By the Time I Graduate, the Government Will Have Spent More Money Keeping My Brother Locked Up Than They Will Have Leant to Me to Pay for Law School

-- By PatrickOConnor - 17 Feb 2012

The Profit Motive

Cohen describes a hypothetical Blackstone-Cobb conception of the law: “is a rule of civil conduct prescribed by the supreme power in a State commanding what is right and prohibiting what is wrong.” I found myself fixating on this statement. I could easily recognize the logical inconsistency of the notion. I was troubled by inability to reconcile my desire to believe that the capitalistic order by which wealth is distributed is in some way objectively just, with my certain belief that the criminal justice system is entirely divorced from justice.

I find the notion that law commands what is “right,” rather than the other way around, very challenging. Intellectually, I understand that a given law incentivizes certain behaviors by rewarding them, and that this has as much to do with “goodness” as illegality does with “badness.” Emotionally, I cannot fully accept this, however, because my own sense of self-worth is tied, to some extent, to the notion that society rewards “goodness.” It is essential to me that, when (or if) I achieve success after law school, it will be because I “deserve” it.

Arthur writes: “We believe in the capitalistic system, as we used to believe in democracy, not as a tool, but as a set of abstract principles to be followed.” According to this belief system, capitalism, if left untouched, is a realization of the ideal of democracy without the intrusion of demagoguery. It accomplishes the public good but preserves the free will of the individual. Personal achievement within the system is a reflection of hard work and ingenuity. This belief system is essential to us, but also fragile, threatened by the insinuation that the system is imperfect.

The Costs of the Criminal Class

Robinson described criminal law as the pathology of our society. The alarming rate at which we incarcerate our citizens, the highest in the world, reflects both our prison-enforced prohibition of drugs and a system of “Corrections” that guarantees a high rate of recidivism. These are symptoms, I believe, of a deeper pathology. As a society, this does not seem to bother us. After all, we only incarcerate individuals convicted of criminal offenses in a fair trial. They are not our fellow citizens anymore.

I felt the same sort of ambivalence until my brother was convicted of drug related offenses and incarcerated in federal prison. Throughout his sentence, he was denied access to appropriate psychiatric care and addiction counseling, but managed to get his fix thanks to the healthy narcotics market run by the prison population. When he was released, he was mentally unstable, still addicted to drugs, and unable to find employment due to his conviction. Within a year, he was back. Why does this system persist?

I feel I may be too close to the situation to understand the purported justification of our criminal justice system. It is no secret that the financial costs are astronomical. Incarceration in state and federal prisons cost more than $60 billion last year. It costs the state of California $47,000 per year to incarcerate one prisoner. If the governor pardoned every state inmate and then enrolled them in a four year California public university, the state would have nearly $7 billion dollars. One might expect some modicum of debate as to the value of perpetuating this system. This issue is not effect as rallying cry to raise the enthusiasms of a party. Thus, as Arthur would expect, it is not fodder for politics.

Capitalism at Work

The simple solution to this conundrum is to persist in my belief that the system of criminal law I find so incredibly unjust is some perversion, perhaps the product of racism. There is a litany of unsatisfying explanations for the current state of affairs. I cannot help but return to the mind-boggling fact that my brother’s incarceration will be more expensive than my law school education. I could not believe that fear and stigmatization alone were strong enough to sustain such a system.

Then I came across Corrections Corporation of America’s annual stockholder newsletter. CCA is the largest provider of private incarceration services in the United States. According to the letter, the company will experience another year of growth: “historically, the U.S. inmate population has also accelerated in post-recession years, particularly at the state level. Demand for new prison beds from the federal sector remains strong.” Evidence suggests that CCA and other similar companies are stimulating this demand with a robust lobbying effort and public affairs campaign at the state and federal levels. Crucially, as members of the American Legislative Exchange Council, these companies have played a significant role passing stricter sentencing laws for non-violent offenders and mandatory sentencing laws for third time offenders.

I am left with the sickening feeling that we are simply both being socialized for the next stage of life. More likely than not, he will be back in prison within three years, spending more time away form desperately needed medical assistance. I will graduate with a degree that may be convertible to a very comfortable living doing something I perceive as without value. Presumably, I’ve come to the right place to gain the skills needed to affect change. But can I afford to?