The Prison System, Drug offenders out beat every other criminal activity; true or false?
Who Goes to Prison?
In the nation's state prisons in 1991, less than half were sentenced for a violent crime, a fourth were sentenced for a property crime, and about a fifth were sentenced for a drug crime. 19% of the inmates had current and past nonviolent offenses and had a record of only minor offenses or no prior sentence to incarceration or no incarceration for at least 10 years prior to the current offense. (Bu.of Justice Statistics, NCJ 136949)
According to Bureau of Justice Statistics, "National Corrections Reporting Program 1992," less than one third of state prison admissions in 1992 were for violent offenses. In fact, most maximum security prison systems report that less than 20 percent of their inmates actually need high level security.
In 1996, 12,865 persons, 61% of the total, were sent to NY State prison for non-violent offenses. 9,841 people, 46.5%, were committed for drug offenses. Only 29% were committed for violent felonies.
Most drug offenders are non violent. A report released by Human Rights Watch reveals that only a small percentage of those convicted of drug crimes have violent felony histories.
- Only 7.6% of those admitted to prison in 1995 for first drug felonies had prior convictions for violent offenses.
- Only 20% of those admitted to prison in 1995 as predicate drug felons whose prior conviction was for a drug crime had prior convictions for violent offenses.
- Only 28% of those admitted to prison in 1995 for drug offenses and sentenced as second feleony offenders had prior convictions for violent offenses, and 57.7% had never even been arrested for a violent felony.
It is well known that males in the 15 to 24 age group commit a disproportionate amount of crime, and that rates fall off fairly dramatically in the succeeding age cohorts. There is a new cohort of 15 year-olds entering the high crime rate years annually. Thus, while some offenders are "aging out" of crime, younger offenders are constantly "replacing" them. (Marc Mauer, "The Truth About Truth In Sentencing," American Correctional Association)
Disorganized neighborhoods can be devastating to families - with high rates of transiency, there are few support networks or effective social controls. Residents experience discrimination, chronic unemployment and social isolation from the labor market. Gang activity and drug distribution networks provide violent role models and opportunities to participate in the illicit economy. Young people are at high risk of being victimized and of participating in violence. Many have not developed competencies, social skills or self discipline. Lacking a significant stake in mainstream society or the future, many abandon conventional goals, drop out of school, and adopt dysfunctional lifestyles. ("The Violent Juvenile Offender: Policy Perspetives," Campaign for an Effective Crime Policy)
Almost one in three (32.2%) of young black men in the age group 20-29 is under criminal justice supervision on any given day - in prison or jail, on probation or parole. (Marc Mauer and Tracy Huling, "Young Black Americans and the Criminal Justice system: Five Years Later," The Sentencing Project). Thus, the most productive years of young African-American males are being squandered.
African-Americans constitute 13 percent of all monthly drug users, yet represent 35 percent of arrests for drug possession, 55 percent of convictions, and 74 percent of prison sentences (ibid)
. A study of state prison inmates in 1991 revealed: Most inmates did not live with both parents while growing up. Over 25% had parents who abused drugs or alcohol. 31% had a brother with a jail or prison record. More than 4 in 10 female inmates reported they had been physically or sexually abused before they entered prison. (Bu. of Justice Statistics, NCJ-136949, 1993).
Drug policies constitute the single most significant factor contributing to the rise in criminal justice populations in recent years, with the number of incarcerated drug offenders having risen by 510% from 1983 to 1993. The number of Black (non-Hispanic) women incarcerated in state prisons for drug offenses increased more than eight-fold - 828% - from 1986 to 1991. (Ibid)
31% of the 1991 inmates in state prisons committed their offense under the influence of drugs; and 17% committed their offense to get money for drugs. 32% of inmates committed their offense under the influence of alcohol. About half the inmates under the influence at the time of the offense had been drinking 6 hours or more. (Bu. of Justice Statistics, NCJ 136949)
Data from the Bureau of Justice Statistics show that new court committments to state prisons increased by 155 percent from 1980 to 1992. Violent offenders accounted for only 16 percent of this increase, with the remaining 84 percent being due to increased incarceration of drug and poperty offenders and persons convicted of public order offenses.
