An excerpt on the inequalities and injustices of the American penal system from Poli-Tainment, a resource guide for activists.
By Opio Sokoni / Portland, Oregon
Illustrated by Richard Tenorio / Malden, Massachusetts
Tuesday, November 2, 2004
The American correctional system of the past 30 years has been characterized by a population increasing exponentially in response to shifts in policy towards mandatory minimum and determinate sentencing. Persons convicted of a crime today are far more likely to be sentenced to incarceration — and will spend a longer period in prison — than their counterparts in past decades. During 2002, the nation’s state and federal prison and local jail population exceeded two million for the first time in history. These trends have contributed to prison overcrowding and state governments being overwhelmed by the burden of funding a rapidly expanding penal system. The results of these decisions are prisons filled with large numbers of non-violent and drug offenders (over 50 percent in both state and federal prisons) at an annual cost of incarceration of $20,000 or more, along with increasing evidence that large-scale incarceration is not the most effective means of achieving public safety.
It is the logical, inevitable consequence of “tough-on-crime” laws and punitive sentencing polices that elected leaders and public officials embrace to avoid addressing the pressing social problems caused by institutionalized racism and political and economic exclusion. By incarcerating high proportions of low income African American, Latino and American Indian residents and maintaining surveillance over them for even longer periods of time, the criminal justice apparatus perpetuates a social segregation policy that intentionally isolates historically disadvantaged racial and ethnic minorities and communities, ensuring a capital divestment policy that builds neither social capital nor economic infrastructure.
According to the U. S. Department of State’s 2000 report to the U.N. Commission on the Elimination of Racial Discrimination (CERD), “discrimination in the criminal justice system” is a “principal causative factor” hindering progress toward ending racial discrimination in [U.S.] society.
Facts & statistics on criminal justice & black people
FBI data compiled from more than 8,500 police agencies show that blacks were the subject of 29 percent of arrests in 1999 (The Herald Sun, 2001), although they make up about 12 percent of the population.
In 1996, black Americans made up 13 percent of the U.S. population, but 30 percent of all convicted federal offenders (Bureau of Justice Statistics, 1997).
The possibility of incarceration for black Americans is six times (16.2 percent) higher than for the rest of the population (2.5 percent) (Bureau of Justice Statistics, 1997).
In South Carolina, 68 percent of men between the ages of 18 and 64 were African American. Blacks made up 27 percent of the state’s total population in the same age group (The Herald Sun, 2001).
In 2000, roughly one in 10 black men was in prison (Boston Globe, 1999).
In West Virginia, blacks made up 44 percent of the female inmates ages 18 to 64. Blacks were 3 percent of the total female population in the same age range (The Herald Sun, 2001).
The black prison population has increased eightfold from three decades ago, when there were 133,226 blacks in prison (Boston Globe, 1999).
Black children are nine times more likely than white children to have a parent in prison (Children’s Defense Fund, 2001).
A survey of traffic stops in Volusia County, Florida, showed nearly 70 percent of those stopped were blacks or Hispanics (Boston Globe, 1999).
Because many states bar felons from voting, at least one in seven black men will have lost the right to vote (Boston Globe, 1999).
Thirty to 40 percent of the next generation of black men will permanently lose the right to vote if current trends continue (The Sentencing Project, 1998).
In nine states, one in four black men can never vote again because they were convicted of a felony (The Sentencing Project, 1998).
Ever since juvenile courts were first established in the early 1900s, the laws in most states have permitted judges to approve the transfer of children from the more protective and treatment-oriented juvenile court to criminal court jurisdiction. But first, there had to be a hearing in which the child’s maturity, comprehension, skills, and appropriateness for treatment in the juvenile system are balanced against the nature of the offense and factors such as the length of time before the child becomes a legal adult. In rough numbers, approximately 10,000 children were transferred annually to adult criminal court in this manner.
But in the late 1980s, as violent crimes among juveniles surged, lawmakers following a “tough on crime” ideology enacted laws that authorized transfer to criminal court of juveniles at a much younger age and for less serious crimes than before. These “automatic” or “direct file” transfers were determined by the charge placed against the child by police or at the discretion of a prosecutor, without prior judicial review. Under these laws, upwards of 200,000 children have been prosecuted each year as adults in criminal court.
