ON THE DEFENSIVE: Searching for justice in the justice system

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By Anthony Cotton

More than half of all black men in Milwaukee County have spent time in prison, according to a University of Wisconsin-Milwaukee study.

The study, which examined two decades worth of data from the Wisconsin Department of Corrections, also found that, since 1990, taxpayers have spent $3.4 billion to incarcerate black men from Milwaukee County alone, and Milwaukee County judges have handed out 117,000 years in sentences to black offenders.

During that same period, the state prison population has tripled.

America incarcerates more people than any country in the world, and the prison industrial complex is fueled by the massive sentences handed down to minorities. Nearly one in 31 adults is behind bars or on probation, and minorities are vastly overrepresented in this pool.

Nearly one in 11 blacks is actively under correctional control in the country.

There are certain obvious solutions to this incarceration epidemic. First, drug policies have to be liberalized, and drug laws need to be reformed. Mandatory-minimum sentencing has to be eliminated so judges can structure sentences that are tailored to the offender.

Second, the concept of cooperation must be revisited. The current cooperation paradigm rewards exaggeration and lies as long as the lies are not detected.

Cooperation fuels dysfunction in minority neighborhoods because relatives, families and friends are pitted against each other. Retaliatory shootings are all too common.

Third, quality treatment programs must be available for those struggling to kick their addictions.

Congress also must take seriously the recommendations of the newly created task force on over-criminalization. Make no mistake, the task force will reach many of the same conclusions the National Association of Criminal Defense Lawyers reached in 2010. Specifically, Congress must scale back the quantity of criminal statutes and ensure that any new criminal law has a clearly defined mens rea.

On the state level, money for the Department of Corrections should be slashed. It is senseless to spend more money on prisons than on the university system. The majority of criminal cases involve drugs, so the savings can be pumped into drug-treatment programs.

Unemployment is rampant in certain areas of Milwaukee. The savings also could be used to expand the availability of technical schools and to increase job training in those areas. Incarcerating an offender, only to release him or her some years later with no additional skills and a publicly accessible criminal record, is myopic and an extraordinary waste of money.

There is no panacea, but if some or more of these changes were enacted, they would go a long way toward making the criminal justice system more just.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.