America’s mass incarceration problem in 5 charts – or, why Sessions shouldn’t bring back mandatory minimums

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Attorney General Jeff Sessions is pushing for stricter sentencing in criminal cases.
AP Photo/Frank Franklin II

Tanya Golash-Boza, University of California, Merced

Today, the United States is a world leader in incarceration, but this has not always been the case.

For most of the 20th century, the U.S. incarcerated about 100 people per 100,000 residents – below the current world average. However, starting in 1972, our incarceration rate began to increase steadily. By 2008, we reached a peak rate of 760 incarcerated persons per 100,000 residents.

The increase in incarceration cannot be explained by a rise in crime, as crime rates fluctuate independently of incarceration rates. Incarceration rates soared because laws changed, making a wider variety of crimes punishable by incarceration and lengthening sentences.

This sharp increase was driven in part by the implementation of mandatory minimums for drug offenses, starting in the 1980s. These laws demand strict penalties for all offenders in federal courts, no matter the extenuating circumstances.

The Obama administration took some measures to roll back these mandatory minimums. In 2013, Attorney General Eric Holder issued a memo asking prosecutors to prosecute crimes with mandatory minimum sentences only for the worst offenders.

Earlier this month, however, Attorney General Jeff Sessions rescinded that memo and issued his own, which requires prosecutors to “charge and pursue the most serious” offense. The punitive sentiment behind Sessions’ memo is a throwback to our failed experiment in mass incarceration in the 1980s and ‘90’s.

The rise of mass incarceration

According to political scientist Marie Gottschalk, mass incarceration took off in three waves.

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First, in the mid-1970s, Congress began to lengthen sentences. This culminated in the 1984 Comprehensive Crime Control Act, which established mandatory minimum sentences and eliminated federal parole.

Then, from 1985 to 1992, city, state and federal legislators began to lengthen drug sentences. This was the heyday of the war on drugs. It included the Anti-Drug Abuse Act of 1986, which imposed even more mandatory minimum sentences. Most significantly, it set a five-year mandatory minimum sentence for offenses involving 100 grams of heroin, 500 grams of cocaine or 5 grams of crack cocaine.

Two years later, new legislation added a five-year mandatory minimum sentence for simple possession of crack cocaine, with no evidence of intent to sell. Before then, one year of imprisonment had been the maximum federal penalty for possession of any amount of any drug.

The third wave hit in the early 1990s. This involved not only longer sentences, but “three strikes laws” that sentenced any person with two prior convictions to life without parole. “Truth in sentencing” policies also demanded that people serve their full sentences. This culminated in the Violent Crime Control and Law Enforcement Act of 1994, which included a three strikes provision at the federal level.

Notably, these laws were passed during a time when crime rates had begun a precipitous decline. Today, more than half of U.S. states have a three strikes provision.

By the end of the 20th century, there were an unprecedented over two million inmates in the U.S. That’s more than 10 times the number of U.S. inmates at any time prior to the 1970s, and far more than most other countries.

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The beginning of the end

Although the current incarceration rate is still high – about 1 in 37 adults – it is at its lowest since 1998.

Imprisonment has decreased over the past decade for two reasons. First, policymakers have started to realize that punitive laws do not work. Second, states are no longer able to continue financing this massive carceral system.

The Great Recession in 2007 gave elected leaders the political will to make cuts to the prison system. After three decades of prison building, many states found themselves with massive systems they were no longer able to finance, and began to release some prisoners to cut costs. This was the first time in 37 years that the number of prisoners went down. By 2011, one-fourth of states had closed or planned to close a prison.

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In 2010, Obama signed the Fair Sentencing Act, repealing the five-year mandatory sentence for first-time offenders and for repeat offenders with less than 28 grams of cocaine.

This change reduced the 100-to-1 sentencing disparity between crack and powder cocaine down to 18-to-1. Activists had been demanding this reduction for decades, as the only difference between the two drugs is that crack is made by adding baking soda and heat to powder cocaine. Despite similar rates of crack usage in black and white communities, in 2010 – the last year of the 100-to-1 disparity – 85 percent of the 30,000 people sentenced for crack cocaine offenses were black.

In 2012, after years of steadily increasing prison admission rates, the number of new admissions to federal prisons began to decline. In 2015, just 46,912 people were admitted to federal prison – the lowest number in 15 years.

Crime falls, but public opinion stays the same

When mass incarceration first started ramping up in the 1970s, violent and property crime rates were high. However, even after crime rates began to decline, legislators continued passing punitive laws. In fact,
some of the most draconian laws were passed in the mid-1990s, long after crime rates had gone down.

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Incarceration has had a limited impact on crime rates. First of all, it is just one of many factors that influence crime rates. Changes in the economy, fluctuations in the drug market and community-level responses often have more pronounced effects.