The Sentencing Project has sought to restrict the practice of “automatically” transferring children to adult court without judicial review. There are many reasons. Children are responsible in different ways than adults for their actions. They are less able to exercise their rights and less able to comprehend court proceedings. They are frequently denied access to education and subjected to abuse when placed in adult jails and prisons. Many court systems fail to provide adequate defense services to children in adult court. Racial disparity characterizes the decisions to prosecute children as adults. Adult sentences, imposed upon children, are unduly harsh — destroying the formative years of a young person’s life, and in the instance of lengthy sentences, the prospect of life outside a prison forever.
Statistics on black youth and the criminal justice system
Black students are punished more severely for the same behaviors as white students. Nationally, black students are fewer than one out of five public school students, but one out of every three students suspended is black (Advancement Project and the Civil Rights Project at Harvard University, June 2000).
Compared with white youths, black youths are more likely to be held in a detention facility, formally charged in juvenile court, and transferred to adult criminal court, where they receive harsher and longer sentences (Youth Law Center, Justice Policy Institute, Building Blocks for Youth, April 2000).
Compared with youths in juvenile facilities, youths in adult prisons are eight times more likely to commit suicide, five times more likely to be sexually assaulted, twice as likely to be beaten by prison staff, and 50 percent more likely to be attacked with a weapon (Children’s Defense Fund, 2001).
The latest juvenile-crime report by the Department of Justice shows a 68 percent drop in the juvenile murder rate from 1993 to 1999, reaching its lowest in recorded history (Building Blocks for Youth, Youth Law Center, 2001).
Juvenile arrests for violence fell 36 percent from its 1994 peak to 1999, the lowest they have been in a decade (Building Blocks for Youth, Youth Law Center, 2001).
Despite the continuing decline of youth crime, nearly every state has changed its laws to make it easier to prosecute youth as adults (Building Blocks for Youth, Youth Law Center, 2001).
A study in California found that compared with white youths, minorities were 2.8 times more likely to be arrested for violent crimes, 6.2 times more likely to be tried in adult court and seven times more likely to be sentenced to prison once they get there. (Justice Policy Institute, 2000).
For youths charged with violent offenses, the average length of incarceration is 193 days for whites, 254 for African Americans, and 305 for Latino youth.
Among those not previously admitted to a secure facility, African Americans are six times more likely than whites to be incarcerated and nine times more likely to be jailed if charged with a violent offense.
For drug offenses, African Americans are 48 times more likely than whites to be sentenced to juvenile prison (Building Blocks for Youth, 2001).
In Cook County, Illinois, 99 percent of youths tried as adults are African American or Latino (Building Blocks for Youth, Youth Law Center, 2001).
Education versus incarceration
In the past decade, many states have cut their budgets for higher education funds to compensate for rapid growth in prison populations and prison construction, fueled in part by increasing numbers of drug offenders in state and federal prisons. In both New York and California, prison expenditures now exceed university financing and more black men are admitted as prisoners than graduate from the state universities. From 1977 to 1995, U.S. prison spending increased by 823 percent while spending on higher education went up by only 374 percent.
Prison industrial complex
What is the prison industrial complex?
The prison industrial complex (PIC) is a complicated system situated at the intersection of governmental and private interests that uses prisons as a solution to social, political, and economic problems. The PIC depends upon the oppressive systems of racism, classism, and sexism. It includes human rights violations, the death penalty, industry and labor issues, policing, courts, media, community powerlessness, the imprisonment of political prisoners, and the elimination of dissent.
Black women are the fastest growing segment of the prison population and Native American prisoners are the largest group per capita. Approximately five million people — including those on probation and parole — are directly under the surveillance of the criminal justice system. The prison industrial complex profits from racist practices in arrest, conviction, and sentencing patterns. Black and brown bodies are the human raw material in a vast experiment to conceal the major social problems of our time.
The racially disproportionate demographics of the victims of the war on drugs will not surprise anyone familiar with the symbiotic relationship between poverty and institutionalized racism. Economic inequality and political disenfranchisement have been inextricably intertwined since the trans-Atlantic slave trade. The racist enforcement of the drug laws is just the latest example of institutionalized racism. As political economist John Flateau graphically puts it: “Metaphorically, the criminal justice pipeline is like a slave ship, transporting human cargo along interstate triangular trade routes from Black and Brown communities; through the middle passage of police precincts, holding pens, detention centers and courtrooms; to downstate jails or upstate prisons; back to communities as unrehabilitated escapees; and back to prison or jail in a vicious recidivist cycle.”
From plantation to prisons:
Where does the money go?