Tightening the screws on parolees is a definite, set policy of most states . Between 1980 and 1989, the number of parole violators sent back to prison more than quadrupled (Edna Mc Connel Clark Foundation, Americans Behind Bars, p 11).
In many communities, the mentally ill have been abandoned. Jails and prisons then become the holding centers, without treatment, for many. One study estimates that one in fourteen people in jail suffers from a serious mental illness (The National Alliance for the Mentally Ill, Criminalizing the Seriously Mentally Ill, Washington, DC, 1992).
Race, Sentencing and the "Tough Crime" Movement
No one who has ever visited a prison and seen human beings locked in cages like animals can ever be unmindful of the enormity of society’s decision to deprive one of its members of his or her liberty. The decision to sentence a convicted criminal to prison has, until recently, been viewed as a profound responsibility, one entrusted solely to impartial judges. Increasingly, however, sentencing has become mundane and mechanistic, a decision effectively controlled by legislators, prosecutors and sentencing commissioners. This change in the culture of sentencing has had disastrous consequences for minorities in the United States.
A. A Brief History of U.S. Sentencing Policy
In the late 18th and early 19th century, federal and state legislators typically set mandatory penalties for violations of law. But more enlightened penological views soon gained favor, and judges were granted discretion to sentence offenders to a range of punishments depending upon the severity of the crime and the character of the defendant.
At several points in this century, most recently in the mid-1980’s, Congress and many state legislatures have enacted laws to deny judges sentencing discretion. These laws establish a minimum penalty that the judge must impose if the defendant is convicted of particular provisions of the criminal code. Mandatory sentencing laws are generally premised on the view that punishment and incapacitation, not rehabilitation, is the primary goal of the criminal justice system.
While they deprive judges of their traditional authority to impose just sentences, such mandatory minimum sentencing laws are not truly mandatory because they provide opportunities for prosecutors to grant exceptions to them. As described in the preceding chapter, prosecutors can choose to charge particular defendants with offenses that do not carry mandatory penalties or they can agree to a plea agreement in which the charges carrying mandatory penalties will be dismissed. And, as also noted earlier, under federal law only the prosecutors may grant a departure from mandatory penalties by certifying that the defendant has provided “substantial assistance” to law enforcement.
Mandatory minimum laws embody a dangerous combination. They provide the government with unreviewable discretion to target particular defendants or classes of defendants for harsh punishment. But they provide no opportunity for judges to exercise discretion on behalf of defendants in order to check prosecutorial discretion. In effect, they transfer the sentencing decision from impartial judges to adversarial prosecutors, many of whom lack the experience that comes from years on the bench.
At the same time that mandatory sentencing laws came back into vogue in the mid-1980’s, a separate movement to establish sentencing guidelines gained favor. Guidelines are a middle ground between unfettered judicial discretion and mandatory penalties. These laws, such as the Sentencing Reform Act of 1984 at the federal level, establish a centralized commission to set a presumptive sentencing range and to enumerate sentencing factors that a judge must consider. But they permit judges to depart upward or downward based on unusual factors in an individual case.
Interestingly, some supporters of civil rights championed mandatory sentencing and guideline sentencing as an antidote to perceived racial disparities in sentencing. But the evidence is clear that minorities fare much worse under mandatory sentencing laws and guidelines than they did under a system favoring judicial discretion. By depriving judges of the ultimate authority to impose just sentences, mandatory sentencing laws and guidelines put sentencing on auto-pilot. Discretionary decisions of law enforcement agents and prosecutors engaged in what Justice Cardozo called "the competitive enterprise of ferreting out crime" are more likely to disadvantage minorities than judicial discretion.
The mandatory sentencing movement reached its apex in the mid-1990's when Congress and many states adopted so-called "3 strikes, you're out" laws. Under these statutes, defendants with two prior criminal convictions can be sentenced to life in prison, even if their third "strike" is for relatively minor conduct. Some states, such as Georgia, have enacted even harsher "2 strikes" laws. But again, these mandatory laws are typically invoked by prosecutors who have substantial discretion in choosing which defendants to single out for grossly disproportionate punishments. Once the "3 strike" or "2 strike" statute is invoked, there is often nothing a judge can do to ameliorate the harsh punishment that the legislature has authorized the prosecutor to demand.
