Why Does the Freest Country in the World Have the Most Prisoners in the World?

    Our nation is rightly revered around the world for our Constitution, and its resultant benefits: the rule of law, the protection of the civil rights of persons, including freedom of speech and freedom from arbitrary or unjustified arrests, searches and detentions. Unfortunately, the nation we like to believe is the most free on earth is the one with the highest rate of imprisonment on the planet and the greatest absolute number of persons in confinement (higher even that than of China, with a population four times as large). The US has five percent of the world’s population, but twenty four percent of its prisoners. Our democratic system is responsive to the public will but that very responsiveness, coupled with the political manipulation of public opinion by right-wing and authoritarian politicians based on a few unusual but horrifying cases, has resulted in the legislating of new laws for which the penalties are harsh in the extreme. 
    The pattern is simple but repetitive. A horrible crime involving child molest and murder, for example, garners significant public attention. An ambitious public official exploiting the legitimate public horror and disgust, argues that the laws themselves must be changed and made more severe. The penalty is increased, mandatory sentences required and the rules of evidence changed to be less balanced and more pro-prosecution. Local state and federal prosecutors support the change, out of zeal or ambition or both. The new laws now impose draconian penalties upon people who are accused of crimes that bear little resemblance to the cause celebre which gave rise to the new statutes. No matter. The harsh new law applies. 
    The pattern is manifest over the last half-century. For example, the death of Len Bias creates the crack cocaine mandatory minimum sentences for small amounts of crack resulting in disproportionately long sentences for a group that is disproportionately composed of people of color. The “Three Strikes” law, publicized as an effort to protect the public from violent offenders, is invoked to impose sentences of 25 years to life on people who steal pizzas or shoplift. The architecture of the criminal law, with the increasing proliferation of mandatory minimum penalties, is designed to punish excessively, and to deter accused persons from exercising their rights by the in terrorem tactic of threatening draconian punishment to compel acceptance of plea agreements by the accused.