The Mass Incarceration Problem
The United States is home to 5% of the world's population, but accounts for 25% of the world's prisoners; and as a result, the country has also been found to have the "second-highest prison population rate in the world" (Porter, Bushway, Shawn, Tsao and Smith, 2016). The prison population in the United States has increased tremendously since 1975 (Patten, 2016) and this has allowed for the overpopulation of prisons. By 1993, forty out of the fifty states in America were ordered by the court to reduce overcrowding in prisons (Schoenfield, 2010). Two cases having to deal with the overpopulation of prisons are Coleman v. Brown, which was filed in 1990, and Plata v. Brown, which was filed in 2001. In the case of Coleman v. Brown, a Special Master found that due to the overcrowding of California prisons, prisoners with serious mental illnesses were not given proper care; and therefore, the state of many prisoners' mental health was deteriorating. In Plata v. Brown, the state of California admitted that "deficiencies in prison medical care violated prisoners' Eighth Amendment rights and stipulated to a remedial injunction" (563 U.S 493, 2011). By 2005, the state had yet to comply with the injunction, which led to a Receiver being appointed by the court. This Receiver found that there were "continuing deficiencies caused by overcrowding." These two cases eventually led to the Supreme Court case, Brown et al. v. Plata, et al., 563 U.S 493 (2011). According to this Supreme Court case, "California's prisons are designed to house a population just under 80,000, but at the time of the decision under review, the population was almost double that" (563 U.S 493, 2011, p.1). As stated in the syllabus of this Supreme Court Case, the court held that "the court-mandated population limit is necessary to remedy the violation of prisoners' constitutional rights and is authorized by the PLRA" and affirmed the release of prisoners to reduce the inmate population of the California prisons (563 U.S 493, 2011, p.2). The California prisons violated both the Eighth and Fourteenth Amendments. According to the opinion of the court, Justice Kennedy states that the California prisons violated the Cruel and Unusual punishment and the Due Process Clause of the Fourteenth Amendment, as well (563 U.S 493, 2011, p.7). Ultimately, mass incarceration, in general, is unconstitutional because it leads to the overpopulation of prisons as well as prisoners not receiving the appropriate medical and mental care to remain healthy. The effects of mass incarceration are important to acknowledge, but it is also important to recognize where the issues stem from. There are several contributing factors to mass incarceration; two of them include the War on Drugs and the School-to-Prison Pipeline.
To understand how America arrived at the problem of Mass Incarceration, it is necessary to know where the roots of the problem lie: Slavery, the original sin of America. According to Davis (2018), "The birth of the United States was defined by the willingness to exploit people of color despite vaunted norms, values, and principles of equality" (p. 6). Slavery in America began in 1619, when twenty Africans were kidnapped from their homelands and brought to the first American colony in Jamestown, Virginia. Slavery started as a form of indentured servitude that ultimately formed into an economic system. But, as slavery began to expand, it also developed into a racialized caste system. At this time, African Americans were dehumanized with the Three-Fifths Compromise, which deemed slaves as three-fifths of a person. Although Abraham Lincoln issued the Emancipation Proclamation in 1863, which declared "all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free…" slaves were not truly freed until 1865. The reasoning behind this was that the proclamation did not apply to the states who had not seceded from the Union. Also, slave owners did not tell their slaves about the proclamation, so without federal effort to enforce it, the slaves remained clueless about their freedom (Davis, 2017, p.9).
It wasn't until 1865 when former President Abraham Lincoln officially abolished slavery by ratifying the Thirteenth Amendment. Section One of the Thirteenth Amendment states "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction" (U.S Const. Amend. XIII, sec.1). After the American Civil war came to a conclusion, the first prison boom in America occurred. Since slavery was fundamental to the success of the South's economy and it had been recently abolished, arresting black people en masse was a way of rebuilding the economy. Slavery has not been truly abolished; it still exists in today's society, just in a different form: the prison system.
