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Our law firm provides externships to currently incarcerated paralegal & law students and provides civil legal services to formerly and currently incarcerated people to eliminate the collateral effects of mass incarceration. 

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A Case For Revolution: 

Fifty years of prison growth is enough – Minnesota’s Criminal Justice System is Broken.

I no longer use the term “criminal justice” when referring to the many interwoven agencies and individuals that comprise Minnesota’s criminal legal systems. Calling it “justice” is demeaning to those obliterated by its force and power. It reminds me of those candy bars kids sell to go on a school trip that are named “World’s Best Chocolate.” If you need to include such a superlative in the name, one can bet it’s a patent lie. That’s how I feel about the term “criminal justice” – it’s a lie.  

 

In Minnesota, the criminal legal systems (CLS) comprise of, at the least, the police, sheriff, prosecutors, probation officers, judges, defense attorneys, jails, bail bondspeople, workhouses, prisons, half-way homes, and more. One could argue that it even includes educators, legislators, and business owners. The list of co-conspirators is staggering. These entities arrest, prosecute, sentence, supervise, and house those convicted of crimes. Then, upon release or during probation, other entities deny housing, employment and educational opportunities to those who have had contact with the criminal legal system.  

 

Our system ignores those in poverty until they break a law, then condemns them to a life altered intractably from their interaction with the legal system. This cruel system is rudderless and serves neither the spider nor the fly. This system does not rehabilitate, does not deter, does not make us safer and is excruciatingly expensive. It is obsolete and incurably broken. 

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Mass Incarceration

If the criminal legal system was a business, then business is good. Nationally, nearly 2 million people are incarcerated in prisons and jails. In the 1970’s this number was 360,000 (source). Over the last 40 years, the prison and jail population has skyrocketed 500%.  

 

Despite having 31.5% of the world’s wealth, the United States incarcerates more individuals per capita than any other Country. If it were a race, the U.S. would win like Secretariat.  The United States incarceration rate is 639 per 100,000. The closest “competitor” is El Salvador at 564 per 100,000–still  13% less.  Looking at incarceration rates in European countries illustrates the United States’ appalling eagerness to incarcerate. For example, the United Kingdom’s incarceration rate is 130 per 100,000, while Spain is 122, France 93, Italy 89, and Sweden 68. For those who think this is a North American phenomenon, think again. Canada sits at 104 per 100,00 and Mexico is 166 (source). Again, the United States is at 639 per 100,000.  

 

In the U.S., twenty-three states have an incarceration rate higher than the national average.  In Louisiana, 1,094 individuals per 100,000 are incarcerated and Mississippi comes in second,incarcerating 1,031 per 100,000. Minnesota is sixth from the bottom at a rate of 342 per 100,000*.  

 

Despite Minnesotan’s relative smugness compared to atrocities committed in Louisiana or Mississippi, we are doing very bad things. Keep in mind that if Minnesota were its own country, then it would have the tenth highest incarceration rate in the world. I am not sure that sits well with the self-proclaimed progressive moniker we Minnesotans arrogantly flaunt.   

 

Scholars and others have long debated the origins of mass incarceration.  Some argue it was derived from the infamous folly of the War on Drugs, while others assert it was necessary to combat growing crime rates.  But one central question of this expansion of mass incarceration is, does it make us safer?  If incarceration rates increased 500%, one must ask, are we 500% safer?  The answer is a resounding “no.”  

 

In a phenomenon called the “Prison Paradox,” increased incarceration does not result in less crime (source). Herein lies the enormity of the problem. The United States incarcerates vast numbers of people, but it does not equate to safety or other tangible benefits.  Rather, the criminal legal system produces traumatized community members, weakened family structures, financial strain, addiction, and recidivism. This near-sighted expansive detention is not simply a personal tragedy;rather, the incarceration of a loved one is a traumatic community loss.  Incarcerated individuals have parents, siblings, spouses, friends, and children.  Many of these family members rely on the incarcerated person for love, support, guidance, and financial assistance. Without this support, families deteriorate and slip into or further into poverty, and even crime. One person’s incarceration  leads to waves of generational damage that impact many individuals besides the incarcerated person.

*According to Minnesota’s Department of Corrections (DOC), Minnesota’s prisons include 8,152 individuals on January 1, 2023.  (93.2 men) (554 women) 15% drug related.

Mass Community Supervision

Although Minnesota’s incarceration rate is lower than many other U.S. states, it ranks fourth in the number of individuals on “community supervision.”  Community supervision includes probation, parole, and home monitoring.  In a recent study, 101,000 Minnesotans are on probation or parole*. While community supervision is preferable to incarceration, it’s a difficult program. About half of those incarcerated in Minnesota have their probation revoked. 

