Mass Incarceration in America

Police and Profiling

• A review of 20 million traffic stops found that black people are twice as likely to be pulled over than whites, and 4 times more likely to be searched¹.
• An investigation of the Ferguson Police Department by the Justice Department conducted between 2012 and 2014 found that though black people in Ferguson, Missouri comprised 67% of the population, they accounted for 85% of vehicle stops, 90% of citations, and 93% of arrests. The report also found that black people were more than twice as likely to be searched after traffic stops, despite being 26% less likely to be in possession of weapons or illegal drugs.
• The report, “Driving While Black” found that between 2011 and 2015, black drivers in Davidson County (which includes Nashville) were pulled over at a rate of 1,122 stops per 1,000 black drivers.

Sources:

1 – Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race by F. Baumgartner, D. Epp, K. Shoub

Prosecutorial Discretion – This term refers to the power that prosecutors have in criminal cases. They decide when to press charges and what cases to bring to court. They can also offer plea deals to defendants – i.e. if the individual pleads guilty, the prosecutor will offer a shorter prison sentence.

• A 2015 study of the left-leaning Women Donors Network found that 95% of elected prosecutors are white, with 79% of them being white men. The study also found that in three-fifths of states where prosecutors are elected, there are no black prosecutors.
• A review of nearly 474,000 cases in Hampton Roads, Virginia showed that 48% of white defendants received plea bargains with no jail time compared to 22% of black defendants. When looking at defendants with no prior criminal history who pleaded guilty to robbery, 36% of white defendants received no jail time compared to only 8% of black defendants.

Jury Selection

• In the 1986 case of Batson v. Kentucky, the Supreme Court made it illegal for prosecutors to dismiss prospective jurors due to their race. Despite this ruling, courts have found ways to strike down potential jurors through “race-neutral factors” like living in a black-majority neighborhood or affiliation with a historically black college.
• A review of felony jury trials prosecuting in Louisiana’s Caddo Parish from 2003 and 2012 found that prosecutors struck 46% of prospective black jurors compared to 15% of prospective nonblack jurors.

Sentencing Disparities

• A study of data from the National Registry of Exonerations found that black people are about 5 times more likely than white people to go to prison for drug possession (despite consistent evidence showing that African Americans and whites use illegal drugs at the same rate).
• Black males ages 18 to 19 were 11.8 times more likely to be imprisoned than white males of the same age.
• A report from the United States Sentencing Commission found that black men receive federal prison sentences that are on average 20% longer than white men who commit the same crime.

Wrongful Conviction

• A study of data from the National Registry of Exonerations found that:
  • Innocent black people are 7 times more likely than innocent white people to be convicted of murder
  • Black people imprisoned for murder are more likely to be innocent if convicted of killing white victims.
  • “Assaults on white women by African-American men are a small minority of all sexual assaults in the United States, but they constitute half of sexual assaults with eyewitness misidentifications that led to exoneration.” 
  • “Innocent black people are about 12 times more likely to be convicted of drug crimes than innocent white people.” 

Death Penalty

• In the state of Louisiana, defendants who killed white victims were 14 times more likely to be executed than defendants who killed black victims. Black men who kill white men are 30 times more likely to receive the death penalty compared to black men who killed black men. The state of Louisiana has not executed a white person for killing a black person since 1752.
• In the state of Tennessee, black people make up 17% of the population but represent 44% of individuals on death row. Of the 9 death sentences that have been handed down in the past 10 years, 8 of the sentences were given to black defendants.

These studies are just a tiny fraction of the body of work detailing how our criminal justice system has skewed racial outcomes.

One of the most discriminatory aspects of our criminal justice system is the money bail system. The purpose of bail is to ensure that defendants return to court. However, bail is often set too high by judges, which results in many defendants sitting in jail simply because they cannot afford to post bail. Those who cannot afford bail can end up in jail for weeks, months, and even years awaiting their trial. This has serious consequences such as job loss, inability to take care of children, and inability to pay rent. Additionally, people who fail to secure pretrial release are more likely to be convicted of the crime they are charged with. One study by the New York City Criminal Justice Agency found that the overall non-felony conviction rate in New York City is 58% but is 92% for those detained until disposition¹³. For felony cases, the overall conviction rate was 68%, but 87% for defendants who were detained until their disposition¹⁴.

The money bail system prioritizes profit over the pursuit of justice. Insurance companies and for-profit bail bond companies generate billions by profiting off of low-income people who have to rely on companies to secure their freedom from jail.

Another way that the criminal justice system punishes the poor is through the lack of adequate legal counsel. Most jurisdictions insufficiently fund their indigent (poor) defense programs. Public defenders are often burdened with excessively high caseloads and are not able to provide an adequate defense to all of those the public defender is representing.

Sources:

13 – New York City Criminal Justice Agency- Pretrail Detention and Case Outcomes, Part 1: Nonefelony Cases Mary T. Phillips

14 – CJA Research Brief Bail, Detention, & Felony Case Outcomes, Mary T. Phillips

Jails are typically operated by local law enforcement, such as cities and counties. Prisons are operated by the state government or federal government (Federal Bureau of Prisons).

Parole is the conditional release from prison where individuals serve the end of their sentence in the community. One can be released on parole either through a parole board decision or a mandatory part of their sentence. Individuals on parole have similar conditions to those of probationers. However, parole also functions as a method to help individuals reintegrate back into the community before the end of their sentence. If a parolee fails to comply with the conditions of his/her parole, they may be returned to prison to complete the rest of the sentence.