The final policy development that has transformed sentencing in the last two decades is the abolition of parole in the federal system and in many states. Indeterminate sentencing, in which parole boards exercised discretion to release defendants from prison based on rehabilitation and good behavior has been discarded in favor of “truth-in-sentencing.” Sentencing is now generally mandatory, determinate and harsh, a volatile mix that has led to dramatically increased prison populations.
One reason sentencing has become uniformly harsher across the country is that the federal government, which previously led only by example, has in recent years established significant financial incentives for states to revise their sentencing laws on the federal model.The federal criminal code is notoriously irrational and the federal sentencing system is a patchwork of overly simple mandatory minimums and overly complex sentencing guidelines. Nonetheless, many states have tailored their sentencing systems to congressional specifications, contributing to the headlong rush to incarcerate.
B. The Result of Tough-on Crime Sentencing Policies
Some politicians treat sentencing policy as an opportunity for demagoguery, but the combined effect of the various sentencing laws enacted in the past three decades is anything but rhetorical. In 1972, the population of federal and state prisons combined was approximately 200,000. By 1997, the prison population approached 1.2 million, an increase of almost 500 percent. Similar developments at the local level led to an increase in the jail population from 130,000 to 567,000. Thus, America now houses some 2 million people in its federal and state prisons and local jails.
Prison and jail populations have not only swelled in the last 30 years, they have also changed in character. As a result of the nation’s current “War on Drugs” which began in the early 1980’s, an increasingly large percentage of those incarcerated have been charged with or convicted of non-violent drug crimes.
Between 1980 and 1995, the number of state prisoners locked up for drug crimes increased by more than 1000 percent. Whereas only one out of every 16 state inmates was a drug offender in 1980, one out of every four in 1995 was a drug offender. By the middle of the 1990’s, 60 percent of federal prison inmates had been convicted of a drug offense, as opposed to 25 percent in 1980. If local and county jail inmate populations are included in the calculation, there are now some 400,000 federal and state prison inmates – almost a quarter of the overall inmate population - serving time or awaiting trial for drug offenses. Drug offenders accounted for more than 80 percent of the total growth in the federal inmate population – and 50 percent of the growth of the state prison population – from 1985 to 1995.
The chances of receiving a prison sentence after being arrested for a drug offense increased by 447 percent between 1980 and 1992. The number of state prison drug sentences between 1985-1995 increased 331 percent, and represented more than half of the overall increase in state sentences meted out during that period. The effect of drug sentences on the federal system is even more pronounced. The number of federal drug sentences imposed between 1985 and 1995 increased 478 percent, and accounted for 74 percent of the total increase in federal sentences during that period. Similarly, the length of sentences for drug offenses dramatically increased: Drug offenders entering federal prison in 1986 served an average term of almost 30 months; drug offenders entering federal prison in 1997 were expected to serve an average term of more than twice that length, 66.2 months.
An overly punitive crime control strategy is unwise and ineffective for many reasons, most beyond the scope of this report. But one of the chief failings of undue reliance on imprisonment to solve social problems is that this approach results in serious racial disparities. The “tough on crime” movement of the past several decades have led to incarceration rates for minorities far out of proportion to their percentage of the U.S. population.
C. Racially Disparate Sentencing Outcomes
One of the most thorough studies of sentencing disparities was undertaken by the New York State Division of Criminal Justice Services, which studied felony sentencing outcomes in New York courts between 1990 and 1992. The State concluded that one-third of minorities sentenced to prison would have received a shorter or non-incarcerative sentence if they had been treated like similarly situated white defendants. If probation-eligible blacks had been treated like their white counterparts, more than 8000 fewer black defendants would have received prison sentences in that two year period, resulting in a five percent decline in the percentage of blacks sentenced to prison as a percentage of the entire sentenced population. In short, the study found, blacks are sentenced to prison more frequently than whites for the same conduct.
