Unfair

by Adam Benforado

  Damien Echols, the accused: Burris and Rempel, “Just Look at Him,” 78.

  People with an ardent belief: In fact, they may have an outsized role in certain circumstances. For instance, those who end up on juries in which the defendant committed a capital crime are likely to be those with more intense beliefs in pure evil (given that such fervor is correlated with support for the death penalty, which is, again, a prerequisite for sitting on a jury in which a capital sentence is possible). Burris and Rempel, “Just Look at Him,” 78; Kirchmeier, “Our Existential Death Penalty,” 75–78.

  It matters when a governor: Campbell and Vollhardt, “Fighting the Good Fight,” 16.

  And it matters when: Jennifer Senior, “In Conversation: Antonin Scalia,” New York, October 6, 2013, http://nymag.com/​news/features/​antonin-scalia-2013-10/.

  Such individuals are at a: Ellard et al., “Just World Processes in Demonizing,” 350–51.

  And this creates a tragic paradox: Ellard et al., “Just World Processes in Demonizing,” 351.

  The Harvard psychologist Steven Pinker: Steven Pinker, The Better Angels of Our Nature: Why Violence Has Declined (New York: Viking, 2011); Sarah Sweeney, “On the Side of the Angels,” Harvard Gazette, November 10, 2011, http://news.harvard.edu​/​gazette/story​/2011/11​/on-the-side-of-the-angels/.

  One of the driving forces: Pinker, The Better Angels of Our Nature; Sweeney, “On the Side of the Angels.”

  And it seems obvious: Pinker, The Better Angels of Our Nature; Sweeney, “On the Side of the Angels.”

  We want to believe that feelings: Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela (Boston: Little, Brown, 2008), 622.

  10. Throwing Away the Key ~ The Prisoner

  Eastern State Penitentiary is known: Eastern State Penitentiary, “Home, Terror Behind the Walls,” accessed May 13, 2014, http://www.easternstate.org/​halloween.

  It runs for weeks around Halloween: Eastern State Penitentiary, “FAQ, Terror Behind the Walls,” accessed May 13, 2013, http://www.easternstate.org/​halloween​/visit/faq.

  Each year it’s meant to be: Eastern State Penitentiary, “FAQ, Terror Behind the Walls.”

  In 2013, the prison began: Eastern State Penitentiary, “FAQ, Terror Behind the Walls.”

  For an extra $70: Eastern State Penitentiary, “2013 Schedule and Prices, Terror Behind the Walls,” accessed May 13, 2014, http://www.easternstate.org/​halloween/visit​/schedule-prices; Eastern State Penitentiary, “VIP Experiences, Terror Behind the Walls,” accessed May 13, 2014, http://www​.easternstate.org/​halloween/eastern-​state-after-dark-vip-tour.

  The “special Terror Behind”: Eastern State Penitentiary, “VIP Experiences, Terror Behind the Walls.”

  Pennsylvania was, after all: Paul Kahan, Eastern State Penitentiary: A History (Charleston, SC: History Press, 2008), 12.

  Before setting off for: Kahan, Eastern State Penitentiary, 12. Quaker practices were officially against the law as a result of the Uniformity Act of 1662 and Conventicle Act of 1664. John Miller, “ ‘A Suffering People’: English Quakers and their Neighbours c. 1650–c. 1700,” Past and Present 188 (2005): 85–86.

  And many of his fellow Quakers: Norman Johnston, Eastern State Penitentiary: Crucible of Good Intentions (Philadelphia: Philadelphia Museum of Art for the Eastern State Penitentiary Task Force of the Preservation Coalition of Greater Philadelphia, 1994), 21.

  As a result, the early: Johnston, Crucible of Good Intentions, 21.

  While the lash had been: As a 1787 grand jury concluded, “the gaol had become a desirable place for the more wicked and polluted of both sexes.” Johnston, Crucible of Good Intentions, 26. Men and women were thrown in together with no sense of decorum, escapes were common, and drunkenness was rampant. Johnston, Crucible of Good Intentions, 26.

  Operating as the Society: Johnston, Crucible of Good Intentions, 26; “Pennsylvania Hospital History: Stories—Dr. Benjamin Rush,” Penn Medicine, accessed May 14, 2014, http://www.uphs​.upenn.edu/​paharc/features/​brush.html; Kahan, Eastern State Penitentiary, 16, 25–26. Buoyed on by a mix of Quaker values and enlightenment notions of human rights and proper government, these men had no interest in a return to the whipped flesh and chopped ears of the Old World. Kahan, Eastern State Penitentiary, 19; Johnston, Crucible of Good Intentions, 9.

  The key innovation was: While there were certainly experiments elsewhere with solitary confinement over the centuries, it was in Philadelphia that the practice received its purist embodiment. Johnston, Crucible of Good Intentions, 24.

