“The essence of the criminal justice reform model in the popular press has focused on the lowest of the low hanging fruit — the nonviolent drug offender in prison for possession of controlled substances,” Prof. Joseph Margulies, government, law, said in a lecture Thursday afternoon.
But, according to Margulies, this narrative often embraced by the media is wrong.
Margulies is a self-described “student of the American criminal justice system,” according to his bio on the Cornell Law School website. He has defended numerous people “caught up in the excesses of the so-called war on terror,” such as Abu Zubaydah — a Saudian Arabian national held at CIA black sites and interrogated in 2002 and 2003, the public discovery of which led to the infamous Bush Administration “torture memos.”
He disputed the popularly-held notion that the United States incarcerates large numbers of low-level non-violent offenders for minor possession charges and sentences them to disproportionate sentences — calling that perception the “holy grail” of incarceration.
“We don’t send those people to prison … the search for the low-level non-violent drug offender is like the hunt for a snark …They may exist but they are vanishingly rare,” he said.
According to some studies, Margulies argued, only one percent of the US prison population is incarcerated for low-level drug offences. Most people incarcerated for drug crimes were convicted of trafficking and distribution. Instead, the vast majority of incarcerated persons, according to Margulies, are in prison for “violent offenses.”
In this way, the central issue facing the criminal justice system is not the imprisonment otherwise harmless drug offenders — but the mentality that all violent offenders are dangers to others and need to be kept separate from the rest of society, Margulies said.
“The logic has been we need to send violent offenders away for as long as we can, as thoroughly as we can. We need to separate them from society because of the risk they pose to communities, to all of us,” he said. “This is the principle upon which the modern criminal justice system is built — that the world can be safely separated into ‘us’ and ‘them’.”
As a result, the U.S. has the largest prison system in the world: 40 percent of people in the world incarcerated for life are in the United States, and since the early 90s, the number of prisoners above the age of 50 years old has grown by 4,400 percent.
The three major arguments currently standing in the way of meaningful prison reform, Margulies said, is the public’s perception that the current system works to reduce violent crime, that it is the only system that works and that the people incarcerated for these crimes cannot be saved.
But Margulies presented evidence that suggests higher levels of incarceration have done little to reduce the violent crime rate. According to him, only about four to ten percent of the decline of violent crime rates are attributable to incarceration.
Additionally, the amount of people actually involved in criminal activity is a small fraction of the total population of the country, and very localized, Margulies said.
“Crime is hyper-concentrated, among a very small number of people in a very tiny number of locations … usually around street corners. There are high densities of crimes on these corners, but the street next to it may be utterly crime-free for years. The people who are engaged in this are involved in a very small number of overlapping social networks,” he said.
One way to reach these groups of people, Margulies suggested, is to provide “hospital-based violence intervention programs” as they might often be hospitalized for incidents such as gunshot wounds and could be assisted in that context without fear of reprisal from rival gangs or other pressures.
“If we attend very carefully to the social networks that they rely on for their sense of identity, and focus our redemptive efforts on interrupting those networks, we have discovered we can be remarkably successful at preventing violent crime,” he said.
Breaking the cycle of violence and reprisal, he argued, is the key to stopping violent crime, which he said, “like a disease…transmits and spreads through contact.”
Despite the potential for success, Margulies said these hospital-based programs are not popular because it is “very costly to blanket a person in the hospital with services … he’s likely to be black or brown and likely to have been involved in this cycle [of violence.]”
Pushing back against the idea that people convicted of violent crimes will continue to commit crimes in the future if not incarcerated, Margulies countered that most people who commit these crimes are surprisingly young, and “violence is a young person’s activity.”
Margulies argued that most of the people that go on to commit multiple crimes once released are non-violent offenders — while violent offenders have only single-digit percentage chances of recidivism.
Beyond the empirical data, Margulies said that society has a moral obligation to end lengthy incarcerations, arguing that the current system is unjust — inflicting punishment beyond the scope of the crime committed.
“They are not going to prison to be punished further — prison is the punishment,” Margulies said.
To sentence individuals to spend long portions of their life in isolation from society and under dangerous, unhealthy conditions contradicts the very notion of the criminal justice system, according to Margulies.
“We are sending them there for longer that is justified, keeping them there longer than is necessary, and while they are there, subjecting them to a form of physical and sexual violence that is entirely separate from their culpability for the crime they committed…that is what we call the infliction of evil,” he said.
Meghana Srivastava ’23 contributed reporting to this article.