That’s the title of this important NY Times op-ed by Michelle Alexander, who who is the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press 2010). The entire op-ed is essential reading, but this excerpt focuses on one of the reasons why reforming the policy of overcriminalization has become politically difficult:

Those who believe that righteous indignation and protest politics were appropriate in the struggle to end Jim Crow, but that something less will do as we seek to dismantle mass incarceration, fail to appreciate the magnitude of the challenge.  If our nation were to return to the rates of incarceration we had in the 1970s, we would have to release 4 out of 5 people behind bars.  A million people employed by the criminal justice system could lose their jobs . Private prison companies would see their profits vanish. This system is now so deeply rooted in our social, political and economic structures that it is not going to fade away without a major shift in public consciousness.

Sentencing expert Doug Berman comments insightfully:

However, I strongly believe that liberty, not fairness, needs to be the guiding principle in this major shift.  After all, one big aspect of the modern mass incarceration movement has been an affinity for structured guideline reforms and the elimination of parole all in order to have greater fairness and consistency at sentence. 

What we have really achieved is less liberty as much, if not more, than less fairness.