The War on Drugs
In 1964, Republican Presidential Candidate Barry Goldwater expressed a need to deal with "law and order" in the United States during his failed campaign. Four years later, this was also expressed by eventual President Richard Nixon in his campaign. As stated previously, the prison population has increased tremendously since 1975. According to the Equal Justice Initiative (2016), after President Nixon declared this "war," the number of people incarcerated in American jails and prisons escalated from 300,000 to 2.3 million." This prison boom was a direct result of Richard Nixon declaring the first War on Drugs in June of 1971. He stated, "We must wage what I have called total war against Public Enemy No. 1 in the United States: the problem of dangerous drugs" (Equal Justice Initiative, 2016). Nixon proposed this was the best way to respond to street crimes, but it was also a way to respond to the civil rights and antiwar movements going on at the time. In a 1994 interview with Harper's Magazine, President Nixon's domestic policy chief, John Ehrlichman, admitted that the war on drugs was designed to criminalize the black community directly. In his interview, he states:
The Nixon campaign in 1968 and the Nixon White House after that had two enemies: the antiwar left and black people. Do you understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.
Nixon and his staff whole-heartedly had every intention of attacking the black community. While the War on Drugs enforced by Nixon was rhetorical rather than literal, Ronald Reagan morphed the War on Drugs into a literal War. During Reagan's presidency, a new drug by the name of “crack” became popular. Crack ultimately became an inner-city issue; meanwhile, cocaine was a suburban issue. Mandatory sentencing penalties established for crack by Congress were far harsher than the penalties put in place for powder cocaine, proving that the War on Drugs was mainly a war on the poor, the black community, and the Latinx community.
The War on Drugs is still an ongoing movement that leaves poor people and minorities marginalized, incarcerated, and condemned. In 1994, the state of California implemented the Three Strikes Law. The California Courts stated that this law required that a "defendant convicted of any new felony, having suffered one prior conviction of a serious felony to be sentenced to state prison for twice the term otherwise provided for the crime. If the defendant was convicted of any felony with two or more prior strikes, the law mandated a state prison term of at least 25 years to life"(California’s Three Strikes Sentencing Law). In the words of Bill Clinton, "Those who commit crimes should be punished, and those who commit repeated violent crimes should be told that when you commit a third violent crime, you will be put away and put away for good… Three strikes and you are out" (Whitley, 1994). With the Three Strikes Law, many people who were incarcerated ended up serving life for something as small as possession of marijuana.
Soon after, the 1994 Crime Bill was implemented to decrease the crime rate in the United States. The Crime Bill did not trigger mass incarceration, but instead, it encouraged incarceration rates to grow tremendously. According to the American Civil Liberties Union, "...following the passage of the federal crime bill, incarceration rates continued to climb for an additional 14 years" (Ofer, 2019). From 1980 to 2011, arrests of African Americans for violent crimes fell but simultaneously rose for drug offenses. African Americans are more likely to be arrested for selling or possessing drugs compared to their white counterparts, who were using drugs at the same rate (Equal Justice Initiative, 2016). Currently, there are black people in jail for minor possession of marijuana while white people are profiting off of marijuana sales now that recreational and medicinal use has been legalized in some states. The War on Drugs has negatively affected the black community since the 1970s and is still an ongoing problem in 2019.
