Cross-posted on the American Constitution Society for Law and Policy Blog
For decades, America’s incarceration policies have been questioned both for their result of dwarfing every other nation on the planet in the number of people locked behind bars but also for their vast racial disparities.
Policies enacted during the height of the War on Drugs in the 1980s and 1990s expanded the use of incarceration as a response to rising crime and fear of crime. These include mandatory minimums, truth-in-sentencing laws, “three strikes you’re out” laws, federal funding targeted for building more prisons and other sentencing regimes that exponentially expanded America’s prison population.
The numbers are revealing. Since the 1970s, incarceration in the U.S. has increased steadily and dramatically. In fact, since 1990 the U.S. has added about 1.1 million additional people behind bars, almost doubling the nation’s incarcerated population. These prisoners are disproportionately people of color.
African-American males are six times more likely to be incarcerated than white males and 2.5 times more likely than Hispanic males. In 2013, almost 3 percent of black males were imprisoned compared to 0.5 percent of white males. America’s prisons and jails cost more than $80 billion annually – about equivalent to the budget of the federal Department of Education. This is the phenomenon of mass incarceration.
A recent report by the Brennan Center for Justice at NYU School of Law provides additional empirical evidence for incarceration’s ineffectiveness at today’s unprecedented levels. Crime across the United States has steadily declined over the last two decades. Currently, the crime rate is about half of what it was at its height in 1991. Violent crime has fallen by 51 percent since 1991, and property crime by 43 percent.
Using an economic model that accounts for the diminishing returns of extremely high levels of incarceration and includes the latest 13 years of data, the report bolsters past research suggesting increased incarceration had little impact on crime rates. Increased incarceration's effect was smaller than many previously thought. The report found that in the 1990s, it may have accounted for about 5 percent of the crime decline. Since 2000, the effect of increasing incarceration on the crime rate has been effectively zero.
Much of the increase in incarceration was driven by the imprisonment of nonviolent and drug offenders. Today, half of state prisoners are serving time for nonviolent crimes. Over half of federal prisoners are serving time for drug crimes. In addition, there are racial disparities reflected in those who are locked up for drug offenses. A recent study found that almost one in three people arrested for drug law violations is black, although drug use rates do not differ by race and ethnicity.
There is no clearer picture of this than the racial disparities that resulted from the 100:1 ratio that guaranteed that individuals faced longer sentences for offenses involving crack cocaine than for offenses involving the same amount of powder cocaine – even though pharmacologically, crack cocaine is the same drug as powder cocaine. The 100:1 ratio produced enormous racial disparities in terms of sentence lengths that affected African-Americans as the majority of people arrested for crack offenses are African American. Cocaine is more expensive and was used among a broader socioeconomic spectrum while crack invaded often more impoverished urban centers. Under the 100:1 regime, African Americans served almost as much time in prison for non-violent drug offenses as whites did for violent offenses. In 2010, Congress passed the Fair Sentencing Act (FSA), which reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1, yet a disparity remains today.
The way forward points to improving America’s laws and practices to advance the twin goals of enhancing public safety while retreating from mass incarceration and its attendant racial disparities. The numbers only provide part of the story. The families and communities destroyed by racial disparities prevalent in the criminal justice system paint a deeper picture.