Other sentencing data is consistent with the New York findings. Nationwide, black males convicted of drug felonies in state courts are sentenced to prison 52 percent of the time, while white males are sentenced to prison only 34 percent of the time. The ratio for women is similar – 41 percent of black female felony drug offenders are sentenced to prison, as compared to 24 percent of white females. With respect to violent offenses, 74 percent of black male convicted felons serve prison time, as opposed to only 60 percent of white male convicted felons. With respect to all felonies, 58 percent of black male convicted felons, as opposed to 45 percent of white men, serve prison sentences.
Some of these aggregate statistics do not control for a defendant’s prior criminal record, but even that is not a neutral basis for comparison because racial profiling, prosecutorial discretion and juvenile justice decision-making make minorities more likely to acquire a criminal record than their white counterparts. And at least one study that examined only defendants without criminal records found that Hispanics and blacks with no prior record were disproportionately likely to be sentenced to prison than white defendants with no prior record. Indeed, Hispanics were twice as likely as whites to draw a prison term as opposed to probation, a fine or time in a county jail.
Racial disparities can be found not only in the fact of incarceration, but in the length of prison or jail time served. According to a Justice Department review of state sentencing, whites who serve time for felony drug offenses serve shorter prison terms than their black counterparts: An average of 27 months for whites, and 46 months for blacks. These discrepancies are mirrored with regard to non-drug crimes. Whites serve a mean sentence of 79 months for violent felony offenses; blacks serve a mean sentence of 107 months for these offenses. Whites serve a mean sentence of 23 months for felony weapons offenses, blacks serve a mean sentence of 36 months for these offenses. Overall, whites in state prisons nationwide in 1994 served a mean time of 40 months, as compared to 58 months for blacks.
D. Minority Incarceration Rates
The choice of legislatures to lengthen drug sentences, combined with drug enforcement tactics, has had a disproportionate impact on America’s minorities. As the overall prison population has increased because of the war on drugs, so too has the minority proportion of the overall prison (and drug offender) population. From 1970 to 1984, whites generally comprised approximately 60 percent of those admitted to state and federal facilities, and blacks around 40 percent. By 1991, these ratios had reversed, with blacks comprising 54 of prison admissions versus 42 percent for whites. Other minority groups have also been affected by this trend: Hispanics represent the fastest growing category of prisoners, having grown 219 percent between 1985-1995. The percentage of Asian-Americans in prison has also grown; their percentage of the federal prison population increased by a factor of four from 1980 to 1999.
The changing face of the U.S. prison population is due in large measure to the war on drugs: In 1985, the number of whites imprisoned in the state system actually exceeded the number of blacks. Between 1985 and 1995, while the number of white drug offenders in state prisons increased by 300 percent, the number of similarly situated black drug offenders increased by 700 percent, such that there are more than 50 percent more black drug offenders in the state system than white drug offenders.
Because the overall number of imprisoned drug offenders has increased, and the number of minorities as a percentage of that population has increased, far more minorities than whites are serving time for drug offenses as a percentage of their respective prison populations. As of 1991, 33 percent of all Hispanic state prison inmates, and 25 percent of all black state prison inmates, were serving time for drug crimes, as compared to only 12 percent of all white inmates. By contrast, in 1986, only seven percent of black inmates, and eight percent of white inmates, had been convicted of drug crimes. In other words, the chances are far better that an imprisoned black or Hispanic is serving time for a drug crime than it is that an imprisoned white is serving time for a drug crime.
Minorities are disproportionately disadvantaged by current drug policies. As we have seen, it is not because minorities commit more drug crimes, or use drugs at a higher rate, than white Americans. Drug use rates per capita among minority and white Americans are similar, a fact which, given the Nation’s demographics, means that many more whites use drugs than do minorities. Moreover, as noted earlier, studies suggest that drug users tend to purchase their drugs from sellers of their own race.
Rather, the disproportionate effect of the war on drugs on minorities results from three factors: First, more arrests of minorities for drug crimes; second, overall increases in the severity of drug sentences over the past 20 years; and third, harsher treatment of those minority arrestees as compared to white drug crime arrestees.
