“The term mass incarceration refers not only to the criminal justice system but also to the larger web of laws, rules, policies, and customs that control those labeled as criminals both in and out of prison. Once released, former prisoners enter a hidden underworld of legalized discrimination and permanent social exclusion.” Michelle Alexander, The New Jim Crow.
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. … We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” – John Ehrlichman, Senior Aide to President Nixon
According to the Prison Policy Initiative, the American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. A series of law enforcement and sentencing policy changes of the “tough on crime” era resulted in dramatic growth in incarceration in the last few decades. In June 1971, President Nixon declared a “War on Drugs,” and in doing so dramatically increased the size and presence of federal drug control agencies, and pushed through measures such as mandatory sentencing and no-knock warrants. The number of people incarcerated for drug offenses in the U.S. skyrocketed from 40,900 in 1980 to 469,545 in 2015. Today, there are more people behind bars for a drug offense than the number of people who were in prison or jail for any crime in 1980.
Additionally, harsh sentencing laws like mandatory minimums (which require binding prison terms of a particular length for people convicted of certain federal and state crimes) combined with cutbacks in parole release, keep people in prison for longer periods of time. The National Research Council reported that half of the 222% growth in the state prison population between 1980 and 2010 was due to an increase of time served in prison for all offenses. There has also been a historic rise in the use of life sentences: one in nine people in prison is now serving a life sentence, nearly a third of whom are sentenced to life without parole.
Research shows that prosecutors are twice as likely to pursue a mandatory minimum sentence for black people as for white people charged with the same offense. Among people who received a mandatory minimum sentence in 2011, 38% were Latino and 31% were black. According to a recent report by the U.S. Sentencing Commission, black men got 19.1 percent longer sentences for the same federal crimes as white men between fiscal years 2012 and 2016. This was after accounting for several variables, including criminal history, whether someone pleaded guilty, age, education, and citizenship. A separate analysis that controlled for a history of violence — but only for fiscal year 2016, due to a lack of data for other years — produced similar results.
Overall, African Americans 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 face stiff sentences. Black men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men. Higher arrest and incarceration rates for these communities are not reflective of increased prevalence of drug use, but rather of law enforcement’s focus on urban areas, lower income communities and communities of color.
Prepared by Candice S. Petty, Esq. for 20/20 Bipartisan Justice Center © 2018