Mass Incarceration

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How You Can Resist
How You Can Resist
[edit]

  • Call your Member of Congress by dialing tel:844-6-RESIST and tell them to support legislation that reduces mass incarceration and improves prison conditions.
  • Find out when your Senators and US Representative are holding Upcoming Events/Opportunities. Show up and tell them to support proposed laws that reduce mass incarceration and improve prison conditions.
  • Click here to find an organization looking for volunteers.

Updates
Recent Updates
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  • 9/19/2017 The Senate Judiciary Committee announced that they plan to reintroduce the Sentencing Reform and Corrections Act. The bill reduces sentences for nonviolent drug offenders, increases judicial power in sentencing, and develops reentry services. It has wide bipartisan support. [1]
  • 8/1/17 The Marijuana Justice Act of 2017 was proposed by Senator Cory Booker that would legalize marijuana at the federal level, or in every state. It would offer states benefits for making marijuana legal on a local level, and would punish states who have a higher rate of minorities imprisoned from crimes related to marijuana. These states with higher cannabis-related incarceration would also lose federal funding for building more prisons. Anyone who is currently in prison because of a cannabis law would be able to get a new hearing, and possibly have their records cleared. Those who feel they have been unfairly affected could sue, and the bill would establish a Community Reinvestment Fund to facilitate growth of communities most targeted by the “War on Drugs,” by building libraries and supporting re-entry programs.[2]
  • 7/20/2017 The PreTrial Integrity and Safety Act of 2017 was introduced. It aims to encourage states to reform or replace the bail system. Bill is bi-partisan, and was introduced by Kamala Harris and Rand Paul. [3]
  • 6/28/2017 The Reverse Mass Incarceration Act of 2017 was introduced. It aims to give grants to states for reducing prison populations. [4]

Actions Taken by the Federal Government
Laws Proposed by Congress
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Proposed Laws that Support Equity and Justice


  • S.2123 reduces lengthy sentences for low level offenses [6].
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  • H.R. 799: Shift Back to Society Act allows a pilot program to make grants to historically Black colleges and universities. These grants offer educational programs to people who have recently been, or will soon be, released from prison.[7]
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See also the State and Local Pages for state-by-state legislative tracking.


Causes and Contributing Factors[edit]

Over the past four decades, the US prison population has soared, rising from just under 200,000 people in 1972 to over 1.5 million in 2014 (Pfaff 2).

File:Https://static.prisonpolicy.org/images/incsize/US federal prisonpop 1978-2012.jpg Data Source: Bureau of Justice Statistics, Corrections Statistical Analysis Tool. (Graph: Peter Wagner, 2014). Prison Policy Initiative. File:Https://static.prisonpolicy.org/images/incsize/US jail pop 1983-2012.jpg Data Source: Compiled by the Prison Policy Initiative for report at http://www.prisonpolicy.org/reports/overtime.html. (Graph: Peter Wagner, 2014)

There are several factors that contributed to this explosion, and identifying them is important to ending mass incarceration. Several of these factors also show that mass incarceration disproportionately affects the poor and people of color, thereby perpetuating economic injustice and racial inequality.

Policing[edit]

Racial Profiling[edit]

Recent studies by the Department of Justice have uncovered widespread racial profiling in Ferguson, Chicago, Baltimore, and other places [14] [15] [16]. These studies show that people of color are more likely to be targeted by the police for minor infractions.

One way to end this injustice would be to require data collection about policing. By measuring how often the police stop civilians (and who they stop), how often the police arrest civilians (and who they arrest), and how often they use deadly force (and against whom), we can determine to what extent bias and discrimination shape policing.

There are bills under consideration that would make data collection a requirement or that would target racial profiling [17] [18] [19] [20]. In the meantime, journalists and activists have started collecting data on their own (see "Policing and Racial Disparities: Data Sources and Summaries" https://www.resistancemanual.org/Policing).

Evidence also shows that racial discipline starts in schools as well as black students are suspended from school five times more than white students [21].

Drug Tests[edit]

Each year, police officers arrest more than 1.2 million people for possession of illegal drugs. Sometimes, these people are prosecuted using a drug field test is known to be ineffective: the tests frequently produce what are known as false positives, meaning that innocent people are wrongly convicted of possessing illegal drugs. [22]

Interrogations[edit]

Wrongful convictions happen with stunning regularity [ttps://www.law.umich.edu/special/exoneration/Pages/about.aspx]. One of the reasons is that police can lead suspects and witnesses astray during interrogations, whether intentionally or unintentionally [23]. To prevent this from happening, some states require that interrogations be recorded in their entirety. These include Colorado, Connecticut, Illinois, Kansas, Maine, Maryland, Michigan, Missouri, Montana, Nebraska, New Mexico, New York, North Carolina, Ohio, Oregon, Texas, Vermont, Wisconsin, and the District of Columbia.

