What to do about mass incarceration of blacks

Michelle Alexander in her recently-published book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, called attention to the fact that mass incarceration of young black men in poor big-city neighborhoods is really a civil rights issue.

It is a civil rights issue because poor young black men in big cities are sentenced to long terms in prison for drug offenses for which young white men or well-to-do young men of all races are rarely penalized.  Surveys show that white and black people use marijuana and other drugs in roughly the same proportion, yet the overwhelming majority of people in prison for such offenses are black.

It is a civil rights issue because it provides an excuse for police to search and hassle young black men for no real reason.  In some areas of New York City, the number of stops and searches of young black men in certain neighborhoods exceeds the population of young black men in that neighborhood.  Targeting young black men is not justified by facts.  Contraband is found in a higher proportion of searches of white men than of black men.

It is a civil rights issue because convicted felons are second-class citizens.  They are legitimate targets of discrimination.  In some states, they can’t vote.

The U.S. government should end its counter-productive war on drugs.  Short of that, the Green Party of Georgia had some good ideas back in the day.

• opposing in principle the trials of or incarceration of juveniles as or with adults;
• repealing all mandatory sentencing legislation;
• an end to all privatized prisons and jails, and the swift phasing out of piecemeal privatization of inmate health, food services and other functions;
• an end to all privatized probation services;
• ceasing the incarceration of juveniles for most or all nonviolent offenses and reexamining the “zero-tolerance” policies forced upon many school districts;
• immediate cancellation of all the private contracts enabling well-connected corporations and corrupt politicians to collect exorbitant tolls on the money sent to and phone calls made to inmates and persons in custody;
• the extension of meaningful educational opportunities beyond G.E.D. to people in the state’s jails and prisons and its extensive community corrections networks;

via Black Agenda Report.

A big part of ending mass incarceration is putting an end to all the outsourcing and private contracts.  These create a vested interest and powerful lobbying group for mass incarceration.  But even without privatization, this would be a problem.  The prison guards’ union campaigned against liberalizing California’s marijuana laws.  As with so many other things, these problems would be both less serious and easier to deal with in a high-wage, full-employment economy.

This is a follow-up to How I would change things if I could.

Click on How race discrimination became legal again and Vested interests in mass incarceration for earlier posts of mine on this subject.

Click on Mayor Bloomberg: NYPD ‘Stops Whites Too Often and Minorities Too Little’ for an example of the problem of racial discrimination in law enforcement.  Please read the full article rather than stopping with Mayor Bloomberg’s comments.

Click on The Tragic Success of Mass Incarceration for Michael Gerson’s thoughts on how liberals, libertarians and evangelicals might unite to reduce the U.S. prison population.

Vested interests in mass incarceration

Michelle Alexander wrote in The New Jim Crow about how young black men are crushed by the war on drugs, both through discriminatory law enforcement and by loss of legal rights as ex-felons.  Unfortunately the federal government’s policies in the past 30 years have created a powerful vested interest in continuing the status quo.

Alexander said that if the United States were to return to the incarceration rates of the 1970s, a time when many liberals said rates of imprisonment were too high, it would mean the release of four out of five people currently behind bars today.  That would threaten the jobs of the more than 700,000 Americans employed as prison and jail guards, administrators, service workers and other prison personnel.   The criminal justice system employed almost 2.4 million people in 2006, she wrote; if four out of five people were released from prison, far more than a million people could lose their jobs.

Privatization of prisons means that there are wealthy individuals with a stake in continued mass incarceration.  This is politically important.  Prison guards unions in California campaigned against the referendum to legalize medical marijuana.  Private prison corporations lobbied in favor of the Arizona proof-of-citizenship law aimed at unauthorized immigrants.

Criminal justice jobs in California alone

The existence of a powerful Incarceration Lobby is the result of public policy going back to the Nixon administration and the 1970s drive to “de-fund the left.”   Conservatives in the Nixon administration thought that their opposition came not so much from poor people, who would not be poor if they were capable of organizing on their own behalf, as from social workers, public health nurses, guidance counselors and others in the helping professions who advocated for the poor.