As noted, while blacks constitute approximately 12 percent of the population, as well as a similar percentage of U.S. drug users, they constitute 38 percent of all drug arrestees. Given the demographics of the United States, therefore, far more blacks than whites per capita are arrested for drugs, and overall increases in arrests affect more blacks per capita than whites. Indeed, by 1989, with the war on drugs in full force and overall drug arrests having tripled since 1980, blacks were being arrested for drug crimes at a rate of 1600 per 100,000, while whites were being arrested at one-fifth the frequency per capita -- 300 per 100,000. The statistics in certain United States cities were even more eye-catching: In Columbus, Ohio, black males accounted for 11 percent of the total population, and for 90 percent of the drug arrests. In Jacksonville, Florida, black males comprised 12 percent of the population, but 87 percent of drug arrests.
Why are minorities the primary targets of the war on drugs? Much of this discrepancy can be traced to practices such as racial profiling. The assumption that minorities are more likely to commit drug crimes and that most minorities commit such crimes will prompt a disproportionate number of investigations, and therefore, arrests of minorities. Drug arrests are easier to accomplish in impoverished inner-city neighborhoods than in stable middle-class neighborhoods, so the insistence of politicians on more arrests results in vastly more arrests of poor, inner-city blacks and Hispanics. /p>
Blacks are not only targeted for drug arrests. They are also 59 percent of those convicted of drug offenses and, because they are less likely to strike a favorable plea bargain with a prosecutor, 74 percent of those sentenced to prison for a drug offense. Thus, blacks are disproportionately subject to the drug sentencing regimes adopted by Congress and state legislatures. And these sentencing regimes, across all levels of government, increasingly provide for more and longer prison sentences for drug offenders.
Mandatory minimums such as "three strikes" laws result in the extended incarceration of non-violent offenders who, in many cases, are merely drug addicts or low-level functionaries in the drug trade. Indeed, in the first two years after enactment of California’s “three strikes, you’re out” law, more life sentences had been imposed under that law for marijuana users than for murderers, rapists, and kidnappers combined. An Urban Institute study examining 150,000 drug offenders incarcerated in state prisons in 1991 determined that 127,000 of these individuals – 84 percent – had no history of violent criminal activity, and half of the individuals had no criminal record at all. Data from the federal system reveals the same trend. More than half of those sentenced to federal prison in 1992, after the enactment of mandatory minimum sentences for drug offenders, were drug traffickers; of those, 62 percent were considered “low-risk,” based on a lack of prior criminal histories. Yet these low-risk traffickers were expected to serve an average of 51 months in prison, as compared to 17 months for similarly situated federal prisoners who had been sentenced prior to the enactment of mandatory minimums.
While three strikes laws and mandatory minimums limit judicial discretion to reduce prison sentences, they do not reduce prosecutorial discretion over charging and plea negotiations – decisions which will determine whether strict sentencing laws apply. For example, Georgia District Attorneys sought life sentences for 16 percent of black criminal defendants eligible for such sentences under the State’s “two strikes, you’re out law,” which provided for the imposition of a life sentence for a second drug offense. By contrast, Georgia prosecutors sought a life sentence in only one percent of the eligible cases involving white defendants. The result was that 98.4 of those serving life terms under the Georgia statute were black. Similarly, as of 1996, blacks made up 43 percent of Californians sentenced to prison under the State’s “three strikes you’re out” law, despite comprising only seven percent of the total State population.
Much of the discrepancy at the federal level is the result of differences in the federal sentencing of drug offenses involving crack and powder cocaine. These disparities, enacted into law as part of the Anti-Drug Abuse Act of 1986, arise from the different thresholds for the imposition of mandatory minimum prison sentences for crack and powder cocaine dealers. In short, federal law imposes mandatory 5-year federal prison sentences on anyone convicted of selling 5 grams or more of crack cocaine, and 10-year mandatory sentences for selling 50 grams or more of crack. But in order to receive the same mandatory 5- and 10-year sentences for selling powder cocaine, a defendant must be convicted of selling 500 and 5000 grams of powder cocaine.
