Combating Racism – Transforming Criminal Justice

THE FACTS:

The United States is the world’s leader in its rate of incarceration with 2.2 million people currently in federal, state or local prisons and jails – a 500% increase over the last forty years. The United States is home to 5% of the world’s population yet it now houses 25% of the world’s prison inmates. Changes in sentencing law and policy, not changes in crime rates, explain most of this increase. These trends have resulted in prison overcrowding and fiscal burdens on states to accommodate a rapidly expanding penal system, despite increasing evidence that large-scale incarceration is not an effective means of achieving public safety.

According to the Urban Institute, at almost $7.5 billion, federal prison spending has grown at more than twice the rate of the rest of the Department of Justice (DOJ) budget and accounts for about one-quarter of the total. And these expenditures have not yielded the public safety objectives we seek.

Sentencing policies of the "War on Drugs" era resulted in dramatic growth in incarceration for drug offenses. Since its official beginning in the 1980s, the number of Americans incarcerated for drug offenses has skyrocketed from 40,900 in 1980 to 443,200 in 2018. Furthermore, harsh sentencing laws such as mandatory minimums keep many people convicted of drug offenses in prison for longer periods of time: in 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison. By 2004, people convicted on federal drug offenses were expected to serve almost three times that length: 62 months in prison. At the federal level, people incarcerated on a drug conviction make up nearly half the prison population. At the state level, the number of people in prison for drug offenses has increased ninefold since 1980, although it has begun declining in recent years. Most are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense.

THE ISSUES:

Prison buildup

Over the past thirty years, the United States’ prison population has increased by 340%. For decades, the number of prisoners admitted greatly outpaced the number released, creating a surge in the population of incarcerated individuals at the local, state and federal levels. As of 2013, the last year for which comprehensive nationwide data is available, the U.S. incarcerated 2,220,300 individuals. The biggest drivers of this growth were longer sentence lengths for drug offenses, including sentences requiring years or even decades of incarceration, and decreased eligibility for parole.

Prison Composition

One in every 10 Black men in his 30’s is in prison or jail on any given day. Blacks are more likely than White Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted they are more likely to experience lengthier prison sentences than Whites. Black adults are 5.9 times more likely to be incarcerated than Whites. As of 2001, one of every 3 Black boys born that year could expect to go to prison in his lifetime, compared to one of every 17 White boys.

The United States in effect operates two distinct criminal justice systems – one for wealthy people and another for poor people and people of color.

People of color, especially black men, are particularly affected by certain mandatory minimums. Crimes involving crack cocaine are punished more harshly than those involving powder cocaine, and black people are much more likely to be convicted of crimes involving crack.

Congress lessened this disparity with the Fair Sentencing Act of 2010, which resulted in a substantial reduction in the number of federal prosecutions for crack offenses. But the effects of the old law are still seen in the prison population: Although only 2,439 people were sentenced for crack cocaine offenses in 2014, about 23,000 people were in prison for crack cocaine offenses at the end of the fiscal year. Of that group, 63 percent had been sentenced before the Fair Sentencing Act and almost 90 percent were black.

Longer Sentences/ Mandatory Minimum Drug penalties

Mandatory minimum sentences are the primary driver of overcrowding and unsustainable growth in our prisons. They dictate penalties for certain drug crimes and other offenses that many consider too inflexible and severe, sending people to prison for years for minor offenses or on technicalities. Minimum penalties for drug offenses are based solely on the quantity of the drug and not whether the person charged used violence or played a big role in any drug trafficking organization.

Of the more than 90,000 people in federal prisons for drug offenses at the end of FY 2014, 59 percent were sentenced to a mandatory minimum penalty. Those convicted of drug offenses who had mandatory minimums applied at sentencing average over 11 years in prison, compared with about 6 years for drug offenses not subject to a mandatory minimum.

Other policy changes have also contributed to longer sentences. The Sentencing Reform Act of 1984 established strict federal sentencing guidelines, abolished parole, and reduced the time that could be earned off a sentence for good conduct.

