Monthly Archives: March 2015

Whites Accept Racially Disparate Imprisonment

One of the defining features of the U.S. prison population is how disproportionately black and brown it is. The more the word gets out about that, the better, right? Wouldn’t you think people would be outraged?

Turns out, a study by two Stanford researchers suggests the opposite. What researchers Rebecca Hetey and Jennifer Eberhardt found when they introduced information about racial disparities in prisons was that whites were, in general, more afraid of crime and more supportive of highly punitive responses to crime than when they were unaware of the difference.

My guess as to the reason for this horrifying outcome is that we’ve been trained to view people of color as dangerous, and also as fundamentally different (“other,” as they say). See my post in a couple of days for more on the “dangerous class.”

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Mandatory Maximums? Marc Mauer recommends 20-yr cap on federal sentencing

Sentences in the U.S. are out of control. This would be easier to ignore if the U.S. was the only country in the world but, thank goodness, it isn’t. So chew on this for a second: the U.S. is one of the only industrialized nations in the world that still uses the death penalty (we have more than 3,000 people on death row right now, and a shortage of lethal injection drugs have compelled states to consider bringing back the electric chair and firing squads).

Marc Mauer of the Sentencing Project

On top of our relatively unique approach to the death penalty, we also play fast and loose with life sentences, life without parole, and exorbitantly long sentences for relatively minor offenses (drug offenses in particular) in the U.S. In his recent testimony to the Charles Colson Taskforce on Federal Corrections, Marc Mauer of the Sentencing Project drove this point home as he argued for capping sentences at 20 years except in “extraordinary circumstances.”

The nation’s use of life sentences has expanded exponentially in recent decades, with nearly 160,000 people sentenced to life in prison, or one of every nine people in prison. Of this group, almost 50,000 are serving life without parole sentences. Such whole-life sentences are exceedingly rare in other countries. For example, in the United Kingdom, only 49 individuals are serving life sentences with no opportunity for release.

Although Congress and the federal sentencing commission have made efforts to rein in some of the most outrageous sentences, sentences remain long, and often lack logical proportionality (you can see what you think by playing around with the federal sentencing calculator, here). The most famous example of this is the sentencing disparity between crack and cocaine. The Anti-Drug Abuse Act of 1986 established a 100 to 1 disparity in terms of sentencing by volume of drug, despite the fact that (as the government learned shortly thereafter) the two substances are pharmacologically identical. Think about 100:1 – that’s the difference between six months and fifty years. And guess who got those longer sentences? Under this regime, Black, nonviolent offenders received sentences roughly as long as those received by white, violent offenders.

Screen Shot 2015-03-19 at 10.45.05 AMIn 2010, Congress finally passed the “Fair Sentencing Act of 2010.” With 34 years to perfect the damn thing, “fair” should’ve been an appropriate description, but unfortunately they retained an 18:1 disparity – this time fully informed by government experts that the drugs vary only in price and (largely because of price) in the demographics selling and buying them. Ugh.

In addition to comparing similar offenses, or looking to international standards, it’s also illustrative to look at sentences over time. Mauer points out in his testimony that sentences for murder more than doubled in the ’80’s and 90’s. The dramatic increase in sentences for murder is relevant to the sentencing regime overall, because (although we’ve made a mockery of it in terms of absolute scale) we do sentence proportionately. In other words, we look to the worst crimes and subtract from there for lower offenses – assault below murder, sexual assault below rape, robbery below armed robbery. When you routinely sentence murderers to life without parole, or the death penalty, you make it possible – even “reasonable” – to sentence lower level offenders to decades behind bars. On the other hand, if murderers receive fifteen or twenty years, then manslaughter must be lower, assault below that, etc.

Mauer’s proposal to cap sentences at 20 years barring significant public safety risks is a beautiful inversion of the concept of mandatory minimum sentencing. High sentences, often coming from mandatory minimums, are the single greatest contributor to the sheer size of our incarcerated population. 20 years is a terrible price to pay for any crime, and sentences longer than that have not shown any deterrent effect or effect on the crime rate overall. And in contrast to the debacle of mandatory minimums, this is a vastly better model for racially just reform. Many liberal reformers argued for mandatory minimum sentences to address the disparities in sentencing across races, but the effect was simply that the baseline increased and the disparity was preserved. Mandatory maximums do not present the same risk: though racial disparities will no doubt persist, the effect of maximums will create a ceiling, not a floor.

