Race, Crime and Justice: A Fresh Look at Old Questions
May 1 – Jeremy Travis and Debbie Mukamal of the John Jay College of Criminal Justice joined the Brennan Center staff for lunch and an insightful round-table discussion on the intersection of justice, crime and race in the United States. The following is an edited transcript from an address Mr. Travis delivered at The Orison S. Marden Memorial Lecture on Mar. 19 at the New York City Bar.
Jeremy Travis is the President of the John Jay College of Criminal Justice. His book, But They All Come Back: Facing the Challenges of Prisoner Reentry, can be found on the Urban Institute Press web site, along with his most recent publications.
The intersection of race, crime, and justice, a topic I consider one of the most important challenges confronting our society. Much is at stake: our nation's pursuit of racial justice; our commitment to full participation of all American citizens in the electoral process; our success in reducing crime and eliminating drug markets; our ability to reduce our reliance on imprisonment as a response to crime. Indeed, I believe the legitimacy of our system of justice depends on our progress toward unraveling the Gordian knot that we call the nexus between race, crime and justice.
Of course, this is not a new discussion in our country. Students of American history know that the relationship between minority communities and our criminal justice system is characterized by deep distrust, patterns of overt discrimination, and occasional outbreaks of racial violence. Indelible images come to mind when we recall our history. Slave catching, the first experience of African-Americans with law enforcement in the young America. Chain gangs in the South after the War of Emancipation. Police enforcing the written, and unwritten, laws of Jim Crow. All-white juries sitting in judgment of black defendants. The urban riots of the 1960s, typically sparked by the police shooting of a young black man. Police using dogs and fire hoses to stop lawful demonstrations for civil rights. Certain names invoke memories of the racial fault lines that permeate our justice system. Rodney King. O.J. Simpson. Abner Louima. Willie Horton. And today, Sean Bell.
As we recall our history, we should also applaud the lawyers who have infused a sense of racial justice into our system of criminal justice. Certainly, Orison Marden deserves to be on this list. As President of the American Bar Association in the mid-1960s, he organized the Lawyers Committee for Civil Rights, which marshaled the volunteer efforts of lawyers from around the country, including Pete Eikenberry, who is with us tonight, to represent civil rights litigants in Mississippi and other southern states. Our courts have issued important rulings interpreting our Constitution to require representation of blacks on juries and to protect vulnerable defendants from abuse by the police. Members of the legal profession, working with other disciplines, have challenged the disproportionate representation of racial minority groups in our juvenile and criminal justice systems. Lawyers have brought civil rights actions under Section 1983 against police departments and have sued prisons for unconstitutional conditions of confinement.
In our lifetimes, we have witnessed enormous progress in reforming our justice system, yet we know that much remains to be done.1 This evening I hope to persuade you of two propositions: First, that the journey toward racial justice in our criminal justice system has been made immensely more difficult by our high rates of incarceration, the growth of community supervision, and intrusive policing strategies. In short, I will argue that the day-to-day operations of our system of justice now penetrate so deeply into communities of color that we are at risk of undermining the basic respect for the rule of law. Second, that we cannot rely solely upon the traditional legal construct of equal protection of the laws to achieve a justice system that is not racially divisive. In short, I will argue that we must ensure that our justice system is effective, not merely fair. We must pursue the goal of racial justice as aggressively as the goal of crime control. If you accept both arguments, then you will agree that we need to confront some of the fundamental assumptions that now determine policies on crime and justice.
We start by describing the magnitude of the incarceration phenomenon in the United States. The basic contours are well known to this audience. Since the early 1970s, we have more than quadrupled the per capita rate of incarceration in our country. The rise in the prison population has been unrelenting. In times of economic vitality, in times of economic recession; in times of war, in times of peace; when crime was going up, when crime was going down; every year since 1972, we have expanded our prison population.
