America Has Become Incarceration
by Marc Mauer
www.TomPaine.com., December 22,
The United States has now become the world
leader in its rate of incarceration, locking up its citizens at
5-8 times the rate of other industrialized nations.
Two remarkable developments in Washington
in the past week highlight the extent to which the United States
has become the land of mass incarceration.
First, the Supreme Court denied the appeal
of Weldon Angelos for a first-time drug offense. Angelos was a
24-year-old Utah music producer with no prior convictions when
he was convicted of three sales of marijuana in 2004. During these
sales he possessed a gun, though there were no allegations that
he ever used or threatened to use it. Under federal mandatory
sentencing laws, the judge was required to sentence Angelos to
five years on the first offense and 25 years each for the two
subsequent offenses, for a total of 55 years in prison. In imposing
sentence, Judge Paul Cassell, a leading conservative jurist, decried
the sentencing policy as "unjust, cruel, and even irrational."
The Angelos decision came on the heels
of a Bureau of Justice Statistics report finding that there are
now a record 2.2 million Americans incarcerated in the nation's
prisons and jails. These figures represent the continuation of
a "race to incarcerate" that has been raging since 1972.
With a 500 percent increase in the number of people in prison
since then, the United States has now become the world leader
in its rate of incarceration, locking up its citizens at 5-8 times
the rate of other industrialized nations. The strict punishment
meted out in the Angelos case and thousands of others explain
much of the rapid increase in the prison population.
The composition of the prison population
reflects the socioeconomic inequalities in society. Sixty percent
of the prison population is African American and Latino, and if
current trends continue, one of every three black males and one
of every six Latino males born today can expect to go to prison
at some point in his lifetime. The overall rates for women are
lower, but the racial and ethnic disparities are similar and the
growth rate of women's incarceration is nearly double that of
men over the past two decades.
While the United States has a higher rate
of violent crime than comparable nations, the substantial prison
buildup since 1980 has resulted from changes in policy, not changes
in crime. The "get tough" movement, which embraced initiatives
designed to send more people to prison and to keep them for longer
periods of time, contributed to massive prison construction and
a corrections budget now totaling $60 billion annually. These
policy changes included mandatory sentences that restrict judicial
discretion while imposing "one size fits all" penalties,
"three strikes and you're out" laws that allow life
terms upon a third felony conviction, and the "war on drugs."
Drug policies have been responsible for
a disproportionate share of the rise in the inmate population,
with the 40,000 drug offenders in prison or jail in 1980 increasing
to a half million today. A substantial body of research has documented
that these laws have had virtually no effect on the drug trade,
as measured by price or availability of drugs. Most of the drug
offenders in prison are not the "kingpins" of the drug
trade. Indeed, the low-level sellers who are incarcerated are
rapidly replaced on the streets by others seeking economic gain.
While crime rates have been declining
nationally for a decade, research to date demonstrates that expanded
incarceration has, at best, been responsible for only a quarter
of this decline. Other factors that played a key role include
a strong economy in the 1990s that provided employment opportunities
for low-skill workers, a marked decline in crack cocaine use and
its associated violence by the early 1990s, and strategic community
policing. New York City, which experienced a two-thirds reduction
in homicides from 1990 to 2002, did so despite a one-third decline
in its jail population during that period. And conversely, while
Idaho led the nation with an astonishing 174 percent rise in its
prison population, it nevertheless experienced a 14 percent rise
With a new Democratic Congress in place,
there is hope that long-festering criminal justice policy inequities
can finally be addressed. Long-time reform champions Reps. John
Conyers, D-Mich., and Bobby Scott, D-Va., are poised to take over
the chairmanships of the House Judiciary Committee and its Crime,
Terrorism and Homeland Security subcommittee, respectively. But
we should be cautious in our expectations given the Democratic
Party's record of complicity in endorsing "get tough"
measures. Bill Clinton's 1994 crime bill, for example, was loaded
with harsh sentencing provisions and $8 billion in new prison
construction. Progressives would be wise to continue to build
bipartisan support for criminal justice reform measures. In recent
years this has led to alliances with conservative Senators Sam
Brownback and Jeff Sessions who sponsored bills for prisoner reentry
and crack cocaine sentencing reform respectively.
As we look to the new Congress, high on
any reform agenda should be the following:
* Crack cocaine sentencing reform -- During
the last 20 years, the federal sentencing laws for crack cocaine
offenses have subjected thousands of low-level defendants to mandatory
five- and 10-year prison terms, while exacerbating the racial
dynamics of incarceration. More than 80 percent of the persons
charged with these offenses are African Americans, who receive
much stiffer terms than those meted out to powder cocaine defendants.
* Mandatory sentencing reform -- Congressional
mandates to impose harsh sentences with no judicial input have
created unfair and overly harsh penalties, and have been decried
by the American Bar Association and Supreme Court Justice Anthony
Kennedy, among many others.
* Racial impact statements -- Just as
fiscal impact statements aid lawmakers in assessing the financial
implications of sentencing policies, the preparation of racial
impact assessments could provide similar benefits to policymakers.
Had such assessments existed in 1986, we could have had a debate
on the racial dynamics of the crack cocaine laws prior to their
enactment, not 20 years later.
* Felon disenfranchisement reform -- Five
million Americans could not participate in the November election
due to a current or previous felony conviction. Laws that govern
these practices are enacted by the states, but Congress has the
authority to require uniform voting rules in federal elections.
Legislation proposed by John Conyers in the House would require
states to permit voting by any non-incarcerated person in federal
elections, even if barred from participating in state elections.
Three decades of prison expansion have led to rates of imprisonment
that are shameful for a democratic nation. Both public safety
and community health would be better served through investments
in policies that promote job creation, high school graduation
and substance abuse treatment. It's time to reverse the race to
Marc Mauer is the executive director of
The Sentencing Project and the author of "Race to Incarcerate"
and co-editor of "Invisible Punishment" (both from The