Studies have shown that blacks and whites convicted of federal powder cocaine offenses go to jail for approximately the same length of time; so too do blacks and whites convicted of crack cocaine offenses. The problem is that, as we have seen, few whites are prosecuted for crack offenses in federal court, and are instead prosecuted in state systems that may not impose mandatory minimum penalties for crack offenses. Indeed, in 1993, 95.4 percent of those convicted for federal crack distribution offenses were black or Hispanic. This despite the fact that, as discussed in Chapter II, the majority of crack users in the United States in that period were white. By contrast, almost one third (32 percent) of those convicted of federal powder cocaine distribution offenses in 1993 were white. The crack/powder sentencing disparity, combined with the almost-exclusive focus on blacks and Hispanics for crack-related federal prosecutions, means that minorities in general serve longer sentences for similar drug crimes than do whites. Combined with the far greater drug arrest rates for blacks than whites, and the general reliance on mandatory minimums for drug crimes, these longer sentences ensure that federal prisons house a disproportionately large number of minorities.
The crack/powder cocaine divide has not escaped the attention of policymakers, although it has escaped resolution. In 1995, the United State Sentencing Commission recommended to Congress that the sentencing guidelines be altered to eliminate the differences in crack and cocaine sentencing thresholds, noting both the inequality inherent in these differences and the cynicism they engender in minority communities. Nonetheless, President Clinton proposed, and Congress passed, legislation rejecting the Commission’s proposed changes. The Commission has since revisited the issue and has recommended a reduction, not an elimination, in the current 100-to-1 disparity, noting again that “[t]he current penalty structure results in a perception of unfairness and inconsistency.”Congress has never acted on this recommendation.
E. The Lighter Side of Drug Policy
The federal and state policies enacted as part of the war on drugs suggest that America is of one mind when it comes to drug policy: Users and sellers of drugs should be severely punished. Yet this is in fact not the uniform response to drug-related activity. Indeed, when it comes to drug use in affluent, largely white communities, the model is rather different.
The experience of Milwaukee, Wisconsin, is typical in this regard. The predominantly white suburbs that encircle Milwaukee have all passed marijuana possession ordinances, whereby an individual found in possession of marijuana is ticketed, as if for a parking offense, but not charged with a crime. The City of Milwaukee, by contrast, charges marijuana possession as a crime, having rejected a proposed marijuana possession ordinance in the mid-1980s. As a result of these discrepancies, the Wisconsin Correctional Service concluded, non-whites were being charged with drug offenses 13 times more frequently than whites. Moreover, authorities in the Milwaukee suburbs generally issued tickets to residents of those suburbs, but typically transported non-residents, including many blacks, downtown for criminal prosecution.
Affluent predominantly white suburban communities have long recognized that the drug war need not be fought only on the incarceration front. Alternatives such as drug treatment and education are mainstays of white, middle-class efforts to eradicate the scourge of drugs from their neighborhoods. A strategy centered on such demand reduction efforts makes sense: The Rand Corporation has estimated that investing an additional $1 million in drug treatment programs would reduce by fifteen times more serious crime than enacting more mandatory sentences for drug offenders. But when it comes to the presence of drugs in inner-city areas, the response of policymakers is to build prisons rather than treatment facilities.
The Violent Crime Control Act of 1994 authorizes prison construction grants to states that “increase the average prison time actually served or the average percent of sentence served by persons convicted of a . . . violent crime.” 42 USC § 13703 (2000). In the same vein, a bill recently passed by the House of Representatives authorizes grants to states that enact mandatory minimum sentencing laws for certain gun crimes. See H.R. 4051, 106th Cong., 2d Sess. (March 22, 2000) (passed House on April 13, 2000).
Marc Mauer, “The Crisis of the African-American Male and the Criminal Justice System,” Written Testimony Before the U.S. Commission on Civil Rights, April 15-16, 1999 (Mauer Civil Rights Commission Testimony), p. 8 (citing data from the Bureau of Justice Statistics, U.S. Department of Justice).
