The Pew Center on the States reported in a 2009 study that the average annual incarceration cost for each inmate held by the states is $29,000.17 When KPBS Radio in San Diego crunched the California numbers in 2010, it figured the state’s true per-inmate cost at $50,000. The price triples, KPBS concluded, for geriatric inmates, who have special health needs.18 The growing population of elderly prisoners is the natural consequence of decades of megasentencing.
“Violent and career criminals need to be locked up, and for a long time,” said Adam Gelb, director of the Pew Center’s Public Safety Performance Project. “But our research shows that prisons are housing too many people who can be managed safely and held accountable in the community at far lower cost.”19 The number of violent criminals in prison has remained relatively constant for many years. Overcrowding stems from unreasonable sentences handed out to low-level offenders who could be rehabilitated in the community instead.
About a third of the nation’s prisoners are in city or county jails, many because they can’t post the absurdly high bail amounts with which they’re saddled. An addict charged with possessing a small stash of drugs can easily confront bail of a half million dollars. Any attorney who even hints that the bail is excessive risks angering the judge over a fight the defense can almost never win.
Defendants desperate to escape the confinement of tiny county jail cells or horrific dormitories seething with violence and extortion are quicker to plead guilty. As defendants consider their options, their attorneys inform them that if they exercise their constitutional right to demand a trial and then lose that trial, the judge will likely impose a harsher sentence than they would face if they settled out of court. It is standard operating procedure: judges exact a price from a defendant who jams up the docket. If the defendant had a job, he probably lost it after his arrest, and if he was living on his own, he probably lost his apartment. His old life has vanished. But just as a medieval prisoner’s confession could result in a grisly execution, the modern plea bargain can land the defendant in an even more dreadful situation than the one that drove him to take the deal.
In the federal system, about 95 percent of criminal defendants plead guilty. Of the remaining few who demand a trial, nearly nine of ten are convicted. “A ninety-plus percent conviction rate isn’t something that should be applauded,” says Pittsburgh attorney Paul Boas. “I think it’s something you should worry about. That’s what you see in totalitarian regimes.”20
Innocent suspects often plead guilty in the face of this pressure and intimidation. Under the right circumstances, almost any innocent person might confess in order to end the nightmare and do less time. Copping a plea to someone else’s crime is sometimes a terribly rational choice. Just as the race does not always go to the swift nor the battle to the strong, neither does justice always protect the unjustly accused. The Innocence Project, an arm of the Benjamin N. Cardozo School of Law at Yeshiva University, has helped hundreds of convicts, including seventeen who did time on death row, prove their innocence through DNA testing. The wrongfully convicted inmates served an average of thirteen years before exoneration and release. Approximately 25 percent of them had pleaded guilty.21 And these weren’t offenders who eventually won their freedom through a technical finding. These people were undeniably innocent. Over the last several years other innocence projects aimed at winning release for the wrongfully convicted have sprung up in other states, and their number grows. Each innocent convict released is a badge of both victory and shame.
Prosecutors work in a perpetual chess game, always seeking checkmate by routinely pushing for the stiffest penalty. And when a defendant is looking at a possible sentence of ten or fifteen years, a plea bargain offering a three-to-five stint can seem like a gift. Josh Bowers, a professor of law at the University of Virginia, concludes, “Even the innocent defendant may end up taking a plea because it’s the rational thing to do.”22
The hard-liners now running the criminal justice system follow a philosophy akin to the belief system that calls evolution and climate change “unproved theories.” They generate fear and disregard the human cost of their policies. Take the case of Joe Haskell.23 A crystal meth addict with two burglary convictions on his record, Haskell was driving through a Los Angeles alley in 2010 when he spotted some discarded scrap iron and two used doors, which he loaded into the back of his pickup. “It was leaning over the fence. I didn’t even enter the yard,” he explains. Following his arrest, a hard-nosed prosecutor offered him a fifteen-year burglary sentence, promising twenty-five-to-life if he went to trial. At the last minute the arresting officer, perhaps because of the trivial nature of the offense, came in on his day off and interceded. He helped Haskell cut a deal for seven years for petty theft. When I spoke with Haskell, he was in county jail waiting to enter a state penitentiary. He told me, “I’m doing time for stuff I already did time for. You used to be able to do your time, do something else, and do time for that. Now the time you did before, you do all over again.” Haskell has never even been suspected of a violent crime. Inside prison he’s known as an easygoing inmate who cools others with his peaceful presence. “I wouldn’t harm a bug,” he says.
Few of us want someone like Haskell reaching over the fence to take what he pleases, but only the heartless would want him to do twenty-five years for it. When I spoke to him, Haskell was off the meth and spending much of his jail time reading literature from Alcoholics Anonymous. But there are smarter, more effective ways to clean up addicts than sending them to prison. Haskell will be forty-nine when he is released. The odds of landing a good job after a third stretch won’t be favorable. Generally in such cases, the ex-con, put back on the street with a small sum of gate money (cash provided to inmates in some states upon parole), quickly goes broke, gets depressed, and starts using again. Maybe he steals something to raise cash. Then he tests dirty for his parole officer or skips the appointment. Or maybe he’s nabbed for the theft. Any of these scenarios lands him back inside unless he decides to become an informant. Given the standard deal, he’d need to turn in three offenders on charges that stick. That can be a dangerous choice, but enough people take the snitch route to create an ever-wider network of nabbed, small-time felons. They don’t know the kingpins, and even if they did, these small-time offenders probably would be too scared to turn them in. Addicts and their dime-a-dozen suppliers are law enforcement’s low-hanging fruit. They leave Day-Glo trails of money, dope, and paraphernalia. Picking these plums off the branches is safer and more lucrative for prosecutors than pursuing dangerous sociopaths, and a lot less work than pursuing white-collar criminals.
Haskell and other sorry souls like him are routinely warehoused behind bars. Their bunks are stacked in gymnasiums, hallways, wherever space can be found. Almost all of them were poor, homeless, drug-addicted, or all three before they went inside, and without constructive, cost-effective intervention, they will almost certainly revert to their preconviction status upon release. They’re at the absolute bottom of the socioeconomic pile. No group in America has less political clout. Unlike lobbyists and contributors from the prison-industrial complex, prisoners and their families aren’t out there golfing with legislators and inviting them to speak at four-star banquets.