 

In my experience, when a person violates probation, they lose their job and often their housing.  Not many jobs let folks miss a week of work unannounced.  Once a person loses their income, a loss of housing swiftly follows.  Often, probation violations are not violations of any law.  Rather, a violation of a term of probation can be something as simple as missing an appointment with a probation officer, having a positive drug test, etc.  Many of these violations are for understandable reasons but are violations nonetheless.  While individuals on probation are not counted in the number of incarcerated, they are frequently, albeit oftentimes temporarily, without their freedom.  

*Prison Policy Initiative.

Mass Perpetual Punishment

Punishment does not end after one completes a prison term or a probation sentence.  After a person completes their sentence, their “Second Sentence” begins.  These so-called “collateral consequences” are civil ramifications from interaction with the CLS.  For example, when a person leaves prison and returns home, the terms of their releases undoubtedly require them to maintain stable housing and employment.  Yet, those with criminal records struggle mightily to find work and housing.  One’s interaction with the CLS is public information in Minnesota.  From the arrest to the conviction, records of these matters are public data and easily accessible.  As such, landlords, employers, nosy neighbors, and anyone with an internet connection can look up one’s criminal record from their comfy recliner.  This leads to lower employment and housing acceptance rates for those who have interacted with the CLS.  More, it creates an environment that encourages recidivism.  If we close all the doors to those in reentry, excluding them from making an honest living, individuals are forced to live on the margins.   

 

In Minnesota, criminal records are permanent.  These scarlet letters are never automatically deleted or expunged. Moreover, even a record of a case that does not involve a conviction remains public indefinitely.  Admittedly, individuals can seek expungement, but it is an arduous, confusing process that is difficult to navigate without an attorney. Those with money get expungements while those without the funds for an attorney remain burdened with their criminal records.  As a result, individuals that need an expungement the most often do not have the resources to obtain them.  

Solution

Minnesota’s criminal legal system lacks a clear guiding mission. Does it exist to remove dangerous people from our society? Does it serve as retribution against those who cause others pain? Is it designed to rehabilitate those who do not live peacefully within society’s structures? I can make arguments that the system seeks to accomplish all these goals and none of them. In practice, the system is based on vengeance, not redemption.*

 

The solution to mass incarceration is simple, but not easy. When someone commits a crime, we want them to feel a pain commensurate with the pain they inflicted. This desire for retribution is a real and honest response to those who cause pain. But, it makes things worse. This failure makes me think of Ghandi’s famous quote, “An eye for an eye only ends up making the whole world blind.”

 

I’ve heard people complain that the crime problem is a moral failing of those who commit crimes. I suggest that the moral failing is ours. Our unwillingness to forego vengeance in favor of rehabilitation is clearly a moral failure.  

 

We need a system that shuns vengeance and acknowledges the reality that those who commit crimes return to society.  We know that treating people terribly will only cause more harm. Has vengeance really ever been an effective solution? If I told you that we could reduce violence, reduce the number of individuals in prison, increase safety for the general public, and drastically reduce costs, would you implement such a policy? Even if it requires us to forsake vengeance? 

 

In the incarceration setting, we need to deconstruct all policies and procedures that support retribution-based incarceration and replace them with rehabilitative measures. We need policies that ask how we can put the person in a better position, not how we can inflict the most pain. This includes incarcerating fewer individuals, shortening prison sentences, building a prison system that is humane and focused on rehabilitative goals, and eliminating barriers to fully returning to society after completing the terms of the sentence. Once your time is served, you should be All Square.

*Moseka Nyha.

Do we have the strength to do this? Do we have the ability to focus our efforts towards rehabilitating a person who caused pain to others? I believe we do, but it’ll take a revolution.

Not Born Evenly

In addition to the staggeringly high rate of incarceration, probation, and the subsequent second sentence, the impact of the so-called “justice system’s”  broken policies is not borne evenly across racial and socioeconomic groups. As of January 1, 2023, the Minnesota Department of Corrections (DOC) reports that its prison population is 51% white, 36.8% black and 9.4% American Indian. These numbers are more disturbing when compared to their respective percentage of the population in Minnesota. Specifically, individuals who identified as “black” in the 2021 U.S. Census comprise 7.4% of Minnesota’s population. Yet, this group accounts for 36.8% of Minnesota’s prison population.  Those who similarly identified as “American Indian” in the 2021 Census comprise 1.4% of Minnesota’s population, but 9.4% of its prison population.