Prosecution[edit]

Public Defenders[edit]

The Constitution guarantees that anyone accused of a crime has the right to an attorney [24]. Those who cannot afford to hire a lawyer can be represented for free by a public defender.

Unfortunately, public defender offices are often under-funded. This means that public defenders are often responsible for more cases than they can handle, forcing them to spend very little time with the clients they represent. Lack of funding also means that public defenders have few resources to prove that their clients are innocent. Prosecutors can rely upon the police to investigate crimes for them; public defenders have no such support. As a result, the criminal justice system gives prosecutors an unfair advantage.

This also brings up the plea bargain. Since most public defenders don’t have the time or the resources to properly represent their clients (they can have upwards of 500 cases), and since many people cannot afford bail, or a trial, may people are encouraged to take a plea, often for crimes they did not commit: "Nearly every case, roughly 90% in fact, often end in a guilty plea, largely because even if a poor defendant is innocent, most can't afford bail or to wait in jail for trial, which means losing their jobs, their cars, maybe even their homes in the process." [25]

There are various ways of addressing this problem. One would be to require that public defenders offices are funded at the level as the prosecutors (Alexander 233).

Discretion[edit]

Prosecutors have almost unlimited discretion. This means that prosecutors decide which cases to pursue, which cases to ignore, and what sentences to seek. Unlimited discretion can be a problem for several reasons. First, prosecutors sometimes engage in what is called “overcharging,” threatening to charge a suspect with several different crimes for the purposes of forcing them to accept a plea agreement. This pressure can cause innocent people to plead guilty to crimes they haven’t committed, simply because the sentence they would receive if convicted is so extreme (Alexander 87-88).

To solve this problem, there are several things we can do.

  • Establish guidelines for charging and plea-bargaining that prosecutors must follow[26] and/or limit the threats that prosecutors can make during plea bargains (Pfaff 155)
  • Require that prosecutors collect and share data about their activities (Alexander 233, Pfaff 134-59]
  • Push for prosecutors to be appointed, rather than elected[27]
  • Reclassify certain offenses, so that crimes that were once felonies become misdemeanors, crimes that were once misdemeanors become violations, and so forth (Pfaff 155)
  • Finally, "pass justice realignment measures that incentivize prosecutors to avoid incarceration"[28]

DNA Testing[edit]

DNA testing plays an important role in efforts to reform the criminal justice system. Groups like the Innocence Project and the Center on Wrongful Convictions use DNA testing to establish that certain people have been wrongly convicted and to get them exonerated [29] [30].

At the same time, there are controversial ways of testing DNA that may have resulted in wrongful convictions, as Propublica has reported [31]. The first involves amplification. When DNA samples are too small, labs sometimes copy the sample over and over to provide more material to look at. But by copying the same sample, these labs also “amplified small imperfections from missing or contaminated DNA” [32].

The second controversial method is the Forensic Statistical Tool (FST). The FST is a way of analyzing a sample that may contain DNA from several different people. The sample is tested against an individual suspect, and the FST provides a number that states how likely it is that the suspect’s DNA is present in the sample. Some individuals have raised questions about this method of testing, noting that some scientists have little understanding of how the software generates the number while others question the assumptions behind the software.

Legal and Ethics Training for Judges[edit]

Surprisingly, many states do not require judges to have law degrees or even basic ethics training [33] [34] [35]. This is a problem because judges are supposed to ensure that defendants receive a fair trial.

