Content area
Full Text
Incarcerated citizens are citizens with rights. Yet too often their treatment, like that of many people accused or convicted of crimes, is inconsistent with their guaranteed liberties. Especially if they are black, they can be shut away in a prison warehouse, at great cost to the state, leaving behind families that must fend for themselves. Chief Greenberg was concerned that people's doors had been broken during arrests and that someone-landlords, for instance-had to pay for those doors.1 A door is easy to repair, compared to a broken family. In calculating the human cost of our criminal justice system, we must consider the families that are disrupted when someone goes to jail-or when parole is denied.
That consideration informs this Article. First, I discuss some evidence that racism lingers in our criminal justice system. Second, I make a small suggestion for improvement, and in so doing I appeal to those who respect the traditions of liberty and the common law.
There is persistent racism in this country. Although there may be no magic solution to the problem as a whole, the criminal justice system itself aggravates race relations today. So long as it remains unchanged, civil unrest is likely to recur. Consider the riots in the federal prisons when Congress voted down the recommendation of the United States Sentencing Commission on cocaine.2 If nothing else, those uprisings document serious problems within the federal prisons. But more, they suggest that we can expect further disturbances.
How should the government respond? Having expected a more libertarian sentiment from a Federalist symposium, I was surprised to read Clint Bolick's statement that the job of guaranteeing personal security is that of government.3 Surely some Federalists understand that infringements of security can be used to justify massive increases in the power of the government? Surely some Federalists believe that, ultimately, government itself is more to be feared than any single criminal-that guarding liberty is the most important purpose of government?
None of this is to imply that victims do not have rights, or that the rights of criminals should trump the rights of victims. But victims have a powerful guarantee that their rights will be vindicated: via the state. Elected representatives see to the prosecution of criminals, marshaling for that purpose...