Having the conversation about race as it applies to inequities in the criminal justice system will invariably lead to a discussion of politics. Because as Carnegie Mellon professor Alfred Blumstein told a packed conference room during the University of Pittsburgh’s Race In America summit, politics has introduced the vast majority of those inequities.
During his portion of the “Minority Majority: Imbalance in the Criminal Justice System” session, shared with Marc Mauer, Sentencing Project executive director, Blumstein presented data on a century of arrest and incarceration rates showing the current imbalance is largely the product of political decisions, and what appears to be obvious discrimination that may be due to various factors, of which bias is a small part.
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“Between the 1920s and 1970s, the rate was generally trendless—a little higher in the Depression and lower in World War II,” said Blumstein. “During that time the flow of prison population was under control of the criminal justice system. But from 1973 to the present, we have a 6-8 percent annual rise, corresponding to the control by the political system.”
Driven by anomalous, dramatic singular events—like the fatal shooting of a Philadelphia police officers by a parolee last year, that resulted in Gov. Ed Rendell suspending all paroles—gave rise to “three strikes, you’re out” life sentences for third-time felony offenders, and mandatory minimum sentences, all legislated by “tough on crime” politicians.
Though none legislation was discriminatory in nature, in practice, such laws became so—the most egregious being drug laws. Roughly 20 percent of inmates in state prisons are there on drug offenses. In federal prisons, the number is 50 percent.
Both Blumstein and Mauer noted crack cocaine vs. powder cocaine threshold for a felony charge—and mandatory sentencing—as devastating to the African-American community. For crack, the felony threshold is five grams, for powder it’s 500 grams.
Mauer noted another set of “it’s good for the children” laws that had a similar effect—so called, “school-zone drug laws” that added additional harsher sentences for crimes committed within an arbitrary distance of a school.
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“The policies that are race neutral on the surface are very biased in practice,” said Mauer. “Urban areas are denser, with a higher African-American population more likely to be near a schools zone. When New Jersey found that 97 percent of African-Americans were effected, they changed the law.”
Mauer also noted the harsher sentences have not done what they were designed to—reduce crime. At, best he said, it has contributed 25 percent to recent drops in murder, burglary, robbery and assault. So where’s the other 75 percent?
Blumstein noted another fallacy inherent in mandatory sentencing, especially in dealing with drug crimes.
“If you lock up a rapist, you take his crime off the street,” he said. “If you take a drug dealer off the street, he is replaced.”
Not surprisingly, both Mauer and Blumstein said most solutions should concentrate on making policy changes with respect to what threshold of criminal activity requires police to make arrests, district attorneys to file charges, judges to require incarceration and parole officers to return ex-offenders to custody.
On the latter two points, Blumstein pointed to a drug sentencing/parole program in Hawaii where offenders have to attend meetings and pass drug tests. If they fail a test, they go straight to jail for three days, then are released to try again. Program participants got clean at an 80 percent higher rate.
Mauer and Blumstein also said the cost of incarceration is weighing on state budgets to the extent that alternatives such early parole, house arrest and Hawaii’s program are more politically saleable.
“In New York City, they have what are called, ‘million-dollar blocks,’ where the number of people in prisons from those blocks each cost $1million per year,” said Mauer. “If you reduce those sentences by just 10 percent, you save $100,000 per block that could be spent elsewhere.”
They also made two recommendations to reduce recidivism by helping ex-offenders overcome the employment barrier a prison record carries. First, they promote the expungement of “stale” criminal records. Secondly, both backed the idea of somehow indemnifying employers from any crime an ex-offender might commit, thus providing more job opportunities for parolees and former inmates.
The issue of what rises to the level requiring police action, indeed any police action dealing with a minority community, was touched on in more detail by Professor David Kennedy of John Jay College in New York in his own session, “How Police Interact With Minorities.”
Kennedy is credited with what was called the “Boston Miracle,” a name he hates, which reduced gun deaths in the city by an astounding 71 percent at the height of its crack epidemic in 1995.
He says the credit isn’t really his and it wasn’t a miracle—it was hard work done by dedicated people, and it can be replicated by people of good will anywhere, and rather quickly. Indeed, he added, the Pittsburgh Initiative to Reduce Crime, based on his model, will go operational shortly.
But despite the success of his model, Kennedy said he relished the opportunity to speak at the Race in America conference because his initial rejection—being laughed out of every police station where he tried to explain his model—made him “focus on race and crime and the gulf between police and the community.”
“The cops said the drug dealers are psychopaths. Everyone is living directly or indirectly on drug money. Everyone’s complicit,” he said. “The Black community perspective was just as simple—no one expects any help from the police on drugs.”
With the community witnessing cops smashing down doors, destroying homes looking for “some weight,” maybe arresting someone, maybe not, and leaving devastation in their wake with
no apology, it’s understandable, he said.
“The Black community experiences this in a visceral, historical way because the law was used to hobble and break them. Lynchings are still ‘living memory’ in some families. White folks don’t get it,” Kennedy said.
“Black history with law enforcement is slave catchers, Black Codes, Jim Crow, dogs and fire hoses,” he said. “I know the criminal justice system is not pursuing apartheid by other means, but I also know it’s entirely believable. If police had wanted to feed into those stereotypes, they couldn’t have done a better job.”
Kennedy’s proscription for change is singular and direct—stop the killing associated with gangs/drugs, his model—a collaboration between police, community members, service providers and front line gang outreach workers and others—does that. And he said he discovered it could do more.
“If you start with, ‘lets’ stop the killing,’ that turns out to make it remarkably easy to talk about race,” he said. “Create the right circumstances for people to work together, and the underlying attitudes on race will automatically get dealt with.”
During the question and answer period, Khalid Raheem, founder of the National Council for Urban Peace and Justice, said he had long been critical of Kennedy’s method primarily because it was more intervention than the prevention he fells is needed from a very early age. Kennedy agreed.
“I am sympathetic to the desire, but I’m empirical. I don’t see big payoffs in my lifetime using tools in the prevention portfolio, so I’ll keep doing what I’m doing.
“It’s like cancer. I’m all for finding a cure, but if I’m told I have it, I’m going to do what I can immediately,” he said. “I’m interested in this work because I believe that in order to do education, and economic development and the rest, people have to be safe.”
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