Mass Incarceration

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Recent Updates
Recent Updates
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  • 02/23/2017: Attorney General Jeff Sessions rescinded a memorandum that was issued under President Obama instructing the Bureau of Prisons not to renew private prison contracts after their terms expire. [1]
  • 02/22/2017: The U.S. Supreme Court ruled in favor of a Texas death-row inmate, deciding that during the sentencing phase Duane Buck's lawyer had unconstitutionally introduced testimony suggesting he was more likely to be commit future crimes because he is black. The court found that this was "inadequate assistance of legal counsel." [2]

How You Can Resist
How You Can Resist
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Actions Taken by the Federal Government
Actions Taken by the Federal Government
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Legislative Actions[edit]

Legislation that Supports Equity and Justice

  • H.R. 254: REAL Act reinstates Federal Pell Grant eligibility for individuals incarcerated in Federal and State penal institutions, and for other purposes. [3]
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  • H.R. 799: Shift Back to Society Act authorizes the Attorney General, in consultation with the Secretary of Education, to establish a pilot program to make grants to historically Black colleges and universities to provide educational programs to offenders who have recently been, or will soon be, released from incarceration, and for other purposes.[4]
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Executive / Administrative Actions[edit]

  • 2/21/2017: Trump's administration outlines it's immigration enforcement priorities in the "Enforcement of the Immigration Laws to Serve the National Interest" memo, which represents a dramatic expansion from the Obama administration regarding who will be considered priority for deportation. [5]
  • 2/9/17: Trump signs three executive orders focusing on "gangs, drug dealers, and crime against law enforcement officials."[6][7][8][9]
  • The orders[10]:
    • "Task the attorney general with setting up a 'Task Force on Crime Reduction and Public Safety' that will work to reduce crime, particularly 'illegal immigration, drug trafficking, and violent crime.'”[11]
    • "Task the attorney general with developing a strategy, in coordination with local, state, and federal agencies, to prosecute individuals who commit violent crimes against police, as well as reviewing whether existing laws go far enough in protecting police from violent crimes."[12]
    • "Task the secretary of state, attorney general, secretary of homeland security, and director of national intelligence to co-chair and direct the existing interagency Threat Mitigation Working Group with a broad review of policies to make sure the US is adequately detecting and prosecuting international drug cartels."[13]
  • 1/31/17: The Federal Communications Commission (FCC) informs the DC Circuit court they won't defend two key elements of their caps on phone providers' rates on prisoners' intrastate calls. 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 reoffending.[14]
  • 1/19/2017: Recent reporting states that as part of budget cuts, the Trump team plans to cut the Legal Services Corporation, which provides legal services for low-income people.[15]


See also the State and Local Pages for state-by-state legislative tracking.

Projected Impact
Projected Impact
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Most of Trump's agenda regarding policing and incarceration is targeted, either implicitly or explicitly, at black and brown communities. This includes the Trump administration's plans to more aggressively prosecute drug offenses and gun crime (via Project Exile). For example, while black people and white people use and sell drugs at similar rates, black people are nearly three times more likely to be arrested for drug offenses.[16] Similarly, rather than target gun violence in white communities (which tends to be shootings by legal gun owners, domestic violence, or mass shootings), Trump has proposed to address gun violence through Project Exile, focused on "gang members" and "drug dealers" in "inner cities." [17] Where implemented, Project Exile has disproportionately impacted black people, put black defendants on trial in front of juries chosen from a federal jury pool (which makes it less likely for black people to be represented on the jury and therefore more likely that black defendants get convicted), and resulted in longer sentences for those convicted, with these sentences served in federal penitentiaries located farther away from their families.

Policies that increase incarceration also disproportionately impact people with disabilities, given that 31.6% of prisoners and 39.9% of jail inmates have a disability.[18] For example, human rights abuses in prisons disproportionately impact people with disabilities because prisons currently ignore the American with Disabilities Act.[19] Rather than comply with the American with Disabilities Act and providing accommodations, prisons often put people with disabilities in solitary confinement.[20] This will be exacerbated by the reported reductions in civil rights enforcement in the Trump administration's budget.[21] This is especially true because new Attorney General Jeff Sessions has argued against a Supreme Court case limiting states' ability to execute people with mental and intellectual disabilities.[22]

Unfortunately, Lots of people — and not just private prisons — are invested in mass incarceration; such as Private companies that supply goods to the prison commissary or provide telephone service for correctional facilities bring in almost as much money ($2.9 billion) as governments pay private companies ($3.9 billion) to operate private prisons or Bail bond companies that collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty, or as Commissary vendors that sell goods to incarcerated people — who rely largely on money sent by loved ones — is an even larger industry that brings in $1.6 billion a year.”That helps clarify why public prison staff unions are some of the biggest lobbyists for mass incarceration in the country.[23]

In addition to these disparities, which will likely exacerbated by Trump's agenda, the increase in the federal prison population as a result of his policies will have substantial financial and social costs—breaking up families and communities instead of addressing the underlying causes of crime.