This is a logical, humane reform that would have massive impact on people who are currently incarcerated, as well as people being sentenced for any level of offense (and their families, and their communities). Implementation would necessitate creative, effective alternative responses to crime. It would strip prosecutors of their most deadly weapons for coercing plea agreements, which would likely empower defendants to take their cases to trial, revitalizing a system of justice that is as rare in reality as it is popular in entertainment (and also putting a huge amount of pressure on courts to discourage unnecessary arrests). Unlike many reforms, a maximum sentence opens the door to further decarceration by humanizing those in the system, motivating the creation of alternatives, and reducing the prison population overall.

Intro to Mass Incarceration

So, I realize that the average reader of a blog entitled “” probably doesn’t need a mass incarceration primer. That said, personally I like going back to basics from time to time so that I don’t get my blinders on and miss the big picture when I’m diving into any one of the multitude of problems related to large-scale imprisonment. I also like to have some good intro-level material to share with those who are just beginning to think about imprisonment not as a natural and necessary component of a civilized society, but as a human rights crisis in the U.S.

So – whether you’ve never thought seriously about prisons before, or you’ve spent years in prison, or you’re a prison studies professor – check out this short, pointed video by Hank Green of the Vlog Brothers in collaboration with the Prison Policy Institute. For that matter, check out the Prison Policy Institute, too (looks like a great resource for prison gerrymandering information, among other things). And if you have go-to intro materials that got you fired up about prisons, or that you discovered later and have used to spread the word, please share!

Right on Crime: The good, the bad, and the ugly

There’s a new sheriff in town. Thanks to a growing libertarian constituency, the great recession, and the physical limitations of “total incapacitation” crime control, a conservative voice has begun speaking up (and often) about prisons.

Let me introduce you to Right on Crime: self-styled a “one-stop source for conservative ideas on criminal justice,” Right on Crime has mobilized a number of heavy-hitting Republicans (primarily of a libertarian ilk) in an effort to reduce our reliance on unnecessarily expensive forms of punishment. Rick Perry, Rand Paul, and Newt Gingrich are just a few of their most prominent supporters.

Rand Paul and Newt GingrichAnd what do they want? They want change, couched in a rhetorical ballet of traditionalism: public safety, right-sizing government, fiscal discipline, victim support, personal responsibility, governmental accountability, family preservation, and free enterprise are the priorities listed on their website.


I’ll get to my critique in a second here, don’t worry, but before I do: holy shit is this some good stuff. To have these guys, many of them the same people who literally made the argument that the nation should “build enough prisons so that there are enough beds that every violent criminal in America is locked up, and they will serve real time and they will serve their full sentence and they do not get out on good behavior” (Newt Gingrich to NYT, 1992) now turning around and arguing against imprisonment is cause for celebration. Gingrich himself (along with fellow conservative Pat Nolan) recently urged conservatives to “lead the way in addressing an issue often considered off-limits to reform: prisons.” Never mind that it was basically you who put them “off-limits,” Mr. Gingrich – I’ll take it.

And they’re doing work. For a relatively small organization, Right on Crime has an impressive presence in state politics and the mainstream media (check out their state legislation tracker here). They lose absolutely zero opportunities to tout their conservatism, but their message of “less, less, less” is a welcome change from a long reigning and still prevalent message of “more, more more.”


I’ve already alluded to a couple of my complaints with Right on Crime: their highly partisan, divisive messaging (transparently designed to give conservatives credit for any reforms, potentially at the cost of more reform), and the hypocrisy inherent in a conservative push against “tough on crime” politics that conservatives forced onto the agenda almost fifty years ago now.

But far worse than either of those flaws is the short-sighted emphasis on “low-hanging fruit.” Budgetary restrictions and/or burdens on the American taxpayer are consistently cited as the impetus for change, while change itself is virtually only described as affecting “low-level, non-violent offenders.” The role of race and class that is vividly apparent to anyone looking at the system is seldom mentioned, only occasionally thrown in as an afterthought. Solutions that address racism or the other social problems that lead to crime and incarceration are not being proposed by Right on Crime.

Don’t get me wrong – prisons are ridiculously expensive; I would love to see that money channeled into more humane and useful government programs. And yes, non-violent, low-level offenders don’t belong in prison. But, if left alone, the message sent is “stop there.” Don’t do anything that seriously throws into question the rights of the perceived “victim class” (read: white people) compared to the perceived “offender class” (read: Black people).

If allowed to persist uncontested, the Right on Crime crew and their conservative brethren will almost certainly make incremental change and get a lot of credit for it. Reducing a handful of felony charges to misdemeanors and relying on traditional alternatives to incarceration like probation and tracking devices may drive down incarceration rates five or ten percent; maybe even twenty. But in order to return to the rate of incarceration we had in the 1970’s (much less be better than that), we’d have to release eighty percent of the people currently in prison. So don’t mistake Right on Crime for a movement that can end or even seriously injure mass incarceration.