About a month ago, the Center on the States of the Pew Charitable Trust released a report announcing a sobering milestone: for the first time, more than one in every 100 adults in America is confined in a jail or prison. Our penal system now holds 2.3 million adults. China—a country of 1.3 billion people—holds second place, with 1.5 million. Russia—a country of 142 million people—is a distant third with 890,000 people incarcerated. But most striking is the difference in the per capita rate of incarceration. Germany, for
1After conducting a review of the research literature on race and justice, a report issued by the American Sociological Association offered this sobering conclusion: "Although overt discrimination has diminished in the criminal justice system over recent decades, at the beginning of the twenty-first century, we continue to grapple with the perceptions of and the reality of unfairness in our justice system. Racial and ethnic disparities persist in crime and criminal justice in the United States. Minorities remain overrepresented in delinquency, offending, victimization, and at all stages of the criminal justice process from arrest to pretrial detention, sentencing (including capital punishment), and confinement." (Rosich, 2007).
example, holds 93 people in its prisons and jails for every 100,000 population. In America, the rate is nearly eight times greater; we hold 750 per 100,000 population (The Pew Charitable Trust, 2008). Our country has the dubious distinction of the highest rates of incarceration in the world, and the rate continues to increase.
This fourfold increase in the rate of incarceration in America has not been spread evenly across the population. Rather, the increased number of individuals—mostly men—sent to our nation's prisons have come from—and return to—a small number of urban communities in America, mostly communities of color. According to the Pew analysis, 1 in 106 adult white men is behind bars; for Hispanics, the number is 1 in 36; for blacks, it is 1 in 15. For black men between the ages of 20 and 34, 1 in 9 is now behind bars (The Pew Charitable Trust, 2008). The Bureau of Justice Statistics characterizes the same racial disparities another way: assuming no change in incarceration rates, nearly one in three African-American men—and one in six Hispanic men —will be sentenced to serve at least a year in prison at some point in their lives (Bonczar, 2003).
We should ask ourselves whether we want to live in a country in which a third of all African-American men—and one in six Hispanic men—have served prison time. We should try to imagine the impact that our incarceration policies will have, over the next generation, on the communities in which incarceration rates are highest—on family life, adolescent development, labor markets, family stability, intergenerational transfer of wealth, voting patterns, and civic participation.
We know the answers to some of these questions, and the answers are deeply disturbing. We know that time in prison reduces one's lifetime earnings by 10-30% (Western, 2007), so our rapid expansion of prisons has depressed the earnings power of whole neighborhoods where most of the men have done time. We know that prison places substantial financial burdens on extended families—they must make up for lost income, pay for collect phone calls from prison, and take long trips to prisons to visit their family members (Braman, 2004). We know that minority voting power is diminished, especially in those 10 states that deny felons the right to vote for life. In some of those states, up to a quarter of African-American men cannot vote for the rest of their lives (Manza & Uggen, 2006). We know that high rates of incarceration result in a significant "gender imbalance" (Braman, 2004), such that in high incarceration neighborhoods there are fewer than 62 men for every 100 women. We don't know the impact of the "gender imbalance" upon dating patterns, family formation, and the male identity. We know that when the rate of incarceration in a community rises above about 1.5%, it seems to produce more, not less, crime (Clear, 2007). We know that very high rates of arrest and incarceration can make going to prison seem normal and even normative, a rite of passage and a pathway to respect. We know that in high incarceration neighborhoods, such as East New York in Brooklyn, every year one in eight men between ages 18 and 45 is arrested and sent to prison or jail (Cadora, Swartz, and Gordon, 2003). We know that we pay a very high price for these policies: the taxpayers of New York pay over $1 million a year to incarcerate the young men who are arrested on these blocks. Finally, we have every reason to suspect that our criminal justice policies are undermining respect for the law, as we witness the growth of a "stop snitching" culture in communities of color that punishes young people who cooperate with the police.2
Before offering some thoughts on how to reverse these trends, we should discuss another dimension of the high rate of incarceration, namely our nation's increased reliance on parole supervision to oversee the people who have left prison. Just as many more people are imprisoned in our country, so too we now place many more under parole supervision. In 1980, there were 220,000 individuals under supervision by parole agencies in this country. By 2000, that number had reached 725,000. We now release approximately 700,000 individuals from our prisons each year and about 80% of them are placed on supervision, typically for three years (Travis & Lawrence, 2002). Not only are we putting more people in prison, we have also extended the reach of the state over an unprecedented number of our fellow citizens. This new reality is felt most acutely in communities of color.