Second, there are diminishing returns from incarceration. Incarcerating repeat violent offenders takes them off the streets and thus reduces crime. But incarcerating nonviolent offenders has a minimal effect on crime rates.

But incarceration continued to rise even as crime fell, in part because of the public’s demand for a punitive response to crime. Although there is less crime today than there has been in the past, most people are not aware of this drop.

Thus, the fear of crime persists. This often translates into punitive public policies – regardless of declining crime rates and the inefficacy of these laws at preventing crime.

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The ConversationSince the election of Richard Nixon, politicians on the left and right have learned that fear-mongering around crime is a surefire way to get elected. Today, when crime rates are at a historic low, politicians continue to stoke the flames of fear. These strategies may win elections, but the evidence shows they will not make our communities safer.

Tanya Golash-Boza, Professor, University of California, Merced

This article was originally published on The Conversation. Read the original article.

Exploiting Black Labor After the Abolition of Slavery

Convicts leased to harvest timber in Florida around 1915.
Convicts leased to harvest timber in Florida around 1915.

Kathy Roberts Forde, University of Massachusetts Amherst and Bryan Bowman, University of Massachusetts Amherst

The U.S. criminal justice system is riven by racial disparity.

The Obama administration pursued a plan to reform it. An entire news organization, The Marshall Project, was launched in late 2014 to cover it. Organizations like Black Lives Matter and The Sentencing Project are dedicated to unmaking a system that unjustly targets people of color.

But how did we get this system in the first place? Our ongoing historical research project investigates the relationship between the press and convict labor. While that story is still unfolding, we have learned what few Americans, especially white Americans, know: the dark history that produced our current criminal justice system.

If anything is to change – if we are ever to “end this racial nightmare, and achieve our country,” as James Baldwin put it – we must confront this system and the blighted history that created it.

During Reconstruction, the 12 years following the end of the Civil War and the abolition of slavery, former slaves made meaningful political, social and economic gains. Black men voted and even held public office across the South. Biracial experiments in governance flowered. Black literacy surged, surpassing those of whites in some cities. Black schools, churches and social institutions thrived.

As the prominent historian Eric Foner writes in his masterwork on Reconstruction, “Black participation in Southern public life after 1867 was the most radical development of the Reconstruction years, a massive experiment in interracial democracy without precedent in the history of this or any other country that abolished slavery in the nineteenth century.”

But this moment was short-lived.

As W.E.B. Du Bois wrote, the “slave went free; stood a brief moment in the sun; then moved back again toward slavery.”

History is made by human actors and the choices they make.

According to Douglas Blackmon, author of “Slavery by Another Name,” the choices made by Southern white supremacists after abolition, and the rest of the country’s accommodation, “explain more about the current state of American life, black and white, than the antebellum slavery that preceded.”

Designed to reverse black advances, Redemption was an organized effort by white merchants, planters, businessmen and politicians that followed Reconstruction. “Redeemers” employed vicious racial violence and state legislation as tools to prevent black citizenship and equality promised under the 14th and 15th amendments.

Juvenile convicts at work in the fields, 1903.
Library of Congress/John L. Spivak

By the early 1900s, nearly every southern state had barred black citizens not only from voting but also from serving in public office, on juries and in the administration of the justice system.

The South’s new racial caste system was not merely political and social. It was thoroughly economic. Slavery had made the South’s agriculture-based economy the most powerful force in the global cotton market, but the Civil War devastated this economy.

How to build a new one?

Ironically, white leaders found a solution in the 13th Amendment, which ended slavery in the United States in 1865. By exploiting the provision allowing “slavery” and “involuntary servitude” to continue as “a punishment for crime,” they took advantage of a penal system predating the Civil War and used even during Reconstruction.

A new form of control

With the help of profiteering industrialists they found yet a new way to build wealth on the bound labor of black Americans: the convict lease system.

Here’s how it worked. Black men – and sometimes women and children – were arrested and convicted for crimes enumerated in the Black Codes, state laws criminalizing petty offenses and aimed at keeping freed people tied to their former owners’ plantations and farms. The most sinister crime was vagrancy – the “crime” of being unemployed – which brought a large fine that few blacks could afford to pay.

Black convicts were leased to private companies, typically industries profiteering from the region’s untapped natural resources. As many as 200,000 black Americans were forced into back-breaking labor in coal mines, turpentine factories and lumber camps. They lived in squalid conditions, chained, starved, beaten, flogged and sexually violated. They died by the thousands from injury, disease and torture.

For both the state and private corporations, the opportunities for profit were enormous. For the state, convict lease generated revenue and provided a powerful tool to subjugate African-Americans and intimidate them into behaving in accordance with the new social order. It also greatly reduced state expenses in housing and caring for convicts. For the corporations, convict lease provided droves of cheap, disposable laborers who could be worked to the extremes of human cruelty.

