Letters to the Editor

Letters: Mass incarceration debate

  • Print.


Whatever flaws the United States system of criminal justice may have, “mass incarceration” is not one of them, as stated in “Marked for Life,” May.

Mass incarceration is the rounding up and jailing of groups of people. That does not happen in the United States. U.S. criminal law requires that for an individual to be deprived of life, liberty or property, that person must be convicted in a court of law under due process conditions. That is, the state must prove in a public proceeding that the individual has, beyond a reasonable doubt, committed all of the elements of a specific crime. Where multiple people are involved in a single set of operative facts, the defendants may be tried separately in order to avoid conflicts of interest among the defendants.

There is no denying that the U.S. criminal system runs on a case-by-case basis. We even keep track of the cases by using the names of the defendants. Criminal trials with multiple defendants are rare and only occur with the consent of the defendants. Mass incarceration is a political propaganda term, a gross misnomer that has no place in the ABA Journal.

Valerie E. Looper
Vista, California

Editor’s note: On April 29, reader comments on ABAJournal.com were disabled indefinitely.


While I am saddened to see the ABA Journal close down the comments feature of its online articles, I applaud you for doing it. I have been appalled by the obvious presence of troll-driven comments and troubled about what this says about the viability of public venues for input.

The tone of the comments has all too frequently been just as noted—unacceptably rancorous and uncivil. Given what is happening with social media, trolls, fake news and manipulation of storylines, we may have to face the difficult choice: that accommodating open speech will require the true and full identity of the speaker to be revealed. I believe we would eliminate the vast majority of the problem if the true identities of the commenters were to be known.

Robert Cheasty


I enjoy Bryan Garner’s monthly column and have written on textualism, the subject of “It Means What It Says,” April. Here’s the salient line from that column: “So the ideal textualist is content-neutral, at least in theory.” Mark that: in theory. Actual practice is far different. In high-profile cases, cases that broadly shape the law, cases with political and ideological significance, self-proclaimed textualists reach conservative results with uncanny regularity. All judges start with text and make textual arguments, of course, but they almost always lead textualists in the same direction. 

You can recognize the textualist brand in a number of ways: by strenuous parsing in an effort to resolve ambiguity, followed by the assertion that it doesn’t exist; by overreliance on highly malleable and often-conflicting canons of construction; by a boundless confidence that the “plain language” of a statute compels such-and-such a result; by a general aversion to legislative history and a reluctance to consider values and sensible policy, even in close cases; and, above all, by a propensity to reach for dictionaries—those great grab bags—and pluck out convenient definitions.

Textualism is just as squishy, just as pliable, as any other theory of interpretation.

Joseph Kimble
Lansing, Michigan


You may submit a letter by email to [email protected] or via mail: Attn: Letters, ABA Journal, 321 N. Clark St. Chicago, IL 60654. Letters must concern articles published in the Journal. They may be edited for clarity or space. Be sure to include your name, city and state, and email address. Read more Letters to the Editor from the ABA Journal magazine.

Give us feedback, share a story tip or update, or report an error.