  After touring Eastern State: Eastern State Penitentiary, “Timeline,” accessed May 15, 2014, http://www.​easternstate.org/​learn/​timeline; “Eastern State Penitentiary,” USHistory.org, accessed May 15, 2014, http://www.ushistory.org/​tour/eastern-state-penitentiary.htm.

  The first inmate at the prison: Eastern State Penitentiary, “Timeline”; Johnston, Crucible of Good Intentions, 49.

  He had light black skin: Eastern State Penitentiary, “Timeline.”

  He was a farmer by trade: Eastern State Penitentiary, “Timeline.”

  And he had been convicted: Eastern State Penitentiary, “Timeline.”

  He was received by the first: Eastern State Penitentiary, “Timeline”; Johnston, Crucible of Good Intentions, 49.

  Whenever Charles was led from: “Eastern State Penitentiary,” USHistory.org; Johnston, Crucible of Good Intentions, 49.

  And when it was removed: “Timeline”; Johnston, Crucible of Good Intentions, 49.

  He occasionally interacted with: Johnston, Crucible of Good Intentions, 49.

  Charles was no longer Charles: Johnston, Crucible of Good Intentions, 49.

  To contemporary reformers: Kahan, Eastern State Penitentiary, 28.

  The interior of the prison: Eastern State Penitentiary, “History of Eastern State—General Overview,” accessed May 16, 2014, http://www.easternstate.org/​learn/​research-library/history.

  At a time when the president: “History.”

  It is interesting to think: Johnston, Crucible of Good Intentions, 21.

  America accounts for less than: Adam Liptak, “Inmate Count in U.S. Dwarfs Other Nations’,” New York Times, April 23, 2008, http://www.nytimes.com/​2008/04/​23/us/23prison.html.

  Some 2.3 million individuals: “United States, World Prison Brief,” International Centre for Prison Studies, accessed May 16, 2014, http://www.​prisonstudies.org/​country/​united-states-america; Adam Gopnik, “The Caging of America,” A Critic at Large (blog), New Yorker, January 30, 2012, http://www.newyorker.com/​arts/critics/atlarge​/2012/01/30/120130crat_​atlarge_gopnik?currentPage=all; Liptak, “Inmate Count in U.S. Dwarfs Other Nations’.”

  Even at their height: J. Arch Getty, Gabor Rittersporn, and Viktor Zemskov, “Victims of the Soviet Penal System in the Pre-War Years: A First Approach on the Basis of Archival Evidence,” American Historical Review 98 (1993): 1040; Gopnik, “The Caging of America.”

  Take one hundred thousand Americans: “United States, World Prison Brief.” In the United States, out of every hundred or so adults, one is going to be locked up. Ram Subramanian and Alison Shames, Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States (New York: Vera Institute of Justice, 2013), 3, http://www.vera.org/​sites/​default/files/resources​/downloads/european​-american-prison-report-v3.pdf.

  By contrast, 284 out of every: “Iran, World Prison Brief,” International Centre for Prison Studies, accessed May 18, 2014, http://www.prisonstudies.org/​country/​iran; “Highest to Lowest,” International Centre for Prison Studies, filtered by Prison Population Rate, accessed May 18, 2014. http://www.prisonstudies​.org/​highest-to-lowest; “Canada, World Prison Brief,” International Centre for Prison Studies, accessed May 16, 2014, http://www.prisonstudies.org/​country/canada; “Germany, World Prison Brief,” International Centre for Prison Studies, accessed May 16, 2014, http://www.prisonstudies.org/​country/germ
any.

  A country that abolished slavery: Paul Butler, “On Trayvon Martin and Racial Profiling,” Daily Beast, March 26, 2012, http://www.thedailybeast.com/​articles/​2012/03/26/paul​-butler-on-trayvon-martin-and-racial-profiling.html; Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, rev. ed. (New York: The New Press, 2010), 6, 180.

  It’s more likely than not: Gopnik, “The Caging of America.”

  Although there are many factors: To understand the ultimate origins of our high incarceration rates, one must grapple with an array of forces: “zero tolerance” policing, the war on drugs, the legacy of slavery, gun culture, a political system that encourages judges and legislatures to appear “tough on crime,” media fear-mongering, a failure to erect a more robust social safety net, and the emergence of for-profit companies that contract to provide incarceration services and benefit from increased prison rolls and longer sentences, among others. Gopnik, “The Caging of America”; Liptak, “Inmate Count in U.S. Dwarfs Other Nations’.”

  When Illinois’s criminal code was updated: Paul H. Robinson, Geoffrey P. Goodwin, and Michael D. Reisig, “The Disutility of Injustice,” New York University Law Review 85 (2010): 1961. During roughly the same time period, from 1980 and 2004, the number of offenses in the federal code with criminal penalties increased by 30 percent. Robinson, Goodwin and Reisig, “The Disutility of Injustice,” 1960.

