by Anitra D. Brown
The United State’s of America has the largest criminal justice system in the world.
According to a 2016 report by the Prison Policy Initiative, there are 2.3 million people in 1,719 state prisons, 102 federal prisons, 942 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails, not to mention military prisons, immigration detention facilities and prisons in the U.S. territories.
On average, states devote five percent of their budgets to their prison systems.
The federal government, alone, spends $265 billion a year on its prison system.
There it is. America has the most prisons, the most prisoners and spends more money on arresting, adjudicating and incarcerating its citizens than any other nation on the globe.
With all of the money and investment that goes into criminal justice and incarceration in America, one might think that more attention would be given to ensuring that it is an equitable system as well. Unfortunately, even Stevie Wonder can see the racial disparities in America’s criminal justice system.
The inequities begin with contact as evidenced in the glaring disparities in police contact and stops, which are fueled by racially-tinged policies such as stop-and-frisk and by unchecked bias of police officers.
For example, a 2018 report by The Sentencing Project found that once pulled over, Black and Hispanic drivers are three times as likely as Whites to be searched. Moreover, Blacks are twice as likely as Whites to be arrested. This is the case despite the fact police officers generally have a lower “hit rate” when they search Black versus White drivers. In other words, when compared to Blacks who are searched, police are more likely to find drugs, weapons and other illegal items on White motorists when they are searched.
In 2016, Black Americans comprised 27 percent of all individuals arrested in the United States. That is two times their share of the total population.
In the same year, Black youth, who accounted for 15 percent of all U.S. children, made up 35 percent of juvenile arrests.
From arrests to pre-trial detention, the disparities persist.
According to The Sentencing Project, African Americans are held in local jails at a rate 3.5 times that of Whites. This is critical because pretrial detention has been linked to increase the odds of conviction. In short, a person held in jail before trial is more likley to be convicted. In addition, those detained while waiting for their trials are more likely to accept less favorable plea deals, to be sentenced to prison, and to receive longer sentences. The only alternative to being held in jail before and during a trial is posting bail. Most pretrial releases require money bond, and this is often difficult for low-income defendants, who are disproportionately people of color.
And the saga continues. While Blacks and Latinos comprise 29 percent of the population, they make up 57 percent of those in prison. More specifically, African-American adults are almost six times more likely and Hispanic adults are a little more than three times more likely to serve time in a U.S. prison than White adults regardless of the offense.
We have watched this play out in real life, as young White men have been given what amounts to slaps on the wrists for horrible crimes, such as the case of the Stanford rapist Brock Turner, who received a six-month jail sentence for raping an unconscious woman or the former Baylor frat boy Jacob Anderson who worked a sweet plea deal that requires no jail nor forces him to register as a sex offender after being charged with four counts of sexual assault for violently raping a 19-year-old woman.
Meanwhile, repeat offender laws, commonly known as three strikes laws have had a disproportionately high impact on Black and Latino offenders who tend to have more contact with police and are more likely to be arrested, convicted or accept plea deals, resulting in offenders of color looking at lengthy jail sentences for petty crimes. One such case made headline locally when a 35-year old Black man faced as much as 20 years in prison for stealing $30 worth of candy after repeat offender enhancements were filed by the district attorneys.
And while some change has finally been made in this area under President Barack Obama and Attorney General Eric Holder, a long history of disparate sentencing for drug offenses has also played a significant role in the reason why America’s prison population is disproportionately comprised of Black and Brown people.
Of the 277,000 people imprisoned nationwide for a drug offense, 56 percent are African American or Latino. Nearly half, 48 percent of the 206,000 people serving life or what effectively amounts to life sentences in prison, are African American. Another 15 percent are Latino.
There are far more statistics in the area of criminal justice disparities and race than can be shared in this limited space. To be sure, in every system there are racial disparities.
The question is how does this change.
Well, the people of the state of Louisiana took one small step last year when they voted to end the 126-year non-unanimous jury law, which allowed juries to convict people of felonies that imposed sentences up to life imprison with all 12 members of the jury agreeing on the verdict. It was a law specifically created to disenfranchise Black jurors and to ensure that the state’s prisons were filled with Black bodies.
And last year, the Louisiana legislature approved a law restoring voting rights to people on probation and parole after a five-year waiting period. In other words, Louisiana residents sentenced to probation or parole for more than five years can have their rights restored while still under supervision after those first five years.
We are with those who say it does not go far enough, but it is a step in the right direction.
And there are other recommendations. In its 2018 report to the United Nations on racial disparities in America’s criminal justice system, The Sentencing Project offered several recommendations to address the criminal justice system’s disparate impact on Black and Hispanic communities. Among them were:
Eliminate mandatory minimum sentences
The United States should eliminate mandatory minimum sentences. Judges should be allowed to consider individual case characteristics when sentencing a defendant in every case. Mandatory sentences do not eliminate discretion in the courtroom—they simply shift it from judges to prosecutors, thereby reducing transparency in decision making.
Reduce the Use of Cash Bail
Defendants should be detained pretrial only if they pose a safety or flight risk, not because they cannot afford to post bail. A well calibrated and transparent risk-assessment instrument can be used to determine who should be released on their own recognizance, who should be released with some requirements, and who should be detained.
Fully fund indigent defense agencies
The United States should fully fund and staff indigent defense agencies through an appropriate mix of local, state, and federal resources. The federal government should increase support for training and technical assistance for indigent defense, and document shortcomings of jurisdictions that fail to meet established bar association standards for caseloads and professional training.
Adopt a policy requiring the use of racial impact statements
Policies should be adopted at the federal and state levels requiring the use of racial impact statements for proposed sentencing policies. Such a policy would require legislators to prepare an analysis assessing the possible disparate racial consequences of any proposed legislation before enacting it in order to avoid any unintended disparate racial effects. Four states—Iowa, Connecticut, Oregon, and New Jersey—have adopted racial impact statement requirements since 2008.
Develop and implement training to reduce racial bias
The United States should develop and implement training designed to mitigate the influence of implicit racial bias at every level of the criminal justice system: police officers, public defenders, prosecutors, judges, jury members, and parole boards. While it is difficult to eliminate completely racial bias at the individual level, studies have repeatedly shown that it is possible to control for the effects of implicit racial bias on individual decision-making. In other words, while it may be impossible in the current culture of the United States to ensure that individuals are cognitively colorblind, it is possible to train individuals to be behaviorally colorblind. The United States should work with leading scholars on implicit bias to develop the most effective training programs, and couple this with systems of monitoring and accountability to reduce the influence of implicit racial bias.
Address Collateral Consequences
Denying the right to vote to an entire class of citizens is deeply problematic to a democratic society and counterproductive to effective reentry. The federal government should allow Americans to vote regardless of their conviction status, and certainly after they have concluded their sentences. States should also allow the full democratic participation of their citizens. Government officials should also revise policies that serve no public safety function but impose collateral consequences on people with criminal convictions—such as in the realms of employment, education, housing, and in the social safety net—and encourage similar reforms in the private sector.