by Phillip Torsrud
The method in which the Federal Government allocates money to states, in return for state legislation that creates harsher laws, violates due process. Having a financial stake in passing laws, like truth in sentencing, creates a conflict of interest for state governments. The states are in the position of trying to administer due process; regarding the creation of laws, sentencing felons, and having impartial parole hearings, while being coerced with a financial incentive to make harsher laws and sentences, while denying parole to qualified candidates.
Wisconsin is currently being sued for not paroling people, and there was a protest on September 22, 2008 at the Department of Corrections headquarters in Madison. $1 million dollars a year wasted on a parole board that denies everyone parole. A legal system without objectivity has no potential to rehabilitate criminals. Hundreds of millions of tax dollars are thrown away on rehabilitation programs that have no chance of working given the context of the system in which these programs are offered. Since the money is being spent anyway, why wouldn't you have a system where there is a relationship between doing programs and being released. The people responsible for designing the system have no concept of how to have a systemic application of policies designed to attain specific goals. Laws are passed haphazardly for political and economic gain.
Since a state is a concept which a political body acts on behalf of, it must be recognized that the political body, regardless of party affiliation, has a political agenda. One must be wary of that agenda having any undo influence on legislation pertaining to the administration of the legal system.
When Congress passes bills that cause citizens to be punished more severely for the financial gain of the State, as well as profit for those in the Corrections industry, Congress has created a conflict of interest that violates the due process rights of state prisoners. Due process implies a fair process. No fairness can be attributed to a process that provides the decision maker with a financial stake in the outcome.
The government masks the illegitimacy of this practice by tying the money being given with "programs." It all seems so innocent and well intended, yet the current system guarantees more crime and victims in the long term. Our leaders don't care however, because like with so many other messes they've created, the bills don't come due until long after they've been in office. Or so they hope. This is the gimmick generation of leaders, since some of their policies don't have any substance. They just shift things around to make it look like action is being taken.
Does the Federal Government have a compelling interest in increasing the number of state prisoners? While the Federal Government does have an interest in promoting law and order, all efforts to do so are undermined if done at the expense of due process. South Dakota V. Dole (1987) was initially a case involving the government's tying federal funds to changing South Dakota's legal drinking age to 21. it is now the most important case in criminal law. Dole begins the practice of using federal funds to coerce states into legislation that creates a conflict of interest, eliminating due process. this was not the original intent of Dole, initially it was an interstate commerce case. When money was allowed to dictate criminal law, however, you had a tripling of America's prison population, and growing. In Kentucky, Gov. Steve Beshear gave a speech where he noted that the crime rate had gone up only three percent in the last thirty years, but the inmate population had increased by six hundred percent!
In Dole, the Court stated that the conditional spending program was not exceedingly coercive "to the point at which pressure turns into compulsion. " Not so when you're dealing with these crime bills. In new Orleans, the first thing rebuilt after Katrina was not the hospital, the schools or the courthouse. It was New Orleans Parish Prison. Why? David Morton reported in The New Republic, August 14 & 21 2007, that every prisoner brings in between $22.39 and 43.50 per day in government funding. More prisoners equals more money. Before Katrina, four percent of New Orleans male population was in jail. Calvin johnson, chief judge of the criminal court said, "I'm not exaggerating: there were people in jail for spitting on the sidewalk." Though New Orleans decreased dramatically in size after Katrina, there was no decrease in the size of its jail.
This is consistent with the recent report that 1 in 100 adults in America is in jail or prison. In it, it was reported that more people are behind bars because of tough sentencing measures, such as "three strikes" laws. This didn't happen by happenstance nation-wide. The Federal Government is the heavy hand crushing the spirit of freedom and justice out of America.
The Dole case failed to address the issue of how constituencies with financial incentives can lobby Congress to coerce states to pass laws for their personal financial benefit. This allows people who build and supply prisons, unions for prison guards, etc..., a vehicle to increase the prison population without regard to the public interest.
Elizabeth Dole argued that Congress may additionally allocate funds based on a national objective so long as the inducement to the state is not in and of itself unconstitutional. That is false. If federal funds create a situation where a state has a conflict of interest that undermines the due process of its legal system, then while allocating the funds itself might not initially be wrong, the circumstances created as a result of tying money to policies that keep people locked up longer is.
If a business man who made electric chairs lobbied the legislature to make all felonies punishable by death by electrocution, that would be wrong. Justice should not be sold for profit. Justice can never have the appearance of a profit oriented outcome. While there will always be a business side to administering a legal system, justice cannot become a business. Just because those buying our justice system are more subtle than someone selling electric chairs, doesn't change the corrupt nature of this process.
The difference between a state funding for building a highway, and that for having a larger prison population, is that the Federal Government has a compelling interest in one but not the other. Highways impact interstate commerce, thus the federal interest. As to criminal matters, the Federal Government already has a means to address crimes that fall under its jurisdiction, thus the term federal offenses and the existence of federal prisons. As to state laws, it is not as if Congress is inducing states to prohibit and punish a new set of behaviors. The penalties for these crimes already existed, therefore the federal government's sole motive was political. Crime legislation is very popular and self-serving.
Is it in the public interest to politicize justice and turn into a business? With manufacturing jobs dissolving nation-wide, state governments are in a desperate predicament to create jobs. More prisons were the answer. A false economy was created to give the illusion that our politicians are addressing our problems. The catch is that while states pass laws like truth in sentencing to get "free" money from the Federal government, it's not really free.
This money must be paid for by taxpayers. The problem is that they are not doing so yet. The money being borrowed to pay all this must be paid back with interest. The per head cost per inmate is actually a lot higher than reported. If the Federal government is providing ten thousand dollars per year per inmate, that will end up being twenty to forty thousand dollars per inmate ten to twenty years from now. That's on top of the fifteen to twenty thousand dollars the state also pays. When our genius government is done paying for the current two million plus prisoners, it will be at $50-60 thousand per year per inmate. Plus court costs, appeals, etc...
According to the Economist, August 16, 2008, the national "debt has since swollen to $9.3 trillion, with the value of unfunded public promises (if you include entitlements such as Social Security and Medicare) nudging $53 trillion- or $175,000 for every American and rising. On current trends, these will amount to some 240% of GDP by 2040, up from a just-about-manageable 65%today." This was before the banking collapse that led to a trillion dollar bail-out. We have a projected trillion dollar budget deficit for 2009, double the record. Furthermore, the American people have another $14 trillion in personal debt and the state debts are about to explode in 2009.
"The rich rule over the poor and the borrower is the slave of the lender," Proverbs 22:7. Who benefits when our government borrows so much money? What leverage does that provide foreign governments in future trade, and other, negotiations? The implications are obvious to everyone but the politicians who determine how our money is spent, We are on the verge of an economic crisis and the Federal Government needs to slash spending. Where do we make the cuts that won't jeopardize our future?
If the state truly has an interest in keeping someone locked up, they'll find the money. they don't need a federal hand-out to maintain a functioning legal system. There is no compelling interest for the Federal Government to continue borrowing money to pay states to keep people locked up as long as possible.
For more information on our system and how to restore due process, please visit my web site at www.crimeandculture.com and read my other blogs and my book Essays of a Penitentiary Philosopher. Please write or e-mail your Congressman and tell the about my web site if you agree with my views.