Most dangerously, this movement may entrench the very ideas that allowed prisons to profligate over the last forty years. As Jonathan Simon describes in his new book, Mass Incarceration on Trial, mass incarceration grew out of a “new common sense” about criminals. Thanks to rising crime rights, highly publicized serial murders, militant civil rights activists like the Black Panthers, and a couple of power struggles within prisons, most Americans began to talk about people in prison as having “high and unchanging potential for criminal activity” who can’t be helped and thus must be incapacitated.

The Right on Crime messaging chips away at the notion that all people convicted of crimes are violent animals who must be segregated from society. But in doing so, it consistently gains “conservative cred” on the backs of those who are in prison for violent offenses.

We’ve run out of space and money to keep ramping up offenses and sentences. We’ve also created such a ridiculous behemoth of a system that it’s almost too easy to argue that something needs to change. That change can be a radical rethinking of crime and punishment that takes seriously the value of the people we’re potentially locking up, or it can be minor tinkering that leaves the substance of our system in place. The Right on Crime movement is pushing a series of reforms that may effectively save mass incarceration – imprisonment rates will go down, the U.S. will no longer lead the world in incarceration, and state budgets will experience enough relief to keep going.

Right on Crime is already making impressive headway in getting conservative politicians to seriously doubt the efficacy of blind momentum toward harsher responses to crime. Liberal and radical groups need to speak as loudly and push further, arguing not for state budgets but for humans, and pointing not to “big government” but to racism and an unwillingness to address social problems with anything more meaningful than a warehouse.

Mass Incarceration is a Symptom, not a Disease

Thank you to the Prison Policy Initiative for wrangling many different data sources for this comprehensive view.

The scope of incarceration in the U.S. is just one of the defining features of mass incarceration. That may seem counterintuitive. After all, the scale of the U.S. system is what makes it so infamous. It’s impossible to pick up a book about prisons in America without being quoted some relevant stats in the first handful of pages (we lead the world in incarceration rate, we have 5% of the world’s population but 25% of the world’s prison population, our incarceration rate has grown 500% in forty years). All of this is true and important, and – bonus! – tends to freak out even the most punitively minded audience.

But it also should be treated as a sign of a problem, not as the extent of it. In my post about Ferguson yesterday, I argued that the dystopian horror story of a criminal justice system that they’ve got down there, with more outstanding charges than citizens, was a predictable outcome of unbridled discretion handed to police officers and prosecutors (coupled with racism and classism, that is). Change may be effected in Ferguson as a result of protesting, federal investigation, and new leadership, but there’s more where Ferguson came from. Similarly, treating mass incarceration as the problem, rather than a very scary symptom of problems that we had before mass incarceration, is short-sighted and unlikely to produce lasting change.

See my thoughts on the conservative “Right on Crime” movement tomorrow for more on this note.

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Ferguson: Police State

Ferguson has been getting a lot of attention lately, and for good reason. Much has appropriately been made of the ridiculously racist emails the DOJ investigation turned up, as well as the preferential treatment meted out to friends and family while those who lacked connections were slapped with harsh sanctions and huge fines, ironically financing the very system that was sucking them dry.

But the story that the DOJ report tells is not only one of an egregiously racist system. It is also a story of an alarming scope of policing. I’ve never been a proponent of “small government,” but the sheer volume of outstanding charges, well described in this Huff Post Blog post, tells a dystopian story of an entire town under the thumb of a police force and prosecutor’s office – 16,000 of Ferguson’s 21,000 residents have outstanding charges against them; there were nearly 33,000 different warrants in 2013. Had the timing been different, the movement less well-organized, the inciting event less powerful, this kind of approach to “law and order” wouldn’t have come to light in Ferguson. In fact, even now it’s hardly receiving honorable mention as the media divides into two predictable camps and argues about whether the Ferguson PD is really all that racist, or whether they’re just indiscriminately terrible.

One thing that all police departments and prosecutors’ offices have in common when they engage in this kind of draconian law enforcement is this: they are acting entirely within the legal bounds of their discretion, and we are virtually powerless to stop them. In this case a social movement, the eyes of sympathetic media, and the influence of the Department of Justice may be enough to rein in Ferguson – at least for now. But as long as we exist in a society riddled with racism and classism, the kind of discretion and power afforded to police officers and prosecutors will permit problems to prosper silently. While we work on communicating the message that #blacklivesmatter, we should also be imposing reasonable limits and meaningful accountability on our police officers and prosecutors so that the kind of police state the DOJ found in Ferguson isn’t permitted to flourish unseen everywhere else.

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