Race to Incarcerate

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Marc Mauer argues that the problem with aggressively enforcing ‘quality of life’ crimes and lower-level offenses is that it not only ignores the community as a partner in crime-fighting strategies, but it often heightens police-community tensions.

Roumen Bezergianov

Marc Mauer's Race to Incarcerate should be a mandatory reading for every student, employee, and person interested in the criminal justice system. It raises important questions about how we define different types of offending behaviors and punishments, about political and legislative influences on the judicial system, and raises the awareness about the shocking and disturbing relationship between race and class & the criminal justice system and particularly the system’s impact on the African American community.

Mauer, assistant director of The Sentencing Project, begins by providing a history of how the current correctional system evolved from the institution of the penitentiary developed by “Quakers and other reformers.” The penitentiary derived from the concept of “penitence” and sought to reform the offending “sinners.” Prior to this experiment, society’s response to criminal behavior in Europe and the colonies did not include institutions. Jails were only for those awaiting trials and debtors who had not paid their debts. The rich were fined for minor offenses and poorer people were “subjected to the stocks or public whippings.” The death penalty was applied not only for murder, but also “for lesser offenses such as third-time thievery.”

There were differences in punishment between England and the colonial societies based on the nature and organization of their communities. Colonial communities were small, everybody knew each other, and the punishments had to be “swift and certain” in order not to “affect the laboring capacity of the community.” It was after the Revolution and as a result of “a growing sentiment that the death penalty…was barbaric” and its use needed to be restricted that other kinds of punishment were considered for serious offenders—this is how imprisonment came to be viewed as a form of punishment. The first prison was created in 1790 in Philadelphia when sixteen cells at the Walnut Street Jail were converted into “housing for felons.”

Mauer observes that “while the philosophical orientation and stated goals of the prison have fluctuated” over time, the basic concepts of “confinement and isolation” have remained central for the institutional model of the prison for over two centuries. In the early '70s a national debate was taking place with respect to the utility of the existing criminal justice system. One camp was the “tough on crime” movement supporting the construction of more prisons and juvenile detention facilities; the other camp sought reform in the system and noted its failures to prevent crime. Proponents of the reform movement supported a moratorium of all new prison construction and argued that alternatives to incarceration were more appropriate to many offenders and justice required that such alternatives be considered. Eventually, the “tough on crime” camp carried the decade (and the decades since) and as a result the incarceration rates dramatically increased between 1972 and 1997. A prison population of under 200,000 in 1972 grew to almost 1.2 million in 1997 while the jails in 1997 contained an additional 500,000 inmates awaiting trial or serving short sentences to make a total of 1.7 million people behind bars in that year. Compared to other industrialized countries whose crime rates are not significantly different from the US, the United States’ rate of imprisonment is six to ten times higher per capita. We compete with Russia in the race to incarcerate. Mauer also reports that “more than half of the prisons in use today have been constructed in the last twenty years.” He explains in detail how the prison system has become a significant economic sector for many communities and provides jobs to over 600,000 employees nationwide and how political winds and media attention have greatly contributed for the “victory” of the “tough on crime” movement.

Determinate sentencing is one of the ways by which prison and jail populations increased so dramatically. In 1973 the New York State legislature passed the Rockefeller Drug Laws that called for mandatory and harsh prison terms for various drug offenses along with limits on plea bargaining. These laws “set the stage for new presumptive sentencing laws for drug crimes in almost every state.” In 1984 the federal Sentencing Reform Act was passed and the Federal Sentencing Commission was established. It developed guidelines for mandatory sentencing with a heavy presumption of imprisonment for most offenders and little regard for any mitigating circumstances. Apparently, the purpose of determinate (mandatory) sentencing is to make sure that everyone is treated equally under the law and prevent judges from exercising unfair discretion. Discretion, however, has not been eliminated—it has only been transferred from the judge to the prosecutor (during the plea-bargaining process). And while judicial discretion is an open process, prosecutorial discretion is “behind closed doors and with little accountability.” Mauer argues that “instead of promoting all, rich and poor, to go to prison, we need to explore whether community service and treatment (white-collar sentences) may be appropriate for some low-income offenders.”