  Illinois is no anomaly: Liptak, “Inmate Count in U.S. Dwarfs Other Nations’ ”; Subramanian and Shames, Sentencing and Prison Practices, 10.

  While no more than 10 percent: Subramanian and Shames, Sentencing and Prison Practices, 9–10. In Germany, for example, burglary, aggravated assault, and extortion are minor crimes—not major ones, as in the United States—and offenders are regularly diverted away from formal prosecution and end up with fines or community service. Subramanian and Shames, Sentencing and Prison Practices, 6, 8–9.

  We also hand out: Subramanian and Shames, Sentencing and Prison Practices, 10; Liptak, “Inmate Count in U.S. Dwarfs Other Nations’.”

  Burglarize a house in Vancouver: Liptak, “Inmate Count in U.S. Dwarfs Other Nations’.”

  But drive an hour south: Liptak, “Inmate Count in U.S. Dwarfs Other Nations’.”

  In Norway, for example, no one: Tapio Lappi-Seppälä, “Penal Policy in Scandinavia,” Crime and Justice 36 (2007): 223; Amelia Gentleman, “Inside Halden, the Most Humane Prison in the World,” Guardian, May 18, 2012, http://www.guardian.co.uk/​society/2012​/may/18/halden-most​-humane-prison-in-world; Liptak, “Inmate Count in U.S. Dwarfs Other Nations’.” In both the Netherlands and Germany, less than 8 percent of prison sentences are for more than two years, whereas in the United States the average length of time in prison is about three years. Subramanian and Shames, Sentencing and Prison Practices, 10.

  Unlike many of our European: Robinson, Goodwin, and Reisig, “The Disutility of Injustice,” 1943–61.

  Forrest Heacock shared cocaine: Heacock v. Commonwealth, 323 S.E.2d 90, 93 (Va. 1984); Robinson, Goodwin, and Reisig, “The Disutility of Injustice,” 1958.

  Leandro Andrade shoplifted: Lockyer v. Andrade, 538 U.S. 63 (2003); Erwin Chemerinsky, “Cruel and Unusual: The Story of Leandro Andrade,” Drake Law Review 52 (2003): 1; David Kohn, “Three Strikes: Penal Overkill in California?” CBS News, October 28, 2002, http://www.cbsnews.com/​news/three-​strikes-28-10-2002/.

  In California, the law said: Lockyer, 538 U.S. 63; Chemerinsky, “Cruel and Unusual,” 1; Kohn, “Three Strikes: Penal Overkill in California?”

  When the U.S. Supreme Court reviewed: Lockyer, 538 U.S. 63; Chemerinsky, “Cruel and Unusual,” 1.

  While the United States is the only: Amnesty International, Death Sentences and Executions 2013, (London: Amnesty International Publications, 2014), 6; Amrutha Gayathri, “US Only Western Country to Carry Out Capital Punishment Last Year, Ranks 5th Worldwide,” International Business Times, March 27, 2012, http://www.ibtimes.com/​us-only-western​-country-carry-out-capital-punishment-​last-year-ranks-5th-worldwide-430342; Johnston, Crucible of Good Intentions, 104.

  Today, solitary confinement is widespread: Johnston, Crucible of Good Intentions, 102–04; Erica Goode, “Senators Start a Review of Solitary Confinement,” New York Times, June 19, 2012, http://www.nytimes.com/​2012/06/20/us​/senators-start-a-review-of-solitary-confinement.html; “The Abuse of Solitary Confinement,” New York Times, June 20, 2012, http://www.nytimes.com/​2012/06/21/​opinion/the-abuse-of-solitary-confinement.html.

  Although there was a steady: Erica Goode, “U.S. Prison Populations Decline, Reflecting New Approach to Crime,” New York Times, July 25, 2013, http://www.nytimes.com/​2013/07/26​/us/us-prison-populations-decline-reflecting-new-approach-to-crime.html; E. Ann Carson, U.S. Department of Justice, Prisoners in 2013 (Washington, DC: Bureau of Justice Statistics, September 2014), 1, http://www.bjs.gov/​content​/pub/pdf/p13.pdf. Between 1972 and 2012, the state prison population grew by 705 percent. Subramanian and Shames, Sentencing and Prison Practices, 3. That said, there has been a significant amount of variation between states, with certain states experiencing consistently high growth rates, others experiencing major recent declines, and still others remaining relatively unchanged. E. Ann Carson and Daniela Golinelli, U.S. Department of Justice, Prisoners in 2012: Trends in Admissions and Releases 1991–2012 (Washington, DC: Bureau of Justice Statistics, December 2013), 23–24, http://www.bjs.gov/​content/pub​/pdf/p12tar9112.pdf.