15 – https://www.bjs.gov/index.cfm?ty=qa&iid=324

The three largest private prison companies are CoreCivic, GEO Group, and Management Training Corporation.  As of 2017, 7.2% of state prisoners were held in private prisons and 15.1% of federal prisoners were held in private prisons. Private prisons are mostly used for federal contracting, particularly detention centers. According to a Freedom of Information Act request by the Immigrant Legal Resource Center, on an average day in November 2017, 71% of people in ICE custody were in held in privately operated jails. 

Private prisons emerged during the 1980s, during the height of Reagan’s War on Drugs, when prison populations were rising exponentially – and government facilities could not keep up. Private prisons flourished because private prison companies argued that the private sector could construct prisons more quickly and cost-effectively than the public sector, saving taxpayers money. 

There is debate on whether or not private prisons are more cost-effective than government facilities. The reality is that private prisons cut costs to put money in the pockets of executives rather than to save taxpayers money. Private prisons on average hire fewer employees, pay, and train them less than government prisons. This results in decreased security for staff and incarcerated individuals. A 2016 report by the Justice Department found that private prisons had more than twice as many inmate-on-staff assaults and 28% higher rate of inmate-on-inmate assaults.  Private prisons also cut corners by decreasing programming and often provide inadequate medical care. The conditions at private prisons have endangered the lives of countless incarcerated people and has even resulted in the deaths of some of them.

 CoreCivic opened in the first for-profit correctional facility in 1984 in Shelby County, Tennessee. As of 2017, its revenue is 1.7 billion USD19. CoreCivic currently operates over 129 facilities. 

CoreCivic runs 4 private prisons in the state of Tennessee, which houses 26% of the state’s prison population as of 2017. In comparison, the state of Tennessee runs 10 state prisons. 

CoreCivic’s history is marred with controversy, which led the company to rebrand from Corrections Corporation of America to CoreCivic in 2016. From its inception, the company has been continually under fire for its poor treatment of incarcerated people, inadequate medical care, understaffing and underpaying its employees, and its extensive lobbying for policies that would increase the number of incarcerated people.

Capital punishment is still legal in 30 states. There are around 2,700 people on death row. 98% of those on death row are men, and 2% are women. California has the highest number of individuals on death row, with 737 people on death row. However, in March 2019 the governor of California declared a moratorium (temporary prohibition) on capital punishment, which granted a temporary reprieve for all of the individuals on California’s death row. As of October 2018, Florida had 354 individuals on death row, Texas had 228 individuals on death row, and five other states had over 100 individuals on death row. 

Public support for the death penalty has decreased over time. According to Gallup, public support for the death penalty in the United States peaked in 1994 with 80% of the public in favor of the death penalty. Public support for the death penalty has decreased to 56% of the public being in favor of the practice.

Common arguments against the death penalty:

• It is applied arbitrarily and discriminatorily – it is applied more to offenders who are people of color or poor, or when victims are white
• There is a risk that innocent people will be executed, and innocent people have been executed in the past
• The capital punishment system is more expensive than a system where life without parole is the highest punishment is life without parole (it can cost the state millions per each individual due to the high cost of trials and mandatory appeals)
• It is not an effective deterrent to crime

Common arguments for the death penalty:

• The cruelest crimes necessitate the cruelest punishments
• Provides closure for victim’s families
• Citizens shouldn’t have to pay to house “the worst of the worst”

In 2018, the state of Tennessee resumed executions after nearly a decade without any. Three individuals were executed in 2018, and the state has set the execution dates for six individuals for 2019 and 2020.

In the United States, rates of recidivism are high. A study by the Bureau of Justice Statistics found that 83% (5 out of 6) of state prisoners released in 2005  (in 30 states) were rearrested at least once during the 9 years after release, and only 17% of individuals were not rearrested in the 9 years after release. 

Reentry back into the community is difficult for a variety of reasons including a lack of ties to family and friends, difficulty finding a job and housing, as well as substance abuse. Only a small number of inmates receive extensive rehabilitation or participate in pre-release programs that adequately prepare individuals to return to his/her community19.  

While there is no simple solution to reducing recidivism, studies show that incarcerated individuals who participate in education programs, vocational training programs, or receive substance abuse treatment are less likely to reoffend than incarcerated individuals who do not participate in such programs. 

Rates of recidivism are also affected by the quality of reentry services provided to individuals who are released from prison, either on parole or after serving his/her sentence. Parole violations contribute significantly to the high rates of recidivism. For example, the Bureau of Justice Statistics found that in 2005, 43% of offenders placed under federal community supervision were rearrested within 5 years.

19 – Corrections: An Introduction by Richard P. Seiter

In the past two decades, there has been a significant increase in schools with school-resource officers (SROs). SROs are fully sworn law enforcement officers, who have the ability to make arrests.  Schools with SROs rely on them to enforce discipline rather than teachers and administration. With police officers present in schools, children are much more likely to be charged or arrested for non-violent offenses, putting students in contact with the criminal justice system. Examples of this include a student who was charged with assault for throwing a baby carrot at a teacher and another student was charged with felony forgery for trying to buy lunch with a fake bill. 

Zero-tolerance policies have predefined consequences (often suspension or expulsion) for infractions to school policies. The intention of zero-tolerance policies is to deter future misbehavior and increase school safety. The reality is these policies don’t allow for teachers and administrators to consider the circumstances behind the infraction and results in severe punishments being automatically applied to students without any consideration. Students who are suspended and expelled are removed from the supervision of adults and the structure of school. Students who are pushed out of the classrooms are more likely to be introduced to the criminal justice system.