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America is two societies: one incarcerated and one not

On Behalf of | Aug 13, 2017 | Firm News

Today, America is two societies: one incarcerated and one not.  America is two societies which are separate and unequal, especially regarding the civil right to vote.  Nationally, statistics demonstrate African American men are much more likely to be incarcerated than White men, and that a very high proportion of Black men spend some time in prison.  Sadly, researchers have determined that one third to two thirds of the 100,000 poorest black male three-year olds of today will eventually end up in prison.  Marc Mauer and Tracy Huling, “Young Black Americans and the Criminal Justice System: Five Years,” The Sentencing Project[1] (October 1995),  See also, Thomas Bonczar and Allen Beck, ‘Lifetime Likelihood of Going to State or Federal Prison’, Bureau of Justice Statistics Special Report, Washington, BJS, March 1997, p. 1; , for a state-by-state analysis, see Marc Mauer, ‘Racial Disparities in Prison Getting Worse in the 1990s’, Overcrowded Times, vol. 8, no. 1, February 1997, pp. 9–13.  It must be recalled that if you have been convicted of a felony and are serving that felony sentence, you cannot vote.  This means that a very high proportion of Black men will spend some time in or out of  prison with no way to protest political grievances by voting.  This creates a feeling of hopelessness mentioned in the Kerner Report.

Michelle Alexander explains the consequences of this disproportionate minority confinement:

In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.  Michelle Alexander, The New Jim Crow:  Mass Incarceration in the Age of Colorblindness p.2 (2010)

Ms. Alexander further explained that “mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.”  Id at 4.  “As is well known, disproportionately many African Americans pass through the justice system, and consequently the impact of disqualification for felony conviction is especially dramatic for the black electorate. Nearly 7 percent of black Americans cannot participate in the electoral process because of felony convictions. Because 95 percent of felons are male, the felony disfranchisement rate for black men is almost double. All but one state, Hawaii, records felony disfranchisement rates for blacks that are larger than disfranchisement rates for whites and others, in most cases several times larger.”  Florida Advisory Committee to the United States Commission on Civil Rights Ex-felon voting rights in Florida, (August 2008), p. 1-2,

The following statistics demonstrate the accuracy of these statements.

“Since 1980, the United States has engaged in the largest and most frentic correctional buildup of any country in the history of the world.  During this time the number of Americans imprisoned has tripled to 1.5 million.  About 50 million criminal records – enough to cover nearly one-fifth of the entire U.S. population – are stuffed into police files. . . . The increase in prison population did not reduce crime, nor did it make Americans feel safer.  In fact, some criminologists have argued that the overuse of the penal system for so many small-time offenders has actually created more crime than it prevented.”  Steven R. Donziger, Ed., The Real War on Crime: The Report of the National Criminal Justice Commission (Harper Perennial 1996) p.32-33.

A study by the National Council on Crime & Delinquency predicts that, if all 50 states were to fully implement all of the get-tough measures that now only some have adopted, the prison population would soon rise to 7.5 million at an annual cost of $221 billion—compare the total 1995 U.S. defense budget at $269 billion.  Id. at 36.  Wisconsin Elections Board Director Kevin Kennedy has indicated that allowing ex -felons to vote would actually save about $13,000 by eliminating the need to generate lists of ex-felons for poll workers to check.  Gil Halsted, Wisconsin Public Radio, Wisconsin voting bill would grant voting privilege to ex-felons, August 30, 2009,

Professor of Sociology at the University of Wisconsin Madison Pamela E. Oliver explains:
The United States now has the highest incarceration rate in the world, 690 people per 100,000—a rate that is four to six times higher than that of most other nations. Incarceration is, moreover, very unevenly spread across the population, and particularly impinges upon blacks and Hispanics. The imprisonment rate of black American men is over eight times greater than that of European Americans. Young black men are even more severely affected. Federal statisticians at the Bureau of Justice Statistics now estimate that the “lifetime expectancy” that a young black man will spend time in prison is about 29 percent. For Hispanics, the rate of imprisonment is about three times higher than that of European Americans. . . . The rates of prison admissions as a proportion of population for both races were relatively stable until about 1975. Thereafter, the imprisonment rates of both races rose very rapidly, but far faster for blacks than for whites. . . . . Although nearly everyone in prison has committed a crime, the rise in imprisonment since the 1970s is not explained by crime rates, but by changes in policies related to crime.  Pamela E. Oliver, Racial disparities in imprisonment: Some basic information, 21 Focus 28 (2001).