Anti-drug efforts in America have always had a racial tint. Indeed, while America has experienced an alternating tolerance and intolerance of drug use, during those periods where intolerance has been the norm, “drug use becomes associated . . . with the lower ranks of society, and often with ethnic and racial groups that are feared or despised by the middle class.” Daniel Kagan, “How America Lost its First Drug War,” Insight 8 (November 20, 1989). Thus, “[e]arlier in this century, although mainstream women were the model category of opiate users, images of Chinese opium smokers and opium dens were invoked by opponents of drug use” and led to the enactment of federal anti-drug legislation. Michael Tonry, “Race and the War on Drugs,”1994 U. Chi. Legal Forum 25, 39 (1994). And “imagery linking Mexicans to marihuana use was prominent in the anti-marihuana movements that culminated in the Marihuana Tax Act of 1937” and state anti-marijuana laws. Id. See generally David Musto, The American Disease: Origins of Narcotic Control (Oxford University Press, 1987). The current drug war, in which inner-city blacks have become the archetypal users of crack, the archetypal drug of today’s drug epidemic, is simply the latest chapter in this ongoing American story.
Michael Tonry, “Racial Disparities Getting Worse in U.S. Prisons and Jails,” in Michael Tonry and Kathleen Hatlestad eds.,Sentencing Reform in Overcrowded Times (Oxford University Press, 1997) (Tonry & Hatlestad), p. 223 (citing Bureau of Justice Statistics data).
Jerome G. Miller, Search and Destroy: African-American Males in the Criminal Justice System (Cambridge University Press 1996), p. 82 (citing Sam Vincent Meddis, “Is the Drug War Racist?” USA Today, July 23-25, 1993, p. 2A).
United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (February 1995) at xi. Interestingly, Minnesota, whose sentencing regime includes a crack/powder divide similar to that appearing in federal law, had similar breakdowns: 96.6 of those charged with possession of crack cocaine were black, while 80 percent of those charged with possession of powder cocaine were white.No Equal Justice at 142. The Minnesota Supreme Court ultimately struck down the crack/powder divide on equal protection grounds. State v. Russell, 477 N.W.2d 886, 891 (Minn. 1991). The Minnesota legislature responded by increasing penalties for powder cocaine sales to equal those for crack sales.
United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (February 1995) at 192 (“[S]entences appear to be harsher and more severe for racial minorities than others as a result of this law, and hence the perception of unfairness, inconsistency, and a lack of evenhandedness”).
In 2009, according to the Bureau of Justice Statistics, there were 1,524,513 prisoners in state and federal prisons. When local jails are included, the total climbs to 2,284,913. These numbers are not just staggering; they are far above those of any other liberal democracy in both absolute and per capita terms. The International Centre for Prison Studies at King’s College London calculates that the United States has an incarceration rate of 743 per 100,000 people, compared to 325 in Israel, 217 in Poland, 154 in England and Wales, 96 in France, 71 in Denmark, and 32 in India.
America’s enormously high incarceration rate is a relatively recent phenomenon. According to a 2010 report from the Center for Economic and Policy Research (CEPR), U.S. incarceration rates between 1880 and 1970 ranged from about 100 to 200 prisoners per 100,000 people. After 1980, however, the inmate population began to grow much more rapidly than the overall population, climbing from about 220 per 100,000 in 1980 to 458 in 1990, 683 in 2000, and 753 in 2008.
Why are American incarceration rates so high by international standards, and why have they increased so much during the last three decades? The simplest explanation would be that the rise in the incarceration rate reflects a commensurate rise in crime. But according to data from the Federal Bureau of Investigation and the Bureau of Justice Statistics (BJS), the total number of violent crimes was only about 3 percent higher in 2008 than it was in 1980, while the violent crime rate was much lower: 19 per 1,000 people in 2008 vs. 49.4 in 1980. Meanwhile, the BJS data shows that the total number of property crimes dropped to 134.7 per 1,000 people in 2008 from 496.1 in 1980. The growth in the prison population mainly reflects changes in the correctional policies that determine who goes to prison and for how long.
Mandatory minimum sentencing laws enacted in the 1980s played an important role. According to the CEPR study, nonviolent offenders make up more than 60 percent of the prison and jail population. Nonviolent drug offenders now account for about one-fourth of all inmates, up from less than 10 percent in 1980. Much of this increase can be traced back to the “three strikes” bills adopted by many states in the 1990s. The laws require state courts to hand down mandatory and extended periods of incarceration to people who have been convicted of felonies on three or more separate occasions. The felonies can include relatively minor crimes such as shoplifting.
