I detest political and racial labels. More often than not, they lead to stereotypes and prejudicial thinking. Yet, I find little reason to quarrel with those who identify me as a “conservative Republican.” Certainly, on most things – not all – I fit into that category. Fiscally, I am generally tight-fisted with the public coffers, and when it comes to law and order, John Wayne and Clint Eastwood were my heroes.

A recent experience, however, has given me considerable reason to question the wisdom of my knee-jerk reaction to the issue of criminal justice. While it is not essential for the purpose of this column to recount that experience, it is useful to share some of my conclusions.

At the outset, all of us want to be safe and secure in our homes and our neighborhoods. It is reasonable for us to expect murderers, rapists, child molesters, drug dealers and violent offenders to be apprehended and removed from our midst so that they cannot visit harm upon society and fracture the civilized order. I certainly have no quarrel with that. In fact, were I living in an earlier era, I probably would be among the first to strap on a holster, carry a six-gun and join the posse to search for the bad guys. My voice would have been among the loudest to “String ‘em up!”

But, this is not an earlier era, and the “apprehend and hang” approach to criminal justice is not achieving the desired purposes. In fact, that approach seems to be doing just the opposite of protecting society and preparing the “bad guys” to live among us once they are released from their confinement. The “system” has become less about “justice” and “correction” than about conviction, punishment and the warehousing of a significant segment of our society. According to recent reports, there are more than 2.2 million individuals incarcerated in America - and that number continues to grow. At an estimated cost to the taxpayers of $60,000 to prosecute and confine every inmate, the costs become astounding once we do the math. And a very significant number of those individuals return for an encore after they are released.

Over the past twelve years as I have fought against race, gender and ethnic preferences, I have often been accused of indifference to the “institutionalized racism” that is purported to exist in American life. A flawed criminal justice system is generally mentioned as being at the core of that racism. I conclude that while the system is terribly flawed, it is not institutional racism that accounts for those defects. Much more fundamental and pervasive problems account for what is wrong with our current system.

Most importantly, it is foolish to believe that all of the millions of individuals serving time in our local, state and federal jails and prisons are guilty of the crimes of which they are charged.  The reality is that any system designed and administered by human beings is going to be only as just and infallible to human error as the imperfect humans who administer that system. In short, there are people doing time for crimes that they did not commit. Similarly, there those walking free who committed crimes but were able to manipulate the system to their advantage (the name O.J. Simpson comes to mind). But, if we assume that just 1% of those who are in confinement have been wrongly convicted, that translates into about 22,000 people who have been deprived of their freedom, and who are a burden on society rather than productive, contributing members. The social, economic, fiscal and moral costs of this injustice are simply astounding.

Unfortunately, once an individual gets caught in the web of the system, it becomes exceedingly difficult to extricate oneself from it and to prove one’s innocence. The cliché that one is “innocent until proven guilty” is little more than that: a cliché. In our society, the burden of proof often falls on the individual being charged to prove his or her innocence.  And, often, the system is rigged against the individual being charged. This is because those on the prosecution side have virtually unlimited resources to make their case while the individuals being charged rarely have comparable financial means to hire competent counsel and to conduct the research that is essential to good representation.

The system also has its share of bad apples, such as prosecutors who hold back evidence (Mike Nifong) or play other legal games. Then there are federal agents who lie, even on the witness stand.  When confronted with the prospect of a case going awry because the arresting officer failed to produce a search warrant, for example, there are some who have been known to lie to protect their case. The end justifies their means because, in their minds, they have established sufficient guilt to warrant a procedural violation. This is not to suggest that all in law enforcement fit this profile, because they certainly do not. I want it said that the men and women “in blue” have no greater fan than yours truly, but as with other areas of our society, there are some who do not deserve our praise. And, those who pay the price for the abuses are helpless to do anything about it.

As with education, the American taxpayers are expending far too much money on the criminal justice system and not receiving benefits that are commensurate with the expenditures. The reason is that it is far too easy to demagogue this issue and to frighten the American public into believing that we are safer and more secure by locking up a 60-plus year-old, first-time offending woman convicted of some white-collar crime (hello Martha Stewart).  

As our prison population bulges and the California and federal budgets bleed red ink all over the place, I suggest that the time is ripe for the public to more logically approach the issue of crime and punishment. We should begin by releasing those who are first-time offenders and who pose no threat to society. Instead, we should apply forms of “punishment,” such as restitution or community service, that allow them to continue as contributing members of society. Incarceration should be reserved for those who constitute a threat to society or who are repeat offenders of crimes that harm society.