 

Accordingly, although black and native individuals comprise a mere 8.8% of the population in Minnesota, these individuals comprise 46.2% of the prison population. This is a disparity we cannot tolerate. Its destruction of communities is generational, and with a system this broken, any “tweak” or reform is now obsolete.  

 

The CLS is a broken down 1983 Chrysler K-Car.  In its “prime” it was ugly, slow, and unreliable. Now, after forty years of hard driving, it’s useless. No one would continue to repair such a car. One wouldn’t spend $500 on such a vehicle*. The CLS is the same. It’s broken down and repairing it makes no sense. It’s time for a new vehicle - it’s time for a revolution.

*MN DOC 2022 budget was 630 million.  $41,000 a year for each person incarcerated in MN prison.

Incarceration as it exists is unhuman

In addition to the number of individuals living in prison, away from those who love them and who rely on them for emotional and financial support, there are many other horrors of incarceration. According to the Minnesota Department of Corrections, as of February 17, 2023, Stillwater and St. Cloud prisons houses a combined 2,167 adult men in cages (source). Cages! It’s important to remember that 98% of those incarcerated in Minnesota are coming home and coming soon to live in a neighborhood near you!* The people that we cage like beasts and subject to terrible treatment will live among us again. Do we think that cages somehow magically cure these individuals? That the act of locking them in a cage for years is a therapeutic tool that will instill positive change? Or, is it more probable that when we treat human beings like animals, they act like animals?  

 

I am unaware of any study that shows that if you treat humans inhumanely, they will become more law abiding. A Judge I knew once said that if you take a person who doesn’t know how to swim, lock them in a cage for a year, and then throw them back into the pool, they still don’t know how to swim.  Prisons should teach people how to swim, not how to drown. 

 

All the data supports that treating someone terribly leads to terrible results. Starting as early as kindergarten, we teach children to treat others how you want to be treated. Yet, when someone commits a crime, we abandon this basic tenet of humanity. One often rationalizes that a person who commits a crime deserves inhumane treatment. This flawed logic leads to flawed results. Not surprisingly, it makes things much worse.  

 

Most of those in prison were victims before committing a crime. For each salacious story about a well-to-do spouse who kills their partner without provocation, there are hundreds of stories of unconscionable suffering. From children in poverty, those who witnessed murder and violence at young ages, those abused physically and sexually and so on. These individuals weren’t born to commit crimes, but were hurt and may have done hurtful things.  

*According to Minnesota DOC, as of 1/1/2023. 8,152 individuals are incarcerated and only 164 of them have life sentences without the possibility of release.  This is approximately 2% of the prison population.

Drug cases are not the problem

Much has been said about the 1990’s War on Drugs and its current role in mass incarceration.  And I’m sure we’ve all heard throughout the years that we could solve the problem by simply releasing those who languish in prison for drug possession crimes.  I wish there was an easy solution to mass incarceration.  I wish this simplistic resolution would provide relief.  But it won’t.  As of January 2023, only 15% of Minnesota’s prison population are incarcerated because of a drug offense.  Most of these individuals were convicted of drug crimes that involve the production or sale of drugs.  Overall, the number of incarcerated individuals based on drug offenses is not insignificant, but it is not the main reason behind–nor the cure of–mass incarceration.  

 

With that said, I disagree fervently with how the CLS treats those with addiction issues as criminals.  In Minnesota, most drug possession cases, regardless of the amount, are felonies.  It seems that someone from an affluent suburb receives treatment at Hazelton Rehabilitation Center if they have an addiction issue, while a black person from a marginalized community winds up in court.  Our medical facilities should treat addiction, not our criminal courts.

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Crime and violent crime exists

Not everyone in prison is innocent. Not everyone in prison is a low-level drug user. Any movement to dismantle mass incarceration in Minnesota must address those who commit “violent crimes.”* This is a difficult question and any changes to the CLS must address this issue if such a movement is to have any value.

 

Hurting someone is wrong. The pain that victims feel is enormous and real. Locking people up in cages and treating them like animals is no better. In fact, it is probably much worse. Incarceration policy is born from thought and not committed in the heat of the moment or in a split second. It’s the product of long political debates, legislative initiatives argued in countless political arenas, in open court before judges and juries. The CLS is intentional and exact. Any solution to this problem must be equally as intentional.

*This topic is hard to analyze for many reasons from the philosophically puzzling to the absurd.  In Minnesota, we define a crime of violence as many things including logical ones like murder, assault, criminal sexual conduct. Minn. Stat. § 624.712, subd. 5.  The definition of a crime of violence also includes any felony drug offenses.  Many of these offenses involve simple possession of a controlled substance.  Id.  Why this are considered violent is unclear.  However, data on crimes of violence ridiculously includes those whose crimes are not violent at all.  

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