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Thursday, April 19, 2018

Comey is dead wrong: mass incarceration is real

Reviewing James Comey's new memoir in The Intercept, Peter Maass focuses on an episode in which Comey complained to Barack Obama that the presidents use of the term mass incarceration was offensive:
Comey did not hide these views while at the FBI, and after making a speech in Chicago in 2015 that was not well received by the civil rights community, he was summoned to the Oval Office by then-President Barack Obama. Comey describes that session in his book, and he seemed to double down, telling the country’s first black president that the law enforcement community was upset at the way Obama had used the phrase “mass incarceration.” It was offensive, Comey told the president.

“I thought the term was both inaccurate and insulting to a lot of good people in law enforcement who cared deeply about helping people trapped in dangerous neighborhoods,” Comey writes. “It was inaccurate in the sense that there was nothing ‘mass’ about the incarceration: every defendant was charged individually, represented individually by counsel, convicted by a court individually, sentenced individually, reviewed on appeal individually, and incarcerated. That added up to a lot of people in jail, but there was nothing ‘mass’ about it.”

Maass makes a number of good points in his counterargument, including the point that more than 90% of cases on the state and federal level are settled with a plea bargain and not given their day in court.

A few more points I would add:

  1. There are hundreds of thousands of people sitting in jail, some for months or even years, who are there not because they were convicted but because they have a pending case and can't afford bail.
  2. Police departments routinely sweep up and jail groups of people with little knowledge of whether or not they have individually committed any crime, and release them without charge. (This is most visible at political protests when it happens to middle-class professionals, such as the dentist on his way to work who was arrested in New York City when police just grabbed everyone in the vicinity of a protest against the 2004 Republican convention. But it happens far more often than that.)
  3. Numerous police departments have faced revelations in recent years that their police and prosecutors routinely incarcerated people on charges they knew were false.
  4. Prison management and construction firms have lobbied, both legally and illegally, for increased imprisonment in multiple states. In Pennsylvania, a judge who secretly received a $2 million "finder's fee" from a private prison jailed kids for *years* for such offenses as having been given a bike by his parents that they bought on Craigslist that turned out to have been stolen.
  5. In numerous police departments, whistleblowers have revealed the persistence of quotas for arrests and citations.

In all of these aspects, people who did not commit crimes or who have not been convicted of crimes are incarcerated for large amounts of time due to political and economic dynamics far beyond any formal demonstration of their guilt.

Mass incarceration of the guilty is also an issue; but at the very least, any decent human being with a modicum of honesty must concede that the widespread, systematic incarceration of those whose guilt has not been determined and demonstrated by the system constitutes mass incarceration. In this country, some people get individual consideration and are presumed innocent; others are not, but rather treated a significant amount of the time as an undifferentiated mass of poor people and people of color.

Maass mentions a separate part of the book where Comey is surprisingly frank about this distinction. He quotes Comey as writing, of former general David Petraeus's slap on the wrist for lying to the FBI and mishandling classified information:

I believed, and still believe, that Petraeus was treated under a double standard based on class... A poor person, an unknown person — say a young black Baptist minister from Richmond — would be charged with a felony and sent to jail.

Comey is right about that, but of course there's even more than those two levels of standard. For many, arrested and jailed en masse, nothing close to the level of offense and amount of evidence in Petraeus's case is necessary to jail you for months or years.

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