As the candidates emphasized Wednesday night, racial disparities in the U.S. criminal justice system are vast. One reason (though only one of many) is the difference in how crack and powder cocaine possession are punished at the federal level, which the recently enacted First Step Act partially addressed.Due also to over policing in black neighborhoods and implicit bias among judges and prosecutors, one in 10 black children in this country has a parent behind bars, compared with about one in 60 white kids.
Yet in a little-noted development, these disparities have actually been on the decline for nearly two decades. Between 2000 and 2015, the rate at which black men were imprisoned dropped by more than 24 percent. Among women, the trend was even more dramatic: a drop of 50 percent.
The racial disparity in women’s incarceration was once 6-to-1, but now it has dropped to 2-to-1.
No candidate pointed this out last night. But understanding why it is happening is key to accelerating and protecting the progress that’s been made, experts say. One theory is that most criminal justice reform has been taking place in cities, where more black people live, while rural areas have fewer reform-minded prosecutors and nonprofits working on these problems. Another is that the War on Drugs has shifted its focus from crack and marijuana to meth and opioids, which more white people use.
Even at the current rate, though, racial divides would not disappear for many, many decades. And importantly, disparities in juvenile justice are getting much worse. This may be because that system has over the same two decades begun to offer youth who pass “risk-assessment” tests more alternatives to incarceration—but mostly white kids have reaped the benefits.
Origins of Mass Incarceration
Former Vice President Joe Biden has taken a lot of heat from the other candidates for helping to pass the 1994 Violent Crime Control and Law Enforcement Act. Many have argued the legislation provided a framework for today’s mass incarceration crisis. Yet while the 1994 bill did include provisions such as “three-strikes-you’re-out,” which punished repeat offenders with lengthy sentences, there is actually much more to the story.
For one, prison populations started to rise in 1973 and reached record highs in the 1980s, before the law ever came into being.
“This was a national phenomenon, largely taking place at the state level, where more than 85 percent of prisoners are housed,” wrote Marc Mauer, executive director of the Sentencing Project, in a commentary for The Marshall Project.
State legislators were already implementing laws that sent people to prison for decades. Here is where the crime bill did have an effect: The law provided states with funding to build new prisons. It also incentivized states to pass truth-in-sentencing laws, which required prisoners to serve the majority of their sentences before becoming eligible for parole.
State and local prosecutors, too, bear much of the blame of the incarceration explosion of the past four decades, as Fordham law professor John Pfaff has argued. And they were elected on tough-on-crime platforms—endorsed by American voters.
Most candidates on the debate stage Wednesday night united in denouncing the death penalty, a reflection of new political realities. Public support has ebbed for capital punishment as cases of people on death row being exonerated by DNA evidence have come to light. And there is ample evidence of racial bias—the majority of those sentenced to death in the last decade have been people of color.
According to a Gallup poll, support for the death penalty in murder cases dropped from 80 percent in 1994—when the crime bill passed—to 56 percent last year.
More states are also declaring moratoriums on executions, as California’s governor did earlier this year. While 29 states still allow capital punishment, only 13 have actually executed anyone in the last six years. California, which leads the nation with over 700 death row inmates, has not executed anyone since 2006. Just 2 percent of counties in the U.S. have been responsible for the majority of executions since 1976.
Meanwhile, only three people have ever been executed by the federal government since 1988, and the last federal execution occurred in 2003. But this is about to change—Attorney General William Bar recently announcedthe federal government would resume carrying out the death penalty, setting five dates for executions in December and January. No candidate brought this up in the debates, though the move drew criticism from some quarters on both the left and the right.
Debate viewers could be forgiven if they were left disoriented by multiple references to Department of Justice-authored “consent decrees” on Wednesday night.
These agreements—typically between troubled police departments and the civil rights arm of the DOJ—were a hallmark of the Obama administration’s second term, but have all but gone extinct under the Trump administration. These agreements typically followed an investigation into a “pattern or practice” of unconstitutional conduct by a police department and took the shape of a joint reform agreement that was made enforceable by a federal judge. Departments in Chicago, New Orleans and, perhaps most famously, Ferguson, Missouri, have all entered into consent decrees in recent years.
California Sen. Kamala Harris raised the issue of consent decrees while answering a question about the chokehold death of Eric Garner in Staten Island in 2014—one of the many black men who have died at the hands of police—and the recent DOJ decision, handed down directly from Attorney General William Barr, that no federal charges ought to be brought in that case. Many other candidates also weighed in on the question of how to hold police accountable.
Trump, Barr and prior Attorney General Jeff Sessions have denounced all such consent agreements as undermining the credibility of law enforcement.Under Sessions, the Justice Department not only halted entering into any new agreements with departments for changes, in several cases, it attempted to pull out of agreements already made by predecessors. Sometimes, as in Baltimore, it did so even as the department in question requested that it be held to the standards previously agreed upon.
If you were left scratching your head when Julián Castro declared “we need to ensure we have a national use of force standard and that we end qualified immunity for police officers so that we can hold them accountable for using excessive force,” you are not alone. The phrase refers to the legal doctrine that protects police officers and certain other public officials from being sued for wrongdoing on the job. It dates back to a 1967 Supreme Court case in which the high court found that police officers might be reluctant to do their jobs if they feared getting sued all the time.
But over time, as police killings of unarmed African-Americans surface on video again and again, with few, if any, consequences for the shooters, critics on both ends of the ideological spectrum have begun to argue that “qualified immunity smacks of unqualified impunity,” as one conservative judge wrote in a dissent last year.
Yet courts are bound by precedent, and precedent says that unless there’s a specific case giving officers fair warning that a particular behavior is unconstitutional, any other behavior is protected. Just last month, the U.S. Court of Appeals for the 11th Circuit took up the case of a police officer who shot a 10-year-old boy lying 18 inches away from him, face down on the ground. He was aiming at the family dog and missed. Because no court has ever ruled that shooting at a dog, missing and shooting a nearby child in the process was unconstitutional, they found his actions were protected, and he didn’t have to pay the child’s family damages.
Payments Before Prison
Andrew Yang, the businessman whose hallmark policy is to give all U.S. citizens over 18 years old $1,000 dollars a month, proposed addressing criminal justice by “put[ting] money directly into people’s hands, certainly when they come out of prison, but before they go into prison.”
Many states do provide money to people getting out of prison—known as “gate money,” it is typically a very modest amount. Sometimes this is funded by taxpayer dollars; other times it’s money that inmates have been forced to save from their prison accounts.
It’s rare to pay people as a crime-prevention tool, though. A program in Richmond, California, dubbed “paying kids not to kill,” has generated both admiration and controversy. The basic idea is that teens identified as potential drivers of crime participate in a fellowship program, which includes a stipend along with mentorship and employment and academic support.
More broadly, we know that poverty and criminal justice are linked in complex but direct ways—and that economic challenges often loom before, during and after Americans’ experiences in the criminal justice system.