In the United States, prison sentences have gotten longer and longer—a sea change that Americans have come to accept relatively quickly (largely because the targets have been people of color). Just a few decades ago in high-incarceration states like Louisiana, lifers were eligible for release in ten and a half years. Today in Louisiana, there is no longer parole for lifers, and thus virtually no hope of release, ever. 

And when it comes to crimes prosecuted under the War on Drugs, three-strikes sentencing and mandatory minimums have not only sent people away for life for minor drug offenses—an anomaly compared to the rest of the world—they have led to a current reality in which the vast majority of people arrested on nonviolent drug charges plead guilty—whether they are or not—in order to avoid such draconian prison sentences, a decision that can have lifelong implications.

To be fair, Fisher is not talking about US-style drug sentencing—or sentencing as it exists on the ground here at all. But he should have, because the fact that there are nonviolent drug offenders serving the same amount of time as convicted murderers in the United States is rooted in a Frankenstein version of the very retributive model he is writing about. 

The War on Drugs was ostensibly designed to harshly punish those responsible for massive harm to our communities (while in practice, ensnaring low-level offenders who harm no one, except possibly themselves). Mandatory sentencing statutes, supposedly devised to fulfill a retributive ideal, have instead tied the hands of judges when it comes to imposing fair, proportionate sentences, leading to systemic perversions of justice. 

It is the reason New York has had to roll back its notorious Rockefeller Drug Laws. It is the reason the Supreme Court recently struck down mandatory sentences of life without parole for juvenile offenders. And it is the reason our prison system is so disproportionately comprised of African-American men, who are perceived to be the most dangerous criminals in our society, and the most deserving of harsh punishments.

....Norwegians, of course, including survivors and their family members, seem to have widely accepted Breivik’s sentence, suggesting that the system has actually fulfilled their desire for justice and fairness (a fact Fisher acknowledges and finds “jarring”). 

“That’s how it should work,” one survivor of the massacre said of the sentence. “That’s staying true to our principles and the best evidence that he hasn’t changed society.” Like victims’ family members who oppose the death penalty in the face of a system that seeks to convince them that executions are for their own good, these voices should be amplified, not dismissed.

There is little within the US system that fulfills this human desire for justice and fairness. It is a system dramatically out of step with the rest of the world, one that overwhelmingly and disproportionately punishes the most vulnerable for some of the most innocuous crimes. Theory aside, the American prison system is staggering proof of just how pathetically we have failed at defining—and delivering—“justice” using a retributive model.

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