Criminal Justice

By Richard Thompson Ford, George E. Osborne Professor of Law at Stanford University

Since the 1960s, the ideas developed during the civil rights movement have dominated American thinking about social justice. Courts and governmental agencies enforce legal prohibitions against discrimination; private businesses and universities follow suit, fashioning their own diversity policies. Even private individuals think about race relations in civil-rights terms: we aspire to the ideal of “colorblindness” and condemn the evils “discrimination” and “bias.” American civil rights legislation has been a model for other nations and the American civil rights movement has inspired important struggles against injustice, such as the South African anti-apartheid movement and the international movement for gay rights.

When it comes to outright discrimination and overt prejudice, civil rights have been an astonishing success. But today’s most serious social injustices aren’t caused by bias and bigotry. For instance, in the context of race, they stem from segregation — a legacy of past racism but not by and large the result of ongoing discrimination — and the many disadvantages that follow from living in isolated, economically depressed and crime-ridden neighborhoods. In my new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality, I show that civil rights litigation and activism have hardly made a dent in these formidable obstacles. In fact, civil rights thinking can distract attention from the real problems, emphasizing dramatic incidents that aren’t good examples of the larger injustices.

Civil rights haven’t been a panacea for the illness of social prejudice, but like a patient who keeps popping pills because the prescription isn’t working, we’re now at risk of an overdose. Civil rights litigation has exploded since the 1970s, far outpacing the growth in civil litigation generally. In 1991 the federal courts heard about 8,300 employment discrimination cases; in 2000 they heard over 22,000. Civil rights laws, properly framed and limited, serve a vital social purpose, but too many civil rights can be as bad as too few, and an overly aggressive civil rights regime can be as destructive as an ineffectual one.

by Joseph Jerome

The ACLU’s Inimai Chettiar recently explained in an ACSblog post how downsizing our system of mass incarceration would be good for fairness, safety, and our wallets. Another benefit of shrinking our prison population is that it could also diminish our reliance on solitary confinement, which the UN Special Rapporteur on Torture has called “a harsh measure which is contrary to rehabilitation” that “can amount to torture or cruel, inhuman or degrading treatment.” Some corrections experts also make the case that the use of solitary confinement is costly, and not effective. 

Currently, more than 25,000 prisoners are held in isolation in American supermax prisons across 44 states.  Countless thousands more are kept in restrictive segregation units at a cost of two to three times more than conventional prison units.

According to some experts, an “exploding prison population” is to blame for the increased use of solitary confinement over the past three decades.  “Unfortunately, too many inmates today fear for their lives and their safety,” the Cato Institute’s Roger Pilon explains. He concedes that the psychological well-being of prisoners in solitary confinement is a concern, but that “it must be balanced with a concern for the safety of other inmates.”

Others assert there is little empirical evidence that the use of solitary confinement improves prison safety. The ACLU has found that the “levels of violence in American prisons may have more to do with the way prisoners are treated and how prisons have been managed.” In fact, placing prisoners into solitary confinement may actually increase prison violence.  As one prison psychologist told Human Rights Watch, “if you put people in isolation, they will go insane.”