America’s Penal System Needs a Principled Rethinking


More Americans are incarcerated today than there are people in the entire state of New Mexico. The United States is only rivaled in its incarceration rate by North Korea, and not by a wide margin despite the Kim regime operating modern-day gulags.

The American incarceration rate is approximately eight times that of fellow G7 countries. Meanwhile, America’s crime rate, and particularly the rate of violent crime, is significantly higher relative to all other wealthy democracies.

When the scales fall from our eyes, we will have to decide whether we believe that Americans are inherently more prone to violence and criminality than citizens of other advanced nations or accept the stark reality of decades of horrifying public policy failure. Those scales will fall more quickly if we measure our penal system with the principle of solidarity.

From the perspective of solidarity, it’s startling to realize no other country comes close to the U.S. in the sheer volume of human captivity. America does not only bear this grotesque distinction in comparison to other Western democracies, its incarceration rate dwarfs those of almost all of the world’s most oppressive despotisms. Read this closely: The U.S. rate of incarceration is more than double that of the Islamic Republic of Iran, who in 2017 was the recipient of the highest number of urgent appeals issued by the United Nations’ Working Group on Arbitrary Detention.

Mass incarceration in America is not only profound fiscal irresponsibility and an unforgivable failure of public policy, but also a collective and fundamental humanitarian failure.

Harsh sentences for rapists, murderers and other repeat violent offenders are perfectly justifiable, and necessary measures. However, nearly 60% of American inmates are non-violent offenders, the majority of whom are incarcerated for drug offenses, 85% of which are for mere possession, not trafficking.

Though recreational drug use may be a vice, drug addiction is a mental illness. No psychologically well person would lay waste to their lives and that of their families in the manner an addict does. In 2018, 70,000 Americans died from the treatable disease of drug addiction. Many drug users became addicted when they were children, or younger.

According to estimates from the Center for Disease Control, incidents of babies born addicted due to in utero drug exposure has quadrupled since 1999. For decades, we have addressed this growing problem with a dispassionate call for harsher punishments for the sick. Addiction is the leprosy of modernity, addicts are shunned for their illness.

That addiction is a disease is something that the American Psychiatric Association and National Institute on Drug Abuse has recognized for decades. Yet the ostensible war on drugs, more accurately described as a war on the mentally ill, wages on.

According to Bureau of Justice Statistics, Americans pay over $80 billion annually for the privilege of being the worlds most prolific jailer. A 2017 Prison Policy Initiative report, which included derivative expenses, estimated the actual annual cost at closer to $180 billion.

Given the option to help desperate people or punish them, the U.S. criminal justice policy has consistently chosen the latter. This is a rejection of solidarity. For less public expense than incarcerating someone for drug possession for one year (the average state drug possession sentence is 37 months), where they are typically denied access to treatment, the state could provide high quality drug rehabilitation programs that maximize the chance of them being able to get their lives back.

Drug addiction is not an easy disease to overcome, not least because of its stigma, but outcomes from treatment are overwhelmingly better than if the disease goes untreated. Most addicts do not stay clean on their first try, but an estimated 1-in-5 who received inpatient treatment remained drug free after 5 years. Based on that statistic, of the 455,000 Americans currently sitting in jail for drug crimes, proactive policies could give 90,000 of them their lives back at less expense than it is already costing to keep them locked up.

The primary predictor of criminal recidivism is the inability of inmates to find steady employment upon release. Meanwhile, a criminal record is automatically disqualifying for most jobs. When combined with ineffective enforcement of immigration law, ex-inmates are forced to compete with illegal immigrants for what few jobs are available to them. Helping ex-cons find jobs is a social good, an act of solidarity, because it reduces the likelihood of future criminal activity, promoting rehabilitation and public safety. However, the “tough on crime” crowd prefers less effective, more punitive measures.

Another baffling position supported by “tough on crime” crusaders is the death penalty. Whenever someone is executed by the state, a death certificate is issued and in every case the cause of death is listed as homicide. Last year, the U.S. committed 25 state-sponsored homicides. Setting aside the oxymoronic notion of righteous murder, in 2014, the National Academy of Sciences estimated as many as 4.1% of Americans sentenced to death (1-in-25) turn out to be innocent.

According to a 2015 study conducted by the Criminal Justice Department at Seattle University, taxpayers pay on average a million-dollar premium, compared to non-capital cases, to put people on death row. That is neither Christian or conservative, nor is it, according to a 2009 study by the Journal of Criminal Law and Criminology, effective – 94.3% of criminologists who have studied the subject do not believe the death penalty is an effective deterrent.

A moral justice system can and ought to seek to protect citizens and deter crime, while dispensing with the baser desire to self-righteously mete out draconian punishment for vengeance’s sake. Americans must decide in what image we want to build our society. What motivates the desire to prioritize wrath over redemption, when both scripture and empirical evidence expose them as mutually exclusive?