  Part of this reflects: “Smarter Sentencing,” New York Times, August 13, 2013, http://www.nytimes.com/​2013/08​/14/opinion​/smarter-sentencing.html; Barbara H. Fried, “Beyond Blame: Would We Be Better Off in a World Without Blame?” Boston Review, June 28, 2013, http://www​.bostonreview.net/​forum/barbara-fried-beyond-blame​-moral-responsibility-philosophy-law. In 2013, the Obama administration directed U.S. attorneys preparing narcotics indictments to no longer list out the specific amount of drugs—a trigger for mandatory minimums—when the offender had no significant criminal history and the offense did not involve minors, violence, weapons, or gangs. “Smarter Sentencing”; Charlie Savage, “Justice Dept. Seeks to Curtail Stiff Drug Sentences,” New York Times, August 12, 2013, http://www.nytimes.com/​2013/08/12/us​/justice-dept-seeks-to-curtail-stiff-drug-sentences.html. More recently, the United States Sentencing Commission proposed altering the federal guidelines for drug offenses, which would reduce the average prison sentence for drug dealing by about a year. Matt Apuzzo, “Holder Endorses Proposal to Reduce Drug Sentences in Latest Sign of Shift,” New York Times, March 13, 2014, http://www.nytimes​.com/​2014/03/14/us/politics/holder-endorses-proposal-to-reduce-drug-sentences.html. The Department of Justice has also been calling for eliminating mandatory minimums for drug crimes that do not involve violence. Apuzzo, “Holder Endorses Proposal to Reduce Drug Sentences.” In 2014, the DOJ announced that it would be flexing the long-atrophying muscles of the executive clemency by providing potential relief to nonviolent, low-level federal inmates who have served at least ten years for a crime that would receive a lesser sentence today. “Reviving Clemency, Serving Justice,” New York Times, April 23, 2014, http://www.nytimes.com/​2014/04/24/opinion​/reviving-clemency​-serving-justice.html.

  Other efforts at the state: “Smarter Sentencing”; Goode, “U.S. Prison Populations Decline.”

  In California, the harshest aspects: Marc Mauer, “Is the ‘Tough on Crime’ Movement on its Way Out?,” MSNBC.com, May 5, 2014, http://www.msnbc.com/​msnbc/​sentencing-reform-the-end-​tough-crime. There is also a new provision for resentencing people like Leandro who were locked away based on a low-level final strike. Mauer, “Is the ‘Tough on Crime’ Movement.”

  These are all important steps: Goode, “U.S. Prison Populations Decline.”

  There are still five times: Goode, “U.S. Prison Populations Decline.”

  Three-strikes laws are still: Cal. Penal Code § 1170.12 (West 2014).

  Now, as then,
the prisoner: Paul H. Robinson and John M. Darley, “The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best,” Georgetown Law Journal 91 (2003): 950–51.

  To decrease crime, the thinking: Robinson and Darley, “The Role of Deterrence,” 950–51.

  Wake up in the morning: Conditions of solitary confinement vary across the country, but under extreme conditions such as those found in “supermax” prisons, individuals have no control over the electric light in their cells. John J. Gibbons and Nicholas de B. Katzenbach, Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons (New York: Vera Institute of Justice, 2006), 57, http://www.vera.org/​sites/default/files/resources​/downloads/Confronting_Confinement​.pdf; Brandon Keim, “Solitary Confinement: The Invisible Torture,” Wired, April 29, 2009, http://www.wired.com/​2009/04/​solitaryconfinement/.

  Roll from your bed: Atul Gawande, “Hellhole: The United States Holds Tens of Thousands of Inmates in Long-Term Solitary Confinement. Is this Torture?,” Annals of Human Rights, New Yorker, March 30, 2009, http://www.newyorker.com/​reporting/2009​/03/30/​090330fa_fact_gawande.

  It may be thirteen by eight: Gawande, “Hellhole”; Keim, “Solitary Confinement”; Ryan Devereaux, “Prisoners Challenge Legality of Solitary Confinement Lasting More Than a Decade,” Guardian, May 31, 2012, http://​www.theguardian.com/​law/2012/​may/31/california-prison-lawsuit​-solitary-confinement; James Ridgeway, Jean Casella, and Sal Rodriguez, “Senators Finally Ponder the Question: Is Solitary Confinement Wrong?,” Mother Jones, June 19, 2012, http://www.motherjones.com/​mojo/2012/​06/congress-looks-solitary​-confinement; Judith Resnick and Jonathan Curtis-Resnick, “Abolish the Death Penalty and the Supermax, Too,” Slate, June 18, 2012, http://hive.slate.com/​hive/how-can-we-​fix-constitution/article/​abolish-the-death-penalty-and-the-supermax-too.