The School-To-Prison Pipeline
Innocent children are also becoming victims of the criminal justice system and are causing the prison population to grow. Adolescents in schools are being targeted through the school-to-prison pipeline. According to the American Civil Liberties Union (n.d.), the school-to-prison pipeline is a "trend" that funnels students out of public schools and into the criminal justice system. This figurative pipeline disproportionately affects black and brown students as well as students with a history of suffering from poverty and abuse. Black students made up "only 18 percent of students in public schools in 2009–2010", yet "they accounted for 40 percent of students who received one or more out-of-school suspensions" (Tyner, 2017). A big question relating to this "pipeline" is how exactly are students getting "funneled" into prisons? To begin with, there is the Zero Tolerance Policy, which many schools around America enforce. The Zero Tolerance Policy allows for disciplinary action for minor behaviors such as "disrespect, disruptive conduct or insubordination" (ACLU, n.d.). The punishment for these trivial behaviors includes suspension and expulsion from the schools. Due to Zero Tolerance Policies in schools, "rates of suspension have increased dramatically in recent years-from 1.7 million in 1974 to 3.1 million in 2000…"(ACLU, n.d.). Children who are suspended are more likely to fall behind in their studies, which ultimately leads them to drop out of school. Once these students drop out of school, they are more susceptible to "arrest, conviction, and incarceration" (Scott, 2017).
Along with Zero Tolerance Policy, innocent students are criminalized for having bad grades. In Riverside County in California, there is a program named The Youth Accountability Team, also known as YAT. In this program, students are placed on criminal probation for receiving low grades, which funnels them directly into the prison system. When these children are put on probation, program participants—along with their parents—sign contracts that subject them to close monitoring, searches, drug testing, and disruptive interrogation. Before signing these contracts, parents and children are not given any information about the offense they have been accused of, nor are they advised of their legal rights. Not only does this program criminalize students for receiving bad grades, but they also violate their Fourth Amendment rights since parents and children are unknowingly waiving those rights to unlawful searches and their Fourteenth Amendment right to due process.
Solutions and The Way Forward
Conclusively, Children often make mistakes, but that does not mean they should be criminalized for them. That is why in July of 2018, the American Civil Liberties Union Foundation filed a lawsuit against the Youth Accountability Team Program on behalf of students and Sigma Beta Xi, a non-profit mentoring organization that works with young people of color. The ACLU foundation believes that the YAT program should "rely more on positive incentives, resources, and goal setting to help youth make positive decisions and less on punitive conditions that research shows to be ineffective with adolescents…" (ACLU, 2018). Children do not need punishment; they need support. As of July 25, 2019, Riverside County will no longer accept referrals that are not crimes, such as school discipline problems. Schools and community resources will now address issues in schools, rather than the county's probation department. The Youth Accountability Team program will now provide support and incentives to help children make better decisions instead of criminalizing them. As with children, drug abusers often do not need punishment; they need rehabilitation. During the War on Drugs era, drug addiction was criminalized instead of treated as a health issue. A 2003 study concluded that "[t]he police still cling to an institutional definition that stresses crime control and not prevention" (Davis, 2017). Drug abuse should not be controlled; it needs to be prevented. Serving jail time for using a controlled substance will only result in the abuser being released from prison just to find more drugs and use them. The right way to approach this would be to send drug abusers to rehabilitation facilities. To combat an issue caused by the War on Drugs, the Fair Sentencing Act was passed in 2010 by President Barack Obama in order to reduce "the sentencing disparity between offenses for crack and powder cocaine" (ACLU, n.d). Pertaining to the Three Strikes Law in California, a Three Strikes Reform was passed in 2000. This reform is also known as Proposition 36, “which allows for repeat offenders whose third strike is minor or nonviolent to be sentenced to double the ordinary term rather than life” (Equal Justice Initiative, 2012). The Los Angeles County District Attorney supported Proposition 36 and stated, "The state should not allow the misallocation of limited penal resources by having life prison sentences for those who do not pose a serious criminal threat to society. The punishment should fit the crime” (Equal Justice Initiative, 2012). This change will now allow over two thousand prisoners to petition for a reduced sentence. It is clear that mass incarceration affects the black community at a disproportionately alarming rate. The war on drugs and the school-to-prison pipeline happens to be just two contributors to mass incarceration, but they ultimately do serious harm to the black community. It is imperative that these issues be dismantled by filing lawsuits, like the ACLU’s, or voting for officials who recognize the racial disparities in the way laws are being enforced to decrease the effectiveness of mass incarceration.
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