The nature of supervision has also changed dramatically over the past 25 years. We now watch people more closely. We impose more conditions on their liberty. We now use new technologies such as drug tests and electronic bracelets to keep tabs on people. We impose curfews more frequently. We take fewer risks with parolees and, as a consequence, are much more likely to cite them for parole violations (Petersilia, 2003). Perhaps we would think differently about this extended state control if we knew that it reduced crime, but a landmark study completed by the Urban Institute three years ago concluded that parole supervision does not reduce recidivism (Solomon, Kachnowski, and Bhati, 2005).
Finally, we are more likely to send our fellow citizens back to prison for violating the conditions of their parole. We have, in essence, created a system of "back-end sentencing" (Travis 2006). Consider these statistics: in 1980, state prisons admitted approximately 27,000 parole violators; in 2000, those same states admitted approximately 203,000 parole violators, a seven-fold increase. We now send as many people to prison - through the back-door - for violating parole as we sent to prison, through the front door, in 1980 for all reasons.
I hope that, by now, you have the following image in your mind: in the modern era, our system of incarceration, reentry, and supervision has created a new and unprecedented social reality: In America's poorest urban communities, typically communities of color, large numbers of men are each year arrested, sent off to prison, returned home, closely supervised, and then sent back to prison on new charges or for parole violations.
One defense of these policies might be that they have significantly reduced crime in these neighborhoods. The academic support for this proposition is decidedly mixed. According to some researchers, the prison build-up accounts for between 10 and 25
2 The "stop snitching" phenomenon has recently been described as "alive and well on Long Island" and "is attributed to distrust of law enforcement," "fear of retribution," and "a troubled history with the African-American community that has eroded faith in police departments dominated by white officers and marked by police shootings involving unarmed black civilians" (Newsday, March 16, 2008).
percent of our recent reduction in violent crime (Rosenfeld, 2000; Western, 2007). Yet the Urban Institute study I just mentioned showed that supervision does not reduce crime rates. And, as remarkable as this may sound, there is no empirical research on the impact of our parole revocation policies on crime rates. It is a sobering realization that we do not have a strong empirical foundation documenting the crime control effects of policies that cost billions of dollars and negatively affect millions of lives.
Rather than debate the crime control issue, I want us to focus on a different question, namely whether we believe that these high rates of incarceration, reentry, supervision and return to prison have enhanced, or undermined, the respect for the rule of law and community standards against crime in these neighborhoods.
As we focus on this profound question, we should add another factor in our equation, namely some recent changes in law enforcement practices. Over the past two decades, we have witnessed an increase in the amount of police enforcement activity in the same neighborhoods I have just described. I would like to focus on two trends—the increase in misdemeanor marijuana arrests, and the increase in stop-and-frisk activities. Here, my focus will be on New York City, not because these trends are unique to New York City—in fact, they are not—but because the City is now engaged in a policy discussion, bolstered by recent research, on the efficacy of these practices.
Over the past two decades, our City has experienced a significant increase in the number of arrests for the offense of criminal possession of marijuana in the fifth degree.3 This trend is part of a larger national rise in marijuana arrests, so pronounced that some commentators are saying our War on Drugs has become a War on Marijuana (Mauer & King, 2005). From 1980 to the early 1990s, the New York City Police Department made about 1,000 arrests for this offense each year.4 Starting in 1994, however, these arrests began to increase dramatically, reaching a peak of 51,000 in 2000, then dropping to levels around 40,000 per year. This is now the most common misdemeanor arrest in our City, accounting for 15% of all adult arrests. In the words of Prof. Harry Levine of Queens College, "in the last ten years New York City has arrested and jailed more people for possessing marijuana than any city in the world" (Levine, 2007).
We should be particularly concerned about the demographic profile of these tens of thousands of defendants. According to an analysis of these cases published in the Journal of Criminology and Public Policy, this increase in arrest activity was concentrated in minority neighborhoods of New York. Slightly over half the arrests in 2000 (52%) involved African-American defendants, when the City's population was 23% African-American. Thirty-two percent of the defendants were Hispanic, when the city was 25% Hispanic (Golub, Johnson, Dunlap, 2007).
