Which leads us to Professor Berman, at SL&P, who says that "as a believer in America's" founding principles of liberty and freedom, I am deeply ashamed to be a citizen in the only country in world history that locks more than 1% of its adult population in small cages with iron bars. I am also ashamed that very few on any "side" of the political fence are complaining about the failure of our nation's leaders to address these critical issues." Berman and others have been complaining about the recent statistic purporting to show that we now lock up 1% or so of our adult population. Berman decries the usual attempted demarcation of this issue, as all others, into "liberal" and "conservative" schools.
"When you break the big laws, you do not get liberty; you do not even get anarchy. You get the small laws."
Perhaps some of the answer to the "shame" of “over incarceration” lies in the observation that when society no longer as a whole abides by shared norms, i.e., for us in the Western world, the moral code of Judeo-Christianity, chaos ensues, as an offender experiences little if any social, familial, or moral opprobrium attached to “minor” crimes such as theft or intoxication by drugs or alcohol. As these smaller social ills are no longer controlled by shared values that create social, familial, and religious pressure not to engage in them, the law must step in to fill the void created by the absence of these controls. And viola, instead of these ills being addressed in the family, community, and church (mainly through pressure to conform to the norms of these societies and by enforcing these pressures in the media, the schools, and other important outlets of culture), the state as a kind of uber parens patriae, intervenes so that society does not simply crumble under the weight of these ills.
The state now being involved, the easiest apparent solution to deterring and punishing these “small” law violations becomes at least some amount of incarceration. The state is not a subtle enough instrument of social correction and control to address easily the problems lawlessness causes. It knows generally only the harshest remedies, including incarceration.
In sum, when the gentler means of social control (family, community, church) fail because of lack of agreed social and religious norms, the harsher means of state control must needs assert themselves, for the survival of orderly society.
Many of our academic discussions bewail these harsher means, but not wanting to admit of their cause, fail to offer solutions that will be successful. Some seem to measure success by increasing the social cost and chaos by simply not punishing the offenses, while offering no real substitute for the traditional institutions that otherwise kept these offenses in check.
I offer no solution to this problem, short of a restoration of the power of the traditional institutions of social control... but I am not delusional enough to imagine that the revolution which has been waged precisely to destroy or marginalize the power of these socially restraining institutions will be met with a counter revolution to restore them.