It is necessary, though not sufficient, for a functioning society to foster compassion for those attracting our sympathy. But it is even more important, because it is so hard, to strive to have compassion for the despicable too. Compassion does not mean to spare the rod, but to extend it, whenever possible, within grasp of those who may never have had something to grab onto to pull themselves up out from darkness. Alternatively, by washing our hands of each other, we only dirty ourselves up.

The views expressed here are those of the author, and do not necessarily represent the views of


About Author

James Black is a Canadian finance executive specializing in private equity acquisition. He is also a conservative commentator, blogger and outspoken advocate for fiscally responsible criminal justice reform. He is currently living and raising his family in Toronto.


  1. Ann of Connecticut on

    Many possession convictions are actually to give jail time for a much more serious crime.

    Often cases fall apart – victim or witness intimidation, delays, witnesses move away – and the accused whom everyone knows is guilty – may only serve 18 months for possession – when he should have gotten 18 years for armed robbery, assault, rape or murder.

    Trump’s new law won’t secure one more Black vote. But people will die because criminals have been turned out on the streets. We’ve done this before and it never works out. Too bad Jared Kushner is in the WH. This is his very bad idea.

  2. Just how non-violent are these non-violent drug offenders? When you pay black market prices for drugs, you’re not just buying a product (the drugs), but also a service. What is that service? It’s whatever it takes to get you your contraband. You’re buying the murder of honest judges in Colombia or wherever your drugs come from. You’re buying the gangland killings of drug gangs. In short, you’re buying all the crimes necessary to get the contraband to you.

    When the drug user is high, he’s recklessly endangering others. Some are driving or operating machinery while impaired. I still remember, vividly, a passenger train scattered all over the landscape because the engineer of a freight train, while high on pot, ran a red signal and put his train in the path of a high-speed passenger train.

    And, what crimes have been committed by people who’ve damaged their brains with drugs and become criminally insane? Heavy pot usage can cause psychoses such as paranoia that can lead to violent crime, especially when aggravated by more pot usage. What crimes have been committed to get money for the next dose of drugs?

    But drug addiction is a sickness. How can you treat a sickness as a crime? Except for babies born addicted, all addicts could point to a day before they got addicted. And then, they willingly chose to take drugs. They didn’t just catch a germ, somewhere and become addicted. They committed a crime that trapped them. Drug use is punished to try to catch them before they trap themselves. Why is this not obvious to everyone?

    If you want to identify the real problem behind our huge prison population, it’s not that we’re locking up our criminals. The problem is that we’ve let our morals slide so far that we have way too many criminals in our midst.

    • What planet is this author living on? Has he spent a day in any of our local courts? Yes, the felon in jail may be finally incarcerated on a drug charge. But, that is after a rap sheet a mile long which will include assault, larcency, fraud etc. These CRIMINALS are given many second chances by the judiciary (especially in juvenile court) and offered a chance at rehabilitation. Talk to any member of your local police force and discover how many victims litter the wake of these individuals before incarceration.

  3. The author, by framing incarceration for a crime following due process as “captivity”, by conflating
    justice with therapy and by drawing false parallels between the US and other nations seeks to return to
    society without consequence an entire class of offender. He is apparently willing to endure the
    wreckage that will follow, much as we endure the consequences of the pharmacological solution to
    insanity once asylums were closed for similar ideological reasons. I am not.
    The US is a unique case in the world, while human nature is commonly shared. The US possesses a
    unique constitution and criminal justice system that affords the greatest degree of liberty with the
    greatest scrutiny applied to the state. No search, for example, can be conducted in the US absent a
    warrant or exception. No person can be detained without a formal reason presented post haste to a
    judge. No person is incarcerated without due process, and to call incarceration under this level of
    scrutiny “captivity”; is sophistry. The culture of the US is unique as well. The US is premier in the world in levels of violence, drug addiction, suicide, divorce. Lest we forget, the US has abortion liberties as
    barbaric as those only of North Korea or China.
    In the US, just as rivers flow to the sea, the proceeds of “victimless” crimes such as prostitution,
    pornography, illegal gambling, and drug abuse flow inevitably to criminal organizations and gangs where
    it funds murder, among other atrocities. It is blood money beyond the ability to launder.
    Suddenly, an age-old dispute has been able to hide in the clothes of a conservative movement because
    of the President’s prison reform proposals. CV needs to revisit St. Augustine’s City of God, City of Man
    and consider the necessity for human justice in an inherently unjust world to imitate the Divine justice.
    The need for justice exceeds therapeutic success rates, and successful therapy at the cost of justice is a
    golden egg at the sacrifice of the mother goose. Then again, CV should examine the success rates of
    actual therapy and ask what is the likelihood the culture is improved by relieving sanctions on actual
    crime. The dereliction of the duty to create order out of chaos for the sake of the weak is not a Catholic

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