What have longer prison sentences accomplished? Research by the Pew Center on the States suggests that expanded incarceration accounts for about 25 percent of the drop in violent crime that began in the mid-1990s—leaving the other 75 percent to be explained by things that have nothing to do with keeping people locked up.
As for the costs, state correctional spending has quadrupled in nominal terms in the last two decades and now totals $52 billion a year, consuming one out of 14 general fund dollars. Spending on corrections is the second fastest growth area of state budgets, following Medicaid. According to a 2009 report from the Pew Center on the States, keeping an inmate locked up costs an average of $78.95 per day, more than 20 times the cost of a day on probation.
More important is the long-term impact that the tough-on-crime policies of the last two decades have had on prisoners and society. Housing nonviolent, victimless offenders with violent criminals for years on end can’t possibly help them reintegrate into society, which helps explain why four out of 10 released prisoners end up back in jail within three years of their release.
As the Harvard sociologist Bruce Western and the University of Washington sociologist Becky Pettit showed in a 2010 study published by the Pew Center on the States, incarceration has a lasting impact on men’s earnings. Taking age, education, school enrollment, and geography into account, they found that past incarceration reduced subsequent wages by 11 percent, cut annual employment by nine weeks, and reduced yearly earnings by 40 percent. Only 2 percent of previously incarcerated men who started in the bottom fifth of the earnings distribution made it to the top fifth 20 years later, compared to 15 percent of never-incarcerated men who started at the bottom.
It isn’t just offenders whose lives are damaged. Western and Pettit note that 54 percent of inmates are parents with minor children, including more than 120,000 mothers and 1.1 million fathers. One in every 28 children has a parent incarcerated, up from 1 in 125 just 25 years ago. Two-thirds of these children’s parents were incarcerated for nonviolent offenses.
While we don’t yet have data on the income mobility of these children, Rucker C. Johnson of the Goldman School of Public Policy found in 2009 that children whose fathers have been incarcerated are significantly more likely than their peers to be expelled or suspended from school (23 percent compared to 4 percent). Johnson found that family income, averaged over the years a father is incarcerated, is 22 percent lower than family income the year before his incarceration. Even in the year after the father is released, family income remains 15 percent lower than it was the year before incarceration. Both education and parental income are strong indicators of a child’s future economic mobility.
Attempts to estimate the costs and benefits of prison have proved difficult and controversial. In 1987, for example, the National Institute of Justice economist Edwin Zedlewski used national crime data to calculate that the typical offender commits 187 crimes a year and that the typical crime exacts $2,300 in property losses or in physical injuries and human suffering. Multiplying these two figures, Zedlewski estimated that the typical imprisoned felon is responsible for $430,000 in “social costs” each year he is free. Dividing that figure by an annual incarceration cost of $25,000, he concluded that the public benefits of imprisonment outweigh the costs by 17 to 1.
Zedlewski’s findings have been debunked many times. A severe rebuttal came from the Boalt Hall Law School penologists Franklin Zimring and Gordon Hawkins, who argued in a 1988 article published by the National Council of Crime and Delinquency that Zedlewski overstated the net benefit of incarceration by inflating the numerator (crimes per offender and social costs per crime) and deflating the denominator (annual cost of confinement). They cited several studies to bolster their charge, including one indicating that the typical offender commits 15 (as opposed to 187) crimes in a year. According to a 1991 Brookings paper by John J. DiIulio and Anne Morrison Piehl, making this one adjustment to the calculations reduces the benefit/cost ratio to 1.38. In other words, the benefit of incarceration is probably small, especially compared to the high cost of locking people up. Also note that Zedlewski assumed imprisoned offenders were predatory criminals, although a substantial share of real-world convicts are guilty only of victimless crimes.
Fortunately, economists are getting better at understanding how to keep people out of jail. In a 2007 paper for Economic Inquiry, for instance, the U.C.–Santa Barbara economist Jeff Grogger found there are large deterrent effects from increased certainty of punishment and much smaller, generally insignificant effects from increased severity. Such findings call into question the economic rationality of increasingly long prison terms. Who knows how many more millions will be locked up by the time public policy finally catches up with economics?
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