More than two million Americans are incarcerated in the United States, which costs an estimated $80 billion each year. Not only does the cost fall on taxpayers, but the majority of states also charge inmates for the costs of incarceration. The increased debt (which is often the cause of imprisonment for many individuals) prevents those released from prison from achieving upward economic mobility, particularly since they are often from already disadvantaged populations of color and face other significant barriers to reaching the middle class.[24] 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 reoffending. 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. [25]

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,[26] it would require the creation of new detention centers at an estimated cost of $2 billion dollars per year [27] to run and maintain. This huge expansion in detention leads to deteriorating prison conditions such as the potential overuse of solitary confinement, inadequate safety measures, poor nutrition, and insufficient medical care.[28]

Trump / GOP Strategy
Trump / GOP Strategy
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Donald Trump ran as a "law and order" candidate.[29] Trump's administration plans to push for legislation to expand use of the death penalty, [30] create a new violent-crimes task force, implement the Project Exile program to seek harsher sentences for gun offenders,[31] and increase spending on resources so that law enforcement and federal prosecutors can more aggressively arrest, prosecute, and incarcerate people.[32] Trump's attorney general, Jeff Sessions, opposes measures that would reduce the prison population[33], and he might encourage prosecutors to seek harsh mandatory minimum sentences for drug offenses,[34][35], including legalized marijuana.[36] By working to repeal Obamacare, Trump could also cut $500 million of funding for mental health and substance abuse treatment[37] as alternative approaches to drug addiction issues. Trump also plans to expand the use of private prisons,[38] which hold people in prison longer[39] than public prisons and have documented human rights abuses.[40] Trump also plans to encourage the use of torture[41] against people detained on terrorism-related charges.

Vulnerabilities in Their Strategy
Vulnerabilities in Their Strategy
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Death Penalty

The death penalty is used far less frequently at the federal than at the state level. Only 62 of 2,905 death row inmates as of July 1, 2016, were federal death row inmates.[42]. This is because there must be federal jurisdiction for a crime to be federally prosecuted: for homicide cases, the state has jurisdiction unless state lines are crossed or another federal felony is committed in the process. This is why the vast majority of federal death penalty cases involve terrorism, murder of a federal agent, or complex drug ring prosecutions.[43]

Federal death sentences will likely jump like they did under the Bush years, or a little more. AG Sessions is a death penalty supporter as well, and the US Attorney General has influence over when federal prosecutors seek death.[44]

However, Trump's effect on the state death penalty will be significantly less direct—a combination of changing federal appeal rights, aka habeas corpus/post-conviction relief, and rhetoric.[45]. There is a strong argument that the number-one most important factor in who gets a state death sentence is the head local prosecutor situated in the county of trial. Either the district attorney or a panel of prosecutors including the district attorney determines who to seek the death penalty for. If these local decision-makers opt to not seek the death penalty, there is no death sentence.[46][47]

Mandatory Minimums

There are three key vulnerabilities to Trump/Sessions's attempts to increase the number of mandatory minimum sentences, especially for drugs.

First, on the state level and even in recent years, a bipartisan coalition has said that American incarceration has spiraled out of control and that we need to reduce or dispose of mandatory minimums. Examples of this exist on both the federal[48]link title[49] and state level.[50]

Second, public opinion opposes mandatory minimums, making it more politically costly for Trump's administration and the GOP Congress to pursue these policies. A 2014 Pew Research Center survey[51] found 63 percent saying it was a “good thing” for states to move away from mandatory prison sentences for nonviolent drug crimes, up from 47 percent who said this in 2001. A 2006 survey by the National Center for State Courts[52] found 40 percent favoring mandatory minimum sentences for nonviolent drug crimes, while 57 percent said judges should have more leeway.

Third, as mandatory minimums fall out of favor among more Americans who are aware of the resulting injustices, numerous federal judges and other politically persuasive figures have voiced extreme distaste with mandatory minimums.[53][54].

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.[55] 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,[56] which would incarcerate someone for life for what is in almost all cases an accidental death.[57]

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. [58] 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.[59]


Past Updates
Past Updates
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  • 1/31/2017: The National District Attorney's Association has chosen 14 district attorneys to advise Donald Trump on policy on marijuana. Included in this group is Boulder, Colorado District Attorney Stan Garnett in addition to two attorney generals from Oregon and California. [60]
    • In previous meetings, the group has discussed proposals for states where marijuana is legal, Garnett said that at the first meeting, some of the DAs wanted to send a letter to the governor of any state with recreational or medical marijuana telling them to shut those businesses down within 90 days.
    • Garnett said in regard to the Trump administration going after states where marijuana is legal - "Legalization has been largely successful everywhere it has been tried, so it would be a highly unpopular move and difficult to accomplish successfully," Garnett said. "But I don't know what to expect on the Trump administration on this issue."
    • President Trump has said he plans to keep marijuana illegal on the federal level.
    • Attorney General State Jeff Sessions, who this committee would report to, has said "good people don't smoke marijuana."