Prof. Levine and his colleagues have provided another way of described the racial impact of these policies: In the decade from 1987 to 1996, 23,000 blacks were arrested and
3 This is known as smoking marijuana in public view (221.10 NYPL).
4 It should be noted that there has been an increase in marijuana arrests across the country (Mauer & King, 2005).
charged with marijuana possession. In the next decade, from 1997-2006, that number had increased more than eight-fold to 196,000. The number of Hispanics arrested increased from 9,000 to 108,000. The number of whites arrested also increased, from 5,000 to 52,000. Levine and his colleagues suggest yet a third way to look at the data: in 2006, blacks were arrested for marijuana at a rate of 9,750 per million; this is 7.8 times the arrest rate of whites.
Perhaps we could explain these enormous differentials if we had data showing that blacks used marijuana 7.8 times more than whites. However, the national survey of drug use among high school students shows that blacks used marijuana less frequently than both Hispanics and whites (Johnston et al., 2006). These differentials are also perplexing in light of the research findings that more white juveniles are reported selling drugs (all drugs, not just marijuana) than African American juveniles—17 percent and 13 percent respectively (Snyder & Sickmund, 2006). We clearly need a stronger empirical understanding of illegal drug activity in our City to engage in an informed policy discussion about these enforcement practices. But we do know that there has been an enormous shift in those practices and the people bearing the brunt of this policy shift are tens of thousands of young people of color.
We should add to this composite picture an understanding of the practice of stop-andfrisk in New York City. This practice was examined in an important study by then-Attorney General Spitzer (NYS Office of the Attorney General, 1999), and more recently in a study conducted for the Police Department by the RAND Corporation (2007). The methodology of the RAND study has been the subject of academic debate, but I want to focus on some incontrovertible findings: according to this report, officers of the Police Department documented approximately half a million stops in New York City last year. Half a million.
We need to place this number in perspective. First, if we compare the RAND findings with results from a Bureau of Justice Statistics survey, we realize that the level of police stops in New York City is about double the national average (RAND). But the level of stop and frisk activity in New York City has not been constant. In 1998, according to the Spitzer report, there were approximately 140,000 stops per year. In 2003, the level of reported stop and frisks dropped to about 93,000 stops. Yet three years later, the RAND study documented a half a million stops, a five fold increase. And this increase occurred over a time period when crime was declining. We should ask ourselves why we have witnessed these swings of the enforcement pendulum?
For purposes of our discussion tonight, a third perspective is most telling: If these half a million stops were distributed evenly, we would experience six stops for every 100 daytime residents of New York City every year. But the stops are not distributed evenly. In two police precincts—the 73rd Precinct in Brownsville and the 28th Precinct in East Harlem, the rate of stops rises to well over 30 for every 100 residents, five times the citywide average. In five other precincts, all in minority neighborhoods, the rate of stops falls between 17 and 30 per 100 residents. We can only assume that if the number of stops is further disaggregated by gender and age, that the probability that a young,
African-American male will be stopped by the police in these neighborhoods at least once a year approaches statistical certainty.
At this point, I hope that you have created a composite mental image that links the data on incarceration, reentry, community supervision and parole revocation with the data on marijuana arrests and stops and frisks. Taken together, these modern phenomena constitute what I call an unprecedented "penetration" of the criminal justice system into our nation's communities of color. Never before have our systems of law enforcement, incarceration, and community supervision intruded so deeply into our country's poorest urban neighborhoods. In my view, it is this new reality that poses the greatest obstacle to our quest to align our nation's aspirations for racial justice with our pursuit of criminal justice.5
This new reality is undermining respect for the rule of law in communities of color. Young men with records have no reason to invest in their futures by finishing school, entering higher education, and taking entry-level jobs. A street culture forms in which getting arrested and going to jail and prison is expected and even status-enhancing. Most men have spent time in prison and half are under some form of criminal justice supervision. Many residents, particularly young people, have had hostile and unproductive contact with law enforcement. The burgeoning "stop snitching" standard codifies for a very troubling standard of the streets: good people do not deal with the police. Across the country, our police are having greater difficulty solving homicides. Our prosecutors are discovering that more witnesses refuse to testify. We are facing the reality that more disputes are being defined as private, rather than public matters. If this trend continues, we will face a crisis of the legitimacy of our system of justice.