Federal Law Enforcement[edit]

In Trump’s proposed budget, funding for the Department of Justice is cut by 20% overall [36], but funding for the FBI goes up by 3%. [37] This includes more funding for:

  • fighting terrorism
  • fighting foreign intelligence
  • fighting cyberthreats
  • finding better ways to identify suspects (biometrics)
  • background checks on people buying guns
  • violent crime data
  • fighting organized crime and drug traffic[38]

Sessions Memo[edit]

The attorney general, Jeff Sessions, is telling federal prosecutors across the US to make the nation’s drug war a bigger priority. This is part of a Department of Justice (DOJ) focus on fighting violent crime.[39]

Sessions' focus on violent crime could shift resources away from other Justice Department projects, such as prosecuting cybercrime and business frauds. This could also hurt environmental and civil rights enforcement, though such cases are usually handled mostly by the DOJ.[40] A push for tougher handling of cases means defendants could be looking at more serious charges and longer prison terms in the coming years.[41]

Sessions will end a DOJ partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.[42] He would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers started under President Obama in 2013.[43]

Sessions has also recently announced that he wants to bring back the D.A.R.E. (Drug Abuse Resistance Education) program [44] introduced in the 1980's. This program has since been proven to be ineffective in reducing teen drug use. [45]

Use of Private Prisons[edit]

The two largest for-profit prison companies in the United States – GEO[46] and CoreCivic[47] (previously Corrections Corporation of America) have given more than $10 million to candidates since 1989 and have spent nearly $25 million on lobbying. [48] Sentencing policies, such as mandatory minimums and three-strikes laws, resulted in the largest prison population in the world. By 2014, the top two companies had revenues of $3.3 billion, nearly double what they made in 2006.[49]

GEO announced it has been awarded a contract by ICE for a new $110 million, private 1,000-bed Detention Facility to be located in Conroe, Texas. Completion is expected in late 2018, and the facility is estimated to make about $44 million a year.[50]

The Prison Policy Initiative's rough estimate, based on poor data, is that the private prison industry costs $3.9 billion and sees profits of $374 million. Other big expenses in the prison system are:

  • utilities ($1.7 billion)
  • food ($2.1 billion)
  • construction ($3.3 billion)
  • and health care ($12.3 billion)

These items are usually contracted out.[51]

The Justice Department’s inspector general found that private prisons were more dangerous[52] than those run by the Bureau Of Prisons (BOP).[53] Private prisons had “higher rates of assaults, both by inmates on other inmates and by inmates on staff."[54]

The Commission on Civil Rights found that for-profit prisons, when compared to other prisons, failed to follow standards in the following areas:

  • health care
  • protecting LGBT people from abuse
  • providing enough good food
  • and access to legal services[55]

Only three states - Illinois, Iowa and New York - have banned the use of private prisons, and New York City's pension system is the only city in America to fully divest (take away money) from private prisons. [56] This doesn’t stop federal agencies from putting their facilities in these states.[57]

PrivatePrisons.png

Immigration[edit]

About 72% of more than 325,000 immigrant detainees were held in centers run by many of the same private companies that run federal prisons.[58] Private companies provide immigrant detention at a lower cost: about $144 per inmate per day. Federally run Immigration and Customs Enforcement (ICE) facilities cost $184 per inmate per day.[59] From Jan. 22 through Sept. 9, ICE arrested 97,482 people suspected of being in the country illegally, a 43% increase over the same time period in 2016 under President Barack Obama. [60]

A Center for American Progress analysis of detention placement decisions for lesbian, gay, bisexual, and transgender, or LGBT, immigrants found that ICE’s automated system gave release as an option in 70% of LGBT intakes because of LGBT people's vulnerability in detention. Still, ICE officers chose to detain LGBT people in 68% of those instances, to meet bed quotas.[61]

ICE requires immigration bonds be paid in full by someone with legal status in the United States. If an undocumented person tries to pay someone’s bond, then they, too, will be detained. As a result, many undocumented immigrants turn to bail bond agencies.[62] In exchange for their freedom, immigrants sign contracts promising to pay Libre[63], a national bailbondsmen system by Nexus, $420 per month while wearing the company’s GPS devices. However, these contracts are increasingly the subject of lawsuits, and immigrants claim they are being cheated by Libre.[64]

CIVIC (Community Initiatives for Visiting Immigrants in Confinement) [65] found there were at least 33,126 complaints of sexual and physical abuse against agencies under the Department of Homeland Security between January 2010 and July 2016. Of those, officials investigated just 225 of the complaints, or 0.07%, according to the Office of the Inspector General (OIG). The OIG did conduct 570 total investigations of sexual and physical abuse, but only 225 arose from a complaint.[66][67]

Trump/GOP agenda[edit]