The Nixon administration established the Law Enforcement Assistance Administration, which provided federal aid for local police departments.  It also advocated, unsuccessfully, a guaranteed annual income, which was intended to help poor people while removing the welfare system’s disincentive to work.  This later became the Earned Income Tax Credit established under the Clinton administration.  I think both these ideas were good on their merits, but they were the beginning of a trend to diminish spending for the helping professions and to increase spending for law enforcement and incarceration.

Things were not always as they are now

Michelle Alexander picked up the story with the Reagan administration.   Ronald Reagan, like Goldwater, Wallace and Nixon, campaigned against two stereotypical figures—the filthy, drug-abusing, draft-dodging hippie, and the idle, drug-abusing, criminally-inclined young black man on the street corner.  Yet Reagan’s war on drugs did not go after dope-smoking college students.  It was aimed almost entirely at the black ghetto, based on the insight that most white people are skeptical of claims of anti-black discrimination.

At the time Reagan announced the war on drugs, many state and local police departments did not consider illegal drug use a top priority.  The Reagan administration changed this by means of huge cash grants to law enforcement agencies willing to make the war on drugs a top priority.  The size of disbursements was linked to the number of drug arrests.  The Pentagon offered military equipment, including grenade launchers and Blackhawk helicopters, to local police departments.   Funding for these programs increased under Presidents George H.W. Bush and Bill Clinton.  As with other federal grant programs, this was too good an offer for most local governments to refuse.

Another financial incentive was established in 1984, when Congress allowed federal law enforcement agencies to retain the value of any assets seized in drug arrests—the drugs themselves, drug-making equipment and conveyances used to transport drugs—and state and local law enforcement to retain 80 percent of the assets’ value.  Property or cash could be seized on mere suspicion, and the seizure could occur without notice or hearing.  Nobody need be charged with a crime; indeed, the person could be found not guilty and the property still subject to forfeiture.   This proved highly lucrative, and was a major incentive to continue the war on drugs.

The Obama administration increased federal grants for drug law enforcement twelve-fold—not because there was any evidence of an increased need, but as part of the economic stimulus program.  The program enabled a certain number of police officers to keep their jobs in a period of economic austerity, as a cost of ruining the lives and futures of a certain number of poor young black men.

Alexander advocated a scaling down of the law enforcement aspect of the war on drugs, and its replacement by drug counseling, job placement and other programs to help young drug users.  I agree with her, but I think the prospects for any such program are poor in a situation of economic austerity.  If we had a high-wage, full-employment economic as in the 1950s and 1960s, few would object to allowing the rising tide to lift all the boats.  As it is, it is more of a lifeboat situation.  More jobs for ex-offenders will be perceived as fewer jobs for everyone else.

How race discrimination became legal again

Michelle Alexander in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, showed how racial discrimination has returned to the United States in the guise of the so-called war on drugs.

Young black men, and black people in general, are singled out for searches, arrests and punishment based on their race.  Surveys show little difference between drug use by white and black Americans.  Yet the vast majority of people in prison on drug charges are poor young black men, and the vast majority of black people sentenced to prison are guilty only of drug use.

Then by virtue of their criminal records, blacks convicted of drug use become second-class citizens.  As felons, they become ineligible by law to serve in the armed forces, to receive federal housing, aid to education or public assistance.  In some states, they lose the right to serve on juries or to work in many fields requiring occupational licenses.  Very often they lose the right to vote.  Moreover, while it is illegal with few exceptions to discriminate against people in hiring, renting or lending on the basis of race, it is perfectly legal to refuse jobs, apartments or loans to convicted felons.

This is no small matter.  Alexander pointed out that 80 percent of Chicago’s black male work force are felons.  Most black felons are guilty only of drug use, a victimless crime.  Yet they can go to prison for life for drug use, based on one conviction and two counts on another conviction.  Prior to 1988, according to Alexander, the maximum sentence for mere drug use was one year in prison.

