Cruel and Unusual & Let's Get Free

reviewed by Ben Pesta

During the past 30-odd years, Americans have gone on a rampage of imprisoning their fellow Americans. By 2007 more than 1 in 100 adult Americans found himself (or, with increasing frequency, herself) behind bars. For black American males between age 20 and 34, the odds were much shorter: 1 in 9. Between 1987 and 2007 the American prison population almost tripled.

California has been well ahead of the curve on imprisonment in America. In 1980, with a population of about 24 million, California imprisoned 24,589 of its residents. Today, our population is approximately 38 million, a 58 percent increase since 1980. And our inmate population is 172,008, seven times what it was in 1980.

These are astonishing statistics. But what's more astonishing is that no one seems to be astonished. If there had been a sevenfold increase in the number of Californians enrolling in college or taking holy orders, you would certainly be seeing news of it on CBS, MSNBC, and AOL. Were Americans in general and Californians in particular just better-behaved back in the eighties? Readers with low bar numbers will remember that we weren't. Instead, we've been filling our prisons by passing three-strikes laws, mandatory minimum sentences, gun-use and narcotics-weight enhancements, time-credit limitations, and the like. In Cruel and Unusual, reporter Anne-Marie Cusac asks why this is the case. She uses a historical and anecdotal approach to arrive at several answers.

Part of the blame goes to tradition. Our colonial ancestors punished a number of common felonies by death, branding, or the loss of an ear. Less serious offenders, such as common scolds and backbiters, faced the ducking stool, an early-American form of waterboarding.

Inextricably linked with tradition is religion. "With the exception of those few decades when Progressivism attempted to harness science in the service of prisoner reform," Cusac writes, "American culture has understood crime punishments in religious terms."

Most relevantly, Cusac writes: "In America, punishment is populist." This observation is completely apposite to California, the capital of sentencing-by-referendum. Cusac quotes legal scholar Michael Tonry, who argues that punishment expansion occurs when horrifying or notorious events cause "moral panics." "Examples in recent years include the kidnapping of Polly Klass in California and the crack-overdose death of Len Bias in Maryland. ... Results included, respectively, California's three-strikes law and the federal 100-to-1 crack cocaine sentencing law," Tonry writes. The March shooting of four Oakland police officers by a parolee will probably provoke its own legislation.

Let's Get Free: A Hip-Hop Theory of Justice is more concerned with how we can transform America from the "incarceration nation" it has become. Author Paul Butler's major suggestion is jury nullification. Nullification is a useful concept, but California judges won't allow defense attorneys to tell juries about it, so it's not clear how they are to exercise a power they aren't allowed to be advised they have. Other suggestions include the use of electronic monitoring instead of incarceration, new medications to treat addiction, the possible use of genetic therapy, reducing lead in the environment (there's a statistical correlation between childhood lead exposure and violent criminal behavior), paying kids to finish high school, and having progressive prosecutors subvert the system by prosecuting less vigorously and offering outside-office-policy benefits to defendants who plead guilty.

Butler says: "Our criminal justice system works like a meat grinder. You are supposed to proceed, in orderly fashion, from arrest to guilty plea to sentencing. ... I still love the idea of America; I just do not see it reflected in our dysfunctional system of criminal justice."

These are unusual sentiments for a federal prosecutor, which Paul Butler used to be. The criminal justice system worked plenty well enough then. So what was this Paul's road-to-Damascus moment? You may have guessed it: He got arrested. For ordinary assault. And then he compounded that misdemeanor by pulling a "do-you-know-who-I-am" routine on the arresting officer. Remarkably, the cop wasn't impressed. Even more remarkably, Butler, an experienced prosecutor and a bright guy (Yale University and Harvard Law, teaches at Georgetown), was astonished when a jailer "looked at me like I was a piece of shit," then when his case didn't just go away before arraignment, and when he was treated like, well, a defendant. Notwithstanding his acquittal by a jury, "[t]here are still some hard-core types in the U.S. attorney's office who don't speak to me," he writes. No question, then; an arrest and trial is just the sort of thing that can derail your career track at the USAO.

Californians face some tough, imminent decisions about what kind of society we want to live in. Unfortunately, we're ahead of the curve on other trends besides imprisonment: In particular, our state ran out of money last summer, well before the subprime-mortgage crash tanked the nation's economy. And it costs about $49,000 annually to incarcerate one inmate. Twenty years ago spending on corrections took up about 5 percent of the state budget; today, it eats up 11 percent.

So, either we find more money to build more prisons faster, or we consider a comprehensive reform of the penal code. California's voters rejected a tentative step toward the latter last November when they rejected Proposition 5, the Nonviolent Offender Rehabilitation Act. That proposition would have shortened parole periods for most drug offenses and nonviolent property crimes and expanded treatment programs for drug offenders, in the interest of relieving prison overcrowding. But the 2008 election was the same one in which we kept the state safe from married couples of the same sex. The proposed Prison Population Reduction Act didn't even make the ballot. Instead, we passed Proposition 9, which lengthened the period lifers must wait for a parole hearing from 5 to 15 years.

Cruel and Unusual and Let's Get Free offer useful analyses and original suggestions regarding the debate about how best to incarcerate fewer people. It's a debate that should have begun years ago. Three months after the 2008 election, a specially appointed three-judge federal panel ordered California to reduce its prison population by 55,000 during the next three years. The panel's decision was a fresh reminder that choosing to do nothing is also a choice.

Ben Pesta, a white-collar and criminal defense lawyer in Century City, has written for Esquire, Playboy, Rolling Stone, the Los Angeles Times, and the American Bar Association Journal.

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