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Incarceration Nation Gets a Reprieve

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It's sometimes dispiriting to try to make sense of the Supreme Court's choices of which cases it will hear. Some cases that cry out for the court's consideration are rejected (such as a federal court's decision that a town's racial profiling is constitutional, or a federal court's decision that survivors of one of the worst race riots in the country's history cannot sue for compensation for the decimation of their town by white supremacists). Others, like former Enron CEO Jeffrey Skilling's "Scottsboro Boys" challenge to his trial and conviction, are surprisingly granted review by the court. So it was with some dismay that advocates of prison reform learned on June 14 that the Supreme Court had decided to hear the challenge by the state of California to a federal court order requiring the state to release thousands of prisoners to address dangerously overcrowded prisons.

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It is by now well known that the over-incarceration of criminals in the United States is a disgrace that separates this country from other democracies. The U.S. has less than 5 percent of the world's population but 25 percent of its prisoners. The reasons are clear-cut and startling. Joblessness, poor education and family breakdown are all contributing factors to increases in crime that in part have fueled a rise in incarceration rates. But it is a series of draconian drug laws and mandatory sentencing laws that have resulted in a 500 percent increase in the nation's prison population over the last 30 years.

It's not as though increases in violent crime have justified this growth. In fact, violent crime has persistently decreased since the uptick of the 1980s and the advent of crack cocaine on the streets of our cities. We've known this since at least 2001, and recent reports indicate that decreases have continued. The dramatic increases in the prison population are due instead to the more frequent and larger incarceration of nonviolent drug offenders (pdf).

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Of course, race is also a key factor in the promotion of many of these policies. Thirty-five percent of the U.S. prison population is African American, although blacks constitute only 12 percent of the nation's population. The so-called war on drugs has been fought largely within and upon black communities, and the results have been devastating. As Michelle Alexander points out in her powerful new book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, largely as a result of U.S. over-incarceration policies, more African Americans are under the supervision or control of correctional facilities today than were enslaved in 1850.

The marquee example of how race and the war on drugs intersect in the over-incarceration of blacks is the ongoing disparity in crack cocaine and powder cocaine sentencing—a disparity that has been reduced but, inexplicably, not eliminated, despite recommendations from the U.S. Sentencing Commission, judges and lawyers. More than 80 percent of those convicted for crack cocaine offenses are black. That a defendant convicted of selling crack cocaine now will still receive a sentence 18 times longer than the sentence for a defendant convicted of the same offense with powder cocaine is, of course, "better" than the previous sentencing disparity (which was 100 to 1) but still unjust. The inability of a Democrat-controlled Congress to eliminate this disparity speaks volumes about the persistence of race in the formulation of criminal justice policies.

"Three strikes you're out" laws were crowd pleasers for the law-and-order set but had the absurd effect of imprisoning ex-offenders for life based on a third conviction for minor offenses like stealing videotapes, pizza or golf clubs. More prisoners are serving life sentences than ever before in our history. As a result, in California 165,000 inmates are housed in an infrastructure built to hold 80,000 prisoners.

Advocates of criminal justice reform lauded the decision, but so did many others. Like so many unjust laws, California's over-incarceration policies were financially bad for the entire state. California simply can't afford to maintain its bloated prison population. As a result, California Gov. Arnold Schwarzenegger had already agreed to a plan to release elderly and ailing inmates. But he decided to challenge the authority of the federal court to impose its prisoner-reduction plan on the state, calling it a "sweeping intrusion into the state's management" of its prison system. And so the Supreme Court will hear Schwarzenegger v. Plata in this year's October term.

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The case will test the authority of federal judges hearing challenges brought pursuant to the Prison Litigation Reform Act. Of course, states remain free to decide on their own to reduce their populations of nonviolent inmates to more humane, cost-effective and manageable levels. Some states, like Virginia, have also been compelled by their budget shortfalls to initiate the release of low-risk prisoners. Of course, it would make more sense if we pursued alternatives to incarceration at the front end, rather than engaged in periodic releases when our wrongheaded policies result in a system that is unsustainable.

In the meantime, all Americans are paying for the mindless punitive policies we've pursued. And while California has been given a reprieve from complying with federal court orders to reduce its prison population, the prisoners held in these conditions, and the officers who supervise them, will continue to suffer the health and safety consequences of life in a penal system that our society can no longer afford or justify.

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Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root.

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