  • The Justice Department has re-opened the door to private prison companies[68], taking back an Obama policy to gradually reduce their role in federal prisons.[69]
  • One of the major cuts in Trump's proposed budget for the Justice Department is a cut of $1 billion for federal prison construction, which is possible because of the 14% decrease in the prison population during Obama’s presidency.[70]
  • In order to enforce "Enforcement of the Immigration Laws to Serve the National Interest" and expand detention for immigrants, given that America's detention system for immigrants has been running at full capacity for some time now,[71] it would require the creation of new detention centers at an estimated cost of $2 billion dollars per year [72] to run and maintain. Individuals detained in immigrant detention centers are low custody priorities and are not security risks. In 2014, Center for American Progress found that 18 percent are housed in for-profit prisons under contract with ICE, 24 percent are located in facilities owned by state and local governments that exclusively house immigrants for ICE.[73] Civic Core stated financial performance in the fourth quarter of 2016 was well above initial forecast due, in large part, to heightened utilization by ICE across the portfolio [74]

Prison Conditions[edit]

Under the Obama administration, the Federal Communications Commission (FCC) set caps on the costs phone providers could charge inmates for phone calls—the majority of which are to family, which studies have shown decrease the likelihood of re-offending. Providers challenged the caps in court, which the FCC was defending under the previous administration. In January 2017, two of the sitting members of the FCC respectively retired and stepped down from the commission, leaving two Republicans and one Democrat. Trump has named Ajit Pai, a Republican, to the commission, and on January 31, the FCC notified the DC circuit court that it would no longer defend two key elements of the regulations: the caps on intrastate call rates, and the methodology for setting the caps. Intrastate calls make up approximately 80 percent of all calls. While the case has moved forward, with prisoner-rights groups taking up the FCC's former case, the two open spots to be filled on the FCC by Trump will likely oppose the caps, and the regulations are currently on hold. Should the regulations be removed entirely, phone providers will be able to charge any rate to prisoners, increasing the costs of their incarceration. [75]

Since 1980, the number of women in prison has grown by 730 percent, twice the rate of total prison population (363 percent). [76] Today, there are 1.2 million women behind bars, or on probation or parole, [77] and, according to Senator Kamala Harris, 80% of incarcerated women are mothers. [78] Sixty percent of women being held in jails are awaiting trial, meaning they haven't been convicted and most likely can't afford bail. [79]

Most criminal cases end in plea bargains, agreements between the defendant and prosecutors where the defendant agrees to plead guilty or no contest. Often, these people didn't commit the crime, but take a plea bargain to avoid a longer sentence if found guilty anyway. [80] The vast majority of felony convictions are the result of plea bargain, with almost 94 percent at the state level and 97 percent at the federal level. The percentage is even higher for misdemeanors. Many people currently serving time in prisons never went to trial. [81]

As of July 8, 2017, the total number of federal inmates is 187,373. [82] About 47% of inmates in state prisons are there for nonviolent crimes.[83]

Vulnerabilities in Their Strategy
Vulnerabilities in Their Strategy
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Drug Prosecution/Sentencing

An Obamacare repeal would cut funding for mental health and drug rehabilitation programs at a time when the opioid epidemic is severe and media coverage is high.[84] Even before Trump was elected, this was emboldening some local prosecutors to take extremist positions on how to deal with the problem. For example, Prosecuting Attorney Joe Deters in Cincinnati, Ohio, is working with Ohio's attorney general to try to make a drug sale that then results in death eligible for a first-degree-murder charge,[85] which would incarcerate someone for life for what is in almost all cases an accidental death.[86]

However, local elected prosecutors' decisions to warehouse people for small amounts of drugs are now potential political liabilities, since public opinion is shifting away from an overpunitive approach to drugs. [87] When faced with strong opposition with the appropriate funding, head prosecutors who practice aggressive prosecution for even marijuana and possession-quantity levels of drugs are starting to lose their reelection bids.[88]

Bipartisan Agreement Against Civil Asset Forfeiture

On Mar. 29, 2017, Washington Post published a piece on how the U.S. Department of Justice's Inspector General published a report finding that the Drug Enforcement Administration has confiscated 3.2 billion dollars from people convicted of no crime since 2007.[89] In Jan. 2017, a Forbes contributor spoke out on how Jeff Sessions "is among that small minority of Americans who reflexively support civil asset forfeiture because it supposedly helps fight crime."[90] . On July 19th, Attorney General Jeff Sessions rolled back a series of Obama-era curbs on civil-asset forfeiture, strengthening the federal government’s power to seize cash and property from Americans without first bringing criminal charges against them. [91]

Sources[edit]

Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010, 2011) Pfaff, John. Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York: Basic Books, 2017)