Every southern state leased convicts, and at least nine-tenths of all leased convicts were black. In reports of the period, the terms “convicts” and “negroes” are used interchangeably.

Of those black Americans caught in the convict lease system, a few were men like Henry Nisbet, who murdered nine other black men in Georgia. But the vast majority were like Green Cottenham, the central figure in Blackmon’s book, who was snatched into the system after being charged with vagrancy.

A principal difference between antebellum slavery and convict leasing was that, in the latter, the laborers were only the temporary property of their “masters.” On one hand, this meant that after their fines had been paid off, they would potentially be let free. On the other, it meant the companies leasing convicts often absolved themselves of concerns about workers’ longevity. Such convicts were viewed as disposable and frequently worked beyond human endurance.

The living conditions of leased convicts are documented in dozens of detailed, firsthand reports spanning decades and covering many states. In 1883, Blackmon writes, Alabama prison inspector Reginald Dawson described leased convicts in one mine being held on trivial charges, in “desperate,” “miserable” conditions, poorly fed, clothed, and “unnecessarily chained and shackled.” He described the “appalling number of deaths” and “appalling numbers of maimed and disabled men” held by various forced-labor entrepreneurs spanning the entire state.

Dawson’s reports had no perceptible impact on Alabama’s convict leasing system.

The exploitation of black convict labor by the penal system and industrialists was central to southern politics and economics of the era. It was a carefully crafted answer to black progress during Reconstruction – highly visible and widely known. The system benefited the national economy, too. The federal government passed up one opportunity after another to intervene.

Convict lease ended at different times across the early 20th century, only to be replaced in many states by another racialized and brutal method of convict labor: the chain gang.

Convict labor, debt peonage, lynching – and the white supremacist ideologies of Jim Crow that supported them all – produced a bleak social landscape across the South for African-Americans.

Black Americans developed multiple resistance strategies and gained major victories through the civil rights movement, including Brown v. Board of Education, the Civil Rights Act and the Voting Rights Act. Jim Crow fell, and America moved closer than ever to fulfilling its democratic promise of equality and opportunity for all.

But in the decades that followed, a “tough on crime” politics with racist undertones produced, among other things, harsh drug and mandatory minimum sentencing laws that were applied in racially disparate ways. The mass incarceration system exploded, with the rate of imprisonment quadrupling between the 1970s and today.

Michelle Alexander famously calls it “The New Jim Crow” in her book of the same name.

Today, the U.S. has the highest incarceration rate of any country in the world, with 2.2 million behind bars, even though crime has decreased significantly since the early 1990s. And while black Americans make up only 13 percent of the U.S. population, they make up 37 percent of the incarcerated population. Forty percent of police killings of unarmed people are black men, who make up merely 6 percent of the population, according to a 2015 Washington Post report.

It doesn’t have to be this way. We can choose otherwise.

The Conversation

Kathy Roberts Forde, Chair, Associate Professor, Journalism Department, University of Massachusetts Amherst and Bryan Bowman, Undergraduate journalism major, University of Massachusetts Amherst

This article was originally published on The Conversation. Read the original article.

DNA Dragnet: In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit – ProPublica

by Lauren Kirchner

Police in Florida and other states are building up private DNA databases, in part by collecting voluntary samples from people not charged with — or even suspected of — any particular crime.
Freddrick Harran is the public safety director of the Bensalem Township Police Department in Pennsylvania, which has used the DNA program to solve burglaries. “This has probably been the greatest innovation in local law enforcement since the bulletproof vest,” he said. (Greg Kahn, special to ProPublica)

Police in Florida and other states are building up private DNA databases, in part by collecting voluntary samples from people not charged with — or even suspected of — any particular crime.

The five teenage boys were sitting in a parked car in a gated community in Melbourne, Florida, when a police officer pulled up behind them.

Officer Justin Valutsky closed one of the rear doors, which had been ajar, and told them to stay in the car. He peered into the drivers’ side window of the white Hyundai SUV and asked what the teens were doing there. It was a Saturday night in March 2015 and they told Valutsky they were visiting a friend for a sleepover.

Valutsky told them there had been a string of car break-ins recently in the area. Then, after questioning them some more, he made an unexpected demand: He asked which one of them wanted to give him a DNA sample.

After a long pause, Adam, a slight 15-year-old with curly hair and braces, said, “Okay, I guess I’ll do it.” Valutsky showed Adam how to rub a long cotton swab around the inside of his cheek, then gave him a consent form to sign and took his thumbprint. He sealed Adam’s swab in an envelope. Then he let the boys go.

Telling the story later, Adam would say of the officer’s request, “I thought it meant we had to.”

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Source: DNA Dragnet: In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit – ProPublica

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