She said the war on drugs was part of a backlash against the victory of the civil rights movement.  Through the 1960s and 1970s, right-wing leaders such as Barry Goldwater, George Wallace, Richard Nixon and Ronald Reagan argued that the real problem was not poverty or racism, but lawbreaking.  They said the civil disobedience of Martin Luther King and the sit-in demonstrators legitimated violent crime and the rioting by poor black people in large American cities from 1964 to 1971.  When President Reagan announced the war on drugs in 1981, his target was the poor black neighborhoods.   Every President since Reagan, including Bill Clinton and Barack Obama, has continued or stepped up the war on drugs.

The Fourth Amendment to the Constitution prohibits unreasonable and warrant-less searches and seizures.  Civil rights laws prohibit applying a different legal standard to blacks than to whites.  But this protection was broken down, court decision by court decision.  Police officers are entitled to stop and frisk individuals on the street, or motorists in their cars, based on their personal judgment, provided the decision is not based solely on race.  And it is up to the individual to prove that racism is the motive, which is impossible unless the police officer comes right out and admits it.

Police have the same discretion in home break-ins.  A typical drug search involves a SWAT team breaking down a door in the middle of the night, throwing in smoke grenades and pointing guns at everyone in sight, including children and young people.

It doesn’t matter if 90 percent of the searches are of black people, even though black people are not by any measure 90 percent of illegal drug uses.  The Supreme Court has ruled that statistical disparities are not relevant in search and seizure cases.  You have to prove the individual search was motivated by individual racism or a policy of racism and, in a Catch-22, you do not have standing to subpoena records to provide discrimination unless you already have proved discrimination.

The same applies to statistical disparities in sentencing and in everything else.  Barack Obama, who was not a poor young black man, admitted to using illegal drugs in his youth, as have Al Gore and Newt Gingrich.  If they had been arrested and charged, they would not have had political careers.  I’ve never used drugs myself, but I’ve come across a number of people in my life—all of them white, and including many newspaper reporters—who have.

Applicants for public housing are barred if they have criminal records.  Tenants are expelled if any family members or visitors are involved in drug use, whether on or off the premises and whether or not there is any evidence the tenant knew about it.  This is a policy that dates from Bill Clinton.

Police have the right to seize cash, automobiles or houses if they can show they have reason to believe the property was involved in drug use.  At one time they had free rein to take property and use the proceeds for the budgets of their departments.  Now there is an “innocent owner” defense, but the burden of proof is on the owner.  If your property is seized, but you are not charged with a crime, you have no right to a court-appointed attorney.

Now it is true that these abuses of police power fall on middle-class and white people, and not just on poor black people.  Abuses of power are not self-limiting.  But being subject to police abuse, going to prison and being cut off from the opportunity to work or to function in society ever after is a typical experience and expectation of young black men in large American cities.

And it also is true that there are a lot of things wrong in poor black city neighborhoods, including violent crime, that arise for other reasons.  But the war on drugs is not a solution or part of a solution.  It is a problem that makes other problems worse.

To sum up:  It is legal to single out young black men for searches, arrests and prosecution provided you don’t say it is because they are black.  And it is legal and in some cases mandatory to bar them from access to employment, housing, education and federal benefits, and from military service, jury service and voting, which are the defining characteristics of citizenship.

Click on The New Jim Crow for Michelle Alexander’s summary of her book in Mother Jones.

Click on What We Don’t Talk About When We Talk About Jobs for a report by Andy Kroll in Mother Jones.

Click on Stopped-and-Frisked For Being a F**king Mutt, for an an audio recording of a routine encounter by New York police and a young black man, along with commentary in The Nation.

Click on Drug, Alcohol, Tobacco Use Broken Down By Race, Ethnicity for statistics from the U.S. government’s National Study on Drug Use and Health.

Click on Race, Drugs and Law Enforcement for a report on U.S. drug enforcement by Human Rights Watch.

Click on The trouble with “colorblindness” and Baltimore: casualty of a failed drug war for earlier posts of mine.