Before closing, I would like to comment on the limitations of our traditional response to allegations of racial injustice in the criminal justice arena. As lawyers and citizens, we hold in high regard our constitutional principle of equal protection of the laws, and the statutory expressions of this principle such as Title VII. Because we are steeped in this tradition, we often approach the issue of racial inequity in the criminal justice system using a Title VII framework. We ask whether the racial disparities in stop and frisk practices can be explained by some neutral analysis. Similarly, we ask whether racial disparities in prosecutions, convictions, and sentencing can be explained by variables such as prior criminal record, severity of the crime, or legal aspects of the case.
I do not mean to disparage this approach to the issues of racial disparities in the justice system. We should continue to ensure that the enormous discretion exercised by police officers, prosecutors, judges, parole boards and parole officers is not tainted by racial bias. But I ask you to conduct the following mind-exercise: if we constructed a system of
5 In a recent speech, I proposed the creation of a "Community Justice Experience Survey" that would survey community residents, on a regular basis, to determine their contacts with law enforcement and criminal justice agencies over the past year (Travis, 2007). Just as the National Crime Victimization Survey provides an independent measure of crime rates, not reliant on police reporting, so too the Community Justice Experience Survey would allow us to measure objectively the interactions between citizens and the justice system without relying on official records.
law enforcement and criminal justice that operated just like today's system, but we knew beyond all doubt that every decision was made in a racially neutral way, would the resulting system of justice be one that would live up to the ideals of our country?
In my view, we cannot solely focus on whether the criminal justice system is fair; we must also ensure that it is effective at reducing crime and promoting racial justice. Allow me to illustrate my point. As you know, the United States Sentencing Commission recently decided to lower the disparities between sentences imposed for crack and powder cocaine. One of the strongest arguments for taking this step was that these disparities resulted in much higher levels of imprisonment for African-Americans, who constituted the overwhelming majority of defendants convicted of offenses involving crack cocaine. As welcome as these developments are, I would much rather ask two different questions: Are our current drug laws effective in reducing drug sales and drug use? And are these laws enforced in ways that promote positive relationships between the police and minority communities? Similarly, in thinking about the stop and frisk policies, rather than simply ask whether they are applied in a racially neutral fashion, we should ask whether they are effective (and here we should focus on the fact that only ten percent of all stops result in an arrest or a summons) and, as the RAND report recommends, whether these policies can be implemented in ways that promote better understanding between the police and the community.6
We must recognize that we have constructed a machinery of justice that will be difficult to dismantle. We are fortunate to live in times of declining crime rates, but this good news comes with a cost. It is nearly impossible to challenge these intrusive crime policies without hearing the retort, "This is why crime is so low." When we say our incarceration rate is too high and should come down, we hear that "this is why crime is so low." When we ask why we so aggressively supervise parolees, and send so many back to prison on parole revocations, we hear that "this is why crime is so low." When we challenge the high level of misdemeanor marijuana arrests, or stops and frisks, we hear that "this is why crime is so low."
I think we should start with a different framework. Paraphrasing Justice Blackmun, we should no longer "tinker with the machinery" of our current system of criminal justice. As we begin this important journey, we must move beyond the traditional conversations about racial profiling and law enforcement abuses. The new reality I have described is fundamentally about the unintended consequences of what was intended to be the legitimate enforcement of the law. We should assume that the arrests that lead a majority of young black men in some neighborhoods to have criminal records were legitimate arrests. Those arrests were most likely carried out in response to criminal behavior that damages communities. Those arrests probably had the effect of deterring other crimes and resulted in incapacitation that prevented yet more crimes. Yet, at the same time, those arrests, and the resulting high levels of incarceration, may do those individuals, their families, and their communities profound harm. This is the tragedy of our current policies: what we are doing in the name of protecting the community is in fact
6 Marc Mauer has proposed that all new criminal justice legislation be examined through the lens of a "racial impact statement" (Mauer, 2007).
undermining the norms that support viable communal life and the rule of law that supports our democracy.
