US prisons, racial disparity and civil rights in the 21st century, a conversation with Marc Mauer

Racism, crime and poverty. These three issues are so intertwined and ingrained in the US that it often seems like there is no way to untangle the mess (created in relatively little time) responsible for a whole array of troubles so distinctive of  American society today. There is no backdrop better suited to discuss this issue than the nation’s prisons. With a large majority of inmates of color, racial profiling is back in public discourse as is felony disenfranchisement (the loss of political rights due to an individual’s criminal record) and the question of how to cut down America’s massive prison population. To dig deeper into the matter we spoke with Marc Mauer, Executive Director of The Sentencing Project, a Washington-based non-profit group that promotes sentencing policy reform, addresses issues of racial disparity and advocates for alternatives to incarceration.

What is it about America, its history, its people, that has led to such severe sentences, such a large prison population, and to one primarily made of people of color?

America has a long and valued history of democracy, but also a long history of racism and in recent decades, increasing inequality. As the manufacturing economy began to decline in the 1970s, and along with that union wage jobs in urban areas, the drug economy increasingly became a source of income in many disadvantaged communities. As Americans of all races grappled with the problems brought on by substance abuse, many political leaders believed it to be to their political advantage to embrace the “tough on crime” ideology, leading to a generation of harsh sentencing policies.

Inequality also reverberates within the justice system, with dire consequences for poor people. Far too often, the quality of justice one receives is not based on the rights enshrined in our Constitution, but rather how much justice one can afford. The ability to pay bail to secure pretrial release, the quality of one’s defense attorney, and the resources necessary to gain access to a high quality treatment program are all very dependent on individual resources.

How would you gauge the problem of racial disparity in American prisons today? Are things improving? Worsening?

For nearly four decades the situation of racial disparity in American prisons has become increasingly stark. Research by the Department of Justice projected that at current levels of incarceration a black male born in 2001 had a one in three chance of doing time in prison in his lifetime, and a Latino male one in six.

There have been some modest shifts in direction in recent years. As a result of changes in drug policy in some states, the number of African Americans incarcerated for a drug offense has declined modestly. Some policing agencies have scaled back their volume of drug arrests, while in other jurisdictions a range of treatment programs now serves as an alternative to incarceration for offenders who might otherwise face a prison term. Since African Americans and Latinos represent more than 60% of persons serving prison time for a drug offense, any shift in this area will likely benefit these groups disproportionately.

Encouraging as these developments are, they only represent the first steps in what is necessary to reverse the decades-long buildup in mass incarceration of African Americans. It will require sustained activity among both policymakers and the public to address both the disparities plaguing the justice system and the systemic socioeconomic problems contributing to the historic rise in incarceration.

The US is finally seeing a decline in its prison population. What has happened during the last decade to bring about this shift?

A number of developments came together to produce this shift. Crime rates have been declining since the mid-1990s and one effect of that trend is that the issue of crime is now less of a political concern. Consequently, there is less political posturing to be “tough on crime,” and therefore greater political space to examine policies and practices that can promote public safety without producing continuing increases in imprisonment.

The relatively new concept of “reentry” has served to bring together liberals and conservatives around evidence-based policies. As individuals return home from prison it’s in everyone’s interest that they be less likely to reoffend. This growing recognition has led to federal legislation such as the Second Chance Act, which provides funding to states and local communities for reentry planning and programming designed to enhance the ability of released prisoners to obtain jobs, housing, and treatment services.

The changing climate on discussions of crime policy has also contributed to a reconsideration of harsh sentencing policies, particularly for drug offenses, in many jurisdictions. At the federal level the Fair Sentencing Act of 2010 substantially reduced mandatory prison terms for many low-level crack cocaine offenses. Many states have adopted reforms for drug offenses as well, the most high profile of such actions being the scaling back of the “Rockefeller Drug Laws” in New York state, policies originally adopted in 1973 that in many ways provided the framework for the subsequent launch of the war on drugs.

Finally, the fiscal crisis has focused attention on the high cost of incarceration. Governors and legislators now recognize that the prison expansion of recent decades has come at the expense of support for higher education and other vital services. If we can strategically reduce the prison population, that will free up resources for more pro-active investments in communities.

What still needs to happen in the near future to create more balance in America’s public safety approach?

Maintaining a world record prison population now costs Americans about $80 billion annually. If we can achieve substantial reductions in that population and begin to close prisons that would no longer be necessary we could begin to address the conditions in disadvantaged communities that have contributed to this dubious distinction. Two measures could move us in such a direction.

First, reverse the priorities of the “war on drugs” so that substance abuse is primarily addressed through interventions emphasizing prevention and treatment, rather than criminal justice processing. Drug courts that have proliferated around the country contribute to such a shift, but we need to insure that low-income individuals with drug problems can gain access to community-based treatment without having to enter the criminal justice system. Second, policymakers should reconsider the wisdom of mandatory sentencing policies that have proliferated in recent decades. These laws have created a “one size fits all” approach to sentencing that prohibits judges from considering the individual circumstances of both the offender and the offense.

Regarding the disproportionate number of inmates of color in the US (and the related issue of felony disenfranchisement) should criminal justice reform be seen as a civil rights issue? 

Many leading advocates now describe criminal justice reform as the civil rights issue of the 21st century. A half century after the formal dismantling of Jim Crow laws we now have more than 800,000 African Americans in our prisons and jails, eight times the number during the Jim Crow era; these citizens are often subject to lifetime bans on access to benefits and participation in society.

Among the most fundamental of these barriers is the ban on voting for people with felony convictions. An estimated 5.8 million Americans are ineligible to vote as a result of a current or previous felony conviction, depending on the laws in their state. Of this total, three-quarters are not in prison, but are living in the community under probation or parole supervision, or have completed their sentences yet are still denied the right to vote in the states that maintain this restriction. Racial disparities in the justice system translate into disparities into disenfranchisement as well, resulting in one of every thirteen African Americans ineligible to vote. As is true of our criminal justice system overall, US disenfranchisement policies are extreme by the standards of other industrialized nations. Many other nations permit all citizens to vote, including prisoners, and of those that restrict the vote this generally applies only during the time of imprisonment.

Private prisons have also been in the spotlight this year. Are prisoners of color paying the price for private sector companies looking for higher profit margins?

Although private prison companies incarcerate only about 8% of the US prison population, that now represents about 130,000 citizens behind bars. The promise that private prisons can provide reasonable services at a lower cost than the public prison system turns out to be largely illusory. Because of the need to earn profits for shareholders private prison companies need to restrict spending on their most substantial cost, salaries and training for prison guards. As a result, the employees of private prison companies generally receive less training, lower compensation, and have higher turnover rates.

The concept of private prisons also raises fundamental questions about democracy. That is, should the government transfer oversight of the management of depriving citizens of their liberty to a profit-making entity? Regardless of the level of incarceration in society it should be the obligation of the state to undertake the responsibility of ensuring that any such restrictions are only undertaken with respect for Constitutional rights and with direct oversight by public entities.