyers for poor defendants (the equivalent of legal aid) is one area that misses out, he says, with some Alabama cases limited to $500 or $1,000, when they would normally cost $20,000. "You are better off wealthy and guilty than poor and innocent."
The cost goes wider, too. "Studies have shown that in some states, spending on education is being undermined by prison budgets," Stevenson says. "Mass incarceration is affecting our capacity to fund education, health and other basic services." This has a direct impact on the poor, and fuels poverty, disaffection, social unrest and ultimately crime, according to Stevenson. Add to this millions of ex-offenders, their options in mainstream society severely limited by their branding as former prisoners, and you have created a vast underclass.
In poor black communities, the problem is particularly acute. Non-whites are over-represented in the US prison population - as they are in the UK. There are some crimes where black men are indeed more likely to offend, but this does not account for the numbers in US jails. In the case of possession of illegal drugs, Stevenson has the statistics at his fingertips. This is a crime that occurs almost equally across races, he says, with about 11% of illegal drug users being black. Yet black people make up 18% of those arrested for possession, 35% of those convicted, and 75% of those imprisoned. In the US today, one-third of black men between the ages of 18 and 35 are in prison, on parole or on probation.
"There is a real feeling of hopelessness in poor communities, and communities of people of colour," Stevenson says. A combination of under-resourced public services and a justice system that cannot be trusted - leading to greater fear of the police than of crime - is a recipe for social disaster. "There is not a single American politician who has made a priority of reforming this system," he says. "Some US politicians now know they have made a mistake, but if they look soft on crime they won't get re-elected."
Is he optimistic about the Obama administration? The two men met and worked together on a number of occasions before Obama went into national politics, and Stevenson says the president-in-waiting is "very good, very bright, thoughtful and sincere", and "certainly aware" of the problems. But with everything else on Obama's plate, Stevenson fears "it will be very hard for him to offer much promise of change [in criminal justice]".
So how did the US get into this mess, and how can Britain avoid it? First, Stevenson says, treat drugs as a health and social problem rather than criminalising users. America's so-called war on drugs, which saw mandatory prison sentences for possession, Stevenson believes accounts for perhaps half of the rise in the prison population, "and it hasn't worked!" Drug courts that provide immediate treatment and support, combined with obligations to the court and regular appearances to assess progress, are the way to go, he believes. Such courts are now running in some US communities, and half-a-dozen are being piloted in Britain.
Three strikes
Second, he advises against mandatory sentencing. The US's "three strikes and you're out" policy can leave judges obliged to lock up even a child for life for stealing a bicycle, if it is his fourth offence. And watch out for shifts in attitude, Stevenson warns. In the midst of the "war on terror", he says, it is easy to become punitive and "to tolerate conduct and abuse of power that would not otherwise be tolerated".
He describes as misguided the recent emphasis by the justice secretary, Jack Straw, on prison as primarily for punishment. "Some of the most victimised people in British society will be in the jails," he warns. "They are victims who didn't get the help they needed. The more you punish rather than reform, the more you create people with no place in society who will commit more crime. People should want governments to protect them from rape and murder, not to harshly punish the perpetrator after the event."
Money would be more wisely spent on prevention than more prisons, he says, citing early intervention programmes, care for the mentally ill, education, and the reform and rehabilitation of offenders. "Think what could be done," he says, "with a carefully allocated £2.3bn."