Mandatory minimum penalties have too often led to sentences that are unfair, fiscally irresponsible, and a threat to public safety.

Felony Disenfranchisement

In 48 states, a felony conviction can result in the loss of an individual’s voting rights. The period of disenfranchisement varies by state, with some states restoring the vote upon completion of a prison term, and others effectively disenfranchising for life. As a result of the dramatic expansion of the criminal justice system in the last 40 years, felony disenfranchisement has affected the political voice of many communities. As of 2016, 6.1 million Americans were unable to vote due to state felony disenfranchisement policies.

Prison Assignments

The Bureau of Prisons tries to assign people to prisons within 500 miles of their home, but more than a quarter of the prison population is housed farther away. Family support is critical for helping people return home after prison, but it can be difficult to stay connected over long distances, especially for lower income individuals who rely on public transportation.

Collateral Costs

Since 1994, black and Hispanic people have accounted for over 75 percent of growth in the federal prison population. This means that the collateral costs of incarceration also fall disproportionately on communities of color. The losses from mass incarceration spread to the social sphere as well, leaving one out of 10 young black children with a father behind bars, helping perpetuate the damaging cycle of broken families and poverty.  According to Michelle Alexander, in The New Jim Crow, when people of color are disproportionately labeled as “criminals,” this allows the unleashing of a whole range of legal discrimination measures in employment, housing, education, public benefits, voting rights, jury duty and so on. Those who spent time in prison had much lower wages and employment than similar men without criminal records.

RECOMMENDATIONS:

The bi-partisan Charles Colson Task Force on Federal Correction, established by Congressional mandate in 2014, has urged Congress to give the Federal Bureau of Prisons the authority and the resources it needs to deliver evidence-based educational and job-related training to inmates to reduce recidivism, reduce crime and restore lives.

The Charles Colson Task Force is named for “Chuck” Colson who, because of his involvement in the Nixon Watergate Scandal, went to federal prison. Colson went on to found the Prison Fellowship to support and minister to incarcerated individuals and their families and the Justice Fellowship to champion the rights of the incarcerated and fight injustices within the criminal justice system.

A sample of the recommendations of the Task Force include:

1. Our federal prison system should reserve prison beds for those convicted of the most serious crimes.

2. Federal prisons should promote conditions that are safe, humane and conducive to self-betterment. A validated risk and needs assessment should be administered to guide development of individualized case plans and delivery of targeted service and programs necessary to support an effective reintegration. This includes delivering adequate and appropriate in-prison programming and services based on individual risk for recidivism.

3. Incentives (such as earned time off one’s sentence) should be individualized for participation in programs such as addiction treatment, behavior therapies, educational classes and other self-betterment activities.

4. Establish a second look provision for anyone serving more than 15 years to review and potentially modify sentences.

5. Reinvest savings to expand necessary programs, supervision and treatment.

6. Greater funding should be applied to help prepare individuals for release and ensure successful reintegration.

7. Enhance accountability through better coordination across agencies and increased transparency.

A complete list of the task force’s extensive recommendations for criminal justice reform can be found here.

ACTIONS:

1. Read up about mandatory minimum sentences and watch videos about this on Families Against Mandatory Minimums (FAMM’s) website. The website includes work being done at the federal and state levels. Call or write to your state legislators and governor about reducing mandatory minimum sentences for non-violent drug crimes.