Mandatory sentencing was society’s response, albeit inadequate and short-sighted, to increased crime rates and media attention. The approach has been unsuccessful because it fails to take into account the fact that “whatever combination of family, social, or economic factors leads individuals to crime must have become worse overtime” to produce an increase of crime rates and that more and more incarceration alone will not solve the problem and will moreover exacerbate it. As an example, 50 percent of all prison inmates are African American and 17 percent are Hispanic. Statistically, three out of ten African American boys growing up today will spend time in prison. Mauer asks what does that mean to the African American community and would our society look at the criminal justice system differently if these statistical predictions and realities referred to middle class Caucasian boys and young people? He provides an example with drug addiction. Middle-class America recognized it as a social problem after a critical mass of its class members experienced drug-related problems; high quality treatment centers were established and private insurance covers such treatment and services. Instead of this sort of adequate social intervention a “war on drugs” has been waged in poor and minority communities.

Treatment programs in poor and minority communities are in short supply and of questionable quality. They are unable to resolve or contain the problem and have become entangled in the domain of the criminal justice system. Mauer reports that “since 1980, no policy has contributed more to the incarceration of African-Americans than the ‘war on drugs.’” While there were 581,000 arrests for drug offenses in 1980, in 1995 that number was 1,476,000 and African Americans constituted “an increasing proportion of those arrests.” Moreover, these arrests do not reflect increasing rates of drug abuse — on the contrary, according to the available data the number of people using drugs has been declining from 14.1 percent in 1979 to 6.1 percent by 1995. The reason for the increase of arrests is the greater use of police resources and police’s targeting of low-income minority communities. Mauer explains that drug law enforcement is far more discretionary than for other offenses and it is always easier to make drug arrests in the inner city (where drugs are traded on the streets) compared to suburban areas (where the deals take place in the homes). The author takes into account a police desire to be more responsive to low-income communities as well as frequency of complaints in those communities and does not subscribe to conspiracy theories that African Americans are targeted purposefully. But he points out that the end results of “tough on crime” policies such as the “war on drugs” have the same damaging effects as if the purpose were to oppress low-income minority communities.

Mauer also points out that the criminal justice system can never be a primary crime control mechanism simply because of its reactive nature. It activates only after a crime has been committed and thus societal perceptions of the courts’ and prisons’ role in ensuring public safety have been exaggerated. He asserts that “the criminal justice ‘funnel’ misses most crimes” and explains how. Nationally, only a third of all crimes are reported and even for serious crimes the reporting rate is only about 50 percent because many victims do not believe that the police can help them. One-fifth of reported crimes result in a suspect being arrested and not all arrests lead to prosecution. For example, there were 3.9 million victimizations for violent crimes in 1994. Of these, 1.9 million were reported, 41 percent of the reports resulted in arrest, 18 percent of the arrests resulted in felony convictions, and 82 percent of the felony convictions were actually sentenced, which is only 3 percent of all serious violent offenses originally committed. These statistics make it clear that the roles of families, communities, churches, and other institutions are crucial and central in promoting pro-social behaviors, reducing crime, and providing public safety.

Mauer draws a poignant contrast between New York and San Diego in terms of the two cities’ approaches to crime prevention. Both cities experienced a 54 percent decline in homicides between 1991 and 1996. However, in San Diego, where law enforcement focused on creating and maintaining police-community problem-solving partnerships and mutual trust, the number of arrests declined by 15 percent between 1993 and 1996 while in New York the overall arrests rose by 23 percent and misdemeanor drug arrests by 97 percent because of an aggressive, “and at times intimidating use of police force.” Mauer argues that “the problem with aggressively enforcing ‘quality of life’ crimes and lower level offenses is that it not only ignores the community as a partner in crime-fighting strategies but often heightens police-community tensions” and that is the result in New York where citizen complaints against police rose by 60 percent between 1992 and 1996 and African Americans (29 percent of the city’s population) filed 53 percent of the complaints in 1996.

Law professor Herman Goldstein cautions that if in the course of trying to impact crime, disorder and fear we increase tensions in the community, we will have made matters worse because “the bottom line is not crime, the bottom line is the racial tensions in our large urban areas.” Mauer concludes by challenging us to decide what kind of society we want to live in and to face the fact that “after two centuries, we as a nation still cage the least fortunate among us to solve our problems.”

Image courtesy of the Spunk Library.

Published by New Press.

Roumen Bezergianov is a mitigation specialist at the Public Defender's Office of Maricopa County, Arizona.

Copyright © 2005 by Roumen Bezergianov. All rights reserved.

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