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- Perhaps the most striking thing, however, about American policing and mass incarceration is that there is no evidence that they work — even on their own terms. Even if the most serious activities harming the greatest number of human lives were the things that we are currently policing and prosecuting in large numbers, we have never bothered to scrutinize whether jailing people who commit them is the best way to have fewer of those incidents occur. If I had to pick one pathology at the core of the modern American legal system, it would be this.
What kind of legal culture allows the massive deprivation of basic liberty without any evidence? If we want to put one person into a cage for a single criminal offense, we are required, at least in theory, to present evidence so compelling that there is no reason to doubt the person’s guilt. We have to be very close to certain, for example, that the heroin found in the backpack belonged to the accused. But laws authorizing the imprisonment of tens of thousands of people have gotten no such scrutiny — we have not required any factual showing that they lead to any benefits. Lawyers have never required evidence that jailing people with heroin in their backpacks furthers a compelling social purpose.