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Happy Fourth of July, Incarceration Nation!

Happy Fourth of July, Incarceration Nation!

Today many Americans are flipping burgers, knocking back beer, and setting off fireworks to celebrate their country’s most trumpeted value: freedom. But a disproportionate part of the population will be denied that privilege, locked up in overcrowded prisons and jails, thousands without the hope of ever attending another cookout.

Many American prisoners are locked up for good reason, but no other nation jails so many people for so long. Among countries with the world’s largest prison populations, the United States leads with 2.2 million behind bars. And the countries that immediately trail the global champion of freedom are either much larger or terrible human rights offenders. China comes in second, Russia third.  

America’s love affair with mass incarceration is a well-documented phenomenon. According to Human Rights Watch, the federal prison population grew a staggering 721 percent between 1980 and 2013, while state prisons added 240 percent more inmates during the last three decades.

The sheer numbers only tell part of the story. The U.S. also disproportionately imprisons racial minorities, botches death penalty convictions and procedures, and places tens of thousands of citizens in solitary confinement. Moreover, the United States favors a harsh brand of justice shunned by most developed nations. These methods include mandatory minimum sentences, liberal use of lifetime sentences without the possibility of parole, long periods of pre-trial imprisonment, and tough sentencing guidelines for juveniles. Minor offenses such as drug possession often result in long sentences, contributing to the incredible size of the U.S. prison population. For every 100,000 Americans, 716 are behind bars.

Critics blame the country’s turbulent racial history, introduction of stiff drug laws in the 1950s and subsequent “tough on crime” approach that marked the 1970s and ushered in the 1980s “war on drugs.”  

William J. Stuntz, a Harvard Law School professor who authored The Collapse of American Criminal Justice, traced the prison crisis back to the Bill of Rights and its author, James Madison. Although it contains protections against procedural errors — such as “unreasonable searches and seizures” and the “right to a speedy and public trial” — there are few safeguards against disproportional punishment, he said.

Adam Gopnik underscored Stuntz’s point in The New Yorker. “You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life.”

After arrest, the wait to find out if one will end up in prison for life is long. According to a recent study by the International Centre for Prison Studies, 3 million prisoners worldwide are held in pre-trial or remand imprisonment. An astonishing 480,000 of whom are in the United States. India — with an overall population four times larger — is second at 255,000.

In New York City alone, the number of felony cases awaiting trial doubled between 2000 and 2013, despite an overall decrease in such cases. “For inmates who cannot afford even low amounts of bail, and must stay in jail, the right to a speedy disposition of justice is merely theoretical,” City University of New York’s Michael Jacobson, wrote in an op-ed for the New York Times. “Being incarcerated during a pending case removes one from family, work and education and increases exposure to the people and experiences that can promote a criminal future.”

During trial, the accused face sentences much longer than in many other countries. According to death row lawyer David Dow, American prisoners serve sentences that are “five to seven times longer than sentences for comparable offenses” in, for example, Germany.

Many sentence terms are mandated by consecutive sentencing rules, which accumulate punishments for different offenses, sometimes resulting in centuries-long terms. Mandatory minimum sentences increase jail time. This “one size fits all” formula gives judges little leeway. A first time offender caught selling 1 gram of LSD, for example, would be sentenced to five years without parole under federal guidelines. For 10 grams, the sentence would be 10 years in federal prison, without parole.

Initiatives at the state-level exacerbate the problem. Several states, including California, Washington and Texas, have so-called “three strikes” laws, which increase the length of penalties for each additional offense. These laws aim to place repeat offenders behind bars for a long time, sometimes for life, but have contributed to a ballooning prison population and have often resulted in extended sentences for nonviolent crimes.

U.S. jailers are often content to throw away the key. As of 2012, one-third of life-sentence prisoners — 49,081 inmates — have no chance of parole. According to researchers from the University of San Francisco, only 38 countries have life sentences with such a stipulation. Few European courts — such as British, Dutch, Hungarian — and no Latin American courts can sentence someone to a hopeless life behind bars. Even China and Pakistan dangle parole after 25 years.

Flexibility could be on the horizon. In 2010, Congress reformed the guidelines for offenses involving crack cocaine, which had overwhelmingly affected black men. To clear prisons of inmates incarcerated for minor drug offenses, the Obama administration has encouraged such offenders to apply for clemency. 

However, the United States leads the world in sending juveniles to prison without the possibility of early release. Though statistics vary, Amnesty International estimates that more than 2,500 offenders are in that situation for crimes committed as minors. “Although several countries technically permit the practice, Amnesty International knows of no cases outside the U.S. where such a sentence has been imposed in recent years,” the organization writes on its website.

In the United States, the minimum age for criminal responsibility falls within the jurisdiction of state law. Only 13 states have established such a threshold, placing the rest in violation of the Convention on the Rights of the Child, which calls on its signatories to establish a minimum age “below which children shall be presumed not to have the capacity to infringe the penal law.” The United States is only one of two countries to have signed but not ratified the convention.

The other is Somalia.