The de­cline of mass in­car­cer­a­tion

The Register Citizen (Torrington, CT) - - OPINION - By Charles Lane

Among the many shame­ful lega­cies of racial dis­crim­i­na­tion and seg­re­ga­tion in the United States is the fact that African-Amer­i­cans make up a dis­pro­por­tion­ate share of both those who are victims of vi­o­lent crimes and those who are in­car­cer­ated for com­mit­ting them.

“Lock­ing Up Our Own,” a re­mark­able new book by Yale Law School pro­fes­sor and former Dis­trict of Columbia pub­lic de­fender James For­man Jr., tells the poignant but ne­glected story of how newly en­fran­chised black com­mu­ni­ties coped with this dilemma as a crime wave swept through ur­ban Amer­ica in the 1980s and 1990s, driv­ing the mur­der vic­tim­iza­tion rate among blacks to an as­ton­ish­ing high of 39.4 per 100,000 pop­u­la­tion in 1991.

African-Amer­i­can may­ors, po­lice and pros­e­cu­tors re­sponded to the pleas of be­lea­guered con­stituents with rhetoric, and pol­icy, that were no less “tough on crime” than that of their white coun­ter­parts. Black lead­ers of­ten framed crime­fight­ing as an is­sue of sal­vaging the civil rights rev­o­lu­tion.

“What would Dr. King say?” about the vi­o­lence plagu­ing pre­dom­i­nantly black cities, they would ask rhetor­i­cally and then crack down on mostly youth­ful of­fend­ers, which inevitably in­volved “lock­ing up our own.”

For­man’s beau­ti­fully writ­ten nar­ra­tive, en­riched by first­hand knowl­edge of the cops and courts, nei­ther condemns black lead­ers in hind­sight nor ex­on­er­ates the white-dom­i­nated in­sti­tu­tions that laid the ba­sis for what dra­matic block letters on the cover of an Au­gust 1979 “spe­cial is­sue” of Ebony la­beled “black on black crime.”

How­ever, he adds his­tor­i­cal nu­ance to the story of “mass in­car­cer­a­tion” told in Ohio State Univer­sity law pro­fes­sor Michelle Alexan­der’s in­flu­en­tial 2010 book “The New Jim Crow.”

This makes For­man’s book the sec­ond im­por­tant cor­rec­tive this year to Alexan­der’s. The first, “Locked In” by Fordham Univer­sity law pro­fes­sor John Pfaff, de­ployed sta­tis­ti­cal ev­i­dence to show that the United States’ high­est-in-the- in­dus­tri­al­ized world in­car­cer­a­tion rate did not re­sult from the war on drugs, con­trary to a theme of Alexan­der’s book that has been re­peated so of­ten Pfaff dubs it “the Stan­dard Story.”

Even if every­one in state and fed­eral prison on a drug con­vic­tion were re­leased to­mor­row, the U.S. in­car­cer­a­tion rate would still be about quadru­ple what it was in 1970. That is be­cause, Pfaff demon­strates, most peo­ple in prison are there for vi­o­lent crimes such as homi­cide or ag­gra­vated as­sault.

Pun­ish­ment for th­ese of­fenses drove in­car­cer­a­tion rates higher, Pfaff shows, but not, as is of­ten sup­posed, be­cause of laws im­pos­ing harsh manda­tory-min­i­mum sen­tences.

The key fac­tor was dis­cre­tionary pros­e­cu­to­rial de­ci­sions; at least from the early 1990s on, pros­e­cu­tors in the na­tion’s 3,000-plus coun­ties charged ar­restees with felonies at a higher rate even as the crime rate it­self de­clined. Ul­ti­mately, more puni­tive ex­er­cise of pros­e­cu­to­rial dis­cre­tion fed a steady net in­flux of con­victs to state pris­ons.

Dis­trict at­tor­neys were mo­ti­vated by tough-on-crime pol­i­tics and en­abled by cost-shift­ing eco­nom­ics: Coun­ties pay for po­lice and pros­e­cu­tion, but im­pris­on­ment comes out of the state bud­get.

The most re­cent ev­i­dence in­di­cates that the age of mass in­car­cer­a­tion is abat­ing; it has been, oddly enough, since just prior to the pub­li­ca­tion of “The New Jim Crow.”

The Pew Char­i­ta­ble Trusts has re­ported, based on Jus­tice Depart­ment data, that the U.S. in­car­cer­a­tion rate de­clined from a peak of 1 in 100 adults in 2007 to 1 in 115 in 2015. Keith Humphreys, of Stan­ford Univer­sity, has shown that racial dis­par­i­ties, though still large, may be di­min­ish­ing. The in­car­cer­a­tion rate for blacks fell steadily be­tween 2000 and 2014, while that of whites rose slightly.

The chal­lenge now is to ac­cel­er­ate the de-in­car­cer­a­tion trend while sus­tain­ing low lev­els of crime. Un­der the cir­cum­stances, For­man and Pfaff’s em­pha­sis on lo­cal pol­i­tics, and county- and state-level pros­e­cu­to­rial dis­cre­tion, is para­dox­i­cally hope­ful.

Fed­eral pol­icy makes head­lines, but in the vast ma­jor­ity of cases, crim­i­nal jus­tice takes place at the grass roots. And in re­cent years, that is the level at which the most promis­ing re­form ef­forts have oc­curred.

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