In 1990, almost one in four (23%) of African American males in the age group 20-29 was in prison, jail, on probation or on parole.  Marc Mauer, “Young Black Men and the Criminal Justice System: A Growing National Problem,” The Sentencing Project (February 1990).  Last year, the Pew Center on the States clearly stated:
Three decades of growth in America’s prison population has quietly nudged the nation across a sobering threshold: for the first time, more than one in every 100 adults is now confined in an American jail or prison. According to figures gathered and analyzed by the Pew Public Safety Performance Project, the number of people behind bars in the United States continued to climb in 2007, saddling cash-strapped states with soaring costs they can ill afford and failing to have a clear impact either on recidivism or overall crime.  One in 100: Behind Bars in America 2008, p.3

Even worse it was found:
That statistic masks far higher incarceration rates by race, age and gender. A separate analysis of midyear 2006 data from the U.S. Department of Justice shows that for Hispanic and black men, for instance, imprisonment is a far more prevalent reality than it is for white men. . . . Men still are roughly 10 times more likely to be in jail or prison, but the female population is burgeoning at a far brisker pace. For black women in their mid- to late-30s, the incarceration rate also has hit the 1-in- 100 mark.  Id

That is only part of the ugly picture.  The preceding statistics refer only to individuals who have been convicted and confined.  Those numbers fail to take into account individuals who have been convicted but not confined being under some form of supervision by a state department of corrections.  “The escalation of the prison population has been astonishing, but it hasn’t been the largest area of growth in the criminal justice system. That would be probation and parole—the sentenced offenders who are not behind bars.”  One in 31: The Long Reach of American Corrections, March 2009, p. 1,  With far less media attention to this booming population, the Pew Center on the States found that:
the number of people on probation or parole has skyrocketed to more than 5 million, up from 1.6 million just 25 years ago.  This means that 1 in 45 adults in the United States is now under criminal justice supervision in the community, and that combined with those in prison and jail, a stunning 1 in every 31 adults, or 3.2 percent, is under some form of correctional control. The rates are drastically elevated for men (1 in 18) and blacks (1 in 11) and are even higher in some high-crime inner-city neighborhoods.  Id.  Emphasis added.

These statistics by the Pew Center for the States cannot be dismissed or rejected as aberrations.   Similar statistical determinations have been found by other social researchers: Blumstein-Graddy Study of 1968 to 1977 arrest statistics (a nonwhite male was three and a half times more likely to have a felony arrest on his record than was a white male.  Whereas only 14% of white males would be arrested, 51% of nonwhite males could anticipate being arrested for a felony at some time during their lifetimes.); Tillman Study of 1974 to 1986 arrest records in California (two-thirds of the nonwhite adult males had been arrested and jailed before completing their twenty-ninth year (41% for felonies)); Rand Corporation Study of 1985 to 1987 arrest and charging record for the District of Columbia (The data also permit estimates of the risk that a black male of a particular age (18-29) resident in the District might be charged with a criminal offense, drug or otherwise, in the three-year period 1985-1987. That fraction is almost one-third for persons aged 19 in 1986. It does not decline noticeably over the age range 20-29, as other studies of crime rates in the general population have suggested); Sentencing Project Survey of 1989 (on an average day in the United States, one of every four African American men age twenty to twenty-nine was either in prison or jail or on probation or parole) The National Center on Institutions and Alternatives Studies of 1991(on an average day in 1991, more than four in ten (42%) of all the eighteen to thirty-five year-old African American males who lived in the District of Columbia were in jail, in prison, on probation or parole, out on bond, or subjects of arrest warrants); The California Commission on the Status of African Americans of 1960 to 1993 (one-sixth (104,000) of California’s 625,000 black men sixteen and older are arrested each year, thereby “creating police records which hinder later job prospects and 92% of the black men arrested by police on drug charges were subsequently released for lack of evidence or inadmissible evidence.  Finally, Black men, who made up only 3% of California’s population, accounted for 40% of those entering state prisons.  Between 1960 and 1988, the relative proportion of new black felons jumped from 22% to 38%, while the proportion of white felons dropped from 58% to 31%).  Each of these studies are discussed in Miller, From safety Net to Dragnet: African American Males in the Criminal Justice System, 51 WASH. & LEE L. Rev. 479 (1994).  As Mr. Miller concludes: “The markers for the social disaster that is now overtaking black males in the United States have been there for a long time.”  Id. at 484.[2]

[1] While it is true that the Sentencing Project is a non-profit organization advocating sentencing reform, the Sentencing Project “has built a credible body of objective research” on sentencing.  Wisconsin Sentencing Commission, Race and Sentencing In Wisconsin: A Monograph Series, Report Number 1, p.6 (November 2004).

[2] It should be noted to this Court that as of January 1, 2010, there were 1,404,053 persons under the jurisdiction of state prison authorities, 4,777 (0.3 percent) less than on December 31, 2008.  This marks the first year-to-year drop in the nation’s state prison population since 1972.  Pew Survey Shows State Prison Population Dropped in 2009,