2. To reduce mandatory minimum sentences on a federal level:

  • Call or write to your federal legislators in support of the bipartisan (co-sponsored by Senator Lee (R-UT) and Senator Dick Durbin (D-IL)) Smarter Sentencing Act (S. 2850) which reduces the length of federal mandatory minimum drug sentences by half, makes the Fair Sentencing Act’s crack cocaine sentencing reforms retroactive, and expands the “safety valve” exception to mandatory drug sentences. The Act, originally introduced in 2013, would give federal judges the authority to conduct individualized reviews to determine the appropriate sentences for certain nonviolent drug offenses. Several important reforms from the Smarter Sentencing Act were included in the landmark First Step Act, which was enacted into law last year. The central remaining sentencing reform in the legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses. The Congressional Budget Office has estimated that the implementation of this provision would save taxpayers approximately $3 billion over ten years.
  • Call or write to your federal legislators in support of the bipartisan Justice Safety Valve Act (S. 399, H.R. 1097), which would allow judges to give sentences other than the mandatory minimum sentence for any federal crime. This bill authorizes a court to impose a sentence below the mandatory minimum if it determines, after considering certain factors, that the mandatory minimum sentence is greater than necessary.
  • Call or write your federal legislators in support of another criminal justice reform bill, the Second Look Act which would make reduced sentences for crack cocaine convictions from the previously passed Fair Sentencing Act retroactive, reduce mandatory minimums for people convicted more than three times for drug crimes from life without parole after the third offense to 25 years, reduce mandatory sentences for drug crimes from 15 to 10 years, and limit the use of solitary confinement on juvenile prisoners. U.S. Senator Cory Booker and U.S. House Representative Karen Bass have introduced bicameral legislation to create a sentence review procedure for people serving sentences longer than ten years in federal prison. The Second Look Act of 2019 would appoint federal judges to consider petitions for sentence reduction after a person has served at least ten years. The court must find that the person is not a danger to the safety of any person or the community and the interests of justice warrant a sentence modification.

3. Call or write to your state legislators and governor to support state-wide criminal justice reform including reducing mandatory minimum sentences, reducing sentences for non-violent drug crimes, passing “safety valve” law to allow judges to depart below a mandatory minimum sentence under certain conditions, passing alternatives to incarceration, etc. Study after study shows that racism fuels racial disparities in imprisonment, and about 90% of the US prison population is at the state and local level.

4. Call or write to state legislators to require racial impact statements for all criminal justice bills. Most states already require fiscal and environmental impact statements for certain legislation. Racial impact statements evaluate if a bill may create or exacerbate racial disparities should the bill become law. Check out the status of your state’s legislation surrounding these statements here.

5. Research your local prosecutors. Prosecutors have a lot of power to give fair sentences or Draconian ones, influence a judge’s decision to set bail or not, etc. In the past election, a slew of fair-minded prosecutors were elected. We need more.

6. Call or write to state legislators, federal legislators, and your governor to end solitary confinement in excess of 15 days. It is considered torture by the UN, and it is used more frequently on Black and Hispanic prisoners. For more information on solitary confinement, two good overviews can be found here and here.

7. Attend town halls, candidate meet-and-greets, etc. for political candidates and ask them about their positions for ending mass incarceration, reducing mandatory minimum sentences, and reducing or ending solitary confinement. Ask them to voice their opinions on the proposed legislations: The Smarter Sentencing Act, the Justice Safety Valve Act, and the Second Look Act.

8. Read about the inequities in our criminal justice system in any of the following:

  • Just Mercy by Bryan Stevenson
  • No Equal Justice by David Cole
  • Punishment without Crime by Alexandra Natapoff
  • Punishment and Inequality by Bruce Western
  • Race, Incarceration, and American Values by Glenn C. Loury
  • The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander

The recommendations of the Colson Task Force could cut the federal prison population by 60,000. The decrease, largely a result of shortening most drug-related sentences, could save the federal government, and the taxpayers, $5 billion by 2024. Those savings could be invested in programs and services that help those in prison return home, avoid reoffending and rebuild their lives. While Congress, the judiciary and the former Obama administration have taken steps to improve the federal corrections system, the work has only just begun. You can have a voice in bringing about much needed changes. I encourage you to use your voice and your vote.

P.S. A shout out to my friend Jeanne for reminding me of a wonderful book that I left off my list of suggested reading in last week's newsletter - Beloved by Toni Morrison. I appreciate her feedback and welcome comments from others.

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