Kiriakou’s standing argument about American incarceration is built on a single comparison, which he made in a letter from Loretto and has repeated since: the United States has 5 per cent of the world’s population but 25 per cent of the world’s prison population.[1] He notes that on a per capita basis the country holds more prisoners than Russia, China or Iran, and asks how that is possible in the land of the free.[1] Elsewhere he makes the same point against China alone, observing that China has three times the population.[2]
He attributes the result to two causes: the war on drugs, which he calls ill-conceived and ill-advised, and Congress’s propensity in election years to prove that it is tough on crime.[3]
Over-legislation
Citing the Congressional Research Service, Kiriakou states that Congress created about 50 new crimes per year over the preceding decade. He invokes the Harvard Law School professor Harvey Silverglate, whose book Three Felonies a Day argues that the United States is so over-legislated and daily life so over-criminalised that the average American going about ordinary business commits three felonies a day.[3]
The consequences he cites are that the Bureau of Prisons accounts for a quarter of the Justice Department’s budget, and that according to the American Civil Liberties Union there were 3,278 prisoners serving life without parole for non-violent drug and property crimes.[4]
The human argument
Writing from Loretto, Kiriakou argued that these are not nameless, faceless people: they are people who made a mistake, usually in their youth, and are paying for it with their lives, with their families as additional victims. Against a cost to the taxpayer he gives precisely as $29,291.25 per prisoner per year — a figure he notes is far higher today — he set the alternative of those prisoners working, paying taxes, paying child support and contributing to society.[5][6]
He also describes the effect of proximity. From waking to sleeping, most prisoners want to talk to you about their cases; it is fascinating at first, then tedious, then a real pain. But the truth, he says, is that many of them have been wronged — by a racist system, by incompetent attorneys, by overzealous prosecutors, or by judges whose hands are tied by congressionally mandated minimum sentences, especially for drug crimes.[7]
The reform that failed
While Kiriakou was inside, a bipartisan bill called the Recidivism Reduction and Public Safety Act, sponsored by Democratic Senator Sheldon Whitehouse of Rhode Island and Republican Senator John Cornyn of Texas, was before the Senate, alongside a U.S. Sentencing Commission vote to lower the drug sentencing guidelines for all drug offences. The Commission’s recommendations would, subject to conditions, have granted relief to thousands of federal prisoners convicted of drug crimes before 1 November 1987.[8]
Both that bill and the Smarter Sentencing Act died in the Senate without so much as a vote, because the then majority leader, Harry Reid, never brought them to the floor. When Mitch McConnell became majority leader he said the bills would no longer even be considered — and, in Kiriakou’s account, that is where the matter remains.[6]
The frame he puts around the whole argument is a line he attributes to Dostoevsky: that a society should be judged not by how it treats its outstanding citizens but by how it treats its criminals. In America, he adds, part of the problem is who we consider criminal.[9]