According to the U.N. International Drug Control Program, the international illicit drug business generates as much as $400 billion in trade annually. Profits of this magnitude invariably lead to corruption and complicity at the highest levels. Yet the so-called war on this illegal trade targets economically disadvantaged ethnic minorities and indigenous people in the United States, Mexico, Colombia, Peru, Bolivia, Afghanistan, Pakistan, Myanmar, Laos, Thailand, and Vietnam. Putting aside the question of legality, there is no evidence of a “trickle-down effect.”
These substantial profits are not enriching the low-level players who constitute the vast majority of drug offenders. To the contrary, the black market drug economy undermines non-drug-related businesses and limits the employability of its participants. Discussing the “legal apartheid” that keeps the developing world poor, Peruvian economist Fernando De Soto observes that “[t]he poor live outside the law . . . because living within the law is impossible: corrupt legal systems and warped rules force those at the bottom of the world economy to spend years leaping absurd hurdles to do things by the book.” “In a criminalized economy, the risk of imprisonment is almost ‘a form of business license tax.’”
Who is profiting?
In the United States, prison architects and contractors, corrections personnel, policy makers and academics, and the thousands of corporate vendors who peddle their wares at the annual trade-show of the American Corrections Association — hawking everything from toothbrushes and socks to barbed-wire fences and shackles are making money from the PIC.
The sale of tax-exempt bonds to underwrite prison construction is now estimated at $2.3 billion annually. The Wackenhut Corrections Corporation — which manages 37 prisons in the United States, 18 in the United Kingdom and Australia and has one under contract in South Africa — tried to convert a former slave plantation in North Carolina into a maximum security prison to warehouse mostly black prisoners from the nation’s capital. Promising investors to keep the prison cells filled, these corporations dispatch “bed-brokers” in search of prisoners — evoking images of 19th century bounty-hunters capturing runaway slaves and forcibly returning them to the cotton fields. Corporations that appear to be far removed from the business of punishment are intimately involved in the expansion of the prison industrial complex.
Prison construction bonds are one of the many sources of profitable investment for leading financiers such as Merrill Lynch. MCI charges prisoners and their families outrageous prices for the precious telephone calls which are often the only contact inmates have with the free world. Many corporations whose products we consume on a daily basis have learned that prison labor power can be as profitable as third-world labor power exploited by U.S.-based global corporations. Both relegate formerly unionized workers to joblessness, many of whom wind up in prison. Some of the companies that use prison labor are IBM, Motorola, Compaq, Texas Instruments, Honeywell, Microsoft, and Boeing. But it is not only the high-tech industries that reap the profits of prison labor. Nordstrom department stores sell jeans that are marketed as “Prison Blues,” as well as t-shirts and jackets made in Oregon prisons.
Racism & poverty: The free market and prison economies
Today there are over two million people incarcerated in the United States. Studies demonstrate that two-thirds of state prisoners had less than a high school education and one-third were unemployed at the time of arrest. Over the past decade states have financed prison construction at the expense of investment in higher education. At the same time, access to education in prison has been severely curtailed. Officially, 8.3 percent of working-age blacks in the United States are unemployed but taking into account the “incarceration effect,” the rate is significantly higher. Research confirms the obvious &dashm; the positive relationship between joblessness or low wages and recidivism.
The stigma of prison has been codified in laws and licensing regulations that bar people with criminal records from countless jobs and opportunities, effectively excluding them from the legitimate workforce and forcing them into illegal ventures. As economists Western and Petit point out, “[T]he penal system can be viewed as a type of labor market institution that systematically influences men’s employment … [and has a] pervasive influence … on the life chances of disadvantaged minorities.”
Like slavery, the focused machinery of the war on drugs fractures families, as it destroys individual lives and destabilizes whole communities. It targets American Indians living on or near reservations and urban minority neighborhoods, depressing incomes and repelling investment. “The lost potential earnings, savings, consumer demand, and human and social capital … cost black communities untold millions of dollars in potential economic development, worsening an inner-city political economy already crippled by decades of capital flight and de-industrialization.”
Abolition & prisons as environmental racism
What is abolition?
Abolition is a political vision that seeks to eliminate the need for prisons, policing, and surveillance by creating sustainable alternatives to punishment and imprisonment.
Abolition means acknowledging the devastating effects prison, policing, and surveillance have on poor communities, communities of color, and other targeted communities, and saying, “No, we won’t live like this. We deserve more.”