I wish to conclude by sharing a story of a crime policy innovation that, for me, points the way toward a new framework for our simultaneous pursuit of racial and criminal justice. For the past decade, I have been watching—and supporting—the work of David Kennedy, formerly of Harvard's Kennedy School of Government and now a professor at John Jay College and Director of our Center on Crime Prevention and Control. David was the architect of the Boston Miracle, which brought about a stunning decline in youth gun violence in the mid-1990s. In retrospect, his strategy was disarmingly simple—working with the law enforcement agencies, he brought together the young people involved in the gang violence, representatives of federal, state and local law enforcement agencies, local community leaders and clergy, members of the young people's families, and service providers, and everyone basically said to them, with one voice, "The violence must stop. If you agree to cease the violence, you may take advantage of a variety of services offered to you. If the violence continues, you and your fellow gang members are all vulnerable to strict enforcement, and we are ready to deliver on this threat." This simple strategy has now been implemented in dozens of jurisdictions around the country, with similar effects—sharp and sustained reductions in violence.
Professor Kennedy has now tailored this strategy to apply to drug markets. The law enforcement team develops cases against all drug dealers in a certain neighborhood, calls the drug dealers into a meeting with their families, community leaders, and service providers. The same deal is offered: if you get out of the drug business, we will offer you jobs and services, and we will not enforce these cases against you. The most powerful voice is the community voice, saying, this drug dealing is hurting our community and our families, and we want you to stop. In order to do this, Kennedy has found, it is essential to address the ways in which law enforcement and communities view one another. He has found this to be what can only be called transformational. Communities discover that law enforcement knows it is not winning the drug war, understands that incarcerating people has consequences for them and for their community, and is frustrated itself at not being more effective, but is not part of a racist conspiracy. Law enforcement discovers that the community is sick of the crime and full of purpose and moral strength, and that even gang members and drug dealers listen to community elders.
As Kennedy has implemented this strategy around the country, the results have been stunning. In Chicago, homicide was reduced nearly 40% in some of the city's most dangerous neighborhoods. In Cincinnati, less than a year after beginning the Cincinnati Initiative to Reduce Violence, gang homicide is down almost 60%, and around 15% of the city's identified gang members have signed up for social services. In High Point, North Carolina, where the drug strategy originated, there are no more overt neighborhood drug markets. In a replication of the High Point strategy in Providence, Rhode Island's Lockwood neighborhood, drug calls are down over 80% and calls to disperse unruly groups down 86%.
But something else is happening in the jurisdictions experimenting with the High Point strategy. Every community has witnessed something akin to a racial reconciliation process between the police and the community. The police have realized that their drug enforcement strategy has basically been ineffective. The community has realized that it has lost control of some of its young people. They have come together to make a new deal, to find a way out of the machinery of our current cycle of law enforcement, incarceration, and reentry. These are profound changes. David and I hope to leverage these successes into a national effort by police and community leaders to build a new approach to violence and drug dealing, with an explicit focus on the process of racial reconciliation.
If we care about racial justice and the future of urban American, we need to rethink our approach to law enforcement and criminal justice. With crime rates at historically low levels, we have an opportunity to shift course. But these low crime rates can lull us into a sense of complacency. Even though the same communities that experienced the ravages of the crime increases for twenty years are now enjoying remarkably low crime rates, they are still hurting, just in different ways. They are shouldering the burden of high rates of incarceration. They are taking on the social responsibility of reintegrating record numbers of men back into society after years in prison. They are caring for the children and parents of the two million people in jail or prison. They are witnessing a generation of young people who are distanced from the police, unwilling to report crimes or testify against perpetrators for fear of being called a "snitch." They are bearing the brunt of a significant expansion of enforcement activity by the police, all in the name of keeping crime rates low.
These communities are entitled to a peace dividend, after years of fighting the war on crime. They are entitled to a new deal, one that addresses the problem of crime more creatively and with greater concern for ameliorating the racial disparities of our criminal justice system. They are entitled to an honest conversation about the failures of past policies, the racial dimensions of those failures, and the need for everyone to play different roles in the future. Working with these communities - and with a little bit of luck, and a lot of hard work - I am certain we can simultaneously reduce crime, reduce our prison population, and promote racial justice.
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