Abolitionists recognize that the kinds of wrongdoing we call “crime” do not exist in the same way everywhere and are not “human nature”, but rather determined by the societies we live in. Similarly, abolitionists do not assume that people will never hurt each other or that people won’t cross the boundaries set up by their communities. The society must create alternatives for dealing with the injuries people inflict upon each other in ways that sustain communities and families. Keeping a community whole is impossible by routinely removing people from it.
In the last 20 years the United States has built more prisons than any country during any period in history. The cost of the U.S. criminal justice system now runs to $120 billion per year. But the financial costs are only part of the story. There are other costs not so easily seen; costs passed on to those least able to pay them &dashm; the poor rural towns in which most prisons are built and the poor urban communities from which most prisoners are sent. Therefore, because the costs of the current prison expansion are being passed to the poor, and especially to people of color, prisons are examples of economic injustice and environmental racism.
Women, incarceration & re-entry
Since 1980, the number of women in prison has increased at nearly double the rate for men. Nationally, the 93,000 women in state and federal prison represent a figure more than seven times the number in 1980. The “war on drugs” has been the primary factor in this dramatic growth, with a third of women prisoners incarcerated for a drug offense. These trends raise questions regarding the consequences of incarceration on women offenders. Women prisoners often have significant histories of physical and sexual abuse, high rates of H.I.V. infection, and substance abuse. Traditionally, alternatives to incarceration for women have been limited, as has correctional programming designed to meet their specific needs. In addition, large-scale women’s imprisonment has created an increasing number of children &dashm; estimated at 125,000 &dashm; who suffer from their mother’s incarceration and the loss of family ties.
Women comprise over 6.7 percent of the incarcerated population. One can expect about 9 percent of those women to be released within 60 months of their sentence. Upon release, society expects them to find employment. Of the women who face this challenge, most of them are women of color who will face a greater challenge finding employment upon re-entry than white women. Whether they are expected to work as a condition of a public assistance program or simply as a means of survival, to successfully re-enter, women have to create a foundation for themselves and a job provides the bedrock of this foundation. Unfortunately, the criminal record that follows them out of incarceration serves as a terrific impediment to fulfilling both society’s and their own expectation that they find employment upon release.
Alternative to mass incarcerationRestorative justice
What is restorative justice?
Restorative justice is a systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders and communities caused or revealed by the criminal behavior.
Restorative justice is a new framework for the criminal justice system that is rapidly gaining acceptance and support by criminal justice professionals and community groups. Restorative justice involves looking beyond retribution to find deeper solutions that heal broken relationships.
Indigenous/Native practices, such as Maori justice, and the use of sentencing circles (or peacemaking circles) by North American Indians have been heavy influences.
South Africa created the Truth and Reconciliation Commission (TRC) to address injustices under apartheid.
A report from the Department of Justice of Canada analyzed a collection of studies to determine the effectiveness of restorative justice. Encouragingly, it found “restorative justice programs are a more effective method of improving victim/offender satisfaction, increasing offender compliance with restitution, and decreasing the recidivism of offenders when compared to more traditional criminal justice responses (i.e. incarceration, probation, court-ordered restitution)” (Latimer, Dowden, & Muise, 2001, p.17).
Practices and programs reflecting restorative purposes will respond to crime by:
a.identifying and taking steps to repair harm,
b.involving all stakeholders, and
c.transforming the traditional relationship between communities and their governments in responding to crime.
Some of the programs and outcomes typically identified with restorative justice include:
Victim offender mediation
Three principles form the foundation for restorative justice:
1. Justice requires that we work to restore those who have been injured.
2. Those most directly involved and affected by crime should have the opportunity to participate fully in the response if they wish.
3. Government’s role is to preserve a just public order, and the community’s is to build and maintain a just peace.
Restorative programs are characterized by four key values:
1. Encounter: Create opportunities for victims, offenders and community members who want to do so to meet to discuss the crime and its aftermath.
2. Amends: Expect offenders to take steps to repair the harm they have caused.
3. Reintegration: Seek to restore victims and offenders as whole, contributing members of society.
4. Inclusion: Provide opportunities for parties with a stake in a specific crime to participate in its resolution.
American Civil Liberties Union
Center on Juvenile and Criminal Justice
Families Against Mandatory Minimums (FAMM)
Justice Policy Institute
National Black United Fund, Inc.
National Lawyers Guild
The National Urban League, Inc.
Prison Activist Resource Center (PARC)
Active Element Foundation
Prison Moratorium Project — NY
Youth